A Publication of The Florida Bar Aviation Law Committee To Promote Education in the Florida Aviation Community

Volume I, Issue 4 Florida Aviation Law Journal June 2009

Handling Military Aviation Accidents: What Every Practitioner Should Know Donald M. Maciejewski, Esquire1 You are sitting at your desk when you bly were defective, and that the defective receive the call. It is the widow of a Army he- components caused the crash. What do IN THIS ISSUE: licopter pilot. She has heard of your experi- you do...... ? Based on what the widow ence as a military pilot and aviation attorney. has told you, is there a “case?” Read Back...... 2 She tells you about the crash that killed her Taking a military air crash case can be Airspace Economics 101...5 husband and 5 others only months ago and problematic, unless you know the pecu- wants your help. The “ambulance chasers” liarities of Military Aviation Law. Many at- Airport Closures at have been at her door and are also sending torneys attempt to handle their first military Privately Owned/ Public-Use Airports...... 6 her brochures, telling her how great they are. air crash case by “learning as they go,” and She has received a copy of the Army AR 15- this approach often leads to mistakes that Airport Closures in the U.S.- 6 Collateral Board Report and is puzzled at adversely impact the client’s case. Consider Tony Jannus would not some of the Board’s findings. She heard from the following “war stories” - all of which actu- approve!...... 14 a worker at the U.S. Army Safety Center that ally happened and all of which involve real the crash occurred during takeoff, when the “aviation attorneys”: nose of the Blackhawk pitched down, alleg- 1. A Navy helicopter crashes in the edly due to stabilator failure. Lynnhaven Bay in Virginia Beach, killing She tells you that her husband was an six active duty military passengers. The Army Major with over 10,000 flight hours, families of the deceased passengers and pilot-in-command of the UH-60L Black- contact Mr. Aviation Attorney, who ad- hawk helicopter. She relates that his co-pilot vertises his services as “a specialist in was an Army Captain, who was a highly ex- wrongful death cases.” After signing up perienced pilot as well. You also learn there the families, Attorney promptly calls the Editorial Board: were 2 Army helicopter crewmen aboard the local newspaper and advises the world (a flight medic and flight crew chief), that “...we are going to sue the Navy for S. V. (Steve) Dedmon, along with a civilian photographer and civil- negligence in causing the deaths of these Editor-in-Chief ian news journalist. The mission of the flight good men.” was to aerially photograph the new Army 2. Aviation attorney Bob Bigvoice repre- Committee Officers: Hospital at Ft. Rucker, Alabama and to assist sents several military crewmen who were Harry Lee Coe IV the local news media in preparing a story for killed in the crash of an Army military Chair the Army Times about the modernization of cargo plane. Attorney Bigvoice settles S. V. (Steve) Dedmon, Ft. Rucker. his clients cases cheaply, then calls a Vice Chair The widow has so much more to tell you press conference announcing his great and wants to know if you can meet with success. Following the press conference Brian David Burgoon you. Before she hangs up she also tells you and after Bigvoice’s clients sign releases Board Liaison that a “friend” of her deceased husband, closing out their claims, the clients advise who works at the Army Safety Center, has Bigvoice that they have received notifica- provided her with an “unredacted” copy of tion from the Army that they have lost the Safety Center Report, which states that all of their military and survivor benefits, certain components of the stabilator assem- See “Military Aviation Accidents” on page 10  

 “Read Back”

S.V.(Steve) Dedmon It has been a while since our last John White the current president of umn for AOPA magazine. When I first publication, but it is better to wait to as- the Bar dropped in to say hello to the contacted him he said the caveat that sure we are substance and not shadow! committee. came with his accepting my invitation As such, there is a combined overview The next topic was whether the to speak was that he flew for 3 different of our last two meetings. As always committee should host an aviation cer- people who owned airplanes and even there is also three excellent articles tification review course in conjunction though he did not have a trip scheduled, contributed by Harry Lee Coe IV, Chris- with Embry-Riddle Aviation Law and that was subject to change. I weighed topher Robbins and Don Maciejewski. Insurance Symposium (ALIS) meeting the risk benefit and we agreed he would The Tampa Airport Marriot hosted in Orlando in January 2009. Greg Popp come and I would be his back up. On our September 12, 2009 meeting. For reminded the group the committee did the Monday, before our Friday meeting those who have attended meetings the review course in January 2007 and the e-mail arrived and I moved from there in the past you know finding the it is a large commitment of time and SIC to PIC. Since agreeing to be the room can be a challenge. One at- resources. The time includes review- back-up my material was ready, I just tendee commented they needed a GPS ing the certification requirements and had to get mentally prepared. to find the meeting room and when I left identifying those qualified to teach the My subject was Unmanned Aerial just prior to beginning I was tempted to subject material which may be up to six Systems and the FAA, THE FUTURE leave a trail of bread crumbs to help me to seven different individuals. It was IS NOW. The discussion was broken find my way back! agreed the committee will commit to the down into the history of UAV/UAS, Chairman Harry Coe, opened, as project and a subcommittee including the applicable Air Circulars, the NTSB is our custom, by having those in at- Jerry Trachtman, Ed Booth, and Bruce and UAS, House Resolution 2881, tendance introduce themselves, where Green would spearhead the logistics. finally the 2008 rulemaking committee they were from, and their area of prac- The committee also agreed to move proposal. Historically, the discussion tice. It is a good reminder for us of our January meeting to the Saturday looked at the initial development of bal- the variety of experience we enjoy as after the ALIS meeting. It was the con- loons beginning with the Montgolfiers a group. We were fortunate to have sensus that moving the meeting would who were among the first to harness some new faces among the group and also encourage committee and ALIS hot air in lighter than air technology. I it was good to greet and meet them and attendees participation based on the digressed a little to discuss the case welcome them. 7-8 CLEs that are normally available. of Guille v. Swan to describe the first Our first order of business was an So, check your future e-mails from the balloon trespass to property which held update on the Eilon Krugman-Kadi committee and Jerry and the gang Guille liable for not only the damage he scholarship established in at Embry- regarding attending or presenting. did to Swan’s garden but for that of the Riddle Aeronautical University. Steve Ed Booth, immediate past president 200 people who trampled down Swan’s Dedmon had received information from of the Lawyer Pilots Bar Association, vegetables and flowers as a result of the University Development Office that informed the group of the up-coming Guille’s cries for assistance. as of June 30, 2008 the scholarship winter meeting in Palm Springs, Califor- The discussion then touched on the had reached $10,778.00 and thus has nia at Rancho Las Palmas from Febru- use of UAVs during the civil war (includ- reached the endowment level which ary 18 – 22, 2009, and next summer at ing its influence on Otto Von Zeppelin), means next year the committee will the Grand Hotel on Mackinac Island, the use of hydrogen as a lifting gas, be able to make its first scholarship Michigan from July 8 – 12, 2009. Harry the use of kites for aerial photography, award. Jerry Trachtman suggested, Coe highlighted the MBAA meetings, and international law regarding using and the committee agreed, we should AOPA Expo, and the Asian Business balloons as bombing platforms. This give the scholarship in conjunction Association Conference and Exhibi- brought to a conclusion UAVs in the with one of our scheduled meetings. tion (ABACE) and European Business 1800s. He also said Lynda McMullen, Eilon’s Association Conference and Exhibition The presentation then moved to the long time companion, has expressed (EBACE) meetings. use of UAVs in WWI, specifically to interest in attending. It was agreed The first presenter for the after- the development of the Kettering Bug she should definitely be included in any noon was me. Over the past month which was developed to drop the wheel presentation make in Eilon’s memory. I had been corresponding with Mark carriage at takeoff, have the engine Incidentally, during this conversation, Twombly, who writes a monthly col- Continued on next page

