FEDERAL AVIATION ADMINISTRATION 

DEPARTMENT OF TRANSPORTATION 

In re the Complaint of: 

JET CENTER PARTNERS, LLC 

Complainant 

-againstCOUNTY OF MONTROSE, COLORADO 

Respondent. 

Docket No. 16-15-11 

RECEIVED 

SEP 1 7 2015 Pursuant to Part 16 of the Federal Aviation 

Regulations PART Hi DOCKETS 

MOTION FOR SUMMARY JUDGMENT 

Respondent County of Montrose, 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 of an answer, and respectfully asks that the Director dismiss the 

Complaint of Jet Center Partners, LLC ("JCP") in its entirety. 

1737436.2 

DESIGNATION OF PERSONS TO RECEIVE SERVICE 

The County designates the following persons to receive service in these 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 of Montrose, Colorado 
Carolyn 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 of Montrose, Colorado 

INTRODUCTION 

In its Complaint, J CP alleges that the County has committed a series of violations of 

grant assurances relating to its efforts to accommodate a second provider of fixed base operation 

("FBO") services at the Montrose Regional Airport ("the Airport"). While none of the alleged 

actions would actually have constituted violations of grant assurances, JCP has failed to allege 

any actual present violations or harm, but instead raises speculative concerns about mere 

potential or contingent future violations with no allegations of present harm to JCP (or any other 

party). Furthermore, the County has already terminated its agreements relating to the potential 

provision ofFBO services by other parties, rendering JCP' s action not just premature, but moot 

as well. JCP's entire Complaint should thus be dismissed pursuant to this agency's doctrine of 

current compliance. 

STANDARD FOR SUMMARY JUDGMENT 

Pursuant to 14 C.P.R.§ 16.26(c)(1), a motion for summary judgment in a Part 16 

proceeding is properly granted when "there is no genuine issue of material fact for adjudication" 

and the facts even "when viewed in the light most favorable to the complainant," fail to establish 

a violation of grant assurances or other grounds for agency action. 

STATEMENT OF MATERIAL FACTS ("SMF") 

1. 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. 

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(Affidavit of Lloyd 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 via the agreed substitution of MTJ FBO Partners, LLC ("MTJ") for 

Majestic pursuant to the Amended Fixed Base Operator Agreement ("MTJ FBO Agreement") 

entered into between the County and MTJ. (Arnold Aff., pp. 1-2, 'If 4; Complaint, Exh. E, pp. 1-

2.) 

3. At no point prior to the termination of Majestic'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. At no point prior to the termination of Majestic's rights under the Majestic FBO 

Agreement did the County pay any amounts to Majestic under the terms of that Agreement. 

(Arnold Aff., p. 2, '1[6.) 

5. Prior to August 19, 2015, the County terminated MTJ' s rights under the MTJ 

FBO Agreement. (Arnold Aff., p. 2, '1[7 & Exh. I -Letter from Bobbee J. Musgrave to Michael 

B. Manes, Thomas J. Byrne, and MTJ FBO Partners, LLC, Aug. 19,2015, pp. 1-2.) 

6. 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. (Arnold Aff., p. 2, 'If 8 .) 

7. 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 of that Agreement. (Arnold 

Aff., p. 2, '1[9.) 

8. On February 17,2105, the County entered 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.) 

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9. On September 1, 2015, the County terminated 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. At no point prior to the termination of the TVP Lease did the County pay any 

amounts in rent or other consideration to TVP. (Arnold Aff., p. 2, '1[12.) 

11. As of the date this Motion is filed, 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. (Arnold 

Aff., p. 2, '1[13.) 

12. As of the date this Motion is filed, the County does not have any Requests for 

Proposals open relating to provisioning of FBO 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 in Jet 

Center Partners, LLC v. MTJ FBO 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"). (Arnold Aff., p. 2, '1[15 & Exhibit 

3- Order on Pending Motions, pp. 2-6, July 9, 2015 in Jet Center Partners, LLC v. MTJ FBO 

Partners, LLC, Case No. 2015CV30057 (Colo. Dist. Ct.- Montrose County).) 

ARGUMENT 

I. A COMPLAINT MUST RELATE To "CURRENT COMPLIANCE" To BE ACTIONABLE 

As the Director has previously explained, the FAA Airport Compliance Program "is 

designed to achieve voluntary compliance with federal obligations accepted by owners and/or 

operators of public-use airports developed with FAA-administered assistance." Drake Aerial 

Enterprises, LLC v. City of Cleveland, Docket No. 16-09-02,2010 WL 691303, *6 (F.A.A. Feb. 

