VIA EXPRESS MAIL Office ofthe ChiefCounse1 Attn: FAA Part 16 Docket Clerk AGC-600 Federal AviationAdministration 800 Independence Avenue, SW Washington, D.C. 20591 Richard

## J. Dw:den Attorney at Law 27987 Richmond HillRoad Conifer, Colorado 80433 616/901-6516 April12, 2016

Re: Luther Kurtz andSkydive Coastal California d/b/a PhoenixAreaSkydiving vs. The City of casa Grande, Arizona DocketNo. 16-16-01 Dear Sir or Madam: Enclosed for filing please find an original andthree copies ofComplainant's Reply in Support ofhis 14 CFRPart 16 Complaint in the captionedmatter. One copy is unbound, as requested bythe FAA.

enc.
cc: Brett D. Wallace, City Attorney's Office Luther KurtzBEFORE THE FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.
LUTHERKURTZ and SKYDIVE COASTAL CALIFORNIA d/b/aPHOENIXAREA SKYDIVING Complainant,
VS. THE CITY OF CASA GRANDE, ARIZONA Respondent ) ) ) ) ) ) ) ) DocketNo.: 16-16-01 ) ) ) )

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 80433 T: 616/901-6516 avIawver(,;)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 thatthe FAA has already found Respondentto be inviolation ofits Grant Assurances (Complaintpages 17 and 18, Exhibits 7 and 10 and Answer Exhibit 2), that City's denial ofskydiving access onto the Airport is not reasonable, andhas conducted a Safety Study at the Airport, which found that skydiving maybe safely conducted onto aparachute landing area (PLA) onthe Airport.

1Respondentthenbases its arguments on its own interpretation ofthe terms ofGrant Assurance 22 that would require the FAA demonstrate to Respondent/Citythat a potential aeronautical use is safe instead ofthe plain language whichplaces the burden ofshowing that banning an aeronautical activity from an airport on the basis ofsafety is on the airport sponsor withthe FAA as the ultimate arbiter. Despite alreadybeing found inviolation ofits Grant Assurances and receiving an FAA directiveto present a corrective actionplan (Answer Exhibit2), Respondent attempts tojustify its defiance ofthe FAA's most recent directive and findings through simply repeating specific
concerns regarding safety that the FAA examinedwhen itundertook its Safety Study. Respondent's demand that itbe the arbiter ofaeronautical safety and flagrant disregard of
an FAA safety fmding and directive throughout Respondent's pleadings are consistentwiththe City'spractice ofcontinual delay as a tactic to deny Airport access to Complainant; as pointed outby the FAA in Complaint Exhibit 1, page 66. Respondent denies the plain language ofFAA findings ofviolation ofGrant Assurances,
a directive to allowAirport access and the results ofanFAA Safety Study conductedbythe FAA's top compliance specialist in the Western-Pacific Region, Anthony Garcia, and skydiving safety expert, Mike Millard, anAviation Safety Inspectorwiththe Flight Standards Service at FAANational Headquarters inWashington, D.C. Itdoes, however, assert onpage 18, paragraph 11 ofits Answerthatthe former airport manager made a "careful" review ofskydiving safety at the Airportbefore denying access. There is no evidence ofthe nature ofthe review, althoughhe apparently did not contact any skydiving operators or the United States Parachute Association for expert assistance withhis review. The City is critical ofthe FAA's on-airport Safety Study

