Boeing/King County Intl (KBFI) Put On Notice By FAA

A couple weeks ago in the June eNewsletter (1) we reported that the Commissioners of King County, Washington, specifically County Executive Dow Constantine, issued an Executive Order directing Boeing/King County International Airport (KBFI) to amend its leasing policies for airport businesses with the stated goal of ending all flights transporting immigration detainees chartered by the Immigration and Customs Enforcement Agency (ICE).

The Executive Order specified that future long-term leases with companies that operate hangars and other facilities at BFI were to comply with all local immigration and human rights ordinances. Those ordinances dictate that King County is not to cooperate or facilitate immigration enforcement actions except under compulsion of a court order. “Our goal is to ban flights of immigrant detainees from our publicly owned airport, and I hope members of Congress shine a light on this practice and how it is currently funded,” said Mr. Constantine (2).

ICE charter flights at BFI had been operated by Swift Air, with FBO services provided under a contract with Modern Aviation. In response to Executive Constantine’s order, Modern said it would terminate its relationship with Swift. The two other FBOs on the field, Signature Flight Support and Kenmore Aero Services, said they would not replace Modern to service the flights.

Our position was and remains that the Order by the County to deny aeronautical services to any user of the airport is in direct violation of FAA Airport Improvement Program (AIP) grant assurances, in particular Assurance 22, Economic Non-Discrimination.

As a reminder, Assurance 22.a reads as follows: “It will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.”

Since 2012 BFI has received more than $21 million in AIP grant funds, including more than $2.5 million in fiscal year 2018 alone. As such, BFI must comply with the AIP Grant Assurances under federal law (3).

The predictable reaction from the U.S. Department of Transportation (DoT) was swift: On May 1, Department General Counsel Steven Bradbury sent a letter to Executive Constantine indicating that federal law expressly prohibits the enforcement of any directives related to denial of air transportation services to any user of the system, citing Grant Assurance 22.a above (4).

Not only that, the DoT letter notes also that the Airline Deregulation Act of 1978 (ADA) preempts any local or State government entity from regulating any types of services being provided by licensed air carriers. The ADA contains an explicit provision declaring, with certain very narrow exceptions, no State or local government may enact or enforce any law, regulation, or other provisions related to price, route, or service of an air carrier. In separate cases, both the 10th Circuit and the U.S. Supreme Court have reaffirmed this provision preempting any State or local restrictions on price, route, or service, even if the effect of such restrictions are only indirect.

The Executive Order also appears to place BFI in non-compliance with Assurance 27, which requires airports to make its facilities available for use by Government aircraft in common with all other aircraft at all times. In this situation, the Department of Homeland Security is the agency contracted with Swift Air to provide transportation services to ICE for the purpose of carrying out deportation orders issued by federal immigration judges.

By attempting to ban immigrant detainee flights at BFI, it is plain to see that King County is trying to impose its will on the National Airspace System. This is in direct conflict with federal law as well as its grant obligations as described here.

In our opinion King County is breaking the law in several instances by denying ICE the use of BFI. In addition to violating its federal obligations under the FAA, it is also exceeding its authority by interfering with immigration enforcement, which is clearly a federal responsibility. States or local entities have no authority to set immigration policy.

ICE spokeswoman Tanya Roman stated, “To suggest that the enforcement of federal immigration laws is somehow a human rights violation is irresponsible and reflects either a profound misunderstanding or willful mischaracterization of those laws and of the proper roles and responsibilities of the federal government and states and localities in ensuring that the laws are properly administered.” We couldn’t agree more.

We also wonder why the three FBOs did not protest the Order. At the very least they could have cited contractual obligations as well as breach of lease agreements.

In his letter General Counsel Bradbury put King County on notice by plainly stating that if it continues on this course by disrupting ICE flights, future AIP funds may be withheld from the airport. We agree with this threat and hope that King County rescinds the Executive Order.

So King County has a choice: comply with the FAA’s grant obligations or risk losing future funding. In our view it is also this: obey the law. Or don’t, and face the consequences.

 

Mike Straka, PhD
HN Contributing Author & Technical Support
Executive Director, Colorado Aviation Business Association

Sources
1. Washington Airport Treads on Thin ICE. Mike Straka. HangarNetwork eNewsletter, June 2019. https://www.hangarnetwork.com/newsdisplay/1132606350832

2. Executive Constantine Directs Actions Against ICE Detainee Flights from King County Airport. King County Newsletter, April 23, 20129. https://www.kingcounty.gov/elected/executive/constantine/news/release/2019/April/23-ICE-KCIA.aspx

3. FAA Grant Assurances for Airport Sponsors. FAA website. https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip.pdf

4. U.S. Department of Transportation Letter, “Re: King County International Airport – Restrictions on Certain Air Carrier Services,” May 1, 2019. https://kuow-prod.imgix.net/store/9ced9bda708f52df50ecec46e527314d.pdf

5. Washington Airport Operators Applauded for Refusing to Serve ICE Deportation Flights. Chantal Da Silva. Newsweek, May 3, 2019. https://www.newsweek.com/washington-airport-operators-applauded-refusing-serve-ice-deportation-flights-1413867?utm_source=June+2019+Newsletter&utm_campaign=June+2019+Newsletter&utm_medium=email