Kunz v. FAA

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 20, 2025
• Docket: 22-9583
• Status: Unpublished

Opinion

Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 20, 2025 _________________________________ Christopher M. Wolpert Clerk of Court NEIL KUNZ,

Petitioner,

v. No. 22-9583 (FAA No. 16-21-06) FEDERAL AVIATION (Federal Aviation Administration) ADMINISTRATION,

Respondent.

------------------------------------

SALT LAKE CITY CORPORATION,

Intervenor-Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, McHUGH, and CARSON, Circuit Judges. _________________________________

Over the course of thirteen years, Petitioner Neil Kunz sought, unsuccessfully,

compensation from Salt Lake City, Utah (the City)1 for a fee purchase of, or

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 The City intervened in this matter as of right, but ultimately elected not to file a brief. Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 2

easement upon, his residential property adjacent to the Tooele Valley Airport (the

Airport). Notwithstanding that he initiated an inverse condemnation action against

the City for a compensable “taking” of his property, which is being actively litigated

in Utah state court, Mr. Kunz initiated these regulatory proceedings in 2021. In a so-

called “Part 16” administrative complaint, Mr. Kunz asked the Federal Aviation

Administration (FAA), the Respondent in this matter, to conclude that by failing to

acquire an interest in his property and declining to reimburse him for certain

expenses incurred in an earlier condemnation action, the City violated assurances it

made as a condition to obtain federal grants for Airport improvements. For a remedy,

Mr. Kunz urged the FAA to require the City to repay the grants and withhold

approval of any future grants.

The FAA concluded that the City did not violate its assurances, and Mr. Kunz

then timely petitioned for review. Exercising jurisdiction under 49 U.S.C. § 46110,

we affirm because Mr. Kunz has not established any error in the FAA’s resolution of

his administrative complaint.

I. BACKGROUND

A. The Airport, its receipt of federal grants, and continuing assurances to which it is subject

The City acquired the Airport, a public-use general airport located in Tooele

County, in 1991. Because the Airport is not within Salt Lake City boundaries, the

City cannot directly control the zoning or other land use ordinances that burden the

adjacent lands. The City’s subsequent development of the Airport was financed, in

2 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 3

part, with about $10 million in federal grants under the Airport Improvement

Program (AIP), which is authorized by the Airport and Airway Improvement Act of

1982. See 49 U.S.C. § 47101 et seq. Under that Act, the Secretary of Transportation

may approve an AIP grant application only if “the Secretary receives written

assurances, satisfactory to the Secretary,” that the recipient airport sponsor2 will

comply with an array of laws and conditions ranging from general aviation safety

requirements to nondiscrimination provisions. 49 U.S.C. § 47107. Section 47107(g)

requires the Secretary to “prescribe requirements for sponsors that the Secretary

considers necessary” to “ensure compliance” with those statutory requirements.

The FAA Administrator, acting pursuant to a delegation from the Secretary of

Transportation, 49 C.F.R. § 1.83(a)(9), has implemented these requirements into a

standardized set of thirty-nine assurances that “shall be complied with in the

performance of grant agreements for airport development . . . grants for airport

sponsors.” AR at 320. Those assurances are continuing in nature; that is, they

“remain in full force and effect throughout the useful life of the facilities developed

or equipment acquired for an airport development” project. Id.

The following assurances are implicated by this appeal:

Assurance 20 (Hazard Removal and Mitigation):

[The sponsor] will take appropriate action to assure that such terminal airspace as is required to protect instrument and visual operations to the airport (including established minimum flight altitudes) will be adequately cleared and protected by removing, lowering, relocating, marking, or lighting

2 “Airport sponsor” means “a public agency with control of a public-use airport,” here, the City. AR at 320. 3 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 4

or otherwise mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards. Id. at 328.

Assurance 21 (Compatible Land Use):

[The sponsor] will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft. Id.

Assurance 29 (Airport Layout Plan):

. . . [the sponsor] will keep up to date at all times an airport layout plan of the airport showing: 1) boundaries of the airport and all proposed additions thereto, together with the boundaries of all offsite areas owned or controlled by the sponsor for airport purposes and proposed additions thereto;

2) the location and nature of all existing and proposed airport facilities and structures . . . including all proposed extensions and reductions of existing airport facilities;

3) the location of all existing and proposed non-aviation areas and of all existing improvements thereon; and

4) All proposed and existing access points used to taxi aircraft across the airport’s property boundary.

Such airport layout plans and each amendment, revision, or modification thereof, shall be subject to the approval of the Secretary which approval shall be evidenced by the signature of a duly authorized representative of the Secretary on the face of the airport layout plan. The sponsor will not make or permit any changes or alterations in the airport or any of its facilities which are not in conformity with the airport layout plan as approved by the Secretary and which might, in the opinion of the Secretary, adversely affect the safety, utility or efficiency of the airport.

