UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.

Safer Medical ofMontana and

George Ackerson Complainants,



### v. City ofFort Benton, Montana and

Chouteau County, Montana Respondents. ) ) ) ) ) ) ) ) ) )

ORDER FAA Docket 

### No. 16-15-12

This matter is before the Federal Aviation Administration (FAA), based on the formal complaint filed in accordance with the FAA Rules ofPractice for Federally Assisted Airport Enforcement Proceedings, Title 14 Code ofFederal Regulations (CFR), Part 16, and on the motions to dismiss also filed in accordance with the FAA Rules ofPractice.
Safer Medical ofMontana and George Ackerson (Complainants) filed a formal Complaint pursuant to 14 CFR Part 16 against City ofFort Benton, Montana (Respondent City) and Chouteau County (Respondent County), which was docketed as FAA Docket No

. 16

- 15-12.
On December 28,2015 , the Respondent City filed a Motion to Dismiss the Complaint. On January 5, 2016, the FAA received the Respondent County's Motion to Dismiss the Complaint. On January 11 ,2016, the FAA received the Complainants' Reply to the Motions to Dismiss filed by each ofthe Respondents

. Respondent City 

### in its Motion asserts that the FAA should dismiss the Complaint upon the grounds that the Complainants failed to engage in good faith efforts. Respondent City contends that the City rejected a settlement offer proffered by the Complainants, but remained open to good faith settlement discussions. Respondent City also claims that the Complainants stated, "Safer Medical ofMontana will not file a civil complaint with the FAA ifMayor Rick Morris tenders his resignation." Respondent City states that a similar settlement letter was sent to the Chouteau County Attorney. Respondent City contends that the Complainants knew the offer would be rejected, and that the Complainants' demand was unreasonable and not made in good2

faith. Respondent City asserts that "[b]ecause 16 CFR 

### § 16.21(a) requires a good faith effort to resolve the dispute prior to filing a complaint and [Complainants] did not make a good faith of f er ofsettlement, the Complaint should be dismissed." Respondent County asserts as its first ground for dismissal that the Complainants lack standing under 14 CFR 

### §§ 16.3 and 16.23. Respondent County claims that the Complainants do not fit the description of"a person directly and substantially affected by anything allegedly done or omitted to be done by any person in contravention ofany provision ofany Act." Respondent County asserts that the Complainants' complaint is that "they are substantially affected by enforcement ofa provision ofan Act", and that this allegation does not qualify as a complaint under the definitions set forth in 14 CFR 

### § 16.3

. Respondent County's second ground for dismissal is the claim that the Complainants failed to engage in good faith settlement negotiations. Respondent County asserts that Complainants' sole effort at resolution was an "unconditional demand that the elected heads ofboth the City and County ofChouteau, along with the Joint Airport Board members, resign with two weeks ofthe demand. " Respondent Chouteau County claims "Complainants proposed a 'resolution' which they knew would be rejected out ofhand as the sole method ofsettling their complaint. " Respondent County asserts the action was not undertak en in good faith, and that the Complaint should be dismissed

. Complainants intheir Reply assert that they engaged in good faith settlement negotiations

. Complainants claim they spent six months engaging in good faith negotiations with the Respondents. Complainants acknowledge that the settlement offer was "unusual," but claim there was nothing wrong with it since "parties settle disputes frequently on non-monetary terms." Complainants assert that its final settlement offer was only sent after Complainants ceased construction, went to numerous Board meetings to negotiate and work with [Respondents] over a six month period, removed a cabin from the property, drained and boarded over a pond, and cooperated in drafting a letter" to help resolve Respondents' violations. Complainants claim these actions demonstrate tha t they engaged in good faith negotiations prior to filing the Complaint. Complainants in their Reply also assert that they do not lack standing to file their Complaint. Complainants allege that the Respondents' actions resulted in economic discrimination. Complainants claim that they have been substantially affected by the Respondents' violations ofthe grant assurances and that they have standing to bring the Complaint. Analysis
The Respondents are correct that a threshold issue in determining whether to docket or dismiss a case is the requirement at 14 CFR CFR 

### § 16.21 that the complainant or authorized representative certifies that the complainant made substantial and good faith efforts to resolve the disputed matter informally prior to filing the compla int. The Complaint contains a sect ion detailing the Complainants' efforts at pre-complaintresolution, and contains a certification certifying that substantial and good faith efforts
were made to resolve the disputed matter informally prior filing the complaint, and that there appears to be no reasonable prospect for timely resolution ofthe dispute. 

