VIA EXPRESS MAIL 

Office of the ChiefCounse1 

Attn: FAA Part 16 Docket Clerk 

AGC-600 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, D.C. 20591 

Richard J. Dw:den 

Attorney at Law 

27987 Richmond Hill Road 

Conifer, Colorado 80433 

616/901-6516 

April12, 2016 

Re: Luther Kurtz and Skydive Coastal California d/b/a Phoenix Area Skydiving vs. The 

City of casa Grande, Arizona 

Docket No. 16-16-01 

Dear Sir or Madam: 

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

Support of his 14 CFR Part 16 Complaint in the captioned matter. One copy is unbound, as 

requested by the FAA. 

enc. 

cc: Brett D. Wallace, City Attorney's Office 

Luther Kurtz 
BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

LUTHER KURTZ and 

SKYDIVE COASTAL CALIFORNIA 

d/b/a PHOENIX AREA SKYDIVING 

Complainant, 

VS. 

THE CITY OF CASA GRANDE, ARIZONA 

Respondent 

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) DocketNo.: 16-16-01 

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COMPLAINANT'S REPLY IN SUPPORT OF HIS 14 CFR Part 16 COMPLAINT 

Please Serve: 

Richard J. Durden 

Richard J. Durden, Attorney at Law 

27987 Richmond Hill Rd. 

Conifer, Colorado 804 3 3 

T: 616/901-6516 

av Iawver(,;) yahoo. com 

Counsel for Complainant 

Brett D. Wallace 

City Attorney's Office 

510 E. Florence Blvd. 

CasaGrande, Arizona 85122 

T: 520-421-8613 

hwaLiacerZilcasagrandeaz.gov 

Counsel for Respondent 

I. Introduction 

Respondent's Answer is predicated on ignoring that the FAA has already found 

Respondent to be in violation of its Grant Assurances (Complaint pages 17 and 18, Exhibits 7 

and 10 and Answer Exhibit 2), that City's denial of skydiving access onto the Airport is not 

reasonable, and has conducted a Safety Study at the Airport, which found that skydiving may be 

safely conducted onto a parachute landing area (PLA) on the Airport. 

1 
Respondent then bases its arguments on its own interpretation of the terms of Grant 

Assurance 22 that would require the FAA demonstrate to Respondent/City that a potential 

aeronautical use is safe instead of the plain language which places the burden of showing that 

banning an aeronautical activity from an airport on the basis of safety is on the airport sponsor 

with the FAA as the ultimate arbiter. 

Despite already being found in violation of its Grant Assurances and receiving an FAA 

directive to present a corrective action plan (Answer Exhibit 2), Respondent attempts to justify 

its defiance of the FAA's most recent directive and findings through simply repeating specific 

concerns regarding safety that the FAA examined when it undertook its Safety Study. 

Respondent's demand that it be the arbiter of aeronautical safety and flagrant disregard of 

an FAA safety fmding and directive throughout Respondent's pleadings are consistent with the 

City's practice of continual delay as a tactic to deny Airport access to Complainant; as pointed 

out by the FAA in Complaint Exhibit 1, page 66. 

Respondent denies the plain language ofF AA findings of violation of Grant Assurances, 

a directive to allow Airport access and the results of an FAA Safety Study conducted by the 

FAA's top compliance specialist in the Western-Pacific Region, Anthony Garcia, and skydiving 

safety expert, Mike Millard, an Aviation Safety Inspector with the Flight Standards Service at 

FAA National Headquarters in Washington, D.C. It does, however, assert on page 18, paragraph 

11 of its Answer that the former airport manager made a "careful" review of skydiving safety at 

the Airport before denying access. There is no evidence of the nature of the review, although he 

apparently did not contact any skydiving operators or the United States Parachute Association 

for expert assistance with his review. The City is critical of the FAA's on-airport Safety Study 

2 
because the FAA did not provide it with all of the underlying documents it used-yet it has 

never provided any of the material manager Wilkie perused in his "careful" review. 

The FAA was given the City's opinions regarding safety of a skydiving landing area on 

the Airport well before it conducted its on-airport Safety Study. Its personnel had time to 

consider them at length, heard them again during a face-to-face meeting with manager Wilkie 

and then rejected them. Nevertheless, the City continues to repeat them as if they were never 

reviewed or rejected. The City does this even though the FAA told the City that: 

"Interestingly, some of the reasons the City presented to exclude 

skydiving might conceivably be used to exclude other aeronautical activities. For 

example, additional flight schools could be excluded because they would add to 

an already congested airport and denigrate safety. Ultralights might be 

unreasonably barred from the airport because they fly slowly and often without 

two-way radio communication. Helicopters might represent a safety issue 

because they may ascend and descend without regard to fixed-wing aircraft 

landing, taking off, or in the traffic pattern. These conditions may appear to 

provide plausible reasons to restrict these activities, but after careful evaluation, 

they would likely be determined to be uureasonable and unjustly discriminatory 

restrictions." (Complaint Exhibit 7). 

Put more simply, with the mitigations the FAA set forth, the City's stated opinions 

regarding safety are without merit and have been recognized as such by the FAA. For the City to 

repeat them here is disingenuous at best. To believe Respondent's opinions, one must believe 

that skydivers are second-class aeronautical citizens that have access to airspace only after all 

other aeronautical users have left the area, which is not the law. All users of the airspace above 

Airport must comply with the same 14 CFR Part 91 Federal Aviation Regulations. To assert or 

even imply that skydivers cannot, while all others can is without veracity. Using Respondent's 

reasoning on safety, if skydiving cannot be conducted safely at the Airport, other aeronautical 

activities also cannot operate safely. 

