FEDERAL AVIATION ADMINISTRATION DEPARTMENT OF TRANSPORTATION
Inre the Complaint of: JET CENTER PARTNERS, LLC Complainant-againstCOUNTY OF MONTROSE, COLORADO Respondent. DocketNo. 16-15-11 

## RECEIVED

SEP 1 7 2015 Pursuantto Part 16 ofthe Federal Aviation Regulations 

### PART Hi DOCKETS
MOTION FOR SUMMARYJUDGMENT Respondent County ofMontrose, Colorado ("the County"), by and through its undersigned counsel, and pursuant to 14 C.F.R. § 16.26(a), hereby submits this Motion for Summary Judgment in lieu ofan answer, and respectfully asks that the Director dismiss the Complaint ofJet Center Partners, LLC ("JCP") in its entirety.

1737436.2 DESIGNATION OF PERSONS TO RECEIVE SERVICE The County designates the following persons to receive service inthese proceedings: Bobbee J. Musgrave, Esq. Stephen D. Rynerson, Esq. BRYAN CAVE LLP 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203 Telephone: 303-861-7000 Facsimile: 303-866-0200 E-mail: bobbee.musgrave!Glbrvancave.com

. stephen.rynerson(@bryancave.com
. Counsel to County ofMontrose, ColoradoCarolyn Clawson, Esq. MONTROSE COUNTY ATTORNEY'S OFFICE 161 S. Townsend Avenue Montrose, Colorado 81401 Telephone: 970-252-4514 Facsimile: 970-252-4503 E-mail: cclawson@rnontrosecounty.net County Attorney, County ofMontrose, Colorado INTRODUCTION Inits Complaint, JCP alleges that the County has committed a series ofviolations of grant assurances relating to its efforts to accommodate a secondprovider offixed base operation ("FBO") services at the Montrose Regional Airport ("the Airport"). While none ofthe alleged actions would actually have constituted violations ofgrant assurances, JCP has failed to allege any actual present violations or harm, but insteadraises speculative concerns aboutmere potential or contingent future violations with no allegations ofpresentharm to JCP (or any other party). Furthermore, the County has already terminated its agreements relating to the potential provision ofFBO services by otherparties, rendering JCP's action notjustpremature, but moot
as well. JCP's entire Complaint shouldthus be dismissed pursuant to this agency's doctrine of current compliance. STANDARD FOR SUMMARY JUDGMENT Pursuantto 14 C.P.R.§ 16.26(c)(1), a motion for summaryjudgment in a Part 16 proceeding is properly granted when "there is no genuine issue ofmaterial fact for adjudication" and the facts even "whenviewed in the light most favorable to the complainant," fail to establish
a violation ofgrant assurances or other grounds for agency action. STATEMENT OF MATERIAL FACTS ("SMF") 1. OnJuly 2, 2014, the County entered into an agreement ("Majestic FBO Agreement") with Majestic Skies, LLC ("Majestic") to provide FBO services atthe Airport.

2 1737436.2(Affidavit ofLloyd Arnold, p. I, '1[3("Arnold Aff." attached hereto as Exhibit A); Complaint, Exh.C,p. 1.) 2. On February 17,2015, Majestic's rights under the Majestic FBO Agreement were automatically terminated viathe agreed substitution ofMTJ FBO Partners, LLC ("MTJ") for Majestic pursuantto the Amended Fixed Base OperatorAgreement ("MTJ FBO Agreement") entered into betweenthe County and MTJ. (Arnold Aff., pp. 1-2, 

### 'If 4; Complaint, Exh. E, pp. 1- 2.) 3. Atno pointprior to thetermination ofMajestic's rights under the Majestic FBO Agreement did Majestic ever offer FBO services to customers at the Airport. (Arnold Aff., p. 2, '1[5.) 4. Atno point priorto the termination ofMajestic's rights underthe Majestic FBO Agreement did the County pay any amounts to Majestic under the terms ofthat Agreement. (Arnold Aff., p. 2, '1[6.) 5. Prior to August 19, 2015, the County terminated MTJ'srights under the MTJ FBO Agreement. (Arnold Aff., p. 2, '1[7 & Exh. I -Letterfrom Bobbee J. Musgrave to Michael B. Manes, Thomas J. Byrne, and MTJ FBO Partners, LLC, Aug. 19,2015, pp. 1-2.) 6. Atno pointprior to the termination ofMTJ'srights under the MTJ FBO Agreement did MTJ ever offer FBO services to customers at the Airport. (Arnold Aff., p. 2, 

### 'If 8.) 7. Atno pointprior to the termination ofMTJ'srights under the MTJ FBO Agreement did the County pay any amounts to MTJunder the terms ofthat Agreement. (Arnold Aff., p. 2, '1[9.) 8. OnFebruary 17,2105,the Countyentered into the Montrose Regional Airport Ground Lease ("TVP Lease") with Telluride Venture Partners, LLC ("TVP"). (Arnold Aff., p. 2, '1[10; Complaint, Exh. F, p. 1.)

3 1737436.29. On September 1, 2015, the Countyterminated the TVP Lease. (Arnold Aff., p. 2, '1[11 & Exh. 2- Letter from Bobbee J. Musgrave to Thomas J. Byrne and MTJ FBO Partners, LLC, Sept. 1, 2015, p. 1.) 10. Atno point priorto the termination ofthe TVP Lease did the Countypay any amounts in rent or other considerationto TVP. (Arnold Aff., p. 2, '1[12.) 11. As ofthe date this Motion is filed, the County is not a partyto any other FBO agreements otherthan its agreement withJCP andthe County has no other existing business relationship with any party otherthan JCP for providing FBO services atthe Airport. (Arnold Aff., p. 2, '1[13.) 12. As ofthe date this Motionis filed, the County does not have any Requests for Proposals open relating to provisioning ofFBO services at the Airport, nor is the Cotmty actively seeking another FBO provider. (Arnold Aff., p. 2, '1[14.) 13. On July 9, 2015, the Colorado State District Court for Montrose County inJet Center Partners, LLCv. MTJFBO Partners, LLC, Case No. 2015CV30057, dismissedJCP's claim to enforce the restrictive covenant in the 2001 Agreement Authorizing Off-Airport Operations at Montrose Regional Airport ("OA Agreement"). (Arnold Aff., p. 2, '1[15 & Exhibit 3- Order onPending Motions, pp. 2-6, July 9, 2015 inJet Center Partners, LLCv. MTJFBO Partners, LLC, Case No. 2015CV30057 (Colo. Dist. Ct.- Montrose County).) ARGUMENT 

### I. A COMPLAINT MUST RELATE

### To "CURRENT COMPLIANCE"

### To BE ACTIONABLE As the Directorhas previously explained, the FAA Airport Compliance Program "is designedto achieve voluntarycompliance withfederal obligationsaccepted by owners and/or operators ofpublic-use airports developed withFAA-administered assistance." DrakeAerial Enterprises, LLC v. City of Cleveland, DocketNo. 16-09-02,2010 WL 691303, *6 (F.A.A. Feb.

