REGULAR MAIL 

Office ofthe Chief Counsel 

Richard J. Durden 

Attorney at Law 

27987 Richmond Hill Road 

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: Frank Hinshaw, Skydiving School, Inc., d/b/a Skydive Hawaii and Island Skydiving, 

L.L.C. 

Docket No. 16-12-04. 

Dear Sir or Madam: 

Enclosed for filing please find an original and three copies of Complainants' Reply in 

Support of Complaint and Notice of Partial Dismissal in the captioned matter. One copy is 

unbound, as requested by the FAA. 

enc. 

cc: p~' 

Glen I. Kimura, Esq. 

Frank Hinshaw 
BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

) MAY 14 2012 

FRANK HINSHAW, SKYDIVING SCHOOL, INC., ) 

d/b/a SKYDIVE HAW Ail and ISLAND SKYDIVING, L.L.C. ) PART 18 DOCKeTS 

) 

Complainant, ) 

) 

vs. ) Docket No.: 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 Richmond Hill Rd. 

Conifer, Co. 80433 

T: 616/901-6516 

avlawyer(t:llrVahoo.com 

Counsel for Complainant 

Glenn I. Kimura 

Deputy Attorneys General 

Department of the Attorney General, State 

of Hawaii 

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 and through counsel, and for their Reply in Support of their 

Complaint, state as follows: 

1 
L Partial Dismissal of Complaint 

During the pendency of the Complaint the State ofHawaii has been in contact with 

Complainants regarding establishing a commercial skydiving ope~tion and building a hangar on 

the Upolu Airport. Skydiving operations pursuant to 14 CFR Parts 91 and 105 have started on 

Upolu Airport, in cooperation and coordination with the State of Hawaii and discussions are 

underway regarding the location and construction of a hangar. 

Complainants express their appreciation to the State of Hawaii for its fast action and the 

kind cooperation of the State employees who have been involved with the Upolu Airport 

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 by the parties so that skydiving could begin on Upolu Airport and thus reduce the · 

scope ofthis Complaint. 

Therefore, Complainants hereby dismiss the portions of their Part 16 Complaint against 

the State of Hawaii that pertain to the Upolu Airport. 

IT. Hana Airport 

Complainants wish they could be as pleased and appreciative for the State's cooperation 

regarding commercial skydiving on the 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 of understanding or rules (above and beyond 14 CFR 

Parts 91 and 105 that regulate skydiving activities) for commercial skydiving operations on Hana 

Airport. 

2 
Proposed rules were issued by the State in early 2011. Mr. Hinshaw provided written 

comments and suggestions for changes to the draft in March and in June 2011. 

Since then, there has been silence. Skydiving is not taking place on the Hana Airport due 

to the absence of a memorandum of understanding or rules. The State was also committed to 

issue a memorandUm. of understanding or rules for allowing commercial helicopter operations on 

Hana Airport. It has not done so. However, it is allowing commercial helicopter operations to 

take place on the Airport. (As will be expanded upon below, Complainants agree that the CFRs 

provides the safety regulations for airport and airspace operations by helicopters and skydivers 

whether or not there are any airport-specific rules set out by the airport sponsor.) 

The discrimination, without justification, in favor of one aeronautical activity over 

another is obvious. 

Sufficient rules that regulate parachute operations already exist in 14 CPR Part 105. All 

that remains is airport management approval to begin operations. Even though the State has not 

established any airport operational rules or required a memorandum of understanding for 

Complainants' operations at Dillingham and Upolu airports, Complainants are willing to agree to 

a memorandum of understanding at Hana that sets out airport-specific operations such as closing 

the gates at night and taking down wind blades. Complainants note that there are nontowered 

airports throughout the country that have parachute operations along with corporate jet and 

scheduled jet 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 and have repeatedly offered to meet with the appropriate person(s) from the State 

regarding Hana Airport. The attached email string includes yet another request to meet with the 

3 
State over Hana Airport as well as relaying the offer of the United States Parachute Association 

to assist Counsel for the State has been unfailingly courteous in passing on requests for 

meetings to his client, yet there has been no response from the State. 

Complainants willingly admit that the 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 of airport 

access. 

Section 1.2 of Advisory Circular 150/5190-6, Exclusive Rights at Federally-Oblif?ated 

Airports is instructive: 

"An exclusive rights violation occurs when the airport sponsor excludes others, either 

intentionally or unintentionally, 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 other means. Significant to understanding the exclusive rights policy, is the 

recognition that it is the impact of the activity, and not necessarily 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 of any responsible airport sponsor; The State's failure to act on the matter 

amo-unts to a denial of airport access, which is an exclusive rights violation. . 

