FEDERAL AVIATION ADMINISTRATION 

DEPARTMENT OF TRANSPORTATION 

In re the Complaint of: 

JET CENTER PARTNERS, LLC 

Complainant 

-againstCOUNTY OF MONTROSE, COLORADO 

Respondent. 

Pursuant to Pm1 16 of the Federal Aviation 

Regulations 

Docket No. 16-15-11 

MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF SUMMARY JUDGMENT 

Respondent County of Montrose, Colorado ("the County"), by and through its 

undersigned counsel, hereby submits this Motion for Leave to File Reply in Suppm1 of Summary 

Judgment. The receipt of new evidence after the filing of the County's Motion for Summary 

Judgment on September 16, 2015 and ce11ain points raised in the Answer to Motion for 

Summary Judgment ("Answer") filed by Complainant Jet Center Pat1ners, LLC ("JCP"), filed 

October 9, 2015, and give grounds for seeking leave to address those nanow issues. 

STATEMENT OF CONFERRAL REGARDING THIS MOTION 

Counsel for JCP has advised the County that JCP opposes any request by the County for 

leave to file a reply in support of the Motion for Summary Judgment. 

ARGUMENT 

I. STANDARD FOR GRANTING LEAVE To FILE A REPLY 

The County acknowledges that the rules covering Part 16 proceedings do not expressly 

contemplate reply briefs in support of motions for summary judgment. However, this agency has 

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discretion to permit the filing of briefs beyond those contemplated by the rules. See Cedarhurst 

Air Charter, Inc. v. County of Waukesha, Docket No. 16-99-14,2000 WL 1130495, *18 

(Director's Determination (F.A.A. Apr. 6, 2000) (permitting filing of a "response to rebuttal"); 

see also Town of Fairview v. City of McKinney, Docket No. 16-99-04, 2001 WL 88072, *23 

(Final Decision and Order) (F.A.A. Jan. 23, 2001) (Index of Administrative Record entry for 

April 20, 1999 listing "Rebuttal to Town of Fairview's Reply to Respondent's Motion to 

Dismiss"); see also F.A.A., 14 CFR Part 16- Rules and Administrative Decisions, Frequently 

Asked Questions, FAQ 9, http://pati16.airpmis.faa.gov/index.cfm?page=FAQ#A9 (noting that 

leave may be sought by motion to file documents other than those contemplated by the rules and 

that such filings may be permitted by the FAA "at its discretion"). Good cause for permitting a 

reply exists here as set fmih below. 

II. GROUNDS FOR GRANTING LEAVE To FILE A REPLY EXIST HERE 

A. The County Received New Evidence After It Filed Its Original Motion That 

Has Bearing On The Arguments Made By JCP In Its Answer 

After the County filed its Motion for Summary Judgment on September 16,2015, it 

received two additional pieces of evidence that have bearing on the arguments made by JCP in 

its Answer. 

First, the County received on September 17, 2015 a letter from Telluride Venture 

Partners, LLC ("TVP") stating that, because the County had terminated the Montrose Regional 

Airpmi Ground Lease ("TVP Lease") on September 1, 2015 (as discussed.in the Motion for 

Summary Judgment), that TVP also considers the Option to Purchase Land that accompanied the 

TVP Lease to be terminated as well. (See Second Affidavit of Lloyd Arnold ("Second Arnold 

Aff."), p. 1, ~ 4 & Exh. 4- Letter from Thomas J. Byrne to Bobbee J. Musgrave, Sept. 17,2015, 

p. 1 (attached as Exhibit B to accompanying Reply in Support of Motion for Summary 

Judgment).) 

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Second, the County receieved on October 28, 2015 a letter from counsel for Lawrence 

Danielle, formerly one of the co-owners ofMTJ FBO Partners, LLC ("MTJ"), advising that 

Mr. Danielle, Majestic Skies, LLC, and Four D's Montrose LLC, three of the co-owners ofMTJ, 

had assigned their ownership interest in MTJ itself and the MTJ FBO Agreement to TVP and an 

entity called TSG Asset Holdings, LLC as pat1 of a settlement agreement. (See Second Arnold 

Aff., p. 1, ~ 6 & Exh. 5- Letter from Michael B. Manes to Bobbee J. Musgrave, Oct. 28,2015, 

p. 1.) 