4 1737436.222, 2010). "Therefore, in addressing allegations ofnoncompliance, the FAA will make a determination as to whether an airport sponsor is currentlyincompliance withthe applicable federal obligations." Id (emphasis in original). The doctrine of"current compliance" subsumes boththe concept ofmootness, 

### i.e., allegedpastviolations that have been curedpriorto action by the Director, and ripeness, 

### i.e., alleged future or contingent violations that have nottakenplace yet. See id. ("[T]he FAA will considerthe successful actionbythe airport to cure any alleged or potential past violation ofapplicable federal obligationto be grounds for dismissal ofsuch allegations."); see also id. at 

## *18 ("the Complainant's argument here prematurelyimplies a violation ofthe Respondent's Federal obligations. Under 14 CPRPart 16, the Director cannot investigate allegations ofan airport sponsor's grant assurance violations ifthe Complainanthas notyet beenharmed."). Each ofthe causes ofaction alleged in the Complaint fails underthe current compliance doctrine, whetherbecause the cause ofaction is notripe, the cause ofaction is moot, orboth. II. THE ALLEGATIONS OF THE COMPLAINT AND UNDISPUTED EVIDENCE SHOWS THAT ALL OF THE CAUSES OF ACTION FAIL UNDERTHE CURRENT COMPLIANCE DOCTRINE A. First Cause OfAction: Alleged "FinancialInducements" 1. This cause ofaction is not ripe JCP's first cause ofaction contends that it and MTJ are similarly situated FBOs andthat the County has therefore violated Grant Assurance 22 "byproviding financial incentives and other benefits" to MTJ, and that as a result ofsuch alleged "unjustly discriminatory financial terms will lead to a violation ofGrant Assurance 23
...." (Complaint, pp. 35, 41,

**~** 35 and heading "C.") Accepting for purposes ofthis Motion only that (a) JCP and MTJ couldbe deemed to be similarly situated FBOs and (b) the "financial incentives and other benefits" providedto MTJ could inthe abstractbe deemed to be "unjustly discriminatory," this cause of action still fails underthe "current compliance" doctrine as notbeing ripe. 5 1737436.2First, with regard to the alleged risk ofa violation ofGrant Assurance 23, JCP's allegations are expressly addressed to a mere future possibility: "The grant offavorable financial and otherterms may create the possibility that no other FBO can compete with MTJ
...." (Complaint, p. 42,**~** 86 (emphasis added).) There is no allegation in the Complaint that the Countyhas actually entered into an agreementproviding for an "exclusive right for the use ofthe airport by any personproviding or intending to provide, aeronautical services to the public." Grant Assurance 23,

### AirportSponsorAssurances, p. 12 (F.A.A. Mar. 2014). That a facially nonexclusive FBO agreement could theoretically lead over a prolongedperiod ofcompetition to a single FBO operating at an airport would be a paradigmatic example of"prematurely impl[ying]" a breach ofa grant assurance. 

### See DrakeAerial, 2010 WL 691303 at 

## *18. Second, while JCP alleges that the County entered into anFBO agreement withMTJ that violates the economic nondiscrimination obligation ofGrant Assurance 22 (see Complaint, pp. 3- 4, 24, 31,**~~** 6, 44, 63), JCP does notallege that MTJ is actually presentlyproviding (orhas provided inthe past) any FBO services that benefit from the allegedly discriminatory provisions ofthe MTJ FBO agreement, norhas JCP otherwise identifiedhowit is either being presently harmed by the agreement orhas beenharmed inthe past. Such allegations are naturally missing because, in fact, MTJ has never provided any services under its FBO agreement withthe County (SMF,**~** 6) and JCP has suffered no harmto date. Furthermore, as JCP is the incumbent FBO at the Airport and its FBO agreement longpredates the Majestic FBO agreement, the subsequent assignmentto MTJ, and related transactions (Complaint, pp. 13, 24, 26-27, 29,**~~** 22, 44, 51-52, 54-55, 58-59) there can be no argument that

### JCP 's FBO agreement is discriminatory 

### against itself. Rather, the argument mustbe that the subsequentFBO agreement is discriminatory 

### in favor ofMTJ, 

### i.e., thatMTJ is improperly gaining an advantage over JCP, not that JCP could be in an evenbetterpositionifit was given the same alleged advantages as MTJ. 

### SeeAerodynamics

6 1737436.2of Reading, Inc. v. ReadingRegionalAirportAut h., Docket No. 16-00-03, 2000 WL 33149247, *12, 

## *15-17 (Director's Determination) (F.A.A. Dec. 22, 2000) (non-discriminationrequirement ofGrant Assurance 22 did not require equalizing incumbent FBO's existing lease terms with lease terms granted to newFBOs so long as new lease terms clid not have discriminatory effect against incumbentFBO) (citing PenobscotAirServs. Ltd. v. FAA, 164 F.3d 713, 726 (1st Cir. 1999)).Thus, even ifthe MTJ FBO agreement were presumed to otherwise be valid and presently in effect (which, as discussed below, it is not), JCP's first cause ofaction is premature and shouldbe dismissed. See NorthwestAirlines, Inc. v. IndianapolisAirportAuth., Docket. No. 16-07-04, 2008 WL 3976461, *3-4 & *23-24 (Director's Determination) (F.A.A. Aug. 19, 2008) (although airport authority had entered into a lease agreement and amendment thereto permittingpossiblyunlawful "rent credits" to competitor ofcomplainant, issue was not ripe for resolution where airport authority had not actually applied the rent credits to the benefit ofthe competitor); see alsoAshton v. City of Concord, DocketNo. 16-02-01,2003 WL 22257715, *26, n.32 (Director's Determination) (F.A.A. Aug. 22, 2003) (although airport authority had allegedly discriminated against complainants by entering into leases with otherparties, claim oftmlawful exclusivity was "notripe" absent allegations that complainants' interests were "directly and substantially affected" bythe other leases). This makes the situationinthis case distinguishable fromAircraftMgmt. Servs., Inc. v. Santa Rosa County, Docket No. 16-12-02 (Director's Determination) (F.A.A. Mar. 27, 2015), relied onby JCP. (Complaint, p. 35.) In that case, the respondent had not merely entered into an alleged discriminatory FBO agreement, but the "favored" FBO was actually open and operating. See AircraftMgmt., Docket No. 16-12-02, at pp. 9 & 11. Accordingly, the Director found in that
case thatthe complainant "describ[ed] howthey were directly and substantially affected" by the

7 1737436.2"competitive commercial activities" and "clearly argue[d] a negative economic impact" sufficientto support a cause ofaction for review under Part 16. ld. at p. 18. There are no allegations ofsuch present competition inthis case, or any current negative economic impact on JCP. 2. This cause ofaction is moot Furthermore, even ifthe Director were to find that the Complaint alleged a sufficiently presentviolation ofGrant Assurances 22 and 23 based onthe purported financial incentives offered bythe County, any basis for enforcementhas been mooted. JCP's first cause ofaction is based onthe alleged "disparate financial terms" betweenthe MTJ FBO Agreement and JCP's
own FBO agreement with the County. (Complaint, pp. 36-40,

# n 78-83.) However, the County terminated the MTJ FBO Agreementpriorto August 19,2015 and the Countyhas no FBO agreements in effect with any party other than JCP. (SMF,

**~~** 5 & 11.) As the termination ofthe MTJ FBO Agreement necessarily cures any alleged discrimination by the Countybetween JCP and MTJ, there is no basis for finding a violation ofgrant assurances based on the MTJ FBO. SeeAero Ways, Inc. v. Delaware River & BayAuthority, DocketNo. 16-09-12, 2010 WL 3826304, *29-30 (Director's Determination) (F.A.A. Aug. 30, 2010) ("the FAA will consider as grounds for dismissal ofsuch allegations the successful action bythe airport sponsor to cure any alleged orpotentialpast violation ofapplicable federal obligations, subsequent to FAAreceipt of the allegations and prior to the issuance ofa fmal FAA compliance decision."); see also US. Aerospace, Inc. v. Millington MunicipalAirportAuth., DocketNo. 16-98-06, 1998 WL 1083384, *14 (Director's Determination) (F.A.A. Oct. 20, 1998) (complaint alleging violation ofgrant
assurances based onpurported "exclusiverights" givento incumbent FBO was dismissed under current compliance doctrine because airport authority terminated incumbentFBO'slease and evicted it from airportpriorto Director's determination).

