Scottsdale adds to FAA legal tab as mediation appears to be on the table

Posted 8/24/20

Scottsdale is bolstering its legal defense as the city proceeds fighting the Federal Aviation Administration for 2014 flight changes, which officials say have adversely impacted residents.

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Scottsdale adds to FAA legal tab as mediation appears to be on the table


Scottsdale is bolstering its legal defense as the city continues fighting the Federal Aviation Administration for 2014 flight changes, which officials say have adversely impacted residents.

The Scottsdale City Council is expected to approve a contract for outside legal services with California-based legal firm  Leech Tishman Fuscaldo & Lampl for $175,000 at its first meeting back from summer break on Aug. 24.

The legal contract stipulates services are for Scottsdale’s petition for review regarding FAA flight path disputes filed in the D.C. Circuit Court of Appeals.

The case has received three extensions, court filings show, and is now scheduled to resume in October. However, the most recent filing outlines an extension is needed to “accommodate pending mediation.”

The issue dates to 2014 when the FAA implemented a new satellite GPS system known as “NextGen” for guiding arriving and departing aircraft to and from Phoenix’s Sky Harbor International Airport.

Where air traffic previously were dispersed over predominately unpopulated areas many miles away, arriving and departing planes were now compressed and moved into narrow and undeviating “highways” directly over densely-populated communities.

Scottsdale believes it is shouldering an unfair burden of the new flight routes and has had a significant impact on a number of residents.

Throughout the years, efforts have been made to mitigate the issue --- which is now in legal hands.

In a separate lawsuit, the D.C. Circuit ruled in favor of the city of Phoenix, and its fellow petitioners, and issued a decision vacating the FAA’s 2015 order.

Despite a series of workshops held locally to garner public comment, and a detailed analysis proposing flight path modification submitted by Scottsdale, the FAA in January declined to make any changes to east departure routes adopted in 2014. 

Three months later, in March, Scottsdale petitioned the court for review of the FAA’s decision to not take any further action to alleviate noise and pollution impacts caused by flight path procedures for Phoenix Sky Harbor International Airport.

Through an informal contract of $25,000, Scottsdale retained Leech Tishman Fuscaldo & Lampl to file a petition in federal court, where attorney Steven Taber is leading the city’s effort in court.

“Litigation in this matter has been ongoing and extensive work has been performed in the representation of the city, which involved expenses over the previously approved limit,” a Scottsdale staff report stated.

The new contract of $175,000 is not a fixed price contract, so the full amount being requested may not be expended, the staff report stated. If the full amount is expended, and further funds are needed, another request will be made of council.

The city staff report describes the legal fight against the FAA as a matter of community interest, stating numerous residents filed comments in the FAA proceedings that are being challenged in the federal litigation.

In addition to the petition, in February Scottsdale renewed agreements with Covington & Burling LLP for federal lobbying efforts to mitigate impacts created by the flight paths.

Online data provided by Sky Harbor Airport show noise complaints are received every month from Scottsdale ZIP codes.

ZIP codes 85262 and 85255 each had four to six complaints in July; while ZIP codes 85259, 85260, 85266, 85258 and 85250 all had at least one complaint as well.

Through this longtime fight against the FAA, advocacy group Scottsdale Coalition for Airplane Noise Abatement — SCANA — was born through the efforts of resident Bud Kern.

Mr. Kern reported in July a third extension granted in the Scottsdale v. FAA lawsuit.

The revised schedule now asks for Scottsdale’s brief on Oct. 16; followed by further dates of Nov. 16 and Dec. 7, 14 and 28, before oral arguments are scheduled.

In the latest court document the extension is requested to “accommodate pending mediation.”

Mr. Kern is hopeful the two parties will resolve the litigation issues out of court.

“This could be a positive event if the FAA is serious about rescinding the illegal paths over Scottsdale that it implemented with its NextGen system at Sky Harbor Airport at the end of 2014,” Mr. Kern stated on his website.

“Though mediation with the FAA in other cases has not been successful, SCANA hopes Scottsdale can convince the FAA that it will be to everyone’s benefit to negotiate a settlement to rescind the flight paths rather than go through the Court process that would result in the same outcome.”

Court documents show issues to be raised by Scottsdale in its petition seek to prove that the FAA’s Jan. 10 decision to not take any further action to mitigate flight path impacts were arbitrary and capricious.