BEFORE THE FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. ) FRANKHINSHAW, SKYDIVING SCHOOL, INC., ) d/b/a SKYDIVE HAW All and ISLAND SKYDIVING, L.L.C. )) Complainant, )

vs. THE STATE OF HAWAII Respondent ) ) DocketNo.: 16-12-04 ) ) \ ) )

COMPLAINANTS' MOTION FOR SANCTIONS Please 

### Serve: RichardJ. Durden Richard J. Durden, Attorney at Law 27987 Richmond Hill Rd. Conifer, Co. 80433 T: 616/901-6516 avlawyer!Zi)yahoo.com Counsel for Complainant Glenn 

### I. Kimura Deputy Attorneys General Department ofthe Attorney General, State

ofHawaii 465 S. King Street, Room 300 Honolulu, HI 96813 T: 808/587-2997 glenn.i.kimura(@hawaii.goy Counsel for Respondent NOW COJV!E Complainants, FrankHinshaw, Skydiving &!mol, Inc., d/b/a Skydive Hawaii and Island Skydiving, L.L.C., by andthrough counsel, and for theirmotion for sanctions against Respondent state as follows: OnAugu&t 18, 2014, inits Preliminary**Determination~** the FAAf<:Tund thatRespondent

was in violation ofAIP Grant Assurances 22 and 23 tor faiiing to allow Complaints to estabiish a commercial skydiving operation onthe Hana, Hawaii Airport. Among other things, Respondent

was mdered to negotiate in good faith withComplain&'"ltsto establish a mutually agreeable setof

1rules for skydiving on HanaAirport so as to allow Complainants tobegin skydiving operations

onPuma Airport immediately. The F&l\ was extremely critical ofthe Respondent's u.'lfeasonab!e tactic ofcontinuous footcdragging on the matterand notedthat, as ofthe Determination, Respondent hadrefusedto take action for seven years. Despite beingfound in violation ofthe Grant Assurances, having

### ·its corrective aotion planrejected by the FAA, receiving continued requests by Complainants for skydiving access to Hana Airport and to negotiate to establishmutually agreeable rules for such skydiving, Respondent has still failed to comply. Respondent hasrepeatedly defiedthe FAA by never entering into negotiations to establish mutuaily agreeable skydiving rules, failing to submit an acceptable corrective action plan and making material misrepresentations ofits intent and actions 

### to the FAA. The most recent act in defiance by Respondent to was the issuance ofa set oftake-it-or

### leave-it rules for skydiving at Hana Airport under the guise ofan·"Agreement."**(EM~ibit** 

### 10-1) The rules are 

### incontravention

### ofAIP 

### GrantAssurances, FAA t,>uidance 0nskydiving andcontain draconian provisions that are appliedto no other commercial operators on airports Respondent sponsors, including skydiving operations on other airports 

### it sponsors. 

### Complainantsunders"'umdt. 1 

### mtthe FAA

### "Seeks to

### ·encourage airportsponsorstovoluntarily comply with the Grant Assurances they sign; however, the FAA has the authority to, and has, imposed sanctions on airport sponsors who refuse to come into compliance. As will be expl.tiueJ be!uw, Respondent's defiance oflire FAA, itswillfulrefusal

### to,comply wid.'l its 

### llra.·n Assurances and egregious behaviortoward Complainants make it appropriate for the FAA now to not only stop processing all AIP funding applications by Respondent, but also to take such

2

### ftu"'iher action against Respondent as it 

### deems appropriate in the malicious set ofcircumstances here, including; l:mtnot limited to, orderingrepayment ofAIP funds. 

### I. FactualBackground On August 18, 2014, the FAA -is-sued its -P-relirr_.inary**Determination~** 

### finding that Respondenthad violatedGrant Assurances 22 and 23 byrefusing toallow Complainant to operate a commercial skydiving business on the Hana, Hawaii Airport. 

### In the Determination, the FAAnoted that four separate FAA safety evaluations concluded it could be conducted safely and that Respondent had delayed access via various methods offoot-dragging a stuwing sevenyears, which, the FAA stated, was unreasonable. The FAA furtherruledthatComplainants had gone "above and beyond" in its efforts to work in good faith withRespondent (p. 32) and ordered Respondentto negotiate in good faith withComplainants to develop rules for sk-ydiving at Hana that were satisfactory to both parties so as to allow Complainants immediate access. As soon as Complainants received the Determination, their counsel sent Respondent's counsel ail email indicating C0mplainants were fully prepared tobegin skydiving operations the upcoming weekend. (Exhibit 102) Despite the order to negotiatewith Compiainants, Respondent replied that it was busy andcouldn't deal with Complainants until it published its 

### C:orr-ective i-\ction Plan. (Exhibit 1-02) Complainantrespondedthat same 

### day, August 27, extending a hand and offeringto negotiate. (Exhibit 102) 

### On August 28, Respondent sent an email saying 1ha1 i1s oniy

### risk ofnoncompha.'lcce would be for not submitting a Corrective Action plan. (Exhibit 102)



### 3Complainants sent an email to Randall Fiertz and Kevin Willis on September 2, 2014 outlining Respondent'srefusal to negotiate ortake any action toward allowing airport access. (Exhibit 103) The next day, Respondent sent an email defending its foot-dragging by sayingthat its Corrective Action plan wouldinclude temporary skydiving accessfor Complainants. (Exhibit 103) It did not address the FAA's order for immediate airport access. On September 17, 2014 Respondent mailed its proposed Corrective ActionPlantothe**FA~&...** (Ex._llibit 104)·Itpromised to "commencerulemalting withjYublic hearings the first week ofNovember 20 14---theynevertookplace. "Inthe interim

.. "the Respondent promisedto enter into a LetterefAgreement withComplainants for commercial skydivingthat would have variousrequirements. i!.,t

### no point 

### didtheRespondentindicate 

### it was interested in coming

### up with any mutually-agreeable ruies. As a harbinger ofthe Respondent's utter unwillingness to workwith Complainants, a request for an electronic copy ofthe Corrective ActionPlanfrom Respondent was refused. Complainants

### hadto wait formail delivery, whichtook a week. On September23, 2014. Complainants sentthe

### FAA a letter (Exhibit 

### 105) notingthe


### numerous problems with the proposed Corrective Action plan, including-that the Respondent -had not agreedtojointlydevelop operatingnl.les forskydivingandreiteratingthat Complainants

were ready to begin operations immediately.**1-~o** 

### flli"iher action was taken by the Respondent to come into compliance. Complainants wminued tu 

### advise Respondent tlmt it was ready to begin skydivingoperations immediateiy if approval came on one day, ithad the equipment, personnel and expertise to begin operationsthe 

### next day. Complainants operate commercial skydiving facilities on other airports in Havvaii and

can start operatingonHana**wit.~**lessthan 24 horns notice.

4OnNovember 13, 2014, Randall Fiertz, Director, Office ofAirport Compliance and tv1anagement Analysis, sent a letterto Respondent rejectingRespondent's Corrective ActionPlan

as it applies to Complainants and clearly statingthatRespondent had failed to negotiate with Complainants in good faith as it had been orderedto do. It directed that it provide Complainants immediate skydivingaccess to Hana Airport. {Exhibit 

### 106) The letterspecifically :warned Respondentabout continued delays. Despite Respondent's Corrective Action Planbeingrejected, it has never published a new

one in an attempt t€H::omply. Respondent senta letter to 

### Randali Fiertz onNovember26 (Exhibit I07), stating ithad held a "coordinationmeeting" (not negotiations as it later claimed) with Complainant Frank HinshawonNovember 

### I3, 20 14. AtthemeetingRespondent simply presenteda 

### setofoperati..'lg rules on a take it or leave it basis, no negotiation was allowed. Respondent also created a set of "minutes" ofthemeeting that said Mr. Hinshaw had objected to a rule calling for radio commtwications during each**sk]'dive~which** wasuntrue. Hetriedto negotiate 

### a number ofthe otherrules, butthat wasn't one. The November 26 letter falsely stated that Mr. Hinshaw said he couldn'tbe operating onHana until the end ofDecember. Respondent's November 26letterdid not address the fact that 

### it had alreadyblownthrough its own deadline for a public hearing for rulemaking set out in its Corrective ActionPlan. Respondent's November 26, 20!4letter set out a schedule for events that would occur in 

### tire nrlema.l;:i:ng process fm 

### fmmalw!es fiJr skydiving at Hana, with all bat two ofthe events to have been completedbynow. The schedule proved to be a complete**misrepresentation~to** date

none the events has taken place.

5Complainants sent a letter to Randall Fiertz onDecember 1, 2014 (Exhibit 108) (before receivingRespondent's November Bletter-· Respondent hadceasedproviding courtesy copies ofits correspondence via email) andaskedthatthe FAArecognize Respondents noncompliance with its Grant Assurances and stop all AIP funds until it came into compliance. The nextday, afteJTeceivingRespondent's November 13, 2014, Complainants vHote another letterto 

### Randall Fiertz (Exhibit 

### 1 09) pointing outthe misrepresentations inRespondent's letter, including the false claim that Complainants couldn't start operating until December 31 and the utter lack ofnegotiation and again calling for AIP fundingtoRespondent to stop. OnDecember6, Respondentmisrepresented to the FAA, via email (Exhibit 110), that it

was negotiating, but never identified its negotiator (it still has not). The

### endof

### th-e yearcame and wentwithout negotiations or approvalfor operation. On January 5, 2015, Complainants sentthe first offive emails to Randall FiertzandKevinWillis asking for assistance in getting Respondentto comply with the FAA's directives, pointing out that there hadbeen no negotiationsandthatRespondent was engaged in

### its hisioric pattern of delayas a method ofdenial ofaccess--whichthe FAAhad specificallywarned against-and again pointing outthat Complainants were readyto begin skydiving operations immediately. {Ext.ibitH 1) Nothing happened untiiMarch 2, 2015, whenthe FAA sent out a Requestfor Additional Information asking Complainants tojustifY an objection to a method ofradio communication dm

### i,Eg a skydiving

### j cnnp 1uu. 'fire "ubjvcti<m" daitned .:ame fmm the Ul!SUJJPO!ted minutes preparedbyRespondentofthe November2014 meeting. Complainants respondedto the FAA's Request by stating they had no objections to the outlined communicationprocedures.

