Jan. 21—Boulder city attorneys are fighting efforts to have the city's high-profile lawsuit against the Federal Aviation Administration dismissed.
The lawsuit, filed in late July, came amid fierce public controversy over whether the city should close its 97-year-old municipal airport. Boulder officials sued to challenge the FAA's claim that the airport must stay open in perpetuity because the city used FAA grant funding to buy some of the airport land.
The FAA responded in early November with a motion to dismiss the suit. But in a 119-page court filing dated Jan. 7, attorneys for Boulder reiterated and expanded upon their arguments for why the FAA cannot require the city to keep its airport open indefinitely.
Boulder accepted FAA grant funds in 1959, 1977 and 1991 to pay for portions of the airport property, according to the original complaint. But city attorneys alleged it wasn't until 2022 that the FAA first asserted that real property bought with federal funds after 1980 came with "unlimited" covenants. That assertion, which city attorneys called an "extraordinary about-face," came when the FAA made a change to its Airport Compliance Manual.
In the latest court filing, the attorneys acknowledged that the city had voluntarily accepted some FAA grant funds with an agreement to keep the airport open for no more than 20 more years. However, they argued the city could not have known the FAA would claim a "perpetual interest" in the airport until the 2022 manual change.
City attorneys also rebutted an FAA claim that the city expressly committed to operating its airport forever in exchange for accepting $5,800 in federal assistance for a "construction easement" in 1991.
"That argument is as wrong as it is implausible: Not even the FAA, much less the city, has ever understood such an acquisition to carry a perpetual obligation to operate the airport," the court filing reads. "The FAA's reliance on the 1991 Grant Agreement is nothing more than a post hoc effort to evade review of a clearly unconstitutional power grab."
Furthermore, the attorneys said, it's unconstitutional for the FAA to impose retroactive and prospective conditions on Boulder's acceptance of federal funding.
The original lawsuit challenged the constitutionality of the FAA forcing the city to keep its airport open, arguing that such a requirement violates the separation of powers doctrine and undermines the city's ability to govern itself.
The suit arose during a tumultuous year when two citizen-initiated ballot measures to close the airport and turn the nearly 180 acres of airport land into a neighborhood qualified for the fall 2024 ballot. The city filed its complaint suddenly, surprising even some advocates involved in the citizen initiatives. The ballot measures were withdrawn after the lawsuit was filed.
A court ruling on the case could be months away. But in Boulder, the lawsuit has been contentious. City officials say the suit is necessary to clarify the city's obligations to the FAA, but pro-airport community members have called the lawsuit a waste of city money and resources, and they have called on the city to drop the litigation. Because the city has paused taking FAA grant funding while the lawsuit is pending, airport advocates also want to see the city start accepting this funding to invest in the airport.
Originally Published: January 21, 2025 at 4:02 PM MST
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