### REGULAR MAIL Office ofthe ChiefCounsel Richard

## J. Durden Attorney at Law 27987 Richmond HillRoad Conifer, Colorado 80433**616/901~6516** 

### May 8,2012



### FAA Part 16 Airport Proceedings Docket AGC-610 Federal Aviation Administration 800 

### Independence Avenue, SW Washington, D.C. 20591

# ~~«:~nWJ[E~ MAY 

## 14 2012 PART 16 DOCKETS

Re: FrankHinshaw, Skydiving School, Inc., d/b/a Skydive Hawaii andIsland Skydiving, L.L.C. 

### DocketNo. 16-12-04. 

### Dear Sir or Madam: Enclosed for filing please find an original and three copies ofComplainants' Reply in Support ofComplaint andNotice ofPartial Dismissal in the captionedmatter. One copy is unbound, as requestedbythe FAA.

enc.
cc:**p~'** 

### Glen I. Kimura, Esq. Frank HinshawBEFORE THE FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. 

## ) MAY 14 2012 FRANK HINSHAW, SKYDIVING SCHOOL, INC., ) d/b/a SKYDIVE HAW 

### Ail andISLAND SKYDIVING, L.L.C. ) 

### PART 18 

## DOCKeTS ) Complainant, ) 

### ) vs. ) DocketNo.: 16-12-04 

### ) THE STATE OF HAWAII ) 

### ) Respondent )



# ___________________________________)
COMPLAINANTS' REPLY IN SUPPORT OF COMPLAINT AND NOTICE OF PARTIAL DISMISSAL Please Serve: Richard

### J. Durden Richard

### J. Durden, Attorney at Law 27987 RichmondHill Rd. Conifer, Co. 80433 T: 616/901-6516 avlawyer(t:llrVahoo.com Counsel for Complainant Glenn I. Kimura Deputy Attorneys General Department ofthe Attorney General, State

ofHawaii 465 S. King Street, Room 300 Honolulu, HI 96813 T: 808/587-2997 glenn.i.kimura(li)hawaii.gov Counsel for Respondent NOW COME**Complainan~,** FrankHinshaw, Skydiving School, Inc., d/b/a Skydive Hawaii and Island Skydiving, L.L.C., by andthrough counsel, and for their Reply in Support oftheir Complaint, state as follows:

1L Partial Dismissal ofComplaint During the pendency ofthe Complaintthe State ofHawaii has been in contact with Complainants regarding establishing a commercial skydiving**ope~tion** andbuilding a hangar on the Upolu Airport. Skydiving operations pursuant to 14 CFR Parts 91 and 105 have started on UpoluAirport, in cooperation and coordination with the State ofHawaii and discussions are underway regarding the location and construction ofa hangar. Complainants express their appreciation to the State ofHawaii for its fast action and the kind cooperation ofthe State employees who have been involved with the UpoluAirport skydiving activities and approvals. Complainants also express their appreciation to the Director for granting a one-month extension for filing this Reply as the extra time allowed for the necessary work to be accomplished bythe parties so that skydiving could begin on Upolu Airport and thus reduce the · scope ofthis Complaint. Therefore, Complainants hereby dismiss the portions oftheir Part 16 Complaint against the State ofHawaii that pertain to the Upolu Airport.

IT. Hana Airport Complainants wishthey could be as pleased and appreciative for the State's cooperation regarding commercial skydiving onthe Hana Airport. As set out in the Complaint, the State agreed at the Part 16.21 mediation conference on October 7, 2009 to develop a memorandum ofunderstanding orrules (above andbeyond 14 CFR Parts 91 and 105 that regulate skydiving activities) for commercial skydiving operations on Hana Airport. 