6OnMarch 19,2015, Complainants sentyet another email to Respondent asking when we couldstartoperations-· therewa" noreply. (Exhibit 112) OnApril 9, 2015, a letterwas mailedto FrankHinshaw, not Complainants' counsel, by Respondent. It contained the take it or leave it skydiving agreement (Exhibit 101) decreed by Respondentcontaining a provision designed

### to bankrupt Corupla:ina.'lt

### Fran_k Hinshaw-as will be set forth below.

II. Skydiving "Agreement" Terms Dictated by Respondent Ina letter datedApril9, 2015; without negotiation or discussion, Respondent .presented its unilateral terms forComplainants to begin operatinga commercial skydiving facility on Hana Airport (Exhibit 10 1 ). A number ofthe terms violate the Grant Assurances Respondent signed and FAi·, skydiving guidelinesand

### one was designedto bankrnptC<lmp!aimmtFrankHinshaw. Theterms were clearly writtento be unacceptable sothat Respondent could claim it wasdoing its bestto allow skydiving access but Complainants wouldn't agree andthus continue its skillful delaying

### tactics ineffectivelydenyingComplainants skydiving 

### access to Hana. A. Personal.Liability Requirement. Section 4 ofthe Respondent's decreed skydiving rules for Hanarequires Complainant FrankHinshawto be personally liable for "any damages and injuries to any person and personal property and shall defend, indemnify and hold harmless Airports [Respondent] from and against any claims, demands, liabilities, suits, actions,judgments, costs, and expenses for lose (sic) injury, death, or damage under torts, contract or otherwise, including but notlimited to, claims ofproperty damage, personal injury, or death of petsons, and economic loss, whenevet such loss, injuty, death, or damage arises out of, 1s connected with, or related to Skydive Hawaii's operations at HanaAirport." Should anyone make a claim against Respondent for falling down and hurting t.IJ.emselves becausethey saw a skydiver walking on airport property, this term requires Frank Hinshawto personallypay to take over Respondent's defense ofthe claim-which couldbankruptMr.
7Hinshaw. There is no possible way any sane adult would sign such an agreement. Further, given theRespondent'sweU•documentedantipathy toMr. Hinshaw (it alreadycharges himdoublethe square-footage rental rate it charges other commercial operators onDillingham Airport-Exhibit 113), it's not unreasonable to expect that it would immediately arrange for such a claimto be made. Respondent has never required a personal financial guarantee for any commercial operator on any ofits airports-and does not require it ofMr. Hinshaw and Complainants on any ofthe otherairports inHawaii where 

### 1vfr. Hinshawhas anagreementwith Respondent for a commercial skydiving operation, notably Dillingham and Upolu. The FAApreviously ruled that an airport sponsor's requirement for a personal financial guarantee is anjusteconomic discrimination, a violation ofGrant Assurance22, in its Final Determinationinthe matter ofBrown Transport, Co. v. City ofHoliand, Michigan, FAA Docket 16-05-09. Inadditon, neverduring any ofthenearly eight yearstheRespondenthas continuedto deny skydiving access did it ever indicate that it would add such a draconian term to its skydiving access conditions at Hana, Airport. The requirement is nothing more than another insidious tactic to deny skydiving ac<'..ess through delay-andthe Ff!LA haslongsaidthatdelay amounts to denial ofaccess, see Jeff Bodin andGarlic City Skydiving v. County of Santa Clara, California, FAADocket 16-11-06. 

### B. Req!!hements to Comply wifu

### Advisory Materials Term la. ofthe non-negotiated, dictated skydiving rules requires that Complainants "Meet USPABSR; comply with all pertinent portions of 14 CFRPart 61,91 and 105, Aeronautical Information Manual (AIM) sections 3-5-4,4-1-9, and FAAAdvisory Circulars (AC) 9-66, AC 90-42, AC 105-2 governing parachute operations at nontowered airports."

8The FAA long ago declaredthat an airport sponsor cannot require compliance with materials thm are "advisory in nature." See attached

### EJ<..hibit 1

### 13, FAA Commentsto Draft Corrective Action Plan at the Henry County, Tennessee Airport. Further, compliance with Federal Aviation Regulations is a matter for the FAAto enforce, not anairportsponsor--especiallyregulations thatpertainto pilotcertification

### (14 CPR Part 61).

### C. Restriction on Drop Zone Use Term l

### h. ofthe decreedrules states that: 

### "Skydiving operati&llS wilt

### belimited

### to holders ofD-Ievellicenses only due to the restricted size ofthe Drop Zone (DZ)." Respondent does not have the authority to dictate what level skydivers may use a given DZ,justas

### itcan..not dictate whatairplanesmayuse a nmwayofagiven length. This issue was addressed onpage 4 ofRandall Fiertz's November 13, 2014letterto Respondent (Exhibit 106) in which he rejected Respondent's Corrective ActionPlan as it applied to Complainants. Despiterequests andspacebeing available, Respondent has neverincreasedthe sizeof the DZ/Parachute Landing Area. 

### D. Preference For OneAeronauticalActivity OverAnother Term lc. ofRespondent's non-negotiablerulesstates that "No skydiving operations will 

### be made when the runway is in use by landing or departing aircraft or one or more helicopters is arriving, departing or operating on the infield adjacent to theDZ." Despite losing the Part 16 action and readingthe findings offour FAA safety studies for skydiving atHarra Anpm

### t, Respondent still duesn't seemto 

### W!detstandthat aetmmutieal activities have equal rights to use the HanaAirport and it cannotprohibit one from operating when another is operating. The users have equal rights to the airspace.



### 9See also the Henry County Airport letter (Exhibit 113) where the FAA dealt 

### with another airport sponsor's impwperattempttoba11 one type ofaeronauticalactivity from the airspace when another was in it. 

### E. Banning Personnel from PublicAreas ofthe Airport. Section 

### 1 e. ofthe non-negotiated skydiving rules statesthat "No persons will beallowed on the runways, taxiways, or within the Runway SafetyArea (RSA). A parachutejumper who lands within one ofthese areas will vacate as soon as practical." No similarrequirement is made ofother airport operators. Further, the FAA does not ban persomae! fro.'11 suchareas and it'snot reasonable at anairport that is so infrequently used as Hana. Section 1 f ofthe non-negotiated rules prohibits persons from being onthe ramp ifan aircraft is onthe ramp or hasthe enginerunning. No other operator has such a requirement imposed on it-persons are routinely on an airport ramp when an aircraft is onit with an engine running ormoving. None oftbe four FAA safety studies thatfound skydiving could be carried outsafely at Hana imposedsuch a requirement. F. Radio Communication Requirements While Complainantshave statedtheydo.not objecttothe airborne com_munication requirements desired byRespondent, they note that they, as weli as the ground radio requirement in section lg. are inlproperlybased on compliance withUSPA advisory materials.**6~-** 

### Ptov

### !ding. C.ustoma 

### Inftn

### n1atiou to 

### ltLASpondent Section 2 ofthe non-negotiated rules require Complainants to provide copies ofall waivers signed by its customers to Respondent every two weeks. Complainants have will have eachof

### its customers signa waiver thatincludes Respondent and will provide a copy .ofthe

10particularwaiver signed by a customer shouldthere be a complaint, however, it objects to providing allwaivers toRespondentas thereis no protection that the information provided by the customers inthem will be protected from public disclosure or leaks by Respondent. Further, there is no such requirement at any other skydiving facility in Hawaii, discrimination inviolation ofGrantAssurances.



### ill. Law and Argument While theFAA seeks to bring airport sponsors that are inviolationwiththeir Grant Assurances into compliance through cooperative efforts, ithas the authority to take such steps to compel airport sponsors to come into compliance-andregularly suspends further AlP grant applications under49 U.S.C.§§ 47115 and47114(d)ofthosenot incompliance. In general, an airport sponsor who refuses to comply withthe terms ofthe Grant Assurances it signs in return for AlP funds is denied future funding and may be required to return funds it has received. Given the unconscionable behavior by Respondent in this matter and

### t..he. FAA'sunusual delayin suspending its AIP grant applications as it routinely does inmuch less egregious factual circumstances, the question has arisen as to whetherthe FAA has the political will to compel a Statetocome into cmnpliance withits GnmtAssurances. "In accepting Federal financial assistance, the airport sponsor, regardless ofthe number ofairports owned, assumes certain obligations, eitherby contract orbyrestrictive covenants in property deeds and conveyance instruments, to maintain and operate its airport safely and efficiently for the use and benefit ofthe public is the prime obligation set forth inthe Federal Gtatrl Assurances. [See Otdet 5l'J0.6B 

### § 14.2}" final Agency Decision and Order,

### JeffBudin andGarlic CitySkydiving v. County of Santa Clara, California, p. 

### 22. In

### Bodin, the FAA explained that the sponsor had made a commitment to comply with the GrantAssurances,hutJailedto do so, accordingly

### the FAA suspended approval offurther

11grant applications until further notice-and further approval was contingent upon the sponsor coming into compliance with its Grant Assurances. The FAA explained, onpage 22 ofBodin, that Grant Assurances are signed by sponsors, not individual airports, and therefore suspension ofapproval offurther grant applications applies to the sponsor, notjustto the individual airport at whichthe sponsor has denied access. Thus, the suspension ofapproval offurther grant applications appliedto ail three ofthe County of Santa Clara's airports. Here, as ofthe time ofthe August 2014 Preliminary Determination, the FAAruled that Respondent was in violation ofits Grant Assurances and specifically referenced the extraordinary degree to which Respondent had engaged in delayingtactics as it denied Complainants access to Hana Airport-overa period ofmore than sevenyears. Inthe PreliminaryDetermination, atpage 31, the FAAoutlined examples ofwhat it calledthe attempts by Complainantto negotiate in good faith withthe State and the State's refusal to negotiate. Onpage 32theFAA found that "TheRecord indicate&that the Complainant has gone above andbeyondwhat couldonly be consideredto be reasonable attempts to negotiate aeronautical access with the Respondent prior to the filing ofthe instant Complaint." (emphasis added) Complainants have continuedto go above and beyond in trying to negotiate with the State. They are preparedto begin skydiving operations on the Hana Airport inunediately. Respondent was otdc:ted to negotiate in good faith with Complainants to establish mutualiy-agreeable rules for iuunediate skydiving access atHanaAirport.