8 1737436.2JCP's first cause ofaction shouldthus be dismissed under the current compliance doctrine on grounds ofboth ripeness and mootness. B. Second Cause OfAction: Alleged Disparate Application OfMinimum Standards 1. This cause ofaction is not ripe JCP's second cause ofaction contends that the County has violated the economic nondiscrimination requirement ofGrant Assurance 22 by allegedly (a) permitting MTJ to operate
an FBO from a location that does not conform to the Airport's Minimum Standards, and (b) not sufficiently investigating the "expertise and qualifications" ofMajestic and MTJ. (Complaint, pp. 43-44,

# n 89-92.) This cause ofaction fails under the current compliance doctrinejust as the first cause ofaction does. Whilethe Complaint alleges thatthe Countyhas "allowed MTJ to immediatelybegin conducting its FBO operations" using a facility that allegedly does not comply withthe Airport's Minimum Standards (Complaint, p. 43, 

## 'I 89 (emphasis added)), there is no allegationthat MTJ is actually providing such services, let alone that JCP has been harmed in any mannerby alleged competition from MTJ. MTJ, ofcourse, is not offering such services nor did it ever offered such services. (SMF, '1'15-6.) The argument that MTJ could, theoretically, offer FBO services from a nonconforming location is insufficient to state a present claim. See NorthwestAirlines, Docket. No. 16-07-04,2008 WL 3976461 at *3-4 & *23-24 (presently existing lease agreement and amendment permitting possiblyunlawful "rent credits" to competitor ofcomplainant was not ripe for resolution where airport authority had not actually applied the rent credits to benefit of competitor); see alsoAshton, DocketNo. 16-02-01,2003 WL 22257715 at *26, n.32 (claim of unlawful exclusivity was "notripe" absent allegations that complainants' interests were "directly and substantially affected" by allegedly unlawful leases).

9 1737436.2The alleged failure to sufficiently investigate the expertise and qualifications ofMajestic andMTJ is similarly problematic. Assuming JCP as an incumbent FBO could even inthe abstracthave standing to complain about an allegedly insufficient investigation ofa new applicant to provide FBO services, 1JCP has not alleged that MTJ is actually providing FBO services or that JCP has beenpresently harmed by the granting ofan FBO to MTJ, let alone that such harm can be attributed to a failure to sufficiently investigate the expertise and qualifications ofMTJ orMajestic. This is again because neitherMTJ norMajestic everprovided FBO services at tl1e Airport. (SMF,

**~~** 3 & 6.) JCP's second cause ofaction shouldthus also be dismissed. 2. This cause ofaction is moot As discussed above in Section II.A.2, evenifthe alleged disparate application of minimum standards to MTJ and failure to "evaluate the expertise and qualifications ofboth Majestic and MTJ" (Complaint, p. 43,

**~~** 89-90) couldbe deemed to have constituted a present violation ofGrant Assurance 22, this cause ofaction is still moot. Majestic's rights to provide FBO services at the Airport were terminated as ofFebruary 17, 2015 and MTJ's rights to provide FBO services were terminatedpriorto August 19,2015. (SMF,

**~~** 2 & 5.) And the Countyhas

no presentrelationship with any party otherthan JCP to provide FBO services. (SMF,

**~** 11.) As neither Majestic nor MTJhave any rights to provide FBO services at the Airport, the claim of

1While JCP alleges that its expertise and qualifications were investigated at thetime it soughtto become an FBO at the Airport (Complaint, p. 44,

**~** 91), it does not allege fuat it was inconvenienced or required to take any action to bring itselfinto compliance so as to be awarded FBO status. Parties generally do nothave standing to challenge otherwise lawful competition unless the statutory scheme suedunder "reflects a legislative purpose to protect a competitive interest.
..." Hardin v. Kentucky Utils. Co., 390 U.S. 1, 7 (1968). As GrantAssurance 23 prohibits "exclusive rights" relationships, an incumbentFBO should nothave standingto challenge an allegedly insufficient investigation ofqualifications ofa new FBO entrant so long as there is no allegation that the incumbent FBO had its financial interests in some manner impaired orwas otherwise prejudicedby the earlier investigation ofitself.
10 1737436.2alleged discrimination is moot. 

### See Aero Ways, DocketNo. 16-09-12, 2010 WL 3826304 at *29-30; 

### see also US. Aerospace, Docket No. 16-98-06,1998 WL 1083384 at *14. JCP's second cause ofaction should thus be dismissed underthe current compliance doctrine on grounds ofbothripeness and mootness. C. Third Cause OfAction: Alleged Failure To Follow RFP Process 1. This cause ofaction is not ripe JCP's third cause ofaction contends thatthe County violated both Grant Assurance 22, concerning economic nondiscrimination, and Grant Assurance 24, concerning fee and rental structures, by allegedly not complying withits ownprocedures for requests for proposals ("RFP"). (Complaint, pp. 44-47,**~~** 93-98.) Again, JCP, the incumbent FBO, does not claim that the alleged violations operated to JCP's disadvantage, but rather that they unfairly benefitted MTJ as a potential newFBO. (Complaint, pp. 45-46,**~~** 95-97.) This cause ofaction thus once
more runs afoul ofthe doctrine ofcurrent compliance

- there is no allegation thatMTJ is actually presentlyproviding FBO services orthatJCP has actually beenharmedby alleged irregularities inthe RFP process. Once more, this is because MTJ has never provided FBO services at the Airport. (SMF,**~** 6.) JCP's unfounded apprehension that MTJ might someday beginto compete against it does not give a present basis for finding a violation ofgrant
assurances. 

### CfJimsairAviation Servs., Inc. v. San Diego Reg'lAirportAuth., Docket No. 16- 06-08,2007 WL 2405821, *15 & *18 (Director's Determination) (F.A.A. Apr. 12, 2007) (incumbentFBO's claims regarding airport policies that could allegedly limit future expansion and business opportunities were barred by current compliance doctrine where FBO hadpresently valid lease and could not show present harm).

11 1737436.22. This cause ofaction is moot Once more as discussed in Section II.A.2 above, even ifthe alleged failure to follow the RFP process in the case ofawarding FBO status to Majestic (and subsequently to MTJ) could be deemed to have violated grant assurances, JCP's action is still moot on that point. Neither Majestic nor MTJ ever actually providedFBO services under their respective FBO agreements and both agreement are terminated. (SMF,**~~** 3 & 6.) Andthe County has no openRFP relating to providing FBO services at the Airport. (SMF,**~** 12.) The question ofalleged irregnlarities in the RFP process described by JCP is thus moot. 

