UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

RECEIVED 

JUN 2 4 2015 

National Business Aviation Association, Inc., et 

a!. PART 16 DOCKETS 

Complainants, 

FAA Docket No. 16-15-08 

v. 

Town of East Hampton, NY 

Respondent. 

RESPONDENT TOWN OF EAST HAMPTON, NEW YORK'S 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 

OF ITS MOTION TO DISMISS THE COMPLAINT 

Designation of persons to receive service for the Town of East Hampton, New York: 

Elizabeth Vail 

Town Attorney 

Town of East Hampton 

!59 Pantigo Road 

East Hampton, NY 1193 7 

EVail@EHamptonNY. Gov 

W. Eric Pilsk 

Catherine van Heuven 

Kaplan Kirsch & Rockwell LLP 

I 00 I Connecticut Ave., NW, Suite 800 

Washington, D.C. 20036 

epilsk@kaplankirsch.com 

cvanheuven@kaplankirsch.com 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 
INTRODUCTION 

The Complaint filed by National Business Aviation Association, Inc. ("NBAA"); 

Shoreline Aviation, Inc. (Connecticut); PlaneSense, Inc.; Fly the Whale, Inc.; Eastern Air 

Express, Inc.; FL Aviation Corporation; Tuckaire, Inc.; Autonomic Controls, Inc.; Shoreline 

Aviation, Inc. (Massachusetts); Wes Rae Contracting Corporation; Eagle Air, Inc.; and JET AS, 

Inc. (collectively, "Complainants") is another effort by users of East Hampton Airport ("Airport" 

or "HTO") to challenge the legality of three Local Laws adopted by the Town of East Hampton 

on April 16, 2015, as amended on May 7, 2015, that: (1) impose a curfew on all operations 

between 11:00 p.m. and 7:00a.m., (2) impose an extended curfew on aircraft defined as "noisy" 1 

between 8:00 p.m. and 9:00 a.m., and (3) limit operations by noisy aircraft to two operations 

(one takeoff and one landing) per week for the summer season (defined as May 1 - September 

30) 2 A number of Plaintiffs, including NBAA, have challenged the Local Laws in the U.S. 

District Court for the Eastern District of New York, Case No. 15-Civ-2246 (Filed April 22, 

20 15), on preemption and Commerce Clause grounds. In addition, another Part 16 Complaint, 

Docket No. 16-15-02 challenges the Local Laws indirectly based on Assurances 19 and 24. 

The term "Noisy Aircraft" is defined as: "any airplane or rotorcraft for which there is a 

published Effective Perceived Noise in Decibels (EPNdB) approach (AP) level of 91.0 or 

greater." Town of East Hampton, Local Law 5 of 2015 at Section 2, codified in the Code of the 

Town of East Hampton at§ 75-38 (A)(4). 

2 In response to Complainants' comment that the Town's list of "noisy aircraft" is 

incorrect, see Complaint at n. 1, the Town notes that the List of Noisy Aircraft clearly instructs 

readers that: "Published data for shaded aircraft types include ranges of noise levels that extend 

across the 91.0 EPNdB threshold. These ranges result from multiple published noise levels for 

varying aircraft configurations (e.g., differing powerplants, maximum operating weights, etc.)." 

The Bombardier Challenger 600/601/604/605 entry is a shaded entry, thus clearly signaling to 

readers that some of these aircraft types could be exempt and further inquiry is appropriate. The 

Town further notes that Complainants have cited to a now out-of-date version of the List. See 

Complaint Exhibit 4. The current version was released on April 2, 2015. It is available at 

http:/ /www.htoplanning.com/docs/Town Documents/150402 Updated List of Noisy Aircraft 

Types.PDF 

2 
Finally, a number of Airport users have filed a related lawsuit against the Federal Aviation 

Administration ("FAA") in the U.S. District Court for the Eastern District of New York, Case 

No. 15-Civ-246 (filed January 29, 2015). That lawsuit challenges the FAA's stated position 

adopted in a 2005 Settlement Agreement between the FAA and a citizens group called the 

Committee to Stop Airport Expansion. In the 2005 Settlement Agreement, FAA committed to 

not enforce Grant Assurance 22(a) against the Town after December 31, 2014. FAA 

subsequently announced that its position in the Settlement Agreement "also means that unless 

the town wishes to remain eligible to receive future grants of Federal funding, it is not required 

to comply with the requirements under the Airport Noise and Capacity Act of 1990 (ANCA), as 

implemented by title 14 C.F.R., Part 161, in proposing new airport noise and access restrictions." 

