BEFORE THE UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

 

THE FLIGHT SHOP, INC. D/B/A 

PROFESSIONAL AIR, and 

AERO FACILITIES, LLC 

 

Complainants, 

 

v. Docket No. 16-14-12 

 

CITY OF BEND 

Respondent. 

REBUTTAL OF THE CITY OF BEND 

Pursuant to 14 C.F.R. § 16.23(f) and FAA’s March 27, 2015 and April 3, 2015 orders 

granting extensions of time, Respondent, the City of Bend, Oregon (“City” or “Respondent”), 

submits this Rebuttal in response to the Reply, Opposition to Motion to Dismiss, and Opposition 

to Motion for Summary Judgment (“Reply”) filed by The Flight Shop, Inc., d/b/a Professional 

Air (“Pro Air”) and Aero Facilities, LLC (“Aero Facilities”) (collectively, “Complainants”). The 

City incorporates all of the arguments made in, and exhibits submitted with, its Consolidated 

Answer, Motion to Dismiss, and Motion for Summary Judgment (“Answer”) and reiterates those 

arguments as if restated herein. To the extent Complainants raise new allegations in their Reply 

that are not expressly addressed in this Rebuttal, such allegations are hereby denied. 

INTRODUCTION

Complainants have the burden of proving their allegations and must do so by a 

preponderance of substantial and credible evidence. See 14 C.F.R. § 16.23(k)(1); BMI Salvage 
2 

Corp. v. Miami-Dade Cnty., Fla., FAA Docket No. 16-05-16, Final Decision and Order on 

Remand at 51 (Apr. 15, 2011); Aerodynamics of Reading, Inc. v. Reading Reg’l Airport Auth., 

FAA Docket No. 16-00-03, Final Decision and Order at 15-16 (July 23, 2001). Complainants 

fail to pass this basic threshold. 

In spite of the lack of evidence offered with the Complaint, the City responded to 

Complainants’ allegations with substantial and credible evidence showing that Complainants’ 

allegations are either untrue, not supported by law, or both. The evidence introduced by the City, 

on the other hand, shows that the City is aware of and committed to its Federal obligations. 

Contrary to Complainants’ claims, the City has not granted or permitted—explicitly or 

implicitly—exclusive rights for the aeronautical use of the Bend Municipal Airport (“Airport”). 

The City did not create barriers for new entities seeking to provide aeronautical services or for 

existing entities seeking to expand the aeronautical services they provide. The City has not 

discriminated against Complainants. On the contrary, the evidence shows that the City has 

worked long and patiently to accommodate them. And the City has retained all of the rights and 

powers necessary to operate and control the Airport and to continue to comply with its Grant 

Assurances. Most importantly, the Airport’s layout complies with FAA’s design criteria and is 

safe. 

Complainants, in their Reply, speculate at length on the City’s motives in its dealings 

with Pro Air, Aero Facilities, Leading Edge, and other users of the Airport. However, the 

evidence on which Complainants rely, even if taken out of context (as Complainants urge), does 

not support the claims that the City discriminated against Complainants or that it is otherwise 

improperly operating the Airport. For all of these reasons, the Complaint is wholly without merit 

and should be dismissed. 
3 

DISCUSSION 

I. THE CITY HAS COMPLIED WITH ITS FEDERAL OBLIGATIONS IN 

ITS DEALINGS WITH COMPLAINANTS AND IN MAINTAINING A 

SAFE AIRPORT LAYOUT. 

In their Reply, Complainants belatedly attempt to build support for their earlier 

arguments that the City is in violation of several Grant Assurances. The City will not attempt to 

respond to arguments that it already addressed in its Answer. However, insofar as 

Complainants’ Reply presents new or altered (and sometimes contradictory) arguments, the City 

addresses those below. 

A. Complainants’ allegations about their competitors’ opportunities at the 

Airport are both contradictory and inaccurate. 

Throughout this proceeding, Complainants have made a number of contradictory and 

unsupported claims meant to further their various theories about the City’s relationships to 

Complainants and their competitors. In sum, Complainants argue that the City ceded too much 

control of the Airport to them while simultaneously favoring their competitors. Several of these 

claims now appear in Complainants’ Reply in revised or altered form—in some instances in 

support of arguments that directly contradict the arguments made earlier in the Complaint. In 

each case, Complainant’s new and revised allegations are unfounded and, in some cases (as 

noted below), factually inaccurate. 

For instance, Complainants now argue that they “have never asserted that they should 

have sole and exclusive standing as an FBO at the Airport.” Reply ¶ 13. This is untrue. In fact, 

Pro Air’s request for sole-FBO status is well-documented in an exchange of letters in the fall of 

2012, around the time that the City was in discussions with Leading Edge regarding a lease for a 

fueling facility. Assistant City Attorney Gary Firestone wrote to Martin Hansen, counsel for 

Complainants, noting that Mr. Hansen had “mentioned that [he] would request that the City take 
4 

advantage of an exception that would allow [the Airport] to have only a single FBO based on the 

size of the airport and the inability to support two FBOs.” Answer Ex. 29 at 1. Mr. Hansen 

replied with Pro Air’s analysis of FAA’s exception to the rule against the granting of exclusive 

rights and concluded by requesting that Mr. Firestone “bring this exception to the attention of the 

City Council in their consideration of the current FBO lease request from Leading Edge 

Aviation.”1

 Rebuttal Ex. 1 at 1. 