 “Read Back” From previous page shut down when it reached its destina- operating in or adjacent to their areas of violations. The Assistant Federal Secu- tion which lead to the detaching operation. Interestingly, it is this circular rity Director for Law Enforcement serves resulting in the /bomb dropping under which civilian commercial opera- as the FSD’s primary assistant in coor- on the target. Operation Aphrodite, tors believe they can operate UAV/UAS dinating law enforcement activities at which took the life of Joe Kennedy, Jr., legally. According to the FAA this is an the airport. They are law enforcement was an example of UAS operations in erroneous assumption, as addressed officers with authority to carry firearms WWII. Last, as related to history was by Order 1110.150 in forming a rule- and make arrests. Transportation Secu- the development of the Firebee in the making committee for Small Unmanned rity Inspectors investigate security inci- ‘60s and ‘70s. dents and compliance with regulations I then showed examples of modern At this point I also discussed the role and, where appropriate, recommend UAS vehicles including the Global Hawk, of the NTSB and their investigation into civil enforcement actions. Predator, and Altus II. I discussed how the crash of a Predator B operated in There are those we are most familiar there is a difference between the Air conjunction with border patrol opera- with the Screeners who are Transpor- Force and the Army views regarding tions. In this case, the display screen tation Security Officers and conduct who should pilot the UAV with the Air froze, the operator switched screens on administrative searches of passengers Force using pilots while the Army uses which the fuel selector was in the “off” and baggage entering the sterile area technicians. We also discussed the role position and the aircraft crashed. Thus, of the airport to ensure the safety of the of the pilot and technicians as related to the probable cause was the operator’s traveling public. The legal representa- systems which employ both. At this point failure to deal adequately with the fro- tive for the TSA is Field Counsel and I introduced the civilian interest in UAS, zen screen. As you can imagine, the provide legal support to FSDs on issues the potential uses and how the FAA is/is NTSB had a laundry list of safety sug- involving criminal and civil enforcement, not dealing with future demand. gestions as related to the accident. liability, legal training, airport security, First, I discussed AC 05-01 and the Looking into the future we discussed and personnel issues. TSA Field Coun- concern and guidelines it outlines for H.R. 2881 and which authorizes the sel have extensive legal experience UAS. The major concern is how to deal Secretary of Transportation to integrate in a variety of practice areas. At this with “see and avoid” while operation UAS into the system by 2012. Even point there were questions regarding in the national airspace. Among the more important is the appropriation of the “no fly list” and how one gets on/off guidelines included in the newer AC 08- funds to bring that to fruition. We ended it to which there were some personal 01certification of the aircraft, operations with NASA conceptual development of experiences related to Mr. Stein. above and below 18,000, the require- the newest Traffic Collision Avoidance The next item to be discussed was ments for observers, communication Systems and the control of an aircraft Screening Authority under which the with ATC, operation in IFR conditions by using a computer mouse, thus not TSA will ensure the screening of pas- and night operations, aeronautical far removed from UAS. sengers and property comes from knowledge, medical requirements and Fredrick Stein, Field Counsel for the 49 USC § 44901. The issue of Law proficiency/currency and rating require- Transportation Security Administration Enforcement/Perimeter Security and ments for pilot operators. Aircraft are (TSA) was the next presenter. Ap- its jurisdiction under the head of TSA, currently certified in the Experimental propriately, his office is located in the in consultation with the airport opera- Category which, and this is significant, Homeland Security office right down the tor and law enforcement authorities, forbids civilian operators from using the hall from our meeting room. His outlined deploys law enforcement personnel vehicles in commercial operations. Ad- revolved around TSA Authority, TSA and addresses the risk of criminal viola- ditionally, as of March 27, 2008 Order Airport Personnel, Screening at Airports, tions, the risk air piracy, the risk to air 8130.34, which is the current standard and Enforcement of TSA Regulations. carrier operations, and national security establishes the newest procedures The authority by which the TSA oper- concerns under (49 USC § 44903(h)) for issuing special airworthiness cer- ates includes General Authority under was also covered in detail. tificates in the experimental category the Aviation and Transportation Security He then discussed Civil Penalties for purposes of research and develop- Act (ATSA), P.L. 107-71 (Nov. 19, 2001), and to whom they are applicable. A ment, market survey, and crew training gives the head of TSA wide-ranging person and in this case is a term of art in unmanned aircraft systems. authority to carry out security-related and broadly defined, may be liable for Another AC, 91-57, was discussed responsibilities covering civil aviation a civil penalty arising from a violation which deals specifically with hobbyist and other modes of transportation. of TSA statutes and regulations under and radio control aircraft operations. TSA personnel and their roles include 49 U.S.C. § 46301 and include $25,000 Specific requirements include line of the Federal Security Director (FSD) who per violation against aircraft opera- sight operations, no flight above 400 ft is appointed by the head of the TSA and tors, $10,000 per violation against all above the surface, no flight in areas that is responsible for the overall responsi- other violators under § 46301 (a)(4), would endanger persons or property bility for security at the airport and may and no administrative assessment of and coordination with airports when initiate civil penalty actions for security Continued on next page

 “Read Back” From previous page civil penalty may exceed $50,000 in a nautical University’s Aviation Law and be sued, and the statute of limitations. single action against an individual or Insurance Symposium. The committee There are also specifics regarding small business, or $400,000 against hosted a review for those who were placing weapons in space, colonizing all others under § 46301(d). taking the Aviation Board Certification celestial bodies, and the international Pertaining to Screening Authority, Examination or were interested in be- cooperation should accidents occur. Mr. Stein discussed Primary screen- ing part of an Aviation Law refresher The Commercial Space Act was also ing as the process all individuals must course. The Florida Bar had agreed to discussed in detail should one wish to undergo to enter the sterile boarding give 8.5 continuing education credits, get the blessing of the FAA. By the way, area and involves walking through so whether taking the examination or to be PIC any pilot rating will do with an the metal detector and submitting not, it was a great overview of avia- instrument rating and 2nd class medical. carry-on baggage to x-ray. Obviously, tion legal topics with CLE credit as a FAA Enforcement taught by Pat primary screening is used and effective bonus. The review was well attended, Phillips: this course began with a at intercepting guns, knives and other extremely informative and a great time letter of investigation and ended with prohibited items, but is less effective at to just be around one’s aviation legal appealing a decision to the circuit intercepting explosive materials. He colleagues. As you can see by the fol- court of appeals. There was numerous then moved on to Secondary screen- lowing, this was time well spent. examples and group participation as ing which is more rigorous screening Aviation Related Litigation taught this is an area most of the group had procedures that some individuals must by Don Maciejewski: this review fo- experience with. One interesting and undergo following primary screening cused on the Federal Torts Claim Act. recent example involved the FAA seek- and include limited body pat-down It included the statute of limitations ing over 50,000 in civil penalties from a using a handheld metal detector and for filings, the standard mandatory student who did not have a license and searching the contents of carry-on bag- court forms which must be used, the was flying passengers. gage. Detection of explosive materials responses and time limitations after Registration and Recording/Air- is a secondary screening and provides filings, and specificity pertaining to craft Financing taught by Bruce an additional opportunity to screen for damage amounts. One specific is- Green: the review included internation- explosives including air induced “sniff- sue resolved around the governments al aircraft registration and the Capetown ing” devices, which was noted by the mandatory v. discretionary actions and Accord. Normal registration and record- members as problematic. Also noted its relationship to filing/not filing. ing procedures were also discussed the was what triggers a secondary screen- Airport Operations taught by Stu- negative consequences of failure to reg- ing and when a person cannot avoid art Goldstein: the focus of the review ister, thus losing an aircraft to a subse- additional screening. is on the language of the Railroad Labor quent buyer. The review also included As a practical issue he reviewed Act which is the controlling authority wet/dry leasing, service/mechanic liens the steps in an administrative enforce- pertaining to labor dispute resolution and adequate filings with the FAA and ment action that look much like an FAA for commercial aviation. He discussed county and protecting conveyances of enforcement action. The first step in union representation/elections, major airplanes and the specificity of register- the legal process (for a gun violation) and minor disputes, what differentiates ing planes, parts, , and the list begins with a Notice of Violation then them from each other, the Nation Me- goes on and on. the possibility of an informal conference diation Board, self help and the ultimate Airport Operations and Land Use where the fine can be cut in half, if ac- authority vested in the President, should taught by Jeff Ludwig: This was a re- cepted it moves to an Order Assessing a dispute reach that level. view of fair treatment of airport tenants Civil Penalty. There is also the violation International Treaties and Conven- and the process for resolution. As most could be dropped in its entirety. If not tions taught by Ed Curtis (my former airports receive federal funds there is resolved, it then moves to a Formal professor): this presentation focused a specific procedure for settling griev- Notice of Violation and if not disposed around the Montreal Convention, its ances and what issues rise to the level of at the juncture goes before a Coast predecessor the Warsaw Convention of unequal treatment among tenants. Guard administrative law judge. The and the Death on the High Seas Act. Another major item was how the FAA decision of the judge can be appealed Issues including strict liability for loss of prioritizes projects it will fund and what to the Administrator then ultimately to life or baggage, jurisdiction, contracting corollary projects may be included. the Court of Appeal. states, and statute of limitations were As you can imagine, days after this Mr. Stein concluded by answering reviewed. The same specifics related event the e-mail traffic regarding the questions pertaining to 4th Amendment to DOSHA were also reviewed. presenters and subject matter was search and seizure issues, biometric, back Space Law taught by Jerry Tracht- overwhelming positive, as it should scatter, baggage and cargo screening. man: This review dealt with International have been. This is just another exam- As touched on in the previous article, treaties regarding licensing, strict liabil- ple of why you should make it a point to our January 2010 meeting was held in ity placed on those who put vehicles in attend the Aviation Law Bar Committee conjunction with Embry-Riddle Aero- space, who can/cannot sue, who can meetings! See you in June. 