3 
The City implies that somehow the airspace above Airport is unique in the country in its 

congestion and thus skydivers should not land at Airport. The City did not provide any 

comparisons with other drop zones in the country because it is undoubtedly aware that there are 

airport drop zones under much busier airspace. The FAA is fully aware of this situation. 

II. Factual Background 

On page two of its Answer, the City states correctly, that one PLA site is "located in a 

functional drainage basin that is both directly adjacent to the taxiway and that requires drops 

directly into the missed approach pathway routinely used by flight schools in the area." What is 

omitted is significant-not only was this shown to the FAA during its on-site Safety Study, it is 

the area that the airport has permitted ultralights to use for a runway for the last nine years. The 

City did not provide any data as to why airspace that is in the missed approach path and a PLA 

that is smooth and level enough to have been used as a runway cannot be used for parachute 

landings. 

In paragraph 15 on page 6 of the Answer, Respondent states with regard to the on-airport 

Safety Study, that to its "information and belief did not include representatives of the FSDO" 

(Flight Standards District Office). The FAA did however include someone with a little more 

horsepower from Flight Standards for the on-airport Safety Study-Mike Millard, an Aviation 

Safety Inspector with the Flight Standards Service, General Aviation Ops Branch at FAA 

National Headquarters, the FAA's headquarters subject matter expert on skydiving. 

On pages 14 and 15 of the Answer, Respondent denies having ever refused Complaint 

permission to operate its business from the Airport, stating it only has refused an on-airport PLA. 

4 
That is incorrect. The City twice denied Complainant permission to even fly from the Airport. 

The first time was just after it started business in 2006 (Complaint p. 3). That required the 

Complainant to reach out to the FAA for intervention. The second was shortly after Richard 

Wilkie became airport manager (Complaint pp. 3 and I 0). 

The City denies taking any action to prevent Complainant from obtaining office space on 

the Airport after evicting it from its leased space in the terminal building, yet it does not explain 

why Complainant was never allowed to rent any of the open space on the Airport-it was always 

rented to another company, even though others had come to the Airport seeking space after 

Complainant. In its Answer, the City also asserts that it has supported Complainant's use of an 

off-Airport PLA and helping it find off-airport office space, yet it also admits writing a letter to 

the County opposing Complainant's application to build an office on the off-airport site 

(Complaint p. 11 ). That letter not only was effective in preventing approval, but it also caused 

the County to start an action to prevent Complainant from using the land as a PLA. As pointed 

out by Anthony Garcia, Airports Compliance Specialist, Western-Pacific Region, Airports 

Division, in Complaint Exhibit 7, a letter to the City: 

"However, we are puzzled by the City's willingness to negatively 

influence the very conditions under which Mr. Kurtz was operating his 

parachuting business at the time. Mr. Kurtz was leasing space at the airport and 

using a parachute landing area approximately three miles from the airport. In 

effect, those would appear to be the very conditions that the City would welcome 

in so far as the City did not want Mr. Kurtz to operate a parachute landing area at 

the airport. It now appears that the City's actions vis-a-vis the off-airport drop 

zone (its letter to the County) unnecessarily provoked the very conflict in which it 

is presently engaged with Mr. Kurtz" 

In paragraph 6 on page 16 of its Answer, the City admitted that skydiving could be 

conducted safely on the Airport with the implementation of the mitigation procedures outlined 

by the FAA. 

5 
Later in the paragraph, the City asserted that skydiving could cause users of the Airport to 

go elsewhere and cause a negative fmancial impact on the Airport. The City provided no data of 

any sort to support its conjecture. However, on page 17, in paragraph 8, the City stated that 

much of the operations at the Airport consist of transient flight training operations from flight 

schools based at other airports. It does not state how those contribute to the Airport's financial 

stability other than if the instructor and student land, take a break and buy a cup of coffee in the 

Airport terminal. 

On pages 17 and 18 of its Answer, City admits that manager Wilkie held Complainant's 

application for a PLA on the Airport for over eight months while he gave it a "careful" review, 

but does not identifY who or what organization manager Wilkie consulted as part of his review. 

There were no public meetings called by Mr. Wilkie during this time to get feedback from 

Airport users or other skydiving operators. 

On page 19 of its Answer, the City admits that once manager Wilkie received the Part 13 

Complaint, he was able to respond in less than two months. In that time he organized a number 

of public meetings to seek objections to skydiving (Complaint at page 16). 

The City admitted receiving the March 14, 2016 letter from the Phoenix Airports District 

Office with the preliminary finding that the City is in violation of grant assurances and directive 

to submit a corrective action plan within 14 days (Answer at page 21). 

The City has not submitted a corrective action plan as of the time Complainant served 

this Reply. 

6 
III. Law and Argument 

A. Safety 

The FAA has preemption authority over aviation safety. Jeff Bodin and Garlic City 

Skydiving v. County of Santa Clara, California, FAA Docket No. 16-11-06, Final Decision 

(August 12, 2013) at page 34, citing CityofBurbankv. Lockheed Air Terminal, 411 U.S. 624 

(1973). In the Garlic City matter the FAA went on to state, at page 35: 

" ... FAA safety determinations pursuant to the Federal Aviation 

Regulations take precedence over any airport sponsor views or local ordinances 

pertaining to safety. This is especially true when the Director is asked to make a 

determination regarding a sponsor's compliance with its federal obligations in 

cases where restrictions or limitations are instituted in the interest of safety." 