### 2Proposed rules were issued by the State in early 2011. 

### Mr. Hinshaw providedwritten comments and suggestions for changes to the draft inMarch and inJune 2011. Since then, there has been silence. Skydiving is not taking place on the Hana Airport due to the absence ofa memorandum ofunderstanding orrules. The State was also committed to issue a memorandUm. ofunderstanding or rules for allowing commercial helicopter operations on Hana Airport. Ithas not done so. However, it is allowing commercial helicopter operations to take place onthe Airport. (As will be expanded upon below, Complainants agree thatthe CFRs provides the safety regulations for airport and airspace operations byhelicopters and skydivers whether or not there are any airport-specific rules set out by the airport sponsor.) The discrimination, withoutjustification, in favor ofone aeronautical activity over another is obvious. Sufficient rules that regulate parachute operations already exist in 14 CPRPart 105. All thatremains is airport management approval to begin operations. Eventhough the State has not established any airport operational rules or required a memorandum ofunderstanding for Complainants' operations atDillingham and Upolu airports, Complainants are willing to agree to
a memorandum ofunderstanding atHanathat sets out airport-specific operations such as closing the gates at night and taking down windblades. Complainants note that there are nontowered airports throughout the country that have parachute operations along with corporatejetand scheduledjet air carrier operations operating safely in compliance with the long-established regulations that govern their conduct, 14 CFR Parts 91, 105, 121 and 135. Complainants have worked successfully with the State for skydiving to begin on Upolu Airport andhave repeatedly offered to meet with the appropriate person(s) from the State regarding Hana Airport. The attached email string includes yet anotherrequest to meet withthe 

### 3State over Hana Airport as well as relaying the offer ofthe United States ParachuteAssociation to assist Counsel for the State 

### has been unfailingly courteous inpassing onrequests for meetings to his client, yet there 

### has been no response from the State. Complainants willingly admit thatthe Part 16 cases provide no guidance as to how long
an airport sponsor can simply refuse to take action before its inaction functions as wrongful denial. Previously, the FAA has recognized that delay in approval amounts to denial ofairport
access. Section 1.2 ofAdvisory Circular 150/5190-6, Exclusive Rights atFederally-Oblif?ated Airports is instructive: "Anexclusive rights violation occurs when the airport sponsor excludes others, either intentionally orunintentionally, from participating in an on-airport aeronautical activity. A prohibited exclusive right can be manifested by an express agreement, unreasonable minimum standards, or by any othermeans. Significant to understanding the exclusiverights policy, is the recognition thatit is the impactofthe activity, and notnecessarily the airport sponsor's intent, that constitutes an exclusive rights violation." (Emphasis added) Taking more 

### tha:i:l a year to come up with draft airport rules and then doing nothing for another year and not responding to offers to meet and work with the airport sponsor is simply outside the boundaries ofany responsible airport sponsor; The State's failure to act onthe matter amo-unts to a denial ofairport access, which is an exclusive rights violation.
. Hana Airport is ofmodest size and has far less traffic thanmany other airports ofits size that safely accommodate skydiving operations. This shouldbe a routine matter; the FAAhas found that skydiving may be conducted safely on the Hana Airport, the State has agreed, but someone, somewhere is using thetool ofunending delay to wrongfully deny Complainants'
access to the Hana Airport. The State signed grant assurances for Hana airport, it cannothide behind what it characterizes as "the process ofadopting administrative rules andregulations through the 

### 4

### rulemaking procedure required under Hawaii law" for its failure to act in a timely fashion to allow skydiving on Hana while not following such a procedure before allowing another commercial aeronautical activity. Complainants respectfully request that the FAA issue an Order requiring that the State of Hawaii, within 30 days, approve skydiving operations on Hana Airport and approve Complainants' requestto erect a hangar on Hana Airport to support the skydiving operations.

Dated: May 8, 2012· By:

5 

### Respectfully submitted,
Richard J. 

### Durden, Attorney at Law 

### Attorney for Complainant

Conifer, Colorado (616)**901~65156**Print

I ofl 

### From: Rick Durden (avlawyer@yahoo.com) To: 

### glenn.i.kimura@hawaii.gov; 

### Date: Fri, April6, 2012 3:55:42 PM Cc: Subject: 

### Skydive Hawaii. FrankHinshaw matter Mr. 

### Kimura, I am in 

### receipt ofyour Answer 

### in the above FAAmatter.http://us.mg20I.mail.yahoo.com/dclla.unch?.gx.=l&.rand=7f90e5jerrf93



### As you stated in the Answer, 

### Mr. Hinshaw is 

### working directly withthe appropriate authorities on the Upolu Airportportion of

### the Complaint. Thank you for making sure that is 

### progressing. I am approaching you to 

### suggestthat 

### we ask the FAAto essentially putthis matter on hold for amonth. (My experience is thatthey will do so as they encourage voluntaly resolution ofthese matters.) I believe that 