12"Negotiate." "To confer with another so as to arrive atthe settlement ofsome matter; to deal with; to arrange for or bring about through conference discussion andcompromise

... " Merriam-Webster's Collegiate Dictionary, Tenth Edition. "Goodfaith." "Honesty or lawfulness ofpurpose." Merriam-Webster's Collegiate Dictionary, TenthEdition. On November 13,2014, Randall S. Fiertz, Director, Office ofAirport Compliance and Management Analysis, sent a letterto counsel for Respondent (Exhibit 1 06) rejecting Respondent's Corrective ActionPlan andpointing out that Respondent hadthus far failed to negotiate in good faith with Complainants. The Respondent's response was to hold a meeting at which no negotiation was allowed. Respondent didn't and still hasn't botheredto prepare a Corrective Action Planthat was acceptable to the FAA. The November 13, 2014letterrejectingRespondent's Corrective Action Planreferenced the State's continuous foot-dragging in allowing Complainant's skydiving access to Hana Airport atpage 3: "The Director's prescriptive corrective action is in direct response to the State's protracted rulemaking process, andthe State's more than 7 year delay in granting Complainant aeronautical access to 

### 1;INM incontravention ofGrant Assurance 22 and Grant Assurance 23." Despite having its Corrective Action Planrejected, Respondent has never proposed a revised Plan that would be acceptable to tire FAA. Atpage 6 ofthe November 13, 2014 letterRespondent was directedto "negotiate in good faith, withthe Complaint's active participation, to develop temporary parachuting procedures to allow the Complainant immediate aeronautical access to the HanaAirport." Emphasis added.

13"Immediate." "Occurring, acting, or accomplished without loss orinterval oftime; instant." Merriam-Webster's Collegiate Dictionary, Tenth Edition. Mr. Fiertz closed out his November 13, 2014letterwith a warning to Respondent:

"The Director cautions the State that protracted correspondence or negotiations with the Complainant in developing the temporary procedures can be construed as additional unreasonable delay and could result inthe Director initiating actionto withhold theprocessing of the State ofHawaii's applications for Airport Improvement Program discretionary grants under 49 U.S.

### C. §47115 and general aviation airport grants under 49 D.S.C. 

### §477114(d)." Respondent's combination ofactions, inactions, failure to submit an acceptable Corrective Action Plan, in-your-face defiance ofthe FAA and Complainants and now, its unilateral imposition ofa set ofrules that are unreasonable and contrary to its Grant Assurances make it clearthat the time has come for the FAA to act decisively. Complainants respectfully ask that the FAAtake immediate actionto withhold processing ofRespondent's applications for AlP grants, compel the Respondent to repay grants ithas received and such further sanctions it deems appropriate to compel Respondentto come into compliance with its Grant Assurances.

Dated: April 30,2015

14 Respectfully submitted,

Richard J. Durden, Attorney at Law Attorney for Complainant By:

Co ifer, Colorado (616) 901-65156CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Complainants' Motionfor Sanctions onthe following person at the following address byregular mail: Glenn 

### I. Kimura Deputy Attorneys General Department ofthe Attorney General, State ofHawaii 465 S. King Street, Room 300 Honolulu, ill 96813

Dated this 1st day ofMay, 2015

•. Durden Complainants



### 1OAVtDY,IGE GOVERNOR

Frank Hinshaw P.O. Box 75520 Honolulu, HI 96836 RE: Letter ofAgreement Dear ;'vlr. Hinshaw: i{A,i-·HJLU! !l.lHPORl' ;**;._·,~'h',.\.~l:** i\iF;(';Ji;\ i' HO.A--i), LH'\il'l 5

KAHUUJL HN/v'AJf liD Iji·Cj6f April 9, 2015

Enclosed is the letter of agreement for the use of Hana Airport for Sport Parachute Operations. Review the attachment and sign is the designated areas. JADE T 81_!TAY MSS M. IJICA8HI EDWIN H. SNIFFEN 

### DARRELL**TYG~NG**

Mail the signed original back to the Kahului Airport in the enclosed stamped envelope.

Enc.



### f[;oiidJ;r I Cl 

### IDAVID Y. IGE GOVERNOH

STATE OF HAWAII DEPARTMENT OF TRANSPORTATION AIRPORTS DIVISION • MAUl DISTRICT KAHUlUI AiRPORT ' r--:i-CHUi.UI ,t,_:i-\P!.,__)h;T H.UPD

. **._;~J'1T** :.

KAHULUi. HA\NA!i

**0€732~232.7** LETTER OF AGREEMENT USE OF HANA AIRPORT FOR SPORT PARACHUTE OPERATIONS ROSS M, HJGASHl EDWIN H_ SNIFFEN DARRELl T. YOUNG IN REPLY REFER TO 

## AIR· 15.0130

Frank Hinshaw, personally and on behalf of Skydiving School, Inc., d/b/a/ Skydive Hawaii and Island Skydiving, L.L.C. (Hereinafter referred to as "Skydive Hawaii") and the State of Hawaii through its Airports Division, Department of Transportation (Hereinafter referred to as "Airports") agree as follows: To promote the safe and efficient use of the designated parachute landing area (PLA) located in the infield between the Runway Safety Area to the north, taxiway B to the west, taxiway C to the east, and the terminal apron to the south for sport parachuting, Skydive Hawaii agrees to the following conditions for its parachute operations at Hana Airport: 1. Abide by the following safety rules until they are incorporated into the Hawaii Administrative Rules (HAR), until such time as those rules are amended, cancelled or superseded: a. Meet USPA BSR: comply with all pertinent portions of 14CFR Part 61, 

### 91, and 

### 105, Aeronautical Information Manual (AIM) sections 

### 3-5-4, 4- 

### 1-9, and FAA Advisory Circulars (AC) 

### 90-66, AC 

### 9042, AC 

### 105-2 governing parachute operations and operations at nontowered airports. b. Skydiving operations will be limited to holders of D-levellicenses only due to the restricted size of the Drop Zone (DZ). c. No skydiving operations will be made when the runway is in use by landing or departing aircraft or one or more helicopters is. arriving, departing or operating on the infield adjacent to the oz d. In addition to the radio communications required by 14 CFR 

### 105.13 (1), (2), Pre-jump and 'jumpers away" calls must also be made on the airport Common Traffic Advisory Frequency (CTAF) 122.9 MHz. An "all jumpers down" call will be made on the CTAF after last jumper is on surface.Letter ofAgreement April \1, 2U !5 IUD H Page 2

e. No persons will be allowed on the runway, taxiways, or within the Runway Safety Area (RSA). A parachute jumper who lands one ofthese areas will vacate as soon as practicaL f. All persons

### will remain clear ofthe ramp 

### if any aircraft on the ramp is in motion or has the engine n.mning. g. Skydive Hawaii will have a responsible party on the ground with a working two-way VHF radio, consistent with USPASSR l 3 h. No equipment or debris will be left on the DZ while not in use for skydiving. 

### i. Skydive aircraft will not use the runway or any taxiway for loading/unloading or parking. The ramp area in front of the terminal may be used for loading/unloading only, a.nd not for aircraft parking. 2. Skydive Hawa1i will include Airports in all indemnity, hold harmless and waiver agreements with jumpers and copy(s) shall be provided to Airports every two weeks. 3. Skydive Hawaii will provide Airports with a copy of its safety plan for operations at Hana. 4. Frank Hinshaw personally and on behalf ofSkydive Hawaii agrees to be fully liable for any damages and injuries to any person and personal property and shall defend, indemnify and hold harmless Airports from and

**againsn~ll** claims. demands, liabilities, suits, actions, judgments. costs. and expenses for lose · injury, death, or damage under torts, contract or otherwise, including, but not limited to, claims of property damage, personal injury, or death ofpersons, and economic loss, whenever such loss, injury, death, or damage arises out of, is connected with, or related to Skydive Hawaii's operations at Hana Airport. 5. Failure to comply with the above provisions may result in withdrawal of permission to conduct sky dive activities at Hana.Letter ofAgreement April9, 2015 Page 3



### Skydive Hawaii 

### By its:------------ 

### Date:------------

Frank Hinshaw 

### Date:

------------

er

### AIRM 15.01304/30/2015 Print Subject: Re: Skydive Hawaii, Frank Hinshaw From: Glenn.I.Kimura@hawail.gov {Gisnn.!.Kimura@hawaii.gov) To: avlawyer@yahoo.com; Cc: skydivehawaii@hawaii.rr.com; Date: Thursday, August 28, 2014 6:04 PM



### Rick According to Director Fiertz's letter dated Auguest 18, 2014, the State ofHawaii is expected to submit a Corrective Action Planwithin 30 days and a failure to do so, 

### inter alia,will be subjectto a formal finding ofnoncompliance. Glenn Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. !f you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

From: Rick Durden <avlawyer@yahoo.com> To; "Gienn.I.Kimura@hawaii.gov"<Gienn.I.Klmura@hawaii.goV> Cc: "skydivehawail@hawaii.rr.com" <Skydivehawaii@hawaiLrr.com> Date: 08/27/201410:22 AM Subject: Re: Skydive Hawaii, Frank Hinshaw



### Glenn, Thank you for your reply. I am concerned that the State of Hawaii still does not understand that skydivers have equal rights to access the Hana Airport with all other aeronautical users per 14 CFR Part 105.25(a)(3). There is no "coordination" required other than the filing of a NOT AM. 

### Tne otner users do 110t nave any sort ofsupe1 io1 1 igl1t to use tl1e ail po,

## t. Mr. Hinshaw's company will notify Air Traffic Control at least 24 hours prior to the start of parachute operations and will file a NOT AM at least 24 hours prior to the start of parachute operations. There is no reason for the State to continue its policy of denial by delay - please confirm that temporary permission is granted for the commercial operation to begin on Friday. The State needs to take this seriously. If it does not come into compliance, the FAA's practice in all ofthe Part 16 matters ofwhich I'm aware is to stop FAA funding of all ofthe airports the 

## EX.J;J(J 1/ 

## I D 2._.4/30/2015 Print 

### sponsor owns. This was demonstrated in the matter of Santa Clara County, California. That means that the State of Hawaii faces a loss of millions ofdollars in grant assurance funding shortly if it does not come into compliance quickly. My client is willing to work with the State to getthis matter resolved. He has extended his hand in the past, only to have it slapped- and the FAA made note ofthat in its ruling. He has extensive experience in skydiving operations and the United States Parachute Association is willing to assist- those are two valuable assets for the State to use. There simply is no individual or group in this country with more skydiving safety expertise than is available through the USPA- its personnel are familiar with skydiving operations throughout this country and are the authors of the accepted safety guidelines for skydiving. My client does not want the State to get penalized, he just wants to get his business up and operating at Hana. 