### SeeAero Ways, DocketNo. 16-09-12,2010 WL 3826304 at *29-30; 

### see also US. Aerospace, DocketNo. 16-98-06,1998 WL 1083384 at *14. JCP's third cause ofaction should accordingly be dismissed under the current compliance doctrine on grounds ofbothripeness and mootness. D. Fourth Cause OfAction: Alleged "Undermining" OfCounty's ControlAnd Financial Sustainability OfTheAirport 1. This cause ofaction is not ripe JCP's fourth cause ofaction contends that the County violatedboth Grant Assurance 5, concerning "rights and powers" at the Airport, and Grant Assurance 24, concerning fee and rental structures, by allegedly failing to take into account the "economic ramifications" of inviting a second FBO to provide services to the Airport, agreeing to terms that "would place the Airport in a materially worse financial condition," and otherwise threatening its control and "financial viability" ofthe Airport. (Complaint, pp. 47-49,**~~** 99-104.) This cause ofaction fails inpart under the current compliance doctrine as notbeing ripe. Assuming that JCP's contention that agreeing to allow a second FBO to serve the Airport despite the possibility thatthe Airport can only support a single FB02 could constitute a

2 The expertreports cited by JCP for this propositionreached the conclusion that the Airport could sustain only a single FBO were based on analysis ofthe time period from January 12 1737436.2violation ofgrant assurances in the abstract, JCP's tbeory ofpotential harm to the Airport via any mechanism other thanJCP's own litigation campaignis expressly hypothetical. JCP for example, does not contend that the Airport is currently losing money as a result ofthe MTJFBO Agreement, butrather argues that, 

### if the County was to proceed withperforming under the agreement tbere wouldbe a "net cost" to the Airport ofcertain amounts over a period ofyears in the future. (Complaint, p. 48, ,-r 101.) JCP also contends that, based onthe terms ofthe Majestic FBO Agreement and MTJ FBO Agreement, the County "arguably will have to beartbose costs every time a new operator desires to open an FBO at the Airport." (Complaint, p. 48, ,-r 102 (emphasis added).) As the Directorhas previously recognized, a party is not required to defend itselfin a Part 16 case against theories that it will "arguably" be violation ofgrant assurances in

some sort offuture hypothetical situation. 

### CfJimsairAviation, DocketNo. 16-06-08, 2007 WL 2405821 at *15 & *18 (incumbent FBO not suffering a present injury could not state claimbased

on allegations that airport policies might limit future expansion and business opportunities). 2. This cause ofaction is moot Unlike its otber allegations in the Complaint, JCP's contention thatthere has been litigationrelating to the County' actions (Complaint, p. 49, ,-r 103) at leastrelates to present actions taking place in various fora. However, even ifthose instances oflitigation continue, the underlying issues, as alleged by JCP itself, that gave rise to such litigation have been cured by the termination ofthe MTJ FBO Agreement and the TVP GroundLease or have otherwise already been dismissed in part by the relevant court. (SMF, ,-r,-r 5, 9, 13.) Curing an alleged grant violation eliminates the basis for a Part 16 action. 

### See DrakeAerialEnterprises, Docket No. 16- 09-02, 2010 WL 691303 at *6 ("[T]he FAAwill considerthe successful action bytbe airport to
2006 to April201l, not present conditions. (Complaint, Exh. 

### 0- Expert Report ofPhilip B. Nelson, p. 137 & Expert Report ofGary J. Dorman, p. 7.)
13 1737436.2cure any alleged or potential past violation ofapplicable federal obligationto be grounds for dismissal ofsuch allegations."). While, as JCP notes, the Director has previously stated in dicta that taking actions which "could impose some significant legal and/or financial liability onthe County" may be "evidence that the County has failed to preserve its rights and powers" as required by Grant Assurance 5, JetAwayAviation, Inc. v. Montrose County, DocketNo. 16-08-01, 2009 WL 2136622, *36 (Director's Determination) (F.A.A. July 2, 2009) ("JetAway If'), the mere ongoing existence of litigation against a grant recipient cannot in and ofitselfbe a violation ofgrant assurances because otherwise a party, such JCP, could simplybootstrap a Part 16 cause ofaction into existence byfiling numerous actions and then pointto the existence ofthatlitigation as evidence ofa Part 16 violation. CfExxonMobil Gas Mkt'ng Co. v. F.E.R.C., 297 F.3d 1071, 1088 (D.C. Cir. 2002) (party could not "bootstrap" itselfinto Federal Energy Regulatory Commission ("PERC")jurisdiction simply by claimingthat a particular facility was subject to PERC jurisdictionwithoutregard to whether PERC authorizing statutes actually made facility subjectto PERCjurisdiction). As the actual circumstances that are alleged to have beenthe violation ofa grant assurance have been eliminated (SMF, -,r-,r 2, 5, 9), the merepersistence oflitigationthat
arose from the alleged violation should notbe considered as a basis for a cause ofaction under Part 16. JCP's fourth cause ofaction should thus be dismissed under the cunent compliance doctrine on grounds ofboth ripeness and mootness. E. Fifth Cause OfAction: Alleged "Reversal OfPosition" On The Off-Airport Site 1. This cause ofaction is not ripe JCP's fifth cause ofaction contends in a conclusory fashion that the County violated Grant Assurance 5 because it "radically reversed its priorposition" regarding the leasing and 14 1737436.2subleasing ofthe so-called "JetAway Site." (Complaint, p.**50,~** 105.) The premise ofthe claim appears to bethat, because the County and the Directorbothpreviously agreed in the 2009 JetAway IIproceeding that it would be "imprudent" to enter into a lease-sublease arrangement concerningthe property, entering into a lease-sublease arrangement for the same property six years later under substantially different terrns,3 shouldbe deemed prima facie evidence ofa grant
assurance violation. However, JCP again has failed to allege that MTJ is actually providing FBO services from the JetAway Site or to otherwise articulate howJCP is being presentlyharmedby the alleged grant assurance violation. To reiterate, this is because MTJ is not and has not been providing FBO services at the Airport. (SMF,**~~** 5 & 6.) The mere allegation that use ofthe JetAway Site for an FBO six years ago would have been "imprudent" cannot be plausibly read as stating thatthe hypothetical use ofthe same locationtoday for an FBO would automaticallybe a grant assurance violation. Without clear articulation as to how a lease-sublease arrangement for the JetAway Site would actually presentlyjeopardize the integrity ofthe County's rights and powers necessary to perform its obligations under FAA grant agreement, the claim shouldbe dismissed as premature. See DrakeAerial, DocketNo. 16-09-02, 2010 WL 691303 at *18. 2. This cause ofaction is moot The entire basis for the fifth cause ofaction is the agreement to "lease and subleasethe JetAway Site for the purpose ofallowing MTJ to use that property for FBO operations
...." (Complaint, p.**50,~** 105.) As alleged in the Complaint, the agreement that concerned the lease ofthe JetAway Site was the TVP Lease. (Complaint, p. 5,**~** 8(b).) However, as ofSeptember 1, 2015, the TVP Lease has beenterminated and no amounts were paid to TVP under the TVP
3 Compare JetAway II, 2009 WL 2136622 at *35-36 (explaining JetAway lease proposal and concluding "it appears that the County has determined that itis imprudent for it to proceed with such a scenario, choosing, instead to reasonably say 'no' to this specific proposal
....") (emphasis added) with Complaint, pp. 27-29,**~~52-55** (describing terms ofTVP Lease and related agreements).
15 1737436.2Lease. (SMF, 

