0 

"0: : lj.S. Department 

d~ Transpoftation 

Federal Aviation 

Ac;lministration 

William White, Esq. 

Office of Airport Compliance 

and Field Operations 

BYRNE, KNUDSEN, & WHITE, LLP 

1120 Lincoln Street, Suite 1300 

Denver, Colorado 80203 

Brian A. Magoon, Esq. 

ROBINSON WATERS & O'DORISIO, PC 

1099 18th Street, Suite 2600 

Denver, Colorado 80202 

Robert J. Hill, Esq. 

Acting Montrose County Attorney 

161 South Townsend Avenue 

Montrose, Colorado 81401 

Re: FAADocketNo.l6-08-0l 

Dear Messrs. White, Magoon & Hill: 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Enclosed is a copy of the Director's Determination in accordance with 14 CFR § 16.31 with 

respect to the above referenced Complaint. 

Based on the record in this proceeding regarding Montrose County and the Montrose County 

Building Authority's alleged unreasonable denial of access, unjust economic discrimination 

and granting of an exclusive right at Montrose Regional Airport, the Federal Aviation 

Administration finds that the County and the Building Authority are not in violation of the 

Federal obligations or Federal law, as raised by the Complainant JetA way Aviation, Inc. 

Accordingly, the Complaint is dismissed. The reasons for this decision are set forth in the 

enclosed Director's Determination. 

Sincerely, 

Randall S. Fiertz 

Director, Office of Airport Compliance 

and Field Operations 

Enclosure 
FAA Docket No. 16-08-01 Director's Determination 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

JetAway Aviation, Inc. 

COMPLAINANT 

v. 

Montrose County, Colorado and Docket No. 16-08-01 

the Montrose County Building Authority 

RESPONDENT 

DIRECTOR'S DETERMINATION 

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA), Director of the Office of 

Airport Compliance and Field Operations, to investigate pursuant to the Rules of Practice 

for Federally Assisted Airport Enforcement Proceedings found in Title 14 Code of Federal 

Regulations (CPR), Part 16. 

JetAway Aviation (JetAway/Complainant) filed this formal Complaint pursuant to 14 CPR 

Part 16 against the Board of County Commissioners (BOCC), Montrose County, Colorado 

and the Montrose County Building Authority (County/Respondent/Sponsor), which owns 

and operates the Montrose Regional Airport (Airport) in Montrose County, Colorado. The 

Complainant alleges that the Respondent is in violation of its Federal grant assurances 22, 

Economic Nondiscrimination; and 23, Exclusive Rights by allegedly favoring the 

incumbent full-service FBO, 1 Jet Center Partners (JCP) and disfavoring JetAway in a 

manner that unreasonably denies JetAway's aeronautical access to the Airport and grants a 

prohibited exclusive right to JCP. [FAA Exhibit 1, Item 1, pp. 1-2] 

JetAway and the Respondent were parties to a previous Part 16 proceeding. [See JetAway 

Aviation LLC v Board of Countv Commissioners, Montrose Countv. Colorado, FAA 

Docket No. 16-06-01, (November 6, 2006) (Director's Determination) and FAA Exhibit 1, 

Item 3, exh. A] (2006 JetAway DD) Complainant states that "two years have now 

passed ... and the County has continued its pattern of delay and refusal to negotiate with 

JetAway in good faith with respect to JetAway's proposal to provide FBO services and 

sell aviation fuel on the Airport." [FAA Exhibit 1, Item 1, p. 3] 

1 A fixed-base operator (FBO) is a commercial entity providing aeronautical services such as fueling, 

maintenance, storage, ground and flight instruction, etc., to the public. [FAA Order 5190.6A, Airport 

Compliance Requirements, October 2, 1989, Appendix 5.] 

Page 1 of 50 
FAADocketNo. 16-08-01 Director's Determination 

The Respondent denies these claims. Specifically, the Respondent denies that it is 

violating grant assurance 22. [FAA Exhibit 1, Item 3, p. 8] The County denies that it is 

violating grant assurance 23 or 49 U.S.C. §§ 40103(e) and 47107(a)(4), stating that it has 

identified a site available on the Airport which may be leased for FBO operations in 

accordance with the Director's comments in the 2006 JetAway DD. [FAA Exhibit 1, Item 

3, p. 4] [See Also FAA Exhibit 1, Item 3, exh. A, p. 35] 

Based on the Director's review and consideration of the evidence submitted, the 

administrative record designated as FAA Exhibit 1, the relevant facts, and pertinent law 

and policy, the Director concludes, as set forth herein, that the Respondent is currently not 

in violation of grant assurances 22, Economic Discrimination or 23, Exclusive Rights. 

II. PARTIES 

Montrose Regional Airport (Airport) is a public-use airport owned by Montrose County 

and operated by the Montrose County Board of County Commissioners (BOCC), 

Montrose County, Colorado. The Montrose County Building Authority is the owner of the 

land and included as a co-sponsor of the Airport, having signed AlP grant agreements. 

[FAA Exhibit 1, Item 4, p. 1] Montrose Regional Airport is a primary commercial service 

airport. FAA records indicate the planning and development of the Airport has been 

financed with funds provided by the FAA under the Airport Improvement Program (AlP) 

authorized by the Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. § 

47101, et seq. [See FAA Exhibit 1, Item 18] 

The Complainant, JetAway Aviation leases land from One Creative Place, LLC. JetAway 

may access the Airport (including the taxiing of aircraft through the airport boundaries), 

pursuant to the powers granted by Montrose County in a specific 'through the fence 

agreement'2 assigned to One Creative Place and its tenants, titled "Agreement Authorizing 

Off-Airport Operations at Montrose Regional Airport." (Off-Airport Agreement) [FAA 

Exhibit I, Item 1, exh. 2] JetAway does business at the Airport and provides several 

aeronautical services. [See 2006 JetA way DD; FAA Exhibit I, Item 3, exh. A, pp. 2 & 4] 

However, One Creative Place and JetAway have common ownership. According to the 

Com~lainant's FBO proposal and revised draft settlement agreement, dated November 28, 

2007 , StephenS. Stuhmer offers himself on the signature line as a principle of JetAway 

Aviation, One Creative Place LLC and KMTJ Fuel LLC, located at One Creative Place, 

Montrose, Colorado. [FAA Exhibit 1, Item I, exhs. 6 & 7] JetAway states, in its Reply, 

"JetAway Aviation, LLC and One Creative Place, LLC are two separate legal entities ... 

2 The FAA uses the term 'through-the-fence' operation to refer to an operation that involves the movement 

of aircraft to and from the airfield to a location not owned or controlled by the airport sponsor. Such au 

operation may be commercial or non-commercial. A "through-the fence" (TTF) operation may range from 

only aircraft storage to a full-service fixed-base operation offering the into-plane sale of aviation fuels. 3 In this case, JetAway alleges that the County's failure to accept this November 28, 2007 settlement 

agreement establishes the County's violation of the grant assurances, as discussed herein. 

Page 2 of 50 
FAADocketNo.l6-08-0l Director's Determination 

The two limited liability companies presently do have common ownership .... " [FAA 

Exhibit 1, Item 5, pp. 33-34] In the 2006 JetAway DD, the Director stated that JetAway 

filed an action in Montrose County District Court, "to determine the extent of services that 

may be provided to the general public under the Off-Airport Agreement." [FAA Exhibit 1, 

Item 3, exh. A, p. 6] In its Findings of Fact, Conclusions of Law and Order, that Court 

ordered, "Jetaway can self-fuel aircraft but cannot fuel any other aircraft. Any airplane to 

be self-fueled must be owned and titled to One Creative Place, LLC." [FAA Exhibit 1, 

Item 5, exh. 60, p. 40] It appears that JetAway and/or KMTJ Fuel have the right to selffuel aircraft titled to One Creative Place, LLC. Throughout the multiple court pleadings, 

the parties and the court refer to the plaintiffs as JetAway, stating, "One Creative Place, 

LLC, JetAway, LLC and KMTJ Fuel, LLC (collectively referred to as "JetAway")." [FAA 

Exhibit 1, Item 5, exh. 60, p. 1] The Director adopts the Montrose County District Court's 

practice to refer to One Creative Place, LLC, JetAway, LLC and KMTJ Fuel, LLC, 

collectively as "JetAway." 

III. PROCEDURAL IDSTORY and BACKGROUND 

Complainant's Part 16 Procedural History 

On January 10,2006, JetAway filed formal Complaint, FAA Docket No. 16-06-01, against 

the County with the FAA under 14 CFR Part 16. (2006 JetAway Complaint) [FAA 

Exhibit 1, Item 3, exh. A, p. 7] 

On November 6, 2006, the FAA issued a Director's Determination for FAA Docket No. 

16-06-01 (2006 JetAway DD) [JetAway Aviation LLC v Board of County 

Commissioners. Montrose County, Colorado, FAA Docket No. 16-06-01, (November 6, 

2006) (Director's Determination) and FAA Exhibit 1, Item 3, exh. A], finding that the 

County was not currently in violation of its grant assurances. (2006 JetAway DD) The 

FAA also offered to assist in dispute resolution through mediation. [2006 JetA way DD, 

FAA Exhibit 1, Item 3, exh. A, p. 35] 

FAA engaged in mediation with both parties beginning on March 6, 2007. [FAA Exhibit 

1, Item 1, page 7-8] The FAA mediation ended on November 19,2007. [FAA Exhibit 1, 

Item 1, page 6] The County terminated settlement negotiations by letter dated December 

5, 2007. [FAA Exhibit 1, Item 1, exh. 8] 

On January 25,2008, JetAway filed this Part 16 Complaint, FAA Docket No. 16-08-01. 

[FAA Exhibit 1, Item 1] 

FAA issued its Notice of Docketing, dated February 12,2008. [FAA Exhibit 1, Item 2] 

On March 26, 2008, the Respondent filed its Answer and Motion to Dismiss and an errata 

on April30, 2008. [FAA Exhibit 1, Items 3 & 4] 

Page 3 of 50 
FAADocketNo. 16-08-01 Director's Determination 

On July 14,2008, JetAway filed their Reply to the Respondent's Answer and Motion to 

Dismiss. [FAA Exhibit 1, Item 5] 

On August 15,2008, the Respondent filed its Rebuttal to the Complainant's Reply. [FAA 

Exhibit 1, Item 6] 

In the fall of 2008, the parties continued negotiations in an attempt to settle their dispute. 

[FAA Exhibit 1, Item 17] The parties moved to supplement the record with additional 

pleadings, with evidence, several times through March 3, 2009. [FAA Exhibit 1, Items 7-

12, 14-16] 

The FAA acknowledged the parties' attempts and pleadings, eventually extending the due 

date of the issuance of the Director's Determination to June 30, 2009. [FAA Exhibit 1, 

Items 13, 17, 18] 

Factual Background 

Many of the documents comprising the record for tills Complaint consist of pleadings 

submitted in court proceedings in other venues, including Colorado State Court and United 

States District Court, where action is still pending. Also, as stated, J etA way has filed a 

previous formal Part 16 Complaint on similar grounds. The parties submit extensive draft 

and final plarming documents, some with FAA-approval and some without. The parties 

submit opposing technical studies regarding the layout and operation of the Airport. 

Finally, JetAway submits documents associated with negotiations between the parties in 

FAA-sponsored mediation, prior to and after the filing of the extant 2008 JetAway 

Complaint. 

In its Complaint, JetAway states: "the background has been stated in parties' pleadings 

and the 2006 JetAway DD in FAA Docket No. 16-06-01, which JetAway incorporates by 

reference." [FAA Exhibit I, Item 1, p. 2] 

On August 23, 2001, the County entered into an "Agreement Authorizing Off-Airport 

Operations" (Off-Airport Agreement) with several entities that controlled property 

adjacent to the Airport. This adjacent property, known as "the Park," is on the northern 

boundary of the Airport between the runways. The Off-Airport Agreement specifies that 

any successor in interest to any of the Park owners "shall be entitled to all rights and 

responsible for all liabilities under tills Agreement." It contains a covenant specifying that 

"tills Agreement, and the obligations and benefits of the parties provided herein, shall be 

covenants running with the land, and shall [be J binding upon and inure to the benefit of the 

parties herein, and their respective heirs, successors, and assigns." [FAA Exhibit 1, Item I, 

exh. 2, p. 9] [2006 JetAway DD, FAA Exhibit I, Item 3, exh. A, p. 4] 

On August 4, 2003, the County adopted minimum standards and requirements for the 

provision of commercial aeronautical services at the Airport (2003 Minimum Standards). 

[FAA Exhibit I, Item 1, p. 9 & exh. 9] At the time, a full-service, County-owned, fixedbase operator- MTJ Air Services- served the Airport. The fixed-base operator was 

Page 4 of 50 
FAADocketNo. 16-08-01 Director's Determination 

located on the south end of the apron, west of Runway 13/31. [2006 JetAway DD, FAA 

Exhibit 1, Item 3, exh. A, p. 4] 

In 2004, another entity- One Creative Place, LLC- purchased property withln the Park 

and succeeded to rights under the Off-Airport Agreement. The County executed the 

Assignment of the Off-Airport Agreement in October 2004, effectively giving One 

Creative Place the rights under the original August 23, 2001, Agreement Authorizing OffAirport Operations. [FAA Exhibit 1, Item 1, exh. 2] One Creative Place owns off-airport 

land and facilities and leases certain facilities to several tenants engaged in various 

business activities. JetAway Aviation is one of the tenants of One Creative Place. This 

allowed JetAway to conduct "through-the-fence" aeronautical activities at the Airport. 

[2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 4] 

In 2005, the County decided to privatize fixed-base operations and issued a Request for 

Proposals (RFP) seeking fixed-base operators that complied with the Montrose Regional 

Airport Minimum Standards. The County issued the RFP on April!, 2005. [FAA Exhibit 

1, Item 1, exh. 13] Two entities submitted proposals in accordance with the County's RFP 

and the minimum standards. One was the Complainant, JetAway Aviation; the other was 

Jet Center Partners (also known as Black Canyon Jet Center or JCP). [2006 JetAway DD, 

FAA Exhibit 1, Item 3, exh. A, p. 4] 

On August 15, 2005, the County selected the JCP proposal for negotiation. JetAway's 

proposal was not selected. [2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 4] 

On November 7, 2005, JetAway entered into a noncommercial Land Lease Agreement 

with the County for airport ramp space. The term of the land lease was for 25 years and 

the total area of the leased premises was 272,508 square feet. This area, pursuant to the 

Land Lease Agreement, was not intended for fixed-base operator activities and was 

designated "for the parking and moving of aircraft and for no other purpose." [FAA 

Exhibit 1, Item 1, exh. 1] [2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 4] 

On December 5, 2005, the County amended its minimum standards for land and 

improvements. With tills amendment, the County increased its minimum land 

requirements for a fixed-base operation to 350,000 square feet with 250,000 square feet 

allocated as ramp. It also increased the minimum standards for improvements to require at 

least 27,500 square feet to be designated for fixed-base operator activities. Previously, the 

Airport's Minimum Standards for the Provision of Commercial Aeronautical Services 

provided: (1) the minimum land to be leased for a fixed base operation shall be 125,000 

square feet, and (2) building improvements shall be permanent in nature and shall contain 

at least 15,000 square feet for fixed-base operations. The change in the minimum 

standards was adopted in Resolution No. 80-2005 of the Montrose County Board of 

County Commissioners dated December 5, 2005. [FAA Exhibit 1, Item 1, exhs. 20 & 21] 

[2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, pp. 4-5] 

Also on December 5, 2005, as a result of the August 15, 2005 selection of the JCP 

proposal for FBO services, the County entered into an FBO agreement with JCP. The 

Page 5 of 50 
FAA Docket No. 16-08-01 Director's Determination 

initial term was twenty years with options to extend and rights of first refusal at the end of 

the options, connnencing on January 4, 2006. [FAA Exhibit 1, Item 1, exh. 19] 

On December 9, 2005, JetAway submitted an FBO proposal to the County and requested 

that the County accept its proposal at the next Board of County Commissioners meeting to 

be held on December 19, 2005. This proposal was for JetAway to become a second fixedbase operator. [2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 5} 

On December 20, 2005, the County notified JetAway that consideration of JetAway's 

proposal had been postponed due to specific concerns with the existing agreement 

authorizing off-airport operations. The County also noted that it needed to understand the 

functional use of the existing off-airport facility, review the proposed fixed-base operation 

improvements in terms of the Airport's master plan, review the fixed-base operator 

proposal relative to VOR4 restrictions, determine whether to issue a request for proposals, 

and provide other commissioners an opportunity to participate in the evaluation process. 

[2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 5] 

On December 30, 2005, the County requested the FAA to review and comment on the OffAirport Agreement in relation to the County's FAA grant assurances. [2006 JetAway DD, 

FAA Exhibit 1, Item 3, exh. A, p. 5] 

On January 4, 2006, JCP began providing fixed-base operator services, including the sale 

of aviation fuel. [2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 6] 

Also, on January 4, 2006, JetAway and One Creative Place filed a Complaint for 

Declaratory Judgment in Montrose County District Court. The action was filed to 

determine the extent of services that may be provided to the general public under the OffAirport Agreement as well as the 2004 Assigrunent of that Agreement. KMTJ Fuel, LLC, 

an affiliate or related entity of One Creative Place and JetA way, also filed in Montrose 

County District Court seeking declaratory relief to perform off-airport through-the-fence 

fixed-base operations, including fueling. [2006 JetAway DD, FAA Exhibit 1, Item 3, exh. 

A, p. 6 and Item 3, exh. E] 

The County filed an action for Injunctive Relief against JetAway, One Creative Place, and 

KMTJ Fuel, LLC, requesting the Court to enjoin those entities permanently from offering 

any services on the off-airport property that are not permitted by the Off-Airport 

Agreement. JetAway and the County's cases both address the same central issue, which is 

the extent of services that JetA way and other Park owners and tenants may provide to the 

general public on the off-airport property under the Off-Airport Agreement. [2006 

JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 6] 

As stated above, the County did not accept JetAway's December 2005 proposal to become 

a second FBO on the Airport at its location adjacent to the through-the-fence access point. 

Therefore, on January 10, 2006, JetA way filed its 2006 formal Complaint, FAA Docket 

No. 16-06-01, against the County with the FAA under 14 CPR Part 16 alleging the County 

4 A VORis a ground-based navigational aid. 

Page 6 of 50 
FAADocketNo.l6-08-0l Director's Determination 

had granted a prohibited exclusive right to JCP by failure to act on JetAway's proposal. 

(2006 JetAway Complaint) [FAA Exhibit 1, Item 3, exh. A, p. 7] 

In the County's February 2006 motion for a temporary restraining order, the County 

requested, among other things, that the Court enjoin JetAway from fueling aircraft and 

providing fixed-base operator services. The Court held a hearing on the motion on 

February 15 and 17, 2006, and issued an Order on February 17. The District Court for 

Montrose County, in response to a request for a temporary restraining order, issued an 

Order on AprillO, 2006, which was effective as of February 17, 2006. The Court was 

requested, inter alia, to restrain JetAway and its affiliates from providing fixed-base 

operator services at Montrose, and from interfering with JCP's FBO services. The Court 

reviewed the Off-Airport Use Agreement between JetAway and the County and found that 

JetAway was precluded from fueling any aircraft that are not owned by JetAway. As a 

result, the Court took the position that JetAway could do what it did before, but could not 

add fueling and fixed-base operator services not covered by the Off-Airport Agreement. 

[2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 6] 

The Court issued an Order temporarily restraining JetAway from fueling to preserve the 

status qno. Additionally, the Court issued an Order on April!!, 2006 consolidating the 

pending cases, permitting intervention, and denying a stay of the proceedings. [2006 

JetAway DD, FAA Exhibit 1, Item 3, exh. A, page 6] 

On August 5, 2006, JetAway requested a lease ofthe South Tract adjacent to its off-airport 

parcel consisting of 187,395 square feet. [FAA Exhibit 1, Item 1, exh. 25] 

In November of 2006, the Court issued a clarifying Order that added to and clarified the 

temporary restraining order. This Order prohibited JetAway from advertising services that 

it had not been authorized by the Authority to provide. JetAway continued to advertise 

itself as an FBO and use the AvFuellogo. JetAway was found to be in contempt of court 

regarding its advertising practices, and a remedial contempt order was issued. [FAA 

Exhibit 1, Item 5, exhibit 60, p. 19] 

On March 6, 2007, the parties and the FAA commenced mediation. The process was 

conducted through the FAA's Office of the Chief Counsel, Administrative and Alternative 

Dispute Resolution Division. [FAA Exhibit 1, Item 3, exh. F] It was not part of the Part 16 

process. The FAA's participation in the mediation was governed by an agreement signed 

by the mediator and the parties in March 2007, which states, "mediation is a confidential 

process." [FAA Exhibit 1, Item 3, exh. F, para. 5] The agreement also states, "no party 

shall be bound by anything said or done at the mediation uuless a written settlement is 

reached and executed by all necessary parties." [FAA Exhibit 1, Item 3, exh. F, para. 6] 

On November 16,2007, the County submitted its fmal settlement agreement to JetAway, 

which was rejected. [FAA Exhibit 1, Item 1, exh. 5] JetAway responded with its version 

of a settlement agreement on November 28, 2007, which the County rejected. [FAA 

Exhibit 1, Item 1, exh. 6] The County terminated settlement negotiations by letter to 

JetAway on December 5, 2007. [FAA Exhibit 1, Item 1, exh. 8] 

Page 7 of 50 
FAA Docket No. 16-08-01 

Director's Determination 

On June 30, 2008, the District Court, Montrose County, Colorado issued its "Findings of 

Fact, Conclusions of Law and Order," that consolidated and ruled on the three separate 

lawsuits. The District Court ordered that JetAway can self-fuel its aircraft but cannot fuel 

any other aircraft. In addition, any self-fueling must comply with the Minimum 

Standards, must be from a pump with a meter system able to accurately calculate the fuel 

flowage, and is subject to the uniform fuel flowage fee established by the County. The 

Court also found that JetAway can provide towing, crew and passenger lounge facilities, 

public restrooms and telephone, loading and unloading, hangar storage, and aircraft 

maintenance. Although the Order permits JetAway to conduct these FBO activities, it 

must comply with the Airport's Minimum Standards. The Court also said tbat JetAway 

must apply and pay for an access permit. Upon application and payment oftbe fee, the 

County is obligated to execute a written document establishing and granting the access 

right as a property right appurtenant to JetAway's off-Airport parcel. The Court also 

terminated the Land LeaseAgreement.5 [FAA Exhibit 1, Item 5, exh. 60, pp. 40-42] 

The parties continued negotiations in the fall of 2008 in an attempt to settle their dispute, 

but their efforts were not successful. [FAA Exhibit 1, Item 17] The parties each moved to 

supplement the record with additional evidence several times through March 3, 2009. 

