### FEDERAL AVIATION ADMINISTRATION OFFICE OF THE CHIEF COUNSEL

SKYDIVE MYRTLE BEACH, INC., Complainant,

v. 

### HORRY COUNTY DEPARTMENT OF AIRPORTS, Respondent. ) ) ) ) ) ) ) ) ) ) )



### --------------------------~) FAADocketNo.16-14-05



# ~IE~. **~\Yl!E~** 

# I AUG 25Z014 

# I
PART 16 DOCKETS
RESPONDENT'S MOTION TODISMISS 

### Pursuant to 14 CFR § 16.26(b)(i) and (ii), Respondent Horry County Department ofAirports ("HCDA") hereby respectfully requests that the Federal Aviation Administration (the "FAA'') dismiss Complainant Skydive Myrtle Beach, Inc.'s ("SDMB") Part 16 Formal Complaint (the "Complaint") with prejudice. In its Complaint SDMB presents a disjointed array ofallegations, primarily on issues that

are governed exclusively by South Carolina law. These allegations, whichpredominantly relate to SDMB's occupancy ofa hangar at Grand Strand Airport (CRE/GSA) and its use ofother CRE/GSA facilities, are already being litigated in South Carolina state courts and, more importantly, are beyond the FAA's Part 16jurisdiction. Additionally, these state law allegations do notmake outa claim for violation ofHCDA's federal grant obligations. SDMB has not identified any similarly situated tenants at CRE/GSA who are being treated differently by HCDA. Indeed, the record presented by SDMB makes clear that HCDA has offered the same form ofspace use permit to all other tenants at CRE/GSA, and SDMB is the only tenant to refuse the terms in the proffered permit. HCDA's federal grant obligations do not give SDMB a right to insist on more favorable terms than

4845-1384-7069.1

### other, comparable tenants. Finally, in compliance with its grant obligations, HCDA has continued
to permit SDMB access to CRE/GSA's aeronautical facilities, includingthe runway, taxiways, and parachute landing zone. The remainder ofthe allegations in SDMB's Complaint center on SDMB's objection to its obligation, as one ofmany aeronautical users at CRE/GSA, to contact the air traffic control tower before crossing active runways or taxiways, and its objection to the standard written records HCDA

uses to document safety incidents at CRE/GSA. These allegations should also be dismissed with prejudice because they do not state a claim that warrants an investigation or further action by the FAA. SDMB does not identify any federal law or regulation that HCDA has allegedly violated by implementing the communications and documentation protocols referenced above. Read most liberally, the Complaint appears to be an inartful attempt to assert that HCDAhas violated Grant Assurance 22, which prohibits airport sponsors from unjustly discriminating amongst aeronautical operators at their airports. Nothing could be further from the truth. HCDA has properly balanced its obligations under Grant Assurance 22 with its obligation under Grant Assurance 19 to maintain CRE/GSA's movement areas in a "safe and serviceable condition." Moreover, HCDA has followed approved FAA protocols for safety risk management, and is properly tracking safety incidents in order to develop means to mitigate the hazards they present. WHEREFORE, for the reasons set forth inthis Motion andthe accompanying Memorandum ofPoints and Authorities, HCDA respectfully requests the FAA to dismiss SDMB's Complaint, in its entirety, with prejudice.

2 4845-1384-7069.13 4845-1384-7069.1 Respectfully submitted, HORR Y COUNTY DEPARTMENT OF AIRPORTS,

David

. ard, Es
. Jeffrey R. Blease, Esq. Jaclyn V. Piltch, Esq. FOLEY & LARDNER LLP 111 Huntington Avenue Boston, MA 02199 Tel: (617) 342-4000 Fax: (617) 342-4001 dbannard@foley.com jblease@foley.com jpiltch@foley.comFEDERAL AVIATION ADMINISTRATION OFFICE OF THE CHIEF COUNSEL

SKYDIVE MYRTLE BEACH, INC., Complainant,

v. HORRY COUNTY DEPARTMENT OF AIRPORTS, Respondent. ) ) ) ) ) ) ) ) ) ) ) FAADocketNo. 16-14-05



# _____________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFRESPONDENT'S MOTION TO DISMISS

Respectful!y submitted, HORRY COUNTY DEPARTMENT OF AIRPORTS,

David Y. Bannard, Esq. Jeffrey 

### R. Blease, Esq. Jaclyn 

### V. Piltch, Esq. FOLEY & LARDNERLLP 111 HuntingtonAvenue Boston, MA 02199 Tel: (617) 342-4000 Fax: (617) 342-4001 dbannard@foley.com jblease@foley.com jpiltch@foley.com

### TABLE OF CONTENTS
INTRODUCTION

................................................................................................................................ 1 BACKGROUND

.................................................................................................................................. ! 

### LEGAL STANDARD

..........................................................................................................................4 SDMB'S COMPLAINT

.......................................................................................................................6 Allegations Relating to Matters Outside the FAA's Jurisdiction

.............................................6 The Remaining Allegations in the Complaint

..........................................................................7 ARGUMENT

..................................................................................................................................... 15 I. The Complaint Should Be Dismissed With Prejudice For Failure To State A Claim ForAny Conduct Falling Within The FAA's Jurisdiction

..................................................... 15 II. The State Law Claims In SDMB's Complaint Should Be Dismissed

................................... 15 A. 

### The State Law Claims Alleged In The Complaint Are Outside The FAA's Jurisdiction

................................................................................................................. 16 B. 

### The State Law Allegations In 

### The Complaint Do Not Make Out A ClaimFor Violation OfHCDA's Federal Obligations

................................................................l7 C. SDMB's "Harassment" Claim Is A State Law Claim That Must Be Dismissed

................................................................................................................... 18 III. SDMB's Remaining Allegations Do Not State A Claim That Warrants An Investigation Or Further Action By The FAA

.......................................................................20 A. 

### SDMB's Proposed Interpretation Of 14 CFRPart 105 And 14 CFR 

### § 139.329 Is Both Incorrect And Dangerous

...............................................................................20 B. Neither The Documentation Protocol Nor The Purported Landing Zone Restrictions Violate HCDA's Federal Grant Obligations

..........................................23 CONCLUSION

..................................................................................................................................26

4840-8467.7148.4

### TABLE OFAUTHORITIES
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................ 15, 18 

### Ashton v. City of Concord, NC, FAA DocketNo. 16-00-01 (Apr. 17, 200I) (Final Decision and Order) .............................................................................................................................. 16 

### Bregman v. Perles, 747 F.3d 873 (D.C. Cir. 2014)..............................................................................8 

### Chambers v. UnitedStates DO!, 568 F.3d 998 (D.C. Cir. 2009)....................................................... 15 

### Citizens to Save Spencer County v. UnitedStates EPA, 600 F.2d 844 (D.C. Cir. 1979)
...................22 

### Desert Wings Jet Center, LLC v. City of Redmond, Oregon, FAA DocketNo. 16-09-07 (Nov. 10, 2010) (Director's Determination) ..........................................................................23 

### DrakeAerialEnters., LLCv. City of Cleveland, FAADocketNo. 16-09-02 (Feb. 22, 2010) (Director's Determination).....................................................................................................23 

### HillAir Co. v. Broward County Comm 'rs, FAA DocketNo. 13-93-07 (Jan. 31, 2006) (Record ofDecision) .............................................................................................................. 19 

### In re Cheney, 406 F.3d 723 (D.C. Cir. 2005).......................................................................................8 

### LongIslandJet Center East, Inc. v. County of Suffolk, New York, FAA DocketNo. 16-04-05, 2005 FAA LEXIS 66 (Jan. 21, 2005) (Director's Determination)
........................ 16 

### Nat'1

### AirliftSupport Corp. v. Fremont Cty. Ed. of Comm 'rs, FAA DocketNo. 16-98-18 (May 3, 1999) (Director's Determination), 

### aff'd, (Sept. 20, 1999) (Final Decision and Order) .............................................................................................................................. 18 

### PenobscotAirServ. v. Knox Cty., FAA DocketNo. 16-97-04 (Sept. 25, 1997) (Director's Determination), 

### aff'd, PenobscotAirServ. v. FAA, 164 F.3d 713 (1st Cir. 1999)
................ 16 

### RoadhouseAviation v. City of Tulsa & 

### the TulsaAirportsImprovements Trust, FAA DocketNo. 16-05-08 (Dec. 14, 2006) (Director's Determination)........................................l9 

### RoadhouseAviation, LLC v. City of Tulsa & 

### the TulsaAirportsImprovement Trust, FAA DocketNo. 16-05-08 (June 26, 2007) (Final Decision and Order)..................................l6, 23 

### Skydive Monroe, Inc. v. City of Monroe, Georgia, FAADocketNo. 16-06-02, 2007 FAA LEXIS 117 (Mar. 30, 2007) ............................................................................................. 17-18 

### SpringfieldFlightAcad. v. City of Springfield, FAA DocketNo. 16-10-03 (Aug. 25, 2011) (Director's Determination) ............................................................................................... 16, 18

11 4840·8467-7148.4

### Statutes, Rules, and Regulations 49 U.S.C. § 4710l(a) (2012) ................................................................................................................4 49 U.S.C. §47107(a) (2012) ................................................................................................................4 14 CPR§ 16.1 .................................................................................................................................... 15 14 CPR§ 16.26(b)(i) ......................................................................................................................l, 15 14 CPR§ 16.26(b)(ii).....................................................................................................................l, 15 14 CPRPart 105 ..........................................................................................................................passim 14 CPR§ 105.5 ..................................................................................................................................22 14 CPR Part 139 ..........................................................................................................................passim 14 CPR§ 139.329 .............................................................................................................. 2, 12, 20-21 OtherAuthorities Airport Cooperative Research Program, GeneralAviation Safety andSecurity Practices:A Synthesis of AirportPractice 

### (2007) ......................................................................................20 FAA Advisory Circular (AC) No. 105-2E, Sport Parachuting (Dec. 4, 2013)
..................................22 FAAAdvisory Circular (AC) 

### 150/5200-37, Introduction to Safety Management Systems (SMS)forAirport Operators 

### (Feb. 28, 2007) ........................................................................25 FAA Airport Compliance Manual, FAA Order 5190.6B (Sept. 30, 2009)
...........................4-6, 24-25 FAAAirport Sponsor Assurances (Mar. 2014) ......................................................................... 4-5,23 FAAFact Sheet- Runway Safety (July 19, 2013) ..............................................................................5 FAAFinal Report DOT 

### IFAA/AR-11130, Development of Criteria for Parachute Landing Areas onAirports 

### (May 2012) ......................................................................................... 23-25 FAA Form 5010 "AirportMaster Record" for Grand Strand Airport at North Myrtle Beach (July 24, 2014)..........................................................................................................................4 FAA Grant Assurance 19 ..........................................................................................:.................passim FAA Grant Assurance 22 ............................................................................................................passim FAA Guide to Ground Vehicle Operations: A Comprehensive Guide to Safe Driving onthe Airport Surface .......................................................................................................................21 FAANational Plan ofintegrated Airport Systems (NPIAS), 2013-2017............................................4 lil 4840-8467-7148.4Pursuantto 14 CFR 

### § 16.26(b)(i) and (ii), Respondent Harry County Department ofAirports ("HCDA") hereby respectfully requests that the Federal Aviation Administration (the "FAA") dismiss Complainant Skydive Myrtle Beach, Inc.'s ("SDMB") Part 16 Formal Complaint (the "Complaint") withprejudice. INTRODUCTION Rather than simply comply with standard requests from HCDAto conduct its operations at Grand Strand Airport in a safe and commercially reasonable manner, and to undertake lawful occupancy ofpremises on airport property, SDMB has launched a full legal assault on Harry County in state court and inthis proceeding. However, as this Motion will demonstrate, claims of "unjust discrimination" are exaggerated and, in some instances, concocted, to draw attention away from SDMB's refusal to abide by a few simple rules grounded in safety and efficiency, and the airport's proprietary power, and applicable to all aeronautical users at the airport. BACKGROUND This Complaint arises out ofSDMB's refusal to abide bythe same rules and regulations as all other aeronautical users at Grand Strand Airport inNorth Myrtle Beach, South Carolina ("CRE/GSA"). 1 SDMB currentlyuses CRE/GSA as a base ofoperations for its skydiving business, and has a designated landing zone on airportproperty. SDMB lawfully occupied a hangar at CRE/GSA through a Space Use Permit until thatpermit expired onJanuary 31, 2014. SDMB continues to occupy the hangar unlawfully following expiration ofthatpermit. Harry County has filed an ejectment action in South Carolina state court against SDMB and the magistratejudgehas ordered eviction. SDMB has appealed this order.

