July 20, 2015 

BY PERSONAL DELIVERY 

Office of the Chief Counsel 

Attention: FAA Part 16 (Airport Proceedings Docket) 

AGC-610 

Federal Aviation Administration 

BOO Independence Ave. S.W. 

Washington, D.C. 20591 

S'NBRR 

RECEIVED 

JUL 2 0 2015 

PART 16 DOCKETS 

Re: Part 16 Complaint: National Business Aviation Association, Inc., 

Shoreline Aviation, Inc. (Connecticut); PlaneSense, Inc.; Fly the 

Whale, Inc.; Eastern Air Express, Inc.; FL Aviation Corporation; 

Tuckaire, Inc.; Autonomic Controls, Inc.; Shoreline Aviation, Inc. 

(Massachusetts); Wes Rae Contracting Corporation; Eagle Air, Inc.; 

and JET AS, Inc. v. Town of East Hampton, New York 

Dear Sirs: 

The Complainants, as set forth above, submit this answer to the June 24, 2015 

Motion to Dismiss ("Motion to Dismiss") and supplemental procedural motion filed by the 

Town of East Hampton ("East Hampton," "Town," or "Respondent"), sponsor and 

operator of the East Hampton Airport ("HTO" or "Airport'V 

For the reasons set forth below, Complainants request that: (1) the Motion to 

Dismiss be denied; (2) as previously requested, the FAA take expedited action to 

preserve the prior status quo at HTO; (3) to the extent the FAA does not rule on the 

Motion to Dismiss within 30 days, the Respondent be required to file an answer to the 

Complaint, consistent with the generally-applicable procedural rules and the denial of 

the supplemental procedural motion; and (4) the FAA subsequently address the 

substance of the Complaint and find that the Town is not currently in compliance with 49 

U.S.C. § 40103(e), grant assurance #23, and grant assurance #25, and require 

appropriate corrective action by East Hampton. 

The Regulatory Deadline for the Respondent's Answer Should Not Be Suspended 

In a supplemental procedural motion, submitted alongside the Motion to Dismiss, 

the Town has moved to suspend the deadline for its submission of an answer to the 

Complaint until after the FAA has ruled upon its Motion to Dismiss, in the event that the 

1 Although dated June 24-25, 2015, the pleadings were not served on the Complainants until July 8, 

2015. Because the FAA's notice of docketing was not served upon the parties until June 18, 2015, the 

Complainants do not object to the timeliness of the pleadings, but bring this discrepancy to the FAA's 

attention to the extent necessary to confirm that this pleading is itself timely pursuant to 14 C.F.R. § 

16.26(b }(3}. 

SAFETY & AIRCRAFT 0 PEAATIONS LEGISLATIVE & AEGUtATORY ADVOCACY NETWORKING & COMMERCE EDUCATION & CAREER DEVELOPMENT BUS I NESS MANAGEMENl RESOURCES 

National Business Aviation Association 1200 G Street NW, Suite 1100 Washington, DC 20005 (2021 783-9000 www.nbaa.org 
FAA does not issue such a ruling within 30 days. This supplemental motion should be 

denied, and the Town should not be exempted from the generally-applicable 

requirements of 14 C.F.R. § 16.26(b)(4). 

When the FAA enacted formal procedures for the filing of a motion to dismiss in 

2013 (see 78 Fed. Reg. 56135 (September 12, 2013)), it was aware that a respondent 

might be required to file an answer before the FAA acted on a motion to dismiss (see id. 

at 56137) - but nevertheless determined that procedure to be appropriate through the 

adoption of 14 C.F.R. § 16.26(b)(4). See also 77 Fed. Reg. 13027, at 13030 (March 5, 

2012). The Town has offered no explanation of why it should uniquely be exempted 

from that requirement- nor why it is entitled to relief from the alleged (and unquantified) 

burden of drafting an answer but the Complainants should be burdened with the 

consequences of the delay that would result from such an exemption, including for their 

businesses at HTO. In any case, for the reasons stated below, the Motion to Dismiss 

lacks merit and should be denied; thus no "wasteful" burden will be imposed on the 

Respondent by it being required to comply with the routine and well-established FAA 

procedures for answers in a Part 16 proceeding. 

The Complainants Have Adequately Alleged· A Violation Of 49 U.S.C. § 40103(e) 

and Grant Assurance #23 

The Respondent argues that the Complainants have not adequately alleged a 

violation of grant assurance #23 (and 49 U.S.C. § 40103(e)) because (1) grant 

assurance #23 is not the "mirror image" of grant assurance #22 as alleged, and (2) the 

Complainants have not alleged that the restrictions the Town has adopted have an anticompetitive or monopolistic effect.2 Although not specifically cited, the Respondent 

apparently seeks dismissal pursuant to 14 C.F.R. § 16.26(b)(1)(ii). 

As an initial matter, the Respondent asserts that the statutory and contractual 

prohibition on "exclusive rights" is not the mirror image of grant assurance #22, relying 

on language that appears in In the Matter of Santa Monica, no. 16-02-08, Final Agency 

Decision, at 51 (July 8, 2009), to the effect that a showing of "anti-competitive and 

monopolistic behavior" is required to invoke 49 U.S.C. § 40103(e) and grant assurance 

#23. See Respondent's Memorandum, at 5. Simply put, the Respondent has invoked 

an outlier Part 16 decision - which did take that position, but is inconsistent with the 

2 As previously noted, pending litigation in federal court has challenged the validity of all three restrictions, 

on different grounds. In a slip memorandum and order dated June 26, 2015, Judge Joanna Seybert of 

the U.S. District Court for the Eastern District of New York preliminarily enjoined the enforcement of the 

prohibition on aircraft deemed to be "noisy" from conducting more than one take-off and one landing per 

week during the summer. But the court declined to enjoin the overall curfew and the extended curfew for 

"noisy" aircraft. See Exhibit 1 to this answer. The court's action does not moot the need or urgency for 

the FAA to address the pending Complaint in this docket. Indeed, the court's findings included that 

allegations of violations of the grant assurances were outside its jurisdiction and should be heard 

pursuant to Part 16. See id. at 25-26. Thus, Respondent's suggestion that Complainants should have 

"wait[ed] for the resolution" of that and other litigation, see Respondent's Memorandum at 3, is entirely 

wtth out merit. 
mainstream of Part 16 rulings before and after. Accordingly, this language did not set 

forth a new standard but rather is an anomaly that should be disregarded by the FAAand at a bare minimum, to the extent there is divergent guidance in FAA (and federal 

court) precedents, that discrepancy is the basis for a complete review of the Complaint 

by the FAA and not the granting of the Respondent's Motion to Dismiss. 

Notably, the Respondent attempts to distinguish the FAA's subsequent decision 

in Frank HinshaW .. Skydiving School.lnc ... d/b/a Skydive Hawaii and Island Skydiving. 

LLC v. State of Hawaii, no. 16-12-04, Director's Determination, at 46 (August 18, 2014) 

on the basis that it is a preliminary determination. But the Respondent offers no 

explanation of why the status of the proceedings in l-linshaw should invalidate the FAA's 

explicit confirmation therein that it continues to understand that an airport's imposition of 

different standards upon different types of aeronautical operations amounts to the 

impermissible granting of a constructive exclusive right. Hinshaw may not yet be final 

for the parties involved, but it stands in stark contrast to the Respondent's claim that 

Santa Monica reshaped the FAA's understanding of "exclusive rights." 

Likewise, the Respondent would have the FAA ignore explicit language in 41 

North 73 West, Inc. v. Countv of Westchester. New York, no. 16-07-13, Final Agency 

Decision, at 37 (September 18, 2009), to the effect that an unreasonable/unjustly 

discriminatory requirement "may constitute the constructive grant of an exclusive right," 

with no suggestion that competitive considerations are a further predicate to a Part 16 

complaint premised on 49 U.S.C. § 40103(e) and grant assurance #23. Not only did the 

Acting Associate Administrator for Airports pen these words in 41 North 73 West a mere 

72 days after the cited decision ih Santa Monica was promulgated,3 but- unmentioned 

by the Respondent- 41 North 73 West subsequently was affirmed by the U.S. Court of 

Appeals for the Second Circuit (see 408 Fed. Appx. 393 (2010)), which explicitly 

acknowledged the parallels that the FAA had drawn between grant assurance #22 and 

grant assurance #23, and found no error in the FAA's analysis. See id. at 400-01. 

Indeed, Hinshaw and 41 North 73 West are not unique. In the past six years, the 

FAA repeatedly has emphasized that unreasonable/unjustly discriminatory requirements 

may constitute the constructive grant of an exclusive right, without any suggestion that 

competitive considerations are a further predicate. See, e.g., Gary R. Ernest v. 

Leitchfield-Grayson County Airport Board, no. 16-09-01, Director's Determination, at 17 

(December 17, 2009) ("the FAA has found that unreasonable restrictions, delay, or 

unjust discrimination could constructively grant a prohibited exclusive right"). 4 Similarly, 

3 Also unmentioned by the Respondent is that the Santa Monica decision was delegated by the Associate 

Administrator for Airports to the Assistant Administrator for Aviation Policy, Planning and Environment. 

See Final Agency Decision, at 3 and n.4. See also Hearing Order, at7 and n.3, no. FAA-2003·15807-

0036 (June 23, 2008); Declaration of the Associate Administrator tor Airports, no. FAA-2003-15807-0258 

(May 23, 2008). 

4 See also Truman Arnold Companies d/b/a TAG Air v. Chattanooga Miimopolitan Airport Authority. no. 

16-11·08, Director's Determination, at 18 (October 4, 2013); Isaac W. Jones. Jr. and Alabama Hang 

Gliding Association v. Lawrence County Commission. Alabama, no. 16-11-07, Director's Determination, at 
in both .Skydive Sacramento v. City of Lincoln. California, no. 16-09-09, Director's 

Determination, at 35 (May 4, 2011) and Jeff Bodin and Garlic City Skydiving v. County 

of Santa Clara California, no. 16-11-06, Director's Determination, at 38 (December 19, 

2011), aff'd Final Agency Decision (August 12, 2013), the FAA declined to review 

allegations of an exclusive rights violation because a violation of grant assurance #22 

by the airport already had been found by the FAA and the analysis of 49 U.S.C. § 

40103(e) and grant assurance #23 would be duplicative:5 

The Respondent would now have the FAA repudiate all of these (and other) 

precedents on the basis of an aberrant decision. Contrast Scipione v. Adv. Stores Co .. 

2013 WL 646405, at n. 1 (M.D.Fia. Feb. 21, 2013) (where party attempted to "rely on a 

single case" supporting its position, court ruled against her because that "case 

constitutes an outlier and the greater weight of authority instead directs" a contrary 

result) and Ferrara v. U.S., 384 F.Supp.2d 384, 412 (D.Mass. 2005) (finding reasoning 

of "anomaly" case not to be persuasive). Accordingly, the Complainants respectfully 

submit that the Town's line of argument is meritless - and again, to the extent any 

further explication by the FAA of the meaning of an "exclusive right" may be required, 

that should occur after a complete briefing of the issues and careful consideration by the 

agency, and not within the accelerated timeframe for a motion to dismiss. 

In any case, even if an allegation and a showing of anti-competitive and 

monopolistic behavior may be required, such circumstances have arisen at HTO, which 

would justify the denial of the Motion to Dismiss and the continued briefing and 

investigation of the compliance issues implicated in this proceeding. Notably, a nonparty - Gotham Air- has announced that it has procured helicopters that do not qualify 

as "noisy'' per the Town's definition,6 and that it intends to conduct operations that 

others cannot due to the extended curfew and per-trip limit. See Exhibit 2. In effect, 

Gotham appears to have been granted an exclusive right - anti-competitive and 

monopolistic - to operate helicopters during the times that the extended curfew is in 

effect (8pm- 11 pm and 7am- 9am), and likewise with regard to the per-trip limit should 

the currently effective injunction cease to be effective. To the extent that certain fixedwing aircraft are now deemed "noisy" and are subject to restrictions at HTO that do not 

13 (September 19, 2013); and Desert Wings Jet Center, LLC and Spirit Flight, Inc. d/b/a Wings of the 

Cascades v. City of Redmond and Redmond, Oregon, no. 16-09·07, Director's Determination, at 13 

(November 10, 2010), aff'd Final Agency Decision (May 25, 2012) (all reiterating that "the application of 

any unreasonable requirement or any standard that is applied in an unjustly discriminatory manner may 

constitute the grant of an exclusive right"). 