IV. ISSUES 

The Complainant states that, "The County has unjustly discriminated against Complainant 

JetAway and granted exclusive rights to Jet Center Partners in violation of Grant 

Assurances 22 and 23."6 [FAA Exhibit 1, Item 1, p. 21] In JetAway's 30 counts, within 

two broad allegations, 7 it raises the issues of the granting of an exclusive right to JCP by 

means of land leases with JCP and by means of uureasonable terms imposed upon 

JetAway's plan to offer commercial services, including aeronautical fueling; and the 

unjust economic discrimination against JetAway by alleged preference to JCP. JetAway 

also raises issues of errors in the County's Airport Layout Plan in its Reply [FAA Exhibit 

1, Item 5, p. 55] and questions Rights and Powers granted to JCP in the form of a right of 

first refusal term in JCP's lease. [FAA Exhibit 1, Item 1, p. 27] Considering the above, 

the FAA has determined that the following issues require analysis in order to provide a 

complete review of the Respondents' compliance with applicable Federal law and policy: 

5 

JetAway entered mto the Montrose Regional Airport Land Lease Agreement on November 7, 2005. The 

use of the ramp area premises was limited to parking and movmg of aircraft, and FBO services were not 

permitted. 

The Complainant cites the applicable Federal law. (FAA Exhibit I, Item 1, p. 2] 

7 The burden of proof lies with the Complamants. Complamants who file 1mder 14 CFR Part 16 shall 

provide a concise but complete statement of the facts relied upon to substantiate each allegation. [See 14 

CPR § 16.23(b)(3)] Complainants will not be deemed to meet this burden simply because they have 

submitted volumes of pages ill exhibits if they have fitiled to explain how the individual exhibits support 

specific allegations. [SeeM. Daniel Carey and Cliff Davenport v. Afton-Lincoln County Municipal Air;port 

Jomt Powers Board, FAA Docket No. 16-06-06, (January 19, 2007) (Director's Determination), page 55] 

Page 8 of 50 
FAA Docket No. 16-08-01 Director's Determination 

1. Whether the County has violated grant assurance 5, Preserving Rights and Powers. 

2. Whether the County has violated grant assurance 29, Airport Layout Plan. 

3. Whether the County has granted an exclusive right for the use of the Airport in 

violation of grant assurance 23, Exclusive Rights, 49 U.S.C. § 401 03( e) and 49 

U.S.C. § 47107(a)(4) by means ofland leases to Jet Center Partners (JCP). 

4. Whether the County's actions with regard to JetAway's proposal for a FBO 

business at the Airport constitute the constructive granting of an exclusive right by 

means of an unreasonable denial in violation of grant assurance 23, Exclusive 

Rights, 49 U.S.C. § 40103(e) and 49 U.S.C. § 47107(a)(4). 

5. Whether the County has provided more favorable treatment to JCP with regard to 

retail aircraft services in a manner that unjustly discriminates against JetAway in 

violation of Federal grant assurance 22, Economic Nondiscrimination, 49 U.S.C. 

§ 47107(a). 

V. APPLICABLE FEDERAL LAW AND FAA POLICY 

The Federal role in civil aviation has been augmented by various legislative actions that 

authorize programs for providing Federal funds to local communities for the development 

of airport facilities. In each such program, the airport sponsor assumes certain obligations 

to maintain and operate its airport facilities safely and efficiently and in accordance with 

specified conditions. Commitments assumed by airport sponsors in grant agreements are 

important factors in maintaining a high degree of safety and efficiency in airport design, 

construction, operation and maintenance, as well as ensuring the public reasonable 

aeronautical access. 

Title 49 U.S.C. § 47101, et seq., provides for Federal airport financial assistance for the 

development of public-use airports under the Airport Improvement Program (AlP) 

established by the Airport and Airway Improvement Act of 1982, as amended. Title 49 

U.S.C. § 47107, et seq., sets forth assurances to which an airport sponsor agrees as a 

condition of receiving Federal financial assistance. Upon acceptance of an AlP grant, the 

assurances become a binding contractual obligation between the airport sponsor and the 

Federal government. The assurances made by airport sponsors in AlP grant agreements 

are important factors in maintaining a viable national airport system. 

Airport Sponsor Assurances 

As a condition precedent to providing airport development assistance under the Airport 

Improvement Program, 49 U.S.C. § 47107, et seq., the Secretary of Transportation and, by 

extension, the FAA must receive certain assurances from the airport sponsor. Title 49 

U.S.C. § 47107(a) sets forth the statutory sponsorship requirements to which an airport 

sponsor receiving Federal financial assistance must agree. 

Page 9 of 50 
FAA Docket No. 16-08-01 Director's Determination 

The FAA has a statutory mandate to ensure that airport owners comply with these sponsor 

assurances.' FAA Order 5190.6A, Airport Compliance Requirements (FAA Order 

5190.6A), issued on October 2, 1989, provides the policies and procedures to be followed 

by the FAA in carrying out its legislatively mandated functions related to Federally 

obligated airport owners' compliance with their sponsor assurances. The FAA considers it 

inappropriate to provide Federal assistance for improvements to airports where the 

benefits of such improvements will not be fully realized due to inherent restrictions on 

aeronautical activities. The following grant assurances are relevant to this Complaint: 

Grant Assurance 5, Preserving Rights and Powers 

Grant Assurance 5, Preserving Rights and Powers, implements the provisions of Title 49 

U.S.C. § 47107, and requires, in pertinent part, that the sponsor of a Federally obligated 

airport: 

" ... will not take or permit any action which would operate to deprive it of any of the 

rights and powers necessary to perform any or all of the terms, conditions, and 

assurances in the grant agreement without the written approval of the Secretary, 

and will act promptly to acquire, extinguish or modifY any outstanding rights or 

claims of right of others which would interfere with such performance by the 

sponsor. This shall be done in a manner acceptable to the Secretary. " 

The Order describes the responsibilities under Grant Assurance 5 assumed by the owners 

of public-use airports developed with Federal assistance. Among these is the responsibility 

for enforcing adequate rules, regulations, or ordinances as are necessary to ensure the safe 

and efficient operation of the airport. [See FAA Order 5190.6A, Sec. 4-7 & 4-8.] 

Grant Assurance 22, Economic Nondiscrimination 

The owner of any airport developed with Federal grant assistance is required to operate the 

airport for the use and benefit of the public. Federal grant assurance 22, Economic 

Nondiscrimination, (Assurance 22) deals with both the reasonableness of airport access 

and the prohibition of adopting unjustly discriminatory conditions as a potential for 

limiting access. Assurance 22 of the prescribed sponsor assurances implements the 

provisions of 49 U.S.C. § 47107(a)(l) through (6), and requires, in pertinent part: 

[The airport owner or 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. [Assurance 22(a)] 

8 See, e.g., the Federal Aviation Act of 1958, as amended and recodified, Title 49 U.S.C. §§ 40101,40113, 

40114, 46101,46104,46105,46106, 46110; and the Akport and Airway Improvement Act ofl982, as 

amended and recodified, Title 49 U.S.C. §§ 47105(d), 47106(d), 47107(k), 47107(1), 47111(d), 47122 

Page 10 of 50 
FAA Docket No. 16-08-01 Director's Determination 

Each fixed-based operator at the airport shall be subject to the same rates, fees, 

rentals, and other charges as are uniformly applicable to all other fixed-base 

operators making the same or similar uses of such airport and utilizing the same or 

similar facilities. [Assurance 22( c)] 

The sponsor may establish such reasonable, and not unjustly discriminatory, 

conditions to be met by all users of the airport as may be necessary for the safe and 

efficient operation of the airport. [Assurance 22 (h)] 

The sponsor may prohibit or limit any given type, kind or class of aeronautical use 

of the· airport if such action is necessary for the safe operation of the airport or 

necessary to serve the civil aviation needs of the public. [Assurance 22(i)] 

Subsection (h) qualifies subsection (a), and subsection (i) represents an exception to 

subsection (a) to permit the sponsor to exercise control of the airport sufficient to preclude 

unsafe and inefficient conditions that would be detrimental to the civil aviation needs of 

the public. 

In all cases involving restrictions on airport use imposed by airport owners for safety and 

efficiency reasons, the FAA will make the final determination on the reasonableness of 

such restrictions when those restrictions deny or limit access to, or use of, the airport. 

[FAA Order 5190.6A, Section 4-8] 

Grant Assurance 23, Exclusive Rights 

Federal grant assurance 23, Exclusive Rights, (Assurance 23) implements the provisions of 

49 U.S.C. §§ 40103(e) and 47107(a)(4), and requires, in pertinent part, that the owner or 

sponsor of a Federally obligated airport: 

... will permit no exclusive right for the use of the airport by any persons providing, 

or intending to provide, aeronautical services to the public.... It fUrther agrees that 

it will not, either directly or indirectly, grant or permit any person, firm, or 

corporation, the exclusive right at the airport to conduct any aeronautical 

activities. [Assurance 23] 

While public-use airports may impose qualifications and minimum standards upon those 

who engage in aeronautical activities, FAA has taken the position that the application of 

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

manner may constitute the constructive grant of an exclusive right. Courts have found the 

grant of an exclusive right where a significant burden has been placed on one com,retitor 

that is not placed on another. [See e.g. Pompano Beach v FAA, 774 F2d 1529 (11 Cir, 

1985)] An owner or sponsor is under no obligation, however, to permit aircraft owners to 

introduce onto the airport equipment, personnel, or practices which would be unsafe, 

unsightly, detrimental to the public welfare, or which would affect the efficient use of 

airport facilities. [FAA Order 5190.6A, Section 3-9 (e)] 

Page 11 of 50 
FAADocketNo.16-08-0l Director's Determination 

The FAA has updated exclusive rights guidance in FAA Advisory Circular 150/5190-6 

Exclusive Rights at Federally-Obligated Airports, January 4, 2007, stating: 

An exclusive rights violation can occur through the use of leases where, for example, 

all the available airport land and/or facilities suitable for aeronautical activities are 

leased to a single aeronautical service provider who cannot put it into productive 

use within a reasonable period of time, thereby denying other qualified parties the 

opportunity to compete to be an aeronautical service provider at the airport. An 

airport sponsor's refusal to permit a single FBO to expand based on the sponsor's 

desire to open the airport to competition is not a violation of the grant assurances. 

Additionally, an airport sponsor may exclude an incumbent FBO from participating 

under a competitive solicitation in order to bring a second FBO onto the airport to 

create a more competitive environment. [Excusive Rights AC, Section 1.3(b )(3)] 

Grant Assurance 24, Fee and Rental Structure 

Grant assurance 24, Fee and Rental Structure, addresses fees the owner or sponsor levies 

on airport users in exchange for the services the airport provides. 

Title 49 U.S.C. § 47107(a)(13) requires, in pertinent part, that the owner or sponsor of a 

Federally obligated airport "will maintain a schedule of charges for use of facilities and 

services at the airport that will make the airport as self-sustaining as possible under the 

circumstances existing at the airport." 

Grant assurance 24 satisfies the requirements of§ 47107(a)(13). It provides, in pertinent 

part, that the owner or sponsor of a Federally-obligated airport agrees to establish a fee 

and rental structure that will make the airport as self-sustaining as possible under the 

circumstances existing at the particular airport, taking into account such factors as the 

volume of traffic and economy of collection. This sponsor will maintain a fee and rental 

structure consistent with assurances 22, Economic Nondiscrimination, and 23, Exclusive 

Rights. The intent of the assurance is for the airport operator to charge fees that are 

sufficient to cover as much of the airport's costs as is feasible. 

Moreover, the Order states that the owner or sponsor's obligation to make an airport 

available for public use does not preclude the owner or sponsor from recovering the cost 

of providing the facility. The owner or sponsor is expected to recover its costs through the 

establishment of fair and reasonable fees, rentals, or other user charges that will make the 

airport as self-sustaining as possible under the circumstances existing at the particular 

airport. [See FAA Order 5190.6A, Section4-14(a).] 

Grant Assurance 29, Airport Layout Plan 

Grant Assurance 29, Airport Layout Plan (ALP), implements the provisions of 49 U.S.C. 

§ 47107(a)(16) by requiring an airport sponsor to keep up-to-date the ALP. Specifically, 

Grant Assurance 29 requires the airport sponsor to show on its ALP the boundaries of the 

airport and all proposed additions thereto, the location and nature of all existing and 

Page 12 of 50 
FAA Docket No. 16-08-01 Director's Determination 

proposed airport facilities and structures (such as runways, taxiways, aprons, terminal 

buildings, hangars and roads), and the location of all existing and proposed 

nonaeronautical uses. 

Airport layout plans and amendments, revisions, or modifications thereto, are subject to 

the approval of the FAA. What this means from a practical standpoint is that an airport 

sponsor must not make or permit any changes or alterations in the airport or any of its 

facilities which are not in conformity with the airport layout plan. The FAA may require 

elimination, relocation or mitigation of any change to the airport that is not approved by 

the FAA on the ALP and that adversely affects the safety, utility or efficiency of any 

Federally improved property. 

Airport Agreements Granting "Through-the-Fence" Access 

The Federal obligation to make an airport available for the use and benefit of the public 

does not impose any requirement to permit access by aircraft from adjacent property.9 

However, there are times when the sponsor will enter into an agreement that permits 

access to the airfield by aircraft based on land adjacent to, but not a part of, the airport 

property. This type of an arrangement has frequently been referred to as a "through-thefence" operation even though a perimeter fence may not be visible. 

Because through-the-fence arrangements can place an encumbrance upon the airport 

property and reduce the airport's ability to meet its Federal obligations, as a general 

principal the FAA does not support agreements that grant access to the public landing area 

by aircraft stored and serviced off-site on adjacent property. The existence of such an 

arrangement could conflict with the sponsor's Federal obligations unless the sponsor 

retains the legal right to require the offsite property owner or occupant to conform in all 

respects to the requirements of any existing or proposed grant agreement or Federal 

property conveyance obligation. [FAA Order 5190-6A, Section 6-6] 

The development of aeronautical enterprises on land off-airport and not controlled by the 

sponsor can create problems. For example, it can result in an economic competitive 

advantage for the "through-the-fence" operator to the detriment of on-airport tenants. To 

equalize this imbalance, the sponsor should obtain from any off-airport enterprise or entity 

a fair return for its use of the airfield by assessing access fees from those entities having 

"though-the-fence" access. 

The airport sponsor must not discriminate against those aeronautical users within the 

airport. However, the airport may also charge any fee it sees fit to those outside the 

airport. In addition, the airport sponsor is entitled to seek recovery of initial and 

continuing capital and operating costs of providing a public use airfield. Moreover, 

special safety and operational requirements should be incorporated into any access 

9 See FAA Order 5190.6A, Section 6-6(a). Based on this, an all-port sponsor may simply deny "throughthe-fence" access if it so chooses. Since federal obligations do not require that access be granted under 

these circumstances, users having access to the airport under a '~hrough-the-fence" agreement are not 

protected by the airport sponsor's federal obligations to the FAA. 

Page 13 of 50 
FAA Docket No. 16-08-01 Director's Determination 

agreement to ensure that the through-the-fence access does not complicate the control of 

vehicular and aircraft traffic or compromise the security of the airfield operations area. 

[FAA Order 5190-6A, Section 6-6] 

Finally, the existence of an arrangement granting access to a public landing area from offsite locations contrary to FAA recommendations shall be reported to the FAA along with 

details on the circumstances. If the FAA determines that the existence of such an 

agreement circumvents the attainment of the public benefit for which the airport was 

developed, the owner of the airport will be notified that the airport may be in violation of 

its agreements with the Govermnent. [FAA Order 5190-6A, Section 6-6] 

The FAA Airport Compliance Program 

The FAA discharges its responsibilities for ensuring airport owners' compliance with their 

Federal obligations through its Airport Compliance Program. The FAA's airport 

compliance efforts are based on the contractual obligations an airport owner accepts when 

receiving Federal grant funds or the transfer of Federal property for airport purposes. 

These obligations are incorporated in grant agreements and instrmnents of conveyance in 

order to protect the public's interest in civil aviation and to ensure compliance with 

Federal law. 

The FAA Airport Compliance Program is designed to ensure the availability of a national 

system of safe and properly maintained public-use airports operated in a marmer consistent 

with the airport owners' Federal obligations and the public's investment in civil aviation. 

The Airport Compliance Program does not control or direct the operation of airports. 

Rather, it monitors the administration of the valuable rights pledged by airport sponsors to 

the people of the United States in exchange for monetary grants and donations of Federal 

property to ensure that the public interest is being served. FAA Order 5190.6A sets forth 

policies and procedures for the FAA Airport Compliance Program. The Order is not 

regulatory and is not controlling with regard to airport sponsor conduct. Rather, it 

establishes the policies and procedures to be followed by FAA personnel in carrying out 

the FAA's responsibilities for ensuring airport compliance. It provides basic guidance for 

FAA personnel in interpreting and administering the various continuing commitments 

made to the United States by airport owners as a condition of receiving a grant of Federal 

funds or the conveyance of Federal property for airport purposes. The Order analyzes the 

various obligations set forth in the standard airport sponsor assurances, addresses the 

nature of those assurances, addresses the application of those assurances in the operation 

of public-use airports, and facilitates interpretation of the assurances by FAA personnel. 

The FAA Compliance Program is designed to achieve voluntary compliance with Federal 

obligations accepted by owners and/or operators of public-use airports developed with 

F AA-adrninistered assistance. Therefore, in addressing allegations of noncompliance, the 

FAA will make a determination as to whether an airport sponsor is currently in 

compliance with the applicable Federal obligations. Consequently, the FAA will consider 

the successful action by the airport to cure any alleged or potential past violation of 

Page 14of50 
FAADocketNo.l6-08-0l Director's Determination 

applicable Federal obligation to be grounds for dismissal of such allegations. [See e.g. 

Wilson Air Center v. Memphis and Shelby County Airport Authority, FAA Docket No. 

16-99-10, (August 30, 2001) (Final Decision and Order)] 

Enforcement procedures regarding airport compliance matters may be found at FAA Rules 

of Practice for Federally Assisted Airport Enforcement Proceedings (14 CFR Part 16). 

These enforcement procedures were published in the Federal Register (61 FR 53998, 

October 16, 1996) and became effective on December 16, 1996. 

VI. ANALYSIS AND DISCUSSION 

This Complaint is primarily an allegation that Montrose County has granted an unlawful 

exclusive right to the Airport's FBO, Jet Center Partners (JCP), by the circumstance of the 

Airport layout and land leases (allegation A, counts 1-5, 8, 9) and by the intent to deny 

access to others by means of unreasonable terms (allegation A, counts 6 & 7). Also, 

JetAway alleges that the County has failed to accommodate JetAway's proposed FBO 

business plan at its preferred airport location (Airpark adjacent location) to such an extent 

as to unjustly discriminate against JetAway (allegation B). [FAA Exhibit 1, Item 1, p. 2] 

The County states: 

The County sought to accommodate JetAway 's request by resolving the through-thefence issues and without exposure for the County's residents and the expense of 

further litigation. The County was unable to do so. By identifYing and making 

available the 9. 612-acre site, the County is confirming its position from the onset: 

There is no exclusive right. [FAA Exhibit 1, Item 3, pp. 4-5] 

The allegations, arguments and evidence in this case are extensive and complex. The 

parties dispute each others' facts and question each others' motives, evidence and experts. 

Also, the parties have been engaged in extensive litigation in state court and United States 

District Court. [See FAA Exhibit 1, Item 1, exh. 3 and Item 6, exh. QQ, p.3] JetAway 

filed a Formal Part 16 Complaint in 2006 with similar allegations to the extant Complaint. 

The Director dismissed that Complaint on November 7, 2006. [FAA Exhibit 1, Item 3, 

exh. A] The Director understands that the Complainant and the Respondent may be 

expecting the FAA to find facts on various questions indirectly related to matters under 

FAA's jurisdiction. However, as is appropriate for a FAA Part 16 investigation, the 

Director must focus on questions of the Respondent's compliance with its grant assurances 

and Federal law. We will find facts relevant when they pertain to the question of the 

Respondent's compliance with its Federal obligations, relying on FAA law, policy and 

Part 16 precedent. 

Page 15 of 50 
FAADocketNo.l6-08-0l Director's Detennination 

Motions and Preliminary Matters 

Motion to Dismiss: Building Authority 

The Complainant, JetAway, included the Montrose County Building Authority as a 

named-respondent in this case. JetA way had not included the Building Authority in its 

2006 JetAway Complaint. In correcting an original error in its Answer, the Respondent 

admits that the Montrose County Building Authority has signed grant agreements, and 

accepted the associated grant obligations as the owner of the Airport property. [FAA 

Exhibit 1, Item 4] Therefore, the FAA simply accepts that the Montrose County Building 

Authority and Montrose County are co-sponsors of the Airport and will simply refer to 

them, collectively, as the Respondent, County or Sponsor. The County moved to dismiss 

the Montrose County Building Authority from the Complaint, because JetAway had not 

specifically engaged the Building Authority in informal resolution. JetAway and the 

County have an extensive record of attempts to resolve this ongoing dispute, including the 

prior 2006 JetAway Complaint and FAA-sponsored mediation. While the parties may 

continue to argue the importance of the relationship between Montrose County and the 

Montrose County Building Authority, it is the Director's view that JetAway's ongoing 

dialogue with airport management is sufficient for purposes of conducting informal 

resolution. 

The County's motion to dismiss the Montrose County Building Authority is denied. 

Motion to Dismiss: Confidentiality 

The County moves to dismiss the Complaint because JetAway violated the confidentiality 

of the FAA -sponsored mediation in its pleadings. Participation in the mediation was 

governed by an agreement signed by the mediator and the parties in March 2007, which 

states, "mediation is a confidential process." [FAA Exhibit 1, Item 3, exh. F, para. 5] The 

agreement also states, "no party shall be bound by anything said or done at the mediation 

unless a written settlement is reached and executed by all necessary parties." [FAA 

Exhibit 1, Item 3, exh. F, para. 6] The mediation is separate and apart from this Part 16 

proceeding. 

In this case, JetAway has provided a snapshot in the form of JetAway's November 2007 

Settlement Offer. [FAA Exhibit 1, Item 1, exh. 5] The County responds with a motion to 

dismiss the Complaint. 