1 As noted infra at 7 n.8, CRE is the three-letter abbreviation code for Grand Strand Airport, but SDMB refers to the airport in its Complaint as GSA. 1 4840-8467-7148.4SDMB presents a disjointed array ofallegations in its Complaint that mostly relate to the hangar and its use ofCRE/GSAfacilities, all ofwhich are beyond the FAA'sjurisdiction and.are beinglitigated in South Carolina state courts. The remainder ofthe allegations in the Complaint center on SDMB's objectionto its obligation, as one ofmany aeronautical users at Grand Strand, to contactthe air traffic controltower before crossing active runways or taxiways, and its objectionto the standard writtenrecords HCDA and the toweruse to document safety incidents. Though not
once identifying any federal law orregulation that HCDA has allegedly violated, the Complaint appears to be an inartful attempt to assert that HCDA has violated Grant Assurance 22, which prohibits airport sponsors from unjustly discriminating amongst aeronautical operators at their airports. Nothing could be further from the truth. HCDA has properlybalanced its obligations under Grant Assurance 22 withits obligationunder GrantAssurance 19 to maintain CRE/GSA's movement areas in a "safe and serviceable condition." In February 2014, when SDMB allegedly first learned ofthe Letter ofAgreement ("LOA") betweenHCDA and the tower that contains the obligation to contactthe towerbefore crossing active runways ortaxiways, SDMB inquired as to the basis for the obligation. Thetowerpromptly sent SDMB a copy of 14 CFR § 139.329, whichthe FAA hadprovided to it. Uponreview ofthe LOA and this regulation, SDMB stated that itthought this provision was reasonable and agreed to abide by it. SDMB even inserted language into a new, draft LOA for which it sought FAA approval, requiring SDMB to contact the tower before it or any ofits skydivers cross active runways or taxiways. However, inthe following months, SDMB's skydivers andpersonnel continued to cross active runways and taxiways, either on foot or in golfcarts, without first asking the tower's permission. This uncontrolled movement creates a significant safety risk to other aeronautical users at CRE/GSA.

2 4840-8467-7148.4In an attemptto mitigate the safety hazard created eachtime one ofthese vehicle or pedestrian incursions occurred, HCDA developed a standardreport form to track such deviations, along with all other safety hazards at CRE/GSA. The tower and HCDA staffreport safety incidents involving any aeronautical user to HCDA, which fills out a writtenreport for its records to track these safetyhazards. SDMB apparently objects to this documentationprotocol, and also now claims for the first time that the universal obligationto seekpermission from the towerbefore crossing an active runway ortaxiway does not apply to SDMB or its skydivers. SDMB's specific argument appears to be that its skydivers should notbe considered "pedestrians" under 14 CFR Part 139, and should nottherefore be subjectto the requirement to contactthe tower before crossing an active runway ortaxiway. 2 Accordingto SDMB, skydivers do notbecomepedestrians whenthey land, and insteadremain "parachutists" under 14 CFRPart 1 05. Underthis self-serving and dangerous interpretationofthesetwo regulations, SDMB's skydivers would be allowed to walk across the taxiways and runways with impunity, wheneverthey chose,
even ifan aircraft were about to take offor land. Contraryto SDMB's fantasy, Part 105 -which does notprescribe any safety obligations for skydivers afterthey land- can and should be read together with Part 139 to create the safestpossible environment at CRE/GSA. To do otherwise would create unnecessarily dangerous conditions in the movement areas ofthe airport. SDMB also objects to the ground communications and documentationprotocols as unwarranted restrictions on its designated landing zone at CRE/GSA. SDMB's argumenthere appears to be that, because Part 105 states that in an emergencyparachutists may land anywhere at the airport, its landing zone in all instances comprises the entire airport. Such is notthe case, and is beliedby the documents that SDMB attaches to its Complaint, which clearly state the exact location

2 CRE/GSA is not a Part 139 certificated airport, however, like many general aviation airports, itlooks to Part 139 for guidance in complying with its federal grant obligations. See infra at 20. 3 4840·8467·7148.4ofSDMB's proper landing zone. Moreover, the high number of"inadvertent" landings outside the landing zone by SDMB skydivers have created an additional safety concern that HCDA, following approved FAAprotocols for safety risk management, is properlytracking in order to develop means to mitigate the hazard they present. 

### LEGAL STANDARD CRE/GSA is a public-use airport owned and operated bythe County ofHarry, South Carolina, whichis classified as a "Regional" general aviation airport with 32 based aircraft and 46,670 armual operations. 3 

### See FAA Form 50l0 "AirportMaster Record" for Grand Strand Airport
atNorth Myrtle Beach (July 24, 2014); FAA National Plan oflntegrated Airport Systems (NPIAS), 20!3-2017, Appendix A at A-92. As the owner and operator ofCRE/GSA, which has been financed, inpart, with funds providedby the FAA under the Airport Improvement Program, Harry County is contractually obligatedto comply with certain Grant Assurances promulgated bythe FAA. 

### See 49 U.S.C. § 47107(a) (2012); FAA Airport Sponsor Assurances (Mar. 2014) 4 "Itis the policy ofthe United States

... that the safe operation ofthe airport and airway system is the highest aviation priority." 49 U.S.C. 

### § 4710l(a) (2012). Accordingly, and "consistent with the FAA mission, the most important objective 

### inFAA's oversight of [its] compliance program is to ensure and preserve safety at all federally obligated airports." FAA Airport Compliance Manual, FAA Order 5190.6B, § 2.6 at 2-5 (Sept. 30, 2009). 5 "Ensuring safe airport operations includes maintaining runways, taxiways, and other operational areas in a safe and usable

3 Annual operations were calculated for the 12-monthperiod ending September 17, 2013. See FAA Form 5010 "Airport Master Record" for Grand Strand Airport at North Myrtle Beach (July 24, 2014). 4Available at www.faa.gov/airports/aip/grant_assurances/media!airport-sponsor-assurances-aip.pdf. 5 The Order "establishes the policies and procedures for FAApersonnel to follow in carrying out the FAA's responsibilities for ensuring airport compliance" with federal obligations. Id. § 1.1 at 1-1, available at www.faa.govIdocumentlibrary/media/Order/5190

_6b.pdf. 

### 4 4840-8467-7148.4condition." 

### !d. "Arunway incursion is any unauthorized presence on a runway, regardless of whether ornot an aircraft, vehicle orpedestrianpresents a potential conflictto an aircraft authorized to land, take off, or taxi on a runway." FAA Fact Sheet- Runway Safety, at 2 (July 19, 2013)6 (citing International Civil Aviation Organization). "Thereduction inthe number and severity of runway incursions is one ofthe FAA's top priorities." 

### Id., at 1. Certain ofthe grant assurances with which Horry Countymust comply specifically address safety. For example, Grant Assurance 19 ("Operation and Maintenance") provides;

a. The airport and all facilities which are necessary to serve the aeronautical users ofthe airport

... shall be operated at all times in a safe and serviceable condition and in accordance with the minimum standards as mayberequired orprescribed by applicable Federal, state and local agencies for maintenance and operation. FAAAirport SponsorAssurances, at 9-10. To complywith Grant Assurance 19, an airport sponsor "should adopt and enforce adequate rules, regulations, or ordinances as necessaryto ensure safety and efficiency ofaircraft operations and to protectthepublic using the airport." FAA Order 5190.6B, 

### § 7.8(c) at 7-7. In fact, "[o]ne ofthe most important functions oflocalregulations is to control the use ofthe airport in a mannerthat will eliminate hazards to aircraft andpeople and structures onthe ground." 

### !d.,§ 7.9 at 7-7. These regulations are sometimes needed "to reduce the likelihood ofa runway incursion." 

### !d. Grant Assurance 22 ("Economic Nondiscrimination") sets forth the following obligation for
an airport sponsor;

a. Itwill make the airport available as an airport for public use onreasonable terms and without unjust discriminationto all types, kinds and classes ofaeronautical activities, including commercial aeronautical activities offering services to the public at the airport. FAA Airport SponsorAssurances, at I0. This obligation is then elaborated uponbytwo safetyspecific provisions;

6Available at **www.faa.gov/news/fact_sheets/news_story.cfm?news!d~I4895.** 

### 5 4840-8467-7148.4h. The sponsor may establish suchreasonable, and notunjustly discriminatory, conditions to be metby all users ofthe airport as may be necessary for the safe and efficient operation ofthe airport.
1. The sponsormayprohibit orlimit any giventype, kind or class ofaeronautical use ofthe airport ifsuch action is necessary for the safe operation ofthe airport ornecessaryto serve the civil aviation needs ofthe public. 

### !d., at 11. "Anairport proprietor may adopt reasonable minimum standards for aeronautical businesses and adoptroutine regulations for use and maintenance ofairport propertyby aeronautical
users and the public," because this falls withinthe provenance ofGrant Assurance 22(h). See FAA Order 5190.6B, § 14.4 at 14-2. "These kinds ofrules typically do not restrict aeronautical operations." 

### !d. Additionally, "[a] prohibition or limit [pursuantto Grant Assurance 22(i)] may be based on safety or on a conflictbetween classes ortypes ofoperations." 

### !d., § 14.3 at 14-2. "This generally occurs as a conflict between fixed-wing operations and another class ofoperatorthat results in a loss ofairport capacityfor fixed-wing aircraft." 

### !d. "Aprohibition or limit on aeronautical operationsjustifiedby the sponsor onthe basis ofsafety
... will be evaluated based on the stated purpose,justification, and support offered bythe sponsor." 

### !d., § 14.4( d) at 14-3. SDMB'S COMPLAINT7 The allegations in SDMB's Complaint fall into two distinct categories: those relating to state lawmatters not within the FAA'sjurisdiction, which should be summarily dismissed, and those relating to matters that arguably fall withinthe FAA'sjurisdictionbut still fail to state a claim against HCDA. Allegations Relating to Matters Outside theFAA's Jurisdiction SDMB's Complaint asserts claims against both HCDA and the privately-owned airtraffic control tower operator at HCDA's Grand Strand Airport, RobinsonAviation, Inc. (the "CRE

7 SDMB has not numbered the paragraphs in its Complaint. For the FAA's convenience, HCDA has attached as ExhibitA a copy ofthe Complaint that assigns numbers to the paragraphs in SDMB's Statement ofFacts. These paragraphs are referred to in this Motion as "FP (No.]." 

