33rd Annual Basics of Airport Law Workshop

and 2017 Legal Update

Workshop Agenda

Sunday, October 15

1:00 p.m. – 5:00 p.m. REGISTRATION
   
3:00 p.m. – 4:45 p.m. SESSION 1 – AIRPORT LAW 101
Peter J. Kirsch │ Kaplan Kirsch & Rockwell LLP
Catherine M. van Heuven │ Kaplan Kirsch & Rockwell LLP

This session provides a basic explanation for how and why airport law is not the same as aviation law, the law governing other transportation modes, or more general municipal law. This session explores the manner in which the federal government (primarily—but not exclusively—the FAA) regulates airports and the activities of airport proprietors. The session discusses those areas where federal regulation is pervasive, where legal authority is shared, and where there is only limited federal regulatory oversight. It provides an introduction to common terms and legal relationships among the various stakeholders and provides background for new attendees at the conference and people who may be experienced lawyers but new to the field of airport law.
   
4:45 p.m. – 5:45 p.m. SESSION 2 – RESEARCH TOOLS IN AIRPORT LAW (ethics credit to be sought)
Marci Greenberger, Senior Program Officer │ Transportation Research Board
Nicholas M. Clabbers │ Kaplan Kirsch & Rockwell LLP

This session provides an introduction to research tools and the non-traditional sources for airport law. It offers guidance on finding FAA policies, guidance, regulations, directives, and other critical legal sources that are not common in other fields of law. It also provides a roadmap to take advantage of the Transportation Research Board’s Airport Cooperative Research Program legal research digests and original research reports on topics of interest to the airport community. The TRB staff member responsible for overseeing the research program provides an update on the latest reports and discuss forthcoming research topics. This is a highly interactive session where lawyers learn best practices for legal research and how to distinguish among different sources and their relative significance and importance in different legal contexts.
   
6:00 p.m. – 7:30 p.m. OPENING RECEPTION
   

Monday, October 16


8:00 a.m. – 8:45 a.m. REGISTRATION AND CONTINENTAL BREAKFAST
   
8:30 a.m. – 8:45 a.m. WELCOME
Melissa Sabatine, Senior Vice President, Regulatory and International Affairs │ American Association of Airport Executives
Ginger S. Evans, Commissioner │ Chicago Department of Aviation
   
8:45 a.m. – 9:45 a.m. SESSION 3 – SPONSOR OBLIGATIONS PART 1: NAVIGATING COMPLIANCE ISSUES
Lorraine M. Herson-Jones, Manager, Airport Compliance Division │ FAA
Susan Mowery-Schalk, Director, Airports Division, Great Lakes Region │ FAA
W. Eric Pilsk │ Kaplan Kirsch & Rockwell LLP, Moderator

Interactions between airports and the FAA can be complex and even contentious if airport lawyers do not understand the basic principles underlying the FAA programs for compliance with grant assurance obligations. The session addresses the grant assurance obligations that most commonly trigger compliance issues – exclusive rights, unjust discrimination, maintaining sponsor’s rights and powers, and preserving good title. This session provides practical guidance—directly from lawyers and FAA regulators who deal with these issues every day—on how to maintain compliance with grant obligations and how to interact with the FAA when compliance problems do arise. The session also reviews recent FAA compliance decisions and provide guidance on the latest FAA policies on the most common compliance problems.
   
9:45 a.m. – 10:45 a.m. SESSION 4 – SPONSOR OBLIGATIONS PART 2: TRANSACTIONAL ISSUES
John E. Putnam │ Kaplan Kirsch & Rockwell LLP

Routine day-to-day airport operations can raise complex grant assurance issues, and it is important that airport lawyer understand the scope and depth of federal oversight over these issues. This session discusses federal obligations relating to use of airport revenue, use of airport land, obligations to maintain consistency with local plans, establishment of rates and charges, and maintenance of the airport layout plan. The session also discusses issues related to land use decisions such as requirements to ensure land use compatibility, the purchase and disposal of property (or interests in property), and how to structure business transactions to ensure compliance with grant assurance obligations.
   
