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May 5, 2015 1:52 PMPublication: The East Hampton Press

FAA May Support Temporary Restraining Order Blocking Airport Regulations

East Hampton Airport FILE PHOTO
May 6, 2015 7:05 AM

New East Hampton Airport restrictions are set to take effect on May 17, but the Federal Aviation Administration has expressed support for a temporary restraining order sought by opponents of the new rules.

The temporary restraining order, or TRO, would block East Hampton Town from implementing curfews and restricting certain aircraft from landing at the East Hampton Airport. The restrictions were adopted by the Town Board last month to alleviate noise in response to complaints from residents.

A judge is expected to decide on May 14 whether or not to issue the TRO.

The FAA informed the Friends of the East Hampton Airport, a group that represents aviation businesses, of its support of the TRO, according to a letter from the Friends to U.S. District Court Judge Sandra Feuerstein. An FAA spokesman did not return a request for comment.

Kathleen Cunningham, the chair of the Quiet Skies Coalition, said the FAA’s support of a TRO implies the agency’s unwillingness to defend a 2005 settlement agreement, which cleared the way for the town to enforce new access restrictions at the airport. As part of that settlement, the FAA had agreed to waive certain grant obligations that required the East Hampton Airport to abide by FAA rules, allowing them to expire early, at the end of December 2014.

“To go back to try to undo the foundation of these policies is the worst sort of big government interference,” Ms. Cunningham said in a statement. “And, for whom? Some out-of-state helicopter companies that are unhappy they cannot have 24/7/365 access to our community.”

The Friends filed suit against the FAA in January, challenging the FAA’s ability to waive the grant assurances that had been blocking the East Hampton Town Board from restricting access at the airport by certain aircraft.

In April, the group again filed suit, but this time it was against the Town of East Hampton for adopting the new restrictions designed to reduce noise generated by air traffic at the airport. In that suit, they requested a TRO to block the town from putting the restrictions into effect. The group has asked that the court consolidate the two lawsuits since they involve common issues of law.

Last week, the National Business Aviation Association joined the Friends in its latest lawsuit.

Starting this summer, if the regulations go forward, there would be a curfew banning all flights between 11 p.m. and 7 a.m., year-round. Aircraft classified as “noisy” would not be permitted to take off or land between 8 p.m. and 9 a.m., year-round. Furthermore, aircraft classified as “noisy” would be allowed only one takeoff and landing per week between May and September.

The Town Board has defined “noisy” aircraft as any airplane or helicopter that has an Effective Perceived Noise in Decibels (EPNdB) approach level of 91.0 or greater based on noise characteristics published by the Federal Aviation Administration or the European Aviation Safety Agency.

Ms. Cunningham said that the FAA shouldn’t go back on its word and should defend the agreement it made in 2005 to allow the grant restrictions to expire at the end of December 2014.

But Peter Kirsch, the attorney representing the town on its airport issues, said that the FAA has not taken a position on the merits of the Friends of the East Hampton Airport’s request, only that a TRO is often used as a way to buy time.

“Every plaintiff wants the status quo to be maintained during litigation,” Mr. Kirsch said on Monday. “Every plaintiff wants time to develop its position. Every government agency would like more time to deliberate.” But, he added, “A TRO is not designed just to give some more time to think things over.”

He said that a temporary restraining order is issued only in extraordinary circumstances, including when a party can show irreparable injury. “The FAA does not assert that there is any injury at all,” he added.

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In view of the fact that "An FAA spokesman did not return a request for comment," would it be possible to post a PDF of the letter from the Plaintiffs to Judge Feuerstein, in which it is alleged that the FAA supports the TRO?

The article's headline, starting with "FAA supports . . . ," seems a bit misleading IMO, if it is based solely on an unseen letter to a litigant from a federal agency which refuses to comment . . .
By PBR (4956), Southampton on May 5, 15 3:46 PM
Thank you to the editors for posting the PDF of the letter, on p. 2 of which it says, "FAA counsel has informed us that the FAA intends to support Plaintiffs' application for a TRO." [p. 4/4 of the PDF]

It seems quite a journalistic leap -- to take one litigant's unsubstantiated assertion of FAA intended support -- to then fabricate the headline: "FAA Supports . . . [the TRO]," in my opinion.
By PBR (4956), Southampton on May 5, 15 8:14 PM
1 member liked this comment
Indeed, given that the headline appears front and center on the home page here:

"FAA Supports Temporary Restraining Order Blocking Airport Regulations"

one is led to wonder whether the Press had joined the shadow FAA in supporting the TRO, before the matter is even discussed in court.
By PBR (4956), Southampton on May 5, 15 8:21 PM
2 members liked this comment
The headline was softened a bit this morning. It is still misleading IMO, given that there has been no public comment by the FAA.
By PBR (4956), Southampton on May 6, 15 6:08 PM
Those who have expressed interest in filing lawsuits might want to consider this an ideal opportunity to do so and demonstrate to the entire country and indeed the entire world that with money you can buy the outcome you want from the US government.
A watershed event, for sure, so stay tuned for blowback if there are no restrictions set before Memorial Day.....
By Trish (91), Sag Harbor on May 5, 15 4:39 PM
1 member liked this comment
looking forward to it....
By kevinlocal (47), wainscott on May 6, 15 9:51 PM
boom goes the dynamite
By kevinlocal (47), wainscott on May 5, 15 9:39 PM
East Hampton Town Golf and Country Club...?
By Toma Noku (616), uptown on May 6, 15 10:16 AM
We have enough of those! Keep the airport open!
By kevinlocal (47), wainscott on May 6, 15 10:02 PM
Now there's an idea, a superb location for a much-needed country club--could join up with the gun club nearby, make it an all around recreational area for the locals. and no need to trim the trees, no need to worry about the aquifer....brilliant idea. And local pilots can use the Montauk airport...a beautiful little spot right on the water.

By Trish (91), Sag Harbor on May 6, 15 4:58 PM
$10,000 bet that if the airport closed there would be a complaint line opened about the gun club within a month....
By kevinlocal (47), wainscott on May 6, 15 10:07 PM
And you do know country clubs produce a large amount of pollutants to keep that grass so green?
By kevinlocal (47), wainscott on May 6, 15 10:10 PM
"for a much-needed country club"..really?.. what about the current hanger owners that within the lease of these that they have unlimited use of the airport ?. One of the proposals is a curfew from 11pm - 7am... that's a breach of contract in many of the hanger owners eyes.
Trish.. think about if needed the airport serves for medivac and evacuation purposes .. if needed.. plus all of the small airplanes that are based there.... We aren't talking jets and heli's , but small 4 seat aircraft that ...more
By hto (12), sag harbor on May 7, 15 9:26 AM
The Ass't US Attorney representing the FAA has written a letter dated May 4 to Judge Feuerstein stating "The FAA is currently reviewing Plaintiffs' claims and the Town's restrictions and, therefore, is not expressing any view on the merits of either the FAA [Action] or Town Action [i.e., the two lawsuits filed by Friends of EHA] at this time. Notwithstanding, please be advised that the FAA believes that Plaintiffs' application to enjoin the Town from enforcing the EHA restrictions should be granted ...more
By davbud (127), east hampton on May 6, 15 8:20 PM
Hopefully the editors will provide a PDF of this letter as well. The use of the term "enjoin" seems curious, given that the motion currently before the court is for a temporary restraining order (not a preliminary injunction). The rest of the letter may provide insight into the choice of this term.
By PBR (4956), Southampton on May 6, 15 9:19 PM
The FAA letter has been posted as a PDF. Interestingly, similar to Mr. Kirsch's comment at the end of the article, the FAA has not alleged any "irreparable injury" (to the FAA as a party) to justify a TRO. Rather, the letter's language ("enjoin" -- "injunction") seems directed toward the issuance of preliminary injunction, for which the legal standards are quite different.
By PBR (4956), Southampton on May 8, 15 10:41 AM
1 member liked this comment
I miss the good old days when I would grab my kids out of the backyard in a panic when I heard the sound of gunfire. I love the sound of a mooney or a piper cruising overhead. I had no idea I even lived near the airport until the arrival of the BLADE app.
By bridgewoodsmom (14), bridgehampton on May 7, 15 12:48 PM
The attorneys for the Town have commented on the FAA attorney's letter, thusly: "FAA filed a letter supporting the TRO. Yet FAA expressly took no position on the merits. Nor does FAA identify any emergency or other urgent reason to grant the TRO. FAA has had since late January to evaluate the issues in [the FoEHA v. FAA Case] and has had several weeks to consider the [Town's new] Local Laws and evaluate its position. There is nothing urgent about preserving the status quo to allow FAA to mull ...more
By davbud (127), east hampton on May 10, 15 12:14 AM