 Airspace Economics 101 By J. Christopher Robbins, Esq.1

It is mid-afternoon on Long Island. Airspace Auctions FAA needs Congressional authority to It is my first trip as a newly-rated in- In fact, congestion is such a prob- carry out this plan. That might be true. strument pilot to New York State. The lem lately, that there have been three The FAA has previously refused to hold flight up from Florida was uneventful. recent reported near misses in JFK- auctions like the one proposed for New In fact, it was just beautiful with perfect EWR-LGA-TEB airspace this year. To York. They went on record in the 1980s weather and only a slight headwind. If pay homage to the dearly-departed saying that they needed congressional not for the headwind, we would have George Carlin, this statistic begs the approval first to hold similar auctions. made from Tampa Bay to Long Island questions: If there were three reported So which one is it folks? in our turbocharged Mooney without near-misses, what was the number of The undergirding issue is the trust a fuel stop. unreported near hits? fund which pays for the FAA and our Our first days’ destination was In any event, the FAA has deter- airspace system. How will the FAA of Republic Airport in Farmingdale. mined (and I question this) that technol- the future raise its money? Part 121 Our plan: land, spend the night, drive ogy cannot solve the congestion prob- operators believe this auction fore- to New York City, and celebrate my lem. You can’t cram any more planes shadows a world where they – and friend’s bachelor party at McSoreley’s. up there, they say. And thus they have not taxpayers or GA aircraft – bear an The following day: return to Republic, a new solution: reduce congestion by ever-larger responsibility for funding. fly to Dover International Speed, take reducing the number of aircraft. Death by a thousand cuts, they say. in a Nascar race at The Monster Mile, That’s indisputably logical, if not As a pilot and lover of the free mar- fly home. It’s a weekend combining indisputably circular. It’s the methods ket, I struggle with this problem. I want flight, fast cars, friendship, and food. that raise my eyebrows: The FAA pro- airspace to be free and unencumbered. As a boy, I wouldn’t have imagined poses to reduce the number of planes Yet someone needs to pay for this such a trip possible in my lifetime. by auctioning off landing spots. Don’t phenomenal and luxurious system that have a spot? Don’t land in New York. we have. Who better to pay for it than New York Airspace Congestion Leave it to New Yorker’s to roll out the those availing themselves of it? As it turned out, the greatest adren- red carpet. I didn’t opposing landing fees at aline rush didn’t come at the Monster The auction would be the first of large airports for the same reason. Mile or at McSorely’s. It came climb- several the FAA has said it wants to Don’t want to pay? Don’t have to land ing through 1,000 feet in JFK’s busy conduct. It has also said that selling the there. That’s the New York way. And airspace, heading to Dover. slots to land and take off at LaGuardia, while I will sincerely miss the days of “262RV what are you doing?” Kennedy and Newark will immediately yore if the tide turns the other direction, barked the controller. Right turn to solve their congestion problem. And I cannot call the FAA’s proposal unfair. 060. Expedite! I corrected and lis- they are probably right. It is a balanced and workable solution tened to the man. He was hot. Right for New York and other busy corridors. now, I was his least favorite blip on Economics of Airspace In other words, someone in the industry the radar. I was expecting to hear The issue is that Part 121 operators, that loathsome instruction I’ve heard to the exclusion of everyone else, will is certain to hate it. directed to other pilots before: be paying for these slots. Arguably, “November-two-six-two-romeo- that makes sense, too. They’re the only (Endnotes) 1. Chris Robbins is senior counsel and director victor I have a land-line number I’d ones with high-volume regular flights of Robbins Equitas. He is a former federal judicial like you to call. Tell me when you’re that would need regular landing spots. law clerk to the Honorable Tu M. Pham, United ready to copy…” Gulp. I am about to And it is effectively a user-fee, generally States Magistrate Judge. Robbins is a cum laude become a client of my own law firm as the fairest type of tax a government can graduate of the University of Miami School of Law, where he was a member of the University they seek to suspend my certificate. impose. Those who use the resource of Miami Business Law Review. Robbins cur- Luckily, that’s not what happened. should pay for the resource. rently serves on both the admiralty and aviation He bought my explanation. Clearance Predictably, the airlines oppose the law committees of The Florida Bar. Robbins is a writer, an instrument rated airplane pilot, and a had said one thing. He said another. idea. Already cash-strapped, the user public speaker. He recently prepared a lecture That’s my story and I’m sticking to fee will cost millions. And they say this series for Chinese university students on sub- it, your honor. This is the busiest is a poor time to raise the costs of op- jects including law, American democracy, and entrepreneurship. Robbins’ articles have been airspace I’ve ever flown in. Between erating, with fuel at record highs. Are published widely in the U.S. and international the congestion, the flood of inter- you deliberately trying to bankrupt us, press. His work has appeared in the New York national arrivals, security concerns, they want to know? Times, Miami Herald, Hong Kong Apple Daily, and lingering memories of 9/11, I can No surprise, the Air Transport As- Tampa Tribune, and other periodicals. He can be contacted at Robbins Equitas 2639 Dr. MLK understand why this guy has no sense sociation has now sued. They say that Street North, St. Petersburg FL. 886/862-6878 of humor. regardless of the merits of the idea, the or e-mail at www.aviation-law.org. 

 Airport Closures at Privately Owned/Public- Use Airports1*

Background: Public assets, such as an airport, can What Can You Do? The Aircraft Owners and Pilots As- often garner support from the local Pilots at a number of privately owned, sociation (AOPA) is often contacted for non-flying community surrounding the public-use airports have been success- advice on how to help save privately airport. Privately owned airports are es- ful in stopping the sale of their airport, owned, public-use airports from being sentially “private property” and subject curbing encroachment, and generally closed or sold. Requests most often to the personal desires of the private working with private airport owners to relate to closure (proposed or actual) property owner. Permission to sell is ensure their interests are represented. of the airport resulting from the owner’s not required from any public body. What follows are a few broad strategies desire to sell the airport property to Second, while not all publicly owned you can follow to help ensure the vitality a private developer. In some cases, airports have accepted federal funds of your privately owned airport. the owner, who was passionate about for airport development through the • Form a pilot association. This is general aviation, has passed away, and Federal Aviation Administration (FAA), a critical first step. It generates a his/her heirs do not share that passion. a significant number have accepted unified voice from the users, allows When a privately owned airport is threat- federal funds, and thus are obligated them to formulate plans, and makes ened with closure, it’s all about money! through federal grant assurances. Of sure the tenants are heard. The property is much more valuable the 3,388 public-use airports eligible for • Attend meetings. More often than with uses other than an airport. When federal airport development assistance, not, pilots learn about situations af- a privately owned airport is threatened only 111 of these airports are privately fecting their airport when it’s too late. with closure, there are usually a number owned, public-use airports. As noted If you hear about a deal to sell the of factors involved. These factors may earlier, along with the federal funding airport a week before it’s expected to include a change in family ownership comes a contractual obligation (grant close, it’s too late. Regularly attend- status, value of the asset (land values), assurances) by the airport sponsor to ing city council meetings, planning property taxes, or land-use pressures the FAA. These federal assurances (ob- and zoning meetings, and other from the surrounding community. The ligations) are one of the most important local functions that could impact airport property is someone’s private and vital tools available to AOPA in our or involve the airport is essential to property, and as such, they can pretty successful efforts to protect member making sure the users are on top of much do what they wish with their own interests at publicly owned airports. the situation. personal property. • When offered for sale, look at a The key thing to remember with any Without these grant obligations, public or private buy-out of the airport issue, no matter how the own- assisting members with issues that airport. Many privately owned air- ership is structured, is that “all politics affect privately owned airports can ports close simply because the cur- are local.” Local pilots, tenants, and be much more difficult or even im- rent airport owner is looking to get airport businesses must take an active possible to mitigate or solve. out of the airport business. There are role in fighting to protect their interests. Without federal or even state laws to a number of reasons why a private This is especially true and even more protect the airport, AOPA’s ability to in- airport may come up for sale, but the important when it comes to issues that fluence the local issue is very limited. In reason isn’t the important element. arise at privately owned airports. almost every case when AOPA helped What is important is to determine Of those airports lost to closure resolve a local airport issue, it was on how to keep the airport as an airport. over the past 10 years, nearly all an airport that received federal fund- For example, when Brandywine have been privately owned airports. ing. Because of these federal grants, (Pennsylvania) Airport (N99) came There are several reasons why any national organizations like AOPA are up for sale, local pilots successfully effort to save a privately owned airport better able to hold the elected officials’ saved the airport by selling shares from closure or operational restrictions “feet to the fire” and work with the FAA to in a company raising the necessary is much more difficult than dealing with be sure grant obligations are enforced. funding to buy the airport. This type issues at a publicly owned airport. Even with these grant assurances, local of transaction would be based solely users and other interested parties must on private funding. Wings Field What Makes Privately Owned Air- attend meetings, formulate a plan, and Airport (LOM) near Philadelphia, ports Unique and Different? educate the community and its leaders Pennsylvania, is another airport First, consider the form of gover- as to the benefit of the airport. AOPA that was privately owned/public-use nance of the airport. No single individ- has a number of resources available, and sold to a private investor group. ual can close a publicly owned airport. both online and by mail, which provide Another option to explore is to seek There are numerous opportunities for assistance to our members, including a public sponsor. Another example “public input,” election of pro-airport videos and printed guides. of this strategy is in Schaumburg, officials, and positive media attention. Illinois, where the township saw the

