For the week of January 14 - 20, 2004

Tutor lawsuit to be heard in Boise court

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By MATT FURBER
Express Staff Writer

Attorneys for both Friedman Memorial Airport and Ronald Tutor, a California-based developer with a home in Ketchum, are hoping to resolve a dispute over weight restrictions imposed by the airport on aircraft like Tutor’s Boeing 737 business jet without going to trial in Federal District Court in Boise Jan. 26. Attorneys are seeking a summery judgement Thursday, Jan. 15, in advance of the trial date.

Tutors lawyers will be arguing that the airport violated FAA regulations by imposing a ban on Tutors jet by making the decision without FAA approval.

The airport’s lawyers will argue that Tutor has no private right of action against the airport.

"Just because someone has allegedly violated the law doesn’t mean (that a third party) can sue," said Peter Kirsch, a Denver-based attorney, specializing in airport law. "If a speeder drives by your house you can’t sue them."

Kirsch’s colleague, Perry Rosen from Washington, D.C., will be representing the airport in Boise. James Martin of Boise will be representing Tutor.

The airport will also argue that the airports weight restriction, developed in 1983 and is "grand fathered" and not subject to FAA rules governed by the Airport Noise and Capacity Act (ANCA). The ANCA includes conditions that must be complied with before an access restriction can be imposed on an airport after October 1, 1990.

Tutors lawyers argue that the Hailey airport changed precedence by allowing some 737 aircraft to land during the 1989-1990 and 1990-1991 ski seasons. The airplanes have an operating weight in excess of 95,000 pounds, which is above the airport’s 1983-weight restriction.

Since both sides will be arguing that the case should not go to trial the judge could make one of three decisions, Thursday. He may make a summery judgement in favor of either side, or if he finds factual areas for dispute he may hold it over for trial.

 

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