2because the FAA did not provide it with all ofthe underlying documents itused-yetit has
never provided any ofthe material manager Wilkieperused inhis "careful" review.
The FAA was giventhe City's opinions regarding safety ofa skydiving landing area on the Airport well before it conducted its on-airport Safety Study. Its personnel hadtime to considerthem at length, heardthem again during a face-to-face meeting withmanagerWilkie andthenrejectedthem. Nevertheless, the City continues to repeatthem as ifthey were never reviewed orrejected. The City does this eventhough the FAAtoldthe Citythat: "Interestingly, some ofthe reasons the City presented to exclude skydiving might conceivably be usedto exclude other aeronautical activities. For example, additional flight schools could be excluded because they would addto an already congested airport and denigrate safety. Ultralights mightbe unreasonably barred from the airportbecause they fly slowly and often without two-way radio communication. Helicopters mightrepresent a safety issue because theymay ascend and descend without regardto fixed-wing aircraft landing, taking off, orin the traffic pattern. These conditions may appearto provide plausible reasons to restrictthese activities, but after careful evaluation, theywould likely be determinedto be uureasonable and unjustly discriminatory restrictions." (Complaint Exhibit 7). Putmore simply, withthe mitigations the FAA set forth, the City's stated opinions regarding safety are withoutmerit and have beenrecognized as such by the FAA. Forthe Cityto repeatthem here is disingenuous atbest. To believe Respondent's opinions, one must believe that skydivers are second-class aeronautical citizens thathave access to airspace only after all other aeronautical users have leftthe area, which is notthe law. All users ofthe airspace above Airport must comply withthe same 14 CFRPart 91 Federal Aviation Regulations. To assert or
evenimply that skydivers cannot, while all others canis without veracity. Using Respondent's reasoning on safety, ifskydiving cannot be conducted safely at the Airport, other aeronautical activities also cannot operate safely.

3The City impliesthat somehowthe airspace above Airport is unique in the country in its congestion andthus skydivers shouldnot land at Airport. The City did notprovide any comparisons with other drop zones inthe country because it is undoubtedly aware that there are airport drop zones under muchbusier airspace. The FAA is fully aware ofthis situation.

II. Factual Background Onpage two ofits Answer, the City states correctly, that one PLA site is "locatedin a functional drainage basinthat is both directly adjacent to the taxiway andthatrequires drops directly into the missed approachpathway routinely used by flight schools inthe area." What is omitted is significant-not only was this shownto the FAA during its on-site Safety Study, it is the area thatthe 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 inthe missed approachpath and a PLA that is smooth and level enoughto have been used as a runway cannot be used for parachute landings. Inparagraph 15 onpage 6 ofthe Answer, Respondent states with regard to the on-airport Safety Study, that to its "information and beliefdidnot include representatives ofthe 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, anAviation Safety Inspectorwiththe Flight Standards Service, General Aviation Ops Branch at FAA National Headquarters, the FAA's headquarters subjectmatter expert on skydiving. Onpages 14 and 15 ofthe Answer, Respondent denies having everrefused Complaint permission to operate its business from the Airport, stating it only has refused an on-airportPLA. 4That is incorrect. The City twice denied Complainant permissionto even fly from the Airport. The first time wasjust after it started business in 2006 (Complaintp. 3). Thatrequired the Complainantto reach outto the FAA for intervention. The second was shortly after Richard Wilkie became airport manager (Complaint pp. 3 and I0). The City denies taking any action to prevent Complainant from obtaining office space on the Airport after evicting it from its leased space inthe terminal building, yetit does not explain why Complainant was never allowed to rent any ofthe open space onthe Airport-itwas 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 ofan off-Airport PLA andhelping it find off-airport office space, yet it also admits writing a letter to the County opposing Complainant's applicationto build an office onthe off-airport site (Complaintp. 11). That letter not only was effective inpreventing approval, but it also caused the County to start an actionto prevent Complainant from using the land as a PLA. As pointed out byAnthony Garcia, Airports Compliance Specialist, Western-Pacific Region, Airports Division, inComplaintExhibit 7, a letterto the City: "However, we are puzzled bythe City's willingness to negatively influence the very conditions underwhich 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 thatthe City would welcome in so far as the City did not want Mr. Kurtzto operate aparachute landing area at the airport. Itnow appears that the City's actions vis-a-vis the off-airport drop zone (its letter to the County) unnecessarily provoked the very conflict inwhichit is presently engaged with Mr. Kurtz" Inparagraph 6 on page 16 ofits Answer, the City admittedthat skydiving could be conducted safely onthe Airport withthe implementation ofthe mitigationprocedures outlined bythe FAA. 5Later inthe paragraph, the City asserted that skydiving could cause users ofthe Airportto go elsewhere and cause a negative fmancial impact on the Airport. The City provided no dataof any sortto support its conjecture. However, onpage 17, inparagraph 8, the City stated that much ofthe operations atthe Airport consist oftransient flight training operations from flight schools based at other airports. Itdoes not state howthose contribute to the Airport's financial stabilityotherthan ifthe instructor and student land, take a break and buy a cup ofcoffee inthe Airportterminal. Onpages 17 and 18 ofits Answer, City admitsthatmanager Wilkie held Complainant's application for a PLA onthe Airport for over eight months while he gave it a "careful"review, but does not identifY who or what organizationmanager Wilkie consulted as part ofhis review. There were no public meetings calledby Mr. Wilkie during this time to get feedback from Airport users or other skydiving operators. On page 19 ofits Answer, the City admits that once manager Wilkie received the Part 13 Complaint, he was able to respond in less thantwo months. Inthattime he organized a number ofpublic 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 inviolation ofgrant assurances and directive to submit a corrective actionplan within 14 days (Answer at page 21). The City has not submitted a corrective actionplan as ofthe time Complainant served this Reply.



