03/22/2010 13:30 FAX 2024935142 FAA •> DMS 0 001/007 

Aviation Law Experts, LLC 

& 

The Aviation Law Firnn 

330 Aviation Way 

Second Floor 

Frederick, MD 21701 

1-877-4-AIR-LAW • 301-294-8550 • 301-294-2525 fax 

www.AviationLawEx pe rts. CO m 

Reply to e-mail: Greg@AviationLawE)cperts.com 

aragor v 5. wlnton , Esq. 

ArfmitWd in MD, NV, P4, C'r 

and Washington, Ci.C. 

Ctpt . C.E. 'Noah " Flood, E*q. * • 

- - Admlttei! In OH Only 

FAR Part 121 Line cneck Pilot 

Grepory A. Felth 

Retired MTSB 

Senior Air Ss'ety Invescigbtor 

Richard )- VWentworth 

Retired NTSn 

Nntionol Resource Specialist for ATC 

Richard C. Peck 

Retired FAA 

OperaUoiis Unit Supervif.or 

Matter Lippan 

Retlrefl FAA 

Aviation i^afety inspector 

Gerald h\. Ston«brldg« 

I AA Hart IZ l Airline Captein 

Lt. Col. ;ip«l Saidband 

R<>cirftd USAf Pilot 

Aviation Safety Program Manager 

March 1,2010 

Attention: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

(Wilbur Wright Building ~ Room 2W1000) 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Re: In the Matter of Scenic Aviation, hic. 

FAA Docket No. CP09NM0011 

Dear Hearing Docket Clerk: 

o?oo<f /(5 f 7 / 

Please be advised that this office represents Respondent, Scenic Aviation, Inc., regarding the abovc-ieterenced 

matter. Enclosed please find one original and two (2) copies Respondent's Answer and Motion to Dismiss. 

Kindly file the documents and reim-n a file stamped copy to my attention in the enclosed sell"addressed, stamped 

envelope provided for your convenience. 

llyoii have any questions^ease do not hesitate to contact me. Thank you in advance for your anticipated 

cooperation. 

Sincerely, 

<jrp^ory> ^ 

mclosur^''' 

Ion 

im 
03/22/201 0 13:3 0 FAX 202493514 2 FAA •> DMS ©002/007 

U.S. DEPARTMENT OF TRANSPORTATION 

OI'FICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

SCENIC AVIATION, INC. 

FAA Docket No. CP09NM0011 

(Civil Penalty Action) 

DMS No. FAA-2009-0974 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Hearing Location: Sail Lake City, UT 

ANSWER AND AFFIRMATIVE DEFENSES 

I. 

COMES NOW, Scenic Aviation, Inc. (hereinafter "SCENIC AVIATION^'), by and 

through undersigned counsel pursuant to Rule 209 of the Rules of Practice (14 C.F.R. § 13.209), 

and hereby files its Answer and Motion to Dismiss regarding the Complaint filed by the Federal 

Aviation Administration dated October 29. 2009.' In support thereof. Scenic Aviation states the 

following: 

II. 

1 - SCENIC AVIATION admits the allegations contained in paragraph 1 of the Complaint. 

2. SCENIC AVIATION admits the allegations contained in paragraph 2 of the Complaint. 

Scenic Aviation, by and through counsel, timely filed a Motion to Dismiss the FAA's Complaint 

on November 3, 2009. No decision has been rendered to date. 
03/22/201 0 13:3 0 FAX 2024935142 FAA + DlilS @l003/007 

T. N3221M 

.3. SCENIC AVIATION admits the allegations contained in paragraph 3 of the Complaint. 

4. SCENIC AVIATION denies the allegations contained in paragraph 4 of the Complaint. 

5. SCENIC AVIATION lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 5 of the Complaint and therefore, 

denies same and demands strict proof thereof. 

6. SCENIC AVIATION denies the allegations contained in paragraph 6 of the Complaint. 

7. SCENIC AVIATION admits the allegations contained in paragraph 7 of the Complaint. 

8. SCENIC AVIATION denies the allegations contained in paragraph 8 of the Complaint. 

II. N588SA 

9. Count 11, allegation number 9 of the Complaint concerns allegations of an incident that 

occurred more than 2 years before the agency attorney issued a Notice of Proposed Civil 

Penalty to Scenic Aviation, and therefore, should be dismissed as untimely in accordance 

withl4C.F.R.§ 13.208(d). 

10. SCENIC AVIATION denies the allegations contained in paragraph 10 of the Complaint. 

11. SCENIC AVIATION lacks knowledge or infomiation sufficient to fonn a belief as to the 

truth or falsity of the allegations contained in paragraph 11 of the Complaint and therefore, 

denies same and demands strict proof thereof 

12. SCENIC AVIATION denies the allegations contained in paragraph 12 of the Complaim. 

13. SCENIC AVIATION denies the allegations contained in paragraph 13 of the Complaint. 

14. SCENIC AVIATION denies the allegations contained in paragraph 14 of the Complaint. 

15. SCENIC AVIATION admits the allegations contained in paragraph 15 of the Complaint. 
03/22/201 0 13:3 0 FAX 202493514 2 FAA •> DMS 1004/00 7 

16. SCENIC AVIATION denies the allegations contained in paragraph 16 of the Complaint. 

i n . N617MM 

17. SCENIC AVIATION admits the allegations contained in paragraph 17 of the Complaint. 

18. SCENIC AVIATION denies the allegations contained in paragraph 18 of the Complaint. 

19. SCENIC AVIATION lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 19 of the Complaint and therefore, 

denies same and demands strict proof thereof. 