10:45 a.m. – 11:00 a.m. MORNING REFRESHMENT AND NETWORKING BREAK
   
11:00 a.m. – 12:45 p.m. SESSION 5 – MASTER PLANNING, DEVELOPMENT, AND ENVIRONMENTAL REVIEW
Michael Fineman, Attorney, Airports & Environmental Law Division, Office of the Chief Counsel │ FAA
Amy Hanson, Environmental Protection Specialist, Great Lakes Region │ FAA
Catherine M. van Heuven │ Kaplan Kirsch & Rockwell LLP, Moderator

Airport master planning and development is legally complex because of the web of federal, state, and local land use requirements imposed on airport sponsors. This session walks participants through the master planning and development process from initial concept to completion of a project, including not just the planning process, but also the federal environmental review process and the procedures for securing (or preserving eligibility for) federal funding for capital projects. Presenters include an experienced FAA lawyer and an FAA environmental specialist who have navigated the complex process successfully on small and large projects throughout the nation.
   
12:15 p.m. – 1:30 p.m. LUNCH AND PRESENTATION: OUT OF THE FRYING PAN, INTO THE FIRE – OBSERVATIONS FROM INSIDE AIRPORTS AND THE FAA
Eduardo A. Angeles, Esq., Senior Assistant City Attorney, Airport Division │ Los Angeles World Airports (formerly Associate Admnistrator for Airports, FAA)

1:45 p.m. – 2:45 p.m. CONCURRENT SESSIONS

SESSION 6 – AIRPORT FINANCE – OPERATIONAL ISSUES

Scott E. Mitchell, Branch Chief, Airports Law Branch, Office of the Chief Counsel │ FAA
Eric T. Smith │ Kaplan Kirsch & Rockwell LLP

Understanding the permissible sources and uses of funds for airports is one of the foundations of airport law. This session offers airport lawyers an introduction to the unique legal structure under which airports generate revenue and the constraints on expenditure of airport funds. This session is intended to be an introduction to airport finance, federal regulation of airport finances, and the legal requirements for documenting the sources and uses of airport funds.

SESSION 7 – AIRPORT FINANCE – EMERGING ISSUES

Bonnie D. Ossege, Vice President │ Ricondo & Associates
Peter J. Kirsch │ Kaplan Kirsch & Rockwell LLP

This session explores the emerging legal issues that airport sponsors are facing in seeking innovative and creative sources of funding. As airports seek more diversified revenue sources in an effort to keep rates and charges reasonable for aeronautical users, it becomes more complex to navigate the financial and legal requirements for how, when, and from whom the sponsor can generate revenue. The focus of this session is on aeronautical revenue and other aeronautical-related services and functions. This session assumes that the participants are already familiar with the basics of airport finance, federal regulation of airport revenue and expenditures, and the traditional models for airport rates and charges.
   
2:45 p.m. – 3:45 p.m. SESSION 8 – THE LAW OF AIRPORT NOISE
Mort Ames, Senior Counsel, Aviation, Environmental, Regulatory and Contracts Division │ City of Chicago Department of Law
Patrick J. Wells, Environmental Law Field Branch Manager, Office of the Chief Counsel │ FAA
W. Eric Pilsk │ Kaplan Kirsch & Rockwell LLP, Moderator

The traditional problems of airport noise gradually became less dominant from the late 1990s until the last several years as a result of a quieter fleet, successful noise mitigation efforts by airports nationwide, and the reduction in air traffic during the recession. Recently, however, there has been a significant increase in attention to airport noise issues. While much of that has been attributable to the FAA’s implementation of NextGen air traffic management tools, new pressure for nearby development has resulted in encroachment of incompatible land uses near airports. This session explores the basic legal relationships among aircraft users, airports, and the federal government in the regulation and mitigation of noise and explores in depth how those relationships affect an airport sponsor’s obligations and legal authority to address noise issues.
   