Despite this, and despite their new assertions that they have never sought to have an 

exclusive right at the Airport, the subtext of Complainants’ pleadings throughout this Part 16 

investigation (and the informal Part 13 investigation that preceded it) reflect their apparent belief 

that they were entitled to one. Accordingly, in an effort to put forth another convoluted, 

speculative, and inaccurate theory about the City’s motives in administering agreements with 

various Airport tenants, Complainants also argue that the City granted Aero Facilities too many 

rights at the Airport. The City addressed at length the flaws and inaccuracies with these theories 

in its Answer and sees no need to reiterate them here. However, the City must address 

Complainants’ misstatements regarding the extent of Aero Facilities’ control of the east side of 

the Airport. 

As an initial matter, Complainants imply that the 18 acres designated as Phase III are 

entirely within Aero Facilities’ control. Reply ¶ 6. That is untrue. While it is true that Aero 

Facilities has certain reimbursement rights for infrastructure that it developed for its own 

leasehold that may also benefit the developer of the Phase III parcel (Reply ¶ 14; Complaint 

 

1

 As shown in Answer Exhibit 35, FAA’s Northwest Mountain Region informed the City that it did not consider 

“either of the two conditions [allowing for grant of an exclusive right] to be true at the airport, and therefore the 

airport is obligated to not exclude a service provider on the airport.” The City acted accordingly. 
5 

Ex. 9 at 18, 46)2 the Phase III parcel itself is neither leased to nor under the direct control of Aero 

Facilities. 

Separately, Complainants attempt to introduce new arguments about road access to 

undeveloped land on the Airport’s east side, stating that 

[i]n order for the [City] to connect the north parcel road to the 

existing surface road, the [City] would have to abandon the 

existing Gibson Air Road, obtain a waiver of setback from the 

County, and pay to construct an entirely new road parallel to and 

offset from the existing road by only a few feet. 

Reply ¶ 17. Complainants suggest that this would require excavating existing rock berm and 

drainage along Gibson Road and characterize this as “theoretically possible” but “impractical 

and very expensive.” Id. 

Complainants overstate the difficulties of constructing a new road to access that parcel 

and evidence an unfamiliarity with the property boundaries in question. The City owns a strip of 

land over 100 feet wide from the edge of the area leased to Aero Facilities to the Airport property 

boundary. While the City may need to excavate a short stretch of berm or construct a short jog 

around it, by and large, an access road could be built without much hassle. No setback waiver 

would be needed from the County—the setback referenced by Complainants applies to 

structures, not to roads or driveways3— nor would the City need to abandon the existing Gibson 

 

2

 As noted in the Answer, Aero Facilities’ Ground Lease is subordinated to the City’s Grant Assurances. Answer 

at 43-44. 

3

 Deschutes County Code Section 18.04.030 defines “setback” to mean “an open space on a lot which is 

unobstructed from the ground upward except as otherwise provided in DCC Title 18.” Even if a setback 

requirement were applicable to roads, which it is not, the setback in this case would be a side setback, and the 

applicable code provision is Deschutes County Code Section 18.76.060F, which provides that “[t]he minimum side 

setback between any structure and a property line shall be three feet, and the minimum total of both side setbacks 

shall be 12 feet.” If this were considered a rear property line, the applicable provision would be Deschutes County 

Code Section 18.76.060G, which provides that “[t]he minimum rear setback between any structure and a rear 

property line shall be 50 feet.” A road or driveway is not a structure. But even if a road were considered a structure 

and the property line were considered a rear property line, the setback would be 50 feet, which would still leave 
6 

Road (on City-owned lands), as Complainants suggest. Id. In short, the City has retained both 

the right and the ability to access all of the undeveloped land on the Airport’s east side. 

Finally, perhaps nothing epitomizes Complainants’ “have their cake and eat it too” 

approach so much as its treatment of the so-called Smith Hangars, which are a set of hangars on 

the west side of the Airport that were built in 2009 by an unrelated developer. Answer at 46.

Complainants barely alluded to these hangars in their Complaint, and did so only to dismiss their 

importance, writing that “the fact that a few small hangars were squeezed into the west side of 

the Airport” does not “protect Respondent from a claim that it granted an exclusive right to Aero 

Facilities.” Complaint ¶ 58. In their Reply, however, Complainants portray those same hangars 

as a threat to their business, arguing that the hangars put Aero Facilities at a serious competitive 

disadvantage and are evidence of discriminatory behavior by the City. Reply ¶ 8. Complainants 

write, of their difficulties in the economic downturn, that “[i]t did not help that in 2009 the 

Respondent permitted a local developer named Smith to build a set of new hangars on the west 

side . . . ; and forc[ed] the Complainant to compete head-to-head in leasing their hangars during 

the worst of the economic downturn.” Id. 

