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 ofthe Federal Aviation Regulations Docket No
. 16-15-11



### MOTION FORLEAVE TOFILE REPLY IN SUPPORT OF SUMMARY JUDGMENT Respondent County ofMontrose, Colorado ("the County"), by and through its undersigned counsel, hereby submits this Motion for Leave to File Reply in Suppm1 ofSummary Judgment. The receipt ofnew evidence after the filing ofthe 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 thatJCP opposes any request by the County for leave to file a reply in support ofthe Motion for Summary Judgment. 

### ARGUMENT I. STANDARD FOR GRANTING LEAVETo FILEA REPLY The County acknowledges that the rules covering Part 16 proceedings do not expressly contemplate reply briefs in support ofmotions for summaryjudgment. However, this agency has

HRODEN\ 1742357.4discretion to permit the filing ofbriefs beyond those contemplated by the rules. See Cedarhurst Air Charter, Inc. v. County ofWaukesha, DocketNo. 16-99-14,2000 WL 1130495, *18 (Director's Determination (F.A.A. Apr. 6, 2000) (permitting filing ofa "response to rebuttal");
see also Town of Fairview v. City of McKinney, DocketNo. 16-99-04, 2001 WL 88072, *23 (Final Decision and Order) (F.A.A. Jan. 23, 2001) (Index ofAdministrative Record entry for April 20, 1999 listing "Rebuttal to Town ofFairview's Reply to Respondent's Motion to Dismiss"); see also F.A.A., 14 CFR Part 16- Rules andAdministrative Decisions, Frequently AskedQuestions, 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 LEAVETo FILE A REPLY EXISTHERE 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 ofevidence that have bearing onthe 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 ofLloyd 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 ExhibitB to accompanying Reply in Support ofMotion for Summary Judgment).) 2 HRODEN\1742357.4Second, the County receieved on October 28, 2015 a letter from counsel for Lawrence Danielle, formerly one ofthe co-owners ofMTJ FBO Partners, LLC ("MTJ"), advising that Mr. Danielle, Majestic Skies, LLC, and Four D's Montrose LLC, three ofthe co-owners ofMTJ, had assigned their ownership interest in MTJ itselfand the MTJFBO Agreementto TVP and an entity called TSG Asset Holdings, LLC as pat1 ofa 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 Answerthatthe action should not be dismissed pursuantto the cuiTent compliance doctrine because the County "has not fully effectuated tetmination ofthe 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 ofthe MTJ FBO Agreement and the TVP Ground Lease also forms a substantial pat1 ofthe basis for JCP's arguments relating to its Second, Fourth and Fifth Causes ofAction
. (Answer, pp. 15, 20-21.) JCP also argues that the structure ofthe Option Agreement between the County and TVP is pat1 ofthe basis for its Sixth Cause of Action. (Answer, pp. 22-23.) While the County believes that the termination ofthe 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 ofwhether MTJ and TVP "actively contest" the termination ofthose 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 ofchange in ownership structure ofMTJ and assignment ofinterests in the MTJ FBO Agreement is also highly significant. Under Section 9
.01 ofthe MTJ FBO Agreement, any "assignment" ofthe agreement must receive prior written
3 HRODEN \1

742357.4approval from the County. (Complaint, p. 4,**~** 8(a) & Exh. E- MTJFBO Agreement, p. 23, § 9.01.) The term "assignment" includes both an express assignment ofthe agreement itselfas well any "transfer ofcontrol ofOperator," 

### i.e., MTJ, including by "transfer ofshares or membership interests
...." (!d.) The County was unaware ofthe 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 ofthese pieces ofevidence were received only afterthe 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 OrIgnored TheApplicable Law Beyond the question ofa 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 ofrepetition but evading review" standard has any applicability to Part 16 proceedings Confronted with inefutable evidence thatthe County has terminated all ofthe agreements that it complains of, JCP attempts in its Answer to salvage its Complaintby contending that the federal comi standing doctrine of"actions capable ofrepetition 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 itselfor any federal comireviewing decisions ofthe FAA. This is patently because the "actions capable ofrepetition but evading review" standing doctrine is completely antithetical to the FAA's cunent compliance doctrine, which emphasizes
an examination ofwhether the cunent state ofaffairs complies with grant assurances.
4 HRODEN\ 1742357.4The gross incompatibility ofthe "capable ofrepetition but evadingreview" standard with the cunentcompliance doctrine is dramatically illustrated in DrakeAerialEnterprises, LLCv. City of Cleveland, DocketNo. 16-09