4 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 5

[] Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, if a change or alteration in the airport or the facilities is made which the Secretary determines adversely affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or off the airport and which is not in conformity with the airport layout plan as approved by the Secretary, the owner or operator will, if requested, by the Secretary (1) eliminate such adverse effect in a manner approved by the Secretary; or (2) bear all costs of relocating such property (or replacement thereof) to a site acceptable to the Secretary and all costs of restoring such property (or replacement thereof) to the level of safety, utility, efficiency, and cost of operation existing before the unapproved change in the airport or its facilities except in the case of a relocation or replacement of an existing airport facility due to a change in the Secretary’s design standards beyond the control of the airport sponsor. Id. at 332–33.

Assurance 35 (Relocation and Real Property Acquisition):

[The sponsor] will be guided in acquiring real property, to the greatest extent practicable under State law, by the land acquisition policies in Subpart B of 49 CFR Part 24 and will pay or reimburse property owners for necessary expenses as specified in Subpart B. Id. at 336.

The regulations referenced in Assurance 35 implement the Uniform Relocation

Assistance and Real Property Acquisition Act (the Relocation Act), 42 U.S.C. § 4601

et seq. As relevant here, subchapter III of that Act—titled “Uniform Real Property

Acquisition Policy”—requires, among other things, that agencies “shall, to the

greatest extent practicable, be guided by” ten enumerated “policies” when acquiring

real property. 42 U.S.C. § 4651.3

3 Section § 4651 “omits any language conferring rights or benefits on landowners,” and § 4602(a) makes clear that the land-acquisition “policies” in § 4651 “create no rights or liabilities.” Clear Sky Car Wash LLC v. City of Chesapeake, 743 F.3d 438, 443 (4th Cir. 2014). As such, courts generally hold that a landowner has no private right of action to enforce an agency’s compliance with the acquisition 5 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 6

The regulations implementing subchapter III of the Relocation Act define

“agency” broadly as “any entity utilizing Federal funds or Federal financial

assistance for a project or program that acquires real property.” 49 C.F.R. § 24.2(a).

And the regulations relevant to this petition—contained in Subpart B, titled “Real

Property Acquisition”—“apply to any acquisition of real property for programs and

projects where there is Federal financial assistance in any part of project costs.” 49

C.F.R. § 24.101(b). These regulations, when applicable, require (1) that the agency

comply with enumerated land-acquisition policies mirroring those in § 4651 of

Relocation Act, 49 C.F.R. § 24.102, and (2) that real property owners be reimbursed

for litigation expenses, including attorney fees, incurred “because of a condemnation

proceeding” if “[t]he condemnation proceeding is abandoned by the agency other

than under an agreed-upon settlement.” 49 C.F.R. § 24.107(b).

“policies” in § 4651. See id. (“[I]n imposing policies on the heads of federal and state agencies in §§ 4651 and 4655, [the Relocation Act] creates no individually enforceable rights.”); see also Osher v. City of St. Louis, 903 F.3d 698, 702 (8th Cir. 2018) (“[W]e conclude that Congress did not create a private cause of action to enforce the [Relocation] Act.”); Serna v. City of Colorado Springs, No. 24-1149, 2025 WL 471224, at *2 (10th Cir. Feb. 12, 2025) (“agree[ing],” in a nonbinding unpublished decision, “with other federal courts that ‘the [Relocation Act], in imposing policies on the heads of federal . . . agencies . . . , creates no individually enforceable rights” (quoting Clear Sky Car Wash, 743 F.3d at 444)). Indeed, but for the Administrative Procedure Act and the FAA’s provision of an administrative complaint procedure—discussed below in § I.D—Mr. Kunz could not vindicate alleged noncompliance by the City with the “policies” in § 4651. 6 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 7

B. The Kunz property, the FAA’s installation of an Instrument Landing System, and the FAA’s approval of an updated Airport Layout Plan

In 1999, Dick D. Kunz purchased twenty-one acres of vacant land immediately

adjacent to the extant Airport, which he later subdivided into four parcels. In 2001, a

residence was constructed on one of those parcels, Lot 1. Between 2005 and 2007, in

anticipation of the FAA’s installation of an Instrument Landing System (ILS)4 at the

Airport, the City made offers to purchase an avigation easement5 that would have

included Lot 1. These offers were “declined due to disagreement over the fair market

value of the easement.”6 AR at 558.