Citing also Orange County Soaring Association, Inc. v. Riverside County, 

California, FAA Docket No. 16-09-13, Director's Determination (February 11, 

2001). 

The City expresses great indignation that Complainant should have the temerity to seek 

to land its customers on an Airport, claiming that the only reason is so Complainant can "reduce 

his business costs at the direct expense of Airport safety." (Answer, page 2) Respondent City 

ignores that the vast majority ofPLAs are on airports (FAA Advisory Circular 105-2E Sport 

Parachuting, section 6(a)). On-airport PLAs are the industry standard and provide a convenient 

reference to allow pilots operating in the area to know where to look for skydivers. The FAA 

has long stated that the safest place to locate a PLA is on the airport~as an example Exhibit 14 

(attached) is an August 30, 1985 memorandum concerning skydiving in the busy skies of 

Southern Florida. It states, inter alia: 

"Since pilot traffic pattern vigilance is at a maximum during airport VFR 

traffic pattern entry and departure, pilots would most readily identity parachutes 

in flight in the immediate vicinity of an airport." 

7 
In its Answer, Respondent repeats the same safety arguments it has made repeatedly to 

the FAA, They were received in writing and verbally, considered and addressed via mediation 

procedures. The City cannot seem to understand or accept that skydivers have the same right to 

be in the airspace above an airport as any other aeronautical users. 

For example, the City asserts that a PLA located under the missed approach portion of an 

ILS approach is unreasonably dangerous. It failed to note that skydiving is only conducted in 

VFR, not instrument, weather conditions. In VFR conditions aircraft flying over the Airport 

separate themselves from each other and skydivers under the see-and-avoid provisions 14 CFR 

Part 91.113 which have been in effect for decades. If skydiving is occurring, the weather is VFR 

and any pilots practicing ILS approaches are required by 14 CFR Part 91.1 09 to have a safety 

pilot (or flight instructor). The safety pilot's job is to watch outside as part of the see-and-avoid 

provisions of the Federal Aviation Regulations during all segments of the approach, including 

the missed approach. There is nothing magical about the missed approach segment of a practice 

instrument approach--during all segments of a practice instrument approach, the safety pilot is 

to be watching outside for other aircraft, skydivers, towers, obstructions and the ground. 

Respondent ignored a greater safety hazard for aircraft practicing ILS approaches-the segment 

from the final approach fix to the missed approach point. It passes through the airport traflic 

pattern itself-a much higher traffic area than the airspace above a PLA located on the Airport. 

Respondent also did not respond to the FAA's contention in Complaint Exhibit 7 at page 

2 that a mix of airport activities (airplanes, helicopters, skydivers, etc.) may provide a better 

environment for flight training if it instills situational awareness in student pilots. 

Respondent, not surprisingly, relies heavily on the desk review performed by the 

Scottsdale FSDO, which as pointed out at page 17 of the Complaint, was largely a recitation of 

8 
manager Wilkie's letter to the FAA with his reasons for objecting to an on-airport PLA. The 

quality of the desk review (Complaint Exhibit 8) is revealed when looking at a rather dramatic 

error that goes to the heart of the review: In paragraph 3 under "Specific safety concerns," the 

review refers to 14 CFR Part I 05.23( c) regarding drift over of parachutes. That regulation does 

not apply to parachutes landing on the airport in question~as is the case here. The review was 

conducted in accordance with only two regulations, 14 CFR Part 105.5 and I 05.23(c). Through 

inexperience or lack of knowledge of those who conducted the desk review, it did not address the 

regulations applicable to on-airport PLAs. 

In paragraph 6 on page 16 of its Answer, the City admits that skydiving can be integrated 

onto the Airport by implementing mitigating procedures, effectively refuting the rest of its 

Answer. At no time does it provide evidence that any of these procedures are anything but 

routine for skydiving or that they cannot be followed. They are; they can be and Complainant 

complies with similar procedures at many of his other commercial skydiving operations around 

the country. The mitigation procedures are routine, primarily having to do with communications, 

and are of the sort of procedures regularly followed by general aviation pilots and other 

skydiving operators across the country (Complaint Exhibit 1 0). 

The City goes on to panic about the mitigating procedures in paragraph 19 on page 21 of 

its Answer where it noted that implementing some of the procedures will be outside of its 

control. The City failed to acknowledge that the controlling agency for compliance with 

aeronautical procedures not within the City's control is the FAA. The City has an airport 

manager and staff. For years City personnel at the Airport have followed the procedure that if 

they see a violation of Federal Aviation Regulations, they call the regulatory authority, the FAA. 

Skydiving is an aeronautical activity regulated by the FAA. Introducing skydiving onto the 

9 
Airport doesn't change any degree of control the City has over persons using the Airport-the 

City should still call the FAA if a violation is observed. 

In addition, the City has enacted rules and regulations for the Airport that must be 

followed by users when on the Airport. It has enforced those rules and regulations for decades. 

To the extent some of the skydiving mitigation procedures should be added to the Airport rules 

and regulations, the City may do so. As the FAA pointed out repeatedly in its communications 

with the City, all the City needs to do is sit down and work out the details with Mr. Kurtz. The 

fact that the City has pointedly refused to do so does not give it an excuse to refuse 

implementation of standard, routine mitigation procedures. 