The County's motion to dismiss the Complaint over confidentiality breaches of the 

mediation is denied. The mediation does not control the Part 16 proceedings. 

Nevertheless, the confidentiality of the mediation has been breached and the documents 

are now in the public domain. As such the Director will consider the documents in this 

proceeding. 

Page 16 of 50 
FAADocketNo. 16-08-01 Director's Determination 

Motions to Supplement Record 

Each of the parties has submitted Motions to Supplement the Record. Complainant filed 

multiple motions to supplement the record with additional exhibits and two responses 

which included additional exhibits. [FAA Exhibit 1, Item 7 (Exhibit 73), Item 8 (Exhibits 

74 and 75), Item 12 (Exhibit 76), Item 14 (Exhibit 76(a), and Item 16 (Exhibit 77)] 

Respondent filed multiple motions to supplement the record with multiple exhibits. [FAA 

Exhibit 1, Item 9 (Exhibits TT, UU, VV, WW, XX), Item 11 (Exhibits YY and ZZ), and 

Item 15 (Exhibit AAA)] The Director issued two orders acknowledging the parties' 

multiple filings to supplement the record. [FAA Exhibit I, Item 13 and Item 17] 

Clearly this extensive number of supplemental filings is highly unusual in a Part 16 

proceeding. Nonetheless, motions are the appropriate means to make application for an 

order or ruling not otherwise specifically provided for in the regulation. [See 14 CPR 

§ 16.19(a)] The requisite procedural requirements have been met. The Director has 

reviewed the filings and will permit the parties to supplement the record with the 

requested exhibits. Accordingly, the exhibits contained in the supplemental filings, 

including motions and answers, will be considered by the Director in this determination 

and are included in the Index of the Administrative Record. 

Proprietary Rights, Federal Obligations and Negotiations 

One of the key fundamental principles at issue here is the proprietary rights of an airport 

sponsor. This was at issue in the 2006 JetAway DD. Succinctly, Federal obligations limit 

a sponsor's proprietary rights, but do not eliminate them. [See, Kent J. Ashton and 

Jacquelin R. Ashton v. Citv of Concord, North Carolina, FAA Docket No. 16-02-01 

(Director's Determination Issued August 22, 2003) (Final Agency Decision Issued 

February 27, 2004) Ashton III, DD, p. 27] 

One example of where an airport sponsor may exercise its proprietary rights is to protect 

itself as a going concern in the face of litigation. 10 Another way in which an airport 

sponsor may exercise its proprietary rights is to pursue a range of aeronautical services to 

serve the needs of the aviation community. 11 A third way in which an airport sponsor may 

reasonably exercise its proprietary rights is to plan for the long-term development, 

10 In Kent J. Ashton and Jacquelin R. Ashton v. Citv of Concord, FAA Docket No. 16-02-01 (Director's 

Determination Issued August 22, 2003) (Final Agency Decision Issued February 27, 2004), the Director 

acknowledges, "it is the Complainants' right to pursue complaints and protect their interest (however) it is 

the Respondent's right to protect itself from the possibility of future costly and frivolous litigation." 

Continuing, the Director found that an Airport sponsor: " ... was not obligated to expose itself to fUture 

lawsuits by entering into a business agreement with (Complainant). Given (Complainant's) prior history of 

lawsuits and FAA complaints, plus a threat of future litigation" [See, Ashton III DD, Page 27] 

11 In Self Serve Pumps v Chicago Executive Airport, FAA Docket No. 16-07-02 (Director's Determination 

Issued March 17, 2008), the Director stated, "Clearly, the Airport management believes that its bundling of 

associated services with the sale of fuel serves the interests of the public in civil aviation. This is its 

primary mission. ... In the end, the evidence presented by the Complainant is insufficient to eclipse the 

Airport's proprietary discretion to make management decisions in the best aeronautical interests of the 

public, balanced with the best business interests of the Airport as a going concern. " [SSPumps, DD, p.25] 

Page 17 of 50 
FAA Docket No. 16-08-01 Director's Determination 

marketing and layout of its airport to ensure its utility and self-sustainability. 12 Finally, an 

airport sponsor may exercise its proprietary rights to protect itself as a going concern by 

limiting, mitigating or eliminating aeronautical access from adjacent off-airport property 

'through-the-fence.' 13 In some cases, a sponsor's Federal obligation under grant assurance 

5, Preserving Rights and Powers, might prevent a sponsor from accommodating the 

wishes of a particular on-airport, or through-the-fence proponent. 

The negotiations in the FAA-sponsored mediation were not a negotiation of the County's 

state of compliance with its Federal obligations or part of this Part 16 proceeding. The 

FAA had not found the County to be in non-compliance with its Federal obligations. [FAA 

Exhibit 1, Item 3, exh. A] 

The Director has already observed that the County might be able to structure some kind of 

an agreement or agreements at the Airport to allow JetAwayto sell fuel in a manner within 

the bounds of its Federal obligations. The Director stated: 

Additionally, the Director believes that all of the issues in this case can be resolved 

informally in a manner consistent with the County's Federal obligations. Since both 

the County and JCP have stated that an additional FBO at the Airport is feasible, 

that it appears that S1.(/ficient airport property is available to accommodate a second 

FBO, and the County appears to have concluded on March 20, 2006 that JetAway's 

proposal meets all Minimum Standards, successful resolution appears to be 

possible. [FAA Exhibit 1, Item 3, exh. A, p. 35] 

However, the Director also stated: 

... the Federal obligation to make an airport available for the use and benefit of the 

public does not impose any requirement to permit access by aircraft from adjacent 

property and the airport sponsor may, from FAA's perspective, simply deny 

"through-theftnce" access if it so chooses. Based on this, Complainant's right to 

provide any services from its off-airport location is not a matter protected by the 

County's Federal obligations. Additionally, the Off-Airport Agreement can lead to 

violations of the airport's Federal obligations. [FAA Exhibit 1, Item 3, exh. A, p. 

13] 

In addition, the Director stated other options, by pointing out that an "aerial view and the 

Airport Layout Plan clearly show that there are potential locations for FBO facilities at 

the Airport in addition to JCP, albeit the area may not be adjacent to JetAway's current 

off-airport facilities ..... The fact that potential locations for FBO operations are not 

located next to JetAway's current off-Airport facility should not be an issue since JetAway 

12 In Thermco Aviation v Los Angeles, FAA Docket No. 16-06-07 (Final Agency Decision Issued 

December 17, 2007), the Associate Administrator states: "The very nature of lease agreements is that they 

are for a definite term, so that both parties may change plans and arrangements to suit their respective 

interests. Federal obligations do not prevent this sponsor from exercising such change ... In fact, the terms 

~f the lease agreement are the primary protection of tenants for continued occupancy of a leasehold, not 

the grant assurances." [Thermco, FAD, p. 27] 

"See 2006 JetAway DD. 

Page 18 of 50 
FAADocketNo. 16-08-01 Director's Determination 

has argued that its proposed on-Airport proposal is independent from its off-airport 

operations." [FAA Exhibit 1, Item 3, exh. A, p. 35, fu. 302] [See Also FAA Exhibit 1, Item 

1, exh. 12, p. D.13, exh. 17, p. 2, exh. 26 and Item 5, exh. 53 & exh. 43, pp. E.13 & E.l7] 

The FAA has found in Santa Monica Airport Association (SMAA), Krueger Aviation, and 

Santa Monica Air Center v. County of Santa Monica, FAA Docket No. 16-99-21 

(February 4, 2003), that: "A sponsor is not required to develop any and all parcels of land 

in a manner consistent with the wishes of any one party, but rather may exercise its 

proprietary rights and powers to develop and administer the Airport's land in a manner 

consistent with the public's interest." [SMAA FAD, 16-99-21, p. 19] 

Thus, the Director's guidance to the parties in the prior 2006 DD is informative here and 

clarifies the bounds of the County's Federal obligations and the County's proprietary rights. 

Other Disputes Between the Parties 

The point of the FAA-sponsored mediation was to determine whether the two parties, 

JetAway and Montrose County, could come to terms on their specific interests and goals. 

The process was conducted through the FAA's Office of the Chief Counsel, Administrative 

and Alternative Dispute Resolution Division. [FAA Exhibit 1, Item 3, exh. F] It was not 

part of this Part 16 proceeding. The Director notes that the extensive record in this case 

clearly demonstrates that the Complainant's primary intent in the mediation, the two FAA 

formal Part 16 complaints and its litigation against the County is to establish a full-service 

FBO facility, vending fuel, in the vicinity of its existing infrastructure on the off-airport 

property known as the Park. [See Procedural History and Background, and Findings of Fact] 

The FAA does not arbitrate or mediate negotiations through a formal Part 16 proceeding. 

Nor does the FAA enforce lease terms between parties to an agreement. Rather, the FAA 

enforces contracts between an airport sponsor and the Federal government. [See AmAv v. 

Maryland Aviation Administration, FAA Docket No. 16-05-12, (March 20, 2006) 

(Director's Determination), p.23] State courts are the appropriate place for the disposition 

of disputes of contracts and performance under contracts. Airport sponsors are free to 

include terms of performance in agreements, such as leases. As discussed above, and in 

the 2006 JetAway DD, airport sponsors are bound by Federal obligations regarding 

reasonableness, non-discrimination and exclusive rights as applied to on-airport 

aeronautical users. But even with on-airport users, the FAA does not adjudicate questions 

of default under leases agreed to by parties. [FAA Exhibit 1, Item1, exh.l] 14 

In fact, JetAway has been aggressive in state and Federal courts to protect its rights under 

its agreements. [See FAA Exhibit 1, Item 6, exh. QQ, p. 3] For example, two agreements 

14 Penobscot Air Service v. Knox County, FAA Docket No. 16-97-04 (September 25, 1997) (Director's 

Determination) (Penobscot), the FAA sunnnarized this long-standing concept: The Agency made it clear 

that, "The purpose of the grant assurances is to protect the public interest in the operation of Federally 

obligated airports. The purpose is not to provide alternative or supplemental rights to those normally 

available to commercial tenants in disputes with their landlords, i.e. negotiation or commercia/litigation 

under applicable state and localla:ws .... " [Penobscot at page 24, citing to Sky East Services. Inc. v. 

Suffolk County, Complaint Nos. 13-88-06 and 13-89-01] 

Page 19 of 50 
FAA Docket No. 16-08-01 Director's Determination 

between JetAway and the County have been litigated: the Off-Airport Agreement [FAA 

Exhibit 1, Item 1, exh. 2] and the non-commercial Land Lease Agreement. [FAA Exhibit 

1, Item 1, exh. 1 J The findings of the state court appear well-supported by evidence and 

appear to address issues properly before a state court. The court's Findings Fact, 

Conclusions of Law and Order (Montrose Court Order), dated June 30,2008, states: 

The [Off-Airport Agreement is ambiguous because it is susceptible to two 

reasonable interpretations. Specifically, Section 3 (g) can be interpreted, as argued 

by the County, that JetAway can only engage in services expressly allowed under 

the agreement. On the other hand, as argued by JetAway, Section 3 (g) can be 

interpreted as allowing JetAway to offir any services not expressly prohibited. 

[FAA Exhibit 1, Item 5, exh. 60, p. 26] 

As stated, this contract dispute is within the jurisdiction of the state court. It is proper for 

the state court to interpret the meaning of the terms of the Off-Airport Agreement. 

JetA way's rights to conduct commercial activities that involve the transit of aircraft 

'through-the-fence' of the Airport may be protected by the Off-Airport Agreement, but not 

the County's Federal grant assurances. 

With regard to JetAway's rights to provide commercial services under the Off-Airport 

Agreement, the Montrose Court Order found: 

The [Off-Airport Agreement] specifically lists the sale of aircraft foe!, flight 

training [with exceptions J and aircraft rentals or charters as additional FBO 

services that are prohibited. Therefore, Jetaway cannot offer these services without 

express approval from the County. [FAA Exhibit 1, Item 5, exh. 60, p. 27] 

With regard to JetAway's noncommercial Land Lease Agreement (LLA), the Montrose 

Court Order found: 

The LLA specifies that the leased premises is for the parking and moving of aircraft 

and for no other purpose, and that the LLA does not create any additional rights or 

diminish any existing rights under the [Off-Airport Agreement] ... 

The County also argues that Jetaway breached the lease by using the leased area 

for FBO operations. The Court agrees. It is undisputed that Jetaway fueled 

airplanes on the leased premises after entering into the LLA. Although Jetaway 

initially argued it had a right under the [Off-Airport Agreement] to fuel airplanes 

once fueling services were privatized at the Airport, it later withdrew that argument. 

Jetaway now concedes that it had no right to fuel airplanes without the County's 

approval. Fueling is an FBO service. The LLA specifically prohibits engaging in 

FBO services on the leased premises. Therefore, Jet away breached the LLA in this 

regard. The County is entitled to terminate the lease for this breach. 

In conclusion, the LLA can be rescinded for a mutual mistake of facts. The LLA 

can be terminated by the County for Jetaway's breach in fueling airplanes on the 

leased premises. [FAA Exhibit 1, Item 5, exh. 60, pp. 30-32] 

Page 20 of 50 
FAADocketNo.16-08-0l Director's Determination 

The Court did order that, "The Land Lease Agreement is terminated." [FAA Exhibit 1, 

Item 5, exh. 60, p. 41] So, JetAway has no on-airport presence. Also, as stated, 

JetAway's noncommercial Land Lease Agreement never allowed for the conduct of 

commercial operations on the Airport. [FAA Exhibit 1, Item 1, exh. 1, p. 2] 

Issue 1 

Whether the County has violated grant assurance 5, Preserving Rights and Powers. 

In addition to the proprietary rights and powers reserved to an airport owner, grant 

assurance 5 prohibits the airport sponsor from giving away rights and powers it needs to 

control and operate the airport. It obligates the sponsor to retain financial and legal 

control of airport property to ensure the airport's continued operation as an airport. 

Two ways in which an airport sponsor might intentionally or unintentionally cede rights 

and powers is by allowing through-the-fence aeronautical access as discussed herein and 

by granting rights of first refusal. An airport sponsor can protect its rights and powers by 

limiting, mitigating or eliminating the through-the-fence agreements and by negotiating 

away rights of first refusaL In some circumstances, an airport sponsor's Federal 

obligations may require such action. 

The FAA did express concern over the Off-Airport Agreement in the 2006 JetAway DD, 

stating that the Off-Airport Agreement provides perpetual access and benefits to any 

successor in interest without providing any controls for the County to negotiate with 

prospective successors and redefme the terms of the agreement. [2006 JetAway DD, pp. 

20-21] In that determination, the Director did not find the issue rose to a level of 

noncompliance with grant assurance 5, Preserving Rights and Powers, under the 

circumstances existing at the Airport. The Director is reassured by the Montrose Court 

Order, discussed above, providing clarity to the limitations of the Off-Airport Agreement 

and by ensuring that commercial aircraft fueling cannot occur on the noncommercial Land 

Lease by terminating JetAway' s on-airport leasehold. 15 

From the record, it appears that important financial considerations from the Off-Airport 

parties have yet to be resolved. These fmancial concerns are important in regard to the 

County's obligation to protect its on-airport aeronautical service providers from unjust 

economic discrimination under grant assurance 22, Economic Nondiscrimination; and to 

pursue a fmancially self-sustaining rate structure under grant assurance 24, Fee and Rental 

Structure. Grant assurance 24 obligates the airport sponsor to maintain a fee and rental 

structure that will make the airport as self-sustaining as possible under the particular 

circumstances existing at that airport. [See Applicable Law and Policy, above] 

The record reflects some information relevant to the County's obligation to impose a fee 

and rental structure that will make the Airport as self-sustaining as possible under the 

circumstances. The 2006 JetAway DD notes that JetAway had not paid any fees to the 

15 In addition, the Montrose Court Order also eliminated JetAway's ability to advertise that it sells aviation 

fuel. [FAA Exhibit I, Item 5, exh. 60, p. 42] 

Page21 of50 
FAADocketNo. 16-08-01 Director's Detennination 

County for its access to the Airport, except for a $250 access pennit fee. In the 2006 

JetAway DD, the Director noted that the "disparity in [fixed-base operator] fees could 

affect the Airport's ability to be self-sustaining, in violation of grant assurance 24, Fee and 

Rental Structure." [2006 JetA way DD, p. 21.] Furthermore, the Montrose Court Order 

observed the following: 

JetAway never obtained an access permit from the County. Its position regarding 

this issue is inconsistent. On the one hand, JetAway maintains that nobody ever 

brought the need for an access permit to its attention, even though the requirement 

of an access permit is explicitly addressed in the OAA [Off-Airport Agreement]. It 

has also argued that the OAA itself was the access permit. Recently, JetAwtzy 

tendered to the County $250 for the access fee (the amount specified in the OAA). 

The County did not accept the fee because of this litigation. JetAway never received 

an access permit or an assignment of one from STW [the prior holder of the OAA). 

The County's position regarding an access permit is also somewhat inconsistent ... 

[FAA Exhibit 1, Item 5, exh. 60, p. 5] 

Also in the Montrose Court Order, the Court resolved the issue by ordering: 

JetAway must apply and ptzy for an access permit. Upon application and payment 

of the fee, the County is obligated to execute a written document establishing and 

granting the access right as a property right appurtenant to JetAway's off-Airport 

parcel. [FAA Exhibit 1, Item 5, exh. 60, p. 29] 

An annual access fee of $250 appears to be too low in proportion to the level of throughthe-fence business activity and is insufficient to meet the Airport's Federal obligations 

under grant assurance 24, Fee and Rental Structure, under the circumstances existing at 

this Airport. However, the record in this case is insufficient to determine that the County 

has failed to exercise an option to limit, mitigate or extinguish the Off-Airport Agreement 

contrary to grant assurance 24. Since grant assurance 24 regards financial selfsustainability, the costs associated with generating appropriate revenue or limiting access 

is a relevant 'particular circumstance existing at the Airport.' 

In any event, that is not the allegation made by this Complainant. Rather, JetAway states, 

"The County executed a lease agreement with JCP that contains an option and right of first 

refusal." [FAA Exhibit 1, Item 1, p. 27] The JCP Lease does include the following provision: 

I. 03 Right of First Refusal. After the completion of the extended term of the 

Agreement, the parties will in good faith negotiate mutually agreeable terms for the 

continued lease and occupancy of the leased properties and improvements described 

herein. However, if mutually agreed upon terms have not been reached and County 

has a bonafide written offer from another party it desires to accept, County can do 

so if it first provides to Operator the right to continue the agreement by matching the 

terms of the bonafide written offir. [FAA Exhibit 1, Item 1, exh. 19] 

The County states that "The right of first refusal, however, is open ended.... If the [FAA J 

notifies the County ... that there is a grant assurance issue with the option to extend or the 

Page 22 of 50 
FAA Docket No. 16-08-01 Director's Determination 

right of first refusal ... the County will notify JCP that the offending provision must be 

rectified." [FAA Exhibit 1, Item 3, pp. 29-30] 

JetAway presents this allegation as circumstantial evidence of the County's alleged intent 

to grant an exclusive right to JCP. However, that allegation is inapt and not supported, as 

discussed below in Issue 3. 

FAA observes that sponsors might over-grant rights out of a lack of discipline or foresight, 

or because they had previously over-granted rights to another operator in another 

agreement. A through-the-fence agreement is an example of where an airport sponsor 

may have over-granted rights to an airport user. 

A right of first refusal for future occupancy of the same leasehold is generally of greater 

concern because it might limit an airport sponsor's ability to change the use of property in 

the future, when the public's interest in aviation may demand some other use. This is 

potentially a violation of grant assurance 5. However, the facts in this case are far too 

speculative for a fmding of non-compliance in related to grant assurance 5. To avoid 

future problems, the County is well advised to negotiate the elimination of the right-offirst refusal provision in its existing leases, including the JCP Lease. 

Considering the above, the Director finds that the County is not in violation of grant 

assurance 5, Preserving Rights and Powers. 

Issue 2 

Whether the County has violated grant assurance 29, Airport Layout Plan. 

An Airport Layout Plan is a scaled drawing of existing and proposed land and facilities 

necessary for the operation and development of the airport. It represents an understanding 

between the airport owner and the FAA regarding the current and future development and 

operation of the airport. FAA approval of Airport Layout Plans assists to ensure that federally 

funded airport development will be safe, useful and efficient. 

JetAway raises an allegation of the County's violation of grant assurance 29, Airport Layout 

Plan, in its Reply. JetAway states: 

It now appears that Respondents have also violated Grant Assurance 29 by 

manipulating the Airport Layout Plan and constructing an aircraft parking apron 

and access road for JCP that are not shown as existing or proposed improvements 

on the Airport Layout Plan that was in effect when the County made those 

improvements. [FAA Exhibit 1, Item 5, p. 6] 

In its Rebuttal, the County moves to dismiss this allegation, stating that JetAway has not 

complied with Part 16 requirements for pre-complaint resolution (14 CPR§ 16.21). [FAA 

Exhibit 1, Item 6, p. I 0] Also, in its Answer, the County characterizes the Airport Layout 

Plan (ALP) process and its significance to compliance. Airport Layout Plans can be 

Page 23 of 50 
FAA Docket No. 16-08-01 Director's Determination 

updated at any time, easily resolving mistakes or omissions. 16 [FAA Exhibit 1, Item 6, pp. 

8-9] The FAA recognizes an airport's planning process is dynamic, not static 

In its Complaint, and in more detail in its Reply, JetAway relies heavily on allegations of 

manipulation of the County's airport planning processes. This elevation of the planning 

process is inappropriate. For example, in its Complaint, JetAway focuses in property 

'identified' for FBO purposes on various draft and final planning documents to form the 

basis for concluding that the County has granted an exclusive right to JCP, by leasing all 

'identified' FBO parcels to JCP. [FAA Exhibit 1, Item I, p. 22] This is a misapplication 

of the role of the planning process and the standards for compliance. 