5 Both Skvdive Sacramento and Bodin rely on Skydive Paris, Inc. v. Henry Countv, Tennessee, no. 16-05-

06, Director's Determination, at 19 (January 20, 2006) ("[i]n view of the finding below on unjust 

discrimination, it is unnecessary to consider the related allegation regarding exclusive rights"). 

6 The Respondent has alerted the FAA to a revised version of its list of "noisy" aircraft - see 

Respondent's Memorandum, at n.2- but that list also appears to be flawed. For example, it includes the 

Mitsubishi MU 300 Diamond I as a "shaded" entry, even though FAA Advisory Circular 36-1H, change 1 

(May 25, 2012) identifies only all configurations of that aircraft as having an AP of less than 91.0 EPNdB. 
apply to other fixed-wing aircraft, the same competitive issues arise. See, e.g., the 

Director's Determination in the Santa Monica proceeding, at 45-46 (May 27, 2008) 

(noting that not all fractional companies have trade-down options, as well as that some 

users, such as a corporate flight department with one aircraft, have no ability to use 

different aircraft).7 

The Complainants Have AdequatelY Alleged A Violation Of Grant Assurance #25 

The Respondent also asserts that there is no basis for the FAA to investigate the 

possibility of prior and current revenue diversion by East Hampton - nor, presumably, to 

warn the Town against similar revenue diversion in the future- based upon the Town's 

undisputed public declaration that it intends to use airport revenue to defend itself in 

litigation which has alleged that certain actions taken by the Town to restrict operations 

at HTO are unlawful. Although not specifically cited, the Respondent apparently seeks 

dismissal pursuant to 14 C.F.R. § 16.26(b)(1)(ii). 

The Respondent's argument appears to be that dismissal is appropriate because 

the FAA has not previously provided guidance regarding the type of revenue diversion 

alleged by this proceeding, and thus those expenditures must not be unlawful. But that 

simply is not a basis for dismissal pursuant to 14 C.F.R. § 16.26(b)(1)(ii). For decades 

the FAA has been unequivocal that airport revenue must be used only for the benefit of 

an airport - and although attorney fees are potentially eligible expenditures, the FAA 

specifically has warned that to qualify, legal services must be "in support of airport 

capital or operating costs that are otherwise allowable." FAA Order 5190.68, § 15.9(d).8 

Moreover, the Town appears to be unaware of the DOT Inspector General's 

Report on Diversion of Airport Revenue, Augusta-Richmond County Commission, no. 

AV-1998-093, at 8 (March 12, 1998), which recommended that the airport sponsor at 

issue should not pay outstanding legal fees for acquisition of land that could not be used 

for airport purposes and the purchase of which had violated 49 U.S.C. § 47107(b)(1). 

The FAA, in its response to the DOT IG, specifically concurred with that 

recommendation. See id., Appendix A, at 2. 

The Respondent further asserts that the implication of this guidance - Q.,Q,., that 

an airport sponsor may not use airport revenue to pay for legal services in support of a 

practice that violates the grant assurances (or, presumably, is impermissible for reasons 

in addition to or apart from the grant assurances) would "wreak havoc" with airport 

finances. See Respondent's Memorandum, at 4. The Complainants concur that the 

7 To the extent necessary, the Complainants request leave pursuant to 14 C.F.R. § 16.19 to amend their 

complaint to conform with this answer, and further supplement the record to address the competitive 

impacts on the Complainants. The FAA routinely accepts amendments in Part 16 proceedings. See, 

ll.lL Sun's, Inc. v. Port of Seattle, no. 16-06-13, Director's Determination, at 1 (November 14, 2008); 

Roadhouse Aviation v. City of Tulsa, no. 16-05-08, Director's Determination, at 2 (December 14, 2006). 

8 See also Boca Airport, Inc. d/b/a Boca Aviation v. Boca Raton Airport Authority no. 16-00-10, Final 

Decision and Order, at 49 (March 20, 2003). 
FAA's guidance does have significant implications - but that is a reason that the FAA 

should fully engage the issue and explicate its standards, and is not in any way a 

reason to ignore what the FAA already has said and to dismiss the Complaint. 

Specifically, given that it is well-established that airport revenue must be 

expended only for airport purposes, the FAA should utilize this proceeding to explain 

how that requirement can be met in the context of legal services - M. must payments 

for legal services be reimbursed to the airport by its sponsor if the practice they purport 

to justify is later found to be impermissible by a final administrative or court order, or can 

such payments be made from airport revenue, in contrast to a sponsor's general fund, 

only once it has been found to be permissible. Such guidance is necessary in this case 

based on the Town's statement that it will ''spend scarce airport funds to defend these 

restrictions" but also is a matter of general importance for airports across the country. 

That guidance should follow a complete briefing of the issues in this docket (including, 

to the extent necessary, the production of documents by East Hampton to the FAA 

which break down its relevant legal expenditures). 

Finally, as a general proposition, the Respondent has asserted that the newlyenacted restrictions at HTO "serve an airport purpose because they relate directly to the 

operation of the Airport," and on that basis alone their legal defense is an allowable 

expenditure. See Respondent's Memorandum, at 10. All other issues aside, that 

should not and cannot be an accurate summation of FAA's standards. Implicit in the 

FAA's requirement that airport revenue be used only for an "airport purpose" has been 

that airport revenue can be used to maintain and expand operations at an airport, not to 

restrict them. That an expenditure merely "relates" to an airport is not enough. The 

FAA has made clear that airport revenue may not be used in the manner that the 

Respondent now argues is allowable- i.e., requiring an airport (and ultimately its users) 

to pay for their own circumscription. See, e.g., In the Matter of Compliance with Federal 

Obligations by the City of Chicago, Illinois, no. 16-04-09, Notice of Investigation, at 2 

(October 1, 2004), a proceeding which was settled without a written order but the 

repayment of $1 million by the City of Chicago.9 

Conclusion 

For the reasons stated above, the Complaint meets the requirements for Part 16 

review and relief and the Respondent's Motion to Dismiss should be denied pursuant to 

9 See also In the Matter of .Revenue Diversion by the City of Los Anqeles at Los Angeles International, 

Ontario, Van Nuys and Palmdale Airoorts, no. 16-96-01, Record of Determination, at 12 (March 17, 1997) 

("airport revenues are used lor airport purposes, i.e., to support the development, maintenance, and 

operation of aeronautical facilities at the airport'') (emphasis added); Airport Compliance Requirements, 

FAA Order 5190.6A, § 4-19(a) (October 2, 1989) ("airport purposes [are] uses of the property directly 

related to the actual operation or the foreseeable aeronautical development of a public airport"); Exhibit 3 

to this answer (October 29, 2008 certification by Secretary of Transportation that, for purposes of lease of 

Dulles Toll Road, "airport purposes" had been defined as being "for aviation business or activities, or for 

activities necessary or appropriate to serve passengers or cargo in air commerce, or for nonprofit, publicuse facilities which are not inconsistent with the needs of aviation"). 
14 C.F.R. § 16.26(b)(4). To the extent the FAA does not rule on the Motion to Dismiss 

within 30 days, the Respondent should be required to file an answer to the Complaint 

(and its supplemental motion seeking an exemption from routine FAA requirements 

should be denied). Further, the FAA should take expedited action to preserve the prior 

status quo at HTO, as previously requested. Finally, the FAA subsequently should 

address the substance of the Complaint and find that the Town is not currently in 

compliance with 49 U.S.C. § 40103(e), grant assurance #23, and grant assurance #25, 

and require appropriate corrective action by East Hampton. 

Respectfully submitted, 

Steve Brown 

Chief Operating Officer, NBAA 
Certificate of Service 

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

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

with courtesy copies by electronic mail: 

• Larry Cantwell, Supervisor, 159 Pantigo Road, East Hampton, NY 11937, 

lcantwell@ ehamptonny.gov; 

• Elizabeth Vail, Town Attorney, 159 Pantigo Road, East Hampton, NY 11937, 

evail@ ehamptonny.gov; 

• Jemille Charlton, Airport Manager, 200 Daniels Hole Road, Wainscott, NY 11975, 

jcharlton@ehamptonny.gov; and 

• W. Eric Pilsk and Catherine van Heuven, Kaplan, Kirsch & Rockwell LLP, 1001 

Connecticut Avenue, N.W., Suite 800, Washington, DC, 20036, 

epilsk@kaplankirsch.com, cvanheuven@kaplanklrsch.com. 

Dated this 2oth day of July 2015. 

Steve Brown 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 1 of 45 PageiD #: 910 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NEW YORK 

----------------------------------X 

FRIENDS OF THE EAST HAMPTON 

AIRPORT, INC.; ANALAR CORPORATION; 

ASSOCIATED AIRCRAFT GROUP, INC.; 

ELEVENTH STREET AVIATION, LLC; 

HELICOPTER ASSOCIATION 

INTERNATIONAL, INC.; HELIFLITE 

SHARES, LLC; LIBERTY HELICOPTERS, 

INC.; SOUND AIRCRAFT SERVICES, 

INC.; and NATIONAL BUSINESS 

AVIATION ASSOCIATION, INC., 

Plaintiffs, 

-againstTHE TOWN OF EAST HAMPTON, 

Defendant. 

-----------------------------------X 

APPEARANCES 

MEMORANDUM & ORDER 

15-CV-2246 (JS) (ARL) 

For Plaintiffs: Matthew Gage Coogan, Esq. 

Jonathan Daniel Lamberti, Esq. 

Michael Dayton Longyear, Esq. 

Lisa R. Zornberg, Esq. 

For Defendant: 

Lankler Siffert & Wohl LLP 

500 Fifth Avenue, 34th Floor 

New York, NY 10110 

Peter Kirsch, Esq. 

William E. Pilsk, Esq. 

Kaplan Kirsch & Rockwell 

1675 Broadway, Suite 2300 

Denver, CO 80202 

Eric Bregman, Esq. 

Farrell Fritz PC 

50 Station Road 

water Mill, NY 11976 

SEYBERT, District Judge: 

Plaintiffs, a group of airport users and aviation 

companies that frequently use the East Hampton Airport, bring this 

Exhibit 1 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26115 Page 2 of 45 PageiD #: 911 

action against the Town of East Hampton, seeking declaratory and 

injunctive relief enjoining enforcement of Sections 75-38 and 75-

39 of the Town of East Hampton Code, recently adopted town laws 

that impose access restrictions to the East Hampton Airport (the 

"Town Laws"). Plaintiffs argue that the Town Laws are invalid 

because: ( 1) they are preempted by federal statutes governing 

aviation and therefore violate the Supremacy Clause of the United 

States Constitution, U.S. CONST. art. VI, cl. 2; and (2) they 

constitute an unlawful restraint on interstate commerce in 

violation of the Commerce Clause of the United States Constitution, 

U.S. CONST. art. I, § 8, cl. 3. 

Presently before the Court are: (1) Plaintiffs' motion 

for a preliminary injunction enjoining enforcement of the Town 

Laws pending resolution of this action and a related action against 

the Federal Aviation Administration ("FAA"), Friends of the East 

Hampton Airport, Inc., et al. v. F.A.A., et al., No. 15-CV-0441 

(E.D.N.Y.) (the "FAA Action"), (Docket Entry 19); and 

(2) Plaintiffs' letter motion to consolidate this action and the 

FAA Action for all purposes pursuant to Federal Rule of Civil 

Procedure 4 2, (Docket Entry 14) . For the following reasons, 

Plaintiffs' motion for a preliminary injunction is GRANTED IN PART 

and DENIED IN PART, and the Court RESERVES JUDGMENT on Plaintiffs' 

motion to consolidate pending the filing of the FAA's response to 

the Complaint in the FAA Action. 

2 

Exhibit 1 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 3 of 45 PageiD #: 912 

BACKGROUNDl 

I. The Parties 

Plaintiffs represent a wide spectrum of airport users 

and aviation companies that frequently use the East Hampton Airport 

(the "Airport") Plaintiff Friends of the East Hampton Airport, 

Inc. ("FOEHA'') is a nonprofit corporation that "represents the 

interests of those who seek to keep the Airport open to all types, 

kinds, and classes of aircraft activities and flying services." 

(Compl. 'II 12 0) Plaintiffs Analar Corporation ( "Analar") , 

Associated Aircraft Group, Inc. ("AAG"), HeliFlite Shares LLC 

("HeliFlite"), and Liberty Helicopters, Inc. ("Liberty") are air 

carriers that are federally authorized to provide helicopter 

charter services to clients throughout the East Coast. (Compl. 