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22, 2010). "Therefore, in addressing allegations of noncompliance, the FAA will make a 

determination as to whether an airport sponsor is currently in compliance with the applicable 

federal obligations." Id (emphasis in original). The doctrine of "current compliance" subsumes 

both the concept of mootness, i.e., alleged past violations that have been cured prior to action by 

the Director, and ripeness, i.e., alleged future or contingent violations that have not taken place 

yet. See id. ("[T]he FAA will consider the successful action by the airport to cure any alleged or 

potential past violation of applicable federal obligation to be grounds for dismissal of such 

allegations."); see also id. at * 18 ("the Complainant's argument here prematurely implies a 

violation of the Respondent's Federal obligations. Under 14 CPR Part 16, the Director cannot 

investigate allegations of an airport sponsor's grant assurance violations if the Complainant has 

not yet been harmed."). Each of the causes of action alleged in the Complaint fails under the 

current compliance doctrine, whether because the cause of action is not ripe, the cause of action 

is moot, or both. 

II. THE ALLEGATIONS OF THE COMPLAINT AND UNDISPUTED EVIDENCE SHOWS THAT 

ALL OF THE CAUSES OF ACTION FAIL UNDER THE CURRENT COMPLIANCE DOCTRINE 

A. First Cause Of Action: Alleged "Financial Inducements" 

1. This cause of action is not ripe 

JCP's first cause of action contends that it and MTJ are similarly situated FBOs and that 

the County has therefore violated Grant Assurance 22 "by providing financial incentives and 

other benefits" to MTJ, and that as a result of such alleged "unjustly discriminatory financial 

terms will lead to a violation of Grant Assurance 23 .... " (Complaint, pp. 35, 41, ~ 35 and 

heading "C.") Accepting for purposes of this Motion only that (a) JCP and MTJ could be 

deemed to be similarly situated FBOs and (b) the "financial incentives and other benefits" 

provided to MTJ could in the abstract be deemed to be "unjustly discriminatory," this cause of 

action still fails under the "current compliance" doctrine as not being ripe. 

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First, with regard to the alleged risk of a violation of Grant Assurance 23, JCP's 

allegations are expressly addressed to a mere future possibility: "The grant of favorable financial 

and other terms 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 

County has actually entered into an agreement providing for an "exclusive right for the use of the 

airport by any person providing or intending to provide, aeronautical services to the public." 

Grant Assurance 23, Airport Sponsor Assurances, p. 12 (F.A.A. Mar. 2014). That a facially nonexclusive FBO agreement could theoretically lead over a prolonged period of competition to a 

single FBO operating at an airport would be a paradigmatic example of"prematurely 

impl[ying]" a breach of a grant assurance. See Drake Aerial, 2010 WL 691303 at * 18. 

Second, while JCP alleges that the County entered into an FBO agreement with MTJ that 

violates the economic nondiscrimination obligation of Grant Assurance 22 (see Complaint, pp. 3-

4, 24, 31, ~~ 6, 44, 63), JCP does not allege that MTJ is actually presently providing (or has 

provided in the past) any FBO services that benefit from the allegedly discriminatory provisions 

of the MTJ FBO agreement, nor has JCP otherwise identified how it is either being presently 

harmed by the agreement or has been harmed in the past. Such allegations are naturally missing 

because, in fact, MTJ has never provided any services under its FBO agreement with the County 

(SMF, ~ 6) and JCP has suffered no harm to date. Furthermore, as JCP is the incumbent FBO at 

the Airport and its FBO agreement long predates the Majestic FBO agreement, the subsequent 

assignment to 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 must be that the subsequent FBO agreement is discriminatory in 

favor ofMTJ, i.e., that MTJ is improperly gaining an advantage over JCP, not that JCP could be 

in an even better position if it was given the same alleged advantages as MTJ. See Aerodynamics 

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of Reading, Inc. v. Reading Regional Airport Aut h., Docket No. 16-00-03, 2000 WL 33149247, 

* 12, * 15-17 (Director's Determination) (F .A.A. Dec. 22, 2000) (non-discrimination requirement 

of Grant Assurance 22 did not require equalizing incumbent FBO's existing lease terms with 

lease terms granted to new FBOs so long as new lease terms clid not have discriminatory effect 

against incumbent FBO) (citing Penobscot Air Servs. Ltd. v. FAA, 164 F.3d 713, 726 (1st Cir. 

1999)). 

Thus, even if the MTJ FBO agreement were presumed to otherwise be valid and 

presently in effect (which, as discussed below, it is not), JCP's first cause of action is premature 

and should be dismissed. See Northwest Airlines, Inc. v. Indianapolis AirportAuth., 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 

permitting possibly unlawful "rent credits" to competitor of complainant, issue was not ripe for 

resolution where airport authority had not actually applied the rent credits to the benefit of the 

competitor); see also Ashton v. City of Concord, Docket No. 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 other parties, claim of tmlawful 

exclusivity was "not ripe" absent allegations that complainants' interests were "directly and 

substantially affected" by the other leases). 