That case is also currently pending. 

Rather than wait for the resolution of those lawsuits, Complainants initiate yet another 

piece of litigation challenging the Local Laws alleging that the Local Laws violate Assurance 

23's prohibition against exclusive rights and that the Town has violated Assurance 25 by using 

Airport revenue to pay the legal costs of defending the Local Laws. Both claims, however, rest 

on false legal premises and must be dismissed as a matter oflaw. 

Complainants' Assurance 23 claim rests on the notion that an exclusive rights violation is 

a "mirror image" of an Assurance 22(a) violation, such that any "unreasonable restriction" on 

access to an airport automatically violates Assurance 23. Complaint at~ 33. Complainants are 

wrong. Not only has the FAA expressly rejected the "mirror image" theory of Assurance 23, but 

also, the agency requires explicit proof that a measure would have an anti-competitive or 

monopolistic effect before it will find a violation of Assurance 23. In the Matter of the City of 

Santa Monica, FAA Docket No. 16-02-08, at 46-53 (July 8, 2009) (Final Agency Decision). 

3 
Complainants' revenue diversion claim rests on the notion that the Town may not use 

airport revenue to pay legal fees and other costs it has and will incur in defending the Local 

Laws. Complainants' apparent theory is that defending the Local Laws is not an airport purpose. 

There is no support for that notion. The FAA explicitly recognizes that an airport sponsor may 

use airport revenues to pay legal fees. Moreover, to the Town's knowledge, the FAA has never 

required an airport sponsor to forego using airport revenue to defend itself, even in cases where 

a sponsor was ultimately found to be in violation of sponsor assurances. Tellingly, 

Complainants can cite no decision to the contrary. Complainants' theory, if adopted, would 

wreak havoc with airport finances by prohibiting airport sponsors from using airport revenue to 

defend Part 16 cases, civil litigation alleging unlawful sponsor action, and would further prevent 

an airport sponsor from using airport revenue to adopt appropriate corrective measures. In short, 

Complainants' theory is baseless and fraught with difficulty, and should be dismissed as a matter 

oflaw. 

ARGUMENT 

I. COMPLAINANTS FAIL TO STATE A CLAIM THAT THE TOWN HAS 

VIOLATED THE PROHIBITION AGAINST GRANTING AN EXCLUSIVE 

RIGHT 

Complainants assert that Local Laws 4 and 5, restricting operations by noisy aircraft, 

violate Assurance 23. Grant Assurance 23 provides, in relevant part, that an airport sponsor 

"will permit no exclusive right for the use of the airport by any person providing, or intending to 

provide, aeronautical services to the public." The FAA has explained that "the intent of [the 

prohibition against exclusive rights] is to promote aeronautical activity and protect fair 

competition at federally obligated airports." FAA Compliance Handbook, Advisory Circular 

150/5190.6B at ~ 8.1. (Sept. 30, 2009). Accordingly, in order to state a claim that a sponsor 

violates Assurance 23, the FAA requires that there be some demonstrable nexus between the 

4 
sponsor's action and a monopolistic, anti competitive result. In the Matter of the City of Santa 

Monica, FAA Docket No. 16-02-08, at 51 (July 8, 2009) (Final Agency Decision). 

Complainants fail to state a violation of Assurance 23 for two reasons. First, they do not 

allege that the Local Laws have a monopolistic or anti-competitive effect and they fail to make 

any factual allegations that could support such a finding. 

A. The Local Laws Do Not Implicate The Kind Of Monopolistic Or AntiCompetitive Effect Necessary To Constitute an Exclusive Rights Violation 

1. Complainants Rely on a Legal Theory that FAA has Expressly 

Rejected 

Complainants' claim of an exclusive rights violation rests entirely on the simplistic 

theory that the prohibition against economic discrimination in Assurance 22(a) and the 

prohibition against exclusive rights in Assurance 23 are "mirror images" such that any unjustly 

discriminatory rule necessarily confers a prohibited exclusive right. Complaint at~~ 33-34, 37. 