'll'll 13-14' 17-18 0) In addition to providing charter services, AAG 

and HeliFlite manage "fractional aircraft ownership program[s]," 

which involve selling partial ownership or leasehold interests of 

a helicopter to private individuals who wish to operate their own 

helicopter using AAG and HeliFlite as managers. (Compl. 'll'll 14, 

17.) Plaintiff Eleventh Street Aviation LLC ("Eleventh Street") 

is an air carrier that is federally authorized to operate aircraft 

1 The following facts are drawn from the Complaint in this action 

and the parties' affidavits and evidence submitted in connection 

with Plaintiffs' motion for a preliminary injunction. Any 

factual disputes will be noted. 

3 

Exhibit 1 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 4 of 45 PageiD #: 913 

for private use. (Compl. ~ 15.) Plaintiff Helicopter Association 

International, Inc. ("HAI") is a Delaware "trade association that 

represents and serves the interests of helicopter operators around 

the world." (Compl. ~ 16.) According to the Complaint, HAI's 

"members include one or more providers of helicopter services" at 

the Airport. I Compl . ~ 16. ) Plaintiff Sound Aircraft Services, 

Inc. ("Sound") is a fixed-base operator at the Airport. (Compl. 

~ 19.) Sound leases property at the Airport from the Town of East 

Hampton and provides fuel and other on-site services to aircraft 

and passengers that use the Airport. (Compl. ~ 19.) 

Defendant the Town of East Hampton (the "Town") is the 

easternmost town on Long Island, New York, situated approximately 

100 miles east of New York City. It is a popular seaside resort 

community during the summer. The Town owns and operates the 

Airport, a public-use airport located in the Town. 

II. The Town Laws 

For years, Town residents have opposed development of 

the Airport and have complained about aircraft noise. (See 

Cantwell Decl., Docket Entry 38-1, ~~ 8-10.) In recent years, the 

complaints have escalated due to a marked increase in helicopter 

operations at the Airport, many of which are private charter 

flights taken by individuals traveling from New York City to the 

4 

Exhibit 1 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 5 of 45 PageiD #: 914 

East End of Long Island. 2 (See Cantwell Decl. 'II 11; MacNiven 

Decl., Docket Entry 38-4; Saltoun Decl., Docket Entry 38-5.) To 

alleviate this perceived noise problem, on April 16, 2015, the 

Town adopted Sections 75-38 and 75-39 of the Town of East Hampton 

Code, local laws imposing three access restrictions to the Airport. 

See Town of E. Hampton Res. 2015-411, 2015-412, 2015-413, to be 

codified at TOWN OF E. HAMPTON CODE §§ 75-38, 75-39.3 The access 

restrictions are as follows: ( 1) a mandatory curfew prohibiting 

all aircraft from using the Airport between 11:00 p.m. and 7:00 

a.m. (the "Mandatory Curfew") ; ( 2) an extended curfew prohibiting 

"Noisy Aircraft" from using the Airport from 8:00 p.m. to 9: 00 

a.m. (the "Extended Curfew"); and (3) a weekly limit prohibiting 

"Noisy Aircraft" from using the Airport' more than two times per 

week during the "Season"--i.e., the months of May, June, July, 

2 According to the Town, helicopter traffic increased by fifty 

percent last year. (See Cantwell Decl. 'II 11.) On the busiest 

day last year, July 25, 2014, there were 353 operations at the 

Airport. (See Cantwell Decl. 'II 11.) Forty-four operations 

occurred between 2:00 p.m. and 3:00 p.m. that day. (See 

Cantwell Decl. 'II 11.) The first operation occurred at 3:04 

a.m.; the last operation occurred at 11:08 p.m. (See Cantwell 

Decl. 'II 11.) 

3 The full text of the Resolutions adopting the Town Laws may be 

found at http://easthamptontown.iqm2.com/citizens/Default.aspx. 

4 The Town Laws define "Use of the Airport" in relevant part as 

"either one arrival (landing) at, or one departure (takeoff) 

from, the Airport." TOWN OF E. HAMPTON CODE§ 75-38(A) (6). 

5 

Exhibi11 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 6 of 45 PageiD #: 915 

August, and September 5 (the "One-Trip Limit"). See TOWN OF E. HAMPTON 

CODE§ 75-38 (B)- (C). "Noisy Aircraft" is defined as "any airplane 

or rotorcraft for which there is a published Effective Perceived 

Noise in Decibels (EPNdb) approach (AP) level of 91.0 or greater." 

TOWN OF E. HAMPTON CODE§ 75-38 (A) (4) (a). 

Violations of the Town Laws are deemed criminal offenses 

punishable by a sliding scale of monetary fines for the first three 

violations--$1,000; $4, 000; and $10,000, respectively--and 

prohibition from the Airport for a period of up to two years for 

a fourth violation. See TOWN OF E. HAMPTON CODE § 75-39 (B). Under 

the Town Laws, the Town may also seek court injunctions, 

restraining orders, and monetary fines against any person or entity 

with an ownership interest in a violating aircraft. See TOWN OF E. 

HAMPTON CODE § 7 5-39 (E) 

Plaintiffs seek a preliminary injunction enjoining 

enforcement of the Town Laws on the ground that they violate, and 

are therefore preempted by: (1) the Airport and Airway Improvement 

Act of 1982 ("AAIA"), 49 U.S.C. § 47101, et seq., which governs 

the process through which airport proprietors can obtain federal 

funding for the planning and development of public-use airports; 

s The original version of the Town Laws did not include a 

definition for the term "Season." However, the Town Board later 

adopted a definition at a Town Board meeting on May 7, 2015. 

See Town of E. Hampton Res. 2015-569. 

6 

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and (2) the Airport Noise and Capacity Act of 1990 ("ANCA"), 49 

U.S.C. § 47521, et seq., which governs the manner in which 

individual airports may adopt noise and access restrictions on 

certain types of aircraft. Some of the Plaintiffs claim that they 

will be irreparably harmed by the Town Laws because compliance 

will cause incalculable damages and severe economic losses that 

"threaten[s] [their] continued existence." (Pls.' Br., Docket 

Entry 32, at 8.) The Town responds, inter alia, that neither 

federal statute preempts the Town Laws and that the adoption and 

enforcement of the Town Laws constitutes a valid exercise of its 

proprietary rights in the Airport. 

III. Relevant Airport History 

The last twenty-four years of the Airport's history are 

marked by several key events, disputes, and agreements. From 1983 

to 2001, the Town received several federal grants for airport 

development under the Airport Improvement Program ("AIP"). 

(Compl. 'li 60.) The AIP, which was authorized by Congress when it 

enacted the AAIA, is the nation's current federal grant program 

for airport development. Under the AIP, the Secretary of 

Transportation, through the Federal Aviation Administration 

("FAA"), provides monetary grants to public agencies and airport 

proprietors for the planning and development of public-use 

airports. 

7 

Exhibit 1 
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Under the AAIA, the Secretary may approve a grant 

application only if the airport proprietor agrees to certain 

written assurances regarding airport operations, which are set 

forth in Section 47107(a) of the AAIA. See 49 U.S.C. § 47107(a). 

The Secretary is responsible for ensuring compliance with these 

assurances, see 49 U.S. C. § 47107(g), and is authorized to approve 

grant applications only if the airport proprietor's assurances are 

"satisfactory to the Secretary," 49 u.s.c. § 47107 (a). 

Accordingly, the Secretary, through the FAA, has promulgated a 

more thorough set of standardized grant assurances with which a 

recipient of AIP funding must comply (the "Grant Assurances") . 

(See Compl. Ex. A.) 

"Upon acceptance of an AIP grant, the grant assurances 

become a binding contractual obligation between the airport 

sponsor and the Federal government." Pac. Coast Flyers, Inc. v. 

Cnty. of San Diego, FAA Docket No. 16-04-08, 2005 WL 1900515, at 

*11 (July 25, 2005) Under the terms of the Grant Assurances, 

each Grant Assurance remains in full effect for twenty years from 

the date the airport proprietor accepts federal funds, with the 

exception of Grant Assurances 23 and 25, which remain in effect as 

long as the airport operates as an airport. (Compl. Ex. A at 366.) 

6 Page numbers of the exhibits to the Complaint in this action 

referenced herein refer to the page numbers generated by the 

Electronic Case Filing system. 

8 

Exhibi11 
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The Town last accepted an AIP grant in 2001 in the amount 

of $1,410,000 for rehabilitation of the Airport's terminal apron. 

(Compl. 'II 61.) Shortly thereafter, the Committee to Stop Airport 

Expansion (the "Committee"), an unincorporated association of 

residents living near the Airport, commenced several legal 

proceedings in an attempt to halt development of the Airport. In 

2003, the Committee sued the FAA and the Department of 

Transportation in this District, challenging the legality of AIP 

grants to the Town dating back to 1994 (the "Committee Action"). 

See Comm. to Stop Airport Expansion, et al. v. Dep't of Transp., 

et al., No. 03-CV-2634. In short, the Committee alleged that the 

Airport's prior AIP grants were improper because the FAA approved 

them in the absence of a current airport layout plan, which the 

AAIA requires before the FAA may award an AIP grant. (See Comm. 

Action Compl. '1!'1! 89-96 (citing 49 U.S.C. § 47107 (a) (16) ("The 

Secretary of Transportation may approve a project grant 

application under [the AAIA] only if the Secretary receives written 

assurances, satisfactory to the Secretary, that . . the airport 

owner or operator will maintain a current layout plan of the 

airport . " ) . ) According to the Committee, the Airport's 

2001 layout plan, which the FAA approved, was not current because 

several projects undertaken at the Airport since 1989 were not 

reflected in the 2001 layout plan. (See Comm. Action Compl. '1!'1! 93-

94.) The Committee Action sought to vacate the 2001 layout plan 

9 

Exhibit 1 
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and to enjoin the award of any additional AIP grants so long as 

the Town lacked a current and valid airport layout plan. 

Comm. Action Compl. ~~52, 57-88.) 

(See 

In 2005, the Committee and the United States Government 

executed a settlement agreement resolving the Committee Action, as 

well as other actions the Committee commenced in other forums (the 

"2005 Settlement Agreement"). (Pilsk Decl., Docket Entry 38-6, 

Ex. 3.) Under Paragraph 7 of the 2005 Settlement Agreement, the 

FAA agreed that, with respect to the Airport, Grant Assurance 22 (a) 

(and three other grant assurances not relevant to this case) 

"[would] not be enforced [by the FAA] beyond December 31, 2014." 

(Pilsk Decl. Ex. 3 ~ 7.) Grant Assurance 22(a), entitled "Economic 

Nondiscrimination," states: "[The airport sponsor] will make the 

airport available as an airport for public use on reasonable terms 

and without unjust discrimination to all types, kinds and classes 

of aeronautical activities, including commercial aeronautical 

activities offering services to the public at the airport." 

(Compl. Ex. A at 45.) 

The 2005 Settlement Agreement further provided that, 

aside from the four referenced Grant Assurances, "[a]ll other grant 

assurances with respect to any grant awarded to East Hampton 

Airport .. shall be enforced in full." (Pilsk Decl. Ex. 3 ~ 7.) 

Finally, the 2005 Settlement Agreement provided that if the Town 

was awarded any additional AIP grants after the effective date of 

10 

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Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 11 of 45 PageiD #: 920 

the 2005 Settlement Agreement (April 29, 2005), then all Grant 

Assurances "shall be enforced in fullu in connection with that new 

funding. (Pilsk Decl. Ex. 3 ~ 7.) 

The Town was not a party to the 2005 Settlement 

Agreement. Additionally, although this Court so-ordered the 

parties' stipulation dismissing the Committee Action, the Court 

did not so-order the 2005 Settlement Agreement, nor did the 

stipulation of dismissal incorporate by reference the terms of the 

2005 Settlement Agreement. (See Comm. Action, Docket Entry 38.) 

In December 2011, then-U.S. Representative Timothy 

Bishop ("Bishopu) submitted a list of questions to the FAA probing 

the legal effect of the Town's Grant Assurances on its ability to 

enact noise and access regulations at the Airport. (Pilsk Decl. 

Ex. 2.) The FAA responded in an unsigned writing in 2012 (the 

~Bishop Responses") (Pilsk Decl. Ex. l.) The Bishop Responses 

stated that due to the 2005 Settlement Agreement, the FAA would 

not, as of December 31, 2014, "initiate or commence an 

administrative grant enforcement proceeding in response to a 

complaint from aircraft operators or seek specific 

performance of Grant Assurances 22a, 22h, and 29,u unless and until 

the FAA awarded a new AIP grant to the Town. (Pilsk Decl. Ex. 1 

at 1.) 