### 6 4840-8467-7148.4Tower"). 8 Factual allegations regarding the CRE Tower appear inFP 2, 6, 11-12, 14-18, 20-21, 35, 38, 41, 49, 50, and 53. As noted in the FAA's July 29,2014 Notice ofDocketing, the CRE Tower
was not properlynamed as a respondentin this Part 16 action. The FAA therefore docketed the Complaintnaming HCDA as the onlyRespondent. The allegations regarding the CRE Tower are not transferable to HCDA, and they should be dismissed from this action inthe first instance. SDMB's Complaint also includes many allegations relatedto matters governed by South Carolina law, which appear in FP 3-5, 8-10, 16, 19-20, 23, 26, 31, 33-34, 36-37, 40, 42, and 46. For the mostpart, these allegations relate to lease and Space Use Permit negotiations and other issues related to SDMB's occupancy ofa hangar at CRE/GSA. See Compl. at 1 (under "Summary"). SDMB and HCDA have both filed state law actions addressing these issues. Compl. at 3 n.4 and FP 26, 46; see also Ex. 4 and 5 (state court pleadings). As discussed infra 

### §II, these allegations relate to claims wholly outside the FAA'sjurisdictionand should be dismissed. 

### TheRemaining Allegations in the Complaint SDMB bookends the Complaint withreferences to its over-archingtheme: that a new documentationprotocol implemented due to stated safety concerns, and purported restrictions on its landing zone, are somehow discriminatory. Specifically, SDMB begins the Complaint by referring to an "HCDA/CRE [Tower] partnership that initiatedpolicing 'unusual' airport activity and refereeing the boundaries ofSDMBs [sic] primary LZ" and claimingthat "HCDA and CRE [Tower] are working togetherto report and enforce subjective 'unusual incidents."' Compl. at 3. Then, in its Conclusion, SDMB alleges that the "current arbitrary attempts to restrict the landing

8 CRE is the three-letter abbreviation code for Grand Strand Airport, and is not typically used to refer to Robinson Aviation, Inc. In its Complaint, however, SDMB refers to Robinson Aviation, Inc. as CRE and to Grand Strand Airport as GSA. The exhibits attached to the Complaint and at least one factual allegation referencing those exhibits (see FP 37)use the term CRE properly, in reference to Grand Strand Airport. Italso appears that in some ofits allegations SDMB intends the term CRE to refer to Grand Strand Airport (see, e.g., FP 1, 42). In this Motion, in an attempt to bring clarity to SDMB's allegations, HCDA will refer to Robinson Aviation, Inc. as the "CRE Tower" and to Grand Strand Airport as "CRE/GSA." 

### 7 4840-8467-7148.4

### area and the continuedpractice ofreporting authorized parachute operations (landings) as violations pursuantto Part 139, under the sheepskin of'safety concerns' is [sic] unreasonably restrictive and discriminatory as applied to an FAA recognized aeronautical activity." 

### Id. at 10. The following allegations and record citations relevant to these themes have beentaken from SDMB's own Complaint and the exhibits SDMB has provided: 9 

### InApril2012, SDMB negotiated the lease ofHangar 7 at CRE/GSA with Ramp 66, LLC ("Ramp 66"), the airport operator for CRE/GSA at thattime. FP l. OnMay 11,2012, SDMB entered into a Letter ofAgreement (LOA) with HCDA, the Myrtle Beach (MYR) Air Traffic Control Tower (ATCT), and the Grand Strand (CRE) ATCT. FP 2; Ex. 2 at 19-21. Among other things, the May 11, 2012 LOA defined the location ofSDMB's Landing Zone, andprovidedthat SDMB "parachutist[s

### Jare authorized to land in the defined 'Landing Zone' only and are not authorized to land on any runway, taxiway or ramp area." Ex. 2 at 20, 

## 'lf'lf 4(C) and 5(A)(5). On August 1, 2013, HCDA resumed control ofCRE/GSAfrom Ramp 66. FP 3. That same day, Horry County and SDMB entered into an Operating Permit permitting SDMB to perform "Skydiving and Non-Emergency Parachute Operations" at CRE/GSA. Ex. 2 at 4-8. Inthe Operating Permit, SDMB agreed to "observe and comply with
... all directives of [HCDA], which
now exist or whichmay be hereinafter be [sic] enacted or adopted." 

### !d., at 5 

### § 5. On September 3, 2013, SDMB acknowledged that one ofits employees was not "properly trained

... resulting in [an

## Jofffield landing." Ex. 1 at 12.

9 "On a motion to dismiss, the facts alleged in the complaint are taken as true and all reasonable inferences therefrom are drawn in the plaintiffs favor." Bregman v. Perles, 747 F.3d 873, 874 (D.C. Cir. 2014). "In determining whether to dismiss, courts treat documents attached to a complaint as ifthey are part ofthe complaint." In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005). 8 4840·8467·7148.4On September 13, 2013, HCDA and SDMB entered into a temporary Space Use Permit allowing SDMB to occupy Hangar 7 through January 31,2014. See Ex. 3 at 54. On October 15, 2013, the CRE Tower manager, Glenn Ray, notified SDMB that "some of [its]jumpers after landing downhere bythetowerwalked across taxiwayBravo, and then into the ramp." FP 6; Ex. I at 86. On October 27,2013, a skydiver landed on a taxiway and neededto be medevacedto a hospital. FP 7. OnJanuary 21,2014, Mr. Ray again emailed SDMB, stating: "We are oftenhavingjumpers land outside ofthe landing zone." FP II; Ex. I at Ill. Mr. Ray continued, "Ifeel that whenthe 'season' starts withbanner tow and helicopterrides, its [sic

## Jgoing to be unsafe to conductboth operations at the same time
.... For now and in planning for the spring/summer, we will have to accomplish the parachuting activitybyholding the aircraft while ittakes place." Ex. I at Ill. OnJanuary 23,2014, SDMB responded to Mr. Ray, claiming that, pursuant to its Operating Permit, itwas "permittedto land anywhere within 5 (five) miles ofthe airport, ifnecessary." 10 Ex. I at 112. SDMB requested a meeting withthe CRE Tower, MYRATCT, HCDA, and legal counsel, to discuss its concerns that the safetyviolations identified by the CRE Towermight cause harm to SDMB'sbusiness. Jd; FP 12. Mr. Ray wrote backthat same day, stating: "I am aware ofonly the one Letter Of Agreement (LOA) that CRE MYR and Skydive MB all signed and it doesn't speak oflanding any where otherthan the designated landing zone." Ex. I at 114. He further stated that "our toweris here and is task[ed] withthe safety ofall it's [sic] users. Therefore the tower will make every effort to provide a safe environment using the tools provided." 

### I d. Mr. Ray agreed to meet with SDMB

10 SDMB's Operating Permit does not contain any such provision. See Ex. 2 at 4-8. 9 4840-8467-7148.4

### and its legal counsel, and asked for "sufficienttime" to get HCDA "and as many airport users as we can to participate." 

### !d.; FP 12. OnJanuary 26,2014, Mr. Ray emailed SDMB: "This afternoon we had a couple ofissues with people walking onthe taxiways and driving golfcarts onthe taxiways without getting permission from the tower first." Ex. I at 117. Mr. Ray continued, "I'm sure your [sic] aware that's against the rules as we have spoken about this before. In an effort to keep the operation safe and by the rules can you rebriefyour folks not to enter a taxiway or runway without contacting the tower first." !d. 

### In its response to Mr. 

### Ray's email, SDMB admitted that a golfcart went out to retrieve a jumperwithout contacting the CRE Tower, "to quickly clear the runway." Ex. 1 at 117. SDMB further stated that anotherjumperobtained "permission" for crossing, butthatthis was somehow done "withoutresponse from the tower." 

### !d. In response to this, Mr. 

### Ray clearly stated: "The rules for entering the taxiway don't have exceptions." Ex. 1 at 123. SDMB had also copied Richard Allen, areamanagerfor Robinson Aviation, Inc., onits response. Ex. 1 at 117. Mr. Allen also wrote back, saying "I think we maytalk with the runway incursion folks again ref. the golfcarts and etc today." FP 13; Ex. 1 at 119. On February 3, 2014, SDMB emailedMr. Ray stating that a meeting "at 1400 (our location) would be great." Ex. 1 at 129. Mr. Ray tried to attend this meeting on February 3; it appears the meeting was actually held on February 7. See 

### Ex. 1 at 134-37, 153; FP 15-16. Also onFebruary 3, 2014, HCDA notified SDMB that ithad been advisedby an on-site F



### AAI ASO (Atlanta) Certification Inspectorthat on the preceding Saturday, FAA had received "anotherVehicle/Pedestrian incursion report (VPD) for CRE." Ex. I at 138; FP 14. On February 4, 2014, the FAA emailed HCDA to request informationregarding the January 26, 2014 vehicle deviation by SDMB, where a golfcart entered two separate taxiways without 10 4840-8467-7148.4permissionto retrieve ajumper. Ex. 1 at 155-56. The next day, HCDA emailed SDMB asking for details ofthis vehicle deviation. 

### !d. at 154. SDMB reiterated its earlier admissionthat it had not contacted the CRE Tower before the golfcart crossed the taxiways. 

### !d. at 158. Incredibly, that same email claims the CRE Tower knew "thejumperwas going to land on the taxiway" because "[i]t was clear to all," implyingthat SDMB was somehowrelieved ofits obligationto communicate with the CRE Tower and waitfor permission before crossingthe taxiway. 

### !d. Nevertheless, SDMB promised it "wouldrequestpermissionpriorto entry ontaxiwayinfuture." 

### !d. Atthe February 7, 2014 meeting, the CRE Tower advised SDMB aboutthe LOAbetween HCDA and the CRE Tower "wherebyprocedures for vehicular andpedestrian entry into 'active areas' required CRE ground communicationprotocols." FP 16. "SDMB agreed to comply with these provisions

... and implemented internal procedures to meetthe terms ofthe HCDA-CRE LOA." 

### !d. On February 10,2014, SDMB sentadraftLOAtotheCRE Tower. FP 17;Ex.l at 185. Like its predecessor, the draft LOA provided, 

### inter alia, that "Skydive Myrtle Beachparachutists
are authorized to land inthe defined 'Landing Zone' only and are not authorized to land on any runway, taxiway, orramp area." Ex. 1at 165, § 5(A)(6). 11 The draftLOA also "included the [CRE Tower's] ground communications" protocol, providing that "Skydive Myrtle Beach shall notify CRE priorto crossing any identified active taxiway or runway during operational hours ofCRE ATCT." 12 FP 17; Ex. 1 at 165, § 5(A)(8).

11 The draft LOA includedinthe record at Ex. I at 164-66, appears to be the LOA sentfrom SDMB to the CRE Tower in February 2014, as it bears the following footer "140209.loa.sdmb.myr.cre.hcda," which follows the naming convention ofother documents SDMB has sentto HCDA overthe last several months, and matches the name ofthe document attached to the email at Ex. I at 185. SDMB also cites this LOA to support the statementthat it "agreedto comply" with the CRE Tower's ground communicationprotocol and "implementedinternal procedures to meetthe terms ofthe HCDA-CRE LOA." FP 16. What appears to be a later version ofthe draft LOA also bears this footer, but clearlyincorporates feedback from other involvedparties. See Ex. I at 147-51. 12 In this LOA, "CRE" was defined to mean Grand Sttand ATCT, which is referred to inthis Motion as the CRE Tower. See id. at 164, § I. 11 4840-8467-7148.4OnFebruary 14, 2014, Mr. Ray sent SDMB a copy of 14 CFR 

### § 139.329, stating "This is whatthe FAA sentme. This appears to go along with the LOAwiththe airport." 13 Ex. I at 192. SDMB responded, "Appreciate the heads up and in conjunction withthe LOA this makes complete
sense. Nowthat we have a copy, we have implemented SOPs here where this should no longer present itselfas an issue henceforth." 