The Smith Hangars were built on a spot that had been shown on the 2002 Airport Master 

Plan ALP as available for development. Allowing Airport development other than that planned 

by Complainants, whether during an economic downturn or otherwise, does not constitute 

discrimination by the City.4

 But, of course, nor have Complainants—who complain bitterly 

about competition at the Airport—been granted an exclusive right, despite their request that the 

 

plenty of room for a road. 

4

 The Evans Affidavit notes, correctly, that the City did not request proposals prior to offering for lease the land on 

which the Smith Hangars were built. Reply Ex. 6, Evans Affidavit ¶ 9. The City was not legally required to do so. 
7 

City do so. Not only do other aeronautical businesses operate at the Airport, but additional land 

remains available for development. See Roadhouse Aviation v. City of Tulsa, FAA Docket No. 

16-05-08, Director’s Determination at 29 (Dec. 14, 2006), aff’d, Final Decision and Order (June 

26, 2007) (“The intent of Grant Assurance 23 and companion guidance language in FAA Order 

5190.6A is that an airport sponsor not lease all available land to one FBO, thereby granting an 

exclusive right.”) (emphasis added). 

B. Complainants mischaracterize the City’s actions taken to manage the 

Airport. 

In their Reply, Complainants again improperly interpret Airport-related management 

decisions as discriminatory actions intended to harm them. As the City previously explained, see 

Answer at 13-15, the City has made prudent decisions to operate the Airport in compliance with 

its Federal obligations and to accommodate growth in aeronautical activity. The new evidence 

introduced by Complainants in their Reply does not show unjust discrimination. 

1. The City has treated Complainants in a fair and straightforward 

manner. 

In their Reply, Complainants attempt to portray themselves as victims of the City’s 

alleged deceptive practices, when in reality, the City has consistently acted reasonably toward 

Complainants and in compliance with its Federal obligations. First, Complainants allege that 

Aero Facilities was induced to enter into the Agreements5

 with the City based on certain 

representations made by City representatives around the time that the City had issued a Request 

for Proposals (“RFP”) for the development of the east side of the Airport. Reply ¶ 6. The Evans 

Affidavit claims that “[t]he City represented that there was no land left on the west side for 

 

5

 The Agreement for Development of Property – Bend Municipal Airport Eastside Development (“Development 

Agreement”) (Complaint Ex. 3) and a Master Airport Ground Lease (“Ground Lease”) (Answer Ex. 14) 

(collectively, the “Agreements”). 
8 

development, and that all future development at the Bend Airport would be done on the east 

side.” Reply Ex. 6, ¶ 7. Mr. Evans, however, does not say who made that statement or when and 

in what context the statement was made. 

The most reliable evidence about the circumstances surrounding the RFP is the RFP 

itself. Answer Ex. 12. It makes no claims about what other development opportunities might 

have been available at the Airport and makes no promises about where or when such 

development may occur. Conversely, the RFP expressly states that the successful proposer 

would be required to comply with all applicable Federal laws. Id. at 19; see also 49 U.S.C. 

§§ 40103(e), 47107(a)(4) (prohibiting exclusive rights at airports). Additionally, the 

Development Agreement, which resulted from the selection of Aero Facilities as the successful 

proposer, is unambiguous that there were no other components to the deal other than those 

memorialized in the agreement itself. Complaint Ex. 3, § 2.6.4 (“Developer enters into this 

Agreement without reliance upon any verbal representation of any kind by the City, its 

employees, agents or consultants regarding any aspect of the site, the Project, its feasibility, 

financing or compliance with any governmental regulation.”); Complaint Ex. 3, § 8.13 (“There is 

no other oral or written agreement between the Parties with regard to this subject matter. There 

are no oral or written representations made by a Party, implied or express, other than those 

contained in this Agreement.”). Finally, and just as importantly, throughout the negotiations 

over the terms of the Agreements, Aero Facilities had access to maps and drawings showing the 

proposed leasehold in the context of the size and layout of the Airport. See, e.g., Answer Exs. 12 

at 10; 59. Those maps and drawings made clear that there was remaining land available for 

aeronautical development. 
9 

Similarly, Complainants allege that Aero Facilities’ planned development at the Airport 

was delayed as a result of the required Environmental Assessment (“EA”). Complainants imply 

that the City sandbagged them with this federal National Environmental Policy Act requirement, 

stating that “Respondent did not inform the Complainant Aero Facilities, nor was the 

Complainant aware, that a new [EA] would be required.” Reply ¶ 7. Such a conclusion is belied 

by the evidence that Complainants themselves submit. The City was, like Complainants, 

surprised when it became clear that an EA would be required. Reply Ex. 1 (“[T]he City of Bend 

was not aware that they would be required to conduct an EA and unfortunately had negotiated 

with . . . Aero Facilities to lease property for expansion on the east-side of the airport.”). The 

evidence also shows that the City was committed to keeping Aero Facilities up-to-date on the 

status of the EA and understood that Aero Facilities was “anxious to begin construction.” Reply 

Ex. 3. Further, while Complainants acknowledge that Aero Facilities missed the agreed-to 

development schedule because of the EA, Reply ¶ 7, the City understood that this was reasonable 

given the circumstances that included, among other things, the EA, and attempted to 

accommodate a revised schedule. See Answer at 6-7. 