JCP argues in its Answer that the action should not be dismissed pursuant to the cuiTent 

compliance doctrine because the County "has not fully effectuated tetmination of the MTJ FBO 

Agreement and the TVP Ground Lease," because the "purpmted terminations are actively 

contested by MTJ and TVP .... " (Answer, p. 12.) This contention that MTJ and TVP are 

"actively contest[ing]" the termination of the MTJ FBO Agreement and the TVP Ground Lease 

also forms a substantial pat1 of the basis for JCP's arguments relating to its Second, Fourth and 

Fifth Causes of Action. (Answer, pp. 15, 20-21.) JCP also argues that the structure of the 

Option Agreement between the County and TVP is pat1 of the basis for its Sixth Cause of 

Action. (Answer, pp. 22-23.) 

While the County believes that the termination of the MTJ FBO Agreement and the TVP 

Ground Lease as detailed in its Motion for Summary Judgment should be sufficient in and of 

themselyes to cure the alleged grant assurance violations regardless of whether MTJ and TVP 

"actively contest" the termination of those agreements, TVP's acknowledgment that the option 

agreement accompanying the TVP Lease has been terminated as well fUither undercuts the 

foundations ofJCP's Complaint. The evidence of change in ownership structure of MTJ and 

assignment of interests in the MTJ FBO Agreement is also highly significant. Under Section 

9.01 of the MTJ FBO Agreement, any "assignment" ofthe agreement must receive prior written 

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approval from the County. (Complaint, p. 4, ~ 8(a) & Exh. E- MTJ FBO Agreement, p. 23, § 

9.01.) The term "assignment" includes both an express assignment ofthe agreement itself as 

well any "transfer of control of Operator," i.e., MTJ, including by "transfer of shares or 

membership interests .... " (!d.) The County was unaware of the assignment and change in 

ownership ofMTJ at the time it filed its Motion for Summary Judgment and did not give 

approval for the change. (See Second Arnold Aff., p. 2, ~ 7.) 

As both of these pieces of evidence were received only after the filing deadline for the 

County's Motion for Summary Judgment and they have direct bearing on the arguments made by 

JCP in its Answer, leave should be granted for a reply by the County to address this additional 

evidence. 

B. JCP Has Mischaracterized Or Ignored The Applicable Law 

Beyond the question of a reply being needed to address new evidence relating to the 

arguments raised by JCP in its Answer, JCP's Answer also calculatedly mischaracterizes or 

ignores certain legal principles applying to the questions before this agency. 

1. JCP cites no FAA-related authority for the proposition that the 

"capable of repetition but evading review" standard has any 

applicability to Part 16 proceedings 

Confronted with inefutable evidence that the County has terminated all of the agreements 

that it complains of, JCP attempts in its Answer to salvage its Complaint by contending that the 

federal comi standing doctrine of "actions capable of repetition but evading review" applies here. 

(Answer, pp. 11-12.) However, JCP cites no FAA-related authority applying that doctrine to 

Pmi 16 proceedings, whether from the FAA itself or any federal comi reviewing decisions of the 

FAA. This is patently because the "actions capable of repetition but evading review" standing 

doctrine is completely antithetical to the FAA's cunent compliance doctrine, which emphasizes 

an examination of whether the cunent state of affairs complies with grant assurances. 

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The gross incompatibility ofthe "capable of repetition but evading review" standard with 

the cunent compliance doctrine is dramatically illustrated in Drake Aerial Enterprises, LLC v. 