The burden of proof for denying access to an aeronautical activity is on the airport 

sponsor. Respondent has the burden of proof to show that its ban on skydiving onto the Airport 

is in compliance with the grant assurances. Because aeronautical activities are regulated by the 

FAA, there is a presumption that they will be conducted safely. There is no requirement for 

someone proposing to carry out an aeronautical activity on an airport that he or she frrst prove 

that it will be conducted safely. As set out in Grant Assurance 22, the airport sponsor cannot ban 

an activity from an airport without objective evidence that the activity cannot be safely integrated 

with other airport operations. Respondent is trying to unilaterally change the terms of Grant 

Assurance 22. The City incorrectly insists that a potential aeronautical user carrnot be allowed 

onto the Airport uuless the FAA specifically says that the use will be safe 

The ultimate arbiter as to whether a ban is necessary for the safe operation of an airport is 

the FAA. [Florida Aerial Advertising v. St. Petersburg-Clearwater international Airport, FAA 

Docket no. 16-03-01, Director's Determination (December 18, 2003)] Respondent has provided 

no citation to the contrary. 

10 
Not only did the FAA make it clear that it was safe for skydiving to operate in the 

airspace above Airport, it was safe to land on the Airport. While the language was polite, the 

FAA's disagreement with the City's position was final. 

Because the FAA has ruled that a ban of skydiving on the Airport is not necessary for the 

safe operation of the Airport, there is no issue outstanding, and Complainant is entitled to relief. 

B. Delay as Denial 

Respondent did not address nor explain the numerous long delays in acting on 

Complainant's requests and on FAA requests for information. As described in the Complaint, 

delay was a tactic employed by Respondent to not only deny access to a PLA on the Airport but, 

tied in with denying office space rental, to deny overall access to the Airport. 

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

L.L. C. v. the State of Hawaii, FAA Docket No. 16-12-04, Preliminary Director's Determination 

(August 18, 20 14) the FAA said, "inaction or omission can be the means by which unreasonable 

denial of access might be achieved." (at page 3 6) It went on to say that an "airport sponsor does 

have an obligation to make available suitable areas or space on reasonable terms to those who are 

willing and otherwise qualified to offer aeronautical services to the public." 

C. Respondent's Fear of Liability and Economic Impact 

As an airport operator, the City faces potential liability if there is an accident in 

connection with its operation of the Airport. While the risk is minimal (the City did not cite 

cases in which an airport sponsor has been held liable for an accident involving an aeronautical 

activity in connection with the airport and there has never been a case in which an airport 

11 
sponsor has been held liable in a skydiving accident), Complainant is the first to agree that 

potential risks exist. The risk exists whether the injured person was in the aircraft involved or 

was a third-party injured on the ground. That is true no matter what sort of aeronautical activity 

was involved. 

As aeronautical activity on an airport increases, the level of risk faced by the airport 

sponsor increases. Airport sponsors have dealt with this, and their obligations to monitor activity 

on their airports to assure it was in conformance with rules and conditions, for years as activity 

levels have fluctuated and types of users changed. There are no cases that could be located by 

Complainant that indicated this somehow imposed on the "minimal burden" demand on the 

general revenues of the sponsor under the national airport system. Indeed, sponsors, such as 

Respondent, have been happy to accept federal money for their airports-with the risks-for 

years. However, in doing so, they have obligations that come with that money. The City cannot 

be heard to complain that the risk of liability it faces in complying with allowing all aeronautical 

users is an excessive burden 

The FAA addressed a sponsor's liability concerns directly at page 37 of Jeff Bodin and 

Garlic City Skydiving, cited above: 

"While the FAA acknowledges and is sensitive to the County's concerns 

ofliability, no airport operations are without some potential risks, and the County 

may not use general liability concerns to prohibit a legitimate aeronautical activity 

on the airport., especially where specific safety measures have been identified 

which would allow the activity to take place with an acceptable level of safety on 

the airport." 

The City should not be heard to complain that it should be able to take money for an 

airport and then deny access to that airport because there might be an accident if it is used for 

aeronautical activity. 

12 
In its Answer the City expressed concern about fixed wing aircraft refusing to use the 

Airport if there were an on-airport PLA. It provided no data in support of a potential loss of 

traffic, only supposition that it might happen and it might cause economic harm to the Airport. 

While potential economic harm is not a justification for banning an aeronautical activity under 

the Grant Assurances (only safety and efficiency), the City's argument lacks factual support 

based on data the City did provide. According to the City a high percentage of users of the 

Airport~and the primary reason it is as busy as it is~are aircraft based at other airports that are 

flown to the Airport for training and then return to their home bases. The occupants of those 

aircraft rarely set foot on the airport and often don't buy fuel, as it is cheaper for them to fuel at 

their home airport. If they do stop, it is just to take a quick break to discuss how the flight lesson 

is progressing. They are not economic drivers helping to keep the Airport financially viable 

because they rarely spend money at the Airport, except perhaps in vending machines. 

The City's odd preference for transient flight training over a commercial aeronautical 

activity based on the Airport and bringing money into the Airport and surrounding community 

was remarked upon by the FAA in Complaint Exhibit 7 on page 2. 

In its response to the Part 13 Complaint, the City raised, and then abandoned, the 

argument that skydiving on the Airport would cause executive aircraft to not use the Airport. 

The City wisely dropped the argument because it recognized that those aircraft are flown by 

professional pilots who have long been dealing with the mix of traffic at airports around the 

country and have little problem dealing with the mix at the Airport. In addition, their salaries are 

paid by those who tell them where they are going to fly, those sitting in the back of the airplane. 

It should be noted that FAA Order 5190.6B does not include concerns about potential 

economic loss as a justification for restriction on aeronautical activities. 

