Can we legally close the airport?

We are practical people and have no desire to mire the city in costly and unwinnable litigation. We are not attorneys, but based on best available evidence from FAA grant contracts, Airport Layout Plans, other FAA-provided documents, and the FAA's track record with other communities seeking airport closure, we strongly believe the answer is YES, it is feasible to close this airport if the people of Boulder want to.  

Aviation proponents play up fear of extended or costly litigation. Yet they have produced no examples of the FAA engaging in costly litigation with a community over airport closure.


City staff is currently wrapping up a year-long study of legal and economic feasibility for airport closure. Results will be  delivered to the City Council on July 25, 2024. We expect to hear that closure is entirely feasible.

As detailed below, all of the grant agreements that the city signed with the FAA for land acquisition clearly state in the contract that the grant assurance period is not to exceed 20 years. The last of these grant assurance periods expired in 1997. Despite claims to the contrary, there is NO obligation in any of these contracts to operate an airport in perpetuity.


It’s also important to remember that the FAA can and does release airports for closure, despite FAA policy and sternly worded letters that discourage sponsors from pursuing closure. Multiple airports have successfully negotiated closure agreements with the FAA, including Santa Monica Municipal Airport in 2017 and Banning Municipal Airport in May of 2024. (Of great importance, unlike Boulder, Banning Municipal did accept grants for land acquisition after 1982. Yet they were still able to obtain FAA release for airport closure, despite the FAA's official position that such a post-1982 land acquisition grant contains an obligation to operate an airport in perpetuity). 

Furthermore, there are examples of airports that deliberately broke their grant agreements with the FAA and suffered small or no penalties. The city of Chicago closed Meigs Airfield by ripping up the runways overnight in 2003 and was fined just $33,000 for not giving proper notice. There were no other penalties or litigation over the unilateral closure of Meigs Field. Just last year in 2023, Santa Clara County in California defied its FAA grant assurances by discontinuing the sale of leaded aviation fuel at its two county airports, despite the displeasure of the FAA. There has been no litigation and no fines as a result of this action.


On the other hand, continuing to operate the airport exposes the city to known legal risks. Our neighboring airport, Rocky Mountain Metro (RMMA) and its operator, Jefferson County, are currently being sued by the town of Superior and Boulder County over negative and unreasonable public health impacts from noise and lead pollution due to airport operations. Similarly, Boulder could be sued for impacts of our city airport on County residents. 


-Walk-through of grants for land purchases

Fears of litigation over airport closure center around contracts that the city signed with the FAA using federal grant money to purchase land for the airport.

There are two types of grant contract offered by the FAA: grants for capital improvements vs. grants to buy land.

Grants for capital improvements clearly come with a 20-year expiration of commitments (called “grant assurances”). There is no argument about these. We'd either need to run down the clock on these grants or, if the FAA agrees to negotiate a shorter ramp to closure, pay back an amortized amount. See our FAQ "What would it cost to close the airport?" 

Grants for land purchases came with an identical 20-year commitment and expiration up until 1982 when the FAA adopted a change in policy. That changed policy dictates that the grant assurances associated with post-1982 land acquistion contracts never expire, including the agreement to operate the airport, unless released by the FAA. There is no argument about when this policy change occurred. 


Through a Freedom of Information Act (FOIA) request, our campaign has acquired copies of all of Boulder's contracts with the FAA for grants to purchase land for BDU. All of these contracts were signed prior to 1982 and clearly state in the contract that the grant assurance period is not to exceed 20 years. The last of these grant assurance periods expired in 1997. There is NO obligation in any of these contracts to operate an airport in perpetuity, nor to repay the FAA for the land acquisition. The FAA does not have the power to retroactively and unilaterally change a contract. 

Here is the parcel data from the Airport Layout Plan associated with BDU's last Master Plan Update. It shows only three parcels acquired with FAA funding - see the "Project #" column: 

  • Tract 1 for land ("fee") acquired in 1959
  • Tract 4 Parcel I for land ("fee") acquired in 1977
  • Tract 5 Parcel I for avigation easments acquired in 1963.




    All three of these dates precede the 1982 change in FAA policy that grant assurances associated with the use of federal funds to acquire land do not expire. As additional evidence, we have copies of the 1959 and 1977 contracts obtained through a FOIA request. Here is a screenshot of the contract language from the 1977 Tract 4 Parcel I agreement stating that the grant agreement is "not to exceed twenty years from the date of said acceptance." (Green circles and green underlining added by ANC, red and black redactions by the FAA). 





    And here is the same language in the 1959 contract for Tract 1. 








    -Questions about 1991 construction easement may be put to rest

    In addition to the three parcels described above, we know that the city has been in conversation with the FAA about a 1991 construction easement and whether this counts as a "real property right" that could, theoretically, be leveraged by the FAA to claim an obligation in perpetuity. 

    However, available evidence points strongly to the conclusion that the 1991 construction easement was not acquired with FAA funds.  

    Through the ANC's FOIA request, we have a copy of an airport layout plan diagram that is labeled "Exhibit 'A' Property Map to accompany AIP project No. 3-08-0004-09" dated August 2001. On that ALP diagram in the "Land Information" box, it shows the 1991 construction easement as a sponsor acquisition, not an FAA project #. Look at the line for Tract 12, third from the bottom. (Red circle added). This indicates that FAA funds were not used to acquire the easement. 



  • This is compatible with the Airport Property Map from the last Airport Master Plan Update that has "N/A" for the project number for the 1991 easement. The parcels that we know were funded with FAA grants all have project numbers in that column instead of N/A. (Red circle added)

 

 

  • This is also compatible with the Memorandum For Record of a meeting February 8, 2006 that contains an "Inventory of Land/Easements at Boulder Municipal Airport Financed with Federal Money" that does not show the 1991 Tract 12 easement. (Pink circle added. Note that the memo later clarifies that the two parcels marked with "**" were researched by the FAA and determined to have been sponsor acquisitions, not acquired with federal grant money. 


Again, we are not attorneys, but we see ample evidence in the FAA's documents that the 1991 easement was not acquired using federal funds, unless there are multiple erroneous documents here. The only easements that we see that were funded with federal funds were the 1963 avigation easements, which pertain to the air space above a piece of property, not the property itself, and which were taken prior to the change in FAA policy that calls for obligation in perpetuity. We note that, in contrast to the 1991 construction easement, the 1963 avigation easements ARE shown as being federally funded on both of the Airport Layout Plan diagrams shown above with the red circles. 

In conclusion...

Based on all of this evidence, we do not see the FAA having a legal case to force Boulder to operate an airport in perpetuity, even if the FAA were inclined to litigate. And, historically, the FAA is not inclined to litigate.