Montrose County Airport Management correctly states the appropriate role of the ALP: 

It is common for airports to regularly update and revise ALPs based on changes at 

the airport. The FAA does not have to approve specific FBO locations and FAA 

approval of an ALP does not require an airport to locate FBO facilities at such 

locations as may be designated on the ALP or prohibit the airport from later 

changing its designated site to another location. [FAA Exhibit 1, Item 6, exh. GG, 

exh. 5, p. 2] 

This understanding of the need to engage in ongoing planning, in consultation with the 

FAA, recognizes that we expect airport management pursue its Federal obligations and its 

proprietary interests in an environment of change. The Director points to Pacific Coast 

Flyers, Inc. v. County of San Diego, FAA Docket No. 16-04-08 (July 25, 2005) 

(Director's Determination) (]'acific Coast). In Pacific Coast, the complainant alleged that 

the sponsor's airport development plans discriminated against small piston aircraft types 

by reducing accessibility through leasehold development in favor of jet aircraft. [Pacific 

Coast, DD, p. 32] Specifically, Pacific Coast states: 

The Director recognizes that the current [Master Plan]for [the Airport], as the 

County's "vision" for the future of the airport, plays a role in its decision-making 

process, and for development of the airport. Having said that, the Director also 

notes that deviating from the [Master Plan}, to accommodate changing airport 

conditions or new requirements, is not only permissible, but may be necessary and 

expected. [Pacific Coast, DD, p. 35} 

A typical violation of grant assurance 29 would be more akin to a refusal to cooperate with 

the FAA on an ongoing planning process, or refusing to mitigate a significant problem 

arising from an un-planned circumstance at an airport upon a demand from the FAA to do 

so. In Pacific Coast, the Director acknowledged that deviation from an airport plan may 

be necessary and expected. Conversely, the Director has found that refusal to alter an 

ALP as a means to deny any access may be a violation of a grant assurance. In Gate 9 v 

16 The FAA has previously stated that it is common practice for the FAA to accept interim updates to the 

ALP, resulting in a 'pen and ink' notation on an existing, approved ALP. @oca Aviation v. Boca Raton 

Airport Authority, FAA Docket No. 16-00-10 (March 20, 2003) (Final Decision and Order), p. 24, fu. 80. 

(Boca). 

Page24of50 
FAA Docket No. 16-08-01 Director's Determination 

DeKalb County. FAA Docket No. 16-05-13 (February 1, 2006) (Director's Determination) 

(Gate 9), the Director stated: 

The FAA fully expects that pursuit of aeronautical development would reasonably 

include pursuing any necessary and appropriate alteration or added detail to an 

Airport Layout Plan. .... In fact, the airport layout planning process is a tool in 

planning for appropriate development to meet aeronautical demand ... 

The Director's role in determining compliance is to determine whether or not a 

sponsor has a program in place that reasonably adheres to its Federal obligations. 

While a sponsor is not obligated to agree to a specific lease proposal, a sponsor is 

responsible for exercising its rights and powers to be responsive to aeronautical 

demand to provide aeronautical facilities in a manner that is consistent with its 

Federal obligations17 [Gate 9 DD, p. 14) 

The Director also notes here that Montrose County is not simply citing its ALP as 

prohibiting it from accommodating JetAway and walking away, as was the case in Gate 9. 

Instead, the County has engaged in extensive discussions with JetA way to attempt to 

accommodate JetAway's preferred location for an FBO, despite a problematic throughthe-fence access point. It has cited actual reasons for not preferring the FBO alternatives 

at JetAway's location and it has offered an alternative location. 18 The County 

sunnnarizes its reasons, stating that it 

wants any JetAway FBO operation [to be) on the Airport and it wants the throughthef'ence issues of the Off-Airport Agreement created by JetAway, resolved and 

addressed. The County submits it is acting consistently with the Director's 

Determination in Docket No. 16-06-01. Based on feasibility studies conducted by 

the County's expert and the unjustly discriminatory effect of the Off-Airport 

Agreement for the on-airport commercial aeronautical activities, the County has 

identified a second FBO location. It is clear from the Director's Determination that 

an on-airport, non-adjacent site is acceptable. [FAA Exhibit 1, Item 3, pp. 37-38) 

It is JetAway that has constructed this red herring. JetAway holds this perception that the 

ALP process mandates that the County must accept JetAway's off-airport parcel, because 

it was once depicted on an ALP as a potential future location for an FBO. This is clearly 

not the case and the Director believes it is again important to stress that an airport's 

planning process is dynamic, not static. 

Considering the above, the Director grants the County's motion to dismiss the allegation 

of the violation of grant assurance 29, Airport Layout Plan. The County's planning has 

been consistent with the requirement that airport development be safe, useful and efficient. 

17 The Director distinguishes the extant case from Gate 9 by noting that DeKalb did not cite an airport 

benefit obtained by adhering to its ALP, nor did it provide any reasonable option for access and the FAA 

had independent knowledge of stymied aeronautical development at DeKalb's airport. 

18 This alternative location has in fact been 'identified' in part in draft planning documents submitted to the 

record by JetAway, and had been noted by the Director in the 2006 JetAway DD at fu. 302. See FAA 

Exhibit I, Item I exh. 12, p. D.l3, exh. 17, p. 2, exh. 26 and Item 5, exh. 43, pp. E.l3 & E.l7. 

Page 25 of 50 
FAA Docket No. 16-08-01 Director's Determination 

Issue 3 

Whether the County has granted an exclusive right for the use of the Airport in 

violation of grant assurance 23, Exclusive Rights, 49 U.S.C. § 40103(e) and 49 

U.S.C. § 47107(a)(4) by means ofland leases to Jet Center Partners (JCP). 

Specifically, in its Complaint, JetAway alleges that the Respondent has granted exclusive 

FBO rights to JCP in conscious and intentional violation of the guidance contained in AC 

No. 150/5190-6 and FAA Order 5190.6A19 [FAA Exhibit I, Item I, p. 22] JetAway 

presents nine (9) counts ofthe granting of an exclusive right. Under Issue 3, we examine 

the allegations associated with the express granting of an exclusive right by the leasing of 

available property to JCP, counts 1-5, 8 & 9. Counts 6 & 7 are discussed under Issue 4. 

Express Exclusive Right Count I 

'Identified' on-Airport FBO parcels 

In its Complaint, JetAway alleges, "The County has leased all Airport land identified for 

FBO locations to JCP." [FAA Exhibit 1, Item 1, p. 22] 

The County answers that the allegation is untrue, stating, "the Airport has a 418,698 

square-foot on-Airport site identified and available." (the "9-acre Site) [FAA Exhibit 1, 

Item 3, p. 28 and exh. D] Also, in its Answer, the County moves to dismiss the allegation 

that the County has granted an exclusive right, stating: 

... as contemplated in the Director's Determination in Docket No. 16-06-01, the 

County has identified and made available for leasing for FBO operations a 418, 698 

square foot on-Airport site [9-acre Site] which is not adjacent to JetAway 's throughthe-fence operation. Jf JetAway wishes to lease this site for FBO operations, the 

County will issue an RFP. [FAA Exhibit 1, Item 3, p. 4] 

JetAway contradicts its own argument, stating, "At all times relevant there has been and 

presently is sufficient land available on Airport for a second FBO as the Director noted in 

his Determination in FAA Docket No. 16-06-01." [FAA Exhibit 1, Item 1, p. 18] JetAway 

also states: 

Land is and has been available on the Airport for a second FBO, as the Director 

noted in his Determination, and the most logical parcel of landfor the FBO- now 

that the County has leased all available land on the west side of Runway 13131 to 

19 The Advisory Circulars aud Orders do not impose Federal obligations. Rather Federal law, graut 

assurauces and quitclaim deeds impose obligations. FAA Orders provide guidauce to FAA employees in 

carrying out their jobs aud responsibilities. Advisory circulars provide advice to a sponsor in complying 

with the Federal obligations. The Exclusive Rights AC provides basic information pertaining to the 

Federal Aviation Administration's (FAA's) prohibition on the grauting of exclusive rights at federallyobligated airports. This AC provides guidauce on how au airport sponsor can comply with the statutory 

prohibition on the grauting of exclusive rights. [See AC 150/5190-6 (1. Purpose)] 

Page 26 of 50 
FAADocketNo.16-08-01 Director's Determination 

JCP, including both FBO Locations One and Two20 - is the South Tract [on-airport 

parcel adjacent to the through-the-fence access point] which is adjacent to 

[JetAway's off-airport parcel and hangar]. [FAA Exhibit 1, Item 1, p. 43] 

Furthermore, as stated above, JetAway submitted evidence with its Complaint and Reply 

that shows general aviation development consistent with an FBO on or near the 9-acre Site. 

See FAA Exhibit 1, Item 1 exh. 12, p. D.13, exh. 17, p. 2, exh. 26 and Item 5, exh. 43, pp. 

E.13 & E.l7. This alternative location was evident to the Director in the 2006 JetAway 

DD. [See 2006 JetAway DD, page 35, at fn. 302] See map of Airport at FAA Exhibit 2. 

Also JetA way misapplies FAA policy and precedent to the standard of compliance with 

regard to exclusive rights. As stated above, "identification" of parcels for FBO-use is not 

necessarily relevant to an allegation of the granting of an exclusive right. As cited above 

from Pacific Coast, planning documents do not necessarily prevent an airport sponsor from 

pursuing alternative airport benefits or the public's aeronautical interests. Rather, the 

County is using its planning process to explicitly identify a site that is fully on the Airport. 

Also, the County is not simply pointing to its ALP, and no other reason, to not favor 

JetAway's preferred FBO site that is associated with a through-the-fence access point. 

JetAway's citation of its submitted planning evidence is contradictory and its application 

of the standard of compliance is inapt. Consequently, JetAway's arguments do not survive 

the County's explicit offering and identification of an alternate FBO site (9-acre Site). To 

be in compliance with the grant assurances, it is not necessary for the County to accept 

JetAway's most convenient or "preferred" or "logical" parcel on the airport for JetAway's 

purposes. Moreover, the County has not leased all land, as recognized by the Director in 

the 2006 JetAway DD and the parties in various pleadings in this proceeding. 

Suitability of identified Airport FBO parcels 

The Director notes that JetAway did not raise the issue of the 'suitability' of the 9-acre 

Site or any other alternative parcel at the Airport in its Complaint. However, the County 

may have first raised its willingness to offer the specific 9-acre Site for FBO development 

in its Answer. [FAA Exhibit 1, Item 3, p. 2] Therefore, in order to assist the parties in 

understanding the role of compliance, the Director will address the extensive argument 

between the parties over the suitability of the 9-acre Site as opposed to JetAway's 

preferred FBO location, adjacent to the through-the-fence access point and JetAway's 

existing off-airport parcel and hangar. 

20 With regard to the so-called FBO Locations I & 2 that comprise JCP's leasehold on the west side of the 

Airport and cited by JetAway, the County denies specifically that it "designated areas as FBO Location I 

andFBO Location 2. These are designations created by JetAway." [FAA Exhibit 1, Item 3, p. 21] The 

FAA adds that a draft Master Planning document (Working Paper Three) dated March 2005 and submitted 

by JetAway in its Complaint depicts both JetAway-designated FBO Locations 1 & 2 as a "Potential Site for 

FBO Facilities (Hangar, Auto Parking, Aircraft Parking, Office, ETC.)," not 'Sites.' Working Paper Three 

was drafted prior to JetAway's 2006 Complaint. It contemplates that the south end ofthe west side of 

runway 13/31 could be one FBO. Currently that is the case. JCP's leasehold is relatively cohesive in the 

SW quadrant of the Airport. [FAA Exhibit 1, Item 1, exh. 12, p. D.13] 

Page 27 of 50 
FAADocketNo.l6-08-0l Director's Determination 

In its Reply, JetAway initially makes an admission about a potential FBO site, which can 

be described as against its interest, stating: 

The County has in fact leased all Airport land identified in the Airport Master Plan 

and Airport Layout Plan for FBO locations to JCP. The County does not deny that 

fact. The County merely argues that the Master Plan and Airport Layout Plan are 

not relevant and that it has now identified a new FBO site on the south end of the 

Airport east ofRunway 13131 (the 9-acre Site). This site is, however, marginally 

suitable for an FBO at best.. .. 

But the County cannot seriously deny that it has leased all Airport land to JCP that 

is suitable for an FBO. [FAA Exhibit 1, Item 5, p. 21] 

JetAway questions the 'credentials and integrity' of one of the County's airport 

consultants with regard to the County's assertion that the 9-acre Site is a suitable site for 

an FBO. [FAA Exhibit 1, Item 5, pp. 21-23] In reply, JetAway hires its own consultant, 

Stantec Consulting, Inc. to compare the 9-acre Site to JetAway's preferred FBO location. 

[FAA Exhibit 1, Item 5, p. 23] 

JetAway characterizes its own consultant's fmdings in its Reply, stating: 

Stantec concludes that the 9-acre site is marginally suitable for an FBO, and 

the proposed JetAway site is clearly the preferred location.... The 9-acre site 

is truly marginal for FBO operations and would create serious safety issues at 

the Airport .... The County has indeed leased all of the Airport land that is 

suitable for an FBO to JCP in violation of its Federal Grant Assurances. [FAA 

Exhibit 1, Item 5, pp. 23-24] 

In fact the Stantec Report states: 

The 9-Acre and JetAway FBO Sites have been reviewed for physical capacity, 

operational and safety-related concerns. Both sites can meet the minimum 

standards of the airport for an FBO ... Based on the overall factors, including sqfety 

and operations, the JetAway FBO Site is the preferred location for the following 

reasons: 

From an air side access standpoint, the JetAway site is centrally located off the 

main runway for Montrose Regional Airport with very short taxi distances. The 9-

Acre site is currently very poorly located for safe access from Runway 17/35 and for 

Runway 31 arrivals. Safo access to the airfield is a significant issue for an FBO 

operation. The JetAway site is far superior in overall air side access. 

Landside access to the JetAway site is already established and is operational. The 

9-Acre site will require a considerable amount of investment to construct the 

roadway and utility systems to the site, along with clean-up of the entrance for 

business purposes. [FAA Exhibit 1, Item 5, exh. 68, p. 1 0] 

Page 28 of 50 
FAADocketNo.l6-08-01 Director's Determination 

In its Rebuttal, the County comments on the Stantec report, stating: 

The County notes the comments of the Stantec Report on the potential operational 

issues for the 9. 612 acres. There is, however, a protocol for operating on a field 

with no control tower. Every commercial airliner using Runway 17135 crosses 

Runway 13131. If JetAway foe led the commercial airlines, its fuel trucks would have 

to cross Runway 13131. If aircraft crossing Runway 13/31 was a significant safety 

issue, the FAA would require the Airport to close the runway or build a taxiway 

around the runway. 

The Stantec report states that the location designated by JetAway is the preferable 

FBO location. The County, however, has no intention of relocating Taxiway FP; 

the preliminary estimate of the expense is $1,555,000.00 ... or to otherwise impair 

the ability to extend Taxiway E to the north, merely to accommodate JetAway's 

through-the-fence FBO operations. Any accommodation of JetAway 's through-thefence FBO operations would create even more grant assurance issues ... [FAA 

Exhibit 1, Item 6, pp. 17 -18] 

Also, Stantec states its preference for the JetAway FBO Site with regard to the 9-acre Site, 

because the 9-acre Site is not immediately available to accommodate larger aircraft. 

However, on the same page of the follow-up letter, Stantec characterizes the current 

JetAway site geometry, stating: 

[the] distance from the centerline of Taxiway E to the property line or the existing 

building face [of JetA way's existing hangar is] approximately 83 feet, or 46.5 feet 

short of the required distance for an Airport Design Group IV taxiway OFA (larger 

aircraft). Taxiway E is designated on the signed ALP as a Group IV taxiway. 

Remedies are to move Taxiway E to preserve Group IV designation, process a 

modification to standard for a modified Group III designation (smaller aircraft), or 

reclassify the taxiway as a Group II taxiway (even smaller). [FAA Exhibit 1, Item 5, 

exh. 73, p. 2] 

Stantec offers a downgrade to a Group II taxiway as an option for the JetAway site for the 

future, and observes that the 9-acre Site is planned to have Group II standards, as well. 

[FAA Exhibit 1, Item 5, exh. 73. p. 2] In the case of the 9-acre Site, the Director observes 

that plans can change and new infrastructure can be built to meet actual needs of the user's 

aircraft. Also, in the case of the J etA way site, infrastructure can be removed and replaced 

and enhanced, or downgraded. These are all judgments that an airport sponsor should 

make to pursue the public's aeronautical interests in its airport and to prudently manage 

the sponsor's resources and manage risk. 

21 Taxiway E is the taxiway immediately adjacent to JetAway's existing off-airport hangar. Taxiway E 

provides airport access to all through-the-fence users of the Airport. 

Page 29 of 50 
FAADocketNo.16-08-01 Director's Determination 

The County answers by stating: 

The County, however, does not have an obligation to grant JetAway an FED 

operation at the location dictated by JetAway, on the terms dictated by JetAway and 

without an RFP process. JetAway does not have the right to substitute its site 

selection judgment for that of the County. The County's obligation is to ensure that 

JetAway has access to the Airport to conduct commercial aeronautical activities. 

The County has satisfied this obligation by designating the 9.612 acre site as a 

second FBO location. [FAA Exhibit 1, Item 6, p. 4] 

The Part 16 process is not the appropriate venue to redraft or update an ALP. Furthermore, 

the Complainant, JetAway carries the burden of proof of a grant assurance violation. To 

succeed in its allegation that the County has granted an express exclusive right, JetAway 

must show that there is no other available and suitable site for an FBO at the Airport. 

Before the County's explicit offering of the 9-acre Site in its Answer, JetAway had stated: 

Land is and has been available on the Airport for a second FBO, as the Director 

noted in his Determination, and the most logical parcel of land for the FBO ... is 

the South Tract [on-airport parcel adjacent to the through-the-fence access point] 

which is adjacent to [letA way's off-airport parcel and hangar]. [FAA Exhibit 1, 

Item 1, p. 43) 

With regard to the potential operations of the FBO sites, JetAway questions the safety of 

the typical route of aircraft from the most active runway to the 9-acre Site, requiring 

runway crossings. However, here the FAA is unconvinced that the 9-acre Site's location 

on the airfield is so 'unsafe' as to make the site unsuitable. And in fact, Stantec only 

makes that statement conditionally and in comparison to the JetA way Site. In a follow-up 

letter to JetAway, Stantec states, "The 9-acre Site is unsuitable for FBO purposes if the 

following is considered: The development and operation of the 9-acre Site versus the 

JetAway FBO Site potentially introduces significant safety and operational issues." [FAA 

Exhibit 1, Item 5, exh. 73, p. 2] The County equates this taxi route, objected to by 

JetAway, to the need for JetAway's ground vehicles to cross the same runway to get to the 

Airport's terminal area, associated with JetAway's preferred site. This also raises the 

issue of vehicle incursions. The County observes that regular movement of ground 

vehicles across a runway also potentially introduces significant safety and operational 

issues. [FAA Exhibit I, Item 6, pp. 17 -18) The FAA is very concerned about the 

prevalence of vehicle and pedestrian incursions on the airfield. 

The County sites Roadhouse Aviation v Tulsa, FAA Docket No. 16-05-08 (June 26, 2007) 

(Final Decision and Order) (Roadhouse), quoting: 

The exclusive rights prohibition does not guarantee an airport user the right to 

acquire a specific piece of private property, or access to a specific location on the 

airport. It does ensure that airport users have the right to access the airport to 

conduct commercial aeronautical activities. [Roadhouse, FAD, p. 23) 

Page 30 of 50 
FAADocketNo. 16-08-01 Director's Determination 

The FAA notes that the final FAA -approved ALP, prepared by Barnard Dunkleberg & Co. 

(the County's existing airport planner/consultant) depicts the 9-acre Site as available for 

an FBO location. [FAAExhlbit 1, Item 9, exh. VV] 

JetAway's argument regarding the County's leasing of all land 'identified' or 'suitable' for 

an FBO location is inconsistent, unconvincing, and fails to prove that the County's Federal 

obligation requires it to accept JetAway's preferred location as an FBO site. 

Express Exclusive Rights Counts 2-5 

JetAway cites circumstances of the Airport and actions of the County to show alleged 

intent to grant an exclusive right in support of its allegation: 

Count 2. The County has leased more Airport land to JCP than required for it FBO. 

Count 3. The County has leased Airport land to JCP without any immediate need for the 

land being demonstrated and documented by JCP, and that JCP will not be able to put 

into productive use within a reasonable period of time. 

Count 4. The County executed a lease agreement with JCP that contains an option and 

right of first refosal. 

Count 5. The County has manipulated the Minimum Standards to protect JCP's 

exclusive rights and interests. 

JetAway presents these additional arguments as circumstantial evidence in support of its 

central allegation that the County has leased all parcels 'identified' for FBO-use to JCP. 

JetAway cites FAA Order 5190.6A incorrectly, herein. FAA Order 5190.6A is internal 

FAA guidance. [See Applicable Law and Policy Section, above} It instructs FAA 

employees as to the ways in which an airport sponsor might intentionally or 

uuintentionally grant an exclusive right. It does not create separate prohibitions. In any 

case, this circumstantial evidence is belied by the County's offer of the 9-acre Site for 

FBO use, as discussed above. The FAA does not accept the premise that the County has 

forfeited its ability to accommodate a second FBO at the Airport. 

Counts2 & 3 

With regard to counts 2 and 3, the Director notes that these are not independent allegations 

of a granting of an exclusive right. JetAway states: 

The County has leased more Airport land to JCP than required for its FBO .... The 

County has leased Airport land to JCP without any immediate need for the land 

being demonstrated and documented by JCP, and that JCP will not be able to put 

into productive use within a reasonable period of time. [FAA Exhlbit 1, Item 1, pp. 

24 & 26] 

Page 31 of SO 
FAADocketNo. 16-08-01 Director's Determination 

The County generally denies all of the allegations, stating: 

JetAway provides no evidence that JCP leases more land than it requires. That is 

really a subjective determination by JCP. .. .. The County's perception is that JCP 

needs the land it is leasing. Second JetAway requested 513,513 in its [2005 FBO 

Proposal]. In its identical December 2005 and November 2007 proposals [FBO 

proposal and settlement proposal], it requested 459,903 square foet for the onAirport site. [FAA Exhibit 1, Item 3, p. 28] 

Also, the County cites FAA Part 16 precedent. In Bisti Aviation v Farmington, FAA Docket 

No. 16-07-10 (December 4, 2007) (Director's Determination) (Bisti), the Director stated: 

Respondent correctly identifies that it is not required under the Federal grant 

obligations to independently assess whether a tenant's proposal for future leased 

property is factual or immediately needed by the proponent to provide aeronautical 

services. No grant assurance specifically requires that a demonstrated immediate need 

be proven before an airport approves an assignment of a lease. [Bisti, DD, p. 18} 

As stated, JetAway's extensive arguments regarding the size, layout, improvements, 

financing and process of JCP's leasehold are not sufficient to establish the grant of an 

exclusive right when the County does have the capacity to accommodate a second FBO on 

the Airport and has offered the 9-acre Site. Even if the FAA accepts the facts regarding 

JCP's use of its leasehold, the County was not grant-obligated to require JCP to 

demonstrate an immediate need for the property it was leased for its FBO operations. 