### 6

### III. Law and Argument

A. 

### Safety TheFAA has preemption authority over aviation safety. 

### Jeff Bodin and Garlic City Skydiving v. County of Santa Clara, California, FAA DocketNo. 16-11-06, Final Decision (August 12, 2013) at page 34, citing 

### CityofBurbankv. LockheedAir Terminal, 411 U.S. 624 (1973). Inthe 

### Garlic City matterthe FAAwent on to state, at page 35: "
... FAA safety determinations pursuantto the Federal Aviation Regulations takeprecedence over any airport sponsor views or local ordinances pertaining to safety. This is especially true whenthe Director is asked to make a determination regarding a sponsor's compliance withits federal obligations in cases where restrictions or limitations are instituted in the interest ofsafety." Citing also 

### Orange County SoaringAssociation, 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 thatthe only reason is so Complainant can "reduce his business costs at the direct expense ofAirport safety." (Answer, page 2) Respondent City ignores that the vastmajority ofPLAs are on airports (FAA Advisory Circular 105-2E 

### Sport Parachuting, section 6(a)). On-airport PLAs are the industry standard andprovide a convenient reference to allow pilots operating inthe area to knowwhere to lookfor skydivers. The FAA has long statedthat the safestplace to locate a PLA is onthe**airport~as** an example Exhibit 14 (attached) is an August 30, 1985 memorandum concerning skydiving inthe busy skies of Southern Florida. It states, 

### inter alia: "Since pilottraffic pattern vigilance is at a maximum during airport VFR traffic pattern entry and departure, pilots wouldmostreadily identity parachutes inflight inthe immediate vicinity ofan airport."

7In its Answer, Respondent repeats the same safety arguments it has made repeatedly to the FAA, They were received inwriting and verbally, considered and addressed via mediation procedures. The City cannot seem to understand or acceptthat skydivers havethe same right to be in the airspace above an airport as any other aeronautical users. For example, the City asserts that a PLA locatedunderthe missed approachportion ofan ILS approach is unreasonably dangerous. Itfailed to note that skydiving is only conducted in VFR, not instrument, weather conditions. In VFR conditions aircraft flying overthe Airport separate themselves from each other and skydivers under the see-and-avoidprovisions 14 CFR Part 91.113 whichhave been in effect for decades. Ifskydiving is occurring, the weather is VFR and any pilots practicing ILS approaches are required by 14 CFR Part 91.109 to have a safety pilot (or flight instructor). The safetypilot'sjob is to watch outside as part ofthe see-and-avoid provisions ofthe Federal Aviation Regulations during all segments ofthe approach, including the missed approach. There is nothing magical aboutthe missed approach segment ofa practice instrument approach--during all segments ofa practice instrument approach, the safety pilot is to be watching outside for other aircraft, skydivers, towers, obstructions andthe ground. Respondent ignored a greater safetyhazard for aircraftpracticing ILS approaches-the segment from the final approach fix to the missed approach point. It passes throughthe airporttraflic patternitself-amuch highertraffic areathanthe airspace above a PLAlocated onthe Airport. Respondent also did notrespondto the FAA's contention in Complaint Exhibit 7 atpage 2 that a mix ofairport activities (airplanes, helicopters, skydivers, etc.) may provide a better environment for flight training ifit instills situational awareness in student pilots. Respondent, not surprisingly, relies heavily onthe desk reviewperformed bythe Scottsdale FSDO, which as pointed out atpage 17 ofthe Complaint, was largely a recitation of