In addition, although the 2005 Settlement Agreement made 

no mention of ANCA, the Bishop Responses stated that "[t]he FAA's 

11 

Exhibit 1 
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agreement not to enforce also mean[t] that unless the town wishe[d] 

to remain eligible to receive future grants of Federal funding, it 

[was] not required to comply with [ANCA] in proposing new 

airport noise and access restrictions." (Pilsk Decl. Ex. 1 at 1.) 

Congress passed ANCA in 1990, directing the Secretary to 

uestablish[ ] by regulation a national aviation noise policy" that 

I 1 l uconsiders the phaseout and nonaddi tion of stage 2 

aircraft," 49 U.S.C. § 47523(a), and (2) uestablish[es] by 

regulation a national program for reviewing airport noise and 

access restrictions on the operation of stage 2 and stage 3 

aircraft," 49 U.S.C. § 47524(a) . 7 Under Section 47524 (b) of ANCA, 

an "airport noise or access restriction" may not "include 

restriction on the operation of stage 2 aircraft" unless and until 

the airport operator publishes the proposed restriction and other 

information for public comment at least 180 days before the 

effective date of the proposed restriction. 49 U.S.C. § 47524(b). 

Under Section 47524(c), a restriction affecting a Stage 3 aircraft 

is effective only if it uhas been agreed to by the airport 

proprietor and all aircraft operators" or has been uapproved by 

the Secretary." 49 U.S.C. § 47524 (c) Under ANCA, the only 

consequences for failing to comply with Section 47524 are that the 

7 The FAA has classified aircraft into ustages," according to how 

much noise they produce, from ustage 1" being the noisiest to 

ustage 4" being the quietest. See 14 C.F.R.- § 36.l(f). 

12 

Exhibit 1 
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airport "may not (1) receive money [under the AAIA]; or (2) impose 

a passenger facility charge under [49 U.S.C. § 40117] ." 49 U.S.C. 

§ 47526. 

On January 29, 2015, Plaintiffs FOEHA, Analar, HAI, 

HeliFlite, and Liberty filed the FAA Action, principally alleging 

that the FAA exceeded its statutory authority and violated its 

statutory obligations when it agreed in the 2005 Settlement 

Agreement not to enforce Grant Assurance 22(a) See Friends of 

the E. Hampton Airport, Inc., et al. v. F.A.A., et al., No. 15-

CV-0441 (E.D.N. y. I. The FAA Action seeks declaratory and 

injunctive relief that: (1) the FAA is statutorily obligated to 

ensure that the Town complies with Grant Assurance 22 (a) until 

September 2021, i.e., twenty years from the date the Town last 

accepted an AIP grant; (2) neither the 2005 Settlement Agreement 

nor the FAA's interpretation of the 2005 Settlement Agreement in 

the Bishop Responses can restrain the FAA from carrying out its 

statutorily imposed duties under the AAIA to enforce the Grant 

Assurances; and (3) the Bishop Responses' one-sentence statement 

about ANCA, i.e., that the Town purportedly need not comply with 

ANCA, is contrary to law. (FAA Action Compl. 'II'II 82-114, Prayer 

for Relief.) 8 

8 The Committee has filed a motion to intervene in the FAA 

Action, which was fully briefed on June 12, 2015. This motion 

will be the subject of a future, separate order. 

13 

Exhibit 1 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 14 of 45 PageiD #: 923 

By the time the FAA Action was filed, the Town already 

began its efforts to enact noise regulations at the Airport. 

According to the Town, prior to receiving the Bishop Responses, it 

felt constrained by its understanding that Grant Assurance 22(a) 

limited its ability to enact noise and access restrictions until 

2021. (See Def.'s Opp. Br., Docket Entry 38, at 4; Zornberg Decl., 

Docket Entry 36, Ex. A.) However, after receiving the FAA's 

statement in the Bishop Responses that it would not enforce Grant 

Assurance 22 (a) beyond 2014, the Town began exploring ways to 

alleviate the perceived noise problem at the Airport. Over the 

course of 2014 and early 2015, the Town reviewed old flight data, 

collected new data, commissioned new noise studies, and hired 

consultants to assist the Town. (See Cantwell Decl., Ex. 1.) 

On February 27, 2015, Town representatives met with 

senior FAA officials to discuss proposed access restrictions. 

(Cantwell Decl. ~ 21.) They briefed the FAA on the range of noise 

controls the Town was considering and expressed that the Town was 

relying on the statements in the Bishop Responses that the FAA 

would not enforce Grant Assurance 22(a) beyond 2014 and that the 

Town need not comply with ANCA. (Cantwell Decl. ~ 22.) On April 

16, 2015, following a public hearing, but apparently without the 

approval of the FAA, the Town adopted the Town Laws. 

14 

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IV. Plaintiffs' Claims and Procedural History 

Plaintiffs then commenced this action on April 21, 2015. 

As noted, Plaintiffs claim that the Town Laws are preempted by 

ANCA and the AAIA and constitute an unlawful restraint on 

interstate commerce in violation of the Commerce Clause. On April 

27, 2015, Plaintiffs filed a letter motion to consolidate this 

action with the FAA Action for all purposes pursuant to Federal 

Rule of Civil Procedure 42. (Docket Entry 14.) 

On April 29, 2015, Plaintiffs filed a motion for a 

temporary restraining order enjoining enforcement of the Town Laws 

pending resolution of this action and the FAA Action. (Docket 

Entry 19.) On May 18, 2015, the Court held a hearing on Plaintiffs' 

motion for a temporary restraining order, during which the Court 

and the parties agreed that the Court should construe Plaintiffs' 

motion as one for a preliminary injunction. (See Docket Entry 

51.) The Town agreed to delay enforcement of the Town Laws until 

today, June 26, 2015, so that the Court would have sufficient time 

to consider the matter. 

Plaintiffs' motion for a preliminary injunction relies 

solely on their preemption claims. They specifically contend that 

the Town Laws are preempted by ANCA because the Town did not comply 

with ANCA's procedural requirements for adopting noise and access 

restrictions affecting Stage 2 and Stage 3 aircrafts. (See Compl. 

'll'll 72-74 0) With respect to the AAIA, Plaintiffs contend that the 

15 

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Town Laws are preempted by Section 47107 of the AAIA because the 

laws violate three of the Town's Grant Assurances: ( 1) Grant 

Assurances 19(a), entitled "Operation and Maintenance," which 

states that the airport "shall be operated at all times in a safe 

and serviceable condition and in accordance with the minimum 

standards as may be required or prescribed by applicable Federal, 

state and local agencies for maintenance and operation," (Compl. 

Ex. A. at 44-45); (2) Grant Assurance 22(a), which, as noted above, 

requires the airport sponsor to "make the airport available as an 

airport for public use on reasonable terms," (Compl. Ex. A. at 

45); and (3) Grant Assurance 23, entitled "Exclusive Rights," which 

prohibits the airport sponsor from permitting any "exclusive right 

for the use of the airport by any person," (Compl. Ex. A at 47.) 

DISCUSSION 

The Court will first address Plaintiffs' motion for a 

preliminary injunction before 

consolidate. 

turning to their motion to 

I. Plaintiffs' Motion for a Preliminary Injunction 

A. Legal Standard 

Generally, "[t]o obtain a preliminary injunction, the 

moving party must demonstrate ' ( 1) irreparable harm absent 

injunctive relief; (2) either a likelihood of success on the 

merits, or a serious question going to the merits to make them a 

fair ground for trial, with a balance of hardships tipping 

16 

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decidedly in the plaintiff's favor; and ( 3) that the public's 

interest weighs in favor of granting an injunction." Red Earth 

LLC v. United States, 657 F. 3d 138, 143 (2d Cir. 2011) (quoting 

Metro. Taxicab Bd. of Trade v. City of N.Y., 615 F.3d 152, 156 (2d 

Cir. 2010)). However, where, as in this case, n'the moving party 

seeks a preliminary injunction that will affect government action 

taken in the public interest pursuant to a statutory or regulatory 

scheme, the injunction should be granted only if the moving party 

meets the more rigorous likelihood-of-success standard.'" Metro. 

Taxicab Bd., 615 F.3d at 156 (quoting Cnty. of Nassau v. Leavitt, 

524 F.3d 408, 414 (2d Cir. 2008)). 

Additionally, in this Circuit, a more exacting standard-

-one which requires the movant to demonstrate a "clearrr or 

nsubstantial" likelihood of success on the merits--applies in two 

situations. See Ci tigroup Glob. Mkts., Inc. v. VCG Special 

Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010) 

(collecting cases) . First, n [a] heightened 'substantial 

likelihood' standard" applies where the requested injunction: 

n (1) would provide the plaintiff with 'all the relief that is 

sought' and (2) could not be undone by a judgment favorable to 

defendants on the merits at trial." Mastrovincenzo v. City of 

N.Y., 435 F.3d 78, 90 (2d Cir. 2006) (quoting Tom Doherty Assocs., 

Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34-35 (2d Cir. 1995)). 

Second, a nmandatory" injunction, that is, one that nalter[s] the 

17 

Exhibit 1 
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status quo by conunanding some positive act," as opposed to a 

~prohibitory" injunction, which ~seeks only to maintain the status 

quo pending a trial on the merits," ~should issue 'only upon a 

clear showing that the moving party is entitled to the relief 

requested, or where extreme or very serious damage will result 

from a denial of preliminary relief.'" Tom Doherty Assocs., 435 

F.3d at 34 (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 

(2d Cir. 1985)). 

Citing Sussman v. Crawford, 488 F.3d 136 (2d Cir. 2007), 

the Town urges the Court to apply the heightened likelihood of 

success standard here. (Def.'s Opp. Br. at 6.) In Sussman, the 

plaintiffs sought to compel the United States Military Academy at 

West Point to allow a demonstration during a graduation ceremony. 

488 F.3d at 137. In this case, however, the requested injunction 

would prohibit, rather than compel government action, because the 

injunction would only enjoin enforcement of the Town Laws. See 

Mastrovincenzo, 435 F.3d at 90 (~On its face, the injunction 

clearly prohibits, rather than compels, government action by 

enjoining the future enforcement of § 20-453 against 

plaintiffs."); Davis v. Shah, No. 12-CV-6134, 2012 WL 1574944, at 

*5 (W.D.N.Y. May 3, 2012) (~[T]he Court views the injunction being 

sought as prohibitory, rather than mandatory, since it merely seeks 

to restore and maintain the relationship that existed between the 

parties prior to the enactment of the challenged statute."). 

18 

Exhibit 1 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 19 of 45 PageiD #: 928 

Exhibit 1 

Additionally, in contrast to Sussman, where an 

injunction would have permitted the plaintiffs to hold a large 

protest, thus rendering the dispute moot after entry of an 

injunction, the requested injunction here would not create a 

"particularly drastic or irreversible change in the status quo.R 

Mastrovincenzo, 435 F. 3d at 90. Instead, an injunction would 

simply restore and maintain the situation that existed prior to 

adoption of the Town Laws. The ultimate question of whether the 

Town may impose access restrictions to the Airport could still be 

resolved on the merits in the Town's favor. See id. (holding that 

an injunction did not "effect[ a particularly drastic or 

irreversible change in the status quoR because "the ultimate 

question of whether New York City [could] impose licensing 

requirements on vendors of clothing painted with graffiti 

remain[ed] ripe for resolution on the merits, and the injunction 

did not irreversibly affect the rights of the partiesR). 

Accordingly, since the requested injunction is prohibitory and 

would merely preserve the status quo, Plaintiffs are not required 

to meet the more exacting likelihood of success standard. 

B. Private Enforcement of the AAIA and ANCA 

Before addressing the requirements for a preliminary 

injunction, the Court first considers whether Plaintiffs may 

proceed against the Town based on the Town's alleged violations of 

ANCA and the AAIA. As noted, Section 47524 of ANCA imposes certain 

19 
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procedural requirements before an airport proprietor can adopt an 

~airport noise or access restriction" affecting Stage 2 and Stage 

3 aircrafts. 49 U.S.C. § 47524 (b), (c). Under Section 47107(a) 

of the AAIA, the Secretary of Transportation, through the FAA, is 

authorized to award airport improvement grants, but only if the 

airport proprietor provides the Secretary with Grant Assurances 

regarding airport operations. 49 U.S.C. § 47107 (a). There is no 

dispute that the Town did not comply with ANCA's procedural 

requirements before adopting the Town Laws even though they affect 

operations of Stage 2 and Stage 3 aircrafts, and Plaintiffs argue 

that the Town Laws violate Grant Assurances 19(a), 22(a), and 23. 