This makes the situation in this case distinguishable from Aircraft Mgmt. Servs., Inc. v. 

Santa Rosa County, Docket No. 16-12-02 (Director's Determination) (F.A.A. Mar. 27, 2015), 

relied on by 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 Aircraft Mgmt., Docket No. 16-12-02, at pp. 9 & 11. Accordingly, the Director found in that 

case that the complainant "describ[ ed] how they were directly and substantially affected" by the 

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"competitive commercial activities" and "clearly argue[ d] a negative economic impact" 

sufficient to support a cause of action for review under Part 16. ld. at p. 18. There are no 

allegations of such present competition in this case, or any current negative economic impact on 

JCP. 

2. This cause of action is moot 

Furthermore, even if the Director were to find that the Complaint alleged a sufficiently 

present violation of Grant Assurances 22 and 23 based on the purported financial incentives 

offered by the County, any basis for enforcement has been mooted. JCP's first cause of action is 

based on the alleged "disparate financial terms" between the 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 Agreement prior to August 19,2015 and the County has no FBO 

agreements in effect with any party other than JCP. (SMF, ~~ 5 & 11.) As the termination of the 

MTJ FBO Agreement necessarily cures any alleged discrimination by the County between JCP 

and MTJ, there is no basis for finding a violation of grant assurances based on the MTJ FBO. 

See Aero Ways, Inc. v. Delaware River & Bay Authority, Docket No. 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 of such allegations the successful action by the airport sponsor to cure any 

alleged or potential past violation of applicable federal obligations, subsequent to FAA receipt of 

the allegations and prior to the issuance of a fmal FAA compliance decision."); see also US. 

Aerospace, Inc. v. Millington Municipal Airport Auth., Docket No. 16-98-06, 1998 WL 1083384, 

* 14 (Director's Determination) (F .A.A. Oct. 20, 1998) (complaint alleging violation of grant 

assurances based on purported "exclusive rights" given to incumbent FBO was dismissed under 

current compliance doctrine because airport authority terminated incumbent FBO's lease and 

evicted it from airport prior to Director's determination). 

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JCP's first cause of action should thus be dismissed under the current compliance 

doctrine on grounds of both ripeness and mootness. 

B. Second Cause Of Action: Alleged Disparate Application Of Minimum 

Standards 

1. This cause of action is not ripe 

JCP's second cause of action contends that the County has violated the economic 

nondiscrimination requirement of Grant 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" of Majestic and MTJ. (Complaint, 

pp. 43-44, n 89-92.) This cause of action fails under the current compliance doctrine just as the 

first cause of action does. 

While the Complaint alleges that the County has "allowed MTJ to immediately begin 

conducting its FBO operations" using a facility that allegedly does not comply with the Airport's 

Minimum Standards (Complaint, p. 43, 'I 89 (emphasis added)), there is no allegation that MTJ is 

actually providing such services, let alone that JCP has been harmed in any manner by alleged 

competition from MTJ. MTJ, of course, 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 Northwest Airlines, Docket. 

No. 16-07-04,2008 WL 3976461 at *3-4 & *23-24 (presently existing lease agreement and 

amendment permitting possibly unlawful "rent credits" to competitor of complainant was not 

ripe for resolution where airport authority had not actually applied the rent credits to benefit of 

competitor); see also Ashton, Docket No. 16-02-01,2003 WL 22257715 at *26, n.32 (claim of 

unlawful exclusivity was "not ripe" absent allegations that complainants' interests were "directly 

and substantially affected" by allegedly unlawful leases). 

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The alleged failure to sufficiently investigate the expertise and qualifications of Majestic 

and MTJ is similarly problematic. Assuming JCP as an incumbent FBO could even in the 

abstract have standing to complain about an allegedly insufficient investigation of a new 

applicant to provide FBO services, 1 J CP has not alleged that MTJ is actually providing FBO 

services or that JCP has been presently harmed by the granting of an FBO to MTJ, let alone that 

such harm can be attributed to a failure to sufficiently investigate the expertise and qualifications 

ofMTJ or Majestic. This is again because neither MTJ nor Majestic ever provided FBO services 

at tl1e Airport. (SMF, ~~ 3 & 6.) JCP's second cause of action should thus also be dismissed. 