8manager Wilkie's letter to the FAA withhis reasons for objectingto an on-airport PLA. The quality ofthe desk review (Complaint Exhibit 8) is revealed when looking at a rather dramatic
errorthat goes to the heart ofthe review: Inparagraph 3 under "Specific safety concerns," the reviewrefers to 14 CFR Part I05.23(c) regarding drift over ofparachutes. Thatregulation does not apply to parachutes landing onthe airport in**question~as** is the case here. Thereviewwas conducted in accordance with onlytwo regulations, 14 CFRPart 105.5 and I05.23(c). Through inexperience or lack ofknowledge ofthose who conductedthe deskreview, it did not addressthe regulations applicable to on-airport PLAs. In paragraph 6 onpage 16 ofits Answer, the City admits that skydiving canbe integrated onto the Airportby implementing mitigatingprocedures, effectivelyrefuting the rest ofits Answer. At no time does itprovide evidence that any ofthese procedures are anything but routine for skydiving or that they cannot be followed. They are; they canbe and Complainant complies with similarprocedures at many ofhis other commercial skydiving operations around the country. The mitigationprocedures are routine, primarily having to do with communications, and are ofthe sort ofprocedures regularly followed by general aviationpilots and other skydiving operators across the country (ComplaintExhibit 1 0). The City goes onto panic about the mitigating procedures inparagraph 19 onpage 21 of its Answerwhere it noted that implementing some ofthe procedures will be outside ofits control. The City failed to acknowledge thatthe controlling agency for compliance with aeronautical procedures not withinthe City's control is the FAA. The Cityhas an airport manager and staff. For years City personnel atthe Airporthave followed theprocedure that if they see a violation ofFederal Aviation Regulations, they call the regulatory authority, the FAA. Skydiving is an aeronautical activity regulated bythe FAA. Introducing skydiving onto the

9Airport doesn't change any degree ofcontrol the Cityhas overpersons usingthe Airport-the City should still call the FAA ifa violation is observed. In addition, the City has enactedrules and regulations for the Airportthat mustbe followed byusers when on the Airport. Ithas enforced those rules and regulations for decades. To the extent some ofthe skydiving mitigationprocedures shouldbe addedto theAirport rules andregulations, the City may do so. As the FAApointed outrepeatedly in its communications with the City, all the City needs to do is sit down and work outthe details with Mr. Kurtz. The fact thatthe City has pointedlyrefused to do so does not give it an excuse to refuse implementation ofstandard, routine mitigation procedures. The burdenofprooffor denying access to an aeronautical activity is on the airport sponsor. Respondent has the burden ofproofto show that its ban on skydiving onto the Airport is in compliance withthe grant assurances. Because aeronautical activities are regulated bythe FAA, there is a presumption thatthey will be conducted safely. There is no requirementfor
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 thatthe activity cannot be safely integrated with other airport operations. Respondent is tryingto unilaterally change the terms ofGrant Assurance 22. The City incorrectly insists that a potential aeronautical user carrnot be allowed onto the Airportuuless the FAA specifically says that the use will be safe The ultimate arbiter as to whether a ban is necessary for the safe operation ofan airport is the FAA. [FloridaAerialAdvertisingv. St. Petersburg-Clearwater internationalAirport, FAA Docket no. 16-03-01, Director's Determination (December 18, 2003)] Respondent has provided
no citationto the contrary.
10Not only didthe FAAmake it clear that it was safe for skydivingto operate in the airspace above Airport, it was safe to land onthe Airport. While the language was polite, the FAA's disagreement with the City's positionwas final. Becausethe FAAhas ruled that a ban ofskydiving onthe Airport is notnecessary for the safe operation ofthe Airport, there is no issue outstanding, and Complainant is entitledto relief.

B. 

### Delay as Denial Respondent did not address nor explainthe numerous long delays in acting on Complainant's requests and onFAA requests for information. As described in the Complaint, delay was a tactic employed byRespondentto not only deny access to a PLA onthe Airport but, tied in with denying office space rental, to deny overall access to the Airport. InFrankHinshaw, SkydivingSchool, Inc., d/b/a Skydive Hawaii andIslandSkydiving, 

### L.L.

### C. v. the State of Hawaii, FAA DocketNo. 16-12-04, Preliminary Director's Determination (August 18, 2014) the FAA said, "inaction or omission canbe the means by which unreasonable denial ofaccess mightbe achieved." (atpage 36) Itwent onto say that an "airport sponsor does have an obligationto make available suitable areas or space onreasonable terms to those who are willing and otherwise qualified to offer aeronautical services to the public."