The Supremacy Clause of the United States Constitution provides 

that federal statutes preempt contrary state and local laws. See 

Nat'l Helicopter Corp. of Am. v. City of N.Y., 137 F.3d 81, 88 (2d 

Cir. 1998) (~National Helicopter II") (~The Supremacy Clause of 

the United States Constitution invalidates state and local laws 

that 'interfere with or are contrary to, the laws of congress.'" 

(quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 

U.S. 311, 317, 101 S. Ct. 1124, 1130, 67 L. Ed. 2d 258 (1981)). 

Accordingly, Plaintiffs seek to enforce the Supremacy Clause by 

striking down the Town Laws and giving effect to ANCA's procedural 

requirements and the Town's Grant Assurances under the AAIA. 

The Town urges the Court to deny Plaintiffs' request for 

an injunction on the ground that neither ANCA nor the AAIA creates 

20 

Exhibit 1 
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a private right of action. (Def.'s Br., Docket Entry 38 at 11-

12.) That ANCA and the AAIA do not create private rights of action 

is beyond dispute. Courts have uniformly held that private parties 

have no right to sue in federal court to enforce the provisions of 

ANCA or the AAIA. See, ~· McCasland v. City of Castroville, 

514 F. App'x 446, 448 (5th Cir. 2013) ("As several circuit courts 

have held, and as Plaintiffs appear to concede, 49 U.S.C. § 47107 

and its predecessor statute do not create a private right of action 

for parties aggrieved by alleged discrimination.H); W. Air Lines, 

Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 & n.4 (2d 

Cir. 1987) (holding that 49 U.S.C. § 2210(a), the previous 

codification of Section 47107(a), did not create an private right 

of action); Northwest Airlines, Inc. v. Kent, Mich., 955 F.2d 1054, 

1058-59 (6th Cir. 1992) (same); L-3 Commc'ns Integrated Sys., L.P. 

v. City of Greenville, No. 11-CV-2294, 2012 WL 3941766, at *2 (N.D. 

Tex. Sept. 5, 2012) ("The AAIA regulations do not provide for a 

private right of action and therefore cannot serve as an 

independent basis for jurisdiction.H); Horta, LLC v. City of San 

Jose, No. 02-CV-4086, 2008 WL 4067441, at *4 (N.D. Cal. Aug. 28, 

2008) (suggesting that "Congress did not intend to create a private 

right of action for ANCA violationsH because "ANCA contains its 

own enforcement mechanism, to be administered by the Secretary of 

Transportation"); Airborne Tactical Advantage Co., LLC v. 

Peninsula Airport Comm'n, No. 05-CV-0166, 2006 WL 753016, at *1 

21 

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(E. D. Va. Mar. 21, 2 0 0 6) ("Courts interpreting § 47107 have 

uniformly held that airport users have no right to bring an action 

in federal court claiming a recipient airport's violation of the 

§ 47107 grant assurances . ."); Tutor v. City of Hailey, No. 

02-CV-0475, 2004 WL 344437, at *8 (D. Idaho Jan. 20, 2004) (" [N] o 

implied private right of action exists under ANCA."); E. Hampton 

Airport Prop. Owners Ass'n, Inc. v. Town Bd. of Town of E. Hampton, 

72 F. Supp. 2d 139, 147 (E.D.N.Y. 1999) ("Section 47107 [of the 

AAIA] does not give rise to a private right of action."). 

Plaintiffs do not dispute this long line of precedent. Thus, ANCA 

requires certain procedural hurdles prior to the enactment of noise 

and access restrictions on Stage 2 and Stage 3 aircrafts, and the 

AAIA requires the recipient of airport improvement funds to comply 

with the AAIA' s Grant Assurances, but neither statute permits 

Plaintiffs to sue to enforce compliance in federal court. 

Plaintiffs therefore seek to sue directly under the 

Supremacy Clause. However, the Supremacy Clause also does not 

supply a private right of action. As the Supreme Court recently 

clarified in Armstrong v. Exceptional Child Center, Inc., 135 S. 

Ct. 1378, 1383, 191 L. Ed. 2d 471 (2015), the Supremacy Clause 

merely "creates a rule of decision It instructs courts 

what to do when state and federal law clash, but is silent 

regarding who may enforce federal laws in court, and in what 

circumstances they may do so." Thus, the Supremacy Clause "is not 

22 

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the 'source of any federal rights,' and certainly does not create 

a cause of action." Id. (quoting Golden State Transit Corp. v. 

Los Angeles, 493 U.S. 103, 107, 110 S. Ct. 444, 449, 107 L. Ed. 2d 

420 (1989)). 

Nevertheless, this is not to say that federal courts 

lack equitable jurisdiction to enjoin the implementation of 

preempted state legislation: "[F]ederal courts may in some 

circumstances grant injunctive relief against state officers who 

are violating, or planning to violate, federal law.• Id. at 1384; 

see also id. ("The ability to sue to enjoin unconstitutional 

actions by state and federal officers is the creation of courts of 

equity . .•); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 

n.l4, 103 S. Ct. 2890, 2899 n.14, 77 L. Ed. 2d 490 (1983) ("A 

plaintiff who seeks injunctive relief from state regulation, on 

the ground that such regulation is pre-empted by a federal statute 

which, by virtue of the Supremacy Clause of the Constitution, must 

prevail, thus presents a federal question which the federal courts 

have jurisdiction under 28 u.s .c. § 1331 to resolve. •) . 

Accordingly, Plaintiffs may be able to invoke this Court's equity 

jurisdiction to enjoin the allegedly preempted Town Laws 

regardless of whether ANCA, the AAIA, or the Supremacy Clause 

creates a private right of action. 

1391 (Sotomayor, J., dissenting) 

See Armstrong, 135 S. Ct. at 

("[The Court has] thus long 

entertained suits in which a party seeks prospective equitable 

23 

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Exhibit 1 

protection from an injurious and preempted state law without regard 

to whether the federal statute at issue itself provided a right to 

bring an action." (collecting cases)). 

But, as Armstrong counsels, even "[t]he power of federal 

courts of equity to enjoin unlawful executive action is subject to 

express and implied statutory limitations." 135 S. Ct. at 1385 

(holding that private Medicaid providers could not sue to enforce 

Section 30 (A) of the Medicaid Act because Congress "implicitly 

preclude[d] private enforcement of§ 30(A)"); see also Seminole 

Tribe of Florida v. Florida, 517 U.S. 44, 74, 116 S. Ct. 1114, 

1132, 134 L. Ed. 2d 252 (1996) ("Where Congress has created a 

remedial scheme for the enforcement of a particular federal right, 

we have, in suits against federal officers, refused to supplement 

that scheme with one created by the judiciary."). 

Here, in this Court's view, Congress intended to 

foreclose equitable enforcement of the AAIA's Grant Assurances. A 

fair reading of the AAIA indicates that Congress intended to place 

authority for the enforcement of the AAIA' s Grant Assurances 

exclusively in the hands of the Secretary of Transportation through 

a comprehensive administrative enforcement scheme. For starters, 

Section 47107 (a) authorizes the Secretary to approve a grant 

application "if the Secretary receives written assurances, 

satisfactory to the Secretary." 49 U.S.C. § 47107(a) (emphasis 

added) . If the FAA awards a grant, the Grant Assurances then 

24 
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"become a binding contractual obligation between the airport 

sponsor and the Federal government." Pac. Coast Flyers, Inc., 

2005 WL 1900515, at *11. The Secretary is then responsible for 

ensuring compliance with the Grant Assurances. See 49 U.S.C. 

§ 47107 (g) And to ensure compliance, Congress mandated that the 

Secretary "prescribe requirements for sponsors that the Secretary 

considers necessary." 49 U.S.C. § 47107(g) (emphasis added). 

Additionally, Section 4 7122 states that the Secretary "may take 

action the Secretary considers necessary to carry out [the AAIA], 

including conducting investigations and public hearings, 

prescribing regulations and procedures, and issuing orders." 49 

u.s.c. § 47122(a) Based on all of these elements of the AAIA, 

which place the responsibility of Grant Assurance compliance 

squarely with the Secretary, the Court finds that Congress at least 

implicitly precluded federal courts from exercising equity 

jurisdiction to enforce the AAIA's Grant Assurances. 

The Court's holding today does not leave an airport user 

without adequate recourse, however. The FAA's enforcement 

regulations permit a party "directly and substantially affected" 

by an airport sponsor's alleged noncompliance with a Grant 

Assurance to file a formal complaint with the FAA. 14 C.F.R. 

§ 16.23(a). If the pleadings demonstrate a "reasonable basis for 

further investigation," the FAA investigates the allegations, 

after which the Director of the Office of Airport Safety and 

25 

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Standards issues an "initial determination." 14 C.F.R. 

§§ 16.29 (a), 16.31 (a). If the Director dismisses the complaint, 

the interested party can file an administrative appeal to the 

Associate Administrator for Airports, who examines the existing 

record and issues a final decision without a hearing. 14 C.F.R. 

§§ 16.31(c), 16.33(a) (1). This final decision is then appealable, 

but only to a federal court of appeals. 49 u.s.c. § 46110(a); 14 

C.F.R. § 16.247(a). 

The FAA's administrative grant enforcement procedure is 

not insignificant. Indeed, "[c] ourts interpreting § 47107 have 

uniformly held that airport users have no right to bring an action 

in federal court claiming a recipient airport's violation of the 

§ 47107 grant assurances until that claim has been raised with the 

FAA." Airborne, 2006 WL 753016, at *1 (collecting cases); see 

also Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 955 F.2d 1054, 

1059 (6th Cir. 1992) (holding that "all claims against the 

defendants under the AAIA were properly dismissed for failure to 

exhaust administrative remedies"). 

However, the Court recognizes that this case is 

complicated by the fact that the FAA agreed in the 2005 Settlement 

Agreement not to enforce Grant Assurance 22(a) (Pilsk Decl. Ex. 

3 at 5.) On its face, this agreement appears to violate the 

Secretary's statutorily mandated duty to ensure compliance with 

the AAIA. The FAA's own decisions and determinations support this 

26 

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conclusion. See Platinum Aviation & Platinum Jet Ctr. BMI v. 

Bloomington-Normal Airport Auth., FAA Docket No. 16-06-09, 2007 WL 

4854321, at *15 (Nov. 28, 2007) ("[The] FAA can neither bargain 

away the rights of access to public-use taxiways and movement areas 

nor waive the grant assurances of the Respondent. [The] FAA is 

required to enforce the federal statutes to protect the federal 

interest in the Airport. The Part 16 process ensures respondents 

comply with their agreements with the federal government to protect 

and serve the public interest.") ; In re Compliance with Fed. 

Obligations by the City of Santa Monica, Cal., FAA Docket 16-02-

08, 2008 WL 6895776, at *26 (May 27, 2008) ("The FAA may not by 

agreement waive its statutory enforcement jurisdiction over future 

cases."). Thus, the Court is sorely tempted to issue a ruling 

that the FAA is statutorily obligated to enforce the Town's Grant 

Assurances notwithstanding its agreement not to enforce in the 

2005 Settlement Agreement. However, the Court will not rule on 

the scope of the FAA's duties without first providing the FAA an 

opportunity to be heard. Currently, the FAA's response to the 

Complaint in the FAA Action is due on July 8, 2015. After the FAA 

responds, the Court may order additional briefing and/or schedule 

a hearing to address this issue. In the meantime, Plaintiffs may, 

if they wish, file a complaint with the FAA regarding the Town's 

alleged failure to comply with its Grant Assurances. 

27 

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Finally, the Court will entertain Plaintiffs' preemption 

claim with respect to ANCA. With respect to ANCA, Plaintiffs 

simply seek a declaration and injunctive relief that ANCA expressly 

preempts any noise or access restriction on a Stage 2 or Stage 3 

aircraft unless the airport proprietor follows ANCA's procedural 

requirements. This claim does not raise the same jurisdictional 

concerns as Plaintiffs' AAIA claims. There is nothing in the text 

or structure of ANCA indicating that Congress intended to preclude 

a federal court sitting in equity from entertaining Plaintiffs' 

preemption challenge, nor is there an administrative enforcement 

proceeding that would permit Plaintiffs to pursue their claim. 

The Court will now turn to the requirements of Plaintiffs' motion 

for a preliminary injunction. 