 Airport Closures privately owned, public-use airport, is interested in supporting such a to get “up close and personal” with now Schaumburg Regional (06C), venture. aviation. Conduct job fairs, and as a tremendous asset to the local • Determine the economic impact work diligently to get the community community. The township purchased of the airport to the surround- involved in the airport. the airport from its private owner and ing community. Money talks, and • Airports are “green space.” Com- has since made use of significant obtaining support from the local munities have grown up around federal and state grants to improve community may well depend on your the airport. In most cases, when and develop the airport. The same ability to “sell the value” of the airport the airport was first opened, vast was true when the City of Boling- to folks who do not fly. Conduct an expanses of undeveloped land sur- brook, Illinois, purchased Clow economic impact study of the airport rounded the airport. There were no International Airport (1C5) (don’t be and publish the results. Enlist the homes, no shopping centers, and fooled by the “International” in the assistance of the local Chamber of few towns for miles. As the surround- name—this is a small GA airport) Commerce or Economic Redevelop- ing areas developed, the community from its private owner. Making sure ment agency. grew up with the airport. In today’s the community and elected officials • Public relations. Explain what goes environmentally sensitive world, understand the value of the airport on at your airport. Conduct open many would prefer an airport as is the best way to ensure the public houses; invite local school students open space as opposed to a high- density residential development or smoke-belching industrial complex, or additional demands on highway/ street infrastructure. Sell the airport Building a as green space. Find like-minded individuals in the community to sup- port the airport. Better Practice: • Accept an FAA or state grant. Al- though typically not eligible for FAA grants, privately owned airports can now apply for special funds under a Florida Bar new FAA pilot program—Purchase of Development Rights (PDR). Un- der the program, the FAA provides money to the private airport owner in exchange for the development CLE rights. What this means is that the private owner receives a lump Quality Speakers sum of cash in exchange for the promise, contractually, that all the airport property will continue to be Register Online an airport. The owner cannot sell off parcels of airport property, property Convenient Locations that could become residential units or a shopping center. It’s a great CLE Certification Credit idea that may just save your airport, but the airport’s private owner must Audio CDs/DVDs be willing to participate in this in- novative FAA program. The PDR program requires that a local or state Live Webcasts government agency actually “spon- sor” the airport for participation in Online 24/7 at FloridaBar.org/CLE the program. The airport continues to be privately owned, but the public “Legalspan” link agency acts as the watchdog to en- sure the private airport owner follows Visit www.FloridaBar.org/cle PDR guidelines. then “Search Calendar” to view scheduled courses. • Look to your state aviation office for assistance. Even if the FAA isn’t willing or is unable to help, your state

 Airport Closures aviation office may have a way to local aviation officials. The message on your commitment to working hard provide assistance. Many states do must be clear and consistent. This is and long to save the airport. have airport development funding why forming a pilot association is so Though AOPA can offer advice and grant programs for privately owned critical. Make sure the group comes to information, we are not equipped with airports, and certain obligations that a consensus as to what it seeks, and go the same level of advocacy tool that ensure the future of the airport go forward with a unified voice. It is surpris- we have when a public-use airport is along with those funds. The state ing how many issues can be solved with publicly owned. But with some organi- aviation office may also be willing some basic communication between zation and a clear set of goals, saving to work with local authorities to con- the airport owner and the users. Also, the airport is often within your reach. vince local officials to enforce zon- make sure to back up any claims or With privately owned airport issues, ing laws and other airport-favorable arguments with as much factual and AOPA is here to support your efforts measures. Most issues surrounding verifiable data as possible. AOPA can and provide reference and resource privately owned, public-use airports help with this. Your state aviation office information. However, it is local ten- are a function of local and state laws. is also a good source. ants, airport users, businesses, and An attorney licensed to practice law With the privilege of private airport other interested parties that must be in your state will be valuable to you ownership comes the responsibility to the first line of defense. when the issue at the airport involves ensure its future. Remember, private either zoning requirements or leas- airports are someone’s private per- (Endnotes) ing matters. sonal property, and just as you are 1 This is included as an example of efforts of the able to do what you please with your AOPA and their concerns pertaining to the issues so eloquently raised and discussed by Harry Lee All Politics Are Local! own private property, whether we like it Coe IV in his article printed herein. Regardless of how you decide to or not, so too can the owner of a private * This is reprinted with the permission of the proceed, there are a few things to keep airport. AOPA. Should you wish to learn more regarding their efforts pertaining to these issues they can in mind when dealing with your local These issues are challenging to say be contacted at 1-800-872-2672.  government, the citizens, and state and the least. The final outcome depends

AOPA can AOPA cannot

Facilitate your contact with state and federal officials. Buy the airport.

Ask the property owner to reconsider. Prevent the sale or closure.

Assist in informing other pilots in the area of the situation Fund the purchase of the airport. and seek their assistance on your behalf.

Assist in organizing a local airport support group. Provide legal resources or legal counsel.

Facilitate contact with local media outlets. Participate in or testify at a lawsuit.

Provide statistical information in support of keeping the Negotiate a sale price. airport open.

Provide lists of aviation-related consultants who may be of Identify or find a buyer for the airport. assistance to your effort.

Encourage purchase by a local government sponsor you Force local government to buy the airport. identify as willing to acquire the airport.

Provide recommendations to AOPA Legal Panel attorneys Force the current owner to sell the airport to a who may be helpful to your efforts. willing, local government sponsor