In June 2007, Dick D. Kunz deeded Lot 1 to Petitioner, Mr. Neil Kunz. In July

2007, pursuant to an authorization from the Salt Lake City Council, the City filed a

condemnation action in Utah state court for an avigation easement over a swath of

land that included Mr. Kunz’s parcel. In 2008, the FAA installed an ILS at the

4 An ILS “provides both vertical and lateral guidance information for pilots to allow safe landings to touchdown. The ILS sends information to instruments in the cockpit so that the pilot can maintain a predetermined flight path to the runway in low visibility.” Fed. Aviation Admin., GBN—Instrument Landing System (Dec. 4, 2023), https://www.faa.gov/about/office_org/headquarters_offices/ato/service_units/ techops/navservices/gbng/ils [https://perma.cc/KB8Z-FYBS]. 5 Black’s law dictionary defines “avigation[] easement” as “[a]n easement permitting unimpeded aircraft flights over the servient estate.” Easement, Black’s Law Dictionary (12th ed. 2024). 6 The City’s final offer was (1) $281,000 for an avigation easement over roughly half of the full tract, or (2) $1,835,000 for a fee simple purchase of the entire tract. 7 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 8

Airport, notwithstanding the absence of any easement on the land that was the subject

of the then-pending condemnation action.

In June 2010, the FAA approved an updated Airport Layout Plan (ALP)

submitted by the City, which reflected the installation of the ILS and which further

identified all adjacent parcels of land. The ALP contained a table identifying each

adjacent parcel’s owner, the City’s property interest in those parcels (if any), and the

purpose of the City’s acquisition of any such property interests. The table further

included a column titled “Agreement,” which contained the numbers used to identify

federal grant agreements that provided the City with funds to acquire property

interests in certain adjacent parcels. The Kunz parcel—identified as “Tract 11” and

inclusive of all four subdivided plots therein—was listed alongside a double asterisk,

which denoted properties that “have not been purchased by the airport.” Id. at 318. In

the column identifying the interest held by the City in each property, the Kunz tract

indicated that it was subject to a “possible avigation easement.” Id.

C. Utah state court litigation

In 2018, roughly eleven years after the City filed a condemnation action

against Mr. Kunz, the state district court granted Mr. Kunz’s7 motion for summary

judgment on grounds that the City had not followed Utah’s statutory process

requirements before initiating a condemnation action. Mr. Kunz raised this

7 Several other persons who possess property interests in the other three subdivided plots were also party to this state condemnation action. We refer only to Mr. Kunz because he instituted the FAA regulatory proceedings and brought this petition for review on his behalf only. 8 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 9

procedural defect “on the eve of trial” following the district court’s entry of an order

excluding Mr. Kunz’s “only designated appraisal expert” and the City’s consequent

motion for judgment as a matter of law. Id. at 86. The City resisted dismissal and

sought to amend its complaint to cure the procedural defects to no avail. While the

state court held the action could not proceed because the City had not strictly

complied with statutory notice requirements, it also held that the City had

established, for purposes of state eminent domain law, the necessity of acquiring

Mr. Kunz’s property, concluding it was “undisputed that [an] avigation

easement . . . was a condition for federal funding.” Id. at 69.

The state court further denied Mr. Kunz’s request for attorney fees and costs,

after which the City and Mr. Kunz took cross appeals. In October 2020, the Utah

Court of Appeals affirmed the state district court in full, concluding summary

judgment was proper because the City did not strictly comply with statutory process

requirements, and further that Mr. Kunz was not entitled to attorney fees and costs.

In March 2019, the City Council approved the pursuit of another

condemnation action for an avigation easement. Informal negotiations for an

easement or fee purchase of the property were unsuccessful because Mr. Kunz

believed the City’s offers improperly reflected appraisals rendered twelve years prior,

in 2007. To date, the City has not initiated a second condemnation proceeding

pursuant to this 2019 authorization.

However, in March 2020, while the cross-appeals in the condemnation action

were pending, Mr. Kunz initiated a new action in Utah state court against the City,

9 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 10

asserting claims for inverse condemnation, trespass, nuisance, and a claim asserting

breach of the federal grant agreements. The City sought dismissal of the trespass,

nuisance, and contract claims but not the inverse condemnation claim. The Utah state

court granted the City’s motion to dismiss three of the four claims. The parties agree

that there remains a live inverse condemnation claim against the City in Utah state

court regarding Mr. Kunz’s property. The FAA was not party to any Utah state court

proceeding.

D. Part 16 proceedings

In March 2021, Mr. Kunz turned to the FAA for resolution of his property

dispute, filing a so-called “Part 16” formal complaint. Part 16 proceedings enable any

“person directly and substantially affected by any alleged noncompliance” with an

FAA grant assurance to “file a complaint.” 14 C.F.R. § 16.23(a). A Part 16 complaint

must contain “the specific provisions” of a grant agreement8 “that the complainant

believes were violated.” 14 C.F.R. § 16.23(b)(1).