C. Irreparable Harm 

"A showing of irreparable harm is 'the single most 

important prerequisite for the issuance of a preliminary 

injunction.'" Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 

110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d 

227, 233-34 (2d Cir. 1999)). Accordingly, "'the moving party must 

first demonstrate that such injury is likely before the other 

requirements for the issuance of an injunction will be 

considered.'" Grand River Enter. Six Nations, Ltd. v. Pryor, 481 

F.3d 60, 66 (2d Cir. 2007) (quoting Freedom Holdings, Inc. v. 

Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)). 

28 

To meet the 

Exhibit 1 
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irreparable harm requirement, Plaintiffs "'must demonstrate that 

absent a preliminary injunction they will suffer an injury that is 

neither remote nor speculative, but actual and imminent, and one 

that cannot be remedied if a court waits until the end of trial to 

resolve the harm.'" Faiveley, 559 F.3d at 118 (quoting Grand 

River, 481 F.3d at 66). "'Where there is an adequate remedy at 

law, such as an award of money damages, injunctions are unavailable 

except in extraordinary circumstances.'" Id. (quoting Moore v. 

Consol. Edison Co. of N.Y., 409 F.3d 506,510 (2dCir. 2005)). 

"A 'substantial loss of business,' particularly where 

there is a threat of bankruptcy, constitutes irreparable injury 

sufficient to satisfy this standard." Nat'l Helicopter Corp. of 

Am. v. City of N.Y., 952 F. Supp. 1011, 1018 (S.D.N.Y. 1997) 

("National Helicopter I") (quoting Doran v. Salem Inn, Inc., 422 

U.S. 922, 932, 95 S. Ct. 2561, 2568, 45 L. Ed. 2d 648 (1975) I, 

aff'd in part, rev'd in part, Nat'l Helicopter II, 137 F.3d 81 (2d 

Cir. 1998). "Major disruption of a business can be as harmful as 

its termination and thereby constitute irreparable injury." 

Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1186 (2d Cir. 1995) 

(remanding with instructions that the plaintiffs "may show that 

the lost profits are of such magnitude as to threaten the 

viability of their businesses") Additionally, "[t]he threat that 

a business will suffer a significant loss of 'good will'--a matter 

29 

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not easily quantified--is particularly suited to a claim for 

injunctive relief." Nat'l Helicopter I, 952 F. Supp. at 1018. 

Plaintiffs argue that they will suffer irreparable harm 

absent an injunction because the Town Laws will: (1) "cause severe 

economic harm" that will "threaten the continued existence of some 

Plaintiffs"; and (2) "cause incalculable and irreversible damage 

to Plaintiffs' goodwill, relationships, market share, and 

reputation." (Pls. • Br. at 8-ll.) Plaintiffs have submitted 

various affidavits from executives and high-ranking employees to 

support these allegations. (See Renz Decl., Docket Entry 22; 

Jungck Decl., Docket Entry 23; Vellios Decl., Docket Entry 24; 

Herbst Decl., Docket Entry 25; Carlson Decl., Docket Entry 28; 

Ashton Decl., Docket Entry 29. I A review of these affidavits 

demonstrates that at least some Plaintiffs have demonstrated 

irreparable harm absent an injunction. 

The majority of the aircrafts that many of the Plaintiffs 

use for their charter services to the Airport are subject to the 

Town Laws' Noisy Aircraft definition. (Renz Decl. 'I[ 20 (six of 

Analar' s seven helicopters) ; Ashton Decl. 'IT 15 (all ten of AAG' s 

helicopters); Carlson Decl. 'I[ 18 (HeliFlite's entire fleet); 

Vellios Decl. 'I[ ll (all eleven of Liberty's helicopters) Thus, 

it cannot be seriously argued that the Town Laws, particularly 

their One-Trip Limit, will not cause substantial business losses 

that might threaten Plaintiffs' existence. For example, according 

30 

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to Analar' s president, Michael Renz, flights to and from the 

Airport account for fifty-five percent of Analar' s revenue, and 

over seventy percent of its passengers fly to and from the Airport. 

(Renz Decl. '1['1[ 9, 11.1 He estimates that sixty-five percent of 

Analar's flights will be prohibited under the Town Laws. (Renz. 

Decl. 'I[ 20. I 

Moreover, as noted, in addition to providing charter 

services, AAG and HeliFlite manage "fractional aircraft ownership 

programs," which involve selling partial ownership or leasehold 

interests of a helicopter to private individuals who wish to 

operate their own helicopter using AAG and HeliFlite as managers. 

(Compl. '1['1[ 14, 17.1 According to AAG's president, its prospective 

fractional owners have delayed purchasing shares and some of its 

existing fractional owners have delayed renewing their shares 

pending the outcome of this matter. (Ashton Decl. 'I[ 28.1 In this 

Court's view, this would result not only result in lost revenue, 

but also damage to AAG's reputation and good will with its present 

and prospective clients. HeliFlite likely faces the same 

predicament. (Carlson Decl. '1['1[ 26-27.1 Similarly, three of 

Analar's seven helicopters are owned by third-party individuals 

with personal travel needs to and from the Airport, some of who 

have advised Analar that they will sell their helicopters if the 

Town Laws go into effect. (Renz Decl. '1['1[ 21, 24. 1 This undoubtedly 

would constitute a major business disruption because Analar would 

31 

Exhibit 1 
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not only lose its management business, but also the use of those 

helicopters for other customers. Additionally, some Plaintiffs 

believe that they will have to reduce their fleets and terminate 

many of their employees, including highly-skilled pilots. See 

Renz Decl. '1['1[ 17, 25; Vellios Decl. 'I[ 20; Ashton Decl. 'I[ 24.) In 

a highly-specialized industry, the loss of operating equipment and 

pilots could be difficult to replace. 

In sum, the Town Laws undoubtedly will impose on some of 

the Plaintiffs substantial business losses, major operational 

disruptions, and losses of good will that could be difficult to 

quantify. Plaintiffs have therefore demonstrated irreparable harm 

absent an injunction.9 

9 Additionally, the Court notes that money damages may not be 

available to at least one Plaintiff, Liberty, which is a New 

York corporation. Money damages are unavailable for its 

preemption claims. As previously noted, the AAIA, ANCA, and the 

Supremacy Clause do not create private causes of action. (See 

supra pp. 20-22.) Nor is a claim available for violations of 

the AAIA or ANCA under 42 U.S.C. § 1983. See Scott Aviation, 

Inc. v. DuPage Airport Auth., 393 F. Supp. 2d 638, 647 (N.D. 

Ill. 2005) (holding that a plaintiff may not base a Section 1983 

claim upon a violation of the AAIA); Tutor, 2004 WL 344437, at 

*10 n.4 (same, but for ANCA). And although Plaintiffs' Commerce 

Clause claim might support a money damages award under 42 U.S.C. 

§ 1983, see Dennis v. Higgins, 498 U.S. 439, 111 S. Ct. 865, 112 

L. Ed. 2d 969 (1991) (recognizing that Commerce Clause claims 

are actionable under 42 U.S.C. § 1983), these damages clearly 

would be limited to those incurred in connection with an 

unconstitutional restraint on interstate commerce, see Town of 

Southold v. Town of E. Hampton, 477 F.3d 38, 47 (2d Cir. 2007) 

(stating that the "[D]ormant Commerce Clause . . limits the 

power of local governments to enact laws affecting interstate 

commerce"). Thus, being a New York corporation, Liberty likely 

32 

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D. Likelihood of Success on the Merits 

Having found irreparable harm absent an injunction, the 

Court now turns to the merits of this case. As noted, the Supremacy 

Clause provides that federal statutes preempt contrary state and 

local laws. See Nat'l Helicopter II, 137 F.3d at 88 ("The 

Supremacy Clause of the United States Constitution invalidates 

state and local laws that 'interfere with or are contrary to, the 

laws of congress.'" (quoting Chicago & N.W. Transp. Co., 450 U.S. 

at 317, 101 S. Ct. at 1130) Plaintiffs contend that the Town 

Laws are invalid because ANCA "expressly preempts local 

proprietors from imposing any noise or access restrictions on any 

aircraft classified by the FAA as a 'Stage 2' or 'Stage 3' aircraft 

unless the proprietor has first complied with ANCA' s stringent 

requirements." I Pls.' Br. at 14 (emphasis omitted).) 

Alternatively, Plaintiffs argue that the laws are preempted 

because they unreasonable, arbitrary, and discriminatory. (Pls. 

Br. at 21-25.) 

The Town responds that ANCA does not expressly preempt 

local noise regulations. Rather, the Town reads ANCA to provide 

airport proprietors with a choice: comply with ANCA's requirements 

or lose eligibility for federal airport improvement grants. 

(Def.'s Br. at 14-15.) As long as an airport proprietor's noise 

would not be entitled to money damages under the Commerce 

Clause. 

33 

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regulation is reasonable, non-arbitrary, and non-discriminatory, 

the Town contends, such regulation constitutes a valid exercise of 

the airport proprietor's proprietary rights in the airport. 

(Def.'s Br. at 14-15.) 

As discussed below, the Court agrees with the Town that 

ANCA does not expressly preempt all airport proprietors from 

adopting access restrictions before complying with ANCA's 

procedural requirements. However, for the reasons explained 

below, the Court also finds that on the record before it, 

Plaintiffs have demonstrated that the One-Trip Limit is not 

reasonable. 

1. Whether ANCA Preempts the Town Laws 

Under the Airline Deregulation Act ("ADA"), Congress has 

expressly preempted state and local regulations "related to a 

price, route or service of an air carrier." 49 u.s.c. 

§ 41713 (b) (1)) However, Congress also expressly stated that the 

ADA's preemptive effect does not apply to regulations passed by 

state and local authorities in the course of "carrying out [their] 

proprietary powers and rights." 49 U.S.C. § 41713(b) (3). "Under 

this 'cooperative scheme,' Congress has consciously delegated to 

state and municipal proprietors the authority to adopt rational 

regulations with respect to the permissible level of noise created 

by aircraft using their airports in order to protect the local 

34 

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population." Nat'l Helicopter II, 137 F.3d at 88 (collecting cases 

and legislative history). 

Thus, "federal courts have recognized federal preemption 

over the regulation of aircraft and airspace, subject to a 

complementary though more 'limited role for local airport 

proprietors in regulating noise levels at their airports.'" Id. 

(quoting City and County of San Francisco v. F.A.A., 942 F.2d 1391, 

1394 (9th Cir. 1991) I. Known as the "proprietor exception," it 

permits a local municipality, acting in its proprietary capacity, 

as opposed to its police power, to adopt "'reasonable, nonarbitrary 

and non-discriminatory' regulations of noise and other 

environmental concerns at the local level." Id. (quoting British 

Airways Bd. v. Port Auth. of N.Y., 558 F.2d 75, 84 (2d Cir. 1977) ); 

see also Glob. Int'l Airways Corp. v. Port Auth. of N.Y. & N.J., 

727 F.2d 246, 248 (2d Cir. 1984) ("[S]tates and localities retain 

power in their capacity as airport proprietors to establish 

requirements as to the level of permissible noise created by 

aircraft using their airports.") The rationale for the proprietor 

exception is that since airport proprietors are liable for 

compensable takings from excessive aircraft noise, British 

Airways, 558 F.2d at 83 (citing Griggs v. Allegheny Cnty., 369 

U.S. 84, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962) ), fairness dictates 

that they should have the power to limit their liability by 

restricting access to their airports, see id. ("The right of the 

35 

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proprietor to limit his liability by restricting the use of his 

airport has been thought a corollary of this principle.•). 

Plaintiffs do not dispute the existence of the 

proprietor's exception. Rather, they contend that when Congress 

enacted ANCA in 1990, it "displac[ed] local proprietors' authority 

to unilaterally impose restrictions. • (Pls.' Br. at 15.) The 

Court disagrees. Plaintiffs are correct that ANCA directed the 

Secretary of Transportation to "establish [ by regulation a 

national program for reviewing airport noise and access 

restrictions on the operation of stage 2 and stage 3 aircraft.• 

49 u.s.c. § 47524(a). However, under Section 4 7 52 6 of ANCA, 

entitled, "Limitations for noncomplying airport noise and access 

restrictions, • the only consequences for failing to comply with 

ANCA's review program are that the "airport may not--(1) receive 

money under [the AAIA]; or (2) impose a passenger facility charge 

under [49 U.S.C. § 40117].• 49 u.s.c. § 47524. This provision 

raises an obvious question. If Congress intended to preempt all 

airport proprietors from enacting noise regulations without first 

complying with ANCA, why would it also include an enforcement 

provision mandating the loss of eligibility for federal funding 

and the ability to impose passenger facility charges? The logical 

answer is that Congress intended to use grant and passenger 

facility charge restrictions to encourage, but not require, 

compliance with ANCA. Indeed, in National Helicopter II, the 

36 

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Second Circuit affirmed a decision rendered by then-District Judge 

Sonia Sotomayor in which she applied the proprietor exception to 

uphold various noise regulations imposed by the City of New York 

on Manhattan's East 34th Street Heliport notwithstanding the fact 

that the plaintiff in that case presented the same ANCA-preemption 

argument that Plaintiffs assert here. See Nat'l Helicopter II, 

137 F.3d at 88; Nat'l Helicopter I, 952 F. Supp. at 1023. 

Accordingly, in line with National Helicopter II, this Court holds 

that ANCA did not displace the proprietor exception. 10 

2. Whether the Town Laws Are Reasonable, NonArbitrary, and Non-Discriminatory 

Even though ANCA does not expressly preempt the Town 

Laws, to be constitutional under the proprietor exception, the 

laws still must be reasonable, non-arbitrary, and nondiscriminatory. Nat'l Helicopter II, 137 F.3d at 88 ("[T]he 

proprietor exception allows municipalities to promulgate 

'reasonable, nonarbitrary and non-discriminatory' regulations of 

noise and other environmental concerns at the local level." 

1° The Court does note that the Airport is federally obligated 

since it accepted federal funds in 2001, and ANCA expressly 

states that it "does not affect . . the authority of the 

Secretary of Transportation to seek and obtain legal remedies 

the Secretary considers appropriate, including injunctive 

relief." 49 U.S.C. § 47533. The Court offers no opinion on 

whether or not the FAA has authority to enjoin the Town Laws on 

the basis that the Airport is still federally obligated and 

therefore would need to comply with ANCA's procedural 

requirements. 

37 

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(quoting British Airways, 558 F.2d at 84)). Regulations of noise 

"must avoid even the appearance of irrational or arbitrary action." 

Id. at 89. 

For ease of reference, the Town Laws impose the following 

three access restrictions: ( 1) the Mandatory Curfew, which 

prohibits all aircraft from using the Airport between 11:00 p.m. 

and 7:00 a.m.; (2) the Extended Curfew, prohibiting "Noisy 

Aircraft" from using the Airport from 8:00p.m. to 9:00a.m.; and 

(3) the One-Trip Limit, a weekly limit prohibiting Noisy Aircraft 

from using the Airport more than two times per week during the 

months of May, June, July, August, and September. See TOWN OF E. 

HAMPTON CODE § 7 5-38 (B)- (C). 

Plaintiffs argue that the Town Laws are unreasonable, 

arbitrary, and discriminatory on three grounds: ( 1) "the Town 

justified [the Town Laws] with deeply flawed data that are 

noncompliant with federal regulations," (Pls.' Br. at 22-23); 

(2) "The Town's 'Noisy Aircraft' standard is unreasonable because 

it is so extreme and excessive" and "is also arbitrary and 

discriminatory," (Pls.' Br. at 23-24); and (3) the Town Laws "are 

unreasonable and conflict with federal law because they create 

potential safety problems," (Pls.' Br. at 24-25). The Court will 

first address Plaintiffs' arguments regarding safety and the 

Town's data since both arguments are applicable to all three access 

restrictions. 

38 

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Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 39 of 45 PageiD #: 948 

With respect to safety, Plaintiffs contend that the Town 

Laws' curfews are unsafe because they impose financial and 

injunctive penalty provisions that could influence pilot decisions 

in an unsafe manner and also divert air traffic to nearby airports 

that are unable to handle an increased demand. (Pls.' Br. at 24-

25.) However, on the record before the Court, there is no evidence 

that the mandatory curfews would force any pilot to operate his or 

her aircraft in an unsafe manner. Plaintiffs' argument is purely 

speculative. Plaintiffs also cite to an FAA decision in which the 

FAA found that a mandatory curfew imposing financial penalties and 

injunctions was unsafe, and therefore unreasonable, because it 

"'reache[d] into the cockpits of individual aircraft and 

interact[ed] with safety parameters affecting 

critical . decisions' by pilots. 0 (Pls.' Br. at 24 (quoting 

FAA Decision on 14 CFR Part 161 Study Proposed Runway Use 

Restriction at LAX (Nov. 7, 2014) (alterations and ellipsis in 

original)) . 11 However, in this case, the Town Laws include an 

exception for operational or medical emergencies. See TOWN OF E. 

11 The FAA's LAX decision is available at: 

http://www.faa.gov/airports/environmental/airport noise/part 161 

/media/Final-Determination-LAX-Part%20161-Application20141107 .pdf. 

39 

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HAMPTON CODE § 75-38 (E) . 12 In this regard, the Court notes that the 

FAA has been aware that the Town intended to impose curfews at the 

Airport since at least the end of February this year. If at any 

time the FAA believed that the curfews were unsafe, it could, and 

still can, attempt to regulate the Town Laws based on safety 

concerns. 

Plaintiffs also argue that the Town Laws are 

unconstitutional because the Town justified the Town Laws based on 

flawed data not compliant with federal regulations. Specifically, 

Plaintiffs contend that the FAA has established a single metric--

yearly day-night noise exposure level expressed in decibels 

("DNL") --and "requires its use by all airports to justify any 

efforts to reduce airport noise by restricting aircraft access." 

(Pls.' Br. at 22.) Plaintiffs are correct that the FAA has 

established the DNL metric with respect to submissions under ANCA 

12 Specifically, Section 75-38 states: 

The restrictions of this section 75-38 shall not apply 

to any aircraft operational emergency, any medical 

emergency operation, whether by public or private 

aircraft, or to any operation by a government-owned 

aircraft, including, without limitation, police, 

emergency services, and military operations. In the case 

of an aircraft emergency or medical emergency operation, 

the operator shall submit a sworn statement to the 

Airport Manager within 24 hours of such operation 

attesting to the nature of the emergency and reason for 

the operation. 

TOWN OF E. HAMPTON CODE § 75-38 (E) 

40 

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and the Airport Noise and Safety Act of 1979 ("ANSA"), 49 U.S.C. 

§ 47502, et seq. See, e.g., Aircraft Owners & Pilots Ass'n v. 

City of Pompano Beach, FAA Docket 16-04-01, 2005 WL 3722717, at 

*28 (Dec. 15, 2005). However, here, the question is whether the 

Town acted appropriately under the proprietor exception, not ANCA 

or ANSA. In adopting the Town Laws, the Town considered formal 

complaints submitted through the Airport's formal complaint log, 

which yielded over 23,000 complaints. The Court recognizes that 

a large portion of these complaints came from a small number of 

households, but it cannot be argued that the Town lacked data to 

support a finding of a noise problem at the Airport, particularly 

given the large increase in helicopter traffic in recent years. 

Indeed, courts have affirmed the FAA's use of complaint data "as 

empirical data of a noise problem." Helicopter Ass'n Int'l, Inc. 

v. F.A.A., 722 F.3d 430, 436 (D.C. Cir. 2013). 

Having found no evidence that the Town Laws are unsafe 

and that Plaintiffs have failed to demonstrate that the Town lacked 

sufficient noise data, the Court turns to the Mandatory Curfew. 

Aside from its argument that the Town relied on flawed data, 

Plaintiffs do not specifically argue that the Mandatory Curfew is 

unreasonable, arbitrary, or discriminatory. Accordingly, the 

Court will not preliminarily enjoin the Mandatory Curfew, a 

decision which is in line with precedent in this Circuit. See 

Nat'l Helicopter II, 137 F.3d at 89 (affirming district court's 

41 

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decision to uphold weekday and weekend curfews because "[t]he 

protection of the local residential community from undesirable 

heliport noise during sleeping hours is primarily a matter of local 

concern and for that reason falls within the proprietor 

exception") . 

The Court now turns to the access restrictions 

applicable to "Noisy Aircraft.• Plaintiffs first argue that the 

definition of ~Noisy Aircraft" is ~unreasonable because it is so 

extreme and excessive." (Pls.' Br. at 23.) In support of this 

argument, Plaintiffs submit expert declarations and other 

affidavits alleging that the Noisy Aircraft definition includes 

certain aircraft that a generally viewed as quiet. (See Shaffer 

Decl., Docket Entry 20, ~ 36; Jungck Decl. ~ 5; Brown Decl., Docket 

Entry 27, ~ 22.) The Court disagrees with Plaintiffs. As noted, 

Noisy Aircraft is defined as "any airplane or rotorcraft for which 

there is a published Effective Perceived Noise in Decibels (EPNdb) 

approach (AP) level of 91.0 or greater.• TOWN OF E. HAMPTON CODE § 

75-38A (4) (a). The 91 EPNdb threshold appears to be a valid 

indicator of noise as it affects individuals. As the FAA has 

explained: 

EPNL is a single number measure of the noise of an 

individual airplane flyover that approximates 

laboratory annoyance responses. The EPNL 

computation process effectively yields a time 

integrated annoyance level. 

42 

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See FAA, Advisory Circular 36-4C, Noise Standards: Aircraft Type 

and Airworthiness Certification 'II 192 (a) . 13 Even if not all 

aircrafts are EPNdb certified, as Plaintiffs claim, this does not 

render the Noisy Aircraft definition arbitrary or discriminatory. 

For starters, Plaintiffs do not identify how many aircraft are not 

EPNDb certified. Additionally, the Noisy Aircraft definition is 

based on noise, as opposed to restrictions based on weight or size, 

which courts have found to constitute unreasoned discrimination 

because they do not regulate based on noise. See, e.g., Nat' 1 

Helicopter II, 137 F.3d at 91 ("In this case, the City placed 

restrictions on certain aircraft because of their size--not the 

noise they make--despite evidence that larger helicopters are not 

necessarily noisier than smaller ones. A regulation purporting to 

reduce noise cannot bar an aircraft on any other basis."). Thus, 

Plaintiffs have not demonstrated that the 91 EPNdb threshold for 

Noisy Aircraft is arbitrary or discriminatory, at least at this 

stage of the litigation. The Court therefore will not 

preliminarily enjoin the Extended Curfew that applies to Noisy 

Aircraft, for the same reasons stated with respect to the Mandatory 

Curfew. 

13 The Advisory Circular is available at: 

http://www.faa.gov/documentLibrary/media/Advisory_Circular/AC36-

4C. pdf. 

43 

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However, the Court will preliminarily enjoin the OneTrip Limit as applied to Noisy Aircraft. This measure is drastic, 

considering the effect it poses on some of Plaintiffs' businesses, 

and there is no indication that a less restrictive measure would 

not also satisfactorily alleviate the Airport's noise problem. 

Accordingly, on the record before it, the Court will preliminarily 

enjoin the One-Trip Limit as not reasonable. In making this 

ruling, the Court has considered the fact that the Town's complaint 

data originated from a small percentage of the Town's residents. 

E. Balance of Hardships 

"The balance of hardships inquiry asks which of the two 

parties would suffer most grievously if the preliminary injunction 

motion were wrongly decided." Goldman, Sachs & Co. v. N. Carolina 

Mun. Power Agency No. One, No. 13-CV-1319, 2013 WL 6409348, at *8 

(S.D.N.Y. Dec. 9, 2013) (internal quotation marks and citation 

omitted). Here, the balance of hardships tips in the Town's favor 

with respect to the Mandatory Curfew and Extended Curfew, as the 

Town's desire to protect its residents during sleeping hours 

clearly outweighs the inconvenience Plaintiffs may experience by 

having to minimize their flight schedules. However, with respect 

to the One-Trip Limit, the balance tips in Plaintiffs' favor in 

light of the fact that the One-Trip Limit will have a drastic 

impact on their businesses, and there is no indication in the 

Town's papers that a less restrictive measure would not also 

44 

Exhibit 1 
Case 2:15-cv-02246-JS-ARL Document 64 Filed 06/26/15 Page 45 of 45 PageiD #: 954 

satisfactorily alleviate the Town's noise problem. Accordingly, 

Plaintiffs' motion for a preliminary injunction is GRANTED IN PART 

and DENIED IN PART. It is GRANTED with respect to the Town Laws' 

One-Trip Limit and is DENIED with respect to the Mandatory Curfew 

and Extended Curfew. 

II. Motion to Consolidate 

Plaintiffs also seek to consolidate this action and the 

FAA Action for all purposes. The Court, in its discretion, 

RESERVES JUDGMENT on this motion pending the filing of the FAA's 

response to the Complaint in the FAA Action. 

CONCLUSION 

For the foregoing reasons, Plaintiffs' motion for a 

preliminary injunction enjoining enforcement of the Town Laws 

(Docket Entry 19) is GRANTED IN PART and DENIED IN PART. It is 

GRANTED with respect to the One-Trip Limit and is DENIED with 

respect to the Mandatory Curfew and Extended Curfew. The Court 

RESERVES JUDGMENT with respect to Plaintiffs' motion to 

consolidate (Docket Entry 14) pending the filing of the FAA's 

response to the Complaint in the FAA Action. 

Dated: June 26 , 2015 

Central Islip, NY 

45 

SO ORDERED. 

/s/ JOANNA SEYBERT 

Joanna Seybert, U.S.D.J. 

Exhibit 1 
http://www.newsday.com/business/gotham-air-says-its-quieterhelicopters-can-fly-under-east-hampton-noise-rules-1.1 037 4294 

Manhattan company says its quieter 

helicopters can fly under East 

Hampton noise rules 

May 3, 2015 by WILL JAMES I wiiLjames@newsday.com 

A Manhattan helicopter company plans to run six 

reduced-volume choppers between the city and 

the Hamptons this summer that company 

officials said will allow it to comply with new antinoise regulations in East Hampton Town. 

Gotham Air, which launched in January, said it 

will offer charter service to Southampton, East 

Hampton and Montauk-- using Bell 407GX 

helicopters-- beginning Memorial Day weekend. 

East Hampton officials on April 16 passed three 

laws designed to reduce noise from air traffic to 

town-owned East Hampton Airport in Wainscott 

that will go into effect by Memorial Day 

weekend. They include an 11 p.m. to 8 a.m. curfew on takeoffs and landings; an extended curfew 

of 8 p.m. to 9 a.m. for aircraft considered noisy; and a one-trip-per-week limit for noisy aircraft from 

May 1 to Sept 30. 

Gotham Air chief executive Tim Hayes said the 

Bell 407GX helicopters are below the 91-decibel 

threshold the town uses to define noisy aircraft, 

so they would be exempt from the extended 

curfew and the one-trip-per-week limit 

"We take the long view, and we want to be a 

positive part of the community," Hayes said. 

Just 8 percent of helicopter flights to East 

Hampton Airport currently fall below the 91-

decibel threshold, according to a recent study 

commissioned by East Hampton Town. 

Gotham contracted with Helicopter Flight 

Services, which owns the Bell helicopters, last 

fall as town officials were discussing the 

regulations. Hayes said the anti-noise talks 

"absolutely played a part" in the decision to use 

quieter choppers. 

Exhibit 2 
Gotham Air allows customers to book helicopter trips online, and offers flights to the Hamptons 

starting at $525 to $625. 

The company is not involved in a federal lawsuit filed April 21 by several other helicopter 

companies seeking to block East Hampton's rules from taking effect. 

Exhibit 2 
Case 1:11-cv-00389-AJT-TRJ Document 9-22 Filed 05/05/11 Page 1 of 4 PageiD# 367 

U.S. Department 

Of Transportation 

l•'ederal Transit 

Administration 

VIA FEDERAL EXPRESS 

Philip G. Sunderland, Esquire 

General Counsel 

Head quarters 

Metropolitan Washington Airports Authority 

1 Aviation Circle 

Washington, DC 20001-6000 

1200 New Jersey Avenue S.E. 

Washinqton DC 20590 

OCT 2 9 ···~ 

Reo Transmittal of Certificate of the Secretary of Transportation· 

Compliance with the Deed and Agreement and Deed of Lease to 

the Metropolitan Washington Airports Authority 

Dear Philo 

Enclosed please find the original, signed and notarized Certificate of the Secretary 

of Transportationo Compliance with the Deed and Agreement and Deed of Lease to the 

Metropolitan Washington Airports Authority signed October 29, 2008. Please feel to 

contact me if you have any questions or concerns. 

Very truly yours, 

·/e~E.S. ~ Miller 

Enclosure: 

Ex. 17- Raphael Dec!. Supp. Def's Mot. Dism. 

Exhibit 3 
Case 1:11-cv-00389-AJT-TRJ Document 9-22 Filed 05/05/11 Page 2 of 4 PageiD# 368 

THE SECRETARY OF TRANSPORTATION 

W,\SHINGTON. D.C 20o90 

CERTIFICATE OF THE SECRETARY OF TRANSPORTATION: 

('OMPI.IANCE WITH THE AGREEMENT AND DEED OF LEASE TO 

THE METROPOLITAN WASHINGTON AIRPORTS AUTHORITY 

Under Article 32 of the LEASE OF THE METROPOLITAN WASHINGTON 

AIRPORTS BETWEEN THE UNITED STATES OF AMERICA ACTING BY AND 

THROUGH THE SECRETARY OF TRANSPORTATION AND THE 

METROPOLITAN WASHINGTON AIRPORTS ACTHORITY {the Lcru;cl, the 

Secretary, atier receipt of a request from the Airports Authority, is to "cxemte and 

deliver to the Airports A11thority or any othe.r person or entity designated by the Airports 

Authority" a certificate with respect to the Authority's status and activities under the 

Lease. 

The Airports Authority has requested that such a certificate be provided to the 

Commonwealth of Virginia in conjunction with the transfer of the right and obligation to 

operate. maintain and 1mprove the Dulles Toll Road from the Commonwealth of Virginia 

to the Airports Authority in order to enable the Airports Authority to use a portion of the 

revenue of the Dulles Toll Road, in conjunction with other funding sources. to extend the 

existing Metrorail system to WashmgtonDuUes International Airport and into Loudoun 

County, Virginia, using the median of the Dulles Airport Access Highway and property 

provided by the Commonwealth, in accordance with the March 2, 2005, Record of 

Decision of the federal Transit Administration and the July !2, 2005, Record of Decision 

of the Federal Aviation Administration, as they may be modified from time to time (the 

Metrorail Project). 

In response to this request of the Airports Authority, the Secretary of Transportation 

hereby certifies as follows: 

(!) On January 10, I 983, the Deed of Easement by and between the United 

States of America acting by and through the Federal Aviation 

Administration (FAA) and the Corrunonwealth of Virginia wa.~ executed 

by the Director of the Metropolitan Wa.~hington Airports Division of the 

FAA, conveying a right-of-way to the Commnnwealth over a pmtion of 

the Dulles Airport Access Highway right-ot~way generally between 

Virginia Route 28 and Route 123. and subsequently. the Commonwealth 

constructed and operated the road known as the Dulles Toll Road within 

that right-of-way (Toll Road Easement). On November 23, 1983, a Deed 

of Easement by and between the United States of America acting by and 

through the FAA and the Commonwealth was executed by the Director of 

the Metropolitan Washington Airports division of the FAA, conveying a 

right-of-way to the Commonwealth over a portion of the Dulles Airport 

Access Highway generally between Virginia Route 123 and Interstate 66, 

Ex. 17- Raphael Dec!. Supp. Def's Mot DisDL 

Exhibit 3 
Case 1:11-cv-00389-AJT-TRJ Document 9-22 Filed 05/05/11 Page 3 of 4 PageiD# 369 

2 

and subsequently the Dulles Connector Road was constructed within that 

right-of-way (Connector Road Easement). 

(2) On March 2, 1987, the Lease was executed by the Secretary and the 

Chairman of the Board of Directors of the Airports Authority and, 

subsequently, was approved by the Governor of Virginia and the Mayor of 

the District of Columbia. The Lease became dTective on June 7, 1987. 

(3) The Lease provides that the leased property must be used for "Airport 

Purposes." 

(4) On December 30, 1991, Amendment No. I to the Lease was executed by 

the Acting Secretary of Transportation and the Chairman of the Board of 

Directors of the Airports Authority to comply with amendments to the 

Metropolitan Washington Airports Act and the runendment was approved 

by the Governor of Virginia and the Mayor of the District of Columbia. 

(5) On September 28, 1998, Amendment No.2 to the Lease was executed by 

the Secretary of Transportation and the Chairman of the Board of 

Directors of the Airports Authority to comply with amendments to the 

Metropolitan Washington Airports Act and particularly to define "Airport 

Purposes" as "a use of property interests (other than a sale) for aviation 

business or activities, or for activities necessary or appropriate to serve 

passengers or cargo in air commerce, or for nonprofit, public-use facilities 

which are not inconsistent with the needs of aviation," and the amendment 

was approved by the Governor of Virginia and rhe Mayor of rhe District of 

Columbia. 

(6) On April 30, 2003, Amendment No. 3 to the Lease was executed by the 

Secretary of Transportation and rhe Chairman of the Board of Directors of 

the Airports Authority to specify that the term of the Lease is 80 years and 

to provide for the disposition of after-acquired property, and the 

amendment was approved by the Governor of Virginia and the Mayor of 

the District of Columbia. 

{7) There have been no further modifications to the Lease. 

(8) The Lease is in full terce and effect as of the date hereof, and the Airports 

Authority is nut in default under the terms of the Lease. 

(9) The required semi-annual payments due from the Airports Aurhority to the 

United States Treasury have all been made by the Airports Authority by 

wire transfer, with the most recent transfers having been made on the 

following dates: December 6, 2006; June 6, 2007; Decem her 6, 2007; and 

June 8, 2008. To the best of my knowledge, all amounts required to be 

Ex. 17- Raphael Ded. Supp. Def's Mot. Dism. 

Exhibit 3 
Case 1:11-cv-00389-AJT-TRJ Document 9-22 Filed 05/05/11 Page 4 of 4 PageiD# 370 

depmlitml:l by the AUihmfW on a mCllilltl:ty bam in the lease p~~yA!llltlt 

resc:roe acoomtt ha~ been d~ by the Ai~ Aulllhlilti$y. 

(10) The TIJtn ROOI!I.IllldCt••m'!'".lt~r R~ ~ ~Jll'tt oftlle ~~~ 

pr~.thatis·s~!Qthe.·~·lllld··t\lc.op\,'1rltlinl!-~llfid 

impRlmtrmetn.of the DuiJo::s Toll Ro3d .and ~ ~r Rplud o11 the 

~W.IeaU! to. tb,e AiiJ:I<•.•m AillllmtiW .COillllftnllte iUt ~>1'~ 

willliin the ~'jg of the Le9.\IC. 

(11) To the best of my kn0\10ll!!lj;ge, there has not been any brewlh or defult in 

the ~e of any covCillii1U, agu:cm111nt or CODdlitilm staied in the 

Le- that wOillilll affeldt eitheir the validi.W of the lrlllillffirr of rigb!i: and 

o b~ilms rei~ to the Dullel; Toil! Rooodl to the AiJ:nnntls AUII!nmi$y or 

the Ail]pmtts Audmtiyy.l s abiliiW ro comll!twlt the Meilmmil Pr~t. 

(12) The OjXlllltiilm and~ of the Dul1tls Tolil RIW! by the A~ 

AU~Jr durim!g the ~ of the L~ and the ~ A--~ 

co~!iJDn, u~ reYill!II!C oftheToll R<)!;ld, (i) oj'th~.t.fell!mlmll Projellt to 

Dul.leti. Ail)mtt and ·.~.• into .Louclmm COI!IIlW, on !ea.WJlr~, 

inc~Ddiir~g !he d~ofth~ ~ A.iqWt Acc:e&'; H~, and on 

oth!tor. Jl~ rroWihtl) by !he Cqml!IIDl!WI'lllt)l of'\Timfo•iilj, and (ii) 6[ 

~and .lr!dliie inl~sto the Ttlll ~. do not violllle .!)!' 

cotdliJJ.t wilh any len!lS of the Lease or comaitute a defaullt under the 

Lease. 

Witoess my signature this~ day of October 2008. // /? 7J?Att" nr~ 

District of Columbia: 

Washington, DC: 

Mary E. Peters 

Secretary 

The foregoing instrument was acknowledged before me this .:?~ day 

of October 2008, by Pl n-<. f __ ,G _ __t?-=:E:_Ti!'-'<!";~1"'<~~'----------

(title) ~ 

My Commission expires: 

C1/2_e_ 1 ' 

! ,;3,J_/:%!)~ ,/ h"" .. Notary Public ~-l= 

Thelma Bernadette Goldring 0· 

llotaly Public, District of Colt!mbia 

My C&r•mniOn EXPires 06/30/20 11 

Ex. 17- Raphael Decl. Supp. Ders Mot. Dism. 

Exhibit 3