### I suggest we work together to get this resolved quickly - and that would begin with approval to start operations on Friday. Thank you, Rick Richard 

### J. Durden Attorney at Law 27987 Richmond Hill Road Conifer, Colorado 80433 616/901-6516

On Wednesday, August 27. 2014 1:22PM, "Gienn.I.Kimura@hawaii.gov" <Gienn.I.Kimura@hawaii.gov> wrote:

Rick I don't think this will be possible as we have pending that thirty day period to submit the Corrective Action Plan which does not include the time needed to coordinate with other users at the Hana Airport. Glenn Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

From: Rick Durden <avlawyer@yahoo.com> To: "Glenn.I.Kimura@hawaH.gov" <Gienn.I.Kimura@hawaii.goV> Cc: "skydivehawaii@hawaii.rr.com" <Skydivehawaii@hawaii.rr.com> Date: 08/26/2014 08:15AM Subject Skydive Hawaii, Frank Hinshaw4/30/2015 Print 

### Glenn, Pursuant to the FAA's Determination in this matter, please arrange to provide approval for Mr. Hinshaw's company to begin skydiving operations at Hana as ofthis Friday, August 29. Mr. Hinshaw's company will comply with all applicable Federal Aviation Regulations and industry standards and is ready to begin operations now. Thank you for your immediate attention to this matter, Rick Richard J. Durden Attorney at Law 27987 Richmond Hill Road Conifer, Colorado 80433 616/901-65164/30/2015 Print Subject: Re: Skydive Hawaii Part 16 !'rom: Glenn.l.Kimura@hawaii.gov {Gienn.I.Kimura@hawaii.gov) To: Cc: Date:

Gentlemen: kevin.willis@faa.gov; randall.fiertz@faa.gov; avlawyer@yahoo.com; frankhinshaw@yahoo.com; Wednesday, September 3, 2014 6:14PM

It is my understanding that the Corrective Action Plan should include the State of Hawaii's response to that direction on developing temporary procedures prior to the finalization and implementation of the Operating Rules and Standards. Thank you for your attention in this matter. Glenn Confidentiality Notice: This e-mail message, including any attachments., is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

From: Rick Durden <avlawyer@yahoo.com> To: "randall.fiertz@faa.gov" <randall.fiertz@faa.goV>, "kevin.willis@faa.gov" <kevin.willis@faa.goV> Cc: "Gienn.I.Kimura@hawaii.gov" <Gienn.I.Kimura@hawaii.goV>, ''frankhinshaw@yahoo.com" <frankhinshaw@yahoo.com> Date: 09/02/2014 06:30AM Subject: Skydhre-HawaH Part 1-6



### Mr. Fiertz and Mr. Willis, On August 18, 2014, your office released the Director's Preliminary Determination in the above matter On page 47 you found the State of Ha,Naii in violation offud€lral law and its f€ld€lralQrant obligations and directed it to submit a Corrective Action Plan, acceptable to the FAA for skydiving at Hana Airport within 30 days. You further directed the State to act as follows: "Additionally, should the Complainant seek to begin parachute operations at HNM prior to the finalization and implementation ofthe Operating Rules and Standards, 

### the.State. is directed to negotiate in good 

### faitll to develop temporary procedures satisfactory to both the Respondent and the Complainant to allow such operations." Having heard nothing from the State, on August 26, I sent the following email to Glenn Kimura, counsel for the State:4/30/2015 

### "Glenn, Print


### Pursuant to the FAA's Determination in this matter, please arrange to provide approval for Mr. Hinshaw's company to begin skydiving operations at Hana as ofthis Friday, August 29. Mr. Hinshaw's company will comply with all applicable Federal Aviation Regulations and industry standards and is ready to begin operations now. Thank you for your immediate attention to this matter, Rick" The next day, I received the following email from Mr. Kimura: "Rick I don't think this will be possible as we have pending that thirty day period to submit the Corrective Action Plan which does not include the time needed to coordinate with other users at the Hana Airport. Glenn" I followed up with Mr. Kimura on August 27 again seeking approval for my client to begin skydiving operations on Friday and pointing out that the operator has equal rights of access to the airport as all other aeronautical users, would file the appropriate NOT AM and advise ATC in compliance with 14 CFR 105.25. On August 28, I received: "28 Rick According to Director Fiertz's letter dated Auguest 18, 2014, the State of Hawaii is expected to submit a Corrective Action Plan within 30 days and a failure to do so, 

### interalia,will be subject to a formal finding of noncompliance. Glenn" The State has been directed to negotiate with my client in good faith. Refusing to negotiate at all is prima facie evidence of bad faith and noncompliance with your Order. The State has refused to negotiate. Mr. Hinshawwould like to start parachute operations at Hana immediately f1 1rtherdelays are a continuing economic burden. The State just doesn't seem to get it- skydiving is a regulated aeronautical activity with equal right to access Hana Airport as all other aeronautical users. The response of the State makes it clear that it will use the Corrective Action Plan and its historic practice of interminable delay in establishing operating rules (which it waives for users other than skydivers) to continue to deny access to my client. I ask that, based on the State's absolute refusal to comply with the first paragraph ofyour Preliminary Order and Instructions by refusing to negotiate, that you immediately initiate the sanctions outlined in the second paragraph ofthe Order. Thank you,4/30/2015 

### Rick Richard 

### J. Durden Attorney at Law 27987 Richmond Hill Road Conifer, Colorado 80433 

### 616/901-6516 PrintDAVID M. LOUIE 2162 Attorney General ofHawaii GLENN I. KIMURA #2034 Deputy Attorneys General Department ofthe Attorney

General, State ofHawaii 465 S. King Street, Room 300 Honolulu, Hawaii 96813 Telephone: (808) 587-2997 Email: glenn.i.kimura@hawaii.gov Attorney for Respondent BEFORE THE FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.
FRANK HINSHAW, SKYDIVING SCHOOL, INC., d/b/a SKYDIVE HAW AU and ISLAND SKYDIVING, L.L.C. FAA DOCKETNO. 16-12-04 STATE OF HAWAII'S CORRECTIVE ACTION; CERTIFICATE OF SERVICE Complainant,

vs. STATE OF HAWAII, Respondent.

STATE OF HAWAII'S CORRECTIVE ACTION Respondent STATE OF HAWAil (hereinafter "State"), by and through its attorneys, David M. Louie, Attomey General, and Glenn I. Kimura, Deputy Attorney General, hereby submits the State's Correction Action Plan 

### in accordance with the Director's Preliminary Determination in the above-caption matter as follows:

hinshaw.DOCThe State will commence a rule making procedure iti accordance with Section 91-3, et seq. Hawaii Revised Statutes !(Jr the adoption ofthe Hana Airport Rules tor Skydive and Transient Aircratt Operations by immediately beginning the processing tor approval with the Otlice ofthe Governor, State ofHawaii, and which includes review by the State Departments of Budget and Finance and Business, Economic Development and Tourism in working towards having the public hearings scheduled on Matti, State ofHawaii, during the tirst week of November 2014. In the interim pending the formal adoption ofthe said Hana Airport Rules, the State proposes to enter into a Letter ofAgreement ("LOA") in which the Complainant agrees to abide with the proposed Hana Airport Rules that were developed in coordination with Complainant's prior attorney and helicopter operators at the Hana Airport but further action was pending due to DRAFT AC 150/5300-13 CHG 19 to AC 150/5300-13 Section 214 Guidance for Parachute Landing Area. The Letter ofAgreement will require maintaining membership in the U.S. Parachute Association (USPA) and having Complainant obtain a waiver from the USPA for
use ofthe available designated Parachute Landing Area (PLA) as this area does not meet the USPA Basic SafetyRequirements (BSR) as stated in BSR Section 2-1, paragraph I, 

### l. The Complainant will also be required to add the State as an additionallyinsured underthe USPA member skydiving liability insurance and include the State in all liabilitywaivers signedby participants in the skydiving activity. The State wili confirm with F AAIHNL ADO for approval ofthe designated area within Hana Airport. Skydiving operations at Hana Airport can commence uponreceipt ofthe signed LOA and notification that the said IlSPA waiveris granted along with providing the certificate ofinsurance naming the State as an additionally insured.

hinshaw.DOC 2hinshaw.DOC DATED: Honolulu, Hawaii, September 17,2014.

3

# ~-A~, GLENN I. KIMURA Deputy Attorney General Attorney for Respondent State ofHawaiiRanda!! Fiertz Richard ]. Durden AttorneyatLaw 27987 Richmond Hill Road Conifer, Colorado 80433 616/901-6516 avlawyer@yahoo.com September 23, 2014
Director, Office ofAirport Compliance 55 M Street, NW, Suite 800 Washington, D.C. 20591 Via E-mail and Regular Mail Re: Frank Hinshaw v. State of Hawaii FAA Docket 16"12·04 Dear Mr. Fiertz: On Monday, September 22, I received the State of Hawaii's proposed Corrective Action Plan that was dated September 17 in the mail, despite requesting an electronic copy. Accordingly, I have onlyjust had the opportunity to consult with my client and am now providing you with Complainant's comments on the proposed Corrective Action 

### Pian. Despite your office's directive to the State that it negotiate with my client to allow him to get his commercial skydiving operation up and running on the Hana Airport, the State has thus far refused to do so. Nevertheless, my client and I will continue reaching out to the State to solidify a mutual agreement to get his skydiving operation underway without further delay. My client is willing to enter into a Letter ofAgreement with the State, and is willing to agree to airport rules. However, the State was not entirely open with youroffice in its Corrective Action document- the HanaAirport Rules that were "developed" by the State, were never agreed to and contain some req' 1iremet:tts that contravene the Federal Aviation Regulations and need to be stricken. Notably, any portion ofthe rules that gives priorityon airport access to a particular type of aeronautical user is aviolation -particularly those that seek to prohibit skydiving operations when aircraft are in the vicinity. Skydivers and aircraft have equal rights to the airport. My ciient agrees to name the State as an additional insured under the referenced policy.As a note, the State is mistaken when it states that the PLAit has defined does not meet the USPA's Basic Safety Requirements in Section 2-1, paragraph 1,1. Ihave been in contact with the USPA and confirmed that the PLA meets the BSRs, so no waiver is needed. The USPA is the final arbiter of its BSRs. Nevertheless, ifthe state desires a waiver, one will be issued under the USPA procedures for doing so. My client is prepared to being operations immediately. He hasjumpers whojumped at Hana when it had a designated PLA, are experienced at the airport and are ready to start within 24 hours of receipt of approval. Finally, by copy ofthis email to the State, my client is renewing the request he has been making for 25 years to lease hangarspace nearthe ultralight/trike area, west ofthe maintenance hangar at Hana. Ilook forward to working directly with the appropriate person with the State to finalize an operating agreement. Very truly yours,