### '\l'j[ 9 & 10.) Thus, evenifthe TVP Lease could somehowhave been deemed to constitute a violation ofGrant Assurance despite the absence ofany alleged presentFBO activity

or harm to JCP, the violation has been cured and there is no basis for a claim underPart 16. See DrakeAerialEnterprises, DocketNo. 16-09-02, 2010 WL 691303 at *6 ("[T]he FAA will consider the successful action by the airport to cure any alleged orpotential pastviolation of applicable federal obligation to be grounds for dismissal ofsuch allegations."). JCP's fifth cause ofaction shouldthus be dismissed under the current compliance doctrine on grounds ofbothripeness and mootness. F. Sixth Cause OfAction: Alleged "Lease-Leaseback" OfOff-Airport Land 1. This cause ofaction is not ripe JCP's sixth cause ofaction is effectively an elaboration ofits fifth cause ofaction inthat it likewise concerns the alleged lease-leaseback arrangement for the JetAway Site under the TVP Lease and the MTJ FBO Agreement, which JCP contends violates Grant Assurance 5 and Grant Assurance 24. (Complaint, pp. 51-54, '1!'1!109-115.) JCP first argues that, because the Director concluded inJetAway IIthat the County could properly reject a particular lease-leaseback scheme without violating the non-exclusivity requirements ofGrant Assurance 23 based in part on concerns about possible litigation and other legal complications that would implicate Grant Assurance 5, see JetAwayII, 2009 WL 2136622 at *33-41, entering into a lease-leaseback agreement now should be considered a violation of Grant Assurance 5. (Complaint, pp. 51-52 & 54, '1!'1!109, 115.) However, the mere fact that a grant recipient mayhave hadjustifiable concerns in the pastrelating to Grant Assurance 5 that caused itto decline to enter into one form ofanagreement cannot, in and ofitself, meanthat entering into a similar, but materially different, agreement several years later, constitutes a presumptive violation ofGrant Assurance 5. This wouldbe anexceptionally aggressive

16 1737436.2application ofthe doctrine ofoffensive collateral estoppel, and would be contrary to the principle that offensive collateral estoppel should notbe applied where the issue was not "actually and necessarily determined" by the tribunal in the first proceeding and where the partyto be estopped "had no incentiveto defend vigorously" the issue in the first action. See Jack FaucettAssocs., Inc. v. A.T & T Co., 744 F.2d 118, 125-26 (D.C. Cir. 1984). The issues being defended by the County inJetAwayIIarose from demands by JetAway to be given FBO status atthe Airport. See JetAway II, 2009 WL 2136622 at *19-45. Whether a lease-leaseback arrangement ofthe sort at issue in this case would violate Grant Assurance 5 was not a question necessarily determined by the Director as part ofthat decision, nor did the Countyhave any incentive to litigate that issue as it did not form part ofthe basis for JetAway's claims inthe earlierproceeding. To try to
overcomethe weakness ofthis position, JCP raises four further arguments with regard to the lease-leaseback arrangement. JCP next argues that, becausethe JetAway Site is allegedly subjectto a restrictive covenantprohibitingthe sale ofaviation fuel, it would make anFBO onthe site unable to generate income through fuel sales and further alleges that the County is subject to a lawsuit over the alleged infraction ofthe restrictive covenant. (Complaint, p. 52, -,r 111.) However, the Colorado State Court Judge hearing JCP's lawsuit against the County has already determined that JCP lacks standing to enforce the restrictive covenant. (SMF, -,r 15.) JCP does not allege that any other party is presently attempting to enforce the covenant or is likely to try to enforce it in the foreseeable future. Thus this alleged violation is notripe for resolution. CfJimsair Aviation, Docket No. 16-06-08,2007 WL 2405821 at *15 & *18. JCP further argues that, because underthe terms ofthe TVP Lease, the Countycould not modifY existing improvements onthe JetAway Site without approval from TVP, the County "is unable to ensure protection ofthe [Airport Operational Areas ("AOA")] and other critical

17 1737436.2Airport operational issues." (Complaint, p. 52, -,r 112.) This disregards the fact that the TVP Lease contains a specific provisiontitled "F.A.A. Lease Requirements" that grants the County broad authority overthe JetAway Site relating to safety issues, including the right to unilaterally
remove any structures that may interfere with aviation. (Complaint, Exh. F, Art. XIII.) The TVP Lease also expressly incorporates the MTJ FBO Agreement into its terms and, inthe event of any conflictbetween the two documents, the TVP Lease gives primacy to the MTJ FBO Agreement. (Complaint, Exh, F, Art. II.,§§ A-C & Art. III,§ A.) The MTJ FBO Agreement in turn imposed numerous requirements relating to compliance with minimum standards, airport design standards, protection ofthe AOA, and enforcement ofF.A.A. regulations and other applicable statutes and regulations. (Complaint, Exh. E, §§ 2.02, 2.04, 3.01, 3.03(t), 3.13, 4.06.) JCP fails to allege howthese terms are insufficientto address the alleged restraints imposed by the TVP Lease and also fails to allege that TVP has actually refused to agree to any proposed alterations ormodifications onthe JetAway Site. The mere possibilitythat a term in a lease agreement would, ifenforced, violate a grant assurance does not give rise to a present claim under Part 16. See NorthwestAirlines, Docket. No. 16-07-04,2008 WL 3976461 at *3-4 & *23- 24 (presently existing lease agreement and amendmentpermitting possibly tmlawful "rent credits" to competitor ofcomplainant was not ripe for resolution where airport authority had not actually applied the rent credits to benefit ofcompetitor). The same issue ofripeness applies to JCP's argument that the County's optionto purchase the JetAway Site is a grant assurance violation. (Complaint, p. 53, -,r 113.) The FAA does not categorically prohibit the use ofoption agreements as a mechanismto acquire land. See Report to Congress on Potential for Use of LandOptions in Federally FundedAirportProjects, part ofReport of the Secretary of Transportation to the UnitedStates Congress Pursuant to Section 127 of the AirportandAirway Safety, Capacity, Noise Improvement, andIntermodal
18 1737436.2TransportationActof 1992 (Public Law 102-581), p. 17 (noting that there are "no apparent legislative provisions that would preclude orrestrict" use ofoption agreements to acquire real property for airport development) (F.A.A. Dec. 1997), available at https://www.faa.gov/airports/aip/media/land-options.pdf(last visited Sept. 8, 2015). JCP does not identify anypresent obstacle tothe County exercising the option agreement. Accordingly this issue is also raised prematurely. See NorthwestAirlines, Docket. No. 16-07-04,2008 WL 3976461 at *3-4 & *23-24 (presently existing lease agreement and amendmentpermitting possibly unlawful "rent credits" to competitor ofcomplainant was not ripe for resolution where airport authority had not actually applied the rent credits to benefit ofcompetitor). Finally, JCP argues that the senior Deed ofTrustheld by Wells Fargo onthe JetAway Site "presents a significant threat to Respondent's control ofthe JetAway Site" because ofthe risk that Wells Fargo could become owner ofthe JetAway Site inthe event ofa default bythe presentunderlying property owner, One Creative Place, LLC. (Complaint, p. 53,'\[ 114.) This disregards the fact that, under Colorado law, foreclosure onreal property by a senior lienholder extinguishes alljuniorleases as a matter oflaw. See FirstInterstate Bankv. Tanktech, Inc., 864 P.2d 116, 119 (Colo. 1993) (citing Colo. Rev. Stat. 38-39-110 (1982), now codified at Colo. Rev. Stat.§ 38-38-501). Thus, inthe hypothetical event that One Creative Place, LLC was to default
on its obligations to Wells Fargo and Wells Fargo foreclosed on the JetAway Site, the TVP Lease would be automatically terminated by operation oflaw. The termination ofthe TVP Lease would in turn affect Section 3.02 ofthe MTJ FBO Agreement, which expressly required that MTJ was to only operate as an FBO from "property properly leased from the County." (Complaint, Exh, E, § 3.02.) MTJ would then have needed to either relocate any services it was performing at the JetAway Site to Airport property or otherwise discontinue those services. Ifit did not do so in a timely manner, the County couldterminate the MTJ FBO Agreement.