### because you have acted as you did on Upolu, that

### policies and procedures for skydiving on Hanacan be workedout following the United States Parachute Association guidelines and safety rules in 

### that time. (My 

### client is 

### willing to work with you on this process and Ihave been advised that the USPA is willingto assist.) Thank

### you for your consideration, Rick Durden Richard J. 

### Durden Attorney atLaw 27987 Richmond Hill Road Conifer, CO 80433 616/901-6516

517/2012 9:23AM

### Re: Skydive Hawaii, Frank Hinshaw matter F 

### ''Glenn.lKimura@hawaii.gov"

rom: Gl I 

### Ki a@ba ·· 

### . < enn. . mur :wan.gov> To: Rick Durden <avlawyer@yahoo.com> Mr. Durden Iam in the process ofobtaining client approval on your request. I will advise upon receipt. In the interim, please feel free to contact me should there be any questions. Glenn Kimura Confidentiality Notice: This e-mail message, including any attachments, is for the sole use ofthe intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disClosure, or distribution by unintended recipients is prohibited. Ifyou are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

### Re: Skydive Hawaii, FrankHinshaw**ma~r** 

### F
.. "Glenn.I.Kimura@hawaii.gov"

rom.<Glenni.Kimura@hawaii.gov> To: Rick Durden 

### <avlawyer@yahoo.com>

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..**~**....... , ...,_,..,..,. ......**~**••**""""'"~-'."** Mr. Durden Please be advised that I have received client authority to stay the instant proceeding for one (1) month as 

### peryour request. Please make the necessary arrangements with the FAA and advise me of any developments. Please also feel free to contact me should there be any questions. Glenn Confidentiality Notice: This e-mail message, including any attachments, Is for the sole use ofthe intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies ofthe original message.Re: Skydive Hawaii. Frank Hinshaw matter F Rick Durden

rom· ·<avlawyer@yahoo.com> To: Glenn.I.Kimura@hawaii.gov Glenn, Thank

### you. I will be filing our motion for an extension oftime tomorrow. 

### Hoping our respective clients can work this out. Bestregards. Rick
From: "Giennl.Kimura@hawati.gov" <Gienn.I.Kimura@hawali.gov> To: Rick Durden <avlawyer@yahoo.com> Senb Mon, April 9, 2012 6:36:42 PM**Subject~** Re: Skydlve Hawaii, Frank Hinshaw matter Mr. Durden Please be advised that I have received client authority to stay the instant proceeding for one (1) month as per your request. Please make the necessary arrangements with the FAA and advise me of any developments. Please also feel free to contact me should there be any questions. Glenn Confidentiality Notice: This e-mail message, including any attachments, Is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. Ifyoo are not the intended recipient, please eontact the sender by reply e-mail and destroy all copies of the original message.

From: To: Date: Subject: Rick Durden <avlawyer@yahoo.com> glenn.i.kimura@hawali.gov

0410612012 11:55AM

SkydiYe Hawaii, Frank Hinllhaw matterPrint

1of3 From: Rick Durden (avlawyer@yahoo.com) 

### To: Glenn.I.Klmura@hawaii.gov; Date: Fri, April20, 2012 3:01:27PM 

### Cc: Subject: Re: Skydive Hawaii, FrankHinshaw matter 

### Mr. Kimura, http://us.mg20l.mail.yahoo.com'dc/launch?**.~**l&.rand=7f90e5jerrf93

I wishto see wbat we can do to move in a direction ofresolving thismatter without going through the entire FAA Part 16 process. The progress on skydiving access 

### to the Upolu Airport is encouraging. and as I have said previously, my client appreciates it.

At Hana Airport, the State has been in the process ofdevising a memorandum ofunderstanding for skydiving and helicopter opemtions for some two years. As you know, the memorandum ofunderstanding must comply with Part 91 and 105 ofthe FederalAviation Regulations andprovide for reasonable access tothe airport for users. The FAA has acceptedthe United States Parachute Association's Basic Safety Requirements for skydiving operations. As the USPA BSRs are fairly complete, a number ofairports simply reference them in their operating guidelines and add such things as the physical description and location ofthe Parachute Landing Area and instructions for the skydiving school to make sure the area is kept clean and the gates locked up at night.