Accordingly, Complainants argue, the Local Laws create an exclusive right because they allow 

non-noisy aircraft to operate without restriction while imposing limits on operations by noisy 

aircraft. Id at~ 35. 

The FAA expressly rejected the "mirror image" theory of exclusive rights in 2009 and 

has determined that a violation of Assurance 23 requires a showing of "anti-competitive, 

monopolistic behavior." In the Matter of the City of Santa Monica, FAA Docket No. 16-02-08, 

at 51 (July 8, 2009) (Final Agency Decision). The history of the Santa Monica Part 16 litigation 

underscores the lack of merit to Complainants' theory. In Santa Monica, the FAA initiated an 

investigation into the City of Santa Monica's proposal to ban Approach Category C and D 

aircraft from Santa Monica Municipal Airport ("SMO"). After the City adopted the ban, the 

Director of the FAA Office of Airport Compliance and Management Analysis issued a Director's 

5 
Determination finding that the ban violated Assurance 22(a) and 23 because it unreasonably 

distinguished between aircraft types. Director's Determination at 52-53. 

The City requested an evidentiary hearing and challenged, inter alia, the Director's 

findings on exclusive rights arguing that exclusive rights were only implicated when sponsors 

created effective monopolies or anti-competitive conditions similar to those prohibited by antitrust laws. Following an evidentiary hearing, the Hearing Officer agreed with the City on the 

exclusive rights issue even though he affirmed the Director on the Assurance 22(a) issue. After 

carefully reviewing the language and legislative history of Assurance 23, 49 U.S.C. 

§ 47104(a)(4), and 49 U.S.C. § 40103, relevant Attorney General Opinions and case law, the 

Hearing Officer concluded that Assurance 23's "purpose is to prohibit anti-competitive, 

monopolistic behavior at airports receiving federal funds." In the Matter of the City of Santa 

Monica, FAA Docket No. 16-02-08, at 101 (May 14, 2009) (Hearing Officer's Decision).3 The 

Hearing Officer also relied on language from the FAA Advisory Circular 150.5190-6, Exclusive 

Rights at Federally-Obligated Airports, at~ 1.2 (January 4, 2007), stating that: "The purpose of 

the exclusive rights provision as applied to civil aeronautics is to prevent monopolies and 

combinations in restraint of trade and to promote competition at federally obligated airports." 

(Hearing Officer's Decision at I 05). Accordingly, the Hearing Officer held that in order to show 

a violation of Assurance 23, the Director had to show a nexus between the City's Category C & 

3 For example, the Hearing Officer cited a 1941 Attorney General Opinion discussing the 

predecessor statute to 49 U.S.C. § 40103 explaining that "the purpose of the provision 

[prohibiting exclusive rights] is to prohibit monopolies and combinations in restraint of trade or 

commerce and to promote and encourage competition in civil aeronautics .... " 40 U.S. Op. 

Atty. Gen. at 72, citing, 83 Cong. Rec. 6729, 6730 (Hearing Office Decision at I 02). The 

Hearing Officer also cited Aircraft Owners and Pilots Assoc. v. Port Authority of New York, 305 

F. Supp. 93, I 05 (E.D.N.Y. 1969) ("the type of 'exclusive' right there forbidden [in the statute] 

is one of the sort noxious to the anti-trust laws .... ") and City of Pompano Beach v. FAA, 774 

F.2d 1529, 1542 (11th Cir. 1985) (same). (Hearing Officer's Decision at I 05). 

6 
D ban and the kind of anti-competitive result covered by Assurance 23. !d. at 106. In sum, the 

Hearing Officer found that, standing alone, a showing that the ban was unreasonable was not 

sufficient to find a violation of Assurance 23. 