20. SCENIC AVIATION denies the allegations contained in paragraph 20 of the Complaint. 

21. SCENIC AVIATION denies the allegations contained in paragraph 21 of the Complaint. 

22. SCENIC A VIATION denie.$ the allegations contained in paragraph 22 of the Complaint. 

23. SCENIC AVIATION denies the allegations contained in paragraph 23 of the Complaint. 

24. SCENIC AVIATION denies the allegations contained in paragraph 24 of ihe Complaint. 

25. SCENIC AVIATION admits the allegations contained in paragraph 25 of the Complamt. 

26. SCENIC AVIATION denies the allegations contained in paragraph 26 of the Complaint. 

111. 

1. SCENIC AVIATION denie.'? that it violated 14 C.F.R. §91.413(b). 

2. SCENIC AVIATION denies that it violated 14 C.F.R. §135.25(a.)(2). 

3. SCENIC AVIATION denies that pursuant to 49 U.S.C. §46301(a) and (d) of Title 49 of the 

Uniied States Code (Transportation) [49 U.S.C. §46301 (a) and (d)J, it is liable for a civil 

penalty not to exceed $11,000 for each of the violations alleged. 

4. SCENIC AVIATION denies that under the facts and circumstances of this case, a civil 

penalty of $42,900.00 is appropriate. 
03/22/201 0 13:3 1 FAX 2024935142 FAA * DMS 01005/00 7 

5. Any matter not specifically admitted by SCENIC AVIATION shall be deemed denied. 

AFFIRMATIVE DEFENSES 

1) Count II, allegation number 9 of the Complaint concerns allegations of an incident that 

occurred more than 2 years before the agency attorney i.ssucd a Notice of Proposed Civil 

Penalty to Scenic Aviation, and therefore, should be dismissed as untimely in accordance with 

14 C.F.R.§ 13.208(d). 

2) Respondent relies upon the affirmative defense of reasonable reliance. 

3) The Federal Aviation Administration's (FAA's) interpretation of its Federal Aviation 

Regulations in this case is arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law. See 5 U.S.C § 706(2) (A); fVatkins v. NTSB, 178 F.3d 959, 961 (8th Cir. 

1999). 

4) The FAA's interpretation of its aviation regulations is unconstitutionally vague. See Thomas v. 

Ilinson, 74 F.3d 888. 889 (8th Cir. 1996); see also Trans Slalti Airlines. Inc. v. FAA, 439 F.3d 

863, 864-865 (8th Cir. 2006). 

5) The FAA's application of its Federal Aviation Regulations in this ca<5e is contrary to the 

regulation's plain language. SnnAdvanta USA, Inc. v. Chao. 350 F.3d 726, 728 (8lh Cir. 2003), 

quoting Gardehring v. Jenkins, 485 U.S. 415, 430. 108 S. Ct. 1306, 99 L. Ed. 2d 515 

(1988), See also Trans Suite.s Airlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006). 

6) Respondent asserts that the Complainant has failed to state a claim upon which the relief 

requested may be granted. 

7) Respondent asserts that the Complainant lacks substantial basis in law and fact to continue 

prosecution of this matter against it. 
03/22/2010 13:31 FAX 2024935142 FAA ^ DMS 0008/00 7 

Dated: March 1,2010 

Respectfull y iJiibjHftted, 

S. WTNTON, ESQ. 

Experts, LLC 

Aviation Way 

Frederick, MD 21701 

Tel: (301) 294-8550 

Fax:(301)294-2525 

G reg^AvJat JonLaw Experts .com 

Counsel for Respondent 
03/22/201 0 13:3 1 FAX 2024935142 FAA * DMS 1007/00 7 

CERTIFICATE OF SERVICE 

I hereby certify that I have this date served by regular U.S. mail, postage prepaid, an original and 

one (1) copy of the foregoing Answer and Motion to Dismiss addressed to: 

Attention: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Suite 2W1000 

Washington, D.C. 20591 

And, further, that 1 have this date served via facsimile and regular U.S. mail, postage prepaid, a 

copy of the foregoing Answer and Motion to Dismiss addressed to: 

The Honorable Richard C. Goodwin 

Administrative Law .Tudge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New .Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

Tel: 202-366-2139 

Fax: 202-366-7536 

Scott R. Morris, Esq. 

Office of Regional Counsel, ANM-7 

FA A Northwest Mountain Region 

1601 Lind Avenue, SW 

Renton, WA 98057 

Tel: 425 227-1417 

Fax:425 227-1007 

Dated: March 1,2010 

.-'' ^ 

lY S. WINTON, ESQ. 

\iviation Law Experts, I -1 .C 

330 Aviation Way 

Frederick, MD 21701 

Tci: (301) 294-8550 

Fax:(301)294-2525