The scope of issues appropriately raised in Part 16 proceedings extends only to

alleged noncompliance with specifically enumerated federal statutes and grant

agreements. See AR at 565 (“[T]he FAA’s jurisdiction is specifically limited to

proceedings involving complaints against federally assisted airports arising under

8 Section 16.23 requires identification of “specific provisions of each Act” the complainant believes to be violated, but the regulations define “Act” “as a statute listed in § 16.1 and any regulation, agreement, or document of conveyance issued or made under that statute.” 14 C.F.R. § 16.3. Section 16.1, in turn, includes “[t]he assurances and other Federal obligations contained in grant-in-aid agreements issued under the Airport and Airway Improvement Act of 1982.” 14 C.F.R. § 16.1(a)(5). 10 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 11

legal authority outlined in the Part 16 regulations . . . .”). To enforce these regulatory

jurisdictional limits, the Part 16 regulations provide that a respondent may move to

dismiss a complaint that “appears on its face to be outside the jurisdiction of the

Administrator under the Acts listed in § 16.1.” 14 C.F.R. § 16.26(b)(1)(i).

Part 16 regulations assign adjudicative authority in the first instance to the

Director of the FAA Office of Airport Compliance or his designee (hereinafter, the

“Director”). See 14 C.F.R. § 16.3; 16.31(a). Any party “adversely affected by the

Director’s Determination may appeal the initial determination” to the Associate

Administrator for Airports or his designee (hereinafter, the “Administrator”). 14

C.F.R. § 16.31(c); see 14 C.F.R. § 16.3; 16.33.

Mr. Kunz’s Part 16 complaint asserted two violations of Grant Assurance

35/the Relocation Act. First, he alleged that the City’s failure to provide “just

compensation or [to obtain] any right to occupy [his] property” meant that the City

had violated the Relocation Act. AR at 7. Second, he alleged that the City’s failure to

“initiate new condemnation proceedings” following the City Council’s authorization

of the same meant that the City had “abandoned” condemnation and was therefore

required to pay his litigation expenses incurred in the previous condemnation

proceeding. Id.; see 49 C.F.R. § 24.107(b) (requiring reimbursement of litigation

expenses incurred “because of” a condemnation proceeding when the agency

“abandon[s]” such proceeding).

Thereafter, the City filed a combined motion to dismiss and motion for

summary judgment. The City sought summary judgment on Mr. Kunz’s claim for

11 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 12

breach of Grant Assurance 35 for failure to pay litigation expenses, arguing that the

City cannot be said to have “abandoned” a condemnation proceeding dismissed at

Mr. Kunz’s request and over the City’s objection. And the City asserted that it “has

no independent obligation to condemn an avigation easement” over Mr. Kunz’s land

in the first place. Id. at 132. Finally, the City sought dismissal of any other claims

arguably encompassed by Mr. Kunz’s Part 16 complaint on grounds that they “fall

outside the scope of the FAA’s jurisdiction under Part 16 [or] fail to state a claim for

relief on their face.” AR at 133.

Mr. Kunz opposed the City’s motion, asserting two overarching arguments.

With respect to the litigation-expenses claim, Mr. Kunz argued that the City’s failure

to initiate new condemnation proceedings “in over two years” since the City Council

approved such an action was sufficient to prove the City’s “abandonment” thereof.

Id. at 179–80. And Mr. Kunz again argued the City was required to obtain an

avigation easement over his land, though he pointed to no federal legal authority for

this proposition. Instead, Mr. Kunz urged that the City was obliged to acquire an

interest in his property because of positions taken by the City, and judicial findings

made, in the original Utah state court condemnation proceeding. Specifically,

Mr. Kunz asserted that the City’s obligation to condemn an avigation easement was

created by its state court pleadings that represented as statements of material fact that

“[t]he City has determined that acquiring the Avigation Easement over the Subject

Property is necessary,” and “[t]he City needs to acquire the Avigation Easement.” Id.

at 181 (emphases omitted). Mr. Kunz made plain that the City’s supposed obligation

12 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 13

to condemn an easement arises from these statements: “Per the [City’s] statement of

material facts to the Third District Court (state court) they are required to acquire the

Avigation Easement for the operation of the Airport Project.” Id. (emphasis omitted).

In March 2022, the Director issued his initial determination, concluding that

“the City is not currently in violation of the [Relocation Act] related provisions of

Grant Assurance 35.” Id. at 349. The Director framed two issues for resolution:

(1) “Whether the [City] is in violation of Grant Assurance 35 . . . by failing to

purchase [Mr. Kunz’s] property or an avigation easement over the property,” id. at

353, and (2) “[w]hether the [City] is in violation of Grant Assurance 35 . . . by failing

to pay litigation expenses related to its failed condemnation action,” id. at 355.

With respect to the first issue, the Director found “that Grant Assurance 35

does not apply in this case” because (1) “Mr. Kunz’s property lies outside of the RPZ

[Runway Protection Zone],” and (2) “[t]he FAA has not issued an AIP grant for the

acquisition of this property.” Id. at 354. The Director further reasoned that the City’s

statements “during court proceedings that the avigation easement was required for the

ILS installation” were of no moment because “the ILS was subsequently installed in

2008 without an avi[g]ation easement,” illustrating that the City’s “failure to

purchase the property or an easement did not prevent ILS installation.” Id. Because

the FAA had imposed no obligation on the City to acquire an interest in Mr. Kunz’s

land, the Director found that “the City is currently in compliance with its Grant

Assurance 35 obligations.” Id.