The Director appealed the Hearing Officer's decision to the Associate Administrator4 

Among other arguments, the Director attempted to rely on prior Directors' Determinations that 

had found violations of Assurance 23 based on the "mirror image" theory that Complainants rely 

upon. Final Agency Decision at 50-51. The Associate Administrator expressly rejected that 

approach holding that "to the extent that those decisions conflict with the instant decision, they 

are incorrect." !d. at 51. The Associate Administrator also agreed and found that the Hearing 

Officer had correctly considered and applied prior FAA Advisory Circulars, the legislative 

history of the exclusive rights statutes, and case law to conclude that an exclusive rights violation 

must depend on a showing on monopolistic, anticompetitive conduct. Final Agency Decision at 

47-51. The Associate Administrator also expressly rejected the Director's arguments that 

existing language from the Compliance Handbook and Advisory Circulars "support its expansive 

reading of 'exclusive right' as a right that applies broadly to use of an airport and not just to 

activities that involve competition." !d. at 49. To the contrary, the Associate Administrator held 

that any broad language in the Compliance Handbook or FAA Advisory Circulars must be read 

consistently with the language in the "statutes, legislative history, and other FAA publications" 

limiting the scope of exclusive rights to monopolistic, anticompetitive conduct. !d. 

Accordingly, the Associate Administrator concluded that in order to find a violation of 

Assurance 23, the FAA "needed to prove that an anti-competitive result would occur if the 

Ordinance were implemented." !d. at 51. 

4 The City appealed other aspects of the decision as well. 

7 
2. Complainants Offer No Controlling Legal Authority 

Complainants rely expressly and exclusively on the "mirror image" theory of exclusive 

rights that the Associate Administrator rejected in Santa Monica. Complaint at ~~33, 34, 37. 

None of the legal authority cited by Complainants overrules Santa Monica or otherwise supports 

their Complaint. 

First, Complainants cite to three legal authorities that pre-date the Santa Monica Final 

Agency Decision and rely on the now-rejected "mirror image" theory. See Complaint at ~ 36 

(citing 1965 FAA guidance); id at~ 38 (citing the 2001 Director's Determination in Bardin v. 

County of Sacramento, California); and id. at~ 38 n. 6 (citing the 2008 Director's Determination 

in Self Serve Pumps, Inc. v. Chicago Executive Airport). Those determinations must be 

considered incorrect for the same reason that the Associate Administrator found the Director's 

Determinations cited by the Director in Santa Monica to be incorrect. See supra, n. 4. 

Second, the two post-Santa Monica decisions cited by Complainants are inapposite. 

Hinshaw v. State of Hawaii, FAA Docket No. 16-12-04 (Aug. 18, 2014) (Director's Preliminary 

Determination) cannot overrule the Associate Administrator's decision in Santa Monica, nor 

does it purport to do so. Moreover, as this document is merely a preliminary determination, it 

does not represent a final decision by either the Director or FAA. Similarly, the decision in 41 

North 73 West, Inc. v. County of Westchester. New York, FAA Docket No. 16-07-13 at 37 (Sept. 

18, 2009) (Final Agency Decision) is not contrary to Santa Monica, and certainly does not 

overrule or modify Santa Monica. On the facts of that case, the Associate Administrator simply 

concluded that the sponsor's leasing practices did not bar complainant from conducting a 

particular aeronautical activity, and therefore could not constitute an exclusive right. Final 

Agency Decision at 37. There was no reason to look further into any possible monopolistic or 

anti-competitive effect. Furthermore, as Santa Monica instructs, the general rule relied upon in 

8 
41 North 73 West, Inc. must be understood and applied in light of the purpose of Assurance 23 to 

prevent anti competitive actions. 

The reasoning of both 41 North 7 3 West, Inc. and Santa Monica underscores the fact that 

Complainants have simply failed to state a claim of exclusive rights violation that merits further 

investigation. None of Complainants' respective members is barred from conducting a particular 

aeronautical activity to any extent different than any other Airport user. The Local Laws apply 

equally to all users and no aeronautical user enjoys a right that cannot be shared by any other 

aeronautical user. 