19 1737436.2(Complaint, Exh. E, § 7.02.) However, since JCP has not actually shown that there is any risk of
a default by One Creative Place, LLC onits obligations under the Deed ofTrust, the issue is premature for purposes ofa Part 16 proceeding. DrakeAerialEnterprises, LLC v. City of Cleveland, DocketNo. 16-09-02,2010 WL 691303 at *18. Furthermore, as discussed below, the matter has also beenrendered mootby the termination ofboththe MTJ FBO Agreement and the TVP Lease. 2. This cause ofaction is moot The entire basis for the sixth cause ofaction is the alleged interaction betweenthe MT J FBO Agreement and the TVP Lease. (Complaint, pp. 52-54,

# n 111-115.) As both agreements have now bothbeenterminated (SMF,

**~~** 5 & 9), evenifJCP hadraised presently valid concerns about the agreements, the issue is moot. See DrakeAerialEnterprises, Docket No. 16-09-02, 2010 WL 691303 at *6 ("[T]he FAA will consider the successful action by the airport to cure any alleged orpotential past violation ofapplicable federal obligation to be grounds for dismissal ofsuch allegations."). JCP's sixth cause ofaction should thus be dismissed under the current compliance doctrine on grounds ofbothripeness and mootness. CONCLUSION JCP's Complaint, while lengthy, is fundamentally lackingin substance. The alleged violations it complains ofrest onhypotheticals, contingent possibilities, and occasional pure speculation. These are not a properbasis for bringing a Part 16 complaint. That said, while the County believes that JCP's causes ofaction would all have been dismissed as unripe, the causes ofaction are also all now moot as a result ofthe County's termination ofthe agreements that JCP complains of. The entire action should be dismissed by the Director.

20 1737436.2Respectfully submitted this 16th day ofSeptember, 2015. BRYAN CAVE LLP 

# 7,2

.?
.



### I

. (Bo ee J. Musgrave, Colo. Reg.

Stephen D. Rynerson, Colo.**R~g.** 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203-4541 Special Counsel to the Board of County Commissioners of the County ofMontrose, Colorado Montrose County Attorney's Office Carolyn Clawson, Colo. Reg. # 19717 County Attorney 161 S. Townsend Ave. Montrose, CO 81401

CERTIFICATE OF SERVICE I hereby certify that on this 16th day ofSeptember, 2015, a true and correct copy ofthe foregoing document was served upon the following persons atthe following address viaFederal Express: Office ofthe ChiefCounsel Attention: FAA Part 16 Airport Proceedings Docket, AGC-610 Federal Aviation Administration 800 Independence Ave., S.W. Washington, D.C. 20591 (1 original and 3 copies) Leonard D. Kirsh Shelley A. Ewalt McBreen & Kopko 500 North Broadway Jericho, New York 11759 Complainant's Counsel (1 copy)

1737436.2 21FEDERAL AVIATION ADMINISTRATION DEPARTMENT OF TRANSPORTATION
In re the Complaint of: JET CENTER PARTNERS, LLC Complainant-againstCOUNTY OF MONTROSE, COLORADO Respondent. Pursuant to Part 16 ofthe Federal Aviation Regulations Docket No. 16-15-11

AFFIDAVIT OF LLOYD ARNOLD STATE OF COLORADO ) ) ss. CITY AND COUNTY OF MONTROSE ) I, Lloyd Arnold, first being duly sworn, state as follows: I. I am over the age ofeighteen years. The statements contained in this Affidavit are personally known to me and are true. I am competent to testify about any ofthe matters containedherein. 2. I am the Director ofAviation for the Montrose Regional Airport for Montrose County, Colorado ("the County''). I have held that position since December I0, 2007. In that position, I am responsible for all aspects ofmanaging the Airport, including ensuring that the Airport operates in a safe and efficient manner, and that it complies with all federal, state and local statutes, rules and regulations. As Director ofAviation I assist in negotiating contracts with vendors at the Airport, and personallyparticipated in the negotiating ofcontracts with Majestic LLC, MTJ FBO Partners and Telluride Venture Partners. 3. On July 2, 2014, the County entered into an agreement ("Majestic FBO Agreement") with Majestic Skies, LLC ("Majestic") to provide FBO services at the Airport. A true and accurate copy ofthe Majestic FBO Agreement is attached to the Complaint as Exhibit 

## c. 4. On February 17, 2015, Majestic's rights under the Majestic FBO Agreement were automatically terminated via the agreed substitution ofMTJ FBO Partners, LLC ("MTJ") for Majestic pursuant to the Amended FixedBase Operator Agreement ("MTJ FBO Agreement")

HRODEN\1737078.1

### entered into between the County and MTJ. A true and accurate copy ofthe MTJ FBO Agreement is attached to the Complaint as Exhibit E. 5. At no point prior to the termination ofMajestic's rights under the Majestic FBO Agreement on February 17, 2015 did Majestic ever offer FBO services to customers at the Airport. 6. At no point prior to the termination ofMajestic's rights under the Majestic FBO Agreement did the County pay any amounts to Majestic under the terms ofthat Agreement. 7. Prior to August 19, 2015, the County terminated MTJ's rights under the MTJ FBO Agreement. A true and accurate copy ofthe termination letter sent on the County's behalf by its counsel to MTJ enumerating the bases for the termination is attached as Exhibit I to this Affidavit. 8. At no point prior to the termination ofMTJ's rights under the MTJ FBO Agreement did MTJ ever offer FBO services to customers at the Airport. 9. At no point prior to the termination ofMTJ's rights under the MTJ FBO Agreement did the County pay any amounts to MTJ under the terms ofthat Agreement. 10. On February 17, 2105, the County entered into the Montrose Regional Airport Ground Lease ("TVP Lease") with Telluride Venture Partners, LLC ("TVP"). A true and accurate copy ofthe TVP Lease is attached to the Complaint as Exhibit F. II. On September 1, 2015, the County terminated the TVP Lease. A true and accurate copy ofthe termination letter sent on the County's behalfby its counsel to TVP enumerating the bases for the termination is attached as Exhibit 2 to this Affidavit. 12. At no point prior to the termination ofthe TVP Lease did the County pay any amounts in rent or other consideration to TVP. 13. As ofthe date ofthis Affidavit, the County is not a party to any other FBO agreements other than its agreement with JCP and the County has no other existing business relationship with any party other than JCP for providing FBO services at the Airport. 14. As ofthe date ofthis Affidavit, the County does not have any Requests for Proposals open relating to provisioning ofFBO services at the Airport, nor is the County actively seeking another FBO provider. 15. On July 9, 2015, the Colorado State District Court for Montrose County in Jet Center Partners, LLCv. MTJFBO Partners, LLC, 

### Case No. 2015CV30057, dismissed JCP's claim to enforce the restrictive covenant in the 2001 Agreement Authorizing Off-Airport Operations at Montrose Regional Airport ("OA Agreement"). A true and accurate copy ofthe order dismissing JCP's claim to enforce the restrictive covenant is attached as Exhibit 3 to this Affidavit. FURTHERAFFIANT SAYETH NAUGHT. 2 HRODEN\1737078.1Dated this 16th day ofSeptember, 2015

# ~-ii# SUBSCRIBED and SWORN to before me this 16th day ofSeptember, 2015, by

My commission expires: 