2. This cause of action is moot 

As discussed above in Section II.A.2, even if the alleged disparate application of 

minimum standards to MTJ and failure to "evaluate the expertise and qualifications of both 

Majestic and MTJ" (Complaint, p. 43, ~~ 89-90) could be deemed to have constituted a present 

violation of Grant Assurance 22, this cause of action is still moot. Majestic's rights to provide 

FBO services at the Airport were terminated as of February 17, 2015 and MTJ's rights to provide 

FBO services were terminated prior to August 19,2015. (SMF, ~~ 2 & 5.) And the County has 

no present relationship with any party other than JCP to provide FBO services. (SMF, ~ 11.) As 

neither Majestic nor MTJ have any rights to provide FBO services at the Airport, the claim of 

1 While JCP alleges that its expertise and qualifications were investigated at the time it 

sought to 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 itself into compliance so as to be awarded 

FBO status. Parties generally do not have standing to challenge otherwise lawful competition 

unless the statutory scheme sued under "reflects a legislative purpose to protect a competitive 

interest. ... " Hardin v. Kentucky Utils. Co., 390 U.S. 1, 7 (1968). As Grant Assurance 23 

prohibits "exclusive rights" relationships, an incumbent FBO should not have standing to 

challenge an allegedly insufficient investigation of qualifications of a new FBO entrant so long 

as there is no allegation that the incumbent FBO had its financial interests in some manner 

impaired or was otherwise prejudiced by the earlier investigation of itself. 

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alleged discrimination is moot. See Aero Ways, Docket No. 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 of action should thus be dismissed under the current compliance 

doctrine on grounds of both ripeness and mootness. 

C. Third Cause Of Action: Alleged Failure To Follow RFP Process 

1. This cause of action is not ripe 

JCP's third cause of action contends that the County violated both Grant Assurance 22, 

concerning economic nondiscrimination, and Grant Assurance 24, concerning fee and rental 

structures, by allegedly not complying with its own procedures 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 new FBO. (Complaint, pp. 45-46, ~~ 95-97.) This cause of action thus once 

more runs afoul of the doctrine of current compliance - there is no allegation that MTJ is 

actually presently providing FBO services or that JCP has actually been harmed by alleged 

irregularities in the 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 

begin to compete against it does not give a present basis for finding a violation of grant 

assurances. Cf Jimsair Aviation Servs., Inc. v. San Diego Reg'l Airport Auth., Docket No. 16-

06-08,2007 WL 2405821, *15 & *18 (Director's Determination) (F.A.A. Apr. 12, 2007) 

(incumbent FBO's claims regarding airport policies that could allegedly limit future expansion 

and business opportunities were barred by current compliance doctrine where FBO had presently 

valid lease and could not show present harm). 

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2. This cause of action is moot 

Once more as discussed in Section II.A.2 above, even if the alleged failure to follow the 

RFP process in the case of awarding 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 provided FBO services under their respective FBO agreements 

and both agreement are terminated. (SMF, ~~ 3 & 6.) And the County has no open RFP relating 

to providing FBO services at the Airport. (SMF, ~ 12.) The question of alleged irregnlarities in 

the RFP process described by JCP is thus moot. See Aero Ways, Docket No. 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 third cause of action should accordingly be dismissed under the current compliance 

doctrine on grounds of both ripeness and mootness. 

D. Fourth Cause Of Action: Alleged "Undermining" Of County's Control And 

Financial Sustainability Of The Airport 

1. This cause of action is not ripe 

JCP's fourth cause of action contends that the County violated both 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" of the Airport. (Complaint, pp. 47-49, ~~ 99-104.) This cause of action fails 

in part under the current compliance doctrine as not being ripe. 

Assuming that JCP's contention that agreeing to allow a second FBO to serve the Airport 

despite the possibility that the Airport can only support a single FB02 could constitute a 

2 The expert reports cited by JCP for this proposition reached the conclusion that the 

Airport could sustain only a single FBO were based on analysis ofthe time period from January 

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violation of grant assurances in the abstract, JCP's tbeory of potential harm to the Airport via any 

mechanism other than JCP's own litigation campaign is expressly hypothetical. JCP for 

example, does not contend that the Airport is currently losing money as a result of the MTJ FBO 

Agreement, but rather argues that, if the County was to proceed with performing under the 

agreement tbere would be a "net cost" to the Airport of certain amounts over a period of years in 

the future. (Complaint, p. 48, ,-r 101.) JCP also contends that, based on the terms of the Majestic 

FBO Agreement and MTJ FBO Agreement, the County "arguably will have to bear tbose costs 

every time a new operator desires to open an FBO at the Airport." (Complaint, p. 48, ,-r 102 

(emphasis added).) As the Director has previously recognized, a party is not required to defend 

itself in a Part 16 case against theories that it will "arguably" be violation of grant assurances in 

some sort of future hypothetical situation. Cf Jimsair Aviation, Docket No. 16-06-08, 2007 WL 

2405821 at *15 & *18 (incumbent FBO not suffering a present injury could not state claim based 

on allegations that airport policies might limit future expansion and business opportunities). 