3. Complainants Fail To Present Any Facts Regarding Any Monopolistic 

or Anti-Competitive Result That Merits Further Investigation 

Not only do Complainants fail to state a claim that meets the legal requirements of an 

exclusive rights violation, but also, they fail to offer any basis that could support an investigation 

by the Director. Under Santa Monica, Complainants have failed to make any allegation or 

provide any factual support that could show that the Local Laws would create a monopoly or 

hinder competition in a manner implicated by Assurance 23. The FAA regulations at 14 C.F.R. 

16.23(b)(2) and (3) require Complainants to present all documents and facts in support of its 

claims. Yet, the only facts and documents set forth in the Complaint relate to historical 

information about the Airport, the adoption of the Local Laws themselves, and certain details 

about the substance of the Local Laws. Complaint~~ 19-27. Complainants present no facts or 

documents that show how the Local Laws affect the respective Complainants or their members. 

Nor do they present any facts or documents that could possibly provide a basis on which the 

Director should investigate further. The Local Laws do not prevent any aircraft from operating 

at the Airport, no user is prevented from using the Airport, and no user is given any preferential 

right to use the Airport. Quite simply, Complainants present no basis whatsoever for the 

9 
Director to believe that the Local Laws have the monopolistic, anticompetitive effect required to 

implicate Assurance 23. 

Nor could they. As the Local Laws themselves make clear, the Local Laws are intended 

to address noise and environmental concerns. They are not intended to regulate economic 

activity as such, and certainly are not intended to limit competition for aeronautic services at the 

Airport. The Local Laws do not prevent any aeronautic user from competing at the Airport and 

do not give any aeronautic user a monopoly to provide any aeronautic service at the Airport. The 

Local Laws are simply not the monopolistic, anticompetitive measures barred by Assurance 23. 

Accordingly, Complainants have failed to state a claim of a violation of Assurance 23 that merits 

further investigation. Their Assurance 23 claim should be dismissed. 

II. COMPLAINANTS FAIL TO STATE A CLAIM OF REVENUE DIVERSION 

THAT MERITS FURTHER INVESTIGATION 

Complainants argue that the Town has violated Assurance 25 by spending airport revenue 

to pay legal and other professional fees in order to defend the Local Laws from the many legal 

challenges brought by NBAA and others. Complaint at~ 45. As Complainants concede, there is 

no dispute that the Town can use airport revenues to pay for legal fees. Complaint at~ 42; see 

also Compliance Handbook at~ 15.9(d). Thus Complainants' argument rests on the theory that 

the Local Laws are not related to an airport purpose because they are the product of what 

Complainants call an "anti-airport agenda," and as such that the Town may not use airport 

revenue to defend these laws. Id. at~~ 42 & 43. This argument lacks merit and fails to state a 

claim of revenue diversion that warrants further investigation. 

First, by their very nature the Local Laws serve an airport purpose because they relate 

directly to the operation of the Airport. Complainants may not agree with the substance of the 

Local Laws, but their aversion to the adopted restrictions cannot erase the plain fact that the 

10 
Local Laws are related to the Airport and serve a legitimate airport purpose- i.e., the regulation 

of aircraft noise. 

Second, the Complaint rests on a bootstrap argument that it is impermissible for the 

Town to use airport revenue to defend the Local Laws because Complainants have alleged that 

those laws are contrary to federal law. Complaint at~~ 42-43. As a preliminary matter, neither 

the FAA nor any court has determined that the Local Laws violate any law. More importantly, 

Complainants cannot conjure a violation of any sponsor assurance by simply asserting a 

conclusion of law. 

Third, Complainants' theory lacks any legal support. The key authority they cite, In the 

Matter of Compliance with Federal Obligations by the City of Chicago, Illinois, FAA Docket 

No. 16-04-09, is a Notice of Investigation, not a decision document. Moreover, that case 

involved actions to close an airport and terminate all aeronautical activity at the airport, which is 

entirely different than a sponsor's effort to adopt rules for the continued use of an airport. 

Complainants also cite Boca Airport, Inc., d/b/a Boca Aviation v. Boca Raton Airport Authority, 

FAA Docket No. 16-00-10 at 42 (April26, 2001) (Director's Determination) for the proposition 

that the use of airport revenue to fund general economic development is improper. Complaint at 

n. 8. General economic development is plainly not an airport purpose. See Compliance 

Handbook at~ 15.13(d). But that conclusion in no way bolsters Complainants' argument that 

defending airport operating rules is not an airport purpose. 