In order to see what can be**do~e** to move forward on the long-delayed Hana memorandumof understanding, is there a personMr. Hinshaw can meet with to discuss the terms? He has been in the skydivingbusiness for some time and 

### his expertise might help move things along. I am also advisedthat the USPA is willing to be involved and lend its expertise to this proeess. Hana is certainly not a very busy airport and has adequate area for a

### PLA There are numerous other airports ofsimilar size and are much busierthroughout the country that mightbe used as a model for establishment ofa memorandum of understanding.
Finally, it is my understanding that the memorandumofunderstanding for helicopter operations has never been finalized as it isjoined with the pendingparachute memorandum ofunderstanding. However, the airport is, and has been, allowing commercial helicopter operations onthe airport. You may well have information 

### to which I am not privy; however, on the face ofthings, allowing one sort ofconnnercial aeronautical activity on to the airport without a published memorandum ofunderstanding and prolnbiting another using the reason ofa lack ofa memorandum ofunderstanding certainly has the appearance of unreasonable discrimination.

I would appreciate your thoughts on how we can move forward quickly.

517/2012 9:32AM

### Glenn, I haven't heard from you on regarding my email asking aboutprogress on the skydiving procedures on Hana and whetherthere was a way for Mr. Hinshaw to get 

### involved to 

### expedite the

### process. Thank

### you, Rick Durden 616/901-6516
From: "Gienn.I.Kimura@hawaii.gov" <Gienn.I.Kimura@hawall.gov> To: Rick Durden <avlawyer@yahoo.com> Sent: Mon, April 9, 2012 12:02:46 PM Subject: Re: Skydlve Hawaii, Frank Hinshaw matter Mr. Durden I am in the process of obtaining client approval on your request. I will advise upon receipt. In the interim, please feel free to contact me should there be any questions. Glenn Kimura Confidentiality Notice: This e-mail message, including any attachments, is for the sole use ofthe intended recipient(s) and may contain confidential ancllor privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies ofthe original message.

From: To: Date: Subject RicK Durden <avlawyer@yahoo.com> glenn.i.klmura@hawaii.gov

04/061201211:55 AM

Skydive HawaH, Frank Hinshaw matter

### Re: Skydive Hawaii, FrankHinshaw matter "Glenn.I.K.imura@hawaii.gov11 

### From: Gl I Ki @h

.. < 

### enn. . mura awan.gov> To: RickDurden <avlawyer@yahoo.com> Rick Your ear1ier email was forwarded to my clients for response. I will provide a response upon receipt. Please feel free to contact me should there be any questions. Glenn Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. Ifyou are not the intended recipient, please contact the sender by reply e-mail and destroy all copies ofthe original message.

From; Rick Durden <avlawyer@yahoo.com> To: Gtenn.I.Kimura@hawaH.gov Date: · 0413012012 12:16 F>M**Subj~** Re; Skydlve Hawall, Frank Hinshaw matter



### Glenn, I haven't heard from you on regarding my 

### email asking about progress on the skydiving procedures onHana 

### and whetherthere was a way 

### for Mr. 

### Hinshaw to get 

### involved to 

### expedite the process. Thank. 

### you, Rick

### Durden 616/901..6516

### CERTDnCATEOFSERVICE I hereby certify that Ihave this day served the foregoing Complainants' Reply in Support ofComplaint and Notice ofPartial Dismissal onthe following person at the following address by regular mail: Glenn I. 

### Kimura Deputy Attorneys General Department ofthe Attorney General, State ofHawaii 465 

### S. King Street, Room 300 Honolulu, HI 96813
Dated this 8th day ofMay, 2012