13 
The City did not address the financial value to skydiving on the Airport, as skydivers 

often bring their families with them for gatherings or events over the course of a weekend or 

holiday. The skydivers mean revenue for the airport and surrounding motels and restaurants and 

the family members who become customers at other businesses in the area. 

D. Part 13/Part 16 

Respondent is on one hand, critical of Complainant not allowing his Part 13 Complaint 

"to run its course," (Answer p. 22) yet, at the same time demonstrates that it dismisses the FAA 

and the Part 13 Complaint process as it has completely failed to comply with the FAA's directive 

to provide the required corrective action plan in the time specified (Answer Exhibit 2). 

14 CFR does not prohibit filing a Part 16 Complaint while a Part 13 Complaint is still in 

process, although Complainant recognizes doing so is not common. As set out at pages 16-18 of 

the Complaint, the FAA's October 8, 2014letter (Complaint Exhibit 7) stated that, pending the 

Safety Study that was to be conducted, the letter was a "preliminary informal determination" of 

an unreasonable denial of access by the City. Once the Safety Study was completed and 

published on September 17, 2015 and showed that skydiving could safely be conducted onto the 

Airport, the preliminary informal determination of the Part 13 process was apparently complete. 

When manager Wilkie announced that his response would be to institute yet more delays in 

complying with the determination by appointing a committee that wouldn't even meet that year, 

refused to meet with Mr. Kurtz or cooperate with Mr. Kurtz in setting up meetings with Airport 

users, the need to proceed to a Part 16 Complaint became obvious. Mr. Kurtz did so after trying 

to get manager Wilkie to take action for over three months without any success. As of the time 

14 
he filed his Part 16 Complaint, Mr. Kurtz had no idea that there would be a directive issued on 

the Part 13 Complaint some three months later. 

Complainant recognizes that Respondent asserts that its City Manager was not the 

appropriate person to serve. Complainant notes that City Manager James Thompson was airport 

manager Wilkie's boss, was copied on a substantial number of the emails in Complaint Exhibit 1 

and that Complainant's Counsel has served City Managers in Part 16 matters at least two other 

times and those Respondents served Answers in the time prescribed in 14 CFR Part 16. 

The City is in no way harmed by the overlap of the Part 13 and Part 16 procedures. 

Under the Part 13 process it has been ordered to provide a corrective action plan to allow 

skydiving onto the Airport. While it has not demonstrated good faith efforts to comply and may 

be subject to loss of any further Federal AlP funds, once it does comply and Complainant is 

jumping onto the Airport, Complainant will dismiss his Part 16 Complaint. The FAA seeks 

voluntary compliance with Grant Assurances. Once Respondent comes into Compliance, there 

will be no further need for this Part 16 procedure. 

E. Violation of Grant Assurances 22 and 23 

Complainant outlined the standards for compliance with Grant Assurances 22 and 23 in 

his Complaint, setting forth the FAA's Orders, Director's Decisions and Final Decisions that 

have interpreted and applied those standards. Respondent has provided no citations to any 

contrary authority, merely arguing that it is the arbiter when it comes to decisions as to 

aeronautical safety. Under Grant Assurance 22 a prohibition of an aeronautical activity is only 

allowed if it is necessary for safety and efficiency and must be adequately justified and 

supported. The FAA is the final arbiter as to whether a proposed prohibition is reasonable. [See 

15 
Jeff Bodin and Garlic City Skydiving cited above and FAA Order 5190.6B.] The FAA has 

already found the City to be in violation of Grant Assurance 22 (Answer Exhibit 2). 

By unreasonably denying airport access to an aeronautical activity, an airport sponsor is 

in violation of the exclusive right prohibition of Grant Assurance 23. [See Florida Aerial 

Advertising.] As the information provided in the Complaint and above, as well as in Answer 

Exhibit 2, shows the City has unreasonably denied airport access to skydiving and is also in 

violation of Grant Assurance 23. 

IV. Conclusion 

For the reasons stated above and in the Complaint, Complainant respectfully seeks the 

relief outlined in the Complaint. Because of Respondent's failure to comply with the Part 13 

directive to provide a corrective action plan it has demonstrated a lack of good faith in dealing 

with the FAA and Complainant respectfully seeks an Order denying Respondent access to 

Federal AlP funds until it comes into compliance with its Grant Assurances. 

Dated: April 12,2016 

16 

Respectfully submitted, 

Richard J. Durden, Attorney at Law 

Attorney for Complainant 

By: 

Conifer, Colorado 80433 

(616) 901-65156 

avlawyer@yahoo.com 

' [_ 
SuOjecl: 

From: 

u.s. Depor1rr>er11 

of Tronsponotion 

Federal Avlalkm 

Admlnlstrotlon 

FSD0-65 

Memorandum 

South Florida FSDO- Miami 

Post Office Box 592015 

Miami, Florida 33159 

29, 1984, 

Safety in 

Dale: AUG 3 0 1985 

Reply 10 

Alln. o!: Riley 

Ext. 2770 

To: Southern Region Headquarters (AS0-260) 

Manager, Airports District Office , Orlando 

Air Traffic Manager, Miami ATCT 

Air Traffic Manager, Mia!:li !FSS 

Chief, ATC Operations, 1942 (!SS) 

Board of County Co~issioners of Dade County, Florida 

Director, Dade County Aviation Department 

Executive Director, United States Parachute Association / 

President, SKYDIVE, Incorporated 

This me~o is in response to an October 29, 1984, request that this 

office analyze the effects of sport parachuting operations in Dade 

County airspace. This airspace use analysis has included an evaluation 

of the applicable regulations and of the special considerations 

concerning sport parachuting in the vicinity of the Hiami Terminal 

Con.trol Area, and also identifies lFR-dedicated airspace and re10aining 

uncontrolled airspace areas suitable for sport parachute operations. 