2. This cause of action is moot 

Unlike its otber allegations in the Complaint, JCP's contention that there has been 

litigation relating to the County' actions (Complaint, p. 49, ,-r 103) at least relates to present 

actions taking place in various fora. However, even if those instances oflitigation continue, the 

underlying issues, as alleged by JCP itself, that gave rise to such litigation have been cured by 

the termination of the MTJ FBO Agreement and the TVP Ground Lease 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 Drake Aerial Enterprises, Docket No. 16-

09-02, 2010 WL 691303 at *6 ("[T]he FAA will consider the successful action by tbe airport to 

2006 to April201l, not present conditions. (Complaint, Exh. 0- Expert Report of Philip B. 

Nelson, p. 137 & Expert Report of Gary J. Dorman, p. 7.) 

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cure any alleged or potential past violation of applicable federal obligation to be grounds for 

dismissal of such 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 on the County" may be "evidence 

that the County has failed to preserve its rights and powers" as required by Grant Assurance 5, 

JetAway Aviation, Inc. v. Montrose County, Docket No. 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 of itself be a violation of grant assurances 

because otherwise a party, such JCP, could simply bootstrap a Part 16 cause of action into 

existence by filing numerous actions and then point to the existence of that litigation as evidence 

of a Part 16 violation. Cf ExxonMobil Gas Mkt'ng Co. v. F.E.R.C., 297 F.3d 1071, 1088 (D.C. 

Cir. 2002) (party could not "bootstrap" itself into Federal Energy Regulatory Commission 

("PERC") jurisdiction simply by claiming that a particular facility was subject to PERC 

jurisdiction without regard to whether PERC authorizing statutes actually made facility subject to 

PERC jurisdiction). As the actual circumstances that are alleged to have been the violation of a 

grant assurance have been eliminated (SMF, -,r-,r 2, 5, 9), the mere persistence oflitigation that 

arose from the alleged violation should not be considered as a basis for a cause of action under 

Part 16. 

JCP's fourth cause of action should thus be dismissed under the cunent compliance 

doctrine on grounds of both ripeness and mootness. 

E. Fifth Cause Of Action: Alleged "Reversal Of Position" On The Off-Airport 

Site 

1. This cause of action is not ripe 

JCP's fifth cause of action contends in a conclusory fashion that the County violated 

Grant Assurance 5 because it "radically reversed its prior position" regarding the leasing and 

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subleasing of the so-called "JetAway Site." (Complaint, p. 50,~ 105.) The premise of the claim 

appears to be that, because the County and the Director both previously agreed in the 2009 

JetAway II proceeding that it would be "imprudent" to enter into a lease-sublease arrangement 

concerning the property, entering into a lease-sublease arrangement for the same property six 

years later under substantially different terrns,3 should be deemed prima facie evidence of a 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 how JCP is being presently harmed by 

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 of the 

JetAway Site for an FBO six years ago would have been "imprudent" cannot be plausibly read as 

stating that the hypothetical use of the same location today for an FBO would automatically be a 

grant assurance violation. Without clear articulation as to how a lease-sublease arrangement for 

the JetAway Site would actually presently jeopardize the integrity of the County's rights and 

powers necessary to perform its obligations under FAA grant agreement, the claim should be 

dismissed as premature. See Drake Aerial, Docket No. 16-09-02, 2010 WL 691303 at *18. 

2. This cause of action is moot 

The entire basis for the fifth cause of action is the agreement to "lease and sublease the 

JetAway Site for the purpose of allowing MTJ to use that property for FBO operations .... " 

(Complaint, p. 50,~ 105.) As alleged in the Complaint, the agreement that concerned the lease 

of the JetAway Site was the TVP Lease. (Complaint, p. 5, ~ 8(b).) However, as of September 1, 

2015, the TVP Lease has been terminated 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 it is 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). 

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Lease. (SMF, '\l'j[ 9 & 10.) Thus, even if the TVP Lease could somehow have been deemed to 

constitute a violation of Grant Assurance despite the absence of any alleged present FBO activity 

or harm to JCP, the violation has been cured and there is no basis for a claim under Part 16. See 

Drake Aerial Enterprises, 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 or potential past violation of 

applicable federal obligation to be grounds for dismissal of such allegations."). 

JCP's fifth cause of action should thus be dismissed under the current compliance 

doctrine on grounds of both ripeness and mootness. 