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With respect to the second issue—whether the City was noncompliant with

Grant Assurance 35 by failing to pay Mr. Kunz’s litigation expenses from the failed

condemnation proceeding—the Director observed that “Mr. Kunz seems to allege

that until the City is successful in its case to acquire an easement or purchase the

[land], the City must continue to negotiate and thus pay or reimburse property owners

for necessary expenses.” Id. at 356. The Director flatly rejected this argument,

explaining that “[t]here is no support for the idea that any FAA grant assurance

requires the City to continue to litigate the purchase of property until they are

successful.” Id. Rather, the Director explained, “Grant Assurance 35 and the

[Relocation Act] apply only to situations in which the property is acquired with

Federal funds.” Id. (citing FAA regulatory precedent). Because Grant Assurance 35

was not implicated, the Director explained:

It is outside [the] FAA’s jurisdiction [to] address the legal fees for the failed condemnation action in this case. The Part 16 process is not intended to address state law legal claims. The grant assurances do not compel the City to acquire property interests from the Complainant nor specify the terms of such acquisition if so pursued. Id.

Mr. Kunz timely appealed the Director’s determination to the Administrator.

In addition to reiterating and expanding upon his arguments to the Director—chiefly

that Grant Assurance 35 applies because of statements and findings made by the City

and Utah state courts, respectively—Mr. Kunz also raised possible violations of

Grant Assurances 20 and 21 (governing Hazard Removal and Mitigation and

Compatible Land Use, respectively). In support, Mr. Kunz appended the FAA’s

14 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 15

preliminary findings in two “obstacle identification studies”—undertaken at

Mr. Kunz’s request—relating to a proposed seventy-five-foot flagpole and an

existing tree on certain of the four subdivided Kunz lots. Id. at 373. Mr. Kunz seemed

to assert that the FAA’s preliminary conclusions in those reports that the proposed

flagpole and extant tree posed a hazard to air navigation necessarily meant the City

was required to condemn an easement over those properties to comply with Grant

Assurances 20 and 21. Because the obstacle identification studies were not presented

to the Director, Mr. Kunz submitted a Petition for Consideration of New Evidence

within his appeal to the Administrator.

The City both defended the Director’s determination and opposed Mr. Kunz’s

attempt to raise violations of Grant Assurances 20 and 21 on grounds that those new

theories were “supported only” by the obstacle identification studies improperly

presented for the first time on appeal. Id. at 447. The City further urged that

Mr. Kunz was without standing to raise violations of Grant Assurances 20 and 21

because the obstacle identification studies implicated other of the subdivided Kunz

parcels, not Mr. Kunz’s land. Finally, the City argued that it was compliant with

Grant Assurances 20 and 21 on the merits.

In November 2022, the Administrator issued its Final Agency Decision. As a

“preliminary matter,” the Administrator found that Mr. Kunz had not established

good cause for his failure to raise the obstacle identification studies before the

Director because “Kunz and the City have been contesting this issue for several years

in state courts” and Mr. Kunz himself asked the FAA to conduct both studies in 2021.

15 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 16

Id. at 559–60. The Administrator further found that Mr. Kunz did “not substantiate

that he is the property owner” of the location of the proposed and existing obstacles.

Id. The Administrator thus denied his petition to admit the studies into evidence.

The Administrator affirmed the Director’s central conclusion regarding the

City’s obligation to acquire property interests in Mr. Kunz’s land, reasoning that the

FAA had not required the City to do so as evidenced by the FAA’s installation of the

ILS in 2008 and approval of the updated ALP in 2010. Because the updated ALP

“does not state that Kunz property must be purchased for airport purposes as part of

any existing or proposed project,” and further because his property was not acquired

with AIP funds, the Administrator agreed with the Director and the City that Grant

Assurance 35 was not implicated. Id. at 562. The Administrator also rejected

Mr. Kunz’s reliance on the state court litigation, because (1) the FAA’s resolution of

alleged violations of grant assurances is not “dependent on the outcome of . . . state

court action,” and (2) Mr. Kunz’s argument sounded in constitutional takings law,

and “Part 16 is not the appropriate forum for alleged violations of constitutional

law.” Id. at 565.

With respect to Mr. Kunz’s claim of noncompliance for the City’s failure to

pay litigation expenses, the Administrator reiterated that Grant Assurance 35—and

the Relocation Act incorporated therein—does not apply because the “ALP provides

that the Kunz parcel does not have to be purchased for airport purposes as part of any

proposed project,” and thus it is “outside of the FAA’s jurisdiction [to] address the

legal fees for the condemnation action in this case.” Id. at 564.

16 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 17

This timely petition for review followed.