### 3

As a condition ofaccepting a complaint for processing, an initial decision must be made
as to whether a complainant certified that it initia ted and engaged in gooffaith efforts to resolve the disputed matter informally. A complaint will not be considered unless the complainant or its authorized representative certifies that substantial and reasonable good faith efforts to resolve the disputed matter prior to filing a complaint have been made. The certificat ion and complaint allegations were reviewed, and an assessment was made that the regulatory requirements were met, and the complaint was accepted for docketing.
The FAA agrees with the Complainants that their final settlement offer was unusual. However, the information submitted by the Respondents fails to persuade the Director that the preliminary assessment regarding the Complainants' efforts to initiate and engage in good faith efforts to resolve the matter informally was in error. Upon the Director' s consideration ofthe steps outlined by the Complainants when taken as a whole support the position that the Complainants engaged in sufficient informal resolution to meet the regulatory requirement

. The FAA is persuaded that the Complainants met the requirements of 14 CFR 

### § 16.21. The Motions to Dismiss the Complaint by the Respondents on the grounds that Complainants failed to engage inpre-complaint resolution procedures fails. (See Martyn v. Port ofAnacortes

. Washington, FAA Docket No. 16-02-03, April14, 2003, Director' s Determination, pages 30-31] Additionally, the Respondent County failed to support its claim that Complainants lack standing. There is a sufficient allegation regarding grant assurance violations to warrant review under the Part 16 enforcement process. The FAA has entertained nume rous cases in which the airport sponsor and a Part 16 complainant have a formal agreement. The FAA' s role is not to enforce the lease terms between the parties to an agreement, but to enforce the federal obligations in the grant agreements between an airport sponsor and the Federal goverrunent. 

### [See AmAv v. Maryland Aviation Administration, FAA Docket No. 16-05-12, March 20, 2006, Director's Determination, page 23]
The FAA has explained in Part 16 decisions that any action that is contrary to the sponsor's grant assurances is within the scope ofFAA to review and address. When information contained in the administrative record to a Part 16 complaint leads the agency to review areas ofnoncompliance

- whether ornot they are alleged by the complainant

- the agency will, nonetheless, make a finding on those areas. 

### [S ee for example, M. Daniel Carey and CliffDavenport v. Afton-Lincoln County Municipal Airport Joint Powers Board, FAA Docket No. 16-06-06, January 19, 2007 , Director's Determination, Issue 7]
The Director has reviewed all the submissions and has concluded that there are genuine issues ofmaterial fact. There are sufficient allegations regarding grant assurance violations that substantially and directly affect the Complainants that support standing. The issues include, but are not limited to, the Respondents' compliance with Grant

### 4

Assurance 5, Rights andPowers, Grant Assurance 22 Economic Nondiscrimination, and Grant Assurance 19, Operation andMaintenance. ACCORDINGLY, it is ordered that: Respondents' Motions to Dismiss the Complaint are denied. The Respondents shall, within 20 days ofwhen this Order is served, file their Answers to the Complaint.

. Huffman, Acting Dt rector Office ofAirport Compliance

and Management Analysis 

# :1)?/;

# 6 ' Date

### 5

CERTIFICATE OF SERVICE

HEREBY CERTIFY that on February

# j 2016, I ca used to be placed in the United States mail (first class, postage paid) orpersonally delivered a true copy ofthe foregoing Order addressed to:

Counsel for Complainants
Adrian Miller HOLLAND 

### & HART LLP 401 North 31st Street Suite 1500 Billings, Montana 59101
Counsel for Respondent City
Brian Lilletvedt BOSCH, KUHR, DUGDALE, MARTIN, & KAZE, PLLP 335 Fourth Avenue P.O. Box 7152 Havre, Montana 59501
Counsel for Respondent County
Mitchell A. Young MONTANA ASSOCIATION OF COUNTIES Defense Services 2717 Skyway Drive, Suite F Helena, Montana 59602
Hand

-Delivered to:
FAA Part 16 Airport Proceedings Docket (AGC-600) FAA Office ofAirport Compliance and Management Analysis (AC0

- 1 00)

# (}£~ Claudia Roberts Office ofAirport Compliance and Management Analysis