While JetAway elevates language in Order 5190.6A to a level comparable to the County's 

grant assurance obligations; this is not accurate. Nonetheless, JetAway has made no 

showing that the County leased more Airport land to JCP than required for its FBO. 

JetAway has also failed to show that the County has leased Airport land to JCP without 

any immediate need for the land being demonstrated and documented by JCP, and that 

JCP will not be able to put into productive use within a reasonable period of time. 

Count4 

With regard to count 4, this right of first refusal is not for additional property that could be 

used for a competitive FBO, but rather an option for extension of a leasehold for currently 

occupied property. It does not remove property otherwise currently available for a second 

FBO. [FAA Exhibit 1, Item 1, exh. 19] 

Based upon the Director's analysis in Issue 1, JetAway's allegation that granting an option 

and right of first refusal to JCP is a prohibited exclusive right is wrong. Even if the FAA 

accepts the facts regarding JCP's right of first refusal, the FAA cannot conclude that the 

County has granted an exclusive right. The right of first refusal at issue here is related to 

future occupancy of a current leasehold and not related to the leasing of all suitable parcels 

on the airport. 

Page 32 of 50 
FAA Docket No. 16-08-01 Director's Determination 

CountS 

JetAway states, "The County has manipulated the Minimum Standards to protect JCP's 

exclusive rights and interests." [FAA Exhibit 1, Item 1, p. 27] 

Again, count 5 does not stand on its own as a grant assurance violation, because as JetAway 

admits "land is and has been available on the Airport for a second FBO, as the Director 

noted in his Determination ... " [FAA Exhibit 1, Item 1, p. 43] JetAway goes on to opine 

that, "the most logical parcel of land for the FBO - now that the County has leased all 

available land on the west side of Runway 13/31 to JCP, including both FBO Locations 

One and Two22 - is the [on-airport parcel adjacent to the through-the-fence access point] 

which is adjacent to [JetAway's off-airport parcel]." [FAA Exhibit 1, Item 1, p. 43] 

The Respondent goes on to state that, " ... the area designated by JetAway as FBO Location 

1 does not satisf'y even the minimum land area under the old Minimum Standards (125,000 

sq. ft)." [FAA Exhibit 1, Item 3, page 21] JetAway's 2005 FBO proposals and its 

November 2007 settlement offer upon which it is basing this Complaint request no less the 

450,000 sq. ft. of on-Airport leasehold. [FAA Exhibit 1, Item 5, p. 30] JCP's successful 

2005 FBO proposal requested 300,000 sq. ft. [FAA Exhibit 1, Item 1, exh. 14, p. 1 0] 

The record shows that both FBO proposers requested no less than 300,000 sq. ft. of onAirport leasehold and up to over 500,000 sq. ft. So, it is reasonable for the County to raise 

its minimum square footage requirement to a mid-point of350,000 sq. ft. This is what the 

County did when it adopted its 2005 Minimum Standards. [FAA Exhibit 1, Item 1, exh. 

21] Furthermore, the property on the west side of the south end of runway 13/31 (now 

occupied by JCP) does not appear to be large enough to accommodate two FBOs of the 

smallest size requested. JetAway submits evidence in its Complaint that shows the 

leaseholds in that quadrant to add up to only 436,280 sq. ft. [FAA Exhibit 1, Item 1, exh. 

29] It appears prudent that the County, at the time, negotiated with JCP to occupy a 

reasonably compact and contiguous FBO facility, smaller than any on-airport leasehold 

that JetAway has ever requested from the County. JetAway's inference, in hindsight, that 

the southwest quadrant could have been expanded to shoe-hom in two FBOs of 350,000 

sq. ft. each is unsupported and rejected. [FAA Exhibit 1, Item 5, exh. 73 & Item 7] 

22 With regard to the so-called FBO Locations I & 2 that comprise JCP's leasehold on the west side of the 

Airport and cited by JetAway, the County denies specifically that it "designated areas as FBO Location I 

and FBO Location 2. These are designations created by JetAway." [FAA Exhibit I, Item 3, p. 21] The 

FAA adds that a draft Master Plarming document (Working Paper Three) dated March 2005 and submitted 

by JetAway in its Complaint depicts both JetAway-designated FBO Locations I & 2 as a "Potential~ for 

FBO Facilities (Hangar, Auto Parking, Aircraft Parking, Office, ETC.)," not 'Sites.' Working Paper Tbree 

was drafted prior to JetAway's 2006 Complaint. It contemplates that the south end of the west side of 

runway 13/31 could be one FBO. Currently that is the case. JCP's leasehold is relatively cohesive in the 

SW quadrant of the Airport. [FAA Exhibit 1, Item 1, exh. 12, p. D.l3] In any case, it is JetAway, not the 

County or the FAA, that applies such importance to the details of draft planning documents. The FAA 

does not see such importance or relevance. 

Page 33 of 50 
FAA Docket No. 16-08-01 Director's Determination 

Even if the Director assumes the facts presented by JetAway under count 5, they do not add 

up to a grant assurance violation. Rather, the facts show that the County was being 

responsive to the stated square footage needs of responders under their RFP. At worst, it 

might reveal an interest to prevent a competing leaseholder from blocking the on-airport 

FBO' s potential contiguous growth in the southwest quadrant of the Airport. In Self Serve 

Pumps v Chicago Executive Airport, FAA Docket No. 16-07-02 (Director's Determination 

Issued March 17, 2008), the Director stated, "motive alone is insufficient for a finding of an 

exclusive right or grant assurance violation." [Self-Serve Pumps, DD, p. 31] 

As previously stated, the fact that the County is not providing a parcel to JetAway, which 

in JetAway's opinion, is the most convenient, logical or preferred does not necessarily 

mean that the County is manipulating the Minimum Standards to protect JCP. 

Other Exclusive Rights Arguments 8 & 9 

JetAway makes observations to support its circumstantial case against the County by citing 

language in Federal law and policy including a specific exception provided by the law. 

Count 8. The only exception that would allow JCP to provide exclusive FBO services at 

the Airport does not apply in these circumstances. [FAA Exhibit 1, Item 1, p. 4 7] 

Count 9. The County's grant of exclusive rights to JCP has enabled JCP to charge inflated 

prices to the detriment of the public and the County. [FAA Exhibit 1, Item 1, p. 48] 

Regarding count 8, as cited by JetAway, Federal law has always provided an exception to 

the prohibition of the granting of an exclusive right. The law states: 

A person providing, or intending to provide, aeronautical service to the public will 

not be given an exclusive right to use the airport, with a right given to only one 

foced-base operator to provide services at an airport deemed not to be an exclusive 

rightif-

(A) the right would be unreasonably costly, burdensome, or impractical for more 

than one fixed-base operator to provide the services; and 

(B) allowing more than one fixed-base operator to provide the services would 

require reducing the space leased under an existing agreement between the one 

fixed-base operator and the airport owner or operator. [49 U.S.C 47107(a)(4)] 

The County concedes the point to JetAway, stating, "there is no exception that allows [the 

County] to deny a second FBO ... Further, the County has not and will not deny a second 

FBO operation on that basis." [FAA Exhibit 1, Item 3, pp. 39-40] Accordingly, as to count 

8, there is no grant assurance violation as the County has committed to permit a competing 

FBO to locate on the Airport and specifically on the 9 acre parcel. 

Regarding count 9, JetAway states, "One of the many results of the County's ... [alleged] 

refusal to allow JetAway to compete with JCP at the Airport is that JCP is able to charge 

inflated fuel prices." [FAA Exhibit 1, Item 1, p. 49] JetAway provides no evidence in its 

Complaint of high fuel prices at the Airport. The County answers that it "monitors the 

fuel prices at the regional airports and has not found any facts or evidence to support 

Page 34 of 50 
FAA Docket No. 16-08-01 Director's Determination 

JetAway's claim that JCP's fuel prices are higher than all regional airports." [FAA Exhibit 

I, Item 3, p. 40] JetAway supplies evidence in its Reply, presenting an Aimav.com 

internet page showing that jet fuel prices at the Airport in the May-July 2008 timefrarne 

are more expensive than most airports within the 65 miles, but less expensive than, or 

competitive with, prices at Telluride Regional Airport, Grand Junction Regional Airport 

and Garfield County Regional Airport. [FAA Exhibit I, Item 5, exh. 71] 

JetAway's evidence of high fuel prices at the Airport does not convince the Director that 

the County has granted an exclusive right. The evidence is not conclusive with regard to a 

finding of the granting of an exclusive right. Considering that the evidence shows that 

Grand Junction's prices are higher and that many of the airports with seemingly lower fuel 

prices list only one fuel provider at the airport in question undermines the relevancy ofthe 

evidence. Also, the FAA has noted the existence of relatively high fuel prices at airports 

with more than one fuel retailer, and has recognized that an airport sponsor has many 

options to monitor and address high fuel prices.23 However, comparatively higher fuel 

prices may signal to a sponsor that it should pursue competition. 

Issue 3 Conclusion 

For the reasons discussed herein, the Director finds that the County has not granted an 

exclusive right by means of its FBO leases, or in the marmer by which it has identified 

FBO locations on the Airport, or by the suitability of those locations. The County is under 

no obligation to accept J etA way's opinion of the most convenient or "preferred" or 

"logical" parcel on the Airport for JetAway's business interests. The County has offered a 

specific 9-acre Site expressly for FBO development. As stated by the County, the County 

retains the proprietary right and responsibility to plan for the future of the Airport. The 

County's proprietary rights do include the protection of the County from legal liability, 

litigation costs, and the loss of rights and powers by means of a problematic through-thefence agreement. Finally, as stated, JetAway's off-airport business interests are not 

protected by the County's Federal obligations. JetAway is equivalent to any proponent of 

a second FBO at the Airport and is subject to the reasonable planning judgments of the 

County as to where such FBO may be located. 

Considering the above, the Director finds that the County is not in violation of grant 

assurance 23, Exclusive Rights, by means of the distribution of Airport parcels suitable for 

FBO activities. 

23 Self Serve Pumps states, "High foe/ prices or high profit margin are not sufficient to make a finding that 

an airport sponsor is non-compliant. The Airport may, justly, choose to take any of several actions to 

address fuel prices . ... The Complainant's argument that market conditions ... require [the sponsor] to 

accede to the Complainant's specific business plan ... is unconvincing. " [Self Serve Pumps. DD, p. 30) 

Page 35 of 50 
FAA Docket No. 16-08-01 Director's Determination 

Issue 4 

Whether the County's actions with regard to JetAway's proposal for a FBO business 

at the Airport constitute the constructive granting of an exclusive right by means of 

an unreasonable denial in violation of grant assurance 23, Exclusive Rights, 49 

U.S.C. § 40103(e) and 49 U.S.C. § 47107(a)(4). 

Count 6. The County has imposed unreasonable requirements on JetAway as a condition 

to any consideration of JetAway's FBO proposals. [FAA Exhibit 1, Item 1, page 30] 

Count 7. The County has imposed unreasonable and discriminatory requirements for an 

FBO agreement with JetAway. [FAA Exhibit 1, Item 1, page 39] 

Airport sponsors are prohibited by grant assurance 22 from imposing unreasonable 

restrictions and from unjust economic discrimination against aeronautical service 

providers proposing to operate aeronautical businesses. In the past, the FAA has found 

that unreasonable restrictions, delay or unjust discrimination could constructively grant a 

prohibited exclusive right. Generally, however, the Director considers these allegations 

under grant assurance 22 as a test for unreasonable terms, as a prerequisite for the finding 

of a constructive grant of an exclusive right.24 Also, as discussed above, these are 

positions considered by the parties in confidential mediation (some of which JetAway 

admits had been resolved). As the Director noted above, the confidentiality of the 

mediation has been breached and the documents, including the proposed settlement 

agreements are now in the public domain. Nonetheless, the Director will not opine on the 

parties' conduct, positions, or alleged FBO restrictions because these negotiations were not 

part of this Part 16 proceeding, but rather involved an ongoing exchange of proposals and 

counter-proposals in mediation. JetAway admits and acknowledges this. The analysis 

and discussion, however, under Issue 4 herein, will attempt to provide clarity in regard to 

the County's obligations under grant assurances 22 and 23. 

JetAway states, "the County has never really considered the actual FBO agreements 

proposed by JetAway, and has insisted on unreasonable conditions and concessions from 

JetAway, One Creative Place and their individual owners." [FAA Exhibit 1, Item 1, p. 30] 

The County states that it does have reasons for declining to pursue JetAway's preferred 

location of its FBO, stating that the County: 

wants any JetAway FBO operation [to be] on the Airport and it wants the throughthe-fence issues of the Off-Airport Agreement created by JetAway, resolved and 

addressed. The County submits it is acting consistently with the Director's 

Determination in Docket No. 16-06-01. Based onfoasibility studies conducted by 

the County's expert and the unjustly discriminatory effect of the Off-Airport 

Agreement for the on-airport commercial aeronautical activities, the County has 

identified a second FBO location. It is clear from the Director's Determination that 

an on-airport, non-adjacent site is acceptable. [FAA Exhibit I, Item 3, pp. 37-38] 

24 See Self Serve Pumps, FAA Docket No. 16-07-02 p. 28. 

Page 36 of 50 
FAADocketNo.16-08-0l Director's Determination 

As discussed above, the Director fmds that the operational and feasibility issues, cited by 

the County, do not obligate the County to consider JetAway's preferred FBO location to 

the exclusion of the County's preferred FBO location. But, in addition to the County's 

legal and FAA compliance concerns, mentioned above, the County also cited financial 

concerns, stating: 

The County sought to accommodate JetAway 's request by resolving the through-thefence issues and without exposure for the County's residents and the expense of 

forther litigation. The County was unable to do so. By identifYing and making 

(llJailable the 9.612-acre site, the County is confirming its position from the onset: 

There is no exclusive right. [FAA Exhibit 1, Item 3, pp. 4-5] 

The County's proprietary rights allow it to provide a competitive FBO opportunity in a 

manner that protects the County from legal liability and cost, and that protects its ability to 

continue as a going concem.25 As stated, the County's grant assurances do not require it 

to acconunodate JetAway's preferred location on the Airport. The County has reason to 

prefer a location that is not adjacent to the through-the-fence access point, like JCP's FBO 

location. JetA way has demonstrated a record of transgression with regard to fueling, 

trespassing, 26 adhering to the Minimum Standards, and advertising services it is prohibited 

from offering. After the Respondent took action to protect its proprietary rights and seek a 

legal injunction against JetAway, JetAway ignored the Court's temporary restraining 

Order and was found to be in contempt. [See Montrose Court Order, FAA Exhibit 1, Item 

5, exh. 60] 

Whether or not JetA way's off-Airport interests are protected by contract, they are not 

protected by the County's grant assurances. But the County's grant assurances do protect 

its on-Airport tenants. Admittedly, this affects the County's decision-making with regard 

to potential airport tenant proposals and JetAway's proposal to be adjacent to its throughthe-fence operation and off-Airport customers. Other than the County's original consent 

to the Off-Airport Agreement, this situation is not of the County's making. Entities 

wishing to conduct conunercial aeronautical activities are wise to make arrangements to 

lease airport property, reasonably offered by an airport sponsor, and should not seek 

special access to off-airport operations or customers, since those operations or customers 

are not protected by the sponsor's grant assurances. The evidence in the record shows that 

25 In Self Serve Pumps v Chicago Executive Airport, FAA Docket No. 16-07-02 (Director's Determination 

Issued March 17, 2008), the Director stated, "In the end, the evidence presented by the Complainant is 

insufficient to eclipse the Airport's proprietary discretion to make management decisions in the best 

aeronautical interests of the public, balanced with the best business interests of the Airport as a going 

concern." [SSPumps, DD, p.25] 

''In late February/early March of2006, JetAway began excavation on Airport property without the 

County's permission. At the County's direction, JetAway ceased construction and filled the area that had 

been excavated. However, JetAway then filed a third lawsuit, seeking an injunction against the County in 

order to continue construction on the East Rarup Area of the Airport's property. In November of2006, the 

District Court of Montrose County denied JetAway's request, concluding that JetAway "did not have a 

probability of success on the merits." [FAA Exhibit 1, Item 5, exhibit 60, p. 23] In a decision dated June 

30, 2008, the District Court of Montrose County found that JetAway trespassed on County property when it 

directed workers to begin construction without the County's permission. [FAA Exhibit I, Item 5, exhibit 

60, p. 32] 

Page 37 of 50 
FAA Docket No. 16-08-01 Director's Determination 

One Creative Place and JetAway have common ownership. The evidence in the record 

also shows that One Creative Place LLC and KMTJ Fuel LLC, are located at the same 

location, One Creative Place, Montrose, Colorado. Accordingly, the County may consider 

JetAway, One Creative Place and KMTJ Fuel as one entity?7 

JetAway presents 11 sub-counts, alleging that the County has insisted on unreasonable 

terms or conditions upon JetAway's preferred FBO location, its future construction and 

operation that is adjacent to its off-airport location, and the through-the-fence access point. 

[FAA Exhibit l, Item 1, pp. 30-47] 

JetAway's Off-Airport Interests and Entities are not Protected by the Grant Assurances 

In sub-counts 6a and 6d, JetAway argues that the County is unreasonably sanctioning its 

off-Airport interests, stating: 

The County has adamantly refused to consider any proposal for JetAway to provide 

FBO services on the Airport unless One Creative Place would agree to 

unreasonable restrictions on the use of its private property off the Airport, and 

relinquish some of its rights as a [off-Airport] Part Owner under the Off-Airport 

Agreement. [FAA Exhibit 1, Item 1, p. 30] 

The County has insisted on a cross-breach provision ... whereby a breach of the 

Off-Airport Agreement by One Creative Place, or any of its affiliated entities or 

lessees, would constitute a breach of JetAway 's FBO Agreement. [FAA Exhibit 1, 

Item 1, pp. 35-36] 

It is again important to note that as a general principal, the FAA does not support agreements 

that grant access to the public landing area by aircraft stored and serviced off-site on 

adjacent property. Through-the-fence arrangements are disfavored by the FAA and can 

place an encumbrance upon the airport property. Thus reducing the airport's ability to meet 

its Federal obligations. Accordingly, under its grant assurances, the County is free to act to 

limit, mitigate, or eliminate the effects of the Off-Airport Agreement. [See 2006 JetAway 

DD] One way to mitigate the effects of the Off-Airport Agreement is to limit off-Airport 

commercial activity, such as the leasing of aircraft hangar storage. As stated herein, FAA 

precedent allows the County to view One Creative Place and JetAway as the same entity. It 

appears that the County is acting within its proprietary rights, within its Federal obligations 

and is taking action necessary under grant assurance 5, Preserving Rights and Powers. 

27 In Jack H. Cox v. the Citv of Dallas. FAA Docket No. 16-97-02, (October 24, 1997) (Record of 

Determination) the FAA found that "The City of Dallas, by amending its lease with Redbird Development 

Corp. (RDC) to prohibit Jack H. Cox or any entity in which he has an interest from leasing, subleasing or 

participating in the use of the RDC-Ieased premises, is not violating its federal obligations" with regard to 

grant assurance 22, Economic Nondiscrimination. [See Record of Determination, 16-97-02, page 17] Also, 

in SeaSands Air Transport, Inc. v. Huntsville-Madison County Airport Authoritv. FAA Docket No. 16-05-

17 (August 28, 2006) (Director's Determination), the FAA found that the actions and behavior of a 

universal agent, such as the president of a company, are attributable to the business entity over which the 

universal agent has control." [See Director's Determination, 16-05-17, pages 21, 23] 

Page 38 of 50 
FAADocketNo.l6-08-0l Director's Determination 

The County May Protect Itself against Legal Liability 

& the County Does Not Have to Accept Donated Land 

• Under sub-counts 6b, 7b(2) and 7c, JetAway raises instances in which the County 

is reluctant to expose itselfto legal jeopardy from JCP. JetAway alleges that it is 

unreasonable for the County to pay heed to potential legal jeopardy that may 

pertain to the County if the County were to take actions against the interests of its 

on-Airport FBO, JCP and that are preferred by JetAway, including acceptance of 

JetAway's off-Airport parcels. 

Sub-connt 6b involves the County seeking indemnification from JetAway with regard to 

claims by JCP. JetAway states: 

JCP has ... among other things, continually threatened the County with escalating 

civil litigation. JCP sued the County in the Montrose County District Court in 

March 2006 for breach of the JCP FBO Agreement, and that claim is still pending, 

but JCP continued to threaten additional claims throughout 2006 and 2007. [FAA 

Exhibit 1, Item 1, p. 32] 

JetAway appears to admit some degree oflegalliability above, even if JetAway presumes 

it to be small. The County cites its current indenmification with JetAway with regard to 

the existing Off-Airport Agreement. [FAA Exhibit 1, Item 1, exh. 2, p. 6] JetAway states 

that this indemnification that the County is requesting is not required of JCP. Clearly, the 

circumstances are different. The record indicates that the County has considered 

numerous options to accommodate JetAway, including leasing land adjacent to the 

through-the-fence access point used by JetAway and its tenants and/or accepting donated 

land with various leaseholds and encumbrances. [FAA Exhibit 1, Item 1, exhs. 5 & 6] 

These situations are not similar to the landlord/tenant relationship set out in the JCP Lease. 

Furthermore, JetAway's rights under the Off-Airport Agreement are not protected by the 

County's grant assurances, but JCP's use of the Airport is protected. 

Also associated with the speculative possibility of donating land, discussed in mediation, 

is the issue of the Off-Airport Agreement's restrictive covenant running with the land, 

discussed under sub-count 7b(2). The restrictive covenant in question allows specific 

activities and could limit activities of through-the-fence operators. [FAA Exhibit 1, Item 1, 

exh. 2, p. 9] JetAway quotes the County's allegedly unreasonable negotiating position 

from its last proposed settlement agreement: 

In no event, however, can JetAway or any of its affiliated or related entities or 

persons commence any FBO operations ... until there has been a final judicial 

resolution of whether restrictive covenants prohibit FBO use of property donated to 

the Airport because such property was formerly included in the aerospace park and 

subject to such restrictive covenants. [FAA Exhibit 1, Item 1, p. 42] 

It appears that the County was reluctant to accept a legal liability from accepting donated 

land from JetAway that contains a disputed restrictive covenant running with the land that 

Page 39 of 50 
FAA Docket No. 16-08-01 Director's Determination 

would be owned by the County.28 In fact, the Montrose Court Order, discussed above, has 

determined that the restrictive provision actually prevents the vending of aviation fuel 

from those properties. This would appear to be a unique 'double-edged' problem for 

JetAway. But it is rightfully JetAway's liability to bear, even if small. JetAway states that 

JCP has threatened to sue the County over breaking the restrictive covenant by allowing 

its newly 'owned' land to be used for purposes actually prohibited by the restrictive 

covenant running with the land and contained in the Off-Airport Agreement. 