City of Cleveland, Docket No. 16-09-02, 2010 WL 691303 (F.A.A. Feb. 22, 2010). In Drake, 

the respondent had originally permitted the complainant aerial banner towing company to 

operate from its airpmi, but three years later the respondent changed its position and disallowed 

towing operations. See 2010 WL 691303 at * 1. The respondent then changed position again a 

year later and invited the complainant to resume operations, but the complainant declined to do 

- so because it considered the respondent's conditions for access to be unreasonable. !d. Later, 

the complainant approached the respondent about again resuming operations from the airpm1, 

but the respondent denied the complainant access. See id. at *2. The complainant then filed a 

Part 16 complaint based in part on the denial of access. See id. at *9. In its answer to the 

complaint, the respondent stated that it had "reviewed its position" and was now going to offer 

the complainant access to the airport on a limited basis. !d. The te1ms of access were for a mere 

"60 cumulative days of banner towing" while the respondent "pursue[ d] permanent legislation to 

authorize and regulate banner towing" at the airpmi. !d. at * 10. Importantly, no actual 

legislation had even been introduced by the respondent, rather the respondent was "prepared to 

submit the necessary legislative drafts" upon the occunence of other contingencies. See id. at 

* 14. 

The complainant argued that the respondent's change in position was both insufficient on 

a going forward basis because it was purely reactive to the filing ofthe Part 16 complaint and did 

nothing to remedy past discrimination. See id. at * 11-12. The director rejected these arguments, 

stressing that it was the respondent's "last offer or negotiating posture" that was relevant in 

determining whether the respondent was in compliance, not the "speculative" claim that, but for 

the filing of the Pa1i 16 complaint, the respondent would have continued to discriminate against 

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the complainant. See id. Thus, because in its answer the respondent had offered the complainant 

temporary access to the airp011 and a possible legislative solution, the Director concluded that 

any alleged grant assurance violations relating to the denial of access were sufficiently cured for 

the respondent to be deemed to be in current compliance. See id. at * 12. 

Drake could not have reached the result that it did if the "capable of repetition but 

evading review" doctrine applied to FAA Pat116 proceedings. The respondent's behavior of 

repeatedly changing its position prior to litigation and seemingly relenting after the filing of a 

complaint, but without having actually made a permanent change, is precisely the form of 

behavior that would present an "action capable ofrepetition but evading review." See FEC v. 

Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007) (the doctrine applies "applies where (1) 

the challenged action is in its duration too short to be fully litigated prior to cessation or 

expiration, and (2) there is a reasonable expectation that the same complaining pa11y will be 

subject to the same action again.") (internal quotation marks omitted). As discussed in the reply 

itself, numerous other decisions of this Agency similarly demonstrate that the "action capable of 

repetition but evading review" doctrine does not apply to Part 16 proceedings and, in fact, is 

irreconcilable with the current compliance doctrine. 

2. JCP ignores basic principles of contract law with regard to the alleged 

failure to "completely" terminate the agreements with MT J and TVP 

Because it cannot dispute that the County has terminated the agreements that JCP 

complains of, JCP argues that grant assurance violations may still be deemed to be ongoing 

because MTJ and TVP purp011edly have "actively contested" the termination of the agreements, 

thereby creating a risk of "future litigation." (Answer, pp. 12, 14-16, and 21.) Setting aside the 

fact that, by trying to justify its Complaint by reference to the hypothetical risk of "future 

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litigation,"' JCP proves a lack of ripeness in its claims, this also ignores basic principles of 

contract law. 

As a matter of black letter law: 

When a contract is terminated, even wrongfully, there is no longer a contract-

' no contract' - no duty to perform and no right to demand performance, 

unless specific performance is sought, which it is not here; there is only a right 

to seek and a duty to pay damages caused by the termination. 