F. Sixth Cause Of Action: Alleged "Lease-Leaseback" Of Off-Airport Land 

1. This cause of action is not ripe 

JCP's sixth cause of action is effectively an elaboration of its fifth cause of action in that 

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 in JetAway II that the County could 

properly reject a particular lease-leaseback scheme without violating the non-exclusivity 

requirements of Grant Assurance 23 based in part on concerns about possible litigation and other 

legal complications that would implicate Grant Assurance 5, see JetAway II, 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 may have had justifiable concerns in the past relating to Grant Assurance 5 that 

caused it to decline to enter into one form of an agreement cannot, in and of itself, mean that 

entering into a similar, but materially different, agreement several years later, constitutes a 

presumptive violation of Grant Assurance 5. This would be an exceptionally aggressive 

16 

1737436.2 
application of the doctrine of offensive collateral estoppel, and would be contrary to the principle 

that offensive collateral estoppel should not be applied where the issue was not "actually and 

necessarily determined" by the tribunal in the first proceeding and where the party to be estopped 

"had no incentive to defend vigorously" the issue in the first action. See Jack Faucett Assocs., 

Inc. v. A.T & T Co., 744 F.2d 118, 125-26 (D.C. Cir. 1984). The issues being defended by the 

County inJetAway II arose from demands by JetAway to be given FBO status at the Airport. 

See JetAway II, 2009 WL 2136622 at *19-45. Whether a lease-leaseback arrangement of the 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 County have any incentive to litigate that 

issue as it did not form part of the basis for JetAway's claims in the earlier proceeding. To try to 

overcome the weakness of this position, JCP raises four further arguments with regard to the 

lease-leaseback arrangement. 

JCP next argues that, because the JetAway Site is allegedly subject to a restrictive 

covenant prohibiting the sale of aviation fuel, it would make an FBO on the site unable to 

generate income through fuel sales and further alleges that the County is subject to a lawsuit over 

the alleged infraction of the 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 not ripe for resolution. Cf Jimsair 

Aviation, Docket No. 16-06-08,2007 WL 2405821 at *15 & *18. 

JCP further argues that, because under the terms of the TVP Lease, the County could not 

modifY existing improvements on the JetAway Site without approval from TVP, the County "is 

unable to ensure protection of the [Airport Operational Areas ("AOA")] and other critical 

17 

1737436.2 
Airport operational issues." (Complaint, p. 52, -,r 112.) This disregards the fact that the TVP 

Lease contains a specific provision titled "F.A.A. Lease Requirements" that grants the County 

broad authority over the 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, in the event of 

any conflict between 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 of the 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 how these terms are insufficient to 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 or modifications on the JetAway Site. The mere possibility that a term in a lease 

agreement would, if enforced, violate a grant assurance does not give rise to a present claim 

under Part 16. See Northwest Airlines, Docket. No. 16-07-04,2008 WL 3976461 at *3-4 & *23-

24 (presently existing lease agreement and amendment permitting possibly tmlawful "rent 

credits" to competitor of complainant was not ripe for resolution where airport authority had not 

actually applied the rent credits to benefit of competitor). 

The same issue of ripeness applies to JCP's argument that the County's option to 

purchase the JetAway Site is a grant assurance violation. (Complaint, p. 53, -,r 113.) The FAA 

does not categorically prohibit the use of option agreements as a mechanism to acquire land. See 

Report to Congress on Potential for Use of Land Options in Federally Funded Airport Projects, 

part of Report of the Secretary of Transportation to the United States Congress Pursuant to 

Section 127 of the Airport and Airway Safety, Capacity, Noise Improvement, and Intermodal 

18 

1737436.2 
Transportation Act of 1992 (Public Law 1 02-581), p. 17 (noting that there are "no apparent 

legislative provisions that would preclude or restrict" use of option 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 any present obstacle to the County exercising the option agreement. Accordingly 

this issue is also raised prematurely. See Northwest Airlines, Docket. No. 16-07-04,2008 WL 

3976461 at *3-4 & *23-24 (presently existing lease agreement and amendment permitting 

possibly unlawful "rent credits" to competitor of complainant was not ripe for resolution where 

airport authority had not actually applied the rent credits to benefit of competitor). 

Finally, JCP argues that the senior Deed of Trust held by Wells Fargo on the JetAway 

Site "presents a significant threat to Respondent's control of the JetAway Site" because of the 

risk that Wells Fargo could become owner of the J etA way Site in the event of a default by the 

present underlying property owner, One Creative Place, LLC. (Complaint, p. 53,'\[ 114.) This 

disregards the fact that, under Colorado law, foreclosure on real property by a senior lienholder 

extinguishes all junior leases as a matter of law. See First Interstate Bank v. 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, in the 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 of law. The termination of the TVP Lease 

would in turn affect Section 3.02 of the 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 JetA way Site to Airport property or otherwise discontinue those services. If it 

did not do so in a timely manner, the County could terminate 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 on its obligations under the Deed of Trust, the issue is 

premature for purposes of a Part 16 proceeding. Drake Aerial Enterprises, LLC v. City of 

Cleveland, Docket No. 16-09-02,2010 WL 691303 at *18. Furthermore, as discussed below, the 

matter has also been rendered moot by the termination of both the MTJ FBO Agreement and the 

TVP Lease. 