Richard J. DurdenU.S. Department af Transportation Federal Aviation Administration
November 13,2014 Glenn 

### I. Kimura Deputy Attorney General Office of Airport Compliance and Management Analysis

Department ofthe Attorney General, State ofHawaii 465 S. King Street, Room 300 Honolulu, HI 96813 Counsel for Respondent 800 Independence Ave., SW. Washington, DC 20591



### Re: FRANK H_INSHAW, SKYDIVING SCHOOL, INC., d/b/a SKYDIVE HAWAH AND ISLAND SKYDIVING, LLC v. THE STATE OF HAWAII (Docket No.16-12-04) Dear Mr. Kimura: On August 18,2014, the Director ofthe Office ofAirport Compliance and Management Analysis issued the Director's Preliminary Determination for the above-referenced matter preliminarily finding the Respondent to be inviolation ofits federal obligations withrespectto Grant Assurance 22, EconomicNondiscrimination and Grant Assura.11ce 23, Exclusive Rights. The Director found thatthe Respondent was not inviolation ofGrantAssurance 5, Preserving Rights andPowers. The Director's decision to issue a preliminary determination was predicated onthe Director's expectationthat the Respondent would submit a Corrective Action Plan (CAP) acceptable to the FAA within 30 days ofthe Determination. This CAP should clearly identify how the Respondent will proceed to finalize and implement the HanaAirport OperatingRules andStandards resulting inimmediate aeronautical access forthe Complainant. Additionally, the Respondent was directed to negotiate in good faith withthe Complainant to develop temporary parachute landing area procedures to allow the Complainant to begin parachute operations at HNM during the pendency ofthe finalization ofthe Operating Rules andStandards. On September 17, 2014, the Respondent submitted the State of Hawaii's CorrectiveAction plan for FAAreview and approval. The Director'sreview ofthe proposed corrective actions is detailed below: 

### DIRECTIVE #1: The Director's Preliminary Determination directed the State to: "Submit a CorrectiveAction Plan, acceptable to the FAA, within 30days of the PreliminaryDetermination clearly identifYing how the Respondent

1Nowreferenced by the Respondent as the HanaAirportRules for Skydive andTransientAircraft Operations. 1willproceedtofinalize andimplement the HanaAirport OperatingRules andStandards resulting in immediate aeronauticalaccess for the Complainant. " [Director's Preliminary Determination, page 47] RESPONDENT'S PROPOSED CORRECTIVEACTION: "The State will commence a rule makingprocedure in accordance with Section 91-3, etseq. Hawaii RevisedStatutes for the adoption of the HanaAirportRules for Skydive and TransientAircraft Operations by immediately beginningtheprocessing for approvalwith the Office of the Governor, State of Hawaii, andwhich includes review by the State Departments of BudgetandFinance andBusiness, Economic Developmentand Tourism in working towards having public hearings scheduledonMaui, State of Hawaii, during the first week of November 2014." [State ofHawaii's Corrective Action, Page 2] DIRECTOR'S RESPONSE: The Director acknowledges thatthe fmalization and implementation ofthe HanaAirportRules for Skydive and TransientAircraft Operation! is subject to a State-level regulatory process in accordance withthe Hawaii Revised Statutes. Accordingly, the Directoris amenable to the Respondent's proposed corrective actions described above, including the proposed timeline for conducting public hearings inNovember 2014. However, absent from the Respondent's proposal isa timeline or schedule identifying anylegislative, administrative, and/or procedural steps thatmay be necessary for fmalizing and implementing the HanaAirport Rules after the publichearings have occurred. As such, it is unclear to the Directorthe timeframe for which aeronautical access for parachuting operations at the airport will be granted. In consideration ofthe foregoing, and inthe interest oftransparency, the Director conditionally approves the aforementioned proposed corrective action contingent upon the Stateproviding a detailed timeframe for whichthe Respondent expects to finalize theHanaAirportRules. Accordingly, the Directorhereby directs the Respondent to submit a comprehensive schedule of events, inclusive ofthe requisite legislative, administrative, and/orprocedural steps that may be required byHawaii state laworother mandate identifying the approval process andthe projected timeframe for approval and aeronautical access. Therequisite documentation must be forwarded to the Director no later than 15 days from the date ofthis correspondence. DIRECTIVE #2: The Director's Preliminary Determination also directed: "Additionally, shouldthe Complainant seekto beginparachute operations atHNM priorto the finalization andimplementation of the OperatingRules andStandards, the State is directed to negotiate in good faith to develop temporaryprocedures satisfactory to both the

2 Previously referenced inthe proceedings ofthis case as theHanaAirport Operating Rules andStandards. 2Respondent andthe Complainant to allow such operations. " [Director's Preliminary Determination, page 47] RESPONDENT'S PROPOSED CORRECTIVE ACTION: "In the interimpending theformal adoption of the saidHanaAirport Rules, the Stateproposes to enter into a Letter of Agreement ("LOA") in which the Complainant agrees to abide with theproposedHanaAirport Rules thatwere developed in coordination with Complainant'sprior attorney andhelicopter operators at the HanaAirportbut further action waspendingdue to DRAFT AC 150/5300-13 CHG 19 toAC 150/5300- 13 Section 214 Guidance for Parachute LandingArea. The Letter of Agreementwill require maintainingmembership in the U.S. Parachute Association (USP A) andhaving Complainant obtain a waiver from the USP Afor the use of the available designatedParachute LandingArea (PLA) as this area does notmeetthe USP A Basic SafetyRequirements (BSR) as stated in BSR Section 2-1, paragraph 

### I, 1. The Complainant will also be requiredto addthe State as an additionally insuredunder the USP A member skydivingliability insurance and include the State in all liability waivers signedbyparticipants in the skydivingactivity. The State will confirm with F AAIHNLADO for approval of the designated area within HanaAirport. Skydiving operations atHanaAirportcan commence upon receipt of the signedLOA andnotification that the said USP A waiver is grantedalongwithproviding the certificate of insurance naming the State as an additionally insured" [State ofHawaii's Corrective Action, Page 2] DIR.ECTOR'S RESPONSE: The Director's corrective action requirement, identified above, compels the State to negotiate in good faith to develop and implementtemporary skydiving procedures in order to give the Complainant immediate aeronautical access to the Ha..11a Airportwhile the State contemplates final implementation ofthe HanaAirportRules. The Director's prescriptive corrective action is in direct response to the State's protractedrulemaking process, and the State's more than 7 year delay in granting the Complainant aeronautical accessto HNM in contravention ofGrant Assurance 22 and Grant Assurance 23. Upon review, the Director concludes that the State's proposed corrective actions, identified above, were 

### wtdeveloped in good

### fai..th With the Comp!alnant, nor-,yere they developed in accordance withthe

**~igations** under the federal grant assurances. Specifically, the Director notes with concern, (1) the State's proposedrequirement that the Complainant maintain membership inthe United States Parachute Association as a condition of aeronautical access to HNM, (2) the State's proposedrequirement that the Complainant obtain a waiver from the USP A for use oftheproposed drop zone at HNM,( 3) the State's requirement that the State be named as an additionally insured under a USPA member skydiving liability 3insurance policy, and ( 4) the State's request that the F AA/HNL ADO approve the designated parachute drop zone (PDZ) within HanaAirport. The Director's analysis ofthese components of the proposed corrective actions is explained in pertinent detail below. 

### 1. Requirement that the Complainant maintains membership in the United States ParachuteAssociation as a condition ofaeronautical access to HNM. As detailed inthe Director's Preliminary Determination, Grant Assurance 22 requires an airport sponsor to operate the airport for the use and benefit ofthe public and to make it available to all types, ki..'1ds, a.'1d classes ofaeronautical activity onfair and reasonable terms, and without unjust discrimination. FAA Order 5190.6B clearly defmesparachute activities as an aeronautical activity.3 As such, an airport sponsormaynot condition aeronautical access to a federally-obligated airport on the aeronautical user's voluntary membership (or lack thereof) in an advocacy group such as the United States ParachuteAssociation (USPA). While a sponsor has the proprietary right to develop airport 

### rules orminimum standards pertaining to the conduct ofparachute operations onto its airport, suchrules or standards, temporary orotherwise, must-be developed in a notunjustly discriminatory manner and must be in compliance with the sponsors federal grant obligations. TheDirectorconcludes that the State'sproposed mandatoryrequirement that theComplainant obtain/maintainmembership in the USPA in order to gain aeronautical access to a federally-obligated airport to be contrary to Grru1t Assurance 22, Economic Discrimination. The Director also believes that it is pertinentto point out that the FAA, not the USPA, promulgates regulations, rules, orders, circulars, and other officialpublications pertaining to airport, aircraft, and airspace operations underthe statutory authority granted to it under 49 United States Code (USC) 

### § 106. Specifically, 14 Code ofFederal Regulation (CFR) Part 91, General OperatingandFlightRules, 14 CFRPart 119, Certification: Air Carriers and Commercial Operators, <md 14 CFR 105, Parachute Operations provide theregulatory framework for which parachute operations within the national airspace system must be conducted, including onto airports. Additionally, FAA Advisory Circular 

### 1 05-2E, Sport Parachutingprovides suggestions to improve sportparachuting safety and disseminates information to assist all pa,"ti.es associated with on-airportparachuting operations. W'nile the FAA, to date, has not issuedparachute drop zone siting or dimensional standards to be used by federally-obligated airports, the absence ofany such standards does not give an airport sponsorthe ability to require the Complainantto adhere to USPA Basic SafetyRequirements (BSR) in order to gain access to the Airport. The USPA's BSR's are consideredbest practices for skydiving operators andparticipants; however, the BSRs are notFAAsanctioned safety standards andtherefore cannotbe required as condition ofaccess to the 

### aiJt>gl:t

**Th~** Direeter alse 

### eeHelttdes 

### that the State'sproposed correcnve acbons were not developed in good faith withthe Complainant, as was directed. Accordingly, theproposed corrective action described andevaluated above is not approved bythe Director due to the inherent unjustly discriminatory nature ofthe State's requirements.

3 FAA Order5190.6B, Appendix Z at 314 42. Requirement that the Complainant obtain a waiverfrom the USPA for use ofthe proposed drop zone at HNM. Inthe analysis ofissue#I above, the Directorfound that requiring the Complainantto maintainmembership 

### inthe USP A in orderto gain aeronautical access to the HanaAirport to be unjustly discriminatory and therefore notin compliance withthe State's federal grant assurances. Accordingly, the State's requirement thatthe Complainant obtain a waiver from the USP A for the use oftheproposed drop zone at HNM is considered a mootpoint and therefore not an approved corrective actionin accordance with the federal grant assurances and the prescriptiverequirements ofthe IY.rector's Preliminary Determination. 