This study includes a reviev of current FAA policies and guidance 

concerning the use of federally obligated airports. 

Specific guidance and applicable regulatory requirements for sport 

parachuting operations may be found in FAR Parts 91 and 105. Additional 

guidance concerning traditional static line parachute training methods, 

equipment, and off-airport "congested area" demonstration jump criteria 

may be found in FAA Advisory Circular AC l05-2A. FAR Parts 91 and lOS 

identically specify the flight visibilities and cloud clearance 

requirements for allVfR. u~~rs of. the airspace, "hether they be aircraft 

or .. parachutists •. T)lf1 ~~~,e~~J.~l, g~~~Il;Yi~~.pr:nrfPt," ??ll!lllfll•to all of 

.~.)!es.~ XI •.. ~·ll.llll;i 9f!S . ~s·•t)l,e• ?:§~•:.·•?i ~·~~+ f.~i *1\t •• R.~·l,e·.•'' s~e..a.;~ a·······~~ )Se¢1\ ·~ et:(~ciipt of •l!i:idai~ collision avo,td~rice an'il V)!'R 't'I'affic separation.·· 

Special additional safety considerations, beyond those of the general 

VFR Part 91 requirements, exist for sport parachute operations. 

Parachuting operations through controlled airspace are authorized and 

conducted on a regular basis throughout the National Airspace System; 

ho~ever, potential IfR traffic delays and air traffic control 

specialist. s "orkload are reduced "hen parachute operations are' 
,' 

conducted into un,onrrolled airspace and away from heavily IfR-traveled airways and radar vector routes. Although sport parachuting aircraft 

require relatively szall lateral segments of airspace in which to climb 

and maneuver, they do regularly require more extensive vertical blocks of airspace than the more •enroute" type operations, simply due to the 

rapid altitude changes involved in parachuting. 

To provide for air traffic control advisories to both the enroute and 

parachuting aircraft pilots to assist them in maintaining visual separation ~hile in controlled airspace, fAR 105.14(1) and (ii) require 

the pilot of the parachuting aircraft to establish radio communications 

~ith the FAA air traffic control facility having jurisdiction over that 

controlled airspace no less than five (5) minutes prior to any jump, for 

the purpose of receiving information about kno~ air traffic in the 

vicinity of the jumping activity. This requirement· s~rongly encourages 

the pilot of the parachuting aircraft to participate in any radar air traffic advisory service available. The Regulation further states, in 

Part 105.1~(iii) that both the pilot of the parachuting aircraft and the 

parachutists on that aircraft receive and/or are made aware of this 

traffic information. Additionally, such parachuting aircraft are 

required under fAR 105.14(2)(i) to maintain a continuous ~atch on the 

appropriate air traffic control frequency from the time radio communications are first established until the aircraft advises .HC that 

jumping activity is ended from that flight, and further under FAR 

105.14(2)(b) to advise ATC when the last parachutist reaches the ground. 

FAR 105.23 requires advance notice and submission of the information 

outlined in FAR 105.25(1) through (8) for Parachute operationp into any 

airspace. Parachute jumps made in violation of these requirements 

seriously jeopardize flight safety by denying transient pilots the 

infor.Dation needed to vigilantly "'see and avoid"' and maintain safe 

visual separation. Co~pliance ~ith the f~~ 105.23/.25 require=ents is 

normally accomplished by the issuance of a NOT.'U'l (Notice to Aimen) 

filed through the local Flight Service Station. Ho~ever, proper 

publication of the fAR 105.25 information in the Airport Facility 

Directory and depiction of the parachute symbol on the appropriate 

aeronautical charts ~ould also satisfy the FAR 105.23 requirements. 

SinceJ>ilot•.· ~f.llffic. scan vigilan~~ ~~ lit I! ~li?ft!"\ll'I.Ail:l";i.l)~ l!irpo:;t VFR traffic pai:ttirn ~!l~l)" llll.d. ~~l'M't~re, pilots \,>ould inost readily identify 

p,~XIlchu!:es .· . .!.n flight in the immediate vicinity of an. a.irport. Similarly,· since parachutists are familiar with airport VFR traffic 

pattern rules and locations, and enjoy nearly unrestricted 360 degree 

visibility, the descending parachutist ~ould most readily identify 

aircraft using these kno~ patterns. Contrary to older technology 

parachute designs, main and auxiliary canopies currently in use are of a 

"'ram-air" type, ~<hich are highly maneuverable and gliding parachutes. 

These very high performance parachute systems allo~ the descending 

parachutist to identify potential conflicts ~ith other aircraft at 

altitudes ~<ell above aircraft in the traffic pattern, then select 

appropriate nonconflicting landing approaches and maneuver accordingly 

2 
.· 

to maintain proper visual separation from the aircraft traffic, This 

combination of ease of mutual identification and visual separation 

bet~een aircraft and parachutists at airports and greatly improved 

parachutist maneuverability enables simultaneous aircraft and sport 

parachuting operations at General Aviation airports to be both a safe 

and compatible use of such airports. 

