HouAND&HART .. --:J 

January 5, 2016 

VIA CERTIFIED MAIL- RETURN RECEIPT REQUESTED 

and VIA E-MAIL 9-AWA-AGC-Part-16@/aa.gov 

Office of the Chief Counsel 

Attention: Sharon Long 

AGC- 600 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Adrian A. Miller 

Phone (406) 896-4612 

Fax (406) 206-0081 

AAMiller@hollandhart.com 

Re: Part 16 Complaint: Safer Medical of Montana and George Ackerson v. City 

of Fort Benton, Montana, Chouteau County, Montana, and Chouteau 

County Joint Airport Board 

FAA Docket No. 16-15-12 

To Whom it may concern: 

Safer Medical of Montana and George Ackerson ("Complainants") file this reply to the 

City of Fort Benton's and Chouteau County's ("Defendants") motions to dismiss the Complaint 

in the above-referenced docket. 

A. Complainants engaged in good faith settlement negotiations. 

Defendants completely ignore the settlement negotiations which took place between 

April 15,2015 and October 1, 2015, when the Complainants worked with the Chouteau County 

Joint Airport Board (the "Board"). In fact, as noted in Section D of the Complaint, the 

Complainants removed a cabin on their property and altered plans for their project. 

Complainants also made promises, in writing, that the land would not be used for nonaeronautical purposes. Complainants cooperated with the Board in its drafting of a June 23, 

2015 letter to the FAA, which detailed all of the actions taken by Complainants and included a 

signed letter from Complainants' counsel. See Compl., at Ex. D. 1 

1 Importantly, this June 23rd letter requested that the FAA grant an "exemption from the 1998 agreement for the 

lease given to Safer Medical" and allow the Lease to be renewed. /d. The term "exemption" was the term utilized 

by Defendants in the letter, and the "exemption" described was not granted. 

Holland & Hart LLP 

Phone [406]252-2166 Fax [406]252-1669 www.hollandhart.com 

401 North 31st Street Suite 1500 Billings, MT 59101 Mailing Address P.O. Box 639 Billings, MT 59103-0639 

Aspen Boulder Carson City Colorado Springs Denver Denver Tech Center Billings Boise Cheyenne Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C. 0 
HOLLAND&HART .. '!J 

January 5, 2016 

Page 2 

As a result of the June 23rd letter, Joe Nye, an Airport Project Manager for the Helena 

Airport District Office of the FAA, responded on October 1, 2015 and accepted the solutions 

proposed jointly by Complainants and the Board. Defendants' allegation that Complainants did 

not attempt good faith settlement negotiations overlooks this entire history where Complainants 

worked with the Board and the FAA to essentially fix Defendants' mess. The Board was 

negligent in allowing Complainants to conduct construction, with the Board's full knowledge, 

that ultimately did not comply with certain Airport Sponsorship Assurances. The Board 

neglected its duties to actually understand, follow, and enforce those assurances. Complainants 

fully cooperated with the Board to resolve the issues detailed in the May 20, 2015 letter form Mr. 

Nye to Defendants, which explained the City and County's violation of their Airport 

Sponsorship Assurances. Mr. Nye's letter was not addressed to Complainants. It was correctly 

addressed to the City and County because they were the entities who had violated the Airport 

Sponsor Assurances. Complainants still cooperated, at their own expense, to help the City and 

County correct its mistakes. 

However, Complainants could not fix Defendants' negligence in entering into the Lease 

with Complainants in the first place. Defendants, against the express terms of the 1998 

Agreement, gave a Lease to Complainants. Mr. Nye has refused to allow renewal of the Lease, 

even though the express provisions ofthe Lease include the option of renewal. Defendants can 

also not fix the fact that other users of the Fort Benton Airport ("Airport"), including Andy 

Taylor, are also violating Airport Sponsor Assurances, with Defendants' full knowledge and 

apparent consent. 

Defendants' suggestion that Complainants should have engaged a mediator or arbitrator, 

when Mr. Nye was involved in the process from the beginning, is a red herring. Unless 

Defendants are suggesting that Complainants could have forced the FAA to submit to arbitration 

or mediation to resolve Defendants' violations of Airport Sponsor Assurances, a dispute 

resolution process would have been meaningless. 