As stated above, this idea of donating land is too speculative for the Director to include in 

a finding of this Part 16 proceeding as it was part of negotiations in mediation and not part 

of this proceeding. However, the County is permitted to protect the Airport account from 

financial loss due to legal jeopardy. Such a provision protects the public interest in civil 

aviation by protecting the Airport's users from having to finance judgments against the 

County. Indemnification and other protections associated with the acquisition of offAirport property interests that contain restrictions, including personal guarantees, appear 

to be acceptable and justifiable. 

With regard to sub-count 7c and the various 'land donation' proposals, the County states, 

"the County would agree that a donation or exchange ofland is not feasible in view of 

VOR, OFA, geographic, environmental and restrictive covenants issues that pertain to 

such proposal." [FAA Exhibit 1, Item 3, p. 37] The grant assurances do not require that 

the County alter its property map to accept property as a donation, either as fee-simple or 

as a long-term lease, in order to accommodate the interests of a party that wishes to 

preserve its investment in its off-airport facilities. The FAA would be concerned that 

accepting such a donation, swap, lease-leaseback or other unusual circumstance under the 

legal circumstance described in this sub-section could impose some significant legal 

and/or financial liability on the County. Failure to protect itself might be evidence that the 

County has failed to preserve its rights and powers, as required by its grant assurance 5. 

As stated, it appears that the County has determined that it is imprudent for it to proceed 

with such a scenario, choosing, instead to reasonably say 'no' to this specific proposal and 

to offer an alternative solution. 

In some Sub-Counts the Parties have Reached Resolution 

JetAway raises issues in sub-counts 6c, 6f and 7d in which the parties appear to have 

reached resolution in a manner that accommodates JetAway's position or allows for the 

accommodation at the time of implementation. The Director reminds the parties that the 

test for compliance is what a sponsor actually does, not what a document may state. 

Rarely are minimum standards, leases or plans so perfectly crafted as to be above criticism 

during the life of their applicability. This extant case has illustrated this long-standing 

principle?9 As stated, the Director will not make a detailed analysis of each particular 

28 Proposals included a fee simple transfer as well as long term lease. For purposes of Grant Assurance 4, 

Good Title, a long term lease satisfies the good title ownership requirement. 

29 As stated in Self Serve Pmnps, "the FAA does not judge an airport sponsor simply by the plain language 

of agreements or minimum standards, since such documents are rarely so perfectly crafted as to avoid all 

possibilities for inconsistency over time, changing circumstances and interpretations. Rather, the FAA 

Page 40 of 50 
FAA Docket No. 16-08-01 Director's Determination 

negotiating stance taken by parties in confidential mediation in hindsight, with imperfect 

information. While the Director will not opine on these particular issues, he will attempt 

to provide clarity in regard to the County's obligations under the grant assurances by 

offering the following observations. 

• At sub-count 6c, JetAway raises the issue ofFBO management qualifications. 

[FAA Exhibit 1, Item 1, page 38] · 

With respect to FBO management qualification requirements to be imposed upon 

JetAway's proposed FBO, the parties submit identical sections in their respective 

proposals ofNovember 2007. Both draft settlement agreements state, "JetAway will 

obtain and maintain professional, experienced FBO management for its FBO, which 

management will be subject to review and approval of the County, which review and 

approval will not be unreasonably withheld." [FAA Exhibit 1, Item 1, exh. 5, par. 6 & exh. 

6, par. 3] This is not a matter ripe for FAA review, since the County has not exercised any 

review and has not rejected any FBO management for any reason. The provision appears 

to be customary, typical and reasonable. 

• At sub-count 6f, JetA way re-raises the issue of the Airport UNICOM. [FAA 

Exhibit 1, Item 1, page 38] 

The Director addressed and dismissed this issue in the 2006 JetAway DD. We rely on that 

finding here. [2006 JetAway DD, pp. 33-34] Again, we observe that JetAway is not 

similarly situated to JCP. JetAway now has no leasehold presence on the Airport and has 

not yet had the right to conduct commercial aeronautical activities upon the Airport (See 

Montrose Court Order). Consequently, the County has no obligation to compel JCP to 

direct airport users to JetAway's service offered pursuant to the Off-Airport Agreement. 

Also, it appears that in the confidential mediation, the parties came to a concurrence in 

November 2007 that appears to accommodate JetAway's concerns going forward, when 

presumably JetAway could make itself a similarly-situated FBO in relation to the 

UNICOM. Both draft settlement agreements state, "Pursuant to FAA Order 5190.6A, the 

County will revoke the existing FBO's right to operate the UNICOM and determine the 

level of manned service that the County will provide, if any." [FAA Exhibit 1, Item 1, exh. 

5, par. 17 & exh. 6, par. 12] In its Reply, JetAway alleges that the County may attempt to 

make JetAway pay for the cost of the UNICOM, without proving to JetAway that it's also 

charging JCP, equally. This is a speculative claim. The FAA observes that the County 

should distribute costs to its FBOs through a comprehensive and reasonable rate structure 

and cost-allocation. 

• At sub-count 7d, JetAway raises the issue of the County's apparent square footage 

requirement. [FAA Exhibit 1, Item 1, page 45] 

JetAway states that the County is requiring JetAway to construct crew and passenger 

lounge facilities totaling at least 4,000 square feet. It states that this is 1,500 square feet 

judges compliance by an airport sponsor's actions or inactions with respect to those agreements or 

minimum standards." [Self Serve Pumps, DD, pp. 31-32] 

Page 41 of 50 
FAA Docket No. 16-08-01 Director's Determination 

larger than required by the 2005 Minimum Standards, but equivalent to the size facility 

required in JCP's lease. [FAA Exhibit 1, Item 1, p. 46] In fact, it does appear that the 

County did include the 4,000 square feet requirement in its November 2007 draft 

settlement agreement. [FAA Exhibit 1, Item 1, exh. 5, par. 12] Again, the FAA 

understands that positions taken in negotiations are often fleeting. That appears to be the 

case here. In its Answer the County concedes the point, stating, "A second FBO will only 

have to build improvements of a size that is specified in the Minimum Standards. It does 

not have to match the size of JCP's facilities to the extent those facilities are in excess of 

the Minimum Standards." [FAA Exhibit I, Item 3, p. 39. See also FAA Exhibit 1, Item 1, 

exh. 21, Section Two III B.] In response to this statement by the County, JetAway replies, 

"That is certainly an appropriate position for the County to take." [FAA Exhibit 1, Item 5, 

p. 39] Under the circumstances, we agree with JetAway and the County. 

In some Sub-Counts JetAway alleges County is not required to take specific actions 

At sub-count 6e and 7a, JetAway alleges that the County is choosing to take actions that 

its grant assurances do not require it to take. Such an allegation is not an allegation of the 

violation of a grant assurance. It ignores an airport sponsor's proprietary rights that may 

be more comprehensive than the FAA grant assurances. 

• At sub-count 6e, JetAway states that it is unnecessary for the County to issue a 

Request-for-Proposal (RFP) to solicit interest in a second FBO opportunity. 

[FAA Exhibit 1, Item 1, page 38] 

JetAway states, "the County had acknowledged and agreed that an RFP for a second FBO 

would be 'unnecessary and inappropriate,"' but after JCP threatened to sue the County, the 

County raised the possibility of issuing an RFP for a second FBO. [FAA Exhibit 1, Item 1, 

p. 38] The Director addressed this issue specifically in the 2006 JetAway DD. The 

Director disagreed with JetAway's 2006 assertion that the RFP process for a second FBO 

is unnecessary and delaying. The Director stated: 

The grant assurances do not prohibit the County from entering into long-term leases 

with commercial entities, by negotiation, solicitation, or other means. The County 

may choose to select FBOs ... through an RFP process, and, if it chooses to do so, it 

can do it each time a new applicant is considered. [FAA Exhibit 1, Item 3, exh. A, 

p. 28] 

The Director noted in a footnote in the 2006 JetAway DD that RFP's are a common 

industry practice that provide a widely circulated call for aeronautical interest in airport 

facilities, and provide an appropriate method of ensuring the highest and best use for 

limited airport property. [FAA Exhibit 1, Item 3, exh. A, p. 28] 

Additionally, the Director has also recoguized that an airport sponsor can liruit a current 

Airport FBO tenant from responding to a proposal for a new FBO opportunity in 

furtherance of compliance with grant assurance 23 Exclusive Rights. In Corporate Jets v 

Scottsdale, the Director upheld the airport sponsor's decision to exclude an incumbent 

Page 42 of 50 
FAADocketNo.l6-08-01 Director's Determination 

FBO "from responding to a request for proposal, based on the sponsor's desire to create 

competition or add fUrther competition at the airport and to provide more choice and 

services for the public users." (Corporate Jets v City of Scottsdale, FAA Docket No. 16-

01-12 (March 15, 2002) (Director's Determination), p. 10) 

The precedent in the 2006 JetAway DD and Comorate Jets applies in the extant case. 

• At sub-count 7a, JetAway objects to being subject to the same lease term as JCP. 

[FAA Exhibit 1, Item 1, page 39] 

JetAway states that the County appeared flexible on JetAway's proposed lease term of35 

years, but changed its position after pressure from JCP. JetAway states," ... the County 

ultimately insisted that the term provisions be identical to those in the JCP FBO 

Agreement- an initial term of twenty years with a ten-year option." [FAA Exhibit 1, Item 

1, p. 40] The County answers, "the County doesn't perceive that requiring all FBO's to 

have the same term is either unreasonable or unjustly discriminatory." [FAA Exhibit 1, 

Item 3, p. 36] 

The FAA agrees with the County. The County's grant assurances may not require the 

specific action contemplated by the County, but they do not r,rohibit it. The County has 

the proprietary right to establish the terms of its FBO leases. 0 

In some Sub-Counts the Parties Differ 

• At sub-count 7b(l) JetAway states that it's unreasonable and discriminatory to 

require JetAway to meet the applicable minimum standards before commencing 

FBO operations, when JCP was not formally required to demonstrate that it had 

met the minimum standards before it began operations in 2006. 

JetAway states," ... the County was indeed going to impose unreasonable discriminatory 

requirements on JetAway that it had not imposed on JCP or others." [FAA Exhibit 1, Item 

1, p. 41] The County answers, "There is nothing unreasonable or unjustly discriminatory 

in requiring all FBO's to comply with the same Minimum Standards before FBO 

operations commence." [FAA Exhibit 1, Item 3, p. 37] 

JetAway has not provided evidence that JCP had not met the minimum standards before 

beginning operations in 2006. However, JetAway focuses its argument in its Reply, 

stating "But the point is that the County did not require JCP to do anything to demonstrate 

compliance with the Minimum Standards before commencing operations and yet insisted 

that JetAway would have to do so." [FAA Exhibit 1, Item 5, p. 37] 

30 The parties should note that in most cases, nuder a long-term lease, the airport owner transfers the cost of 

the capital improvement and the risk associated with financing to the tenant. In return, the airport owner 

gives up a degree of flexibility. Prospective tenants considering a substantial investment in the airport 

generally seek a lease term sufficiently long to ensure that the tenant gets not only a return of its 

investment, but a return on its investment as well. [See Skydance Helicopters v. Sedona Oak-Creek Airport 

Authoritv, FAA Docket No. 16-02-02 (March 7, 2003) (Director's Determination) p. 29. 

Page43 of 50 
FAADocketNo.16-08-0l Director's Determination 

The standard of compliance does not require that airport sponsors enforce minimum 

standards so rigidly as to require identical tone and posture toward all competitors that 

have different records and history with the sponsor. [See Rick Aviation v Peninsula 

Airport Commission, FAA Docket No. 16-05-18 (May 8, 2007) (Director's 

Determination) p. 16] 

JCP and JetAway are not similarly situated. Apart from the differences in location, 

amenities, circumstances and time, JetAway has access to off-airport facilities that could 

allow it to operate indefinitely without meeting the Minimum Standards on the Airport. 

Clearly, this is different from JCP's situation. Further, in this circumstance, it is 

reasonable for the County to require a second FBO to meet minimum standards before 

beginning operations and it is reasonable for the County to require JetAway to 

expeditiously construct its on-Airport facilities and not rely on off-Airport infrastructure. 

• At sub-count 7e, JetAway objects to the County's requirement that it pay the same 

lease rates as JCP despite apparent differences in the quality of the leased properties. 

[FAA Exhibit I, Item 1, page 46] 

JetAway states, "the County's insistence on identical FBO revenue provisions (rent) until 

now has been unreasonable and discriminatory under the circumstances .... The County 

simply insisted that JetAway pay the same rate, or actually a higher rate, for unimproved 

land on which it would have to construct a ramp at a cost to JetAway." [FAA Exhibit 1, 

Item 5, pp. 40-41] 

The County allows that rates for JetAway's leasehold may be set by market forces, 

capturing any differential in improvements and location, stating, "If there is an RFP for 

the identified second FBO and JetAway chooses to bid, it will have the opportunity to 

address and support in its proposal why it should pay less than JCP." [FAA Exhibit 1, 

Item 3, p. 39] The Director notes that this mechauism can be used to set rates at either 

the JetAway-adjacent parcel or the 9-acre Site. 

JetAway states, "JetAway does not expect the Director to address any specific revenue 

provision that would be appropriate, and recognizes that the revenue provisions will be 

subject to negotiation .... " [FAA Exhibit 1, Item 5 p. 40] It is not the responsibility of the 

Director to establish airport rates, nor does the Director negotiate rates between parties. 

Specific rate negotiations involves numerous variables. It is acceptable to rely on marketmechauisms to help determine the value of a particular location at an airport. Also, it is 

customary and reasonable for airport sponsors to have an 'unimproved' and 'improved' 

rate schedule. Tenants financing improvements may pay a lower initial rental (ground 

rent) than tenants leasing a facility from an airport sponsor. The former will have debt for 

the new facility while the latter may not have such debt payments. 

Page 44 of 50 
FAA Docket No. 16-08-01 Director's Determination 

Issue 4 Conclusion 

As discussed above, the County has not acted unreasonably in regard to declining 

JetAway's proposals. The County has good reason to attempt to limit legal and fmancial 

liability associated with the circumstances of JetAway's site and proposed operationnamely the through-the-fence access point and the Off-Airport Agreement that provide 

JetAway, its tenants, and customers31 

access to the Airport. The County's alternative to 

any of the points discussed above was to say 'no' and direct JetAway to an alternative site 

apart from the through-the-fence access point. 

As sincere and determined as JetAway's hope for its leasehold vision may be, it is built on 

the shaky legal foundation of the Off-Airport Agreement. The County's grant assurances 

do not liruit the County's proprietary right to attempt to minimize its exposure to the legal 

jeopardy that the Off-Airport Agreement may represent. The County may act to limit, 

mitigate or eliminate through-the-fence access, including the Off-Airport Agreement. It 

may act to reduce its exposure to potential fmancialliability, so that it can avoid passing 

on such costs to its aeronautical users. Its grant assurances require it to not unjustly 

discriminate against its fully on-Airport tenants and to retain its rights and powers. Even 

if the legal jeopardy is small, the Federal obligation is a one-way street, in favor of the onAirport tenants. 

As stated, JetAway has no presence on the Airport apart from its Off-Airport Agreement. As 

such it is equivalent to any proponent of a second FBO at the Airport and is subject to the 

reasonable planning judgments of the County as to where such FBO may be located. In 

addition, it is subject to the County's prerogative to solicit other interested parties in an RFP. 

For the reasons discussed herein, the Director finds that the County has not unreasonably 

denied access to JetAway, nor has the County unjustly discriminated against JetAway. 

Furthermore, the County has not constructively granted an exclusive right by means of 

unreasonable treatment of JetAway or through the imposition of unreasonable terms. 

Considering the above, the Director finds that the County is not in violation of grant 

assurance 23, Exclusive Rights or grant assurance 22, Economic Nondiscrimination. 

Issue 5 

Whether the County has provided more favorable treatment to JCP with regard to 

retail aircraft services in a manner that unjustly discriminates against JetAway in 

violation of Federal grant assurance 22, Economic Nondiscrimination, 49 U.S.C. 

§ 47107(a). 

JetAway raises several issues (discussed below) under this grant assurance and alleges that 

the County has unjustly discriminated against JetAway. [FAA Exhibit 1, Item 1, page 49-

50) 

31 It is unclear from the record whether JetAway intends to continue commercial aircraft storage services. 

Page 45 of 50 
FAA Docket No. 16-08-01 Director's Determination 

The County answers, "The County has not unjustly discriminated against JetAway. On 

the contrary, if the County granted JetAway's proposal, which is the basis for this 

Complaint, the County would be unjustly discriminating against the existing tenants on the 

Airport." [FAA Exhibit, 1, Item 3, p. 40] 

Many of JetAway's counts do not contain an allegation including the elements of a claim 

of unjust economic discrimination. Also, most do not allege any facts that the Director 

can construe as a denial of access to JetAway, reasonable or unreasonable. 

The Director has described the fact elements of an allegation of unjust economic 

discrimination, in the previously referenced Gate 9 Part 16 case: 

In order for the Director to sustain an allegation of unjust economic discrimination, 

the record must show the elements of urifust economic discrimination under grant 

assurance 22. In a Part 16 proceeding, the Complainant has the burden of proof to 

establish the elements of unjust discrimination. ... , the record must show that 

another party similarly situated to the Complainant received preferential treatment 

denied to the Complainant in similar circumstances. . .. The FAA has acknowledged 

that several factors can distinguish parties that a sponsor can justly treat differently, 

without violating its Federal obligations. Such factors may be: period of lease, 

business plan proposed, location of facilities, level of service and amenities, scope 

of services, investment, market conditions, and reasonable actions by the sponsor to 

promote and protect its ability to continue to serve the interests of the public in civil 

aviation, including the enlistment of prudent business practices that may change 

over time. [Gate 9, DD, p. 11] 

Prudent business practice can and should include protecting the rights and powers of the 

sponsor to continue as a going concern, including acting to limit, mitigate or eliminate a 

through-the-fence access right. 

In regard to the following allegations, the County repeats that JetAway does not offer any 

facts to support that its specific claims are unjustly discriminatory against JetAway, nor 

does it offer any legal support for its claims. [FAA Exhibit 1, Item 3, pp. 41-43] The FAA 

agrees with the County. 

With regard to counts 1-6, the statements all appear to describe instances when the County 

acted to promptly develop its airport infrastructure in a manner that benefits its on-Airport 

tenant and FBO service provider, JCP, in some cases by directly improving facilities used 

by JCP. 

1. The County made available and lease the "prime FBO location" to JCP.32 [FAA 

Exhibit 1, Item 1, page 50] 

2. The Montrose County Building Authority refmanced the Airport's debt structure 

for the benefit ofJCP. [FAA Exhibit 1, Item 1, page 51] 

32 With regard to the leasing and configuration of JCP's leasehold, see Issue 3, above. 

Page 46 of 50 
FAA Docket No. 16-08-01 Director's Deten:nlllation 

3. The County accelerated the construction of improvements for JCP. [FAA Exhibit 

1, Item 1, page 51] 

4. The County paved a ramp area for JCP's exclusive use. [FAA Exhibit 1, Item 1, 

page 52] 

5. The County constructed an access road to JCP's facilities.[FAA Exhibit 1, Item 1, 

page 52] 

6. The County is relocating taxiways to provide better access to JCP's facilities. 

[FAA Exhibit 1, Item 1, page 52] 

In counts 1-6, JetAway makes no claims or statement of fact that constitutes an allegation 

of an unreasonable denial of access. JetAway has never been similarly-situated to JCP in 

that it has never held the rights or met the standard to conduct a commercial aeronautical 

activity on the Airport. Again, the County's grant assurances do not protect JetAway's 

off-Airport business interests. Therefore, the actions are not unjustly discriminatory. 

Counts 7-10 regard JetAway's claims of discrimination against JetAway's ability to 

conduct its aeronautical business. 

7. The County requires all transient aircraft to park at JCP facilities. [FAA Exhibit 1, 

Item 1, page 52] 

8. The County has given JCP control over all general aviation parking. [FAA 

Exhibit 1, Item 1, page 53] 

9. The County has prohibited JetAway from paving the ramp area authorized and 

required by the Land Lease Agreement. [FAA Exhibit 1, Item 1, page 53] 

10. The County has placed unreasonable restrictions on JetAway. [FAA Exhibit 1, 

Item 1, page 55] 

With regard to counts 7-10, JetAway was not authorized to conduct FBO operations onAirport under a Land Lease Agreement from a site adjacent to its off-Airport facilities. 

The 2006 JetAway DD addressed this issue, stating, "The area leased by JetAway pursuant 

to the Land Lease Agreement was not intended for FBO operations and the use of that 

leased premises is 'for parking and moving of aircraft and for no other purpose."' [2006 

JetAway DD, p. 29] 

Counts 7-10 are moot since the Montrose District Court terminated JetAway's Land Lease 

Agreement in June 2008.33 This eliminated the County's landlord-tenant relationship with 

JetAway and removed any pretense that JetAway's off-Airport commercial business was 

ever protected by the County's grant assurances. Since JetAway's Land Lease was never 

for any commercial purpose, including FBO activities, JetAway was never similarlysituated to JCP, so there is no unjust economic discrimination. Even assuming that 

33 The Court stated, "The County also argues that JetAway breached the lease by using the leased area for 

FBO operations. The Court agrees. It is indisputed that JetAway fueled airplanes on the leased premises 

after entering into the Land Lease Agreement." [FAA Exhibit 1, Item 5, exh. 60, p. 31) 

Page 47 of 50 
FAADocketNo.16-08-01 Director's Determination 

JetAway was not using the Land Lease ramp to support its FBO business,34 JetAway 

provides no evidentiary support that these actions constitute an unreasonable denial of 

access. 