3 

,.potential conflicts bet~een aircraft and parachutists can exist, 

however, "'lieri parachuting operations are conducted .. in poorly defined, 

unpublished areas. flight Information Publication (FLIP) chart 

parachute symbols placed adjacent to airports from vhich parachutists 

operate greatly assist the transient pilots in exercising appropriate 

vigilance near such airports. In turn, the appropriate NOTAM or 

published area and, although they are still considered "noncertificated 

airmen" by the FAA, be briefed en a regular basis concerning VFR 

visibility, FAR 91/105 cloud clearance requirements, traffic scanning 

techniques, and their ovn VFR "see and be seen" responsibilities. An 

additional special requirement concerning parachute jumps made between 

sunset and sunrise is outlined in FAR 105.33, wherein all parachutists 

en such jumps are required to display a source of light visible for a 

minimum of three (3) statute miles for the entire duration of the 

parachutist's descent. lt may be noted that this requirement for three 

(3) mile visibility is consistent vith the three (3) mile flight 

visibility requirement of FAA 105.29(b), and is designed to serve the 

same purpose: to ensure that visual separation between aircraft and 

parachutists can be maintained, day or night. The additional safety 

considerations described herein supplement the basic Visual Flight Rules 

and serve to further emphasize the :·see and be seen" nature o£ sport 

parachuting. 

Attached is a Miami Terminal Control Area Chart that vas used in the 

preparation of local airspace use analysis. Local IFR protected 

airspace boundaries were constructed on the TCA Chart excerpt in 

accordance "'ith FAA Handbook 8260.3b, which defines terminal Instrument 

Approach Procedures (!ERPS) and certain other airspace management 

criteria. In addition to the standard !CA and Tamiami/Homestead 

transition area boundaries, there are t"'o (2) prominently outlined types 

of IFR-dedicated controlled airspace boundaries depicted south~est of 

the Biscayne Bay VOR!AC that are of special interest. Protected 

airspace boundaries are Victor Airways V 157 to the west of the 

Homestead area, V 3 to the west through north, and V 35 to the east are 

depicted by red lines. The· airspace designated by Miami Approach 

Control to the Homestead AFB Ground Controlled Approach (GCA) facility 

for lFR control of military and other transient traffic at or below 

2,500 feet MSL is depicted by a black line. 

On a "'eather, traffic, and controller "'orkload permitting basis, 

nonroutine "demonstration" type jumps into any controlled airspace could 

be coordinated on an individual basis. However, extensive IFR terminal 

arrival and departure traffic operating at lo"' altitudes (belov 10,000 

feet MSL) use both the TCA and the aforementioned depicted areas on a 
4 

daily basis. Although there are no mandatory requirements to segregate 

parachuting operations from these controlled airspace areas, nor any 

established separation minima other that the maintenance of visual 

separation, the potential IFR traffic delays and increased ATC workload 

generated by parachuting through these airspace segments would indicate 

that it is in the best interest of all concerned to conduct routine 

parachuting operations outside of these specially depicted areas. 

Optimally, routine sport parachute operations should be conducted so as 

to avoid IFR-dedicated airspace to the extent practical, involve the 

minimum number of air traffic control airspace sectors possible to 

reduce controller coordination, avoid exit over or into "congested 

areas'' (lAW AC 105-2A), and terminate on uncontrolled airports. ln the 

highly constrained Dade County airspace structure, these optimum 

conditions are simultaneously satisfied only in a relatively small area 

northwest of the city of Homestead. This optimum sport parachuting area 

.is a pentagonal area defined by the eastern and southern boundary of the 

V 3 protected airspace (solid red line), the northern boundary of the 

Homestead AFB GCA delegated airspace (solid black line) and Krome Avenue 

(dashed red line), east of which is considered a "congested" area and 

contains numerous large vertical obstructions. Sport parachuting 

operations conducted in the defined pentagonal area completely avoid 

IFR-dedicated airspace and permits efficient single-frequency radar 

traffic advisory service within a single sector of Miami Approach 

Control Airspace. Exits by parachutists in the defined area would occur 

over almost entirely unpopulated terrain, and allow landing in 

uncontrolled airspace, at a vell equipped and lighted facility; the 

Homestead General Aviation Airport (X51). This Dade County managed 

public airport lies almost directly centered in the optimum parachuting 

area and, due to its relatively large acreage, simple design, and 

extremely low traffic count, is almost ideally suitable for the landing 

of parachutists. 

Sport parachuting operations have, in fact, been conducted for well over 

a decade from X51. The current sport parachuting center at X5l is 

SKYP!VE, Incorporated, and has operated under its present management 

since 1978. Numerous FSDO on-site safety inspections of aircraft, 

parachute equipment, operations and appropriate certifications have 

consistently shown this present parachuting center to be aware of and in 

full compliance vith all applicable Federal Air Regulations. Indeed, 

this parachute center has maintained an excellent safety record, in 

spite of a·major handicap to their operation; parachutists have been 

disallowed the use of airport property for landing. Instead, they have 

used various "drop zones" in the vicinity of the airport that, although 

were properly filed by NOTAM, did not provide the equivalent level of 

visibility and safety that FLIP publication of the parachute symbol at 

and landing of parachutists on the airport would provide. SKYPIVE, 

Incorporated has, since its incorporation in 1977, conscienciously and 

professionally attempted to secure parachutist landing rights from the 

airport management in accordance with the FAR 105.17 requirement that 

prohibits landing of parachutists on airports without prior airport 

management approval. !o date, the airport management has denied this 

approval. 
5 

This office has received several requests from the SKYDIVE, Incorporated 

management to inspect their operation and to analyze and comment on any 

possible operational changes that could be implemented to further 

promote the safety of sport parachuting in the South Florida area, and 

specifically requesting our analysis of the "integration" of parachute 

jump operations into the other General Aviation uses in the X51 area. 