II. DISCUSSION

Our review of Mr. Kunz’s petition is governed by the Administrative

Procedure Act (the APA), 5 U.S.C. § 701 et seq. Under the APA, the FAA’s factual

determinations must be upheld if supported by “substantial evidence,” 5 U.S.C.

§ 706(2)(E), and its legal conclusions must be affirmed so long as they are not

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law,” id. at § 706(2)(A). See Arapahoe Cnty. Pub. Airport Authority v. FAA, 242 F.3d

1213, 1218 & n.5 (10th Cir. 2001).

Substantial evidence “is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Fabrizius v. Dep’t of Agriculture, 129

F.4th 1226, 1237 (10th Cir. 2025) (quotation marks omitted). “The substantial

evidence standard does not allow us to displace the agency’s choice between two

fairly conflicting views, even though [we] would justifiably have made a different

choice had the matter been before [us] de novo.” Id. (alterations in original and

quotation marks omitted).

“Arbitrary and capricious review by this court is narrow.” Blanca Tel. Co. v.

FCC, 991 F.3d 1097, 1110 (10th Cir. 2021). “We will not set aside the agency’s

action if it is rational, based on consideration of the relevant factors and within the

scope of the authority delegated to the agency by statute.” Id. (internal quotation

marks omitted). “We must uphold the agency’s decision as long as the agency’s path

may reasonably be discerned.” Id. (internal quotation marks omitted).

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Mr. Kunz petitions for review of two determinations made by the

Administrator: (1) that the City did not violate Grant Assurance 35 by declining to

acquire an interest in Mr. Kunz’s property, and (2) that the City did not violate Grant

Assurance 35 by failing to reimburse Mr. Kunz for expenses incurred in the original

Utah state court condemnation proceeding. As explained below, Mr. Kunz has not

shown that either determination was arbitrary and capricious or unsupported by

substantial evidence.

A. Whether the Administrator erred by concluding the City had no obligation to acquire an interest in Mr. Kunz’s property

At the outset, Mr. Kunz submits that the Administrator’s reliance on the

FAA’s approval of the 2010 ALP to conclude that the City had no obligation to

acquire an interest in his property was arbitrary and capricious. Specifically, he

asserts that the ALP approval is of no significance to the necessity of acquisition

under the grant assurances because the ALP does not prescribe “the totality of all

obligations relating to the project.” Pet’r’s Reply Br. at 3. It is surely true that the

ALP does not encompass all of the City’s obligations under the grant assurances; for

example, the ALP approval scheme could not possibly determine whether the City is

complying with the grant assurances’ nondiscrimination provisions. But we cannot

see how that fact renders the Administrator’s reliance on the ALP approval arbitrary

and capricious.

Recall that Grant Assurance 29 imposes on airport sponsors an obligation to

create and maintain an ALP. See AR at 332 (directing airport sponsors to “keep up to

18 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 19

date at all times an airport layout plan of the airport” conforming to specified

requirements). But the assurance does not mandate a map for the sake of a map: the

apparent conceit of Grant Assurance 29 is to permit the FAA to monitor and approve

or disapprove of a sponsor’s plans for the operation of an airport, in turn ensuring

that an airport operates safely. First, the assurance requires the FAA to “approv[e]”

an ALP and any “amendment, revision, or modification thereof” as “evidenced by the

signature of a duly authorized representative of the Secretary [of Transportation] on

the face of the airport layout plan.” Id. The assurance then bars the sponsor from

“mak[ing] or permit[ting] any changes or alterations in the airport or any of its

facilities which are not in conformity with the [ALP].” Id. at 332–33. Finally, the

assurance provides enforcement mechanisms the FAA may take against sponsors who

make changes or alterations that “adversely affect[] the safety, utility, or efficiency of

any federally owned, leased, or funded property on or off the airport [] which [are]

not in conformity with the [ALP] as approved by the Secretary.” Id. at 333.

Given this scheme, the FAA’s approval of the ALP was appropriately regarded

by the Administrator as highly relevant to whether any Airport projects required the

City to acquire an interest in Mr. Kunz’s property. See U.S. Dep’t of Transp. FAA,

Advisory Circular 150/55070-6B, Change 2 to Airport Master Plans, at 8 (Jan. 27,

2015),

https://www.faa.gov/airports/resources/advisory_circulars/index.cfm/go/document.cu

rrent/documentnumber/150_5070-6 [https://perma.cc/QZ7A-ZP7N] (“FAA approval

of the ALP indicates that the existing facilities and proposed development depicted

19 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 20

on the ALP conforms to the FAA airport design standards . . . . [and] also indicates

that the FAA finds the proposed development to be safe and efficient.”). If the FAA,

upon review of the 2010 ALP reflecting the status quo at the Airport, thought that

Mr. Kunz’s unencumbered property posed a risk to “the safety, utility, or efficiency”

of the Airport, it was empowered to reject the ALP and require the City to acquire a

property interest. Id. The FAA’s approval of the City’s ALP is thus good evidence

that acquisition of Mr. Kunz’s property was not required, and Mr. Kunz has not

established any error in the Administrator’s reliance on that approval.9

Having rejected Mr. Kunz’s argument related to the ALP approval, we next

turn to his contention that the Administrator erred by rebuffing his theories that the

City was obliged to acquire an interest in his property under Grant Assurances 20, 21,

and 35, and by the Utah state court litigation.10 We address each theory below.