Specifically, with regard to counts 7 & 8, JetAway claims that the County was harming 

JetAway by limiting parking on its former Land Lease ramp to I hour, thus advantaging 

JCP's dissimilar, on-airport FBO business. [FAA Exhibit I, Item 1, p. 52] The County 

denies this, citing a reason for its rule: 

JetAway ... claims that the County requires all transient aircraft to park at JCP 's 

facilities. That claim is untrue. [See FAA Exhibit 1, Item 31 pp. 2-3] JetAway can 

park aircrqft on its ramp but it cannot park in the taxilane/taxiway or the OFA. It 

also cannot park aircrqft in the fueling area adjacent to JetAway for more than one 

hour. [FAA Exhibit 1, Item 3, p. 42] 

The evidence provided by the County supports its position. JetAway provides no counter 

evidence to refute the County. As stated, in any case, the point is moot, since JetAway 

lost its Land Lease by the Montrose Court Order in June 2008. 

With regard to count 9, JetAway alleges that the County denied it the ability to pave some 

Airport property adjacent to JetAway's off-Airport hangar. JetAway stated that it wanted to: 

pave a ramp area for parking and moving aircraft. Some of the aircraft would be 

parked inside the hangar, as they had been with the County's knowledge, consent 

and encouragement since December 2004. And some pilots and passengers would 

use the lounge facilities. [FAA Exhibit 1, Item 1, p. 53] 

The County notes this admission by JetAway, adding, "JetAway continued to use the ramp 

for FBO purposes in support of its off-Airport, through-the-fence operation." [FAA 

Exhibit 1, Item 3, p. 44] In fact, the County had stated their opposition to the construction 

stemmed in part from the County's concern not to support "JetAway's combined throughthe-fence /on-the-Airport FBO operations." [FAA Exhibit 1, Item 3, p. 44] 

With regard to count 10, JetAway admits its business interests on the Airport, despite 

having no commercial lease on the Airport. JetA way alleges, "The County has recently 

placed unreasonable and unnecessary restrictions on JetA way's ability to conduct any 

business." [FAA Exhibit 1, Item 1, p. 55] As stated, JetAway's off-airport business 

interests are not protected by the grant assurances and the County is free to limit, mitigate 

or eliminate commercial or non-commercial through-the-fence access. The County's 

concern regarding JetAway's commercial-use of Airport property under a non-commercial 

lease (JetAway Land Lease) is reasonable and well-founded, as discussed in the Montrose 

Court Order. [FAA Exhibit 1, Item 5, exh. 60, p. 31] 

34 Of course, the Court found otherwise and terminated JetA way's Land Lease. But also, JetAway admits 

this in its pleadings, stating under count 10, "The County has recently placed unreasonable and unnecessary 

restrictions on JetAway's ability to conduct any business." [FAA Exhibit 1, Item 1, p. 55] 

Page 48 of 50 
FAADocketNo.l6-08-0l Director's Determination 

Count 11: The County has refused to negotiate with JetAway in good faith for the lease 

of available premises for an FBO 

In its last count, JetAway sununarizes its grievances, examined above, and styles them as a 

violation ofF AA Order 5190.6A, stating: 

FAA Order 5190.6A specifies at Par. 4-15 that the airport owner "has the 

obligation to make available suitable areas or spaces on reasonable terms to those 

who are willing and otherwise qualified to offer" FBO services and that "unless it 

undertakes to provide those services itself, the airport owner has a duty to negotiate 

in good faith for the lease of such premises. [FAA Exhibit 1, Item 1, p. 56] 

JetAway argues that the County is in violation of the FAA Order because the County has 

failed to negotiate with JetA way in good faith. As stated, the FAA Order does not impose 

obligations upon the sponsor. 

In its entire Complaint, JetAway refers extensively to the record containing evidence that 

the County has, in fact, engaged JetAway in negotiations to accommodate JetAway's 

preferred location for a second FBO on the Airport. For example, the record includes 

various draft and proposed settlement agreements. [FAA Exhibit 1, Item 1, exhs. 4-8] The 

County's alternative to negotiating with JetAway for its preferred FBO location, from the 

beginning, was to simply state that the County wished to avoid the legal, financial and 

technical obstacles associated with the JetAway location. Instead of saying 'no,' to 

JetAway' s preferred location and issuing an RFP for the 9-acre Site, the County continued 

negotiating in mediation. The evidence of the County's posture during negotiations more 

nearly describes defensiveness and concern, than a lack of good faith. As stated above, 

the FAA sees valid reasons for the County's concerns and notes that the County's grant 

assurances allow it to limit, mitigate or eliminate the Off-Airport Agreement rights, in 

favor of its fully-on Airport tenants. 

Issue 5 Conclusion 

JetAway has failed to establish that it is similarly-situated to JCP in a manner to sustain a 

finding of unjust economic discrimination. As stated herein and in the 2006 JetAway DD, 

JetAway's off-Airport interests are not protected under the grant assurances. Rather, the 

County's grant assurances protect the County's Airport tenants (some of whom may be 

JetAway's competitors) from JetAway's business interests conducted from an off-Airport 

location. JetAway is due the consideration of any other seeker of a leasehold at the Airport. 

Also, as stated above, the County had valid reasons for deciding to close out negotiations with 

J etA way and to offer an alternative site for a second, competing FBO at the Airport. 

The Director finds that the County is not in violation of grant assurance 22, Economic 

Nondiscrimination. 

Page 49 of 50 
FAA Docket No. 16-08-01 Director's Determination 

VII. FINDINGS and CONCLUSIONS 

It is unfortunate that the parties could not reach agreement to resolve the through-thefence access issues in a manner that would allow JetAway to become an on-Airport FBO. 

However, the County's first obligation is to protect its on-Airport tenants from those 

attempting to conduct commercial FBO activities through-the-fence from an off-Airport 

location. The County is correct to respectfully consider JetAway's interest in leasing 

Airport property as it would with any other applicant. Issuing an RFP for the 9-acre Site 

would be a good way to do provide transparency. Before taking action however, the 

County took great efforts to negotiate with JetAway to become an on-Airport FBO. 

These efforts, including mediation, were not successful. 

In the end, the evidence presented by the Complainant is insufficient to eclipse the 

Airport's proprietary responsibility to make decisions that best serve the aeronautical 

interests of the public and the interests of the Airport as a going concern. 

Upon consideration of the submissions and responses by the parties, the record herein, 

applicable law and policy, and for the reasons stated above, the Director of the FAA 

Office of Airport Compliance and Field Operations finds and concludes that the County 

is not currently in violation of grant assurances 5, Preserving Rights and Powers; 22, 

Economic Nondiscrimination; 23, Exclusive Rights; 24, Fee and Rental Structure; or 29, 

Airport Layout Plan. 

ORDER 

Accordingly, it is ordered that: 

1. The Complaint is dismissed. 

2. All Motions not expressly granted in this Determination are denied. 

RIGHT OF APPEAL 

This Director's Determination, FAA Docket No. 16-08-01, is an initial agency 

determination and does not constitute a final agency decision and order subject to judicial 

review. [14 CFR § 16.247(b)(2)] A party to this proceeding adversely affected by the 

Director's Detemrination may appeal the initial determination to the FAA Associate 

Administrator for Airports pursuant to 14 CFR § 16.33(b) within thirty (30) days after 

service of the Director's Determination. 

Randall S. Fiertz 

Director, Office of Airport Compliance 

and Field Operations 

Page 50 of 50 

Date: :J..i7 ( 20o '{ 
INDEX OF ADMINISTRATIVE RECORD 

JetAway Aviation, LLC 

v. 

Board of County Commissioners, Montrose County, Colorado 

and the Montrose County Building Authority 

Docket No. 16-08-01 

The following items constitute the administrative record in this preceding: 

Item 1 

FAA Exhibit 1 

Complaint, dated January 25, 2008. 

Exhibit 1 

Exhibit 2 

Exhibit 3 

Exhibit 4 

Exhibit 5 

Exhibit 6 

Montrose Regional All-port Land Lease Agreement, JetAway 

Aviation LLC, dated November 7, 2005. 

Assignment of Agreement Authorizing Off-Airport Operations at 

Montrose Regional Airport and Consent to the Assignment dated 

November 30, 2004, including copy of original Agreement 

Authorizing Off-All-port Operations at Montrose Regional Airport, 

dated August 23, 2001. 

Complaint and Jury Demand in JetAway Aviation, LLC vs. Board 

of County Commissioners of Montrose County, Colorado, and the 

Montrose County Building Authority, et al, with three exhibits, 

dated December 10, 2007. 

Settlement Agreement Reached through Mediation, between 

County of Montrose, JetAway Aviation, and One Creative 

Place LLC, and KMTJ Fuel LLC, as a result of mediation 

conducted by the Federal Aviation Administration on March 6 and 

7, 2007, subject to County Board approval. Document is signed 

and dated March 8, 2007. 

Settlement Agreement Reached Through Mediation, between 

parties County of Montrose, JetAway Aviation, One Creative 

Place LLC, and KMTJ Fuel LLC, as a result of mediation 

conducted by the Federal Aviation Administration on September 

18 and 19,2007. Document is unsigned. 

Settlement Agreement Reached Through Mediation, between 

parties County of Montrose, JetAway Aviation, and One Creative 

Place LLC, and KMTJ Fuel LLC, as a result of mediation 

conducted by the Federal Aviation Administration on beginning on 

March 6, 2007. Document is unsigned. 
Exhibit 7 Proposed Settlement Agreement dated November 28, 2007. Letter 

from William White, Byrne, Kiely & White, LLP to Brian A. 

Magoon, Esq., noting receipt of the Montrose County proposed 

settlement agreement dated November 16, 2007 and identifYing 

additions to the agreement that are not acceptable to JetAway 

Aviation. 

Exhibit 8 Letter dated December 5, 2007 from Brian A. Magoon to William 

White, Esq., regarding JetAway proposed settlement agreement of 

November 28,2007. 

Exhibit 9 Montrose Regional Airport Minimum Standards dated 2003. 

Exhibit 10 Inventory of Existing Conditions for the Montrose Regional 

Airport Master Plan. Document is a reevaluation of the Airport's 

Master Plan as a means of analyzing current and forecast 

operational characteristics and facilities, dated September, 2004. 

Exhibit 11 Aerial photographs of Montrose Regional Airport Terminal area. 

Photographs are not dated. 

Exhibit 12 Development Concepts and Alternatives Analysis of the Montrose 

County Regional Airport Master Plan Update, dated March 2005. 

Exhibit 13 Request for Proposals for a Fixed Base Operator at the Montrose 

Regional Airport. Deadline for proposal submission was April 1, 

2005. 

Exhibit 14 Proposal for a Fixed Base Operation at the Montrose County 

Regional Airport from Jet Center Partners, LLC, dated April 6, 

2005. 

Exhibit 15 Letter dated May 27, 2005 from Scott Brownlee, Director of 

Aviation, Montrose Regional Airport to Jet Center 

Partners, LLC, regarding a list of questions presented to Jet Center 

Partners regarding proposal for fixed base operation. 

Exhibit 16 Letter dated May 31,2005 from Jet Center Partners, LLC to Scott 

Brownlee, Director of Aviation, Montrose County Regional 

Airport, regarding responses to questions presented in letter dated 

May 27, 2005 (Exhibit 15). 

Exhibit 17 Planning Memorandum, Conceptual Airport Development Plan 

and Passenger Terminal Development Alternatives, Montrose 

County Regional Airport Master Plan Update, dated June 2005. 

2 
Exhibit 18 Letter dated August 11,2005, from Randy Duncan, President, 

Jet Centers, lnc. to Montrose Regional Airport 

Commissioners Belt, Patterson and Ubell, praising JetAway's 

existing facility on the Airport and encouraging Airport 

Commissioners to allow continued off-airport access from 

JetAway. 

Exhibit 19 Montrose Regional Airport Fixed Base Operator 

Agreement between Montrose Regional Airport and Jet 

Center Partners, LLC, dated December 5, 2005. 

Exhibit 20 Resolution (80-2005) of the Montrose County Board of County 

Commissioners to Amend the Airport Minimum Standards, dated 

December 5, 2005. 

Exhibit 21 Montrose Regional Airport Miniml)ID Standards, Adopted 

August 4, 2003, Revised December 5, 2005. 

Exhibit 22 Two (2) photographs of Black Canyon Jet Center's fixed base 

operation at Montrose Regional Airport. Photographs are 

not dated. 

Exhibit 23 District Conrt, Montrose County, Colorado, ORDER- Montrose 

County Airport Authority- Plaintiff, v. V.I.P. Flyers, Defendant, 

dated May 16, 1991. 

Exhibit 24 Official Statement regarding $525,000 Certificates of Participation, 

Series 2006A, 2006 B and 2006 C. 

Exhibit 25 Letter dated August 5, 2006, from William White, Bryne, Kiely & 

White, LLP, to Robert J. Hill, Esq., requesting a lease by JetAway 

Aviation for the South Tract consisting of187,395.12 square feet 

at Montrose Regional Airport. 

Exhibit 26 Draft Final Report, Montrose Regional Airport Master Plan 

Update, Airport Layout Plan graphic, dated August 24, 2006. 

Exhibit 27 Proceedings of the Board of Montrose County Commissioners, 

dated February 20, 2007. 

Exhibit 28 Montrose County Airport Lease - surveyors map. 

Exhibit 29 Graphic depicting Black Canyon Leaseholds on Montrose County 

Regional Airport- Terminal Area Plan. Graphic is not dated. 

3 
Exhibit 30 Aerial photograph of Montrose Regional Airport 

Commercial Terminal, depicting Black Canyon fixed base 

operation and hangar facility. Photograph is not dated. 

Exhibit 31 Letter dated November 20, 2007, from Joe Kerby, Montrose 

County Manager, to Jim Rumble, Manager, Black Canyon Jet 

Center and Steve Stnhmer, Manager, JetAway Aviation, regarding 

the adversarial climate between Black Canyon Jet Center and 

JetAway Aviation and providing a form to be used as a complaint 

processing tool. 

Exhibit 32 Letter dated December 6, 2007, from William White, Byrne, Kiely 

& White, to Joe Kerby, Montrose County Manager, responding to 

letter identified in Exhibit 31. 

Exhibit 33 Electronic mail message dated June 24, 2003, from John Bauer to 

Scott Brownlee, regarding review and comments on Montrose 

County Regional Airport minimum standards. 

Exhibit 34 Letter dated September 14, 2007, from JetCenters, Inc. to 

Montrose County Commissioners Belt, Patterson and Ellis, 

regarding the professionalism of J etA way Aviation. 

Exhibit 35 Letter dated July 18, 2007, from William White, Bryne, Kiely & 

White, LLP, to Jerome P. Jones, Jr. Esq., Associate Chief Counsel 

and Dispute Resolution Specialist for the Federal Aviation 

Administration, regarding Public Records Request of May 29, 

2007. 

Exhibit 36 Minimum Standards Guidelines for FBO Operations at the 

Montrose Regional Airport. Document is undated. 

Exhibit 37 Letter dated June 16, 2006, from Tectonic Management Group, 

Inc, to Federal Aviation Administration's Northwestern Mountain 

Regional Office, regarding forms 7460-1 for pre-engineered metal 

hangar and a temporary construction crane on the Montrose 

Regional Airport. 

Exhibit 38 Letter dated August 3, 2006, from Scott Brownlee, Montrose 

Regional Airport, to Chris Schafer, Federal Aviation 

Administration, Denver Airport District Office, regarding concerns 

that a proposed hangar for JetAway is depicted on Form 7460 that 

are on land not under lease to JetAway. 

Exhibit 39 Letter dated November 26, 2007, from Tectonic Management 

Group, Inc. to Federal Aviation Administration, Northwest 

4 
Item2 

Exhibit40 

Exhibit 41 

Mountain Regional Office, regarding forms 7460-1 for preengineered metal hangar and a temporary construction crane on the 

Montrose Regional Airport. 

Electronic mail dated May 10, 2006, from Shawn Turek to Stephen 

Stuhmer regarding the impact of JetAway's proposed hangar on 

the VOR at the Montrose Regional Airport. 

Electronic mail dated May 17, 2006, from Shawn Turek to Stephen 

Stuhmer regarding the impact of JetAway's proposed hangar on 

the VOR at the Montrose Regional Airport. 

FAA Notice of Docketing, dated February 12,2008. 

Item2A County request for extension of time to file Answer, dated February 27, 

2008. 

Item2B FAA approval of County's extension request, dated February 29, 2008. 

Item3 Answer and Motion to Dismiss, dated March 28, 2008. 

Exhibit A 

ExhibitB 

Exhibit C 

ExhibitD 

ExhibitE 

ExhibitF 

FAA Docket No. 16-06-01, Director's Determination, 

JetAway Aviation, LLC v. Board of County Commissioners, 

Montrose County, Colorado. 

Proceedings of the Board of Montrose County Commissioners, 

Dated November 20, 2006. 

Letter dated February 4, 2008, from Michael A. Hodges, 

President/CEO, Airport Business Solutions, to Brian Magoon, 

Robinson Waters & O'Dorisio. 

Letter dated March 25, 2008, from Michael A. Hodges, 

President/CEO, Airport Business Solutions, to Brian Magoon, 

Robinson Waters & O'Dorisio, regarding a review of the Airport 

Layout Plan at the Montrose Regional Airport. 

Complaint for Declaratory Judgment by the District Court, 

Montrose County, Colorado, involving plaintiff One Creative 

Place and JetAway Aviation v. Montrose County, Colorado, dated 

January 4, 2006. 

Agreement to Participate In Mediation conducted by the Federal 

Aviation Administration between JetA way Aviation and Montrose 

County, Colorado, dated March 6, 2007. 

5 
ExhibitG 

ExhibitH 

Exhibit I 

Exhibit J 

ExhibitK 

Exhibit L 

ExhibitM 

ExhibitN 

Exhibit 0 

Exhibit P 

ExhibitQ 

ExhibitR 

Document from the Colorado Statutes with definition of"Meetings 

-open to the public- definition." 

Airport Facilities Lease Purchase Agreement between the 

Montrose County Building Authority and Montrose County, 

Colorado. Dated July 1, 2006. 

Proceedings of the Board of Montrose County Commissioners, 

dated June 19, 2006. 

Montrose Regional Airport Land Lease Agreement with JetAway 

Aviation, dated November 7, 2005. 

Temporary Restraining Order by the Board of County 

Commissioners of the County of Montrose, CO against One 

Creative Place, and JetAway Aviation, dated April10, 2006 

Assigmnent of Agreement Authorizing Off-Airport Operations at 

Montrose Regional Airport and Consent to the Assignment with 

One Creative Place, dated November 30, 2004. 

Response to Request for Proposals for Fixed Base Operations at 

Montrose Regional Airport submitted by JetAway Aviation, dated 

Aprill5, 2005. 

Complaint and Jury Demand in United States District Court for the 

District of Colorado between JetAway Aviation and the Board of 

County Commissioners for the County of Montrose, Colorado, 

dated December 10,2007. 

Answer to Complaint and Jury Demand in the United States 

District Court for the District of Colorado between JetAway 

Aviation and the Board of County Commissioners for the County 

of Montrose, Colorado, dated February 8, 2008. 

Montrose County Regional Airport Fixed Base Operation 

Agreement- Jet Center Partners, LLC, dated December 5, 2005. 

Proceedings of the Board of Montrose County Commissioners, 

dated December 5, 2005. 

Electronic mail, from Lloyd Arnold to Robert Hill regarding 

information on the Object Free Area at the Montrose Regional 

Airport, dated February 7, 2008. 

6 
Item4 

Exhibit S Newspaper article from the Montrose Press regarding the cessation 

of private mediation between Montrose County and JetA way 

Aviation, dated December 7, 2007. 

Exhibit T Newspaper article from the Montrose Press regarding JetAway 

Aviation's response to the County's decision not to undertake 

further private negotiations concerning business proposals at the 

Montrose Regional Airport, dated December 8, 2007. 

Exhibit U Newspaper article from the Montrose Press regarding new rules for 

parking and fueling aircraft at the Montrose Regional Airport, 

dated December 8, 2007. 

Exhibit V Letter from Robert J. Hill, Montrose County Attorney to William 

White, Bryne, Kiely & White, regarding perceived efforts by 

Montrose County to put JetA way Aviation out of business, dated 

December 10,2007. 

Exhibit W Letter, from William White, Bryne, Kiely & White, to Robert J. 

Hill, Montrose County Attorney, in response to letters of 

December 7, 2007 (Exhibit V) and another letter of December 5, 

2007 from Montrose County Manager Joe Kerby (not contained in 

Exhibits), dated December 12, 2007. 

Exhibit X Montrose Regional Airport Minimum Standards, Adopted August 

4, 2003 and Revised December 5, 2005. 

Exhibit Y County's Rebuttal to FAA Docket No. 16-06-01, JetAway 

Aviation LLC vs Board of County Commissioners, Montrose 

County and the Montrose Regional Airport, dated April21, 2006. 

Exhibit Z Electronic mail from Linda Bruce, Colorado State Plarmer, FAA 

Denver Airport District Office, to Mark McFarland regarding 

airway facility comments on Montrose Regional Airport, dated 

October 5, 2007. 

Exhibit AA Defendant's Preliminary Injunction Hearing Brief, submitted to the 

District Court, Montrose County, Colorado, dated October 27, 

2006. 

Exhibit BB Enplanement and deplanement data and fuel sales for years 2000-

2008 -Data is not identified as to the source of the information. 

Errata to Part 16 Answer and Motion to Dismiss, dated April 30, 2008. 

7 
Item4A Complainant's request for extension of time to file Reply, dated April 

7, 2008. 

Item 4B Respondent's response to Complainant's request for extension of time 

to file Reply, dated April 8, 2008. 

Item4C 

Item4D 

ltem4E 

Item 4F 

Item4G 

Item4H 

Item 41 

Item 4J 

ItemS 

Respondent's additional response to Complainants request for 

extension of time to file Reply, dated April14, 2008. 

FAA approval of Complainant's request for extension of time to file 

Reply, dated April15, 2008. 

Complainant's second request for extension of time to file Reply, 

dated May 22, 2008. 

Respondent's response to Complainant's second request for extension 

of time to file Reply, dated May 23, 2008. 

FAA approval of Complainant's second request for extension of time 

to file Reply, dated May 28, 2008. 

Complainant's third request for extension of time to file Reply, 

dated June 25, 2008. 

Respondent's letter agreeing to Complainant's third request for 

extension of time to file Reply, dated June 26, 2008. 

FAA approval of Complainant's third request for extension of time to 

me Reply, dated June 27, 2008. 

Reply, dated July 14, 2008. 

Exhibit 42 Montrose Regional Airport Master Plan, cover sheet for working 

papers, dated July 11, 2008 

Exhibit43 

Exhibit44 

Exhibit45 

Montrose Regional Airport Master Plan Updated, dated August 

2006. 