SJC¥DIVE, Incorporated had, on its own initiative, coordinated a "Letter 

of Understanding"" (formatted similarly to a Letter of AgreeiDent) with 

the EoiDestead AFB GCA dated April 29, 1982, and updated on November 30, 

1984, for the purpose of selecting a parachuting NOIAM area, altitudes, 

and operating times that did not conflict with the Homestead GCA ATC 

operations. This office finds such professional and safety conscious 

initiatives commendable and, since the completion of this local airspace 

use analysis, has found that the agreed ~OTAM area does indeed lie 

totally vithin the optimum sport parachute airspace and does not 

adversely impact on air tra.ffic flo" in the Miami Approach Control 

airspace, the HoiDestead GCA delegated airspace, or on uncontrolled VFR 

operations at X51. The NOTAM area used since 1982 is defined as a 1.5 

nautical mile radius about the Biscayne Bay VORTAC R-241 at 23.0 DXE, 

and appears on the TCA chart excerpt as the SIDall circular area centered 

southeast of and encoiDpassing X51 within the pentagonal optiiDuiD sport 

parachuting airspace area. Starting Yith the February 14, 1985, 

revision to the Airport/Facility Directory, this parachute drop zone 

will be regularly published, and coordination is currently underway to 

publish the parachute S:fiDbol on the appropriate FLIP aeronautical charts 

at the BSY R-241/023. 

During our analysis, complaint vas made that the X51 airport management, 

the Dade County Aviation Department (DCAO) had elected to impose a 

restriction on sport parachuting operations using airspace within five 

(5) miles of the X51 airport boundary, threatening termination of and 

eviction from the SKYDIVE, Incorporated leasehold on X5l if any 

parachute juiDps were IDade within this five (5) mile ""prohibited"" area. 

The .'FAA does. not support the g!JHr?;"Y ~.~tablisht;lent of any such a~ppace restrictio~s, .nor has the FAA authorized any outside agencies 

tq ofHcially designate '"restricted" or "prohibited"' airspace areas. In 

the specific case of sport parachuting at X5l, the FAA has found, quite 

to the contrary, that ALL of the optimum sport parachuting airspace in 

Dade County lies Wl!HIN five {5) llliles of X5l property. Spcrt parachute 

qp.eratlons are .~.()nsJp~~~p :t~.!lfF+~~· ... ~~F?.~.~utical.uses .. of hderally 

obligated airports such as X51, in accordance i!i~h FAA Handbook ,5190.6, 

Airport •Complia!!Ce Requirement, and discrimination against any such 

types of use is contractually prohibited under the four (4) ADAP 

"'Sponsor's Assurances" agreements executed by Dade County between 1962 

and 1968 with the receipt of Federal Grant monies for the developiDent of 

XSl. Since no public or flight safety hazards are evident that would 

justify prohibition of sport parachuting operations onto X51, this 

office shall strongly recommend to the DCAD that they desist from 

atteiDpting to exercise airspace IDanagement authority and to grant 

parachutist landing rights onto X5l in accordance with FAR 105.17. 
6 

For nonroutine "off-airport" exhibition parachute jumps, the primary 

references for guidance in deter!llining the appropriate requirements are 

FAA Handbook 8"40.5A, Chapter 10 and the similar Advisory Circular 

AC 105-2A. Both references identically define the circumstances under 

which "congested area" Certificates of Waiver or Authorization (FAA 

Forllls 7711-2) must be filed prior to making exhibition jumps as 

described by FAR 105.15. This office recom!llends that persons or 

organizations planning to conduct such jumps follow the following steps: 

a. Reference AC 105-2A to determine whether the planned jump 

will require FSDO issuance of a ''congested area" waiver. 

b. Verbally coordinate in advance with the Miami Approach 

Control area supervisor to discuss potential air traffic 

safety conflicts and suggested operating restrictions. 

c. When required for "congested area" jumps, file the 'FAA 

Form 7711-2 in triplicate ~ith the local Flight Standards 

District Office (FSDO). 

d. Secure prior airport management approval for jumps 

conducted onto any airport, in accordance with FAR 

105.17. 

e. To request authorization for jumps to be made in 

accordance with FAR 105.19 or FAR 105.21, submit the 

information required by FAR 105.25 in a timely manner 

with the appropriate ATC facility, to include the filing 

of a Notice to Airmen (NOT AM). 

f, Check local civil ordinances for permit requirements. 

The FAA seeks to ensure the safety of the public and of all users of the 

National Airspace System without undue restriction. This office has 

thoroughly examined the issues raised in the October 29, 1984, letter 

requesting this analysis, and finds no inherent public or aviation 

safety hazard nor other General Aviation incompatibility with sport 

parachuting operations conducted ~ithin the defined area and terminating 

with parachutist landings onto the Homestead General Aviation Airport. 

We shall closely monitor the performance of the X51 airport management's. 

ADAP commitments, and will investigate if FAA Order 5190.3 enforcement 

action ~ill be required •.. For nonroutine "off-airports" exhibition 

jumps, the FAA will consider each site waiver on an individual basis. 

This office appreciates your cooperation and professional safetyconsciousness in this matter, and we are pleased to be able to cooperate 

with your efforts to further improve flight safety. 

Attachment 

II 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Complainant's Reply in Support 

of His 14 CFR Part 16 Complaint on the following person at the following address by mail: 

Brett D. Wallace 

City Attorney's Office 

510 E. Florence Blvd. 

CasaGrande, Arizona 85122 

Dated this 12'h day of April, 2016