### 3. Requirement that the State be named as an additionally insured undera USP A member skydiviog liability iosurance policy. Inthe analysis ofissue #

### 1 above, the Directorfound thatrequiring the Complainantto maintainmembership in the USPA in orderto gain aeronautical access to the HanaAirport to be unjustly discriminatory andtherefore notincompliancewifufue State's federal grant assurances. Accordingly, the State's requirementthatthe Complainant name the State as an additionallyinsured under a USPA member skydivingliability insurancepolicy is considered to be a mootpoint and therefore is not an approved corrective action in accordance with the federal grant assuran.ces and the prescriptive requirements ofthe Director's Preliminary Determination. However, the Director affirms thatthe State, as the proprietor ofthe HanaAirport, may exercise its proprietary right to require general liability insurance on aeronautical tenants of the airport, as well as the proprietary right to be named as an additionally insured on such insurancepolicies. The Director cautions that minimum insurance requirements mustnotbe unjustly discriminatory and the amounts ofcoverage shouldbereasonably consistent with other similarly situated airporttenants. TheDirector also affirms thatthe Statemay exercise its proprietary rightto require the Complainantto include the State in any or all liability waivers signedby skydivingparticipants.4 

### 4. The Statewill confirmwith FAAIHNL ADO the approval ofthe designated area within Hana Airport. The FAAdoes notformally approve or disapprove ofproposed PDZ siting or dimensional standards at airports. As discussed in detail in the Director's Preliminary Determination, four (4) safetyrisk evaluations were conducted by the FAA Fli t Standards and/or the FAA ·

r IC rganiZation onthe proposed skydiving operations into HanaAirport. 

### In each instance, the FAAconcludedthat the Complainant's proposed skydivingoperation at Hana Airport can be conducted safely withproper coordination, communication, and airport operational procedures in place. Accordingly, it is the airport sponsor's responsibility to designate the PDZ and to develop airport rules andregulations governingthe safe and

4 The Director encourages the parties to leveragethe existing tenant/sponsorrelationship established through the Complainant's existing commercial skydiving operations at Upolu and Dillingham airports to develop a tenable commercial skydiving lease/use agreement at Hana Airport. 5

### efficientintegration ofthe PDZ into the overall airport operation in a manner thatis reasonable and not unjustly discriminatory to the parachute operator. CONCLUSION: 

### 1. The Director conditionally approves ofthe State's corrective actions identified in 

### Directive#1 above. 

### In the interest oftransparency, the Director's conditional approval is contingent uponthe Stateproviding (1) a detailed timeframe for which the Respondent expects to finalize the HanaAirportRules 

### and (2) a comprehensive schedule ofevents, inclusive oftherequisite legislative, administrative and/or procedural steps that may be required by Hawaii state law orother mandate identifYing the totality ofthe approval process for which the HanaAirport Rules 

### will be subjected, and the projected timeframe for approval and aeronautical access. The requisite documentation mustbe forwarded to the Directorno later than 15 days from the date ofthis correspondence. 

### 2. The Director does not approve the State's proposed corrective actions 

### in Directive #2 above. 

### The Director's Preliminary Determination specifically directed the State to negotiate in good faith to develop temporary skydivingprocedures satisfactory to both the Respondent and the Complainantto allowcommercial skydiving operations to take place at HNMduring the pendency ofthe State's bureaucraticrulemaking process. Instead, the State acted to develop proposed temporaryprocedures that are not consistent with the State's federal grant obligations and the Director's Preliminary Determination. More specifically, the Director does not concur with:



### a. The State'sproposed requirement that the Complainant maintain membership in the United States Parachute Association as a condition ofaeronautical access to HNM; b. The State's proposed requirement that the Complainant obtain a waiver from the USPA for use oftheproposed drop zone at HNM, and;
c. The State'srequirement thatthe State be named as an additionally insured under a USPA member skydiving liability insurance policy. The Director concludes that the State's proposedrequirement that the Com lainant ers p m e m o er to gain aeronautical access to a federallyobligated airport to be contrary to Grant Assurance 22, Economic Discrimination, 

### as more fully described above. Consequently, the Director once againdirects the State to ne 

### o · ood faith, with the Complainant's active participation, to develop temporaryparachutingproce ure o owthe Complainant immediate aeronautical access to the Hana Airport. Suchtemporaryprocedures must be incompliance Wit eState'sfederal grant obligatiOns, including the requirement 

### 6thai the State operate the airport for theuse and benefit ofthe public andto make it available to all

**t~,** and classes ofaeronautical activity on

## f'!ir

**~d re<(~~ble**  **~s,** and withoht'unjust discrimination 

### iuaccordance with Grant Assurance 22.

**~** Please note, it will not benecessary to obtain the Director's direct approval ofthe temporary procedures priorto the start ofthe Complainant's commercial skydiving operation since the Director expects the procedures tobedeveloped to the satisfaction_<JfbQth the..S1:11eJIJ1<:! the

**Co~** and 

### iu compliance with the sponsor's federal obligations.

.. TheDirectorcautions the Statethatprotracted correspondence ornegotiations withthe Complainantin developing thetemporaryprocedures can be construed as additio®l unreasonable delay and could result 

### iuthe Directorinitiating actionto withholdthe processmg ofthe State otHawan's applications for AirportImprovementProgram discretionary grants lli'"lder 49 U.S.C. 

### §47115 and general aviation airport grants under49 U.S.C. 

### § 47114(d). Sincerely,

Randall S. Fiertz Director, Office ofAirport Compliance and ManagementAnalysis

7NEIL ABERCROMBIE

**GOV~NCfl** STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL

Randall S. Fiertz lAND TRANSPORTATION DIVISION ROOM 300, KEKUANAO'A BUILDING 465 SOUTH KING STREET HONOLULU, HAWAII 96813 (808) 587·2992 November 26,2014

Director, Office ofAirport Compliance And Management Analysis U.S. Department ofTransportation Federal Aviation Administration\ 800 Independence Ave. SW Washington, DC 20591 DAVID M. LOUIE ATTORNEY GENERAL
RUSSELL A. SUZUKI FIRST DEPUTY ATTORNEY GENERAL

Re: Franks Hinshaw, Skydiving School, Inc. d/b/a Skydive Hawaii and Island Skydiving, LLC v. The State ofHawaii (Docket No. 16-12-04) Dear Mr. Fiertz This will respond to your letter dated November 13, 2014, regarding the abovereferenced matter. A coordination meeting with Mr. Hinshaw took place onNovember 13, 2014. The purpose ofthis meeting was to negotiate in good faith towards developing temporary procedures for use until such time as the Administrative Rules process is completed. Mr. Hinshaw objected to most ofthe provisions in our proposed rules which consisted ofmatters previously negotiated and agreed to with his prior attorney but he did agree to addthe State to the waivers signedby thejumpers and to comply with applicable federal regulations. Mr. Hinshaw indicated having hopes to beginjump operations by the end ofDecember. We expect to meet Mr. Hinshaw's schedule barring any unforeseen circumstances. Prior to the foregoing, a meeting was scheduled with operators at Hana Airport on October 22,2014, to d1scuss the commencement ofskydive opetations. Skydive Hawaii was invited but we were advised that its representative was unable to attend due to weather related reasons. The purpose ofthis meeting was to discuss and address concerns on the size and location ofthe Parachute Landing Area, airfield projects, and the integration ofskydiving into existing operations on and in the vicinity ofthe Hana Airport. Beyond the foregoing, we provide the following schedule which is part ofthe State of Hawaii's procedural requirements for adoption ofAdministrative Rules: 

### 1. Proposed draft ofrules is essentially completed;Randall S. Fiertz November 26, 2014 Page2 2. Consult with affected small businesses, prepare Small Business Impact Statement and submit to Small Business Regulatory Review Board with estimated completion byJanuary 15, 2015; 3. Review comments/recommendations ofReview Board and submitproposed rules to State Department ofAttorney General for approval as to form during second week ofFebruary 2015; 4. Upon receipt ofapproval as to form from the State Department ofAttorney General, submit memo to Governor, State Department ofBudget and Finance, and State Department ofBusiness, Economic Development, Tourism from the State Director ofTransportation for approval to proceed with the public hearings by March of2015; 5. Upon approval from Governor, publish Notice in newspapers statewide at least 30 days prior to hearings and also post to DOTA web site. Schedule public hearings to be completed by May of2015; 6. Review oral/written comments and revise proposed rules as necessarybyJune of2015; and 7. Draft final rules for formal adoption by July of2015 Please feel free to contact me should there be any questions or comments. Very truly yours,

.. ,.,_ t I /!('

.. ··' ; . 

## ·(· v I ,Ji '/)"\;"--- ' 

### ·.::::tz.,.,:_...... l"

. ---._ ' Glenn 

### I. Kimura Deputy Attorney GeneralRandall Fiertz Richard

## J. Durden Attorney at Law 27987 Richmond HillRoad Conifer, Colorado 80433 616/901-6516 avlawyer@yahoo.com December 1, 2014
Director, Office of Airport Compliance 55 M Street, NW, Suite 800 Washington, D.C. 20591 Via E-mail and Regular Mail Re: Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC v. State of Hawaii FAA Docket 16-12-04 Mr. Fiertz: On November 13, 2014, you sent a letter to counsel for the State of Hawaii clearly stating that the State of Hawaii had failed to negotiate in good faith with Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC in order to allow it to open a commercial skydiving facility on the Hana Airport. On page 6 of your letter, you directed the State to allow Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC immediate access to the Hana Airport. This is to advise you that the State has taken no action to negotiate an agreement, and still has not approved Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC access to Hana Airport. There was one general safety meeting regarding skydiving procedures at Hana Airport which was open to <'Ill yo11e vvllo vvisl1ed to atte11d but tile Slate still l1as 110L take11 actioII to g1 a11t Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC access to the Airport. Your November 13 letter warned the State about continuing delay in granting Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC access-it has already delayed for seven years. You advised that if it continued to delay, you could initiate action to withhold processing of the State of Hawaii'sapplications for Airport Improvement Program discretionary grants. Due to the continued refusal of the State to act in accordance with its obligations under the grant assurances, this is to formally request that you immediately act to withhold processing of the State of Hawaii's applications for AlP discretionary grants for all of its airports until Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC is operating a commercial skydiving facility on Hana Airport under terms that are mutually agreeable to Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC and the State. Very truly yours,