### !d. at 191. 

### Itappears from these statements that SDMB received a copy ofthe January I, 2012 LOA between HCDA and the CRE Tower on orbefore February 14, 2014. 14 Therefore, by thattime, SDMB was aware that HCDA and the CRE Tower had an LOA whose scope was "To limit to the maximum extentpractical a situation onthe Movement Area involving aircraft, vehicle, pedestrian,
or object on the groundthat would create a collisionhazard and/or loss ofseparation with an 

### aircrafttaking off, landing, ortaxiing." Ex. 2 at I (emphasis in original). SDMB was further aware that, pursuantto the LOA, the CRE Tower controlled "all aircraft, vehicular, andpedestriantraffic in the defined movement area at Grand Strand Airport during operational hours." 

### !d.,§ 4(a)(l). Finally, SDMB was aware ofthe CRE Tower's obligation, pursuantto the LOA, to "Notifythe Airport Operations or NorthMyrtle Beach Public Safety ofobserved Movement Areaincursions committed by vehicle operators or pedestrians." 

### !d., § 4(a)(2). On February 19,2014, the Deputy County Attorney for Horry County sent SDMB a letter stating that SDMB'sprior Space Use Permithad expired onJanuary 31, 2014, and attaching a new Space Use Permit for SDMB's review and acceptance. See Ex. 3 at 54-57; FP 20. The letter included a list ofmultiple instances ofunsafejumpingpractices, as well as vehicle and pedestrian incursions onto runways and taxiways, some ofwhichnecessitated FAAreporting and

13 SDMB alleges that§ 139.329 was provided "asthe authority for [the CRE Tower's] complaints to the FAA and HCDA." FP 16. However, SDMB has not alleged in its Complaint that the documentation protocol involves submitting the written reports to the FAA. 14 SDMB also notes that it received the LOA in a February 21, 2014letterto HCDA. See, e.g., Ex. 3 at 69. 12 4840-8467-7148.4

### investigation. Ex. 3.at 54-55. These incidents constituted a violation ofSDMB'sexisting (albeit expired) Space UsePermit and its Operating.Permit. 

### !d.; Ex. 2 at 5 § 5. Also on February 19,2014, SDMB sent its proposed LOA to Ricky Washington, the AirTraffic Manager for MYRATCT. FP 21; Ex. I 

### at 214. OnApril 12,2014, SDMB threatened to file an FAAComplaint against the CRE Tower because its skydive aircraft was held for a banner tow. Ex. 1at 239; FP 35. Inlight ofthis threat, Mr. Ray indicated thathe would beginto forward his complaints to the Flight Standards District Office and HCDA. Ex. 1 at 242; FP 35. On May 10, 2014, Mr. Rayinformed SDMB that he hadto "file paperwork on the guys crossing the taxiway without coordination." Ex. 1 at 243; FP 38. On May 19, 2014, HCDA's Manager ofOperations and Safety requested information from SDMB in order to respond to an FAA Letter ofinvestigationregarding the unauthorized crossing. Ex. 1 at 245; FP 39. He stated that the Countywas "reaching the end ofwhat we can do to curtail this issue," and thathe had "to showtangible evidence that we're working towards a solution." Ex. 1 at245. In its incensed response to this email, SDMB claimed that it "always utilize[d] radio communications with the tower." 15 

### !d. HCDAresponded to SDMB, stating "As we discussed; FAAreached outto us and we'rerequired to respond with a plan, hopefullytogether, to avoid whatthey see as a serious safety concern." 16 

### Ex. 1 at 251. OnMay 22, 2014, some ofSDMB's skydivers landedon ornear the beach, instead ofinthe designated landing zone are CRE/GSA. Ex. 1 at 244. Mr. 

### Ray asked SDMB to informthe CRE

15 SDMB also claimed that ithad not yetreceivedthe LOA under which HCDA and the Tower operated. !d. This is incorrect, as SDMB clearlyreceived a copy ofthe LOA on or before February 14, 2014, andreferenced it in correspondence with HCDA. See supra at 12 andn.14. 16 SDMB's treatment ofsafety concerns is best illustratedby its owner AaronHolly's comment when he forwarded HCDA'srequest for information to another SDMB employee: "More ofthe shit I have been dealing with all day instead ofbeing in a boat." Ex. 1at 247. 

### 13 4840-8467-7148.4Tower in advance ifits skydivers were going to land somewhere otherthanthe designated landing zone, so he would be able to advise the bannertows andhelicopters to look out for them. Id. On May24,2014, Mr. Ray wroteto SDMB notingthat ajumperhad crossed a runway without coordinating with the CRE Tower. Ex. I at 257; FP 41. Less than an hourlater, Mr. Ray again wrote to SDMB because anotherjumperhad walked across the runway. Ex. I at 268. OnJune 10, 2014, Mr. Washingtonfrom MYR ATCT sent a revised draft ofSDMB's LOA out for review. Ex. I at 271; FP 47. SDMB objected to some oftheprovisions in the revised LOA, includingthe following provisionregarding the documentation ofsafetyhazards: "Within 24 hours ofanyparachutejumper landing outside ofthe Landing Zone or other deviations by the parajump operation, CRE [Tower] shall notify HCDA, in writing, ofeach incident. The incident reporting form shall be furnished by HCDA." Ex. I at 149, 

### § 3(c)(l). OnJune 25, 2014, the parties metto discuss the draft LOA. 17 FP 49. Despitereceiving multiple emails from Mr. Ray priorto this date indicatingthathe needed to submitreports to HCDA for pedestrian and vehicle incursions onto active runways and taxiways, SDMB alleges that it first learned ofthese reports at the June 25 meeting. See 

### id. On June 27, 2014, SDMB asked Mr. Ray for additional regulatory authority requiring the CRE Towerto report parachutists to FAA for crossingthe taxiway withoutfirst seekingpermission from the tower. FP 50; Ex. 1 at 322. Mr. Ray referred SDMB to the FAA. Id. Also on June 27, 2014, Jason Terreri, the new HCDA Assistant Director ofAirports, emailed SDMB, noting that "incidents involving skydivers that missed the landing zone at CRE
... can pose a serious safety threatto the users ofCRE," and expressing his desire to "work togetherto improve the safety at Grand Strand Airport." Ex. 2 at 10; FP 53. He also statedthatHCDA's goal

17 SDMB alleges that this meeting occurred on June 24, but it appears from the record that the meeting was actually held on June 25, 2014. See, e.g., Ex. I at 295, 309. 14 4840·8467·7148.4"is to provide a safe, operationally efficient airport that supports the growth ofaeronautical activity andprovides positive economic impactto the community." Ex. 2 at I0. Therefore, he explained that "[a]s a first step to improving safety and efficiency at CRE, I have implemented an incident reporting system for all events that create anunsafe operating condition at the airport." Id. Mr. Terreri attachedtwo sample reports, whichdetailed the two May 24, 2014 pedestrianrunway incursions. Id. at 12-13. OnJuly 1, 2014, SDMB responded to Mr. Terreri's email byfiling this Complaint. 

### ARGUMENT I. The Complaint ShouldBe Dismissed With PrejudiceForFailureTo StateA Claim For Any ConductFalling Within TheFAA's Jurisdiction. As a threshold matter, SDMB's Complaint does not identifY any specific federal law, regulation, orobligation that HCDA has violated. Therefore, atthe most basic level, SDMB's Complaint is subjectto dismissal because it "appears on its face to be outside thejurisdiction ofthe [FAA]." See 14 CFR § 16.26(b)(i); 14 CFR § 16.1 (listing areas ofFAAjurisdiction). Forthe same reason, SDMB's Complaint should be dismissed because "[o]nits face it does not state a claimthat warrants an investigation or further action bythe FAA." See 14 CFR § 16.26(b)(ii). See also Chambers v. UnitedStatesDO!, 568 FJd 998, 1006 (D.C. Cir. 2009) (affirming dismissal of complaint that failed to "state a claimto reliefthat is plausible onits face") (quotingAshcroftv. Iqbal, 556 U.S. 662, 678 (2009)). 

### II. The State Law Claims In SDMB's ComplaintShould Be Dismissed. In addition to the grounds stated in§ 

### I, the myriad state lawclaims presented in SDMB's Complaint shouldbe dismissed because they are outside the FAA'sjurisdiction and do not support a claim against HCDA for violation ofany ofits federal obligations. See 14 CFR § 16.26(b)(i).

15 4840-8467-7148.4

### A. The State Law Claims Alleged InTheComplaintAre Ontside TheFAA's 

### Jurisdiction. "Thepurpose ofthe grant assurances is toprotect thepublic interest inthe operation of Federally obligated airports. The purpose is not to provide alternative or supplemental rights to those normally available to commercial tenants indisputes with their landlords, i.e. negotiation or commercial litigationunder applicable state and local laws." 

### PenobscotAirServ. v. Knox Cty., FAA Docket No. 16-97-04, 24 (Sept. 25, 1997) (Director's Determination), 

### aff'd, PenobscotAir Serv. v. FAA, 164 F.3d 713 (1st Cir. 1999). Accordingly, the grant assurances "do not ...prevent the airport from exercising proprietarypowers, such as determining howto structure the leasing of property on the airport." 

### Ashton v. City of Concord, NC, FAADocketNo. 16-00-01, 24 (Apr. 17, 2001) (Final Decision and Order). Following theseprinciples, the FAAtypically does not consider interpretation oflease terms to be within its Part 16jurisdiction. 

### See, e.g., RoadhouseAviation, LLCv. City of Tulsa & 

### the TulsaAirportsImprovement Trust, FAADocketNo. 16-05-08, 20 (June 26, 2007) (Final Decision and Order); 

### LongIslandJet CenterEast, Inc. v. County of Suffolk, New York, FAADocketNo. 16-04-05,2005 FAALEXIS 66, *60 (Jan. 21, 2005) (Director's Determination). Similarly, "theissue ofwhether an eviction action is wrongful, is a matterto be resolved under State Law." 

### LongIslandJet CenterEast, Inc., 2005 FAALEXIS 66, at *60. 

### See also SpringfieldFlightAcad v. City of Springfield, FAA DocketNo. 16-10-03, 29 (Aug. 25, 2011) (Director's Determination) ("the Directordoes not feel it appropriate to opine on matters related to an evictionproceeding as such action is outsidethe scope of 14 CPRPart 16"). Accordingly, the allegations in SDMB's Complaint relatingto its state law claims are outside the FAA's Part 16jurisdiction and should be dismissed withprejudice. 18 In fact, identical

18 In apparent recognition that its state law claims do not fall within the FAA'sjurisdiction, SDMB alleges that its first Part 16 Complaint, which was dismissed withoutprejudice, was "discrete" from the state court complaint it filed against HCDA. FP 26, 30. SDMB also takes umbrage with HCDA's attempt to address both the state law claims and the FAA claims in the same mediation. See, e.g., CompL at 3 (claiming that HCDA "demand[ed] an expanded scope to include 16 4840·8467.7148.4allegations are already being litigated in South Carolina state court, as evidencedbythe pleadings attached to the Complaint. See, e.g., Ex. 4 (ejectment action) and Ex. 5, at 5 'j/ 16 and 7

**~'j/** 38-39 (citation for electrical violations), 5

**~** 20 (requestfor repairs), 6

**~** 22 (Feb. 19, 2014 letter andnew Space Use Permit), 6

**~** 23 (72 hour evictionnotice), 6

**'j/~** 24-26 (alleged delay inproviding aviation fuel), 8

**~** 78 (allegedrefusal byHCDAto accept SDMB's mail orparcels). 

### B. The StateLawAllegations In The ComplaintDo NotMake OutA Claim For Violation OfHCDA's Federal Obligations. While claims ofstate lawviolations can sometimes serve as the basis for a finding that an airport sponsorhas violatedits federal grant obligations, suchis notthe case here. "Reasonable access" under GrantAssurance 22 "means for the use ofaeronautical facilities onthe airport, not necessarilythe abilityto lease particular space onthe airport." Skydive Monroe, Inc. v. City of Monroe, Georgia, FAA DocketNo. 16-06-02, 2007 FAALEXIS 117, *20 (Mar. 30, 2007) (Director's Determination). Where an airport "continuesto permitaccess by [the skydiving operator] to its aeronautical facilities, including therunway, taxiways, and drop zone, [it] has not created an effective prohibition ofskydiving operations" that would constitute a violation ofthis Grant Assurance. 

### !d., at *25. SDMB refused to enter into the proffered Space Use Permit for Hangar 7, which caused SDMB to violate its Operating Permit. Ex. 3 at 19. Therefore, on April28, 2014, HCDA sent SDMB a notice oftermination ofSDMB's Operating Permit. 

### !d. Inthe notice, HCDA clearly stated that "SDMB may continueto use the aeronautical facilities at CRE, including the landing zone as a transient operator." FP 37; Ex. 3 at 19. HCDA's termination ofthe Operating Permit, served 30 days later, repeats this statement. Ex. 3 at 15. Because HCDAhas continued to

matters ofstate law before it [would] discuss issues relating to this Part 16 Complaint"); Ex. 3 at 4 ("As you know, matters ofstate law are outside thejurisdiction ofthe FederalAviation Administration.") and 69 ("Simply stated, the FAA has solejurisdiction with regardto safety issuesrelating to air safety and discrimination withrespectto funded airports such as CRE. Additional remedies for retaliatory eviction, breach ofcontract, evidence ofa contract and other state matters are also available in SC state courts."). 17 4840-8467-7148.4permit SDMB to access the aeronautical facilities at CRE/GSA, includingthe runways, taxiways, and landing zone, it has complied with GrantAssurance 22. SDMB's conclusory allegation that ithas "otherwise [been] treated differently from other commercial tenants" is also insufficientto state a claim ofunjust discriminationunder Grant Assurance 22. 

### See Compl. at I;

### see also Iqbal, 556 U.S. at 678 ("Threadbare recitals ofthe elements ofa cause ofaction, supported bymere conclusory statements, do not suffice" to state a claim). SDMB has not metits burden ofshowing that "itrequested similarterms and conditions as other similarly situated airport users and was denied for unjustreasons." 

### SpringfieldFlightAcad., FAA Docket No. 16-10-03, at 18. Forinstance, SDMB has not identified any other similarly situated tenants at the airport, i.e., tenants who "aremaking the same or similaruses ofthe airport facilities." 

### See Skydive Monroe, 2007 FAA LEXIS 117, at *35. 

### Nor has SDMB alleged that any other tenantshavebeen offered different lease terms or rates than SDMB. In fact, the only reference in the record to othertenants canbefound in correspondence from HCDA, which states that SDMB "is the only tenant at [CRE/GSA] operating without either a space use permit or a lease," and that HCDA offered SDMB "the same terms as have been offeredto, and accepted by, other commercial aeronautical service providers at [CRE/GSA], and SDMB has chosento reject HCDA's offer." Ex. 3 at 14. Unfortunately for SDMB, an airport's "refusal to execute a lease
... on more favorable terms thanthose employedbycomparable tenants does not qualify as a denial of access onreasonable terms without unjust discrimination." 

### Nat'!AirliftSupport Corp. v. Fremont Cty. Bd. ofComm'rs,FAADocketNo.l6-98-18, 15 (May3, 1999)(Director'sDetermination), 

### aff'd, (Sept. 20, 1999) (Final Decision and Order). 

### C. SDMB's "Harassment" Claim Is A StateLaw Claim ThatMustBe Dismissed. SDMB alleges that it has "been continuallyharassed in its FAA-recognized aeronautical activity ofnon-emergencyparachuting or skydiving." Com pl. at I. SDMB also alleges that it has 18 4840-8467-7148.4"been subjected to other intimidation attempts," which have "materiallyinterfered with its business." 

### ld. at 3 and n.3. Setting aside the conclusorynature ofthese allegations, claims of "harassment" are state lawclaims that fall outside the FAA'sjurisdiction and should be dismissed. 

### See HillAir Co. v. Broward County Comm 'rs, FAA DocketNo. 13-93-07, 21 n.23 (Jan. 31, 2006) (Record ofDecision). In 

### HillAir Co., the complainant allegedharassmentto its business by, 

### inter alia, the airport's notice to vacate its leasehold, its engagement ofa photographerto take pictures of the leasehold, and failure to control a severe dustproblem caused by a contractor. 

### !d. The FAA declined to investigate these claims because they were "notrelatedto the Airport Sponsor's contractual obligations to the Federal Government," and notedthat the complainanthad "local avenues ofseeking redress ofthese issues." 

### !d. SDMB does notidentify specific facts that constitute the alleged "harassment," butthe facts alleged in its Complaint are similarto those in 

### HillAir, and include notice to terminate its occupancy ofa hangar (FP 37), photos and other observationbeing undertaken by an HCDA airport employee (FP 51, 56), and a pile ofpeat moss being left on threeparking spaces used by SDMB (FP 33). These allegations are not related to HCDA's contractual obligations to the FAA, and should be dismissed to be redressed in state court, should SDMB be able to demonstrate any actionable harassment. When claims of"harassment" are paired with claims of"discrimination" under Grant Assurance 22, theymay be considered together. 

### See, e.g., RoadhouseAviation v. City of Tulsa & 

### the TulsaAirportsImprovements Trust, FAA DocketNo. 16-05-08, 32-33 (Dec. 14, 2006) (Director's Determination) (considering claims that auditby airport operator constituted "harassment" and "discrimination"together under the rubric ofGrant Assurance 22, and finding no violation ofthe Grant Assurance). However, evenwhen SDMB's "harassment" claim is considered together with its discrimination claim, it is subject to dismissal, for the reasons stated below. 19 4840-8467·7148.4

### III. SDMB's RemainingAllegations Do Not State A Claim That Warrants An Investigation OrFurtherAction By The FAA. SDMB's only formally stated "issue"pertains to whetherthe provisions ofPart 139 with regardto "pedestrians" are applicable to Part I05 "parachutists" after they land. SDMB links this "issue"to the overarching themes ofits Complaint, namely, its objectionto the reporting protocol HCDA andthe CRETowerhave implementedto document safetyhazards, including vehicle and pedestrian incursions on activerunways andtaxiways, and its further objectionto purported restrictions onits landing zone. Given these themes, it becomes clear that SDMB's stated "issue"is actually an inartful attempt to allege thatHCDAhas violated GrantAssurance 22, whichprohibits unjust discrimination among similarly situated aeronautical users atthe airport. Because HCDA's alleged conduct falls well within the bounds ofpermissibleregulation under Grant Assurance 22, and also shows HCDA's efforts to comply with GrantAssurance 19, SDMB's claims fail as a matter oflaw, and no investigation orfurther action into these allegations is necessary. 

### A. SDMB's Proposed Interpretation Of14 CFRPart 105 And 14 CFR 

### § 139.329 Is Both IncorrectAndDangerous. As a general aviation airport, CRE/GSA is not subject to the requirements of 14 CPRPart 139; however, "manygeneral aviation airports voluntarily incorporate appropriate elements ofPart 139 and their supporting Advisory Circulars to enhance the safety oftheir facilities." Airport Cooperative Research Program, 

### GeneralAviation Sqfety andSecurityPractices:A Synthesis of AirportPractice, at 6 (2007). Pursuantto Part 139, an airport operator must: Establish and implementprocedures for the safe and orderly access to, and operation in, movement areas and safety areas bypedestrians and ground vehicles, including provisions identifYing the consequences ofnoncompliance withthe procedures by an employee tenant, orcontractor[.] 14 CPR § 139.329(b ). Where, as at CRE/GSA, "anairtraffic control tower is in operation,"the airport operatormust also "ensurethat eachpedestrian and ground vehicle in movement areas or 20 4840·8467. 7148.4

### safety areas is controlled by
... (1) Two-wayradio communications between eachpedestrian or vehicle and the tower." 14 CPR§ 139.329(c). In addition, the airport operatormust maintain a "description and date ofany accidents orincidents in the movement areas and safety areas involving air carrier aircraft, a ground vehicle, or a pedestrian." 14 CPR§ 139.329(£)(2). SDMB admits that 14 CPR§ 139.329 "requires towered operators to implementpolicies for vehicles and pedestrians from entering into designated areas by such measures as two-wayradio communication withthe Air Traffic Control Tower," and that HCDA and the CRE Tower "have a Letter ofAgreement (LOA) that requires all pedestrians and vehicles to have two-wayradios and receive [CRE Tower] authorizationpriorto entering active areas defined as taxiways andrunways at [CRE/GSA]." 19 

### Compl. at 2; see also 

### Ex. 2 at 1-3 (the LOA). SDMB further acknowledges that it "agreed to complywith theseprovisions
... and implemented internalprocedures to meetthe terms ofthe
... LOA." FP 16. The record supports this allegation, showing that on February 14, 2014, in response to the CRE Tower'sprovision ofa copy of 14 CPR§ 139.329, SDMB stated: "Appreciatethe heads up and in conjunctionwiththe LOAthis makes complete sense. Nowthat we have a copy, wehave implemented SOPs here where this shouldno longerpresent itselfas an issue henceforth." Ex. 1at 194. SDMB 

### also alleges that, together withthe CRE Tower, SDMB "includedthe ground communications" in a draft ofSDMB'snew LOA. FP 17. SDMB nowargues, however, that the safetyprovisions of 14 CPR § 139.329 do not apply to it because sportparachuting safetyis governed by 14 CPRPart 

### I05. More specifically, SDMB appears to argue that when a skydiver inadvertentlylands on arunway, taxiway, orother area 19 These provisions accord with FAA guidance withrespect to ground vehicles: "As an operator ofa vehicle you must have authorization from [air traffic control] before you enter anypart ofthe airportmovement area. When the tower is in operation, you must utilize atwo-way radio for communicating with and receiving instructions from air traffic control." FAA Guide to Ground Vehicle Operations: A Comprehensive Guide to Sqfe Driving on theAirportSurface, at 19, available athttp://www.faa.gov/airports/runway _safety/media/ground_ vehicle_guide_proof_ fmal.pdf. Indeed, even emergency vehicles mustabideby theseprovisions: "All vehicles operating at a towered airport, including ARFF and police, arerequired to receive explicit runway crossing instructions from ATC. This applies to all runways encountered: active, inactive and closed, regardless ofthe type ofemergency!" Id., at 29. 

### 21 4840-8467-7148.4outside the designated landing zone, the parachuting safetyprotocol to "vacate"the area "as soon as practicable" allows it to ignore its obligationto contact the CRE Tower for permissionbefore SDMB or its skydivers cross active taxiways and runways. 20 See Compl. at 2 (quoting FAA Advisory Circular (AC) No. 105-2E, SportParachuting (Dec. 4, 2013)). As amatter ofstatutory interpretation, the safetyprovisions ofPart 105 and Part 139 must be read together to give both meaning. "[T]he maximum possible effect should be affordedto all statutoryprovisions, and, wheneverpossible, none ofthoseprovisions rendered null or void." Citizens to Save Spencer County v. UnitedStatesEPA, 600 F.2d 844, 870 (D.C. Cir. 1979). Iftwo provisions "pointgenerally in a common direction
... it is the task ofan agency withthe requisite authoritytopursue a middle course thatvitiates neitherprovisionbut implements to the fullest extentpossible the directives ofeach." 

### !d. at 871. Part 105 provides, "Nopersonmay conduct a parachute operation
... ifthat operation creates a hazard to air traffic orto persons orproperty on the surface." 14 CFR 

### § I05.5. However, Part I05 does not include specificprovisions addressing what happens to a parachutist afterlanding. Itdoes not contradict Part 139'sprovisions to prevent runway incursions. Because both Part 105 and Part 139 "point generally in [the] common direction" ofensuring the safetyofall persons, vehicles, and aircraft at airports which host skydiving operations, the FAAcan "pursue a middle course" that allows Part I05 to address safety inthe air and Part 139 to address safety onthe ground. Part I05 should not be read to supersede Part 139, as SDMB suggests, because it would have the unacceptable effect ofrendering Part 139 null and void as it applies to one particular type ofpedestrian. 21 This result is nonsensical and dangerous, and should be rejected.

20 To clarify, HCDA agrees that, ifa skydiver inadvertently lands on an active runway or taxiway and is physically capable ofvacating the movement area on her own, then she should do so. Once out ofthe movement area, the skydiver should await assistance and/or contactthe CRE Towerbefore crossing any otherrunways or taxiways. 21 Not to mention that Part 105 cannot be read to supersede the federal regulations governing vehicle runway incursions; one would be hardpressedto think ofa situation where a golfcart couldqualify as a "parachutist." 22 4840-8467-7148.4

### B. NeitherTheDocumentation ProtocolNorThePurportedLandingZone Restrictions Violate HCDA's FederalGrant Obligations. SDMB's allegations regarding ground communications and documentationprotocols for vehicle and pedestrian incursions on active taxiways andrunways do not support a claimthat HCDA has violated its federal grant obligations. To the contrary, Grant Assurance 22 "does not guarantee anyparticular individual aeronautical user access to the airport on whateverterms that user may desire." DrakeAerialEnters., LLCv. City of Cleveland, FAA DocketNo. 16-09-02, 11 (Feb. 22, 2010) (Director's Determination). HCDA is obligated under Grant Assurance 19 to 

### maintain "[t]he airport and all facilities which are necessary to serve the aeronautical users ofthe airport
... in a safe and serviceable condition."22 FAAAirport SponsorAssurances, at 9-10. This obligation extends to active runways andtaxiways. See, e.g., RoadhouseAviation, LLC, FAADocket No. 16-05-08, at 15 (finding sponsor ofgeneral aviation airportthat accepted AlP grantfunds is obligated "to ensure that aircraft movements onpublic taxiways and taxilanes are conducted in a safe marmer"). HCDA is also expressly authorized under Grant Assurance 22(h) to establish "reasonable

... conditions to be metby all users ofthe airport as maybenecessary for the safe and efficient operation ofthe airport." This is exactlythe type of"condition" that is contained withinthe I-!CDA-CRE Tower LOA, whichrequires pedestrians and vehicles to contactthe CRE Towerbefore crossing an active runway ortaxiway and potentiallycausing an accident with aircraftusing that runway ortaxiway. See Ex. 2 at 1-4. Moreover, the terms in the proposed LOAto which SDMB objects accord withthe FAA'srecommendation that airports "develop an LOA with the skydiving operatorthat describes specific operating requirements and boundaries of[parachute landing
22 Although Grant Assurance I 9requires that anairport sponsor maintain the airfield, including ali movement areas, in a safe and serviceable condition, this assurance does not require asponsor to maintain hangars and other similar facilities. See Desert Wings Jet Center, LLCv. City of Redmond, Oregon, FAA DocketNo. 16-09-07, 21 (Nov. 10, 2010) (Director'sDetermination) ("The obligation under Grant Assurance I9 applies to aircraftmovement areas. Generally, it does not extendto leasehold areas.") The aiiegations in FP 8 thus do not constitute a violation ofGrant Assurance 19. 23 4840-8467-7148.4areas]." FAA Final Report DOT IFAA/AR-11130, Developmentof Criteria for Parachute Landing Areas onAirports, at 26, § 8.2.2 (May 2012) ("Final Report"). AnLOA ofthis type can "include movements required bythe skydiver operator onthe airfield as well as instructions and/or restrictions for crossing runways, operating vehicles on the airfield, radio communications, and emergencyprocedures." !d. "The LOA should 

### also address theprocedures ifa parachutist lands outside the designated PLA or in aprotected area ofthe runway." 

### !d. Even ifthe ground communications and documentation protocols- which are applicable to all aeronautical operators at CRE/GSA- were considered restrictions specific to SDMB, the Complaint contains no allegations that the basis forthese protocols is anything otherthan HCDA's stated safety concems. 23 In fact, boththe Complaint andthe recordmake clearthat HCDA and the CRE Towerhave repeatedlypresented their safety concerns to SDMB. See, e.g., FP II; Ex. 1 at Ill, 114, 117, 251; Ex. 2 at I0. The ground communications and documentationprotocols should be evaluated inlight ofthis purpose. See FAA Order 5190.6B 

### § 14.4(d) at 14-3 ("Aprohibition or limit on aeronautical operationsjustifiedbythe sponsor onthe basis ofsafety
... will be evaluated based on the stated purpose,justification, and support offered bythe sponsor."). The ground communications and documentationprotocols described inthe Complaint are well withinthe bounds ofan airport's permissibleregulation ofskydivers.24 For instance, at Sebastian Municipal Airport in Florida, whichhosts 20,000 to 40,000jumpsper year, the airport

23 At most, SDMB asserts that BCDA and the CRE Tower are "confused." Compl. at2. 24 Examples ofF AA-approved airportrules thatprohibit, limit, orregulate aeronautical operations by whole classes or types ofoperationpursuantto Grant Assurance22(i) include: (a) Limiting skydiving, soaring, and bannertowing operations to certaintimes ofthe day and week to avoid the times ofhighest operationby fixed-wing aircraft, (b) Banningskydiving, soaring, ultralights, or bannertowing when the volmne offixed-wing traffic at the airport wouldnot allow those activities without significant delays in fixed-wing operations, and (c) Limiting skydiving, soaring, and ultralight operations to certain areas ofthe airfield and certain trafficpatterns to avoid conflict with fixed-wing patterns. FAA Order 5190.6B, § 14.4(d)(l) at 14-3. 24 4840-8467-7148.4"does not allowparachutists to walk on areas ofthe airport outsidethe established PLA." Final Report at 14-I5, §7.1.2. Meanwhile, at Herlong Municipal Airport in Florida, which approximates 2,000 to 3,000jumpsperyear, ofmostlytandemparachutists, the airport and the skydiving operator "have an agreement statingthat ifa parachutistneeds to cross a runway, the parachutist is to remain at his or her location and wait for an airport escort." 

### !d. at 18, 

### § 7.1.5. Similarly, when the CRE Tower stated in April 20I4 that it would beginreporting safety complaints to the Flight Standards District Office and HCDA, it was following recommended FAAprocedure. See Ex. 1 at 242; FAA Order 5190.6B, § 14.4(a) at 14-2 ("Ifa sponsorbelieves thatthere is a safety issue with the flight operations ofan individual aeronautical operator
... the sponsor should report the issue to the Flights Standards Service as well as bringing itto the attention ofthe operator's management."). The "partnership"betweenHCDA and the CRE Tower described in the Complaint is exactly the type ofcollaborative approach to safety thathelps anairport sponsor achieve the FAA's goal of safe operations. HCDA seeks to gather dataregarding incidents and accidents consistentwith the guidance in FAAAdvisory Circular (AC)No. 15015200-37, Introduction to SqfetyManagement Systems (SMS)forAirport Operators (Feb. 28, 2007). The essence ofthis work is to identify hazards, rankrisks ofhazards by severity and likelihood, mitigate unacceptable risks, and review the mitigatedhazards to determine whether the riskhas beenreduced to an acceptable level. The frequent runway andtaxiway incursions by SDMB's skydivers are clearlyhazards to other aeronautical operations at CRE/GSA, as is SDMB'srefusal to contactthe CRE Towerbefore moving across active runways andtaxiways. Bygatheringdataregardingthe types ofmissed landings, along withrelated data such as wind and weather, HCDAmay be able to determine whether the hazards ofthese errant landings maybemitigated.

25 4840-8467-7148.4CONCLUSION Forthese reasons, Respondent Horry County Department ofAirports respectfullyrequests thattheFAA dismiss Complainant SkydiveMyrtleBeach, Inc.'sFormal Part 16 Complaintwith prejudice.

26 4840-8467-7148.4 Respectfully submitted, HORRY COUNTY DEPARTMENT OF AIRPORTS,

David Y. B ard,

.

### 'fq. Jeffrey 

### R. Blease, Esq. Jaclyn V. Piltch, Esq. FOLEY & LARDNERLLP Ill HuntingtonAvenue Boston, MA 02199 Tel: (617) 342-4000 Fax: (617) 342-4001 dbannard@foley.com jblease@foley.com jpiltch@foley.com

# EXHIBIT A

# EASTMAN 

# & ASSOCIATES,

# LLC

HasladH>II

**~sse** JY 

### ATTORNEYS AT LAW 79SMi

**F.:ldber!'-~fnlkau** POST OFFICE BoX 180

**GfR~IANY** CI-I.-\HLF.STO:\', SOUTH C\ROU:\'A 29402 l'SA ROBEIH G. E.-1ST.\IAN

**Ao~tlTfEO ~~DE.**  FL, G1\, MD. N.l. PA, & SC

Office ofthe ChiefCounsel Attention: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 July 1, 2014

Re: Part 16 Formal Complaint PliO:\£: (843) 329-9657 FAX: (843} 723-00n5 iobertl!easttna w'ij;msn.cum

Skydive Myrtle Beach, Inc. v. Horry County Department ofAirports andRobinson Aviation, Inc. d/b/a CREAircraft Control Tower Dear Sir or Madame: Skydive Myrtle Beach, Inc. (SDMB) 1 (f/k/a Skydive Myrtle Beach, LLC), respectfully requests the Federal Aviation Administration (FAA) to initiate a Formal Complaint pursuant to Part 16 of Title 14, Code of Federal Regulations (CFR) for the hereinafter stated reasons. SUMMARY Since Horry County Department of Airports (HCDA) resumed control of Grand Strand Airport (GSA), SDMB has: been unable to renegotiate a written long-term lease with Horry County; been unable to receive mail and parcels at its business address during normal business hours; been continually harassed in its FAA-recognized aeronautical activity of non-emergency parachuting or skydiving; had its secure hangar broken into by HCDA personnel; received an unreasonable offer to continue occupation of its business in exchange for 10-24% of its gross proceeds; been cited by the Deputy County Attorney for making repairs to meet fire code compliance; and otherwise treated differentlyfrom other commercial tenants within HCDAjurisdiction. Additionally, under the direction of HCDA, GSA Air Traffic Control (CRE) has initialed a reporting process whereby conduct in compliance with Part 105 of Title 14, Skydive Myrtle Beach, LLC, (SMB) was reformed into Skydive Myrtle Beach, Inc. a Nortll Carolina corporation in January 2014. Member Aaron Holly owned 100% interest of SMB and retains 100% or all shares of SDMB,

140627.Sdmb,hcda,faa.complainlFAA Office ofthe Chief Counsel July 1, 2014 Page 2
CFR is styled as "unsafe" and in violation of Part 139 resulting in the unnecessary expenditure of resources of all concerned parties. This conduct by HCDA and its private Air Traffic Control has resulted in the expenditure oftens ofthousands. of dollars in legal fees, significant interference with its normal business operations, and loss of business revenue by SDMB. ISSUE It appears that CRE and HCDA are confused about the proper application of Parts 1.05 (Parachute Operations) and 139 (Airports) ofTitle 14, CFR and the difference between "pedestrians" and "parachutists" in Parts 139 and 105 respectively. Sport parachuting safety and its interaction with related FAA recognized aeronautical activities is more fully explained in FAA Advisory Circular (AC) 105-4E "Sport Parachuting'' (December 4, 2013). FAA states that: [w]hile skydivers attempt to land in (designated landing zones (LZ or LZs)], at times there may be inadvertant landings in other grass or hard-surfaced areas. This could include landings on runways, taxiways, and other hardsurfaced areas. Areas such as runways, taxiways, clearways, and Obstacle Free Zones (OFZ) are not prohibited areas but should not be designated as a primary landing area and should be vacated as soon as practicable. AC 105-4E, TI 6(c)(2) (emphasis supplied). FAA also requires towered operators to implement policies for vehicles and pedestrians from entering into designated areas by such measures as two-way radio communication with the Air Traffic Control Tower (ATC). 

### See 14 CFR 

### § 139.329(c). HCDA and CRE have a Letter of Agreement (LOA) that requires all pedestrians and vehicles to have two-way radios and receive CRE authorization prior to entering active areas defined as taxiways and runways at GSA 

### See Exhibit 2, at 1-3. It appears that CRE and HCDA "feel" that Part 139 supersedes Part 105 and FAAs interpretation of the regulatory interrelation of sport parachuting operations and airport safety found in FAA AC 105-4E. This apparent regulatory misinterpretation is the genesis of the current issues identified below. PART 16 CERTIFICATION Pursuant to 14 CFR 

### § 16.21(c), SDMB certifies that it has made substantial and reasonable good faith efforts to resolve the issues relating to FAA recognized

140627_sdmb.hcda.faa.complamtFAA Office ofthe Chief Counsel July 1, 2014 Page 3
aeronautical activity, han-emergency parachuting/skydiving, sinc;e HCDA resumed operations at GSA in August 2013. From May 2012 to August 2013 or more than fifteen (15) months and over 2,500 parachute jumps, SDMB received no complaints from FAA, CRE or HCDA2 From August 2013, to date (the period since HCDA has resumed control of GSA), SDMB has received repeated complaints and been subjected to other intimidation attempts3 SDMB has requested multiple meetings concerning GSA active areas with both HCDA and CRE officials since HCDA took over GSA management. When SDMB requested .mediation with HCDA, however, 

### it was unaware of the HCDNCRE partnership that initiated policing "unusual" airport activity and refereeing the boundaries of SDMBs primary LZ. Additionally, HCDA continues its refusal to mediate within the bounds of South Carolina Rules of Professional Conduct (SCRPC) by demanding an expanded scope to include matters of state law before it will discuss issues relating to this Part 16 Complaint4 See Exhibit 3, at 1-14. Since HCDA and CRE are working together to report and enforce subjective "unusual incidents"5 and CRE will no longer discuss applicable regulations with SDMB, there is no other option than for SDMB to refile its complaint for resolution by FAA. Without FAA inteNention for the reasons enumerated below, there is no reasonable prospect for practical, equitable, and timely resolution ofthe dispute. STATEMENT OF FACTS 

# 1. In April 2012, SDMB negotiated a lease with Ramp 66, LLC for Hangar 7 at the GSA In North Myrtle Beach, SC and was granted exclusive rights to conduct parachute operations at CRE for a period of eight (8) years. 

## 2.. On May 11, 2012, a Letter of Agreement {LOA) was signed by SDMB, HCDA, Myrtle Beach Air Traffic Control Tower (MYR) and CRE for conducting non-emergency parachute operations. See Exhibit 2 at 19-21.

2 A SDMB tandem instructor did receive a warning letter for jumping too close to clouds while conducting non-emergency parachute operations in the summer of 2012. This included a two-year probationary period for the instructor from FAA Flight Standards District Office (FSDO) Colombia, SC. 3 SDMB has alleged that the conduct of CRE and HCDA has materially interfered with its business. See gen. Exhibit 5. 

### ' On June 5. 2014, HCDA utilized an alternative legal forum to attempt to have SDMB evicted and removed from Hangar 7 in Myrtle Beach Magistrate's Court. See Exhibit 4. See Exhibit 2, at 10-13 for an explanation and examples of filed reports.

140627.sdmb hcdaJaa.compl;:untFAA Office ofthe Chief Counsel July 

### 1, 2014 Page 4 

# 3. On or about July 

### 15, 2013, Ramp 66, LLC represented to SDMB that HCDA would require SDMB to enter into a Lease with HCDA with the same or similar term and rental cost provisions. 

# Jf. On August 

### 1, 2013, Ramp 66, LLC .sold its leasehold interest to HCDA and HCDA resumed control of GSA 

# 5. In August

### 2013, HCDA informed SDMB that it would have to double its liability of "slip and fall" policy coverage to 

### $2,000,000 and pay 

### $1,200 per month for Hangar 7 or HCDA would not permit SDMB to operate its business on GSA property. See Exhibit 

### 1 at 

### 14-16. HCDA represented to SDMB that these terms would be presented to Horry County Council during the six (6) month temporary period for a long-term lease.

. On October 15, 

### 2013, CRE notified SDMB of a situation whereby a skydiver crossed a taxiway rather than staying on the grass as requireci by FAA regulations. See Exhibit 

### 1 at86. 

# 7-. On October 27, 2013, a skydiver inadvertently landed on the taxiway adjacent to the landing area and was medivacked to the hospital. Information requested from HCDA relating to this incident was not released to avoid a potential Health Information PrivacyProtection Act (HIPPA) and Privacy Act violation. See Exhibit 

### 1, at 

### 99. In October 2013, Sgt. Ortiz, a North Myrtle Beach, SC fire inspector,. informed SDMB that it needed to replace a blank panel in the electrical box, remove extension cords, and install electrical receptacles for its office equipment to avoid a fine or violation. SDMB requested HCDA, through its manager Tim Jackson, to correct the electrical deficiencies. In November, having heard notlling from HDCA relating to the electrical issues, SDMB repaired the defective receptacles and conduit with a licensed electrical engineer. Due to HCDAs failure to correct the electrical deficiencies, SDMB was issued a fine for the violations by the North Myrtle Beach Fire Department and paid a 

### $205 dollar fine to the city. See Exhibit 

### 2, at 

### 22-24. 

## '1. On November 27, 2013,. via certified mail, return receipt requested, HCDA alleged that SDMB had an unrestrained dog roaming the "active areas'' of the airpo1i and had overnight guests in the Hangar in violation of unpublished HCDA policies that would result in tl1e revocation of SDMBs operating permit and space use permit, if repeated. See Exhibit 2, at 27-28. 

### I0. On or about January 6, 

### 2014, SDMB addressed HCDAs concerns and notified HCDA that the failure to respond to its letter was due to the fact that it's Manager, Tim Jackson had issued instructions to the FBO employees to refuse to accept any and all mail and parcels requiring signatures. See Exhibit 

### 1, at 

### 109-110.

l4D627.sdmb.hcoa.faa,complaintFAA Office ofthe Chief Counsel July 1, 2014 Page 5


### II. On January 21, 2014, CRE notified SDMB that it manager "feels" parachuting on GSA was unsafe and steps should be taken to improve safety due to the HCDA mandated change of parachute Landing Zone (LZ}, banner tow, and helicopter guide operations for the upcoming season. See Exhibit 1, at 111. On January23, 2014, SDMB requested a meeting with CRE to address its safety concerns and discuss operations for the upcoming season. See Exhibit at 113. In its answer, CRE indicated that HCDA should also be a party to the discussion. See Exhibit 1,at114. 

### 1:3. Three days later, on Sunday, January 26, 2014, responding to an inquiry f!'llating to holds, Robinson Aviation, Inc., Manager of Aviation Area II, Richard Allen indicated the need to possibly contact the FAA "runway incursion folks again ref: the golf carts and etc. todayc" See Exhibit 1, at 11g. On February 3, 2014, SDMB again attempted to schedule a meeting with MYR, CRE and other interested parties. See Exhibit 

### 1, at 130. Later that same day, SDMB was contacted by HCDA about another vehicle/pedestrian complaint by CRE to FAAfor an active area incursion. See Exhibit 1, at 138. 

## IS: On February 5, 2014, SDMB set a meeting for Friday, February 

### 7, 2014, to discuss CREs recentcomplaints to the FAA. See Exhibit 

### 1, at 153. Additionally, SDMB responded to HCDAs request for information related 

### to. the golf cart and skydiver taxiway "incursion". See Exhibit 1, at 158. 

## l<o. In the February 

### 7, 2014, meeting, CRE advised SDMB about a LOA between HCDA and CRE wl1ereby procedures tor vehicular and pedestrian entry into "active areas" required CRE ground communication protocols. SDMB agreed to comply with these provisions, requested a copy of the LOA and implemented internal procedures to meet the terms of the HCDA-CRE LOA. See Exhibit 

### 1, at 164-166. SDMB also requested repairs to the hangar for electrical, lighting and a street side door access to mitigate the deleterious effects of HCDAs refusal to accept parcel deliveries. See Exhibit 

### 1, at 167c168. Mr. Jackson objected to the minutes in that "the FBO would not sign for deliveries however we will except [sic] any delivery that does not require a signature". See Exhibit 1, at 167. Following the meeting, CRE provided SDMB 

### 14 CFR 

### § 139.329 as the authority for its complaints to the FAA and HCDA. See Exhibit 

### 1, at 192. 

## /'f. On February 10, 2014, CRE and SDMB included the ground communications in part of the draft between SDMB, ZJX, MYR, CRE, and HCDA proposed LOA. See Exhibit 1, at 194.

140627 sdmb t1cc:a faa.ccmplam!FAA Office ofthe Chief Counsel July 1, 2014 Page 6
{'/. On or about February 14, 2014, CRE indicated that it would attend the Safety Meeting March 8, 2014, adding 

### "I plan to do all 

### I can to make this work for all 

### of us." See Exhibit 

### i, at 197.

. On February 17, 2014, SDMB attempted to address its maintenance, mail and parcel delivery issues with HCDA. See Exhibit 1, at210. 

### :2,(). On February 19, 2014, HCDA was provided a letter from the Deputy County Attorney, Director of Airports, and Airport Manager, at the FAA-sponsored Safety Day, The letter identified more than ten (10) "serious" alleged FAA regulatory violations relating to skydiving as reported to HCDA by CRE. See Exhibit 3 at pages 54"57. Due to these allegations, the Deputy County Attorney indicated that a lease was not forthcoming but a new temporary space use could be used as an alternative provided SDMB paid the higher of $1,200 per month or 24% of its gross sales. See Exhibit 3, at 60, 1]4.B. The new terms were non-negotiable and SDMB had seventy-two 

### (72) hours to execute or vacate the hangar. See Exhibit 3, at 57. On February 

### 19, 2014, a copy of the proposed LOA with the terms between SDMB and CRE as agreed was sent to MYR for review and comment. 

### See Exhibit 

### 1, at 214. On February 24, 2014, skydiving operations at Grand Strand appeared smooth, without incident, and a working relationship with ZJX, MYR, CRE and SDMB had been developed with a workable LOA involving all parties. See Exhibit 1, at216c224. (HCDA did not participate in the draft LOA discussions although it was invited to do so). On February 21, 2012, SDMB addressed each of the allegations in the HCDA letter, denied violating any Title 14 regulation, asked for a copy of the HCDA operating regulations or authority and requested to work out the issues between HCDA either informally or in a court. See Exhibit 3, at 67-78. 

## :25. On February 23, 2014, the day after Horry County's seventy-two (7Z) hour take· it-or-leave-it deadline, without notice, HCDA FBO staff under the direction of manager Tim Jackson, delayed fuel service to SDMB .at Grand Strand by initially denying altogether, and later reconsidering on the phone. See Exhibit 5, at 35 (Affidavit of Ben Auker). 

# :lt. On February 24, 2014, SDMB filed a Formal Complaint with FAA. See Exhibit 

### 3, at 50. 

## ;2.5. On February 26, 2014, HCDA attorneys informed SDMB that it did not engage in "good faith" negotiations prior to filing its Part 16 formal complaint and requested SDMB to withdraw its formal complaint. See Exhibit 3, at 48.

. By Jetter dated February 28, 2014, SDMB related its Part 16 Complaint was discrete from its state court complaint and attached a copy of its state complaint as a

140627_-;;.dmb.hcdaJaa .complaintFAA Office of the Chief Counsel July 1, 2014 Page 7
courtesy. See Exhibit 3, at 46. SDMB also indicated its willingness to resolve the matters but refused to withdraw its Part 16 complaint. 

### /d. 

## :'J.7--. On March 4, 2014, HCDA moved to dismiss tl1e Part 16 Complaint without prejudice. See Exhibit 3, at 44. 

### ;2f. On March 6, 2014, SDMB attempted to amend its Part 16 Complaint. See Exhibit 3, at 39. 

### Z9. On March 7, 2014, HCDA raised SDMBs failure tb attach supporting documents and moved to dismiss. See Exhibit 3, at 38. 

### 30. On March 18, 2014, FAA dismissed SDMBs Part 16 Complaint for incompleteness. See Exhibit 3, at 35. 

## £31. On March 20, 2014, HCDA issued a policy letter for tenant mail and parcel delivery for tenants at GSA and instituted Driver Training. See Exhibit 3; at 34. 

### 32. On March 25, 2014, and again on March 27, 2014, SDMB staff attempted to attend the required driver training but no HCDA representative showed up. HCDA Manager Tim Jackson and Lineman Jack Teal personally came to Hangar 7 to apologize for the course failure. The driving course was rescheduled on March 28, 2014. See Exhibit 1. at 228. The class was again cancelled and has not been rescheduled to date. 

## :3.5. On April3, 2014, HCDA dumped approximately six (6) yards of peat moss on the SDMB staff parking lot preventing access to three (3) staff parking spaces. See Exhibit 1, at 235. 

# 34. On April 7, 2014, through its attorneys, HCDA offered its version of "good faith" negotiations- reducing the monthly lease percentage of gross from 24% to 10%. HCDA also indicated that eviction proceedings would be initiated if this was not accepted by SDMB. See Exhibit 3, at 23. 

### 85. On April 12, 2014, a heated email exchange between CRE and SDMB ended with a threat to file another FAA complaint and a promise to forward all future CRE complaints to the FSDO and HCDA See Exhibit 1, at 241. On April 18, 2014, SDMB again attempted to negotiate terms for leasing Hangar 7, and again requested a meeting to finalize the LOA for non-emergency parachute operations at GSA. See Exhibit 3, at 21-22. 

# o':f. On April 28, 2014, HCDA issued a Notice of Termination unless the terms in its April7, 2014, correspondence were agreed to. See Exhibit 3, at 19. The letter further

140627 sdmb,hcda.faa compieintFAA Office ofthe Chief Counsel July 1, 2014 Page 8
stated, "SDMB may not base its aircraft or its skydiving operations at CRE. However, as long as SDMB operates in accordance with all applicable laws, including the letter of agreement, the [FAA], the CRE tower and HCDA, SDMB may continue to use the aeronautical facilities at CRE, including the landing zone as a transient operator. However, without a valid Space Use Permit, SDMB must vacate Hangar No.7 and may not base its aircraft at CRE." 

### /d. On May 10, 2014, CRE notified SDMB it was forwarding a complaint for a taxiway incursion. See Exhibit 1, at 243. On May 19, 2014, HCOA requested information relating to an FAA "Letter of Investigation triggered by skydivers operating on an active taxiway .on May 10." See Exhibit 

### 1, at 245-256. 

## ;fo. On May 22, 2014, SDMB gave 

### a counter offer to HCDAs Notice of Termination relating to Hangar No

.. 7 and again requested a meeting to finalize the LOA. See Exhibit 3, at 16-18. On May 24, 2014, CRE reported a skydiver crossing the runway. See Exhibit 

### 1, at 257.

. On May 28, 2014, HCDA rejected SDMBs counter offer and demanded SDMB to vacate Hangar No.7 and remove its aircraft from CRE. See Exhibit 3, at 14-15. 

# 4?J. On May 29, 2014, SDMB offered to mediate with HCDA in an attempt to resolve the issues. See Exhibit 3, at 19. 

## J.f'f. On May 30, 2014, HCDA conditionally accepted SDMBs offer to mediate. See Exhibit 3, at 10. 

## Jf-5. On June 2, 2014, SDMB countered HCDAs conditional offer to mediate in order to meet ethical requirements relating to South Carolina state law. See Exhibit 3, at 8-9. 

### J./{o. On June 5, 2014, HCDA conditionally accepted SDMBs offer to mediate with several modifications and filed an Application for Eviction in Myrtle Beach Magistrate's Court. See Exhibit 3, at 5-6; Exhibit 2. 

### 'f'1. On June 10, 2014, MYR invited all interested parties to discuss the LOA. See Exhibit 1, at 272. Although the proposed LOA included penalty and reporting provisions that were objectionable to SDMB, a meeting was set for June 24, 2014. See Exhibit 1, at 273-298. On June 18, 2014, SDMB offered to mediate but conditioned its acceptance on compliance with SCRPC Rule 4.2 necessitating the attendance or written consent of allFAA Office ofthe ChiefCounsel July 1, 2014 Page 9 represented parties in order to discuss matters relating to SC state /awe. See Exhibit 3, at 4. 

# 4'1. On June 24, 2014, HCDA, ZJX (via phone), MYR, CRE and SDMB met at MYR to discuss the LOA. The meeting did not finalize the LOA, and it was agreed that operations would continue under the terms of the existing LOA until matter could be finalized. HCDA could not provide a return date. Incident reporting was discussed, and for the first time HCDA revealed that CRE was reporting all skydiver taxiway crossings to HCDA at their direction. On June 27, 2014, SDMB requested regulatory authority requiring CRE to report skydivers on active areas to FAA and requested a discussion about Title 14, Part 105. SDMB was referred to FAA. See Exhibit 1, at 322. On or about June 27, 2014, an unidentified photographer6 was observed taking pictures of Hangar 7 from the Grand Strand Airport Parking lot. See Exhibit 2, at 15. On June 27, 2014, at 1546 on a Friday, counsel for HCDA rejected SDMBs offer to mediate by its failure to offer assurances that counsel for all parties would attend .or provide written consent to discuss matters of state law. See Exhibit 2, at 14; Exhibit 3, at 1. 

## 53. On June 27, 2014, HCDA emailed SDMB relating its safety concerns from CRE and FAA with reports that were attached. See Exhibit 2, at 

### 11. The FAA reports were styled "Horry County Department of Airports Unusual Activity Report" and filed by CRE to HCDA employees Stan Cox and Edward Dingley. See Exhibit 2, at 10-13. 

## 5f. On Sunday, June 29, 2014, HCDA employee Ed Dingley repeatedly drove to the LZ in a golf cart to observe each parachute drop conducted during the day. See Exhibit 2,at17-18. CONCLUSION Since it appears that HCDA and CRE are either unable or unwilling to differentiate between Part 139 "pedestrian" activity and Part 105 "parachutist" activity in Title 14 as it applies to legitimate aeronautical practices delineated in Parts105, AC 105- 4E and set forth above, SDMB has no alternative other than to see relief through FAAs Part 16 formal complaint process.

The photographer has been identified by SDMB staff as HCDA Operations Supervisor Edward Dingley. On Friday when questioned by SDMB staff after being observed taking pictures from a concealed location in the parking lot, Mr Dingley stated that he was a taking pictures as was his hobby when on vacation or words to that effect

140627 sdmb hcd<>.faa complaintFAA Office of the Chief Counsel July 1, 2014 Page 10

The current arbitrary attempts to restrict the landing area and the continued practice of reporting authorized parachute operations (landings) as violations pursuant to Part 139, under the sheepskin of "safety concerns" is unreasonably restrictive and discriminatory as applied to an FAA recognized aeronautical activity. Safety concerns have been continually improved and updated with national input by experts from the parachute industry and FAA and are addressed in AC 105-4E. The purpose of this AC is to "improve sport parachuting safety and disseminat[ion of] information to assist all parties associated with sport parachuting." See AC 105-4E,**~** 1. Thank you for your attention to this matter. I look forward to hearing from you in the near future. Should you have any questions, please do not hesitate to contact me.

EncL: Exhibi11 Emails (323 pa{les) Exhibit 2 Documents (28 pages) Very trulyyours, /) ' -'1 I / y;l 1/f I/ I**/~** ,, } /' 

### /

# f!}'~t-<._.f; (c;rlY7C'LRobert G. Eastman

Exhibil3 Part 16 Correspondence (88 pages) Exhibit 4 SC Magistrate Court**Ple<:~dings** (15 pages)

RGE/fub Exhibit 5 SC Court of Common Pleas Pleadings {36 pages) Aaron Holly (via email) RobertVarnado, Esq. (via email) Samuel F. Arthur. II!, Esq. (via email) David Bannard, Esq (via email) Mike Battle, Esq. (by t1and)

140627 .sdmb.t\cda.faa.complaintFAA Office of the Chief Counsel July 1, 2014 Page 11

CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Complaint on the following persons at the following addresses and emails by first class US Postal Service and electronically. 9-AWA-AGC-Parl16@faa.gov Office ofthe Chief Counsel Attention: FAA Part 16 Docket Clerk AGCc600 Federal Aviation Administration 8001ndependenceAvenue,SVV VVashington, DC 20591 Richard.allen@rvainc.com Robinson Aviation, Inc. 1601 NVV Expressway Oklahoma City, OK 73118-1435

Dated this 

### 1'1day ofJuly, 2014. 

# /7 i1 /} 

# '/

**~~.s/!** 

# k

**it~r~.,vf** fen --ftt-cc_

__ Robert G. Eastman, Esq. For Skydive Myrtle Beach, Inc.

140627 sdmb,hco'a.faa.complaint Aponep@HorryCounty.org PatApone, Director Harry County Dep't ofAirports (HCDA) 1100 Jetport Road Myrtle Beach, SC 29577
dbannard@foley.com David Banner, Esquire Jeffrey Blease, Esquire Jaclyn Piltch Foley & Lardner LLP 111 Huntington Avenue Boston MA 02199 Counselfor HGDA

### CERTIFICATE OF SERVICE I hereby certify that I have this day served Respondent's Motion to Dismiss and accompanying Memorandum ofPoints and Authorities onthe following persons at the following addresses, bothby certifiedmail and by electronic mail in accordance with 14 CPR§ 16.13(h):
Office ofthe ChiefCounsel ATTN: FAA Part 16 Docket Clerk AGC-600 Federal AviationAdministration 800 Independence Avenue SW Washington, DC 20591 9-AWA-AGC-Part-16@faa.gov

Dated: August 22, 2014

4816-2862-4925.1 Robert G. Eastman, Esq. Eastman & Associates, LLC P.O. Box 180 Charleston, SC 29402 robertgeastman@msn.com 

### CounselforSkydive Myrtle Beach. Inc.