Hana Airport is of modest size and has far less traffic than many other airports of its size 

that safely accommodate skydiving operations. This should be a routine matter; the FAA has 

found that skydiving may be conducted safely on the Hana Airport, the State has agreed, but 

someone, somewhere is using the tool of unending delay to wrongfully deny Complainants' 

access to the Hana Airport. 

The State signed grant assurances for Hana airport, it cannot hide behind what it 

characterizes as "the process of adopting administrative rules and regulations 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' request to 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: Sky dive Hawaii. Frank Hinshaw matter 

Mr. Kimura, 

I am in receipt of your Answer in the above FAA matter. 

http://us.mg20I.mail.yahoo.com/dclla.unch?.gx.=l&.rand=7f90e5jerrf93 

As you stated in the Answer, Mr. Hinshaw is working directly with the appropriate authorities on the 

Upolu Airport portion of the Complaint. Thank you for making sure that is progressing. 

I am approaching you to suggest that we ask the FAA to essentially put this matter on hold for a month. 

(My experience is that they will do so as they encourage voluntaly resolution of these matters.) I believe 

that because you have acted as you did on Upolu, that policies and procedures for skydiving on Hana can 

be worked out 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 I have been advised that the USPA is willing to 

assist.) 

Thank you for your consideration, 

Rick Durden 

Richard J. Durden 

Attorney at Law 

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 

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 of the 

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 of the original message. 
Re: Skydive Hawaii, Frank Hinshaw ma~r 

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

rom. <Glenni.Kimura@hawaii.gov> 

To: Rick Durden <avlawyer@yahoo.com> . . -~· ..... , ..... _ .......... _.., .................... ~ ....... ""'l .... l ... \.' ... ,._,_ ..... _ ...................... , ................ ~ .................. '1' ... --~ .... ~ ... -.tr ..... ..,. ..................... ~" ..... _ ......... ~ ........ ,_ ••• _,.,"._,_. __ ...... ~- .... ..<lo .......... ,.~~ ............... ~.-... ................ --......... ~ ..... l .. ~ ....... , ... ,_,..,..,. ...... ~ •• """"'"~-'." 

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. If you are not the intended recipient, 

please contact the sender by reply e-mail and destroy all copies of the 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 of time tomorrow. 

Hoping our respective clients can work this out. 

Best regards. 

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. If yoo 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 11:55 AM 

SkydiYe Hawaii, Frank Hinllhaw matter 
Print 

1 of3 

From: Rick Durden (avlawyer@yahoo.com) 

To: Glenn.I.Klmura@hawaii.gov; 

Date: Fri, April20, 2012 3:01:27PM 

Cc: 

Subject: Re: Skydive Hawaii, Frank Hinshaw matter 

Mr. Kimura, 

http://us.mg20 l.mail.yahoo.com'dc/launch? .~ l&.rand=7f90e5jerrf93 

I wish to see wbat we can do to move in a direction of resolving this matter 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 of devising a memorandum of understanding for 

skydiving and helicopter opemtions for some two years. As you know, the memorandum of understanding 

must comply with Part 91 and 105 of the Federal Aviation Regulations and provide for reasonable access 

to the airport for users. The FAA has accepted the United States Parachute Association's Basic Safety 

Requirements for skydiving operations. As the USPA BSRs are fairly complete, a number of airports 

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 memorandum of 

understanding, is there a person Mr. Hinshaw can meet with to discuss the terms? He has been in the 

skydiving business for some time and his expertise might help move things along. I am also advised that 

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 of similar size and are much 

busier throughout the country that might be used as a model for establishment of a memorandum of 

understanding. 

Finally, it is my understanding that the memorandum of understanding for helicopter operations has never 

been finalized as it is joined with the pending parachute memorandum of understanding. However, the 

airport is, and has been, allowing commercial helicopter operations on the airport. You may well have 

information to which I am not privy; however, on the face of things, allowing one sort of connnercial 

aeronautical activity on to the airport without a published memorandum of understanding and prolnbiting 

another using the reason of a lack of a memorandum of understanding 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 about progress on the skydiving 

procedures on Hana and whether there 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 of the 

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 of the 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, Frank Hinshaw matter 

"Glenn.I.K.imura@hawaii.gov11 

From: Gl I Ki @h .. < enn. . mura awan.gov> 

To: Rick Durden <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. If you are not the intended recipient, 

please contact the sender by reply e-mail and destroy all copies of the 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 on Hana and whether there 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 I have this day served the foregoing Complainants' Reply in Support 

of Complaint and Notice of Partial Dismissal on the following person at the following address by 

regular mail: 

Glenn I. Kimura 

Deputy Attorneys General 

Department of the Attorney General, State of Hawaii 

465 S. King Street, Room 300 

Honolulu, HI 96813 

Dated this 8th day ofMay, 2012