2. This cause of action is moot 

The entire basis for the sixth cause of action is the alleged interaction between the MT J 

FBO Agreement and the TVP Lease. (Complaint, pp. 52-54, n 111-115.) As both agreements 

have now both been terminated (SMF, ~~ 5 & 9), even if JCP had raised presently valid concerns 

about the agreements, the issue is moot. See Drake Aerial Enterprises, 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 or potential past violation of applicable federal obligation to be grounds for dismissal 

of such allegations."). 

JCP's sixth cause of action should thus be dismissed under the current compliance 

doctrine on grounds of both ripeness and mootness. 

CONCLUSION 

JCP's Complaint, while lengthy, is fundamentally lacking in substance. The alleged 

violations it complains of rest on hypotheticals, contingent possibilities, and occasional pure 

speculation. These are not a proper basis for bringing a Part 16 complaint. That said, while the 

County believes that JCP's causes of action would all have been dismissed as unripe, the causes 

of action are also all now moot as a result of the County's termination of the agreements that JCP 

complains of. The entire action should be dismissed by the Director. 

20 

1737436.2 
Respectfully submitted this 16th day of September, 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 of September, 2015, a true and correct copy of the 

foregoing document was served upon the following persons at the following address via Federal 

Express: 

Office of the Chief Counsel 

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 

21 
FEDERAL AVIATION ADMINISTRATION 

DEPARTMENT OF TRANSPORTATION 

In re the Complaint of: 

JET CENTER PARTNERS, LLC 

Complainant 

-againstCOUNTY OF MONTROSE, COLORADO 

Respondent. 

Pursuant to Part 16 of the 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 of eighteen years. The statements contained in this Affidavit 

are personally known to me and are true. I am competent to testify about any of the matters 

contained herein. 

2. I am the Director of Aviation for the Montrose Regional Airport for Montrose 

County, Colorado ("the County''). I have held that position since December I 0, 2007. In that 

position, I am responsible for all aspects of managing 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 of Aviation I assist in negotiating contracts with 

vendors at the Airport, and personally participated in the negotiating of contracts 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 of the 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 of MTJ FBO Partners, LLC ("MTJ") for 

Majestic pursuant to the Amended Fixed Base Operator Agreement ("MTJ FBO Agreement") 

HRODEN\1737078.1 
entered into between the County and MTJ. A true and accurate copy of the MTJ FBO 

Agreement is attached to the Complaint as Exhibit E. 

5. At no point prior to the termination of Majestic'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 of Majestic's rights under the Majestic FBO 

Agreement did the County pay any amounts to Majestic under the terms of that Agreement. 

7. Prior to August 19, 2015, the County terminated MTJ's rights under the MTJ 

FBO Agreement. A true and accurate copy of the 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 of that 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 of the 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 of the termination letter sent on the County's behalf by 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 of the TVP Lease did the County pay any 

amounts in rent or other consideration to TVP. 

13. As of the date of this 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 of the date of this Affidavit, the County does not have any Requests for 

Proposals open relating to provisioning of FBO 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, LLC v. MTJ FBO 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 of the 

order dismissing JCP's claim to enforce the restrictive covenant is attached as Exhibit 3 to this 

Affidavit. 

FURTHER AFFIANT SA YETH NAUGHT. 

2 

HRODEN\1737078.1 
Dated this 16th day of September, 2015 

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

My commission expires: ""3 · Lf · \£5 

3 

HRODEN\1737078.1 
August 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 Operator Agreement ("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: 

• Since July 7, 2015 neither of you have complied with the County's demand that you provide 

further assurances per Sections 2.05 and 10.14 of the FBO Agreement regarding the owners 

of each entity that comprises MTJ FBO, who the mangers of each entity is and who is 

responsible for the day-to-day operations of each entity. 

• The Certificate of Insurance provided by Telluride Venture Partners (TVP) does not 

comply with 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 of the execution of the 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. That is why the FBO 

Agreement specifically states that the failure to provide the Certificate ofinsurance results 

in the rescission or termination of the FBO Agreement. Because of the consequences of 

this breach, there is no thirty day right to cure. 

• The County has already provided written notice of MTJ's breach of the 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 know what 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 of your 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 of transparency, responsiveness and candor. 

Sincerely, 

s/ Bobbee J Musgrave 

Bob bee J. Musgrave 
September 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: 

Bobbce J. 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. of the 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 of Article III D. is triggered and the 

Ground Lease is terminated. 