3:45 p.m. – 4:00 p.m. AFTERNOON REFRESHMENT AND NETWORKING BREAK
   
4:00 p.m. – 5:00 p.m. CONCURRENT SESSIONS

SESSION 9 – OVERVIEW ON CIVIL RIGHTS, DBE, AND RELATED REQUIREMENTS

Nancy Cibic, DBE/ACDBE Program Compliance Specialist/COR │ FAA
Elisha Luyeho, Management Analyst │ FAA, Office of Civil Rights
Catherine M. van Heuven │ Kaplan Kirsch & Rockwell LLP

FAA civil rights and DBE requirements apply not only to federally funded projects, but to a wide range of airport commercial endeavors. This session provides an opportunity to hear from FAA civil rights officials on current compliance requirements and practical approaches to addressing those requirements in airport contracting and operations. Participants will learn about federal requirements and which activities of airport sponsors are subject to federal civil rights and other contracting requirements.

SESSION 10 – CONTRACTING, LABOR, AND PROCUREMENT

Eric T. Smith │ Kaplan Kirsch & Rockwell LLP

The operator of a passenger terminal today is like the proprietor of a large business and faces a wide range of legal issues that are implicated by concessions, leases, and users’ needs. Among the most complex and airport-specific are contracting, labor, and procurement requirements – which are affected by a web of local, state, and federal law. This session explores a number of the most important new issues that airport proprietors are confronting today in contracting, labor, and procurement with a particular focus on how airport requirements may be different from those applicable in other local government contexts. Particular attention will be on third-party contracts that are subject to federal requirements.
   

Tuesday, October 17


8:00 a.m. – 9:00 a.m. REGISTRATION AND CONTINENTAL BREAKFAST
   
8:30 a.m. – 9:30 a.m. SESSION 11 – NON-AERONAUTICAL DEVELOPMENT
Daniel S. Reimer, Assistant General Counsel │ Denver International Airport
John E. Putnam │ Kaplan Kirsch & Rockwell LLP

Airports are increasingly becoming real estate developers and investors, using airport real estate to generate revenue and local economic activity. Airport lawyers need to understand the strategies that airports have used to attract non-aeronautical development and the regulatory requirements for such projects. This session focuses on the role of airports as proponents of non-aeronautical development, whether that be for purely collateral development designed for revenue generation or for airport-oriented projects that enhance and complement aeronautical functions. The session will explore the unique legal framework for airports when they engage in commercial transactions that are unrelated or only tangentially related to the airport’s aeronautical functions.
   
9:30 a.m. – 10:30 a.m. SESSION 12 – PUBLIC-PRIVATE PARTNERSHIPS
Adam M. Giuliano │ Kaplan Kirsch & Rockwell LLP
Peter J. Kirsch │ Kaplan Kirsch & Rockwell LLP

Public-private partnerships (also known as P3s) are common at airports worldwide but, until recent years, were virtually unheard of in the United States. For a number of legal, policy, and economic reasons (that will be discussed in this session), P3s are becoming increasingly popular as an alternative project delivery tool for a range of airport projects from terminals and car rental facilities to general aviation functions. This session presents the legal framework within which airport sponsors should examine P3s and places this particular project delivery tool into the context of other more traditional contracting methods. The session examines not only aeronautical projects but also non-aeronautical projects and the law that affects whether and how airport sponsors engage the private sector in airport development and operations.