Complainants also argue that the City “reneged on its promise” regarding Pro Air’s ramp 

space. Reply ¶ 22. As an initial matter, it should be noted that the Flight Services Building 

Lease Renewal shows that even at that early date the parties were contemplating that Pro Air’s 

120,000 square foot ramp space would need to be adjusted “to reflect available area after reconstruction of Taxiway A.” Answer Ex. 28 at 1. That agreement was signed by Pro Air one 

year before entering into the ramp space Lease Amendment that permanently reduced the ramp 

space and rent. Answer Exs. 28, 32. 
10 

Moreover, the City has already explained its rationale for reducing Pro Air’s ramp in 

order to accommodate the reconstruction of Taxiway A, which was important for the continued 

development of the Airport. Answer at 9. At the time, the City offered to swap Pro Air the ramp 

space needed for the taxiway project for similar ramp space to the north of Pro Air’s leasehold, 

near Pro Air’s fueling facilities.6

 Answer Ex. 31 at 2. Complainants’ own evidence notes that 

Pro Air rejected the substitute ramp space as not acceptable “on a short-term or long-term basis.” 

Reply Ex. 12. As a result, the City instead agreed to reduce Pro Air’s leased ramp space and 

concomitant rent. Answer Ex. 31 at 1. A lease amendment reflecting these reductions became 

effective on August 18, 2012. Answer Ex. 32. In its Answer, the City denied Complainants’ 

allegation, Complaint ¶ 68, that the City misled Pro Air’s manager in order to induce him to sign 

the lease amendment, Answer ¶ 68; Answer at 48. In their Reply, Complainants now seek to 

introduce parol evidence in the form of an affidavit in an attempt to support the allegation that 

Pro Air was misled. Reply at 11; Reply Ex. 10, ¶¶ 3, 6. This new testimony, however, cannot 

call the lease amendment itself into dispute. The City did not simply “agree via email” as 

Complainants suggested, but rather prepared an addendum to “make sure all the points are 

covered.” Reply Ex. 11 at 2-3. The lease amendment speaks for itself; it does not provide that 

the reduction of space and rent was short-term. Answer Ex. 32; see also Answer at 48 & n.18; 

Lolita’s Airport Café, Inc. v. City of Houston, FAA Docket No. 16-99-22, Director’s 

 

6

 In an affidavit of Gwil Evans that Complainants previously submitted to the Circuit Court of the State of Oregon 

for the County of Deschutes (and now submit as evidence in this proceeding), Mr. Evans denies that the City offered 

Pro Air ramp space “directly next to its fuel farm location,” and instead claims that the “City only offered tie-down 

spaces out on the taxiway that were far away from our FBO operations.” Reply Ex. 10, ¶ 8. Whether Complainants 

want to refer to the ramp space as mere tie-down spaces is irrelevant. But to characterize the space that the City 

offered as being “out on the taxiway” is wrong under any interpretation. There are no aircraft tie-downs on the 

taxiway. The ramp space offered by the City was immediately north of Pro Air’s leasehold and next to its fuel farm, 

along the edge of the Taxiway A. Answer Ex. 11 at 9-11; Reply Ex. 11 at 2. That the space may have been “far 

away” from the core area from which Pro Air conducts its business is a function of the 80,000 square-foot apron 

area that Pro Air already enjoys. 
11 

Determination at 13-14 (Sept. 11, 2000) (finding that the only written evidence of the outcome of 

negotiations was the amendment itself when parties disagreed on intent and additional evidence 

does not prove decisions were made on contract terms). Even if it were appropriate to look 

outside the four corners of the lease amendment, the evidence that Complainants now submit 

fails to prove that Pro Air had a reasonable belief that the reduction in ramp space would be 

temporary. While the construction that relocated Taxiway A slightly to the west was a 

temporary project, Answer at 9, the end result (the relocated Taxiway A) is permanent, as was 

evident from the nature of the project and the construction plans. 

Likewise, the City did not mislead Pro Air about new tie-down spaces that became 

available more recently to the south of Pro Air’s leasehold. In November 2012, the City offered 

to work with Pro Air to “provide incentives to its current tie-down tenants to relocate . . . to free 

up spots that can be leased” to Pro Air. Answer Ex. 29 at 2. Although Complainants allege that 

the City did not tell them about a waiting list for tie-down spaces until 2013, the evidence shows 

that as early as November 2012 the City informed Complainants’ legal counsel that “[t]he City is 

willing to lease at least some additional tie-down spots to Professional Air in the desired area 

(immediately to the south of the existing Professional Air tie-down area) as spaces become 

available.” Answer Ex. 29 at 1-2. At the time, the City also noted that another tenant might be 

interested in some of the spots, and if that were the case, the City would provide some spots to 

both. Id. The City was clear with Complainants as to options for obtaining additional tie-down 

spaces.7 

 

7

 It should be noted that in their Reply, dated March 2015, Complainants do not acknowledge that Pro Air had 

entered into a lease agreement for additional tie-down spaces three months earlier, in January 2015. See Answer 

Ex. 53. It is unclear if Complainants still believe that they are being treated unfairly with regard to tie-down spaces. 

