UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

Safer Medical of Montana and 

George Ackerson 

Complainants, 

v. 

City of Fort Benton, Montana and 

Chouteau County, Montana 

Respondents. 

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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 of Practice 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 of Practice. 

Safer Medical of Montana and George Ackerson (Complainants) filed a formal 

Complaint pursuant to 14 CFR Part 16 against City of Fort 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 of the 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 of Montana will not file a civil complaint with the 

FAA if Mayor 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 good 
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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 offer of settlement, 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 of any 

provision of any Act." Respondent County asserts that the Complainants' complaint is 

that "they are substantially affected by enforcement of a provision of an 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 of both the City and County of Chouteau, along with the Joint Airport Board 

members, resign with two weeks of the demand." Respondent Chouteau County claims 

"Complainants proposed a 'resolution' which they knew would be rejected out of hand as 

the sole method of settling their complaint." Respondent County asserts the action was 

not undertaken in good faith, and that the Complaint should be dismissed. 

Complainants in their 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 that 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 of the 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 complaint. The 

Complaint contains a section detailing the Complainants' efforts at pre-complaint 
resolution, 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 of the dispute. 

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As a condition of accepting a complaint for processing, an initial decision must be made 

as to whether a complainant certified that it initiated and engaged in goof faith 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 certification 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 of the 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 in pre-complaint 

resolution procedures fails. (See Martyn v. Port of Anacortes. 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 numerous 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 ofF AA to review and address. When 

information contained in the administrative record to a Part 16 complaint leads the 

agency to review areas of noncompliance - whether or not they are alleged by the 

complainant - the agency will, nonetheless, make a finding on those areas. [See for 

example, M. Daniel Carey and Cliff Davenport 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 of material 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 
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Assurance 5, Rights and Powers, Grant Assurance 22 Economic Nondiscrimination, and 

Grant Assurance 19, Operation and Maintenance. 

ACCORDINGLY, it is ordered that: 

Respondents' Motions to Dismiss the Complaint are denied. The Respondents shall, 

within 20 days of when this Order is served, file their Answers to the Complaint. 

. Huffman, Acting Dtrector 

Office of Airport Compliance 

and Management Analysis 

:1)?/; 6 

' Date 
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CERTIFICATE OF SERVICE 

HEREBY CERTIFY that on February j 2016, I caused to be placed in the United States mail 

(first class, postage paid) or personally delivered a true copy of the 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 of Airport Compliance and Management Analysis (AC0-1 00) 

(}£~ Claudia Roberts 

Office of Airport Compliance and 

Management Analysis