-02, 2010 WL 691303 (F.A.A. Feb. 22, 2010). In Drake, the respondent had originally permitted the complainant aerial bannertowing 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, butthe respondent denied the complainant access. See id. at *2. The complainant then filed a Part 16 complaint based in part on the denial ofaccess. See id. at *9. In its answerto 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 ofaccess were for a mere "60 cumulative days ofbanner towing" while the respondent "pursue[d] permanentlegislation to authorize and regulate bannertowing" at the airpmi. !d. at 

## *10. Importantly, no actual legislation had even been introduced by the respondent, rather the respondent was "preparedto submit the necessary legislative drafts" upon the occunence ofother 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 ofthePart 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 whetherthe respondent was in compliance, not the "speculative" claim that, but for the filing ofthe Pa1i 16 complaint, the respondent would have continued to discriminate against
5 HRODEN\1742357.4the 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 ofaccess 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 ifthe "capable ofrepetition but evadingreview" doctrine applied to FAA Pat116 proceedings. The respondent's behavior of repeatedly changing its position prior to litigation and seemingly relenting after the filing ofa complaint, but withouthaving actually made a permanent change, is precisely the form of behavior that would present an "action capable ofrepetition but evadingreview." See FECv. 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 ofthis Agency similarly demonstrate that the "action capable of repetition but evadingreview" doctrine does not apply to Part 16 proceedings and, in fact, is irreconcilable with the current compliance doctrine. 2. JCP ignores basic principles ofcontract law with regard to the alleged failure to "completely" terminate the agreements with MTJ and TVP Because it cannot dispute that the County has terminated the agreements thatJCP 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 ofthe agreements, thereby creating a risk of"future litigation." (Answer, pp. 12, 14-16, and 21.) Setting aside the fact that, by trying tojustify its Complaint by reference to the hypothetical risk of"future

6 HRODEN\1742357.4litigation,"' JCP proves a lack ofripeness in its claims,this also ignores basic principles of contract law. As a matter ofblack 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, itdoes 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 comtto grant them specificperformance ofthose agreements, which they have not event attempted to attain as ofthe filing ofthis Motion. Thus, JCP's contention that the County

"has not fully effectuated termination" ofthe agreements (Answer, p. 12), is false as a matter of law. As futther explained in the Reply, the probability ofeither MTJ or TVP obtaining specific performance ofthe 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 ofthe entity that the Board ofCounty 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 ofthe MTJ FBO Agreement, the County must approve any attempt to assign the MTJ FBO Agreement, whether via a direct assignment ofthe agreement or by a change in the ownership structure ofMTJ. (See Complaint, p. 4,

**~** 8(a) & Exh. E, p. 23, 

### § 9.01.) The County has the right to reject any attempt to assign the MTJFBO Agreement ifthe County has "reasonable and verifiable concems regarding the assignee's ability, based on
1 As ofthe filing ofthis Motion, neither MTJ nor TVP has commenced any litigation against the County for any reason. (Second Amold Aff., p. 2,

**~** 5.)
7 HRODEN\ 1742357.4experience and financial strength, to operate the FBO as a going concern." (!d.) The County has been informed that the prior owners ofJetAway Aviation are some ofthe individuals with an increased ownership interest in MTJ, and given the County'sprior experience with those individuals, including two Part 16 proceedings and numerous other legal proceedings, the County will not agree to an assignment ofthe MTJFBO Agreement to the new entity even ifthe 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 ofthe now-terminated agreements, it is highly implausible that they would be granted such reliefby a court. Cf 81A C.J.S. Specific Performance§ 13 ("a court will not grant specific performance where one ofthe patties might nullify its actionby exercising discretion to terminate given him or her by the terms ofthe contract"). CONCLUSION There are strong grounds for permitting the County leave to file a reply in suppmtofits 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 offact where none exists
. Accordingly the County should be permitted leave to file a reply addressed to those specific issues. A form ofreply in support ofits Motion for Summary Judgment with accompanying exhibits is attached hereto. Respectfully submitted this 30th day ofOctober, 2015
.

HRODE N

\1742357.4 Bo ee J. Musgra " , Colo
.Reg.# 12440 Stephen D. Rynerson, Colo
.Reg. # 34825 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203-4541 8Special 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 8140I
CERTIFICATE OF SERVICE I hereby certify that on this 30th day ofOctober, 2015, a true and conectcopy ofthe foregoing document was served upon the following persons at the following address via Federal Express and e-mail: Office ofthe ChiefCounsel Attention: FAA Part 16 Airpm1 Proceedings Docket, AGC-610 Federal Aviation Administration 800 Independence Ave., S.W. Washington, D.C. 20591 E-mail: 9-AWA-AGC-Patt-16@faa.gov (1 original and 3 copies)
Leonard D. Kirsh Shelley A. Ewalt McBreen & Kopko 500 NmthBroadway Jericho, New York 11759 E-mail: LKirsch@mklawnyc.com sewalt@mklawnyc.com Complainant's Counsel (1 copy)

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