See Roadhouse Aviation v. City of Tulsa, FAA Docket No. 16-05-08, Director’s Determination at 31 (“FAA is 
12 

Similarly, Complainants’ allegations relating to the Blue Hangar lease do not show 

mistreatment by the City or that the City treated a similarly-situated entity differently. Wilson 

Air Ctr., LLC v. Memphis & Shelby Cnty. Airport Auth., FAA Docket No. 16-99-10, Director’s 

Determination at 19 (Aug. 2, 2000), aff’d, Final Agency Decision and Order (Aug. 30, 2001). 

While the City and Complainants may disagree on the negotiations surrounding the Blue Hangar 

lease, the City provided Pro Air with a lease as requested. See Answer Ex. 30. Although Pro Air 

has refused to sign the lease, Pro Air continues to occupy the Blue Hangar on a month-to-month 

basis. Answer ¶ 40; Answer at 55.8 There is no evidence that Pro Air has suffered because of 

any of the City’s alleged actions or inactions. 

2. The City has not treated Complainants differently than similarlysituated entities. 

Complainants argue that the City’s actions, taken in light of the City’s alleged motives, 

show unjust discrimination against them. This is also legally and factually untrue. 

Complainants initially alleged that the City’s grant to Leading Edge of a one-year waiver 

to meet the fueling requirements imposed by the Minimum Standards is an example of unjustly 

discriminatory treatment. Complaint ¶ 66. In its Answer, the City noted that it has the discretion 

to waive the Minimum Standards, Answer ¶ 29; see also Answer Ex. 34 at 2 (the City has the 

“right to waive these standards, or portions thereof, when it deems, in its discretion, such waiver 

is in its best interest”), and that, in fact, it previously had granted a similar waiver to Pro Air, 

Answer ¶ 66, allowing it to continue operating its FBO business although it failed to maintain its 

charter operator certificate. 

 

interested in current compliance.”). 

8

 More recently, although the City presented Pro Air with a notice of breach for failure to execute the Blue Hangar 

lease tendered by the City, see Reply Ex. 19, Pro Air continues to enjoy the benefits of using the Blue Hangar. 
13 

Complainants now argue that the Minimum Standards waiver the City granted to Leading 

Edge was a “significantly unfair waiver,” Reply ¶ 20, and deny that a waiver was ever required 

for, or granted to, Pro Air, suggesting that after its charter certificate had expired, Pro Air 

continued to provide air charter services by brokering with third parties. Reply ¶ 19. However, 

the Minimum Standards require provision of charter services, not contracting for them. Answer 

Ex. 34, § 4.1.2(b). The evidence that Complainants submitted into the administrative record 

plainly shows that Pro Air did not have its air operator certificate for a period of time while it 

continued to operate as an FBO, Reply Ex. 8, yet the City did not terminate Pro Air’s right to be 

an FBO. Answer Ex. 1, ¶ 5. 

Meanwhile, Complainants appear to find the fueling waiver for Leading Edge 

objectionable, at least in part, because Leading Edge allegedly owed Pro Air money at the time 

that it sought to install and operate its own fuel farm. Reply ¶ 20. Financial distress is the same 

explanation, however, that Complainants give for Pro Air’s “difficult decision to reduce and then 

ultimately to stop providing charter services with its own aircraft and pilots.” Reply ¶ 18. Both 

the waiver granted to Pro Air and the City’s decision to allow Leading Edge to have a one-year 

period in which to begin selling Jet A9

 were soundly within the City’s discretion and do not show 

unreasonable discrimination. 

C. Complainants mischaracterize Leading Edge’s operations. 

In an effort to further its argument that the City has favored Complainants’ competitors, 

Complainants continue to make a number of arguments suggesting that the City has ignored 

 

9

 To be clear, that one-year period has now expired and Leading Edge is now selling jet fuel. See Answer at 54 n.24. 
14 

violations of Airport or FAA rules committed by Leading Edge. Reply ¶¶ 11-12, 20, 26. On at 

least one issue, Complainants have altered their argument since the Complaint. 

In particular, Complainants devote considerable space to the question of where Leading 

Edge parks its fuel trucks. In their Complaint, Complainants stated that Leading Edge has been 

allowed to “park their refueling trucks directly on active taxiways in object free areas even 

though that creates a very significant safety issue.” Complaint ¶ 67 (alleged without any 

supporting evidence). In its Answer, the City showed that Leading Edge parks its fueling 

vehicles at the edge of ramp space it leases from the City, in a location that is exactly opposite 

from the nearest taxiway. Answer at 57; Answer Ex. 68. 