Additional Materials:
P3 Airport Projects: An Introduction for Airport Lawyers
   
10:30 a.m. – 10:45 a.m. MORNING REFRESHMENT AND NETWORKING BREAK
   
10:45 a.m. – 11:45 a.m. SESSION 13 – SAFETY, SECURITY, AND TORT LIABILITY
Nicholas M. Clabbers │ Kaplan Kirsch & Rockwell LLP
Steven L. Osit │ Kaplan Kirsch & Rockwell LLP

The release of the FAA’s long-delayed Safety Management System (SMS) rules has again been delayed, but more airport sponsors are recognizing that SMS is coming and that it will fundamentally change the role of the airport sponsor in policing safety. The legal landscape and sponsor liability will be changed by SMS and this session discusses how airport lawyers can prepare for the advent of this new regulatory scheme and what actions lawyers should take now to address the changes in liability that SMS will cause. Other new burdens face airports including initiatives by TSA to put a greater burden for airport security on airports. Like the SMS initiatives, the TSA proposals will inevitably require sponsors to play a greater role in security. This session explores these new obligations and the liability implications for airport sponsors.
   
12:00 p.m. – 1:15 p.m. SESSION 14 AND LUNCH PRESENTATION: FIRST AMENDMENT ISSUES
Daniel S. Reimer, Assistant General Counsel │ Denver International Airport

Airports increasingly are finding themselves in the cross hairs of social and political debates – whether it be over immigration issues, labor relations, or the impacts of development. The law on permissible First Amendment activities on airport property is constantly evolving, and airport sponsors have developed sophisticated tools for maintaining the appropriate Constitutional balance. Denver International Airport has been at the forefront of these efforts and Mr. Reimer will discuss their efforts and the lessons that can be applied to airports nationwide from their experience.
   
1:30 p.m. – 2:30 p.m. SESSION 15 – LATEST DEVELOPMENTS IN TSA REGULATIONS AND POLICIES
Francine Kerner, Chief Counsel │ TSA

This conference’s annual presentation from the TSA’s Chief Counsel on TSA legal issues is always one of the highlights. The first and only TSA Chief Counsel provides an update on current legal issues facing the agency and offers an insider’s perspective on how the TSA interacts with local law enforcement, airport staff, and airport counsel. This session will provide a frank, off-the-record discussion of legal problems facing airport security.
   
2:30 p.m. – 3:30 p.m. CONCURRENT SESSIONS

SESSION 16 – COMMERCIAL AIRPORT AGREEMENTS

Joseph F. Messina, Deputy Director of Regulatory Affairs │ Philadelphia International Airport
Eric T. Smith │ Kaplan Kirsch & Rockwell LLP
Peter J. Kirsch │ Kaplan Kirsch & Rockwell LLP, Moderator

The structure and length of airline leases and agreements with other aeronautical users have both changed significantly in the last few years. This session explores the current trends in negotiation of use and lease agreements with airlines and other service providers at commercial airports and discusses strategies that airports can use in these negotiations. The session will examine the legal parameters under which airport negotiations occur and the strategies that airlines and others have used in such negotiations.

SESSION 17 – GENERAL AVIATION AIRPORT AGREEMENTS

Corinne Nystrom, Airport Director │ Falcon Field Airport
W. Eric Pilsk │ Kaplan Kirsch & Rockwell LLP

General aviation airports face entirely different constraints from their commercial airport colleagues when negotiating agreements for FBOs and other service providers. This session discusses the role of minimum standards and rules/regulations at general aviation airports and the best practices for negotiation with service providers. The session addresses the increasingly competitive environment wrought by consolidation in the FBO industry and what that means for lease and other negotiations.
   
3:45 p.m. – 5:00 p.m. SESSION 18 – HOT TOPICS AND 2018 FORECAST OF FORTHCOMING LEGAL ISSUES
John E. Putnam │ Kaplan Kirsch & Rockwell LLP, Moderator
Conference Faculty

The final session of the conference welcomes all faculty members to the podium to discuss a forecast for the coming year – new and regulatory policy initiatives, the status and predictions for reauthorization of the FAA, pending litigation, and other forums in which new airport law may arise. This interactive session provides a capstone to the conference and an opportunity for participants to hear the faculty’s differing perspectives on hot legal topics facing airport lawyers.

Additional Materials:
City of Phoenix v. FAA (D.C. Cir No. 15-1158) (August 28, 2017).