The Town is not aware of any reported decision or even informal guidance from the FAA 

either prohibiting an airport sponsor from using airport revenue to defend challenges to local 

access restrictions, or advising them not to do so. Over the years many airport sponsors have 

proposed and/or implemented access restrictions that have been challenged in courts and before 

II 
the FAA. The Town is not aware of a single instance in which the FAA has advised that it was 

impermissible for the airport sponsor to use airport revenue to defend those restrictions - even 

when the underlying restrictions were ultimately found to violate federal law. 

If accepted, Complainants' theory would create a new operating reality that would wreak 

havoc with the ability of airport sponsor's ability to defend actions the sponsor takes in the best 

interests of the airport. Specifically, it is emphatically an airport purpose for a sponsor to assure 

compliance with federal obligations. Yet Complainants' theory would effectively hamstring an 

airport sponsor's ability to do just that because it would fundamentally undermine the sponsor's 

financial ability to defend itself against any alleged violation of its federal obligations, including 

common claims by FBOs and other commercial tenants. 5 Further, the same principle would 

prevent an airport sponsor from using airport revenue to develop and implement a corrective 

action plan to cure any violation. 

Moreover, the logic of Complainants theory extends beyond the compliance context and 

applies to any litigation alleging unlawful conduct by a sponsor. This would fundamentally 

undermine airport sponsors' ability to obtain legal counsel to defend themselves because airport 

sponsors are frequently accused of violating the law. In addition to "routine" legal actions 

involving contracts and torts, airport sponsors would be prevented from using airport revenue to 

defend against inverse condemnation claims, which necessarily rest on an allegation of unlawful 

conduct, or politically motivated litigation seeking to change airport policy. Complainants' 

theory would simply prevent airport sponsors from being able to mount a professional legal 

defense to the myriad legal challenges airport sponsors face. And, although not directly 

5 Indeed, Complainants argue that the Town may not use airport revenue to defend against 

this Complaint. Complaint at 'lf43. 

12 
implicated here, this theory would all but cripple independent airport authorities who have no 

non-airport sources of revenue. 

There is no legal authority to support, and no principled basis upon which to accept 

Complainants' argument. Even when a sponsor's actions are ultimately found to violate a 

federal obligation or other law, such as in the inverse condemnation context, an airport needs the 

ability to use airport revenue to defend itself and seek to vindicate its conduct. To hold 

otherwise would place airport sponsors in an impossible position of having to secure non-airport 

funding for any measure that might ultimately be deemed unlawful. 

Because Complainants claim of revenue diversion lacks any support in the law and fails 

to provide a valid basis for further investigation, it should be dismissed. 

CONCLUSION 

For the reasons set forth above, the Complaint should be dismissed. 

Respectfully submitted this 24th day of June, 2015. 

Elizabeth Vail 

Town Attorney 

Town of East Hampton 

!59 Pantigo Road 

East Hampton, NY 11937 

EVail@EHamptonNY. Gov 

W. Eric Pilsk 

Catherine van Heuven 

Kaplan Kirsch & Rockwell LLP 

I 00 I Connecticut Ave., NW, Suite 800 

Washington, DC 20036 

epilsk@kaplankirsch.com 

cvanheuven@kaplankirsch.com 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 

13 
CERTIFICATE OF SERVICE 

I hereby certify that I have this 24th day of June, 2015, served the foregoing Respondent 

Town of East Hampton, New York's Memorandum of Points and Authorities in Support of 

Its Motion to Dismiss the Complaint on the following parties by hand delivery at the following 

addresses: 

Office of the Chief Counsel 

Attn: FAA Part 16 Airport Proceedings Docket, AGC-61 0 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, D.C. 20591 

Steve Brown 

Chief Operating Officer 

National Business Aviation Association, Inc. 

1200 G Street, NW 

Suite II 00 

Washington, D.C. 20005 

Dated this 24th day of June, 2015. 

W. Eric Pilsk 

14