### C. Respondent's Fear ofLiability and Economic Impact As an airport operator, the City faces potential liability ifthere is an accidentin connection withits operation ofthe Airport. While the riskis minimal (the City didnot cite
cases inwhich an airport sponsor has been held liable for an accident involving an aeronautical activity in connectionwiththe airport andthere has neverbeen a case inwhich an airport

11sponsor has beenheld liable in a skydiving accident), Complainant is the first to agreethat potential risks exist. The risk exists whetherthe injuredpersonwas in the aircraft involved or
was a third-party injured onthe ground. That is true no matterwhat sort ofaeronautical activity
was involved. As aeronautical activity on an airport increases, the level ofrisk faced by the airport sponsor increases. Airport sponsors have dealt withthis, and their obligations to monitor activity
ontheir airports to assure itwas inconformance withrules and conditions, for years as activity levels have fluctuated and types ofusers changed. There are no cases that could be located by Complainantthat indicatedthis somehow imposed on the "minimalburden" demand onthe general revenues ofthe sponsorunder the national airport system. Indeed, sponsors, such as Respondent, have beenhappyto accept federal money for their airports-withthe risks-for years. However, in doing so, they have obligations that come withthat money. The City cannot beheardto complainthatthe risk ofliability it faces incomplying with allowing all aeronautical
users is an excessive burden The FAA addressed a sponsor's liability concerns directly atpage 37 ofJeff Bodin and Garlic City Skydiving, cited above: "Whilethe FAA acknowledges and is sensitive to the County's concerns ofliability, no airport operations are without some potential risks, and the County may notuse general liability concerns to prohibit a legitimate aeronautical activity onthe airport., especially where specific safety measures have beenidentified which would allowthe activityto take place with an acceptable level ofsafety on the airport." The City shouldnot be heardto complainthat it should be able to take money for an airport and then deny access to that airportbecause there mightbe an accident ifit is used for aeronautical activity.

12In its Answerthe City expressed concern about fixed wing aircraft refusing to use the Airport ifthere were an on-airportPLA. Itprovided no data in support ofa potential loss of traffic, only suppositionthat it might happen and itmight cause economic harm to the Airport. While potential economic harm is not ajustificationfor banning an aeronautical activity under the Grant Assurances (only safety and efficiency), the City's argument lacks factual support based on datathe City did provide. According to the City a highpercentage ofusers ofthe**Airport~and** the primary reasonit is as busy as it**is~are** aircraftbased at other airports that are flown to the Airport for training and then return to their home bases. The occupants ofthose aircraft rarely set foot onthe airport and often don'tbuy fuel, as it is cheaper for themto fuel at theirhome airport. Ifthey do stop, it isjustto take a quickbreakto discuss howthe flight lesson is progressing. They are not economic drivers helpingto keep the Airport financially viable because theyrarely spendmoney at the Airport, exceptperhaps in vending machines. The City's odd preference for transient flight training over a commercial aeronautical activity based onthe Airport and bringing money into the Airport and surrounding community
was remarked uponby the FAA in Complaint Exhibit 7 onpage 2. Inits response to the Part 13 Complaint, the City raised, andthen abandoned, the argumentthat skydiving on the Airport would cause executive aircraft to not use the Airport. The Citywisely dropped the argumentbecause itrecognized that those aircraft are flown by professionalpilots who have long been dealing withthe mix oftraffic at airports around the country and have little problem dealing withthe mix at the Airport. In addition, their salaries are paid by those who tell them where they are going to fly, those sitting inthe back ofthe airplane. Itshould be noted that FAA Order 5190.6B does not include concerns aboutpotential economic loss as ajustificationfor restriction on aeronautical activities.

13The City did not address the financial value to skydiving onthe Airport, as skydivers oftenbringtheir families withthem for gatherings or events over the course ofa weekend or holiday. The skydivers meanrevenue for the airport and surrounding motels and restaurants and the family members who become customers at otherbusinesses inthe area.



### D. Part 13/Part 16 Respondent is on one hand, critical ofComplainant not allowing his Part 13 Complaint "to runits course," (Answerp. 22) yet, atthe same time demonstrates that it dismisses the FAA and the Part 13 Complaint process as it has completely failed to comply withthe FAA's directive to provide therequired corrective actionplan inthetime specified (Answer Exhibit 2). 14 CFRdoes not prohibit filing a Part 16 Complaint while a Part 13 Complaint is still in process, although Complainantrecognizes doing so is not common. As set out atpages 16-18 of the Complaint, the FAA's October 8, 2014letter (ComplaintExhibit 7) statedthat, pending the Safety Study that was to be conducted, the letter was a "preliminaryinformal determination" of
anunreasonable denial ofaccess bythe City. Once the Safety Study was completed and published on September 17, 2015 and showedthat skydiving could safely be conducted onto the Airport, the preliminary informal determination ofthe Part 13 process was apparently complete. When manager Wilkie announced that his response wouldbeto institute yetmore delays in complying withthe determination by appointing a committee thatwouldn't even meet that year, refused to meet with Mr. Kurtz or cooperate with Mr. Kurtz in setting up meetings withAirport users, the need to proceedto a Part 16 Complaintbecame obvious. Mr. Kurtz did so aftertrying to get managerWilkie to take actionfor overthree months without any success. As ofthe time

14he filed his Part 16 Complaint, Mr. Kurtz had no ideathatthere wouldbe a directive issued on the Part 13 Complaint some three months later. Complainantrecognizes that Respondent asserts that its City Manager was notthe appropriate personto serve. Complainant notes that City Manager James Thompson was airport managerWilkie's boss, was copiedon a substantial number ofthe emails in Complaint Exhibit 1 andthat Complainant's Counsel has served City Managers inPart 16 matters at leasttwo other times andthose Respondents served Answers inthe time prescribed in 14 CFRPart 16. The City is inno way harmedbythe overlap ofthe Part 13 and Part 16 procedures. Underthe Part 13 process it has been ordered to provide a corrective actionplanto allow skydiving onto the Airport. While it has not demonstrated good faith efforts to comply andmay be subject to loss ofany further Federal AlP funds, once it does comply and Complainant is jumping onto the Airport, Complainantwill dismiss his Part 16 Complaint. The FAA seeks voluntary compliance with GrantAssurances. Once Respondent comes into Compliance, there will be no further need for this Part 16 procedure.



### E. Violation ofGrant Assurances 22 and 23 Complainant outlinedthe 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 appliedthose standards. Respondenthas provided no citations to any contrary authority, merely arguing that itis the arbiter whenit comes to decisions as to aeronautical safety. Under Grant Assurance 22 a prohibition ofan aeronautical activity is only allowed ifit is necessary for safety and efficiency and mustbe adequatelyjustified and supported. The FAA is the final arbiter as to whether a proposed prohibition is reasonable. [See

15Jeff Bodin andGarlic City Skydiving cited above and FAA Order 5190.6B.] The FAA has already found the Cityto be inviolation ofGrant Assurance 22 (Answer Exhibit 2). Byunreasonably denying airport access to an aeronautical activity, an airport sponsor is inviolation ofthe exclusive right prohibition ofGrantAssurance 23. [See FloridaAerial Advertising.] As the informationprovided inthe 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 ofGrant Assurance 23.



### IV. Conclusion Forthe reasons stated above and inthe Complaint, Complainantrespectfully seeks the reliefoutlined inthe Complaint. Because ofRespondent's failure to comply withthe Part 13 directive to provide a corrective action plan it has demonstrated a lack ofgood faith indealing withthe FAA and Complainant respectfully seeks an Order denying Respondent access to Federal AlP funds until it comes into compliance with its GrantAssurances.

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 ofTronsponotion FederalAvlalkm Admlnlstrotlon

FSD0-65 

# Memorandum

South Florida FSDO- Miami Post Office Box 592015 Miami, Florida 33159 29, 1984, Safety in Dale: 

### AUG 30

### 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 

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### .~.)!es.~

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. 

### ~s·•t)l,e• **?:§~•:.·•?i ~·~~+**  **f.~i**

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### ·~

**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 a4 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 (NOTAM). 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

IICERTIFICATE OF SERVICE I hereby certifythat I have this day servedthe foregoing Complainant's Reply in Support ofHis 14 CFRPart 16 Complaint onthe following person at the following address bymail: Brett D. Wallace City Attorney's Office 510 E. Florence Blvd. CasaGrande, Arizona 85122 Dated this 12'h day ofApril, 2016