9 FAA guidance further bolsters the conclusion that acquisition of Mr. Kunz’s property was simply not required for operation of the Airport. In an advisory circular containing “standards and requirements for airport land acquisition . . . in conformance with” the Relocation Act, the FAA advises that a “sponsor must acquire real property rights of such nature and extent that are adequate for the construction, operation, and maintenance of the grant-assisted project,” which generally requires a sponsor to acquire fee title to, or an easement over, “all land within the airport boundaries and for the runway protection zone.” U.S. Dep’t of Transp. FAA, Advisory Circular 150/5100-17, Land Acquisition and Relocation Assistance for Airport Improvement Program (AIP) Assisted Projects, at 1, 1-9 (July 10, 2017), https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC-150-5100-17- Change-7-Land-Acquisition.pdf [https://perma.cc/BVP8-HUTK]. Mr. Kunz’s property is clearly outside of the Airport boundaries, and Mr. Kunz now concedes that his property “lies outside of the Runway Protection Zone[].” Pet’r’s Br. at 8. 10 Mr. Kunz separately urges that the City’s operation of the Airport has resulted in a “taking” of his property for which he is owed compensation under the United States Constitution. Pet’r’s Br. at 19–20. Despite Mr. Kunz’s repeated 20 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 21

1. Grant Assurances 20 and 21

Mr. Kunz first argues the Administrator erred by “limit[ing] review of the

issues exclusively under Grant Assurance 35” when he “cited Grant Assurances 20,

21, and 35” in his appeal. Pet’r’s Br. at 16.

When he initiated his Part 16 complaint, Mr. Kunz alleged that the City’s

obligation to acquire an interest in his property arose from the City’s requirement to

comply with the Relocation Act. See AR at 5–6 (citing only the Relocation Act and

related regulations). After the Director rejected this contention, Mr. Kunz’s appeal to

the Administrator sought to situate the City’s obligation as additionally arising under

Grant Assurances 20 and 21. The Administrator denied Mr. Kunz’s petition to admit

new evidence on appeal, and thus declined to address the City’s compliance with

Grant Assurance 20, which requires the City to take appropriate action to remove or

mitigate airspace hazards. Id. at 328. Mr. Kunz’s petition makes no argument that the

Administrator’s procedural ruling was error, and so we affirm the Administrator’s

decision to ignore Mr. Kunz’s belatedly raised argument based on Grant Assurance

20.

attempts to pursue a takings claim in these regulatory proceedings, the Administrator gave effect to the clear jurisdictional scope of Part 16 to decline to review such a claim. See AR at 565 (“Part 16 is not the appropriate forum for alleged violations of constitutional law.”). Mr. Kunz does not assert that this regulatory jurisdictional determination was error, so we do not discuss his constitutional argument further, except to observe that the Administrator’s determination has in no way foreclosed his ability to vindicate a takings claim in a proper forum—indeed, Mr. Kunz is actively litigating such a claim against the City in Utah state court.

21 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 22

But the Administrator in fact reviewed and rejected Mr. Kunz’s argument that

the City was obliged by Grant Assurance 21 to acquire an interest in his property.

That assurance requires the City to “take appropriate action, to the extent reasonable,

including the adoption of zoning laws, to restrict the use of land adjacent to or in the

immediate vicinity of the airport to activities and purposes compatible with normal

airport operations, including landing and takeoff of aircraft.” Id. As the modifiers

“appropriate” and “reasonable” imply, an airport sponsor can comply with Grant

Assurance 21 by undertaking a range of context-specific “actions,” and as the

Administrator explained, “[t]he FAA does not dictate what the sponsor needs to do to

promote compatible land use, such as purchasing property or air avigation

easements.” Id. at 563. This is especially true where, as here, a sponsor “does not

have the authority to enact zoning ordinances” burdening the land adjacent to an

airport. Id. FAA guidance directs that in such circumstances, a sponsor complies with

Grant Assurance 21 by “demonstrat[ing] a reasonable attempt to inform surrounding

municipalities on the need for land use compatibility zoning,” which can be

“accomplish[ed] through the dissemination of information, education, or ongoing

communications with surrounding municipalities.” Id.