 Military Aviation Accidents

Continued from Page 1 Crash. The NTSB generally has ju- or Manual of the JAG report. You would risdiction over civil air crashes. Only be surprised that the information that because they are receiving a money under exceptional circumstances can you can glean from each of the releas- settlement due to their loved ones’ the NTSB be requested to investigate able portions of these reports in terms death, and Bigvoice forgot to negoti- a military air crash. The reason for of identifying witnesses, determining ate a waiver with the Army to ensure this is that the various services (Army, whether there were other prior crashes that his clients benefits would not be Air Force, Navy/Marine Corps) have that are similar in nature, information on terminated. separate Military Safety Mishap Boards subsystem failures and other important 3. Attorney Dan Defense is represent- which have jurisdiction over military data. ing an aircraft component manu- air crashes. These respective Safety Another useful tool in investigating facturer in a military air crash case. Mishap Boards generally prepare a a military aircraft case is to obtain the Attorney Dan retains a former Air confidential accident report which may cockpit voice recorded or flight data re- Force instructor pilot with 30 years contain substantial manufacturer input corder information. Both the CVR and experience as an expert witness in which is not releasable to the public. the FDR information can be extremely the case. Pilot expert is planning to The “safety” report is generally pre- useful in determining what happened testify about Air Force pilot training pared by the Safety Center for either just prior to the aircraft crash and deter- policy decisions and upper level the Army, Navy or Air Force. These re- mining what crew communication and command decisions about procure- ports contain much factual information, coordination were taking place prior to ment of certain military aircraft. but when requesting a report, as part the crash. However, Attorney Dan does not ob- of your case investigation, you will note Other documentary tangible evi- tain permission from the Department that the reports do not disclose findings dence is sometimes difficult to obtain in of the Air Force to utilize the former and recommendations of the respective military air crash cases, however, use military pilot as an expert. Expert Military Mishap Board. The reason of the Freedom of Information Act and disclosure deadlines are closed and for this is that the goal of preparing various service regulations (i.e., Army Plaintiff’s counsel requests that the the military safety mishap report is to Regulation 27-40-Litigation) can assist United States intervene to prevent glean as much information as possible you in setting up things such as an air- Dan Defense’s expert from testifying to determine the cause of a particular craft inspection, wreckage inspection, in deposition or at trial. The United accident and also to encourage candor tutorial on aircraft operational capabili- States intervenes and files a motion in the investigation with an eye towards ties and interviewing witnesses. for protective order concerning the preventing future crashes of the same Documents should be obtained former military pilot expert and the nature. through official channels (i.e., Service court grants the motion. Attorney Unlike the Safety Mishap Board re- Aviation Safety Centers at Ft. Rucker Dan Defense finds himself without port, the various services also prepare (Army), Norfork (Navy/Marine Corp), an expert and the expert discovery what is often called a “Collateral” or Colorado Springs (Air Force)). A deadline is 2 weeks away... Board report or a “Manual of the sample Freedom of Information Act If these stories sound funny to JAG” report which is releasable and request letter is attached in the appen- you, it is likely that you are laughing is often prepared by an officer who dix to these materials. The Freedom because you know some of the major is not a specialist in aircraft accident of Information Act is a very powerful differences between handling military investigation. The purpose of the Col- tool which could enable you to obtain and civilian air crashes. Many lawyers lateral report is generally to determine photographs, other accident reports who are very successful civil aviation whether there is any pecuniary liability and information on virtually any aspect practitioners find themselves negotiat- on the part of those involved in the ac- of military aviation. ing through a minefield of trouble when cident, and to determine fault. Although Something that I frequently like to do taking on a military air crash case. This the Collateral report is releasable to in any military air crash is to determine article focuses on the major differences the public, it does not usually contain whether or not the problem that I see you should be aware of when handling any of the manufacturer’s confidential in the crash that I am investigating has a military air crash case, and provides technical analyses, nor does it contain shown up or occurred on prior occa- some helpful hints on how to avoid the confidential witness statements that sions. I routinely do a FOIA request to traps and pitfalls that are peculiar to the may have been included in the Safety determine whether or not other failures military case. Mishap investigation. in other aircraft have occurred and also Whether you are representing a research what the military and the vari- I. The Seven Major Differences Pecu- plaintiff or defendant in any military ous government contractors have done liar to Handling a Military (As Opposed aircraft case, it is vitally important that to eliminate or address the problem. to Civilian) Air Crash Case you obtain those releasable portions 2. Interviewing or Deposing Mili- 1. The NTSB Will Likely Not Be of the Military Safety Mishap Board tary Witnesses Requires That You Involved in Investigating a Military report and a full copy of the Collateral Follow Special Procedures. The case

 Military Aviation Accidents of United States, ex rel, vs. Touhy v. has an interest for a party other than the training of the crew and the support Ragen, 240 U. S. 462 (1951) governs United States. Former DA personnel of civilian contractors to maintain the whether military witnesses and govern- will not provide, with or without compen- aircraft. Witnesses from the com- ment personnel may be interviewed sation, opinion or expert testimony con- manding General all the way down to and sets forth the parameters for any cerning official information, subjects, or enlisted maintenance personnel were interviews, depositions or other state- activities, either in private litigation or in taken and much very useful information ments. In any case involving a military litigation in which the United States has was obtained. Further, we were able air crash, you must remember that an interest for a party other than the to obtain, with the military’s assistance, special permission must be obtained United States. However, there is an documentation concerning other similar from the respective service agency exception to the general prohibition set accidents involving the subject aircraft before statements, witness interviews forth above if the requester can show which crashed. or depositions or military witnesses or “exceptional need or unique circum- If you want to get the most bang for government personnel can be taken. stances” and the anticipated testimony your buck in investigating a military air A sample Touhy v. Ragen request is will not be adverse to the interest of crash case, do not overlook the as- attached at the appendix to these ma- the United States. It is very important sistance that the military can provide terials. that practitioners handling military air you. Generally, in addition to the Touhy case, crash cases be aware of the respective 4. You Must Be Familiar With Both each service has its respective regula- service regulations governing former or the Federal Tort Claims Act and the tion concerning testimony of present or present military personnel in testifying Military Claims Act. In any military former military personnel. The practi- as witnesses. air crash case, you will encounter one tioner should note that even retired and 3. To Help Your Case, You Must of three types of plaintiffs. The first Guard and Reserve military personnel Learn to Work With - Not Against - type of plaintiff is the private citizen fall under the ambit of Touhy. the Military When Conducting Your or foreign nationals who are injured An extract of Army Regulation 27-40 Investigation. No matter what side of on the ground, in collisions between (Litigation) is attached at the appendix the “v.” you work on, many attorneys military and civilian aircraft, or on some to these materials. That particular automatically assume that, if they occasion, while aboard military aircraft. Regulation sets forth the Army rules handle a military air crash case, the The second class of potential plaintiffs for release of information and appear- respective service involved in the case is employees of the United States gov- ance of witnesses as well as release of (i.e., Army, Navy/Marine Corps, Air ernment, which include civil service and records in connection with litigation. Force) will be adverse to the attorney’s politically appointed government em- As an example, on page 16 of Army investigation. Nothing could be further ployees, as well as special employees Regulation 27-40, paragraph 7-8 sets from the truth. I have found the military loaned to the government by contrac- forth when Department of the Army to be extremely helpful in assisting with tors, state or foreign governments. The personnel may serve as witnesses requests for aircraft inspections, wit- last type of potential plaintiff that you in private litigation. The policy of the ness interviews, wreckage inspections Regulation is that ”...the involvement and providing responses for requests of present or former Department of for documents concerning virtually any Army personnel in private litigation is matter surrounding your investigation. solely a personal matter between the As an example, in a recent case witness and the requesting party, un- involving the crash of an Army military less one or more conditions set forth transport plane which killed 21 reserv- in the Regulation apply”. One of those ists, we coordinated with the United conditions is when a former or present States Army to conduct a complete ? Army member is asked to testify as wreckage examination at Camp Bland- an expert in a case. Another problem ing which involved the Army assisting arises when former Department of the us in laying out the wreckage and iden- If you’ve got questions, Army personnel are asked to give an tifying and segregating certain parts of we’ve got answers. interview or opinions concerning official the wreckage that we wished to have Army information. tested at a later date. In addition to the Paragraph 7-10 of Army Regulations wreckage inspection, we were able to 27-40 governs expert witnesses and as coordinate with the Army to take ap- The Law Office Management a general rule, states that “present DA proximately a dozen depositions of Assistance Service of The Florida Bar personnel will not provide, with or with- military personnel over a several day out compensation, opinion or expert period to gain an understanding about CALL Toll-Free 866/730-2020 testimony, either in private litigation or the operational capability of the subject [email protected] in litigation in which the United States airplane that crashed, along with the

10 Military Aviation Accidents may encounter in a military air crash military crashes in foreign countries, if is alive and well and unfortunately, case, are military service personnel, the Foreign Acts Exception is effective despite the fact that veteran’s benefits including active duty, Reservists and to immunize the government, civilian have not kept pace with inflation, the National Guard. claimants have the option seeking an Doctrine continues to stand as an The Federal Tort Clams Act, 28 U.S. administrative remedy from a respon- impediment to suit for the families of Code §1336 (b), §2671-80, et.seq., is sible agency under the Military Claims military personnel who are injured or a limited waiver of sovereign immunity Act. Under the Military Claims Act, killed incident to service. where the United States agrees to allow an administrative claim must be filed 6. You Must Be Thoroughly Fa- itself to be sued as it were a private citi- with the appropriate military branch miliar with the Government Con- zen for the negligent acts or omissions within two years of the accident. The tractor Defense and its Progeny. In of its employees. Many aviation law- military service involved may pay such 1988, the Supreme Court set forth the yers do not have a clear understanding claims if it finds that its personnel were government contractor defense in an of the Federal Tort Claims Act or the careless or negligent. In some cases, opinion entitled Boyle vs. United Tech- Military Claims Act. they may pay without negligence, but nologies, 47 U.S. 588 (1988). Those The Federal Tort Claims Act requires this only occurs if the Judge Advocate who practice military crash litigation that an administrative claim be filed General determines that the “non-com- are well familiar with the Boyle decision prior to suit and that a victim file the bat activity” during which the civilian and the many cases that have followed administrative claim with the respective was injured is uniquely “military” in Boyle since 1988. Two recent cases government agency within two years nature, and not one that has a parallel (Miller vs. Honeywell International, of the injury. The agency then, must in the civilian aviation community. Inc.; Malsch vs. Vertex Aerospace adjudicate the claim within six months 5. You Must Be Thoroughly Fa- LLC) are contained in the appendix to or is deemed denied. Lawsuits against miliar with the Feres Doctrine. The your materials. In Boyle, the Supreme the government under the Federal Tort case of Feres vs. United States, 340 Court held that manufacturers are not Claims Act must be brought in federal U.S. 135 (1950), held that the govern- liable for design defects in military court and are tried before a Judge only. ment is immune from suit for injuries to equipment when: If a private co-defendant is involved, a service personnel that occur because (1) The United States government jury is used, but, it is advisory as to the of activities which are “incident to approved reasonably precise government. service”. This Feres Doctrine is a ju- specifications for the design of When a victim sues a private defen- dicially created exception to the federal the equipment; dant, and that defendant impleads the government’s waiver of sovereign im- (2) The equipment conformed to government, the six month administra- munity under the Federal Tort Claims those specifications; and tive claim requirement does not apply Act and has been in place for the last (3) The supplier warned the gov- to the private defendant’s third party 55 years. ernment about the dangers in action. State substantive law applies The original justification for denying the use of the equipment which in Federal Tort Claims Act lawsuits, the right to sue for a serviceperson’s were known to the supplier, but specifically, the law of the State where injury or death when it occurred in- not to the government. the negligent act or omission of the gov- cident to service, had to do with the Boyle has come a long way since ernment employee is alleged to have unique nature of the federal military 1988. The defense has been expand- occurred. Once a Federal Tort Claims service involved and the risks atten- ed and has been much more difficult to lawsuit is filed, attorney’s fees are lim- dant thereto. In 1950, the Supreme overcome when the defense is raised ited by statute to 25% and prejudgment Court felt that military discipline would by a defendant in a motion for summa- interest and punitive damages cannot be disrupted if a serviceperson’s family ry judgment. Courts are increasingly be collected. could sue his or her superiors. The applying the GCD to defeat claims and The military air crash practitioner Supreme Court also felt that this im- a few words need to me said about two should also be aware of the many ex- munity was proper because certain recent cases (Miller and Malsch) that ceptions to the government’s exposure veteran’s benefit compensation exist are attached in your appendix. under the Federal Tort Claims Act. In for service personnel are somewhat In Miller v. Honeywell International, cases of military aircraft accidents that on par with worker’s compensation Inc., 107 Fed. App. 643 (7th Cir. 2004), occur abroad, another immunity known benefits which might be provided to the court considered whether the mili- as the Foreign Acts Exception comes civilian employees. Under the Feres tary contractor defense applied where into play for accidents occurring outside Doctrine, military personnel and their an advanced oil debris detection sys- the United States. The Combat Activi- spouses and children (including active tem (ODDS) in a helicopter engine ties Exception also may apply to cer- duty Reservists and National Guard) failed to detect and warn the pilots of tain crashes, but this exception deals who are killed or injured in accidents abnormal engine wear and potential exclusively with crashes that occur while incident to service, cannot sue engine problems. The three injured during a state of war. In cases involving the government. The Feres Doctrine Guardsmen claimed that Tedeco, the

11 Military Aviation Accidents designer of the ODDS, designed and in the development of and controlled Employer’s Compensation Act. FECA sold a defective product to the Army. the design of the helicopter. Id. at 586. benefits provide a dependable remedy Id. at 646. Tedeco claimed the govern- Based on the Government’s involve- without the necessity of proving any ment contractor defense, urging that: ment in every step of the design and negligence. However, by comparison (1) the military approved reasonably manufacture of the helicopter, the the amounts normally recovered by precise specifications for the equip- court found that Bell had asserted settlement or judgment in civil litiga- ment; (2) the equipment conformed a “colorable federal defense,” and tion, FECA benefits are often unable to those specifications; and (3) the that there was the necessary “causal to compensate victims or their families contractor warned the military about nexus” between the plaintiffs’ claims for injuries. any dangers not known to the United and acts Bell performed “under color A federal employee’s entitlement to States. Id. of federal office.”Id . At 587. The court FECA benefits creates an immunity for The court found that evidence that thus found the government contractor the United States government against the Army worked closely with Tedeco defense a proper federal defense in suit by its employees, 5 U.S. Code in a back and forth process relating this case. §8116(c). to the design of the system satis- In both of these cases, the courts Attorneys handling the claims of fied the first element of the defense, addressed whether the government plaintiffs stemming from a military air that the military approve reasonably contractor defense applied to manu- crash should carefully check with the precise specifications. Id. The court facturers of components of military active duty Reserve or Guard compo- further found that Tedeco warned the aircraft that crashed due to failures of nent that has command control over Army to change the detectors in the the components that the manufactur- the decedent or injured military plaintiff engine in order to detect and warn of ers produced. The courts identified to determine whether or not any survi- engine problems sooner, but that the the government contractor defense vor or other long term military benefits Army chose to continue using the old as consisting of the same elements will be affected by payment of a settle- detectors. Id. At 647. The court also established in Boyle v. United Tech- ment or obtaining a verdict from a third found no evidence that Tedeco had nologies, (1) the military approved party non-governmental entity. any knowledge that would require it to reasonably precise specifications for Always be careful to insure that provide further warnings to the Army, the equipment; (2) the equipment any recovery that you make for your thus satisfying the third element of conformed to those specifications; and client in a military aircraft case, does the defense requiring a warning to the (3) the contractor warned the military not reduce or extinguish their military military of any dangers unknown to the about any dangers not known to the benefits. The proper way to insure that military. Id. The court did not address United States. In both cases the courts your client does not lose benefits is to the second element of the defense found the government contractor de- coordinate with the appropriate agency because it was not contested. fense to be applicable where a failed well in advance of any settlement or In Malsch v. Vertex Aerospace, LLC, component causes a military aircraft verdict to obtain a letter of waiver or 361 F. Supp. 2d 583, 584-85 (S.D. to crash. letter of agreement concerning your Miss. 2005), the court considered 7. You Must Understand Survivor client’s continued receipt of benefits. whether the government contractor Benefits and the Federal Employees II. Ten Helpful Hints on How to Maxi- defense applied where a United States Compensation Act (FECA). Many mize your Success in Handling a Mili- Marine Corps helicopter crashed due lawyers handling plaintiffs’ claims in tary Air Crash Case. to helicopter’s vertical de- military air crash cases forget that 1. Identify witnesses, the location of parting from the causing a their client’s military benefits may be tangible physical evidence, and the complete loss of controllability. Bell, reduced or eliminated upon plaintiff/ location of documents that you will the defendant, raised the government claimant making a recovery from a need for your case, and coordinate contractor defense in order to estab- third party. Some Defense lawyers in with the respective military agency lish a federal defense to the claims military air crash cases do not under- as soon as possible after being against him so that the action could stand the effects of paying a settle- retained on the case. (GET BUSY be removed to district court. Id. at 585. ment, or how a verdict may affect a EARLY!) The elements of the defense as raised plaintiff’s future survivor benefits. 2. Identify military witnesses that you by Bell are identical to those stated Those who work for the government want to depose or interview and above. have limited options if they are killed make your Touhy requests early. The court, based on an affidavit by or seriously injured in a military aircraft (ESTABLISH CONTACT!) Bell’s Director of Helicopter Contracts, accident. The government entitles 3. There is no substitute for a wreck- found that the defense did apply. Id. it employees who are injured in the age inspection - coordinate that at 587. The court based its findings course and scope of their employment inspection through the appropriate largely on the fact that the Government to a form of federal worker’s com- service agency and take your ex- was “directly and intimately” involved pensation benefits under the Federal perts and consultants to the wreck-

