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 the city of Boulder's July 26, 2024 litigation filing, 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.  


While we don’t have a crystal ball to predict the future, signs are very positive for Boulder’s litigation against the FAA.

City of Boulder staff has been working for about a year with outside legal counsel and the FAA to assess the legal feasibility of closing the airport. Staff has not publicly disclosed their legal assessment. They provided confidential results to City Council members prior to the July 25, 2024 City Council meeting.

The very next day, on July 26, 2024, the City of Boulder filed its action against the FAA in U.S. District Court for the District of Colorado. The purpose of this litigation is to clear up title to the airport site, which the city wholly owns. The FAA does not dispute that the city owns this land, but claims that the city is bound “in perpetuity” by the terms of previous grant agreements related to the use of federal grant funds to purchase land and easements for the airport site.

The City’s filing persuasively argues that the FAA’s position is “not only inconsistent with the express terms of its grant agreements with the City but is also an unconstitutional overreach.”

Boulder has filed this litigation on its own terms, defining the legal questions to resolve and choosing the court that will rule. While we cannot speak for the city attorney’s office, one presumes that the city would not have initiated litigation unless the city expects to win.

Another factor in Boulder’s favor is that the city has contracted with the same law firm that represented the city of Santa Monica in its 2013 suit against the FAA, which included a similar “quiet title action” to resolve claimed obligation in perpetuity. The City of Santa Monica’s legal case concluded in 2017 with a settlement agreement with the FAA to close their airport.

The city has committed to this action based on its own analysis of the legal questions and interests of the city. A city memo estimated the costs of this litigation at a relatively modest and manageable $500K - $750K, which is nowhere near the wild sums imagined by the people who are most motivated to keep the airport open. The FAA litigation is being handled within the city's existing litigation budget, with no request to siphon funds from other city priorities.   

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 the FAA updated its grant agreements to require obligation to operate an airport in perpetuity. Yet Banning was still able to obtain FAA release for airport closure, despite the FAA's official position that such a post-1980 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

Litigation over airport closure centers 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 (in Boulder's case, until May, 2040) 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 1980 when the FAA adopted a change in policy. That changed policy dictates that the grant assurances associated with post-1980 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 1980 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 1980 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. 
  
  
  
  
  
  
  
  
  -1991 construction easement
  
  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. 

Update: the city's July 26, 2024 legal filing seems to indicate that the 1991 construction easement was indeed acquired with FAA funding, despite the evidence above to the contrary. Nevertheless, the city's legal team makes a forceful case that "the City would not and did not agree to obligate itself to operate the Airport in perpetuity in exchange for a mere $5,800 in federal assistance to acquire the easement." The legal filing further states: "The City reasonably understood the durational language 'with respect to real property acquired with Federal funds' to not include the acquisition of the construction easement, but rather only the acquisition of land. Indeed, the FAA had never taken the position prior to 1991 that the federally assisted acquisition of an easement would obligate an airport sponsor to operate an airport in perpetuity." 

In conclusion...

Based on all of this evidence, we see Boulder's legal case as much stronger than the FAA's. Furthermore the last time the FAA faced a similar "quiet title" action that challenged "obligation in perpetuity" languge in its contracts with the City of Santa Monica, the FAA settled within 4 years and agreed to airport closure. The FAA appears to have been strongly motivated to settle in order to avoid setting binding legal precedent.