In their Reply, Complainants now state that, while Leading Edge parks its fuel trucks 

within its leased area, its “leased space is directly next to areas of taxiing aircraft.” It submits a 

picture that it claims shows “a taxiing corporate jet squeezing through on the taxi lane next to 

Leading Edge’s parked fuel trucks.” Reply ¶ 26. Complainants’ description of the photograph, 

however, is mere rhetoric. The City does not deny that the aircraft parking apron leased by 

Leading Edge is directly next to areas where aircraft taxi (that is, after all, the nature of aircraft 

parking aprons), but the fuel trucks are not parked next to taxiways. Rather, they are commonly 

parked at the western edge of Leading Edge’s leased ramp space, which is several feet away 

from hangars, some of which are leased by other aeronautical tenants. As a result, as aircraft go 

in and out of hangars, aircraft may move near the spot where the fuel trucks are parked. This 

does not make it unsafe. Leading Edge parks its fuel trucks in compliance with the Fire Code 

regulations. The current location does not impinge on Pro Air’s leasehold or operations. The 

City showed in its Answer that this claim lacks merit, Answer at 57, and Complainants’ revised 

argument fares no better. 
15 

D. The Airport layout meets FAA design standards and is safe. 

In an attempt to further their argument that conditions at the Airport are unsafe,10

Complainants selectively point to portions of a ConnectOregon funding application, which stated 

that there is “considerable conflict between fixed wing aircraft and rotorcraft” at the Airport, as 

“evidence” that the Airport layout is currently unsafe. Reply ¶ 31; Reply Ex. 5 at 13. See also

Reply Ex. 20 at 2. However, the City was clear in its application that the proposed project would 

provide “an additional safety buffer between rotorcraft and fixed wing traffic,” Reply Ex. 5 at 6. 

No one ever suggested that the project was needed to remedy unsafe conditions. Safety is the 

City’s utmost priority at the Airport and the fact that the City actively seeks to expand and 

promote safe operations is not evidence of an unsafe Airport layout. 

Finally, it is worth noting that Pro Air was itself “considering entering the helicopter 

flight training arena” and stated that it would need more ramp space to do this. Reply Ex. 13 at 

2. In doing so, Pro Air did not express concern that there would be conflict between fixed-wing 

and rotary-wing operations within its own ramp space. 

II. THE ADDITIONAL EVIDENCE COMPLAINANTS INTRODUCE DOES 

NOT SUBSTANTIATE THEIR ALLEGATIONS. 

Apparently belatedly acknowledging that that they bear the burden of proving the 

allegations in their Complaint, 14 C.F.R. § 16.23(k)(1), Complainants now submit twenty 

exhibits that attempt to both respond to the City’s Answer as well as provide post-submittal 

support for Complainants’ original claims. Complainants accomplish neither goal. 

 

10 It is worth noting that Complainants no longer argue that the Enticknap Report (Complaint Ex. 11) is credible 

evidence of a safety problem at the Airport. 
16 

As detailed above, many of Complainants’ exhibits either provide inadequate or no 

support for the proposition for which they are introduced, or are misleadingly characterized.11 

In other cases, Complainants attempt to support their misstatements of the facts with a post hoc 

affidavit that merely reiterates the allegations in the Complaint. See Reply Ex. 6. That attempt is 

self-serving and fails to substantiate Complainants’ theories. Complainants had the obligation to 

“[i]nclude all documents then available in the exercise of reasonable diligence, to be offered in 

support of the complaint,” 14 C.F.R. § 16.23(b)(2), when they filed that Complaint.12 They did 

not do so. 

Regardless, the evidence submitted by Complainants with their Complaint, together with 

the evidence submitted with their Reply, still fails to sustain Complainants’ burden of proving 

their allegations. Because the evidence that Complainants now submit does not support their 

claims, Complainants do not meet the legal standards for proving their claims. See Answer 

at 32-35. 

III. THE CITY PROPERLY MADE DISPOSITIVE MOTIONS AT THE TIME 

OF ITS ANSWER. 

Complainants argue that the City erred in filing its Motions to Dismiss and for Summary 

Judgment at the same time as its Answer.13 In support of that argument, Complainants interpret 

 

11 Additionally, some of the evidence that Complainants now submit is duplicative of evidence submitted by the 

City, and Complainants provide no explanation for why they needed to resubmit the same document. Compare

Reply Ex. 12 with Answer Ex. 31 at 2. 

12 For example, Complainants offer no reason why the Evans Affidavit, Reply Ex. 6, was not submitted with the 

Complaint. As a result, the reliability and probative value of this affidavit should now be in question. Complainants 

similarly provide no justification for failing to submit the exhibits they now seek to introduce with the Complaint, 

even though many of these documents were (or could have been) available at the time the Complaint was filed. See, 

e.g., Reply Ex. 1 (emails from 2008); Reply Ex. 5 (ConnectOregon Application 2009-2011); Reply Ex. 10 (affidavit 

dated July 14, 2014, and accompanying exhibits). 

13 While the City does not seek to make an unauthorized reply to Complainants’ Answer to the City’s dispositive 

motions, the City believes it is necessary to address its novel procedural arguments. 
17 

Part 16 procedural rules narrowly to preclude simultaneous answers and dispositive motions. 

FAA rules are permissive, providing that “[i]n lieu of an answer, the respondent may file a 

motion to dismiss the complaint or a motion for summary judgment on the complaint.” 

14 C.F.R. § 16.26(a). Complainants argue that filing an Answer simultaneously with dispositive 

motions is an attempt to “overwhelm the record.” Reply at 17. They also argue that it is 

“confusing” for the City to argue “both that the cause of action was insufficiently stated” and that 

“no material issues of fact exist.” Id.

Both as a legal and as an equitable matter, Complainants’ position should be rejected. As 

to the former, the City has followed a process long allowed by the FAA. While the Part 16 rules 

themselves do not contain specific directions beyond the provision quoted by Complainants, the 

FAA appears to have intended them to provide for an alternative procedure rather than to replace 

the existing one, under which respondents routinely file dispositive motions at the same time as 

their Answer.14 See, e.g., McDonough Props., L.L.C. et al. v. City of Wetumpka, FAA Docket 

No. 16-12-11; Va. One Dev., Inc. v. City of Atlanta, FAA Docket No. 16-12-09; Truman Arnold 

Cos. d/b/a TAC Air v. Chattanooga Metro. Airport Auth., FAA Docket No. 16-11-08; N. Air, Inc. 

v. Cnty. of Kent, Mich., FAA Docket No. 16-11-10.15 For instance, FAA’s Part 16 “FAQ” 

specifically provides that “Respondent’s answer may include a motion to dismiss the complaint, 

or any portion of it, with a supporting memorandum of points and legal authorities.”16 

 

14 As far as the City can ascertain, FAA has not yet decided any cases filed after the revised procedural rules went 

into effect on September 12, 2013; thus, there are no examples of cases where FAA has ruled on dispositive motions 

filed at the same time as the answer under the new rules. 

15 It must be noted that one of Complainants’ counsels of record here is the same counsel who represented the 

complainants in TAC Air and Northern Air, and who is familiar with the procedure of filing dispositive motions 

together with the Answer. 

16 Fed. Aviation Admin., 14 CFR Part 16 Rules and Administrative Decisions: Frequently Asked Questions, 

http://part16.airports.faa.gov/index.cfm?page=FAQ#A7 (last visited May 4, 2015). 
18 

Further, the Notice of Proposed Rulemaking (“NPRM”) that FAA issued in 2012, putting 

forth the rule Complainants now cite, also makes clear that FAA intended for respondents to 

have the option of filing dispositive motions before an answer to a complaint. The proceeding 

was put into place to benefit respondents faced with frivolous complaints. In the NPRM, the 

FAA specifically noted that “[s]ponsor representatives in Part 16 actions have indicated to the 

FAA that the full process under the current rule is burdensome in cases where complaints may be 

considered frivolous.” Rules of Practice for Federally-Assisted Airport Enforcement 

Proceedings (Retrospective Regulatory Review), 77 Fed. Reg. 13027, 13030 (proposed Mar. 5, 

2012). In particular, airport sponsors brought up “complaints they believe were filed merely to 

harass, intimidate, or cause financial hardship to a respondent.” Id. Those stakeholders 

“suggested that a responsive motion could be used to dispose of frivolous complaints.” Id. 

Accordingly, FAA adopted 14 C.F.R. § 16.26(a) to “relieve the respondent and the agency from 

completing a full investigative process in certain cases by allowing the respondent to file a 

motion to dismiss or a motion for summary judgment in lieu of preparing an answer.” Id.

Here, the City chose to provide FAA with a full accounting of events at the Airport even 

when, as with Complainants’ claims regarding safety, they are outside Part 16 applicability. See

14 C.F.R. § 16.1(a). The City’s submittal into the administrative record of detailed information 

and evidence regarding the events and circumstances surrounding the allegations and claims 

made by Complainants is not duplicative or burdensome and was submitted in the context of a 

paragraph-by-paragraph answer to allegations made by Complainants themselves. The 

submission of both motions and an answer simultaneously should not be “confusing” (Reply at 

17): all of Complainants’ claims fail both as a matter of law and as to the facts. While the City 

continues to believe that dismissal as outlined in the Motion to Dismiss and Motion for Summary 
Judgment is warranted and appropriate, the City provided a full response to Complainants' 

allegations, in case FAA deems an investigation to be necessary as an alternative means to reach 

a determination. 

IV. CONCLUSION 

For the foregoing reasons, the City respectfully requests that the Complaint be summarily 

dismissed as requested in the City's dispositive motions or that, in the alternative, it be dismissed 

after full investigation. 

May 7, 2015 

Respectfully submitted, 

Katharine M. Mapes 

Jessica R. Bell 

Spiegel & McDiarmid LLP 

1875 Eye Street, N.W. 

Suite 700 

Washington, DC 20006 

Email: pablo.nuesch@ spiegelmcd.com 

Phone: 202-879-4000 

Fax: 202~393-2866 

Attorneys for the 

City of Bend, Oregon 

19 
Exhibit 1
1

C. E. "WtN11 FRANCIS 

MARtiN E. HANSEN' 

GERALD A. MARTIN 

MicHAEL H. McGEAN t 

FRANCIS HANSEN & MARTIN UP. 