12 Military Aviation Accidents

age inspection with you! (MASTER 7. Do not stay married to an unprov- (SO, CUT OUT THE MIDDLE MEN THE FACTS!) able theory - demonstrate systems AND RUN WITH IT!). 4. Request, under the Freedom of operations and failures at a coordi- Information Act (FOIA), copies of nated inspection of a demo aircraft (Endnote) all photographs and other non-clas- at the Unit’s home base. Insure that 1 Donald M. Maciejewski is a partner in sified information concerning any co-counsel who are not technically the law firm of Zisser, Robison, Brown, investigation into the subject crash proficient are present for the inspec- Nowlis & Maciejewski, P.A. in Jack- by any military agency. Sometimes, tion. (TEACH AND LEARN!) sonville, Florida. His plaintiffs’ practice the Collateral Board Report and the 8. Don’t reinvent the wheel - the mili- focuses primarily on aviation, airplane Safety Mishap Report will not contain tary can provide you with operations and helicopter crash litigation, personal certain documents or photographs manuals, maintenance manuals injury and complex product liability suits. that were taken at the Unit level by and other documents that will help He holds a commercial instrument rat- the Unit Safety Officer responsible educate you about the aircraft and ing in helicopters with extensive flight for oversight of the aircraft that was system(s) that you are interested experience in UH1, OH58 and Hughes involved in the crash. (LEAVE NO in evaluating. Always read the Col- 300 aircraft. Mr. Maciejewski received STONE UNTURNED!) lateral Report from cover to cover his Bachelors degree from John Carroll 5. Make a request under FOIA for any and question any inconsistencies in University (biology & chemistry) and his other similar accidents involving the report. (DON’T BE AFRAID TO Masters degree from The University of the type aircraft involved in your ASK!) Southern California (safety engineering). case. You would be surprised at the 9. Insure that your opponent is follow- He earned his Juris Doctor degree at the wealth of information you can learn ing the rules when offering military University of Baltimore School of Law. about your case from other similar witnesses for statements, deposi- He is a member of the American Bar As- incidents. (YOU DON’T HAVE TO tions or testimony at trial. (NOTH- sociation, State Bar of Maryland, Florida, REINVENT THE WHEEL!) ING PERSONAL, THEMZ THE Georgia and the District of Columbia. He 6. Do not litigate by committee - make RULES!) is admitted to practice before the United sure that other lawyers working 10. Try to determine a single point States Court of Appeals for the Eleventh with you understand the technical of contact at each military agency for Circuit and the United States Court of aspects of the case. If they do not, each case that you work involving a Military Appeals. He may be reached set them aside, tell them not to touch military aircraft crash. It is easier to at One Independence Drive, Suite 3306 anything, and move forward with get things done with a single point of Jacksonville, Florida 32202 (904) 353- your case! (ENSURE COMMONAL- contact than to work with the military 3222 Fax: (904) 353-8808 or by e-mail ITY OF PURPOSE!) agency on a “committee” type basis. at [email protected]

Get in on the “action!

Be a contributor to this newsletter. For more information, or to submit comments and articles, contact Steve Dedmon at: [email protected]

13 Airport Closures in the U.S.-Tony Jannus would not approve! by Harry Lee Coe IV1 It is the morning of New Year’s Day, world would travel. However, it was only for a day and see the advances in the 1914. A sleepy America stands at the given carnival style fan-fare and curious modern aviation of today. What would brink of the modern industrial age, attention by the local press and those Wilbur or Orville Wright think if they stood brought about in part by slow coming spectators in attendance. Ironically, under the fuselage of a 747-400 or an A- and hard fought technological gains Tony would die two short years later in 380? Would Eddie Rickenbacker prefer achieved during the past half-century, but a plane crash into the Black Sea while the P-51, F-86, or the F-16, the greatest would ultimately be accelerated by the training Russian pilots to fly a twin-engine U.S. dog-fighters of their day? Would Igor war time production of two World Wars Curtiss bomber designed for use by the Sikorsky really believe the slick, plush which would ensnare America within Czar’s forces in the First World War. His S-76 gold-standard corporate helicopter the next three decades. Debuting in the body would never be recovered. More still bears his name? Or what would Tony first War, and starring in the next is the importantly, he never saw to fruition, or Jannus think about the attempted closure airplane, which flew for the first time only understood the importance of his historic of the two airports nearest to his historic eleven short years earlier. On that brisk feat on that New Year’s Day and its con- feat, for commercial development pur- January morning near the boat launch tribution to modern commercial aviation. poses? The latter question is the focus ramp in the ‘Vinoy Basin’ in St. Peters- As a boy, I grew up next to (and usually at) of this article. burg, FL, stood one of aviation’s most Peter O’Knight (KTPF) airport on Davis General aviation (defined as all aviation unheralded early pioneers, who with one Islands in Tampa, FL, which is located excluding air carrier and military aircraft) felled swoop, would usher in commercial within a mile of Tony’s initial commercial airports in the United States abound, passenger flight. n u m b e r i n g Tony Jannus (Anto- o v e r 5 , 0 0 0 ny Habersack Jan- l a n d - b a s e d nus), 25, who along airports, and with the world’s first in excess of bona-fide, fare-pay- 19,200 “land- ing passenger, for- ing facilities,” mer St. Petersburg defined by the Mayor Abram C. FAA to include: (“Abe”) Pheil would heliports, pri- board the rickety, vate strips, ag- once-crashed Be- ricultural and noist (ben-wah) c o m m e r c i a l ‘Model B,’ #43 strips, dirt or wooden seaplane, turf strips, and dubbed The Lark Plane on the runway at the Peter O. Knight Airport on Davis Island taken on December 7, 1941. seaplane bas- of Duluth, on the Photo credit: Courtesy of the Special Collections Department, University of South Florida. es. These air- maiden run of the Digitization provided by the USF Libraries Digitization Center. ports provide St. Petersburg-Tampa Airboat Line. Pheil landing site. This airport was built by the both general and commercial aviation had won the right to be the passenger by Works Progress Administration (WPA) with ample destinations and bases, and winning an auction with a bid of $400.00. in the 1930s, and was Tampa’s main are sprinkled, quite literally from corner- Scheduled for a prompt 10:00 a.m. de- airport, prior to the construction of Tampa to-corner of the lower 48 states, Alaska, parture and a 11:00 a.m. return, the flight International Airport (KTPA) in the 1960s, and Hawaii. However as land values would crisscross Hillsborough Bay and while Peter O’Knight was originally known climb and population densities increase, Tampa Bay, which extend between the as Drew Field. Nearer to the departure natural developmental pressures and peninsulas of St. Petersburg and Tampa. point across the bay in St. Petersburg, public hostility can magnify exponentially With shocking precision the first twenty FL is the historic Albert Whitted Field as local communities, many populates one mile leg was reported executed in (KSPG). It too has a long history, being of which fail to perceive the importance, a mere twenty three minutes, while the built on its present site in 1917 and named economic impact, and overall significance return flight took twenty, both flying at an after a famed early naval aviator. Like of having a local airport, look to purchase altitude of fifteen feet above the water. Jannus, Whitted too would die (in 1923) and develop the large swaths of prime By comparison, the over-land drive time in a seaplane accident crashing into the real-estate which airports tend to occupy. would typically take a full half-day. waters off Pensacola, FL. I often like to Here is an ingrained, but familiar mind- The flight was a stunning success and ponder what the early aviation pioneers set or refrain, “That airport takes up so would forever change the way the modern would think if they could be resurrected much land, but is used by so few….”. Of

14 Airport Closures course this notion is misguided and naïve. Each of these categories of “good smattering of heli-ports, bypassing the However, it is what we are up against in things” could be explored in a separate hopelessly clogged ground transporta- many locales around the country as the article; however, since each community tion systems serving our nation’s largest trends in recent years have been that and airport is different from the next, so city. In Independence (KIDP) and Wichita more U.S. general aviation airports are too are its individual uses and the benefits (KICT), Kansas, hundreds of test flights closed and shuttered, than are built and derived from it. When making such argu- of newly built aircraft originate daily from opened each year. And bear in mind that ments, try to appeal to the community at General Aviation manufacturers including only around 650 airports are actually cer- large, with examples that can easily be Cessna (Textron, Inc.) and Beechcraft tified for scheduled passenger departures seen and understood. For example, at (Hawker Beechcraft Corporation). These and arrivals in the U.S., with the 40-45 my home base, Peter O’Knight airport we manufactures tend to spawn a web of major “Hubs” transporting over 60% of have several news helicopters from local related industries, including engine, tire, all passenger traffic. The remainder of stations for NBC and Fox based here. and avionics suppliers. This is all pos- all air travel outside of these limited sites Additionally, police helicopters from the sible because of the strength and health must necessarily involve general aviation Tampa Police Department and the Florida of general aviation. Obviously, if there are airports. Marine Patrol. The local Medi-Vac, Bay- less airports to fly to and from, then there One purpose of this article is to raise Flite helicopters from Tampa General will be less aviation activity. Simply be awareness of the forces and factors, Hospital use KTPF for re-fueling as the mindful of, and creative when explaining which give rise to an attempted closure. hospital is only a mile away, but has no the benefits from your local GA airport. These forces include a developer’s “land- fuel facilities. Angel Flights also come It is also very important to realize grab,” for alleged “better overall use” or to and from KTPF on occasion, as does when your airport is in the cross hairs the “greater good,” whilst other times in limited corporate traffic. and thus, under siege. Much like a shark the specious name of “national security” There are other associated values will swim up to and first “bump” their as was the case of “Meigs Field” (KCGX) most community members, though not victim prior to initiating an actual attack, in Chicago, which was bulldozed under pilots, can easily understand and rec- to size it up and to see how ferocious it cover of darkness on March 31, 2003 ognize. In the communities surround- will respond when/if attacked, those with on the orders of Mayor Richard Daley ing Detroit, Michigan, many automotive evil designs for your airport land might in a post-9/11 climate of fear. This was industry parts are flown around the figuratively do the same. For example, done despite the fact that Meigs’ single region day and night, to the extent the at two local airports in the Tampa Bay runway was only 3,900 feet long, and auto industry would shut down if the area, developers during the last decade no such national security incident had flow of parts ceased from the general of expansive over-development fueled by ever originated there. To confront the aviation deliveries by and between the cheap and easy construction loans, had shrinking airport rolls, and to oppose and part manufactures and the auto builders. designs for acquiring the land Tampa and ultimately prevent further declines and In New York City, the preferred method St. Petersburg, owned, and upon which closures, those utilizing, relying upon, or of executive travel is by helicopter to a the local airports of Peter O’Knight and earning their living based upon airports and aviation must be prepared to meet head-on those attempting to close their local airport. More specifically, pilots must be prepared to inculcate and edu- cate the uninformed public as to the value and usefulness of general aviation and the airports which serve it, thus lessen- ing the impetus to do away with or close airports. Here are some broad categories to which general aviation airports contrib- ute: Overall Economic Activity Centered on the Airport, Convenience of Point- to-Point Air Travel, Decreases in Road- Borne Congestion, Relieving “Major Hub” Airports from excess General Aviation traffic, Law Enforcement & and News Gathering flights, Agricultural Operations, Open and Green Spaces surrounding airports, Medi-Vac capability, Flight Train- ing, Cargo & Package Delivery to remote locales, and Historical Significance.

15 Airport Closures

Albert Whitted Field are located. Of to the east. Since this airport sits on not hundreds of thousands or even mil- course their motive was naked, pure, an island already inhabited by a couple lions) of dollars of grant-in aid by the FAA and simple: Profit. However, they did of thousand residents and is served over the years. According to the AOPA, not couch their overtures in that way, by only a single bridge, the increased approximately 3,388 U.S. based airports instead choosing a tacit “back door” population density did not make things are currently eligible for FAA grant-in aid approach. In both instances, artist ren- any easier for the would be developers, funds. If these airports avail themselves ditions of “People Friendly” and “Mixed as island residents already tend to feel of these grants it will serve to protect Use” developments were painstakingly overcrowded and don’t want hundreds indefinitely this historic and important rendered, depicting couples with their more freshly minted “residents” being GA airports. As a result of the vote, children and dogs strolling down pedes- imported. This helped turn the tide away Peter O’Knight airport is no longer in the trian friendly streets covered with pavers, from alienation, and actually led to the cross hairs of the airport closures crowd’s amongst the retail level high end shops, best possible scenario-having the City “watch list.” The airport has prospered lined with light poles, lush trees, and of Tampa deed the land upon which the and is currently undergoing extensive plants at every corner. “Linear Parks,” airport sat to the Hillsborough County runway and hangar improvements, which along the waterfront were included and Aviation Authority (HCAA). Combined will serve decades of future aviators. these glowing renditions were circulated with federal government grant mon- Moreover, Peter O’Knight is now man- to media types and local politicians, as ies accepted over the years for airport aged by the more capable HCAA, instead a “better use” for the vast airport prop- erty, which, they said, simply couldn’t sit idle or undeveloped forever. When the developers offered to infuse millions of dollars both in up-front money from the purchase-sale, and waved the wand of possibility for a much larger local property tax base for years to come, they had the ear of the mayors, city council members, and eventually some community leaders (who might be “cut in” and could also profit from exclusive development or leasehold rights), and may otherwise be indifferent to the airports, but perhaps a bit irked by the noise associated with the handful of landings and departures at the airport. Abatement procedures are very important to staying in the good graces of Albert Whitted Field, St. Petersburg, FL. www.stpete.org the local community and should be reli- giously observed by all pilots to mitigate improvements and FAA grants to local of the City’s Parks Department, and one potential noise complaints by those living communities for airport improvements, can imagine efficient operations well into in close proximity to the airport. these communities must, as a condition the future. At KTPF, the process advanced to of the grant sign specifically enforceable Across the bay, near where it all the point where the possibility of the written agreements, commonly known as started (at least fare-paying, passenger “Sale” (euphemism for airport closure) Grant Assurances. These assure the fa- flight) at Albert Whitted Field located of this land from the City of Tampa to cility in question must be persevered and in downtown St. Petersburg, a similar developmental entities was actually utilized for all recognizable general avia- grandiose, but half-baked scheme was real, becoming a full-blown political is- tion uses for a period of at least twenty hatched by a group of unscrupulous de- sue at city hall and with the local media. (20) consecutive years after the receipt velopers a couple years after the debacle The only forces opposing the sale was of the grant funds, or face suit in federal in Tampa, in conjunction with the current the local flying community, the Aircraft court for injunction, specific performance, real estate boom-gone-bust. Again there Owners & Pilots Association (AOPA), recoupment and damages. As such, they were glossy overtures associated with and local residents from Davis Islands ensured the continued long-term viability taking the airport property including, rosy who actually valued the open spaces and of the airport. tax revenue projections, promises of a water views which the airport provided. This ‘arrow in the quiver’ has proven a more beautiful waterfront community, Peter O’Knight sits at the southern tip spectacular vehicle for bucking the ‘well etc., etc., all developer-driven. However, of Davis Islands just south of downtown heck, why not’ crowd as virtually every unlike Tampa, which took the “easy-out” Tampa, and is bordered by Hillsborough airport of any significance has applied for by punting the airport over to the HCAA, Bay to the south and Seddon Channel and been granted tens of thousands (if the City of St. Petersburg, with its elderly

16 Airport Closures population, easily aggrieved by random, situated and at-home amongst the other if not frequent airport noise, put the mat- local landmarks such as the Port, Bay ter to a referendum vote of the populace Walk, the St. Pete Pier, the University of in November, 2003. Fortunately, after South Florida’s St. Petersburg campus, intervention by national GA groups such the Vinoy Hotel, the Salvador Dali Mu- as the AOPA, the FAA, and raucous and seum, and Al Lang field (long-time home vehement opposition by community pilots to minor league baseball). To have lost including local pilots and those from the this long-time treasure to developmental Tampa flying community, Albert Whitted pressure would have been a travesty and survived the developer’s auction block. an embarrassment to the City. However, During the process there was an awaken- like Peter O’Knight, Albert Whitted’s ing of sorts, which revealed, the airport future appears secure to the point that New areas had been a city landmark for decades this year when the resident major league and constituted one of only three airports baseball team, the Tampa Bay Rays were for within all of Pinellas County, whose eyeing prime waterfront spots for their population numbers more than a million new stadium relocation, when prodded residents. During the process, allega- by a local reporter as to the possible suit- board tions surfaced of back-room sweetheart ability of the airport’s land, Rays Senior deals between the would be developers Vice-President, Michael Kalt lamented: certification and some local politicians out to line “We won’t even touch that…We may be their own pockets after leaving office. crazy, but we aren’t that crazy.” With a On June 11, 2009, the Su- For whatever reasons, ultimately, at the frank statement like that, Tony Jannus preme Court of Florida adopted ballot box, the local residents of St. Pe- would be proud! Should your local airport rules regarding two new areas tersburg, voiced their strong approval for face such challenges, remember the les- of board certification– educa- the benefits and viability of Albert Whitted sons of Tampa and St. Petersburg and tion law and adoption by approving the referendum to save the get involved. law– to Chapter 6 of the Rules airport by over a 70% margin. Today, like Regulating The Florida Bar. In re: Peter O’Knight airport across the bridge, (Endnotes) Amendments to the Rules Regu- Albert Whitted is a thriving GA airport with 1 Harry Lee Coe, IV, is currently the Chairman lating The Florida Bar– Rules 6- over 190 planes based there and with of the Florida Bar Aviation Law Committee. His 27 and 6-28, SC08-1981, effec- firm Harry Lee Coe, IV, P.A. is located at 2920 over 90,000 annual flight operations. It West Cypress Street, Tampa, FL 33609-1616. tive June 11, 2009. too is scheduled to undergo millions of He can be contacted by phone at (813) 874-9000, Florida attorneys will be able dollars of modernizations and updates, fax at (813) 874-9001 or my e-mail at hcivpa@ verizon.net  to apply later this year for certi- in part courtesy of the FAA. It is uniquely fication in adoption law and edu- cation law. For more information, go to: http://www.floridabar.org/certifi- cation or contact spiland@flabar. org (adoption law) and jcoiro@ flabar.org (education law). Applicants are also being sought for the adoption law and education law certification com- mittees. The rules can be found on the Florida Bar’s web site: http:// www.floridabar.org/divexe/rrtfb. nsf/WContents?OpenView The court opinion can be found on the Court’s web site: http://www.floridasupremecourt. org/decisions/opinions.shtml

Peter O’Knight (KTPF) airport on Davis Islands in Tampa, FL. www.floridaahs.org/AirportIndex.htm

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