Handwritten notes identified as "Telecon with DB re: Master 

Plan," dated March 22, 2 004. 

Handwritten notes on Draft Final Master Plan meeting, dated 

August 24, 2006. 

Exhibit 46 E-mail from Mark McFarland to Jeanette Anderies regarding Draft 

Final Master Plan Report, dated December 17, 2007. 

8 
Exhibit 47 Grant Agreement for Montrose Regional, Contract No. DOTFA03NM-1112, dated August 18,2003. 

Exhibit 48 Grant Agreement fro Montrose Regional, Contract No. DOTFA04NM-1007, dated Apri114, 2004 

Exhibit 49 Letter to Craig Sparks from Scott Brownlee regarding closeout of 

AIP Project No. 3-08-0043-28, dated March 7, 2007. 

Exhibit 50 Agreement between Montrose County and Barnard Dunkel berg 

and Company, dated February 17,2004. 

Exhibit 51 Study Committee, Montrose Regional Airport Master Plan Update, 

dated December 9, 2004. 

Exhibit 52 Letter from Alan Wiechmann, Manager, Denver ADO, to David 

Gann, Chairman, Board of County Commissioners, with strike out 

and note, dated June 20, 1997. 

Exhibit 53 Airport Layout Plan for Montrose Regional Airport, Montrose, 

CO, dated January 20, 1997. 

Exhibit 54 Letter from John Bauer, Acting Manager, Denver Airports District 

Office, to Jeannette Anderies, Acting Director of Aviation, 

Montrose Regional Airport, dated November 14, 2007. 

Exhibit 55 Airport Layout Plan (depicting land acquisition) for Montrose 

Regional Airport, Montrose, CO, dated July, 2007. 

Exhibit 56 Airport Layout Plan (depicting land acquisition) for Montrose 

Regional Airport, Montrose, CO, (color version) dated July, 2007. 

Exhibit 57 Letter from Robert J. Hill, Montrose County Attorney to John 

Bauer, Assistant Manager, FAA Denver Airports District Office, 

dated May 16, 2008. 

Exhibit 58 Letter from Robert J. Hill, Montrose County Attorney to John 

Bauer, Assistant Manager, FAA Denver Airports District Office, 

dated May 23, 2008. 

Exhibit 59 Settlement Agreement between Montrose County Board of 

Commissioners and Jet Center Partners, dated February 4, 2008. 

Exhibit 60 Findings of Fact, Conclusions of Law and Order, District Court, 

Montrose County, Colorado, dated June 30, 2008. 

9 
Exhibit 61 Plaintiffs' Motion to Reopen the Evidence, District Court, 

Montrose County, CO, dated June 24, 2008 (with exhibits). 

Exhibit 62 Response of the Board of County Commissioners of the County of 

Montrose, CO, to the Motion to Reopen the Evidence, District 

Court, Montrose County, CO, dated July 9, 2008 (with exhibits). 

Exhibit 63 Plaintiff's Motion to Lift Stay of Proceedings or in the Alternative 

Motion for Clarification, U.S. District Court for the District of 

Colorado, dated July 11, 2008 (with exhibits). 

Exhibit 64 webpage printout (http://airport consultants.netlhodges _ main.htrn), 

regarding Airport Business Solutions and Michael A. Hodges, 

dated June 4, 2008. 

Exhibit 65 webpage printout (http://www.almexperts.com/ExpertWitness/ 

RecordDetail.aspx?record=8406481 &pf=true ), regarding Michael 

A. Hodges as an expert witness, dated June 4, 2008. 

Exhibit 66 Newspaper articles from the website, SignonSanDiego.com, 

including the following: "Aguirre investigates no-bid jobs OK' d 

by ex-airport director," dated December 4, 2005 and "Ex-airports 

boss sued by city attorney," dated December 14, 2005. Both 

articles appear under the San Diego Union-Tribune masthead. 

Exhibit 67 Complaint to Rescind Illegally Awarded Public Contracts; to 

Recover Money Had and Received; Violations of the Unfair 

Competition Act; and Violations of the False Claims Act, filed by 

the City of San Diego against Tracy L. Means, Michael Hodges, et 

al in Superior Court of California, County of San Diego, dated 

December 13,2005. 

Exhibit 68 FBO Site Analysis for Montrose Regional Airport prepared for 

JetAway Aviation by Stantec, dated July 2008. 

Exhibit 69 Aerial photograph of Montrose Regional Airport, showing aircraft 

traffic, undated. 

Exhibit 70 Excerpt from a document titled "Working Paper Five," dated 

October 2005. 

Exhibit 71 webpage printout from www.aimav.com, dated July 9, 2008. 

Exhibit 72 Drawing titled "Figure 4-3 MJC Facility Site Plan- Alternate 

Taxiway "E" Locations Montrose Regional Airport," undated. 

10 
Item6 

Exhibit 73 

Exhibit 74 

Exhibit 75 

Addendum to the FBO Site Analysis from Stantec (see FAA Item 

5, Exhibit 68), dated August 7, 2008 (filed by Complainant's 

motion on August 8, 2008). 

Letter from counsel to JetAway to counsel to Montrose County, 

offering settlement, dated August 6, 2008. 

Draft Settlement Agreement with drawings between Montrose 

County and JetAway, dated August 6, 2008. 

Rebuttal and Motion to Dismiss, dated August 15, 2008. 

Exhibit CC District Court, Montrose, Colorado, Case No. 2006CV18, 

2006CV25, Transcript of Hearing head on November 20,2007. 

Exhibit DD District Court, Montrose, Colorado, Case No. 2006CV25, 

Transcript of Hearing, page 57. 

Exhibit EE District Court, Montrose, Colorado, Case No 2006CV18, 

2006CV25, 2006CV126, Transcript of Michael Hodges 

Testimony, page 50. 

Exhibit FF Conference/Motion for Clarification Transcript of Proceedings, 

U.S. District Court, Case No. 07-VC-02563-RPM, pages 9-10. 

Exhibit GG The Response Of The Board Of County Connnissioners Of The 

County Of Montrose, Colorado, To The Motion To Reopen The 

Evidence Filed By Jetaway Avation, LLC, One Creative Place, 

LLC, And KMTJ Fuel, LLC. District Court, Montrose County, 

CO, Case No. 2006CV18, 2006CV25, 2006CV126 with 7 exhibits, 

dated July 9, 2008. 

Exhibit HH District Court, Montrose, Colorado, Case No 2006CV18, 

2006CV25, 2006CV126, Transcript of Michael Hodges 

Testimony, pages 15-20. 

Exhibit II Plantiffs' Reply in Support of Motion to Reopen The Evidence, 

District Court, Montrose County, CO., Case No. 2006CV18, 

2006CV25, 2006CV126, with exhibits A-S, dated July 21, 2008. 

Exhibit JJ Order Regarding Pending Motions, District Court, Montrose 

County, CO., Case No. 2006CV18, 2006CV25, 2006CV126, dated 

July 25, 2008. 

11 
Exhibit KK Letter from Lloyd D. Arnold, Director of Aviation, Montrose 

Regional Airport, to John Bauer, Assistant Manager, Denver ADO, 

Federal Aviation Administration, dated July 11, 2008. 

Exhibit LL Montrose Regional Airport, Airport Layout Plan dated July 2008. 

Exhibit MM Newspaper article from Montrose Press, dated August 8, 2008, 

regarding a settlement offer proposed by JetAway. 

ExhibitNN 

ExhibitOO 

ExhibitPP 

Exhibit QQ 

Exhibit 1 

Exhibit2 

Exhibit 3 

Exhibit4 

Exhibit 5 

Exhibit 6 

Exhibit 7 

Exhibit 8 

Letter from Mark E. Haynes, Ireland, Stapleton, Pryor & Pascoe, 

P.C., to Lloyd Arnold, Director of Aviation, Montrose Regional 

Airport, regarding JetAway's application for an Access Permit, 

dated July 29, 2008. 

Letter from Robert Hill, Montrose County Attorney to Mark 

Haynes, Ireland, Stapleton, Pryor & Pascoe, P.C., dated August 7, 

2008. 

West's Colorado Revised Statutes- Colorado Sunshine Law, Open 

Meetings Law, dated August 12, 2008. 

U.S. District Court for the District of Colorado, Case No. 1 :07-cv02563-RPM, JetAway Aviation, LLC v. The Board of County 

Commissioners, Montrose, Colorado- The Montrose Defendents' 

Opposition to Motion to Lift Stay of Proceedings or in the 

Alternative Motion for Clarification, dated August 11, 2008. 

District Court, Montrose County, Colorado, Transcript of hearing 

held on November 20, 2007, Case No. 2006CV18, 2006CV25, 

2006CV126. 

District Court, Montrose County, Colorado, Case No. 2006CV18, 

Plantiffs' Reply In Support Of Motion To Reopen The Evidence, 

dated July 21, 2008. 

District Court, Montrose County, Colorado, Case No. 2006CV18, 

Order Regarding Pending Motions, dated July 25, 2008. 

Advisory Circular 150/5070-6B (Airport Master Plans), dated 

May 1, 2007. 

Director's Determination 16-06-01, pages 1-2 and 34-35, dated 

November 6, 2006. 

District Court, Montrose County, Colorado, Case No. 1 :07-cv02563-RPM, JetAway Aviation, LLC v. Board of County 

Commissioners, Exhibits 6 & 7 To The Montrose Defendents' 

Opposition To Motion To Lift Stay Of Proceedings Or In The 

Alternative Motion For Clarification, dated August 11, 2008. 

Duplicate of Exhibit 6 above. 

Affidavit of Lloyd Arnold, dated July 8, 2008. 

12 
Item 7 

ItemS 

Item9 

Exhibit 9 Letter from John Bauer, Acting Manager, Denver Airports District 

Office, to Jeannette Anderies, Acting Director of Aviation, 

Montrose Regional Airport, dated November 14,2007. 

Exhibit I 0 Letter from Michael Hodges, President, Airport Business 

Solutions, to Brian Magoon, dated February 4, 2008. 

Exhibit 11 Agreement Between Barnard Dunkelberg & Company, Inc, and 

Carter & Burgess, dated September 15,2004. 

Exhibit 12 Contract between Montrose County, CO and Carter & Burgess, to 

perform engineering services at the Montrose Regional Airport, 

dated March 6, 2006. 

Exhibit 13 Montrose Regional Airport, Airport Layout Plan depicting 

proposed land acquisition, dated July 2008. 

Exhibit 14 FBO Site Analysis, prepared for JetAway Aviation, dated July 

2008. 

Exhibit 15 FAA Advisory Circular 150/5300-13, "Airport Design," dated 

September29, 1989. 

Exhibit 16 Letter from Stantec Consulting, Inc., to Stephen Stulnner, JetAway 

Aviation, regarding clarifications to the FBO Site Analysis (see 

Exhibit 15), dated August 7, 2008. 

Exhibit 17 District Court, Montrose County, State of Colorado, Case No. 

2006CVI8, 2006CV25, 2006CV126, Partial Transcript ofHearing 

Held on May 7, 2008. 

Exhibit 18 Proceedings of the Board of Montrose County Commissioners, 

dated February 5, 2007. 

Exhibit 19 Case cite: Local 812 GIP A, Plaintiff- against Canada Dry Bottling 

Co. ofNew York and Manhattan Beer Distributors, dated 

December 20, 2000. 

Exhibit RR District Court, Montrose County, State of Colorado, Case No. 

2006CV18, 2006CV25, 2006CV126, Transcript of Michael 

Hodges Testimony, dated May 6, 2008. 

Exhibit SS Taxiway "E" Relocation construction cost totals, not dated. 

Complainant's Motion to File Exhibit 73 to Complainant's Reply, 

dated August 8, 2008 (See Item 5, Exhibit 73, above). 

Complainant's Motion to File Exhibits 74 and 75, dated August 20, 

2008 (See Item 5 Exhibits 74 and 75, above). 

Respondents' Motion to Supplement Record, dated September 25, 

2008. 

Exhibit TT Letter from Kevin R. Kennedy of Byrne, Kiely & White to John 

Bauer, FAA, dated August 6, 2008, regarding proposed airport 

layout plan. 

13 
Exhibit UU Letter from Craig Sparks, Manager, Denver ADO, to Lloyd 

Arnold, Montrose Regional Airport, dated September 8, 2008, 

regarding review of proposed airport layout plan. 

Exhibit VV Copy of Airport Layout Plan for Montrose Regional Airport, dated 

August 2008. 

Exhibit WW Letter from Lloyd Arnold, Montrose Regional Airport Director of 

Aviation, to Steve Stuhmer of JetAway, dated September 8, 2008, 

forwarding an airport Access Permit Agreement. 

Exhibit XX Letter from Mark E. Haynes, counsel to JetAway, to Robert J. Hill, 

Montrose County Attorney, dated September 15,2008. 

Item 10 

Item 11 

Complainant's Answer To Respondents' Motion to Supplement 

Record, dated October 8, 2008. 

Respondent's Second Motion to Supplement Record, dated November 

25,2008. 

Exhibit YY Temporary Restraining Order from Montrose County District 

Court, dated November 14, 2008. 

Exhibit ZZ Transcript of Judge's Ru1ing from Hearing Held on November 14, 

2008 in Montrose County District Court, State of Colorado. 

Item 12 Complainant's Answer to Respondent's Second Motion to 

Supplement Record, dated December 8, 2008. 

Exhibit 76 Letter from Mark E. Haynes, counsel to JetAway, to Robert J. Hill, 

Montrose County Attorney and Board of County Commissioners, 

dated November 17, 2008. 

Item 13 

Item 14 

Item 15 

FAA Order acknowledging the parties' multiple motions to 

supplement the record and extending the due date of the Director's 

Determination to April3, 2009, dated December 16, 2008. 

Complainant's Motion to Supplement Record, dated February 24, 

2009. 

Exhibit 76(a) Letter from Stantec Consu1tingto Stephen Stuhmer, dated 

February 23, 2009. 

Respondent's Answer to Complainant's Motion to Supplement 

Record, dated February 27, 2009. 

14 
Exhibit AAA Hangar Lease between Montrose County and Heliqwest 

International, Inc., dated February 11, 2009. 

Item 16 Complainant's Reply to Respondent's Answer to Complainant's 

Motion to Supplement Record, dated March 3, 2009. 

Exhibit 77 Letter from Stefania C. Scott, counsel to JetAway, to Robert J. 

Hill, Montrose County Attorney, dated February 13, 2009. 

Item 17 FAA Order acknowledging the parties' additional motion to 

supplement the record and extending the due date of the Director's 

Determination to May 29, 2009, dated March 27, 2009. 

Item 18 FAA Order extending the due date of the Director's Determination to 

June 30, 2009, dated June I, 2009. 

15 
01 

ment CooeoptPal Layout 

r Rtmway 13!31) 

FAA Exhibit 2 -Master Plan Update Map Altered for Illustrative Purposes 

(not to scale, depiction is approximate) 

Aviation Development Area 

Roadway Access 

Trudwav Accetso 

lfbafstlng Airport Buildings 

Future TDM;Iway/Apron 

;:-s1 : 

Montrose Regional Airport 
~~~U.S. DEPARTMENT OF TRANSPORTATION 'flill/l FEDERAL AVIATION ADMINISTRA TlON 

> 1 ASSOC CITY: MONTROSE 

AIRPORT MASTER RECORD 

4 STATE: CO LOG 10: MTJ 

PRINT DATE: 06/19/2009 

AFD EFF 05107/2009 

Fonn Approved OMB 2120-0015 

FAA SITE NR: 02692."A 

> 2 AIRPORT NAME: MONTROSE RGNL 

3 CBO TO AIRPORT INMl: 01 NW 6 REGIONIAOO: ANMfDEN 

5 COUNTY: MONTROSE CO 

7 SECT AERO CHT: DENVER , 

GENERAL SERVICES 

10 OWNERSHIP: PU >70 FUEL: 100Ll A+ 

> 11 OWNER: MONTROSE COUNTY -BUILDING AUTHORITY 

> 12 ADDRESS: 

> 13 PHONE NR: 

> 14 MANAGER: 

> 15 ADDRESS: 

1!31 S. TOWNSEND 

MONTROSE, CO 81401 

970-249-7755 

LLOYD ARNOLD 

2100AIRPORTROAD 

MONTROSE, CO 81401 

> 16 PHONE NR 970-249-3203 

> 17 ATIENDANCE SCHEDULE: 

APR1-DEC ALL 0530-2100 

15 

DEC16-MA ALL 0500-2100 

R31 

18 AIRPORT USE: PUBUC 

> 71 AIRFRAME RPRS: MAJOR 

> 72 PWR PLANT RPRS: MAJOR 

> 73 BOTTLE OXYGEN: HIGH 

>74 BULK OXYGEN: HIGH 

75 TSNT STORAGE: HGR, TIE 

76 OTHER SERVlCES: 

AMB, lNSTR, RNTL 

FACILITIES 

> 80 ARPT BCN: CG 

> 81 ARPT LGT SKED: DUSK-DAWN 

> 62 UNICOM: 122.800 

> 83 WIND INDICATOR: YE5-L 

84 SEGMENTED CIRCLE: YES 19 ARPT LAT: 38-30-35.2650N ESTIMATED 

20 ARPT LONG: 107-53-39.2760W 85 CONTROL TWR: NONE 21 ARPT ELEV: 5759 SURVEYED 86 FSS: DENVER 

NO 22 ACREAGE: 966 

~ 23 RIGHT TRAFFIC: NO 

> 24 NON-COMM LANDING: NO 

25 NPIAS/FED AGREEMENTS:NGY 

~ 26 FAR 139lNDEX: , 8 s 05/1973 

RUNWAY DATA 

~ 30 RUNWAY !DENT: 

~31 LENGTH: 

>32 WIDTH: 

> 33 SURF lYPE-COND: 

> 34 SURF TREATMENT: 

35GROSSWT: sw 36 (IN THSDS) ow 

37 DTW 

36 DDTW 

,.39 PCN: 

I AIDS 

>40 I HY' 

~ -42 RW'f MARK TYPE-COND: 

>43 VGSI: 

44 THR CROSSING HGT: 

45 VISUAL GLIDE ANGLE: 

> 46 CNTRLN-TDZ: 

~47RVR-RW: 

>48 REIL: 

> 49 APCH LIGHTS: 

<DATA 

50 

>51 DISPLACED THR: 

>52 CTtG OBSTN: 

>53 OBSTN MARKED/LGTD: 

>54 HGT ABOVE RWY END: 

>55 DIST FROM RWY END: 

>56 CNTRLN OFFSET: 

57 OBSTN CLNC SLOPE: 

58 CLOSE-IN OBSTN: 

DECLARED DISTANCES 

> 60 TAKE OFF RUN AVBL (TORA): 

>61 TAKE OFF DIST AVBL (TODA): 

> 62 ACL T STOP DIST AVBL {ASDA): 

> 63 LNDG DIST AVBL {LOA): 

87 FSS ON ARPT: 

-' · 86 FSS PHONE NR: 

_,.-_·:--~:;:·._~,~~:::~??~~ F~.:~; -~;~: 1-800-WX-BRIEF 

13/31 17135 

7,500 10,000 

100 150 

ASPH-G ASPH-G 

GRVD GRVD 

65.0 75.0 

90.0 190.0 

150.0 26~5.0 

HIGH HIGH 

NPI-G I NPJ-G PIR-G I PIR-G 

V4L I V4L P4L I P4L 

42 /41 55 I 41 

3.00 I 3.00 3.00 I 3.00 

• I • . I . 

. I - . I . 

YIY N IY 

I MALSR I 

C/BM PJR I C 

I I 

TREE I I 

I I 

41 I I 

2,050 I I 

575R I I 

45:1 I 20:1 50:1 I 50:1 

N IN N IN 

I I 

I I 

I I 

I I 

> ARPT MGR PLEASE ADVISE FSS IN ITEM 86 WHEN CHANGES OCCUR TO ITEMS PRECEDED BY> 

. 

- I -

I 

I 

I 

- I -

- I - ·, 

I 

I 

. 

··, 

. 

~ 110 REMARKS: I 

A 014 AIRPORT ADMINISTRATION CONTACTS- JEANNETIE ANDERIES AND JEFF PRECUP 1-907-249-3203 i ' 

A 026 24 HR PPR FOR UNSCHEDULED ACR OPNS WITH MORE THAN 30 PSGR SEATS CALL AMGR 970-249-7953.1 

A 048 RW'f 13 REIL RY 13 OTS INDEFLY. i 

A 057 RWY 13 THREE SEPARATE POLE OBSTRUCTIONS LGTD & MKD 1.5 MILES NW RY 13. 

A081 ACTVT HIRL RYS 13/31 & RY 17/35, MALSR RY 17, ANOREIL RY 13, RY 31, & RY 35- CTAF. 

A 110-2 PREFERREDTKOF RYS 31 & 35ANO LAND RYS 13 & 17. 

A 110-3 MIGRATORY BIRDS & WILDLIFE ON & INVOF ARPT. 

111 INSPECTOR: ( F I 112 LAST INSP: 08/0812008- 113LAST INFO REQ: 

FAA FoiTT15010-1 (5-91) SUPERSEDES PREVIOUS EDITION 

BASED AIRCRAFT 

90 SINGLE ENG: 

91 MULTI ENG: 

92 JET: 

TOTAL: 

93 HELICOPTERS: 

94 GLIDERS: 

95 MILITARY: 

96 ULTRA-LIGHT: 

OPERATION!5 

100 AIR CARRIER: 

102 AIR TAXI: 

103 G A LOCAL: 

104 G A ITNRNT: 

105 MILITARY: 

TOTAL: 

OPERATIONS FOR 12 

MONTHS ENDING 

- I -

I 

I 

I 

. I -

- I -

I 

I 

I 

I 

I 

I 

I 

I 

I 

I 

I 

I 

I 

I 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on July 2, 2009, I caused to be placed in the United States mail (first 

class, postage paid) or personally delivered a true copy of the foregoing ORDER addressed to: 

William White, Esq. 

BYRNE, KNUDSEN, & WHITE, LLP 

1120 Lincoln Street, Suite 1300 

Denver, Colorado 80203 

Counsel for Complainant 

Brian A. Magoon, Esq. 

ROBINSON WATERS & O'DORISIO, PC 

1099 18th Street, Suite 2600 

Denver, Colorado 80202 

Counsel for Respondent 

Robert J. Hill, Esq. 

Acting Montrose County Attorney 

161 South Townsend Avenue 

Montrose, Colorado 81401 

Counsel for Respondent 

Copy to: 

FAA Part 16 Airport Proceedings Docket 

AC0-100