ATIORNEYS AT LAW 

1148 NW HILL STREET, BEND, OR 97701-1914 

PHONE,541-389-5010' FAx,541-382-7068 

WWW.FRANCISHANSEN.COM 

November 27, 2012 

COPY BY EMAIL: gfirestone@ci.bend.or.us 

Gary Firestone 

Assistant City Attorney 

City of Bend 

710 NWWall Street 

Bend, OR 97701 

Re: Professional Air- Exclusive FBO Rights · 

Dear Gary: 

CHRISTOPHER j. MANFREDI t 

ALISON A. HUYCKE 

SARAH E. HARLOS 

ALisoN G. HoHENGARhN . 

t ADMJITED IN OREGON AND CALIFORN]A 

*ADMITIED IN OREGON AND WASHINGTON 

Thank you for yol.ir letter of November 26, 2012, I will review that with my client. 

In your letter you asked me to provide the authoritythat gives the City of Bend the right to 

deny a request for an FBO to an otherwise qualified FBO operator. As I told you in our 

meeting, the FAA crafted such an exception a number of years ago to prevent precisely the 

type of problem that would face the City of Bend in this situation. I am enclosing with this ·-

letter a copy of the FAA bulletin that outlines th~ two conditions that must be met for a City. 

to deny an FBO to a qualified operator. ' ' , - I 

I believe that both conditions are present in the present case. As we discussed, current 

FBO ProAir is already struggling in its bus.iness atthe Bend Municipal Airport given the. 

dramatic reduction of private air service during the national recession. By adding a new 

FBO,.the City will impact l)egatively in a significant fashion the current FBO'sbusiness . 

. When ProAir has fewer airplanes to park and fuel, and thus service, the amount of leased · 

space utilized by ProAir will be greatly rectuced, This precisely meets the second criteria of 

49 U.S.C. § 47107. 

· I would ask that you bring this exception to the attention of the City Council in their 

consideration of the current FBO lease request from Leading Edge Avii;ttion. The FAA rules 

and procedures provide the City of Bend protection from exactly the type of dama!Je to an 

·existing FBO that would be caused by the addition of one or more subsequent FBOs such 

as Leading Edge Aviation. · · 

Please call me with any questions you might have. . . 

sincerely, 

.~

. .,----.. · ----.- . . . ... :::.-----. 

. 

. -"'--~"- . . 

_, ' ' . ' ---:-·--- ' . 

MARTIN E: HANSEN 

MEH/kas 

· Enclosure 

cc.: Clients 

• • • ' t ' 
2

09/30/2009 5190.68 

exclusive right These airport sponsors must engage m such activities usmg their own 

employees.20 

8.6. Airports Having a Single Aeronautical Service Provider. \Vhere the sponsor has not 

entered into an express agreement, commitment, understanding, or an apparent :illtent to exclude 

oilier reasonably qualified ente!],rises, tl1e FAA does not consider tl1e presence of only one· 

provider engaged in an aeronautical activity as a violation of the exclusive rights proillbitioll.2J 

The FAA will consider the sponsor's willingness to make the anvort available to additional 

reasonably qualified providers. (See paragraph 8.9.b of this chapter.) 

8.7. Denying Requests by Qualified Providers. 

a. Conditions for DeniaL The assurance prohibiting the granting of an exclusive right does not 

penalize a sponsor for continuing an existing single provider when both of the following 

conditions exist: 

(1). It can be demonstrated that it would be unreasonably costly, burdensome, or impractical for 

more than one entity to provide the service, and 

(2). The sponsor would have to rednce the leased space that is currently being used for an 

aeronautical purpose by the existing provider in order to acconnodate a second provider. In the 

· case of denying additional providers, fue sponsor must have adequate justification and 

documentation of fue facts supporting its decision acceptable to the FAA. 

Bolli conditions must be met. (See 49 U.S.C. § 47107(a)(4)(A and B).) 

b. Demonstrable Need. VilJlen fue service provider has space in excess of its reasonable needs 

and the sponsor clalins it is justified based on the service provider's future needs, the FAA may 

find the sponsor in violation of fue exclusive rights prohibition if fue service provider is banlcing 

land and/or facilities that it cannot put to gainful. aeronautical use in a reasonable period of time 

and/or the vacant property controlled by the service provider denies a competitor from gaining 

entry onto the airport. 

A sponsor may exclude an incumbent on-airport service 

provider from responding to a requestfor proposals based 

on the sponsor's desire to increase competition in ailport 

sen,ices. That action is not a violation of Grant Assurance 

22, Economic Nondiscrimination, since the sponsor is 

taking a necessarJI step to preclude the granting of an 

exclusive right 

20 An aeronautical user exercising its right to self-service or self-fuel is also required to use its OVi'll employees and · 

equipment. 

21 See 49 U.S. C. §§ 40!03(e) and 47107(a)(4). 

Page 8-6 
 Certificate of Service
Certificate of Service 

I hereby certify that I have today, the 7th day of May, 2015, caused the foregoing 

Rebuttal to be served electronically, on the following: 

Leonard D. Kirsch, Esq. 

McBreen & Kopko 

500 North Broadway 

Jericho, NY 11753 

lkirsch @mklawnyc.com 

Martin E. Hansen, Esq. 

Francis, Hansen & Martin LLP 

1148 NW Hill St. 

Bend, OR 97701 

meh @francishansen.com 

Attorneys for Complainants 

~b'V Pablo 0. Niiesch ~