## ""3· Lf · 

# \£5

3 HRODEN\1737078.1August 19,2015

VIA U.S. MAIL AND ELECTRONIC MAIL Michael B. Manes Michael B. Manes P.A. 950 S. Pine Island Rd., Suite A-150 Plantation, FL 33324 michael@maneslegal.com Thomas J. Byrne Byrne, Kiely & White, LLP 1120 Lincoln Street, Suite 1300 Denver, CO 80203 tbvrne@bkwlaw.com MTJ FBO Partners, LLC I Creative Place Montrose, Colorado 81401 BobbeeJ. Musgrave Direct: 303-866-0386 bobber

**musgr~ve@hrvancave** com

Re: The MTJ FBO Amended Fixed Base OperatorAgreement ("FBO Agreement") Dear Gentlemen: I will not repeat what was stated in my July 7, 2015, July 24, 2015 or my August 7, 2015 letters. However, I will succinctly summarize the County's position:

• SinceJuly 7, 2015 neither ofyou have complied with the County's demand that you provide further assurances per Sections 2.05 and 10.14 ofthe FBO Agreement regarding the owners ofeach entity that comprises MTJ FBO, who the mangers ofeach entityis and who is responsible for the day-to-day operations ofeach entity.

• The Certificate ofInsurance provided by Telluride Venture Partners (TVP) does not complywith MTJ FBO's obligations under the FBO Agreement.

• Per Section 8.04, M1J FBO was required to provide its Certificate ofinsurance within ten (10) days ofthe execution ofthe February 17,2015 FBO Agreement.Michael B. Manes Thomas J. Byrne MTJ FBO Partners, LLC August 19, 2015 Page 2

• MTJ's failure to provide the Certificate oflnsurance as required creates immediate and obvious exposure to the County should there be a fire, explosion, or other devastating occurrence at the locations that have been leased by M1J FBO. Thatis why the FBO Agreement specifically states that the failure to provide the Certificate ofinsurance results in the rescission or termination ofthe FBO Agreement. Because ofthe consequences of this breach, there is no thirty day right to cure.
• The County has already provided written notice ofMTJ's breach ofthe obligation to provide the required Certificate oflnsurance, and will not undertake the responsibility of providing any additional notices. It is not the County's job to "baby-sit" or "handhold" your clients regarding their obligations under the FBO Agreement. They knowwhat they arc required to do.

• The current MTJ FBO Agreement is terminated. Your clients' conduct in refusing to provide the requested information and to comply with the terms of the FBO Agreement is giving the Commissioners significant pause as to whether it is prudent to enter into any business relationship with any ofyour clients in the future. I say that not as a threat but to underscore for you just how frustrated the Commissioners are with your clients' lack oftransparency, responsiveness and candor. Sincerely, s/Bobbee J Musgrave Bobbee J. MusgraveSeptember I, 2015

VIA ELECTRONIC MAIL AND U.S. MAIL Thomas J. Byrne Byrne, Kiely & White, LLP 1120 Lincoln Street, Suite 1300 Denver, CO 80203 tbyrne@bkwlaw.com MTJ FBO Partners, LLC I Creative Place Montrose, Colorado 81401
Re: Montrose Regional Airport Ground Lease Dear Mr. Byrne and Telluride Venture Partners, LLC: BobbceJ. Ml!Sgrave Parmer Direct:

**303~866.0386** bqblwe rnusvraveC(i)l>rvar!cave.nltn

This is to confirm that pursuant to Article III D. the Montrose Regional Airport Ground Lease entered into between Montrose County, Colorado and Telluride Venture Partners ("TVP") dated February 17, 2015 (the "Ground Lease") has been terminated and the property reverted back to Telluride Venture Partners. Article III D. ofthe Ground Lease provides that upon the termination of the MTJ Amended FBO Agreement, the leased premises revert to TVP. Since the County has terminated the MTJ Amended FBO Agreement, that provision ofArticle III D. is triggered and the Ground Lease is terminated. Sincerely, s/Bobbee J Musgrave Bobbee

## J. Musgrave
cc: Teresa Williams Carolyn Clawson l'vlichael Manes

1735204.2DISTRICT COURT, MONTROSE COUNTY, COLORADO Court Address: DATE FILED: july 9, 2015 1200 N. Grand Avenue CASE NUMBER: 2015CV 0057 Montrose, CO 81401

A COURT USE ONLY A Plaintiff: JET CENTER PARTNERS, LLC, a Colorado limited liability company v. Defendants: MTJ FBO PARTNERS, LLC, a Colorado limited liability company; TELLURIDE Case Number: 2015CV30057 VENTURE PARTNERS, a Colorado limited liability company; and THE BOARD OF Division: COUNTY COMMISSIONERS OF THE COUNTY OF MONTROSE, COLORADO ORDER ON PENDING MOTIONS

This is an action that was commenced April17, 2015. A motion for preliminary injunction was filed by Plaintiff on May 14, 2015. Motions to dismiss were filed May 19, 2015 and June 9, 2015. Thereafter, a motion to strike or stay the preliminary injunction was filed June 15, 2015. All motions have now been fully briefed. This proceeding arises out of disputes concerning the provision of services at the Montrose County Regional Airport. These relate to the sale of aviation fuel and other services referred to as "Fixed Base Operator Services." Plaintiff seeks to enforce a restrictive covenant in the 2001 Agreement Authorizing Off-Airport Operations at Montrose Regional Airport ("OA Agreement"). Plaintiff further asserts a breach of contract claim against Montrose County based on its lease with Montrose County, 2005 Montrose County Regional Airport Fixed Base Operator Agreement ("FBO Agreement").Plaintiff, in the First Amended Complaint, asserts claims for breach of contract and for declaratory and injunctive relief with respect to the OA Agreement. The First Amended Complaint, at paragraph 11, references and quotes paragraph 3 (g) of the OA Agreement. Paragraph 26 ofthe First Amended Complaint asserts that as a lessee from the County, one of the signatories to the OA Agreement, it benefits from the OA Agreement and is, therefore, entitled to enforce the restrictive covenant. These parties, or their predecessor in interest, have engaged in protracted litigation both at the trial court level in Montrose District Court, Case 2006CV18 and the Colorado Court of Appeals, 08CA2341. The Motions to dismiss argue that claim preclusion, issue preclusion and lack of standing based on the OA Agreement, all compel dismissal. Montrose County also argues that the breach of contract claim fails, based on the express language of the OA Agreement as contrasted with the Agreement it entered with the other Defendants on airport property. Plaintiff argues that claim and issue preclusion do not apply, that they are third party beneficiaries of the OA Agreement such that they are entitled to enforce the restrictive covenant and that they have adequately demonstrated standing. As to the breach of contract claim against Montrose County, they argue that they have adequately plead the claim and the language of the FOB Agreement is ambiguous such that extrinsic evidence is required. The Court notes that same paragraph ofthe OA Agreement, 3 (g), is quoted at paragraph 14 ofthe 2006CV18 complaint in intervention that is quoted in paragraph 11 ofthe Frist Amended Complaint in this proceeding. Judge Schum concluded that Plaintiff lacked standing. See page 29 of the June 30, 2008 order, stating as follows: JCP cannot bring a claim againstJetaway for damages for violation ofthe OAA because the OAA expresslyprohibits a third partybeneficiary claim. Judge Taubman for the Court of Appeals drew a similar conclusion stating:To have standing, a party must show that it suffered an injury in fact to 

### a legallyprotected interest. Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P. 2d 535, 539 (1977). Because standing presents 