Sincerely, 

s/ Bobbee J Musgrave 

Bob bee J. Musgrave 

cc: Teresa Williams 

Carolyn Clawson 

l'vlichael Manes 

1735204.2 
DISTRICT 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: 

MT J 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 of the 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 of the OA Agreement, 3 (g), is quoted at 

paragraph 14 of the 2006CV18 complaint in intervention that is quoted in paragraph 11 of the 

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 against Jetaway for damages for 

violation of the OAA because the OAA expressly prohibits a third 

party beneficiary 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 legally protected interest. Wimberly v. Ettenberg, 194 

Colo. 163, 168, 570 P. 2d 535, 539 (1977). Because standing 

presents a question of the trial court's jurisdiction, challenges to 

standing may be made at any time, including for the first time on 

appeal. Ajay Sports, Inc. v. Casazza, 1 P. 3d 267, 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 nor an intended beneficiary of the OAA. 

Significantly, the OAA expressly excludes third-party beneficiaries. 

Section 8 of the OAA, entitled "No Third Party Beneficiaries," 

provides: 

It is expressly understood and agreed that enforcement of 

the terms and conditions of this Agreement and all rights 

and actions relating to such enforcement shall be strictly 

reserved to the county and the Park Owners, and nothing 

contained in this Agreement shall give or allow any claim 

or right of action by any other third person to such 

Agreement. It is the express intention of the county and 

the Park Owners that any person other than the county or 

the Park Owners receiving services or benefits under this 

Agreement shall be deemed to be an incidental beneficiary 

only. 

Thus, this language expressly provides that parties, such as JCP, 

who are not signatories to the OAA are not intended third-party 

beneficiaries of that agreement. Further, when a party benefits 

indirectly and incidentally from a contract, it may not enforce any 

provisions arising under that contract. See Bloom v. Nat'/ 

Collegiate Athletic Ass'n, 93 P. 3d 621, 623 (Colo. App. 2004). 

Thus, under section 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 of a legal or factual matter 

already decided in a prior proceeding. Sunny Acres 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, conserve judicial resources, and promote 

reliance on the judicial system by preventing inconsistent 

decisions." !d. See also McNichols v. Elk Dance Colo., LLC, 139 

P.3d 660, 667 (Colo.2006). 

Issue preclusion bars relitigation of an issue when: (1) the issue 

sought to be precluded is identical to an issue actually and 

necessarily determined in a prior proceeding; (2) the party against 

whom estoppel is asserted was a party to or is in privity with a 

party to the prior proceeding; (3) there was a final judgment on the 

merits in the prior proceeding; and (4) the party against whom the 

doctrine is asserted had a full and fair opportunity to litigate the 

issue in the prior proceeding. Sunny Acres 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 

of Appeals. 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 of the parties or parties are in privity with prior parties, in this instance MT J 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 of the first judgment; 

2. Identity of the subject matter; 

3. Identity of the claims for relief; and 

4. Identity or privity between parties to the actions. 

See generally Argus Real Estate, Inc. v. E-470 Public Highway Authority, 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 res judicata2

) bars 

"relitigation of matters that have already been decided [in a prior 

proceeding] as well as matters that could have been raised in a 

prior proceeding but were not." Argus Real Estate, 109 P. 3d at 

608; accord Timm v. Prudential ins. Co. of Am., 259 P.3d 521, 

527 (Colo.App.2011). A claim in a second judicial proceeding is 

precluded by a previous judgment where there is (1) finality of the 

first judgment, (2) identity of subject matter, (3) identity of claims 

for relief, and (4) identity of or privity between the parties to the 

two actions. Burlington Ditch Reservoir & Land Co. v. Metro 

Wastewater Reclamation Dist., 256 P.3d 645, 668 (Colo.2011). 

We consider only the third factor here. 

1. Identity of Claims for Relief 

In determining whether there is identity of claims for relief, the 

focus of the inquiry is " 'the injury for which relief is 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 & 

Reservoir Co. v. City of Golden, 975 P.2d 189, 199 (Colo. 1999)); 

accord Argus Real Estate, 109 P.3d at 609. Claim preclusion bars 

litigation of claims that previously were or might have been 

decided only "if the 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 or any part of the transaction, or series of 

connected transactions, out of which the [original] action arose.' " 

/d. (quoting Restatement (Second) of Judgments§ 24(1) (1982)). 

In determining what factual grouping constitutes a transaction, the 

court considers " 'whether the facts are related in time, space, 

origin, or motivation, whether they form a convenient trial unit, and 

whether their 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) of Judgments§ 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 with 
Plaintiff 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 MT J FBO Partners, LLC ("MT J") 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 MT J 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: 

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