Horwitz-Matthews, Inc. v. City ofChicago, 78 F.3d 1248, 1251 (7th Cir. 1996) (emphasis 

added). In other words, it does not matter ifMTJ and TVP disagree with the County's decision 

to terminate its agreements with them - the agreements are tetminated and MTJ and TVP no 

longer have any rights under those agreements unless and until such time as they successfully 

persuade a comt to grant them specific performance of those agreements, which they have not 

event attempted to attain as of the filing of this Motion. Thus, JCP's contention that the County 

"has not fully effectuated termination" of the agreements (Answer, p. 12), is false as a matter of 

law. As futther explained in the Reply, the probability of either MTJ or TVP obtaining specific 

performance of the agreements, assuming they even pursue such relief, is remote, and thus does 

not give any basis for finding a current grant assurance violation. 

Moreover, the owners of the entity that the Board of County Commissioners approved to 

develop a second FBO at the Montrose Regional Airpmt have changed. (Second Amold Aff., p. 

2, ~ 5.) Pursuant to Section 9.01 of the MTJ FBO Agreement, the County must approve any 

attempt to assign the MTJ FBO Agreement, whether via a direct assignment of the agreement or 

by a change in the ownership structure ofMTJ. (See Complaint, p. 4, ~ 8(a) & Exh. E, p. 23, § 

9.0 1.) The County has the right to reject any attempt to assign the MTJ FBO Agreement if the 

County has "reasonable and verifiable concems regarding the assignee's ability, based on 

1 As of the filing of this Motion, neither MTJ nor TVP has commenced any litigation 

against the County for any reason. (Second Amold Aff., p. 2, ~ 5.) 

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experience and financial strength, to operate the FBO as a going concern." (!d.) The County has 

been informed that the prior owners of JetAway Aviation are some of the individuals with an 

increased ownership interest in MTJ, and given the County's prior experience with those 

individuals, including two Part 16 proceedings and numerous other legal proceedings, the 

County will not agree to an assignment of the MTJ FBO Agreement to the new entity even if the 

MTJ FBO Agreement was otherwise found by a court to have not been terminable for some 

reason. (Second Arnold Aff. , p. 2, ~ 7.) As such, even in the unlikely event that MTJ or TVP 

were to seek specific performance of the now-terminated agreements, it is highly implausible 

that they would be granted such relief by a court. Cf 81A C.J.S. Specific Performance§ 13 ("a 

court will not grant specific performance where one of the patties might nullify its action by 

exercising discretion to terminate given him or her by the terms of the contract"). 

CONCLUSION 

There are strong grounds for permitting the County leave to file a reply in suppmt of its 

Motion for Summary Judgment. New evidence that is directly relevant to the arguments made 

by JCP in its Answer was received by the County for the first time after it filed its Motion for 

Summary Judgment and JCP has seriously mischaracterized the relevant law in an effmt to 

generate a disputed issue of fact where none exists. Accordingly the County should be permitted 

leave to file a reply addressed to those specific issues. A form of reply in support of its Motion 

for Summary Judgment with accompanying exhibits is attached hereto. 

Respectfully submitted this 30th day of October, 2015. 

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Bo ee J. Musgra " , Colo. Reg.# 12440 

Stephen D. Rynerson, Colo. Reg. # 34825 

1700 Lincoln Street, Suite 4100 

Denver, Colorado 80203-4541 

8 
Special Counsel to the Board of County 

Commissioners of the County of Montrose, 

Colorado 

Montrose County Attorney's Office 

Carolyn Clawson, Colo. Reg.# 19717 

Deputy County Attorney 

161 S. Townsend Ave. 

Montrose, CO 8140 I 

CERTIFICATE OF SERVICE 

I hereby certify that on this 30th day of October, 2015, a true and conect copy ofthe 

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

Express and e-mail: 

Office of the Chief Counsel 

Attention: FAA Part 16 Airpm1 Proceedings Docket, 

AGC-610 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

E-mail: 9-A WA-AGC-Patt-16@faa.gov 

(1 original and 3 copies) 

Leonard D. Kirsh 

Shelley A. Ewalt 

McBreen & Kopko 

500 Nmth Broadway 

Jericho, New York 11759 

E-mail: LKirsch@mklawnyc.com 

sewalt@mklawnyc.com 

Complainant's Counsel 

(1 copy) 

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