DOUGLAS S. CHIN Attorney General ofHawaii GLENN L KIMURA Deputy Attorney General Department ofthe Attorney #6465
#2034 General, State ofHawaii 465 S. King Street, Room 300 Honolulu, Hawaii 96813 Telephone: (808) 587-2997 Email: gle1m.i.kimura@hawaii.gov Attorneyfor Respondent BEFORE THE FEDERALAVIATION ADMINISTRATION WASHINGTON, D.C.
FRANK HINSHAW, SKYDIVING SCHOOL, INC., d/b/a SKYDIVE HAWAII and ISLAND SKYDIVING, L.L.C. Complainant,
vs. STATE OF HAWAII, Respondent. FAADOCKETNO. 16-12-04 STATE OF HAWAII'S MEMORANDUM IN OPPOSITION TO MOTIONFOR SANCTIONS; CERTIFICATE OF SERVICE

STATE OF HAWAII'S MEMORANDUM IN OPPOSITION TOMOTION FOR SANCTIONS Respondent STATE OF HAWAil (hereinafter "State"), by and through its attorneys, Douglas S. Chin, Attorney Genen\[;·and Glenn I. Kimura, DeputyAttorney General, hereby respond to Complainant's Motionfor Sanctions inthe above-caption matter as follows: The State has been charged with the responsibility to develop rules and regulations to accomplish the safe integration ofthe Parachute Landing Zone ("PLZ") into Hana Airp01t's

598288_1.DOCoverall operations and to enterinto good faith negotiations with the Complainant. Tothis end, the State attempted to hold good-faith negotiations withthe Claimant on two occasions. Complainant did not attend the first good-faith negotiations held at Kahului, Maui, in October, 2014. Complainant did attend a subsequentmeeting onNovember 25,2014. The provisions that
were included in the Letter OfAgreement ("LOA") were the basis ofthe discussion at the meeting at whichtime Complainant refused to consider any provisions beyondwhat was required by 14 CPR Part 105. Complainant snbsequently agreed to comply with use ofthe CommonTrafficAdvisory Frequency. The LOA forwarded to Complainant was intended to provide a framework for the safe integration ofthe PLZ into the overall operations at Hana Airport and address the liability concerns ofboththe State and the residents ofHana. Wehave revised the LOA, removing references to USPA, D-levellicenses and the BSR as well as the personal liabilityprovisions. 

### I. Personal Liability Requirement: Proofofinsurance is acceptable for any need for personal accountability. Complainant's skydiving operations will be conducted as a Limited Liability Corporation. Insurance coverage for skydiving operations are not available. We are mindful that having a signed waiver provision will not preventthe filing ofa Iawsuit. It is thejudgment ofthe Statethat a standard defense and indemnificationprovision is insufficientto protect the State against the backdrop ofbankruptcy. 

### II. ComplianceBased On Advisory Materials: While FAA advisory materials maynotbemandatory, the decision to follow such information cannotbe criticized as the word "advisory"by definition mans "having the power or right to make suggestions 

### about what should be done: able to give advice". Merriam-Webster Dictionary (Bold Print Added). Complainant's suggestion that the FAA issues advisory

598288 l.DOC 2materials are meaningless is misplaced as it also suggests that such materials can be ignored. It should bethe discretion ofthe Airport Operator on whether such materials are adopted as it is ultimatelyresponsible for the safe operations ofthe airport facility. 

### IV. Preference Between Aeronautical Activity: The State's intent is not to give preference to one aeronautical activity over another; rather, to mitigate risks to all. To that end, the State is dropping its prohibition ofskydiving when the nmway is in use for arrivals or departures. The 

### small size and very close proximity of the PLZ to the existing adjacent helicopter operating area will result in parachutists t1ying through the helicopter area on approach to the PLZ, which is a safety concernto the State. 

### V. BanningPersonnel from Public Areas: The State does not consider runways (including the RSA) and taxiways to be "Public Areas". These are considered operational areas and not open to the public at any state airpo1i. Requiring a skydiver who inadvertently lands on the runway to vacate it as soon as practical ret1ects a best practice recommendationbythe FAA in AC l05E. 

### VI. Providing Customer Information to Respondent: The State is a third-partybeneficiary ofany waiver agreements executedby its customers. To suggest that the State is not entitled to review such agreements in insure protection ofits liability exposure is groundless. 

### VII. Conclusion: Based onthe foregoing, Respondent respectfully urges that the Motion for Sanctions should be denied.

598288 l.DOC 3DATED: Honolulu, Hawaii, May 22, 2015.

598288 1. DOC 4 

# CKLJ

**~<** GLENN I. KIMURA Deputy Attorney General Attorney for Respondent StateofHawaiiBEFORE THE FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. FRANKHINSHAW, SKYDIVING SCHOOL, INC., d/b/a SKYDIVE HAW All and ISLAND SKYDIVING, L.L.C. CERTIFICATE OF SERVICE
Complainant,
vs. STATE OF HAWAII, Respondent

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May21, 2015, a true copy ofthe foregoing documentwas served on the following:

598288 l.DOC RICHARD 

### J. DURDEN, ESQ. Richard J. Durden, Attorney at Law 27987 Richmond Hill Road Conifer, CO 80433 Attomey for Complainant FAA Part 16 Airport Proceedings Docket AGC-610, Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Email: 9-AWA-AGC-Part-16@faa.gov Via U.S. Mail

Via Electronic MailDATED: Honolulu, Hawaii, May22,2015.

598288 l.DOC 2 

# Uy~~ GLENN I. KIMURA DeputyAttorney General Attorney for Respondent State ofHawaii