Richard 

### J. Durden

cc via electronic mail: Kevin Willis Glenn I. Kimura Frank Hinshaw

### Randall Fiertz Richard

## J. Durden Attorney at Law 27987 Richmond 

### HillRoad Conifer, Colorado 80433 616/901-6516 avlawyer@yahoo.com 

### December 2, 2014
Director, Office of Airport Compliance 55 M Street, NW, Suite 800 Washington, D.C. 20591 Via E-mail and Regular Mail Re: Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC v. State of Hawaii FAA Docket 16-12-04 Dear Mr. Fiertz: Yesterday, after I had sent you an email reporting that the State of Hawaii had failed to comply with your directive to allow Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC 

### v. State of Hawaii immediate access to the Hana, Hawaii Airport for commercial skydiving operations I received a copy of letter mailed to you by Glenn I. Kimura, counsel for the State of Hawaii erroneously reporting that Frank Hinshaw had met with the State on November 13 regarding temporary procedures for skydiving. Mr. Kimura's letter made the further false statement that Mr. Hinshaw told the State that he hoped to begin jump operations by the end of December. With this email and letter I reiterate that Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving. LLC 

### v. State of Hawaii is ready to start commercial skydiving operations immediately at Hana. Not next week, not at the end of the month-immediately. Mr. Hinshaw has been ready to startjump operations ever since you ordered the State to allow him to do so. Mr. Hinshaw's operation will fully comply with 14 CFR Part 105. All that is required is for the Hana Airport manager to give approval under 14 CFR Part 105.23(b). It 

### still has not been given despite your directive.

### All the State has done, as I pointed out yesterday, is hold a general safety meeting on November 25 with a number of operators at the Hana Airport (Mr. Hinshaw attended) regarding skydiving. It has never negotiated directly with Mr. Hinshaw nor has it even identified its negotiator. Because of the State's continued foot-dragging on this matter, which you warned it not to do, this is also to reiterate the demand of Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC 

### v. State of Hawaii that you immediately act to withhold processing of the State of Hawaii's applications for 

### AIP discretionary grants for all of its airports until Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC 

### is operating a commercial skydiving facility on Hana Airport under terms that are mutually agreeable to Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC 

### and the State. Very truly yours,

Richard 

### J. Durden
cc via electronic mail: Kevin Willis Glenn I. 

### Kimura Frank HinshawFrom: "Gienn.I.Kimura@hawaii.gov" <Gieiml.Rimura@hawaii.gov> To: "randall.fiertz@faa.gov" <randall.fiertz@faa.gov> Cc: Rick Durden <avlawyer@yahoo.com>; Frank Hinshaw <frankhinshaw@yahoo.com>; Kevin Willis <kevin.willis@faa.gov> Sent: Friday, December 5, 2014 5:05 PM Subject: Re:: Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC v. State of Hawaii FAA Docket 16-12-04 Dear Mr. Fiertz: Please allow me to respond to Mr. Durden by clarifying a date and event referred in my earlier correspondence. That meeting held on November 25, 2014, was a direct, good faith negotiation with Mr. Hinshaw devoted entirely to the safety measures proposed until such time as the applicable Administrative Rules are formally adopted. Blue Hawaiian and Mokulele Airlines operate frequently at Hana Airport and their presence was to add informed perspective of the circumstances and did not in anyway or form detract from the good faith negotiation with Mr. Hinshaw. Separate but maybe related, Mr. Hinshaw should have received by now an application for space at Hana Airport for a tie-down or any other intended purposes. He has yet to submit this application to the Maui Airport District office. Thank you for your attention in this matter. Glenn I. Kimura Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended reclpient(s) and maycontain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.4/30/2015 Print Subject: Day 140 of the State of Hawaii's Defiance of the FAA From: Rjck Durden (av!a,Nyer@yahoo.com) To: glenn.i.kimura@hawaii.gov; randall.fiertz@faa.gov; kevin.willls@faa.gov; Cc: frankhinshaw@yahoo.com; Bee: randyo@uspa.org; Date: Monday, January 5, 2015 2:33PM 

### Glenn, We are now in day 

### 140 ofthe State of Hawaii's defiance ofthe FAA's Order to 

### immediately provide Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC 

### access to the Hana Airport for the purpose of operating a commercial skydiving school. Today I received the latest notice of delay from you, indicating that my clients' application for space to lease on the Airport to construct a hangar requires "a response from the Department." I have been advised that the hangar space application has been tied to approval to conduct commercial skydiving on the airport. This is notice that my clients, F;ank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC, are withdrawing the application for space to lease for hangar construction on the Hana Airport. You have no more excuses for refusing to comply with the FAA's Order-and it's even past the end of December, the date you informed Randall Fiertz ofthe FAA on December 

### 1 that my client would be in operation. Please send confirmation that my clients are 

### immediately approved to begin commercial skydiving operations at Hana Airport. Thank you, Rick Richard 

### J. Durden Attorney at Law 27987 Richmond Hill Road Conifer, Colorado 

### 80433 616/901-65164130/2015 Print Subject: Day 141 of Hawaii's Defiance of the FAA From: Rick Durden (avlawyer@yahoo.com) To: randall.fiertz@faa.gov; Cc: kevin.willis@faa.gov; glenn.i.kimura@hawaii.gov; frankhinshaw@yahoo.com; Bee: randyo@uspa.org; Date: Tuesday, January 6, 2015 2:26 PM



### Mr. Fiertz, On August 

### 18, 2014, the Director of the FAA's Office ofAirport Compliance and Management Analysis issued its Director's Preliminary Determination requiring the State of Hawaii to give Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC access to the Hana, Hawaii Airport for commercial skydiving immediately and (because the time for appeal has long passed) finding the State of Hawaii in violation of Grant Assurances 

### 22 and 

### 23. The State of Hawaii took no action to comply. On November 

### 13, 2014, you followed up with a letter to the Glenn 

### I. Kimura, Deputy Attorney General ofthe State of Hawaii again directing the State to provide my clients immediate skydiving access to the Hana, Airport. Again, the State of Hawaii refused to comply. In your November 13th 

### letter you stated that, "protracted correspondence or negotiations with the Complainant (my client) in developing the temporary procedures can be construed as additional unreasonable delay and could result in the Director initiating action to withhold the processing the State of Hawaii's applications for Airport Improvement Program discretionary t " 

### gran s... It is now Day 

### 141 ofthe State of Hawaii's Defiance ofthe FAA's Directive to comply with the Grant Assurances it signed. The State's absence of action is clear indication that it has no intention of complying with the FAA's directives. It is therefore time for your office to take steps to cut off the State's access to AlP grants It has shown that it's willing to take the money, h11t not live i 

### 'P to the agreements it signed as conditions for the millions of dollars it has received. It has shown that for seven years it can, with impunity, thumb its nose at a small businessman simply trying to open a business on one of its airports because it does not like skydiving while putting no obstacles in the way of new helicopter businesses on that same airport. This is, first, to ask you to immediately initiate proceedings to stop processing Hawaii's AlP grant applications. Second, this is to ask that you now involve the FAA's Criminal Division in this matter for investigation into prosecution ofAssistant Attorney General Glenn 

### I. Kimura for violation of 

### 18 U.S. Code section 

### 1001 for the statements he made in his November 

### 26, 2014 letter to you. It4/30/2015 Print 

### appears he was aware that the State of Hawaii had no intention of complying with the FAA's directive to allow Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC skydiving access by December 31, 2014, yet he said that the State would do so. It is time for the FAA to let this airport sponsor know that when the FAA issues a Directive, it's serious about it. Thank you,
Richard 

### J. Durden Attorney at Law 27987 Richmond Hill Road Conifer, Colorado 80433 616/901-65164/30/2015 Print Subject: Day 142 of Hawaii's Defiance of the FAA From: FUck Durden {avlawyer@yahoo.com) To: randall.fiertz@faa.gov; Cc: kevin.willis@faa.gov; glenn.i.kimura@hawaii.gov; frankhinshaw@yahoo.com; Bee: randyo@uspa.org; Date: Wednesday, January 7, 201512:41 PM



### Mr. Fiertz, It is now the 142nd day since the Director ofthe FAA's Office ofAirport Compliance and Management Analysis issued its Director's Preliminary Determination requiring the State of Hawaii to give Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC access to the Hana, Hawaii Airport for commercial skydiving immediately and (because the time for appeal has long passed) finding the State of Hawaii in violation of Grant Assurances 22 and 23. The State of Hawaii has still not complied. Despite being in violation of its Grant Assurances, it is still getting AlP grants. Further evidence of the State of Hawaii's antipathy toward general aviation operators emerged yesterday in an article in the Hawaii Reporter concerning $35,000,000 in federal funding to the Kalaeloa Airport, Hawaii and the State's actions to keep general aviation operators off ofthe airport-which was to be the reliever airport for Honolulu InternationaL The article refers to "an unreasonable and often times hostile staff at DOT-A." The article is at:http://www.hawaiireporter.com/state-refuses-support-to-private-general-aviation-atkalaeloa/123 In addition, two days ago my client flew into Hana Airport. In the course of approaching, landing, some time on the ramp and then departing-about 20 minutes-there was not an aircraft movement on the airport or in the surrounding airspace. The State of Hawaii has no rational reason for its continuing refusal to allow commercial skydiving on the Airport. My client won the Part 16 Complaint-yet because the State of Hawaii has refused to act in anything approaching good faith and comply with FAA Directives he has effectively lost; 

### and the ostensible looser, the State of Hawaii, won because it continues to rake in millions ofAlP money in reward for its defiance of the FAA. That is simply not right. It is time for the FAA to act decisively to correct this wrong. Thank you, Richard 

### J. Durden Attorney at Law4/30/2015 Print Subject: Day 143 of Hawaii's Defiance of the FAA From: Rick Durden (avlawyer@yahoo.com) To: randall.fiertz@faa.gov; Cc: kevin.willis@faa.gov; glenn.i.kimura@hawaii.gov; frankhinshaw@yahoo.com; Bee: randyo@uspa.org; Date: Thursday, January&, 20151:37 PM



### Mr. Fiertz, It is now the 143rd day since the Director ofthe FAA's Office ofAirport Compliance and Management Analysis issued its Director's Preliminary Determination requiring the State of Hawaii to give Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC immediate access to the Hana, Hawaii Airport for commercial skydiving and (because the time for appeal has long passed) finding the State of Hawaii in violation of Grant Assurances 22 and 23. Because the State of Hawaii refused to comply, you sent a letter to the State on November 13, 2014. On page two, you referred to the State's more than seven-year delay in granting my client aeronautical access to Hana Airport in contravention of Grant Assurances 22 and 23. You pointed out that the State has not acted in good faith since the Determination. You then directed that the State "negotiate in good faith, with the Complainant's active participation, to develop temporary parachuting procedures to allow the Complainant's immediate 