### a question ofthe trial court'sjurisdiction, challenges to standing may be made at any time, including for the first time on appeal. Ajay Sports, Inc. v. Casazza, 1 P. 3d267, 272 (Colo. App/2000); Bennett v. Bd of Trustees, 782 P. 2d 1214, 1216 (Colo. App. 1989). JCP's contentions all depend on its ability to enforce provisions of the OAA. However, we agree with JetAway that JCP lacks standing to bring an action based on the OAA because it was neither

### a signatory to noran intended beneficiary ofthe OAA. Significantly, the OAA expressly excludes third-party beneficiaries. Section 8 ofthe OAA, entitled "No Third Party Beneficiaries," provides: It is expressly understood and agreed that enforcement of the terms and conditions ofthis Agreement and all rights and actions relating to such enforcement shall be strictly reserved to the county and the Park Owners, and nothing containedin this Agreement shall give orallow any claim orright ofaction by any otherthirdperson to such Agreement. It is the express intention ofthe county and the Park Owners that anyperson otherthan the county or the Park Owners receiving services orbenefits underthis Agreement shall be deemed to be an incidental beneficiary only. Thus, this language expresslyprovides thatparties, such as JCP, who are not signatories to the OAA are not intended third-party beneficiaries ofthat agreement. Further, when 

### a party benefits indirectly andincidentally from 

### a contract, it may not enforce any provisions arising under that contract. See Bloom v. Nat'/ Collegiate AthleticAss'n, 93 P. 3d 621, 623 (Colo. App. 2004). Thus, undersection 8, JCP is an incidental beneficiary and therefore lacks standing to raise the above claims concerning the OAA. The tests for issue preclusion are: 1. An identical issue; 2. Prior litigation by the parties or those in privity with the parties; 3. A final judgment, and 4. A full and fair opportunity to litigate the issue. See e.g. Bristol Bay Productions, L.L.C. v. Lampack, 313 P. 3d 674 (Colo. App.). The Colorado Supreme Court stated in In re Tonko, 154 P. 3d 397 (Colo. 2007) at p. 405:Issue preclusion4 bars relitigation ofa legal orfactual matter already decided in a priorproceeding. SunnyAcres Villa. Inc. v. Cooper, 25 P.3d 44, 47 (Colo.2001). Issue preclusion is a judicially created, equitable doctrine intended to "relieve parties of multiple lawsuits, conservejudicial resources, andpromote reliance on thejudicial system bypreventing inconsistent decisions." !d. See also McNichols v. Elk Dance Colo., LLC, 139 P.3d 660, 667 (Colo.2006). Issue preclusion bars relitigation ofan issue when: (1) the issue sought to be precluded is identical to an issue actuallyand necessarily determined in a priorproceeding; (2) the partyagainst whom estoppel is asserted was a party to oris in privity with a party to the priorproceeding; (3) there was a finaljudgment on the merits in the priorproceeding; and (4) the partyagainst whom the doctrine is assertedhada full and fairopportunity to litigate the issue in the priorproceeding. SunnyAcres Villa, Inc., 25 P.3d at 47 (citing Bebo Constr. Co., 990 P.2d at 85).
Issue preclusion applies on this very issue of standing based on the holding of the Court ofAppeals. The Court finds there is a final judgment, it concerns the same OA Agreement, but under a different theory, seeks the same relief (preclusion of FOB Services by Defendants) and there is identity ofthe parties or parties are in privity with prior parties, in this instance MTJ and TVP which are in privity to parties. The Court is further persuaded that claim preclusion applies in this fact circumstance as well. The tests for claim preclusion are: 1. Finality ofthe first judgment; 2. Identity ofthe subject matter; 3. Identity ofthe claims for relief; and 4. Identity or privity between parties to the actions. See generally Argus Real Estate, Inc. v. E-470 Public HighwayAuthority, 109 P. 3d 604 (Colo. 2005). This has been more recently articulated in Loveland Easement Group L.L.C. v.Grommon Farms, Inc., 318 P. 3d 6 (Colo. App. 2012) 2012 COA 22, which states at paragraphs 14and15: Claim preclusion (formerly known as resjudicata2) bars "relitigation ofmatters that have alreadybeen decided[in a prior proceeding] as well as matters that could have been raised in a priorproceeding but were not."Argus Real Estate, 109 P. 3d at 608; accord Timm v. Prudential ins. Co. ofAm., 259 P.3d 521, 527 (Colo.App.2011). A claim in a secondjudicialproceeding is precludedbya previousjudgment where there is (1) finality ofthe firstjudgment, (2) identity ofsubject matter, (3) identity ofclaims for relief, and (4) identity oforprivitybetween the parties to the two actions. Burlington Ditch Reservoir& Land Co. v. Metro WastewaterReclamation Dist., 256 P.3d 645, 668 (Colo.2011). We consideronly the third factorhere. 1. Identity ofClaims for Relief In determining whether there is identity ofclaims forrelief, the focus ofthe inquiry is " 'the injury for which reliefis demanded,

... not
... the legal theory on which the person asserting the claim relies.'"Jackson v. Am. Family Mut. Ins. Co., 258 P.3d 328, 331 (Colo.App.2011) (ultimately quoting Farmers High Line Canal & ReservoirCo. v. CityofGolden, 975 P.2d 189, 199 (Colo. 1999)); accordArgus Real Estate, 109 P.3d at 609. Claim preclusion bars litigation ofclaims thatpreviously were ormight have been decided only "ifthe claims are tied by the same injury."Argus Real Estate, 109 P.3d at 609. Claims are tied by the same injury where they concern " 'all oranypart ofthe transaction, orseries of connected transactions, out ofwhich the [original] action arose.' " /d. (quoting Restatement (Second) ofJudgments§ 24(1) (1982)). In determining what factualgrouping constitutes a transaction, the court considers " 'whether the facts are related in time, space, origin, ormotivation, whether they form a convenient trial unit, and whethertheir treatment as 

### a unit conforms to the parties' expectations.'"Salazar v. State Farm Mut. Auto. Ins. Co., 148 P.3d 278, 281 (Colo.App.2006) (ultimately quoting Restatement (Second) ofJudgments§ 24(2)); accord Camus, 151 P.3d at 680. Under essentially the same analysis, the Court concludes that the tests for claim preclusion have also been met, final judgment, subject matter, claims -the Court recognizes that Plaintiff is arguing breach of a restrictive covenant rather than the theories previously raised but all center on the same OA Agreement- and same or related parties. Plaintiff asserts that Defendant Montrose County has breached the contract, specifically the FBO Agreement. Defendant argues this is now on airport property. The Court agrees withPlaintiff that they have adequately asserted a claim. Further, the Court agrees that there is a genuine dispute as to the interpretation of§ 4.01 of the FBO Agreement. The motion to dismiss that claim is denied. Plaintiff's amended complaint is dismissed as to the declarative and injunctive relief claims asserted against Defendants MTJ FBO Partners, LLC ("MTJ") and Telluride Venture Partners, LLC ("TVP"). This dismissal makes moot the motion for a preliminary injunction and that proceeding is vacated. The motion to dismiss the contract claim against Defendant Montrose County is denied. An answer or other responsive pleading shall be filed within 14 days of this order. The request for attorneys' fees is denied. Defendants MTJ and TVP are entitled to recovery of their reasonable costs. They shall have 21 days from the date of this order in which to submit their request for costs. Plaintiff will have 14 days to interpose any objection. In the event of any objection, a status conference will be scheduled to set a hearing on the reasonableness of the costs requested. Dated this gth day of July, 2015.
BY THE COURT:

cc: e-filed to parties of record