When I tell other lawyers that I am an airport lawyer, almost 100% of the time the response I get is “Wow! That is such a niche!”. What those of us in the airport world know is just how broad and deep airport law is – this is what makes it such an interesting field in which to work. As I told a new attorney a few days ago, “I learn something new almost every day”. So for this first article, I thought it would be helpful to start at the beginning: What IS airport law? And what do you really need to know?
I am certain that other attorneys would have a different opinion on this, but in my opinion, the most important thing to know is whether or not your airport is “federally obligated”. Basically, has your airport, or has the city or governing body that owns your airport, accepted federal funds for your airport? If so, your airport is almost certainly federally obligated. The vast majority of public airports are federally obligated, and so are a few private airports. Another source of federal obligations is how your airport received the land on which the airport sits. If the land under your airport was provided by the federal government at some point, even back to the very first days of flight, then this also means your airport is federally obligated.
This first question of whether or not your airport is federally obligated is so important because if the answer is yes, the airport sponsor (the entity that accepted the federal funds or the property under the airport or even in some situations the airport itself) must comply with a myriad of federal laws and regulations governing airports. There are no exceptions for small airports, or general aviation airports, or airports that don’t have full-time staff, or airports that require financial support from a city’s general fund in order to operate: if your airport is federally obligated, you are required to comply with the applicable federal laws. These laws touch almost every aspect of managing and operating an airport: they govern how much an airport can receive in grant funds, and how you should maintain your runway, and whether you can close or sell your airport, or hand it over to another government agency to operate. There are also state statutes and local ordinances that govern airports, and each airport sponsor should be aware of these as well.
The Federal Aviation Administration (FAA) enforces these federal obligations through its airport compliance program. This compliance program consists of both formal requirements for airport sponsors, such as the grant assurances that accompany each federal grant, and guidance documents such as advisory circulars that can offer helpful clarity to federal requirements. The FAA captures these requirements on its website, and provides a very useful tool called the Airport Compliance Manual. The Manual is written by the FAA for the FAA staff, but it is available to airports and is an invaluable resource. The Manual summarizes almost every key compliance obligation of a federally obligated airport, and provides references to the relevant grant assurance, regulation, law, or advisory circular for further research if that is necessary.
The following summarizes some of the major obligations of a federally obligated airport sponsor:
· Prohibition of exclusive rights [Grant Assurance #23, generally, sponsors shall not permit an exclusive right to an aeronautical user]
· Use of airport revenue [Grant Assurance #25, generally, revenues generated by the or on the airport should be used only for the airport. This includes local taxes on aviation fuel established after 12/30/87.]
· Compatible land use [Grant Assurance #21, the sponsor should ensure that land adjacent to or in the immediate vicinity of the airport is compatible with airport operations. This may require
the sponsor to attempt to secure avigation easements or zoning restrictions on property it does not own.]
· Availability of fair and reasonable terms without unjust discrimination [Grant Assurance #22, the airport shall be available as an airport for public use on reasonable terms and without unjust discrimination. The airport should require any operator at the airport to comply with these requirements as well.]
· Adhering to the approved airport layout plan [Grant Assurance #29, airport sponsors should keep the airport layout plan up to date at all times, and should make land use and business decisions that are consistent with the airport layout plan.]
· Self-sustainability [Grant Assurance #24, sponsor should maintain a fee and rental structure for facilities, land, and services at the airport which should make the airport as self-sustaining as possible.]
· Sale or disposal of Federally acquired property [Grant Assurance #5 and #31, selling or trying to transfer airport property to another owner or sponsor requires approval by the FAA; a lease of land with a term of longer 50 years also requires FAA approval.]
· Preserving rights and powers [Grant Assurance #5, includes similar requirements regarding securing FAA approval for sale or change in use of certain airport property; and requires the airport sponsor to retain the power to control the airport even if another entity manages or operates the airport.]
· Hangar construction (Grant Assurance #38, aircraft owner who constructs a hangar at his/her expense can receive a long term lease for ground under hangar.]
· Compliance with civil rights requirements [Grant Assurance #30, sponsors shall comply with all applicable civil rights laws, and include required provisions in contracts; Grant Assurance #37, sponsors shall comply with requirements for the Disadvantaged Business Enterprise and Airport Concessions Disadvantaged Business Enterprise programs.]
The above is just a snapshot of the obligations applicable to most US airports, and any one of the above contains one or several articles worth of further explanation. Lucky for all of us, the FAA’s Airport Compliance Manual does an excellent job with the further explanations, including how many of these obligations are interrelated. There are many other resources available for those wanting to understand more about what “airport law” includes, and since most of an airport’s day to day activities are impacted by these laws and requirements, learning more would be time well spent. The FAA’s website is a great place to start, as is attending any session at one of the many airport-focused conferences that discusses legal issues. They really aren’t just for lawyers!