Defendants have focused on a final offer of settlement, which was sent after 

Complainants spent six months engaging in good faith negotiations with Defendants at 

significant cost. The final offer of settlement was sent in hopes that Complainants could prevent 

further negligence and future violations of Airport Sponsor Assurances at the Airport. As 

explained in the Complaint, Defendants continue to allow lessees at the Airport to operate in 

violation of Airport Sponsor Assurances. Since Defendants have violated the Airport Sponsor 

Assurances, and continue to knowingly do so, Complainants sent a final settlement offer with the 

hopes that the wrongful actors may step down from their positions. Although Complainants' 

acknowledge that the offer was unusual, there was nothing wrong with it. Parties settle disputes 

frequently on non-monetary terms that may be unavailable if those same parties engaged in a 
HOLLAND&HART. .. IIIJ 

January 5, 2016 

Page 3 

court or agency process. Complainants' ultimate goal is to ensure that Defendants comply with 

the Airport Sponsor Assurances, and the final settlement offer was aimed at this same goal. 

Importantly, this final settlement offer was only sent after Complainants ceased 

construction, went to numerous Board meetings to negotiate and work with Defendants over a 

six month period, removed a cabin from the property, drained and boarded over a pond, and 

cooperated in drafting a letter to Mr. Nye to help resolve Defendants' violations. All of these 

actions demonstrate that Complainants engaged in good faith negotiations with Defendants prior 

to filing a Complaint. 

B. Complainants do not lack standing to file their Complaint. 

The County further alleges that Complainants lack standing to file their Complaint. The 

County conveniently ignores a substantial portion of the facts at issue. As already discussed in 

Section B of the Complaint, Defendants have allowed other lessees- including Taylor Aviation, 

Inc. - to operate a non-aeronautical business at the Airport and to have favorable lease terms 

unavailable to Complainants. There is no doubt that Defendants' failure to follow the 1998 

Agreement when they granted the Lease to Complainants was a violation of the Airport Sponsor 

Assurances. Mr. Nye has already found as much. But the true violation is the economic 

discrimination which results from this violation. · 

Complainants have a Lease, which was subject to renewal when executed, that is now not 

subject to renewal. In other words, the express provisions of the Lease are useless. While Mr. 

Taylor has similar leases, his leases will continue to be renewed when they expire. In fact, the 

Board has never refused to renew a lease if the lessee requests a renewal. Until now. Mr. Taylor 

invested a substantial amount of money making improvements to his leased property at the 

Airport for his business. Similarly, Complainants have spent hundreds of thousands of dollars 

improving their leased property for their future business of training pilots. The difference, of 

course, is that Complainants' money was essentially wasted because they will no longer be able 

to access their Hangar- even though they have a deed stating that they own it- after February 

2023. Meanwhile, Mr. Taylor will continue to utilize his property as he sees fit, with the full 

benefit ofthe improvements he has made. Complainants have obviously been "substantially 

affected" by Defendant's violation of the Airport Sponsor Assurances and have standing to bring 

the Complaint. 

Defendants have failed to answer any of the substantive allegations in the Complaint -

likely because there is no good explanation. Defendants have, for example, failed to explain why 

Mr. Taylor can operate a non-aeronautical business selling commercial spraying chemicals out of 

his numerous hangars. Meanwhile, Complainants had to write a letter promising not to utilize 

their property for any non-aeronautical purposes and drain a pond to help Defendants resolve 

their violations with Mr. Nye. Complainants have actually never utilized their property for any 

non-aeronautical use purpose, unlike Mr. Taylor. Defendants have also failed to explain why 
HOLLAND&HART,. January 5, 2016 

Page 4 

Mr. Taylor is allowed to have an apartment in his hangar, but Complainants had to remove 

similar accommodations, even though nobody has ever stayed overnight at Complainants' 

property. 

II. CONCLUSION 

Defendants' motions to dismiss the Complaint should be denied. Complainants have 

demonstrated that they engaged in good faith negotiations with Defendants over a six month 

period. In addition, Complainants have been substantially affected by Defendants' violation of 

the Airport Sponsor Assurances, including the ultimate loss of their Hangar, which they will no 

longer be able to access after February 2023. Although Defendants have attempted to whitewash 

their behavior and minimize Complainant's injuries, the facts show that Defendants have 

continually and knowingly violated the Airport Sponsor Assurances. 

Sincerely, 

Adrian A. Miller 

AAM 
OLLAND&HART~ ~ 

Certificate of Service 

January 5, 2016 

Page 5 

I hereby certify that I have this day caused the foregoing reply to be served on the 

following persons at the following addresses by first class mail, postage prepaid, with courtesy 

copies by electronic mail: 

Brian Lilletvedt 

Bosch, Kuhr, Dugdale, Martin & Kaze, PLLP 

335 Fourth Avenue 

P.O. Box 7152 

Havre, Montana 59501 

Attorney for City of Fort Benton 

blilletvedt@bkdlaw.org 

Mitchell A. Young 

Montana Association of Counties 

2717 Skyway Drive 

Suite F 

Helena, Montana 59602 

Attorney for Chouteau County, MT 

myoung@mtcounties.org 

Dated this 5th day of January, 2016. 

Adrian Miller 

8362998_1