In his petition, Mr. Kunz argues the City is noncompliant with Grant

Assurance 21 because its efforts to promote land use compatibility zoning have been

“unsuccessful.” Pet’r’s Br. at 17. “The repeated denial [of zoning changes] and the

lack of pending ordinance changes,” Mr. Kunz argues, “demonstrate the futility of

the City’s efforts.” Id. at 18. But as explained, nothing in Grant Assurance 21 or its

22 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 23

interpretive guidance requires the City to be “successful” in its efforts to persuade

other municipalities to enact zoning changes. And Mr. Kunz does not assert that the

above standard—as set forth and applied by the Administrator—is wrong. Thus,

Mr. Kunz’s insistence that the absence of any zoning changes establishes the City’s

noncompliance with Grant Assurance 21 is nonresponsive to the Administrator’s

rationale. We thus affirm the Administrator’s conclusion that the City is compliant

with Grant Assurance 21.

2. Grant Assurance 35

Next, Mr. Kunz urges that the Administrator erred by concluding that Grant

Assurance 35 did not require the City to purchase an interest in his property.

Like his regulatory submissions, Mr. Kunz’s petition identifies no portion of

the Relocation Act or related regulations that even arguably imposes an obligation on

the City to acquire an interest in his property, and our review of those laws and rules

confirms that they are unconcerned with whether an agency decides to acquire real

property. To the contrary, the Act and regulations promulgated thereunder merely set

forth “policies” to “guide[]” the means by which an agency engages in land

acquisition; as such, the provisions of the Relocation Act uniformly envision that an

agency has already concluded that an acquisition is necessary for a federal project.

See 42 U.S.C. § 4655 (requiring assurances from grant recipients that “in acquiring

real property it will be guided, to the greatest extent practicable under State law, by

the land acquisition policies in section 4651 of this title and the provisions of section

4652 of this title” (emphasis added)); 49 C.F.R. § 24.1 (stating that the “purpose of

23 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 24

this part [i.e., Part 24] is to promulgate rules to implement the” Relocation Act with

the “objective[]” to, among other things, “ensure that owners of real property to be

acquired for Federal and federally assisted projects are treated fairly and

consistently” (emphasis added)); 49 C.F.R. § 24.2 (defining “Agency” as “any entity

utilizing Federal funds or Federal financial assistance for a project or program that

acquires real property” (emphasis added)); see also Reg’l Transp. Dist. v. Outdoor

Sys., Inc., 34 P.3d 408, 417 (Colo. 2001) (“The phrasing of [49 C.F.R. § 24101]

implies that it covers situations where an agency identifies a parcel of land needed

for a particular project and then sets out to obtain it.”). FAA guidance regarding a

sponsor’s obligations under the Relocation Act further confirms that the Act is

unconcerned with the antecedent question of whether real property must be

acquired—that the Act is triggered only when real property acquisition is required

for a particular project. See FAA Order 5100.37B, Land Acquisition and Relocation

Assistance for Airport Projects, at 9 (Aug. 1, 2005),

https://www.faa.gov/documentLibrary/media/Order/environmental_5100_37b.pdf

[https://perma.cc/PKM4-26RR] (explaining that the Relocation Act “applies to any

Federal project or program that requires real property acquisition” (emphasis

added)); U.S. Dep’t of Transp. FAA, Advisory Circular 150/5100-17, Land

Acquisition and Relocation Assistance for Airport Improvement Program (AIP)

Assisted Projects, at 1-6 (July 10, 2017),

https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC-150-5100-17-

Change-7-Land-Acquisition.pdf [https://perma.cc/BVP8-HUTK] (same).

24 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 25

In short, Mr. Kunz has not identified any portion of Grant Assurance 35, the

Relocation Act to which it refers, or related regulations that compel the City to

acquire an interest in his property.

3. The state court litigation

Finally, Mr. Kunz asserts the City’s obligation to acquire an interest in his

property flows from the Utah state court’s conclusion that the City had satisfied its

state law obligation to show that acquisition of his property was necessary, which

showing turned on the City’s representation that federal grant monies were

conditioned on the City’s acquisition of an easement over his land.

Mr. Kunz does not suggest that the FAA was required to give preclusive effect

to the state court findings in the Part 16 regulatory proceedings. Rather, Mr. Kunz

faults the Administrator for failing to give “the state court’s decision significant

weight.” Pet’r’s Reply Br. at 12. But Mr. Kunz provides no authority for the

proposition that the Administrator was required to give the state court litigation

“significant weight,” and we can find none. To the contrary, our precedent has

squarely rejected any suggestion that the FAA’s discretion to interpret and apply

federal grant assurances can be impinged by state court litigation to which the FAA is

a stranger. In Arapahoe County Public Airport Authority, we held that a Colorado

Supreme Court decision implicating federal grant assurances had “no bearing on the

FAA decision before us” because a contrary rule would “frustrate the FAA’s ability

to discharge its statutory duty to interpret and implement federal aviation statutes

governing the enforcement of grant assurances.” 242 F.3d at 1221. If the FAA were

25 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 26

required to give effect to state court decisions regarding these statutes and

assurances, it would “lead to inconsistent enforcement of the federally mandated

assurances, potentially jeopardizing the efficