## Montana 

## Association of Counties Defense Services 2717 Skyway Drive, Suite F Helena, MT 59602 (406) 441-5471 Fax: 406-441-5497 Gregory L. Bonilla • Maureen H. Lennon e Mitchell A. Young
December 23, 2015
Office ofthe ChiefCounsel FAAPart 16 Docket Clerk, AGC-600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 

## RECEIVED JAN 

### 5 2016 PART 16 DOCKETS
Re: SaferMedical of Montana, Inc. and GeorgeAckerson v. City of Fort Benton, Montana and Chouteau County, Montana FAA DocketNo. 16-15-12 To whom 

### it may concern: Pursuant to 14 C.F.R 

### § 16.26(b), Chouteau County, Montana (the "County"), through its counsel ofrecord, moves to dismiss the above-filed complaint. The grounds for this Motion are that Complainants lack standing under 14 C.F.R. § 16.3 and 16.23, and failed to engage in good faith efforts to resolve the complaint as required by 14 C.F.R 

### § 16.21. 1. Complainants lack standingto file their complaint. When read together, the definitions of"Complaint" and "Complainant" set forth in 14 C.F.R. 

### § 16.3, require a Complainantto be, "aperson directly and substantially affected by anything allegedly done or omittedto be done by any person in contravention ofany provision ofany Act." Neither ofthe alleged Complainants herein fit that description. As noted in the demand letters attached as Exhibits 1 and 2, Complainants allege that they have suffered economic discrimination. The basis oftheir argument is that they have not been granted the same exclusions for non-aeronautical uses that other airport users have been granted. See Complaint, paragraphs 22 through 45. However, Complainants do not allege that the purported discrimination has affected their business operations or their ability to use the property for properOffice ofthe ChiefCounsel aeronautical purposes. The primary purpose ofthe airport is for aeronautical use and Complainants have suffered no loss ofability to use the airport for its intended purpose. Complainants thus are not "substantially affected" even ifthe alleged discrepancies in non-aeronautical use exist. The only other allegation in the Complaint is that Complainants were granted a lease in contravention ofa 1998 Agreement. See Complaint, paragraphs 14 through 21. The Joint Airport Boardrequested an exemption from the Agreement so that Complainants could keep their current lease with an option to renew. Complaint, Paragraph 50. Ultimately Complainants were advised thatthe current lease would be exempted, butthatno renewal would be allowed due to the 1998 Agreement. Complaint, paragraphs 58 and 59. According to their ownpleading, Complainants have been granted a discretionary exemption from the terms ofthe 1998 Agreement. Their complaint, then, is not thatthey are substantially affectedby "anything allegedly done in contravention of any provision ofany Act", butrather thatthey are substantially affected by enforcement ofaprovision ofan Act. That allegation does not quality as a "Complaint" underthe definitions set forth in 14 C.F.R. § 16.3; therefore, Safer Medical and George Ackerman do not qualifY as Complainants. Their Complaint should be dismissed with prejudice for lack ofstanding. 2. Complainants failed to engage in good faith settlementnegotiations. Complainants filed their complaint on November 18, 2015. Priorto filing that complaint on October21, 2015 Complainants through their attorney sentthe letter attached as Exhibit 1. The letter offered to refrain from filing the complaint ifall members ofthe Choteau County Commission and all members ofthe Joint Airport Boardtendertheir resignations. Complainants' attorney sent a similar letter to the City ofChoteau demanding the resignation ofthe Mayor. See Exhibit 2. 14 C.F.R § 16.2l(a)requires that, "(a) Prior to filing a complaint underthis part, a person directly and substantially affected by the alleged noncompliance shall initiate and engage in good faith efforts to resolve the disputed matter informally with those individuals or entities believed responsible for the noncompliance." [Emphasis added]. Complainants' sole effort at resolution was an unconditional demand that the elected heads ofboththe City and County ofChoteau, along with the Joint Airport Board members, resign within two weeks ofthe demand. The demand is patently unreasonable as it would render the City, County and Board unable to function. Moreover, as noted by the attorney for the City, neitherthe Respondent Chouteau County, Montana's Motion to Dismiss Complainants' Part 16 Complaint Page 2Office ofthe ChiefCounsel FAA complaint process nor any other legal action couldresult in the removal of the named officials from their offices. Complainants proposed a "resolution" which they knew would be rejected out ofhand as the sole method ofsettling their complaint. Their actions clearly were not undertaken in good faith. Since the statute requires good faith efforts priorto filing a complaintthe proper response is for the complaint to be dismissed. For the foregoing reasons Choteau County respectfully requests thatthe abovereferenced Complaint be dismissed with prejudice. Sincerely, 

# l:!fff:i

OM Attorney for Chouteau County, MT Enclosures

Respondent Chouteau County, Montana's Motion to Dismiss Complainants' Patt 16 Complaint Page 3Office ofthe ChiefCounsel Certificate ofService I certify that I have this day servedthe foregoing Respondent Chouteau County, Montana's Motion to Dismiss Complainants' Part 16 Complaint on the following persons atthe following addresses, postage pre-paid: Adrian A. Miller HOLLAND & HART LLP 401 North 31st Street Suite 1500 P.O. Box 639 Billings, Montana 59103-0639
BrianLilletvedt 335 Fourth Avenue P.O. Box 7152 Havre, MT 59501
Office ofthe ChiefCounsel FAA Part 16 Docket Clerk, AGC-600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Dated this 23'ct day ofDecember, 2015.

Respondent Chouteau County, Montana's Motion to Dismiss Complainants' Part 16 Complaint Page 4

## HOLLAND&HART.

October 21,2015

SENT VIA CERTIFIEDMAILANDEMAIL Stephen Gannon Chouteau County Attorney 1309 Franklin Street P.O. Box 459 Fort Benton, MT 59442 Re: Confidential Settlement Offer Subject to Mont. R. Evid.408; MCA §26-1-813 Dear Steve: Adrian A. Miller Phone (406) 896-4612 Fax (406) 206-0081 AAMitler@hollandhart.com

I write on behalfofSafer Medical ofMontana. My client is contemplating bringing a complaint with the FAA alleging that the City, the County, and the Joint Airport Board have violated their Airport Sponsor Assurances, which can be found at: https://www.faa.gov/airports/aip/grant_assurances/media!airport-sponsor-assurances-aip.pdf The basis for this claim is that Safer Medical ofMontana has been treated unequally. We believe that this is a violation ofthe assurance against economic nondiscrimination, Assurance Number 22, among others. In addition, we believe the City, County, and Board have made false statements to the FAA regarding their compliance with the assurances. The purpose ofthis letter is to offer a settlement. Safer Medical ofMontana will not file a civil complaint with the FAA ifthe Chouteau County Commissioners and the members ofthe Joint Airport Board tender their resignations. Please let me know yourresponse byNovember 4, 2015.

AAM/asf 8160600_1

Ho!I<HJd&Hart

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**:4,~,l>l** 252-15-'.i9 www.ho!Lmdh<>rt.com Sincerely,

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EXHIBIT I

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### HOLLAND&HAI-t'T



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October 21, 201 S

SENT VIA CERTIFIED MAILAND EMAIL Jordan Crosby Ugrin, Alexander, Zndick & Higgins, P.C. #'2 Railro!:ld Square: Suite B P.0. Bo' 1746 Urcat Fails. rv!T 59403 Rc: Cnnfidcntial Settlement Offer Subject to Mnnt. R. EYid. 408; MCA § 26-l-813 Adrian'.A<MJIIer Phone (406} 896-•!612 Fax (4DG) :w6-00B1 AAr·liller@hOIIandhnrt,coni ;.:",· j-.;!,':(1-: -·-.'11,;>:_

! write on behalfofSafer Iv1edical oflvlontana. l'vly client is contemplating bringing a

**~nmplaint** with the FAA alleging thut the City, the County, and the Joint Airport Board have viulatcd their /\irport Sponsor Assunmces. which cnn be tOund nt: https:/j\V\\'\\'. !'aiJ,gtlv /::1 irpdns/ aip/

**grant~.**<Jssur<ltlccs/media/uirporl-sponsor-a

**~su**rances-aip.pdf rhc basis for· this c!nim is that Safer lV1cdic..:a! or tvlonUl113

**ha~** been treated unequally. \Ve believe that this is a violation nfthe assurance against economic nondiscrimination, Assurance Number 22, among nthers. In addition, we believe the City. County, and Board have made false statcmcnls to the Fi\A regarding their compliance with the assurances. The purpose ofthis letter is to olkr a sctilcmem. Sater Mctlical orrvlontana will notlile a civil Cl1mplaint with the 1-',,\/\ i!" \·l8yor Rick

**~~lon·is** tenders his

**r~sign:1tion.** Please let me know your response by No\-t2mbet :J.. :2.0l5. Sincere-ly, ( i .·•t

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____. Adrian 1\. Miller !\A?vl!asl'

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