### (emphasis added) access to the Hana Airport." As has been pointed out repeatedly, the State has taken no action to allow access for my client. It continues to defy the FAA-now it is not even responding to emails from my client asking for access. On page seven ofyour November 13th letter you cautioned the State of Hawaii against "additional unreasonable delay." You found the State's delay of seven years to be unreasonable in the first place. Does the State get another seven years to comply? The days are ticking by as the State of Hawaii rakes in AlP funds and ignores its obligations under them -without consequences. What must my client doto get the State to comply with FAA directives? He wins a Part 16 Complaint against the State but has to continue to expend funds in what may be a vain hope that the FAA will take action to enforce the victory. This wrong needs to be corrected without further delay. Thank you, Richard 

### J. Durden Attorney at Law 27987 Richmond Hill Road4/30/2015 Print Subject: Day 144 of Hawaii's Defiance of the FAA From: Rick Durden (avlawyer@yahoo.ccm) To: randall.fiertz@faa.gov; Cc: glenn.i.kimura@hawaii.gov; kevin.willis@faa.gov; frankhinshaw@yahoo.com; Bee: randyo@uspa.org; Date: Friday, January 9, 2015 1:15 PM



### Mr. Fiertz, Another week has passed with the State of Hawaii taking absolutely no action to comply with the Director ofthe FAA's Office of Airport Compliance and Management Analysis's Director's Preliminary Determination requiring the State of Hawaii to give Frank Hinshaw, Skydiving School, Inc. d/b/a/Skydive Hawaii and Island Skydiving, LLC immediate access to the Hana, Hawaii Airport for commercial skydiving and (because the time for appeal has long passed) finding the State of Hawaii in violation of Grant Assurances 22 and 23. It is now Day 144 since the Determination was issued. The FAA ordered the State of Hawaii to enter into negotiations to establish mutually agreeable rules for commercial skydiving onto Hana Airport. In 144 days, the State hasn't complied. The FAA ordered the State of Hawaii to allow my client immediate commercial skydiving access at HanaAirport In the past 144 days, the State not onlyhasn't complied, its representative has lied directly to you, saying that access would be approved last month. For 144 days my client has been ready to start skydiving operations at Hana. It is ready immediately. If approval is granted by noon, it can be operating that day. The State of Hawaii is still receiving AlP funds despite being in violation oftwo Grant Assurances. Why are our tax dollars still going to an airport sponsor that is incapable of living up to the agreements it signed in order to obtain them? The FAA is on a tight budget, but it's willing to give squander millions on an airport sponsor that isn't entitled to a single cent. Why "th•h

. ? IS 

### a, appenmg. The State obviously has no intent to comply. There is no incentive for it to do so. The FAA needs to provide one. Now. Thank you, Richard 

### J. Durden Attorney at Law 27987 Richmond Hill Road Conifer, Colorado 80433 616/901"6516413012015 Print Subject: Skydiving Access Hana Airport From:- Rid< Durden (avlawyer@yahoo_com} To: glenn.i.kimura@hawaii.gov; Ce: kevin.willis@faa.gov; randall.fiertz@faa.gov; frankhinshaw@yahoo.com; Bee: randyo@uspa.org; Date: Thursday, March 19, 2015 9:22AM 

### Glenn, A few weeks ago, you received my client's agreement to the CTAF communications procedure the State wants for operations at Hana. Apparently, that was the only hang up to you issuing approval for my client to begin skydiving operations. I haven't heard anything from you since then. As there are no longer any impediments to beginning operations, when can my client start? Thankyou, Rick Richard J. Durden Attorney at Law 27987 Richmond Hill Road Conifer, Colorado 80433 

### 616/901-65161.RentalofBuild,ngsOtherthanPassengerTerminalsX':!::'-''-wa..BuildingNo.&Name91A,IFighterTown918,SkyMed,Inc.91C,SkydiveAcademy201,pliderPlaneBooths(RrtJ101and103)TypeofSQaceHangarOfficeOffice/Retail·RetailRatePerSquareFootPerAnnum$5.406.6012.006.6009/12/2005 12:20 9016447934 ><ENRy' GJUNTv AIRPORT PASE 02

U.S. Deportment ¢f Transportation Fedo>ral Aviation Admlnis!rallon 01fieo o'Airport Safety t'\nd Standards 600 lndep$ndence Ave., S.W. WO$hington, D.C. 20591

APR 20 2006
Don Davenport Ai1port Manager HenryCountyAirport 1949 Diggs Rd. Paris, Tennessee 38242 RE: CorrectiveAction Piau for Henry County submitted January 2006 Dear Mr. Davenport: Thankyou for your timely submissionofHenry County's draft Corrective Action l'lan (Plan) as Ordered in the Director'sDetermination for Skydive Paris, Inc. v. Henry County. Tennessee, FAA DocketNo. 16-05·06. The Memphis Airports District Office forwarded me your Plan for review. We conducted our review ofyour subn1i:ssion in consultation with**F~~"'~s** Flight Standards Service, the FAAline ofbusinessresponsible for flight safety. In additionto the proposed actions discussedin your transmittal letter, we also reviewed the Airport's Skydive Operations andMinimum Standards regarding skydiving operators at theHenry CountyAirport as an integral part ofthe Corrective Action Plan. Upon**revle\v~** wehave determined that several ofHemyCounty's proposed actions a."l.d minimum standards continueto unreasonably restrict skydiving operations on the Airport. Additionally-, many cftheAirport's requirements appear to-.-be un-justly discriminato!).r. Accordingly, your Corrective Action Plan does not meet the requirements ofthe Order. To assist you in revising your Corrective Action Plan for resubmission, we haveprovided some comments to your requirements and proposed aci!ons. Piease consider these comments wben revising yourPlan. Henry County shall submit a revised plan to the Memphis Ai!ports District Office byMay 15, 2006.8'3/12/2806 12:20 9015447'334

Should you have any questions, please contact Keri Lyn Spem:er ofourAiipott Compliance Office at (202) 267-89f. Sincerely,

David L. Bennett Director ofAirport Safety and Standards Attachment

cc: 

### Lee M. GreerIII89/12/2006 12;20 9015447934

FAA Comments to Draft Con·ective Action Plan Submitted January !5,2006

Henry Coumy, Tennessee **P~SE** 04

1. Proposed Action/Requirement: Henry County requests that activities be scheduled for "reasonable time periods". FAA Response: While FAA Order 5190.6A, Airport Compliance Requirements, provides that an airport owner may designate reasonable ttme-periods for skydiving operations on the airport, Henry County cannot use this limitation on the basis ofsafety. As stated in the Director's Determination, FAA's Flight Standards Sen-ice has determined that the airport can safely accommodate skydiving activities during normal airport operations. Caution should be used when attempting to develop any time ofa 'schedule' for these operations as a restrictive schedule mayprove to be unjustly discriminatory and a violation ofFederal obligations.
2. Proposed Action/Requirement: Henry County Airport 

### will require businesses wishing to conduct skydiving activities on the Airport to maintaio minimum insurance requirements, as outlined in Index 1ofthe Minimum Standards, which are the same amounts and types required ofall businesses operating on the Airport. PAA

**Re~p~n:!!J~:** Not aU businesses operating on ii.it airport are similarly situated and do nvt aU require the same types and amounts ofinsurance. Henry County may want to review these requirements to ensure that they are reasonable and notunjustly discriminatory and commensurate with the activitybeing addressed.
3. Proposed

**Action/R~qidrement: l-!~nry**  County Airport requires each skydiver to belong tD the United States Parachuting Association (USPA). FAA ResponsP: Neither FAA nor airport management can require membership in an organization as a condition for conducting an aeronautical activity. This requirement has no basis in safety, and cannot be considered reasonable. 4, Proposed Action/Requirement: Henry County Airportproposes requiring employees of any skydiving operation to meet certain designation, duty description, and affiliation criteria. This includesrequiring a USPA·appointed Safety and Training Advisorthat has associated responsibilities assigned by the airport manager. applicable Federal regulations, it is mappropriate for the airport manager to assign personnel to conduct oversight and safety evaluations. This responsibilityrests with the FAA. Ifthe operation does not meet FAA safety standards, the FAA will take appropriate action. It is also noted that no similar restriction is being proposed for other aeronautical operatwns. 

# I

1:09/12/2006 12:20 9016447934 HENRV COUNT'! AIRPO"T Pt4GE 05

5. Proposed Actioo/Requiremeut: Henry County Airport proposesrequiring radio reports be given in specific verbiage. FAA Response: No radio reports are required by any other operations at the airpcrt. The FAA leaves the decision regarding the use ofradios in similar circumstances to the aircraft operator operating underthe applicable regulation (i.e. Title 14 ofthe Code ofFederal Regulations Part 105. section 13). It is inappropriate for the airport to impose such a condition, and thus it shouldbe removed.
6. Proposed**A~tioo!Requlremeot:** Henry County Airpcrt requires compliance with the Aeronautical Infotnlation Manual and the USPA Skydiver Information Manual. FAA Response: Both ofthese materials are advisory in nature and do not require compliance, as the Federal regulations do.
7. Proposed Action/Requirement: Henry County Airpon seeks to prohibit skydiving exits overthe airport iftl1ere is an aircraft in the pattern. FAA Response: The FAA does not prohibn this maneuver, as it basnot found such operations to pose a safety concern. This is especially true given that most exits and parachute openings occurwell above any pattern altitude (

### + 2,000 feet above ground level).
8. Proposed Actiou!Requlremeut: Henry CountyAirport proposes that any first timejump pilot receive a briefing from the airport management staffbefore performing operations. FAA Response: FAA does not see the necessity in requiring such apilotbriefingconsidering other operators do not have asimilar requirement. FAA could agree to such a briefing if

### it were o!Iered to the first timejumppilotson a voluntary basis.

9. Proposed Action/Requirement: Henry County Airport wishes to require Notices to Airmen and radio contact with Air Traffic Control as operating conditions for skydivers. 1 i I 

## I' II 

## i

FAA Response: Skydiving requirements are listed in Tide 14 ofthe Code ofFederal Regulahons Part 105, and it is inappropriate for airport management to impose conditions 

# II

# ~~;~~~

# t==**r~~~=:~~~~ ~g** **~~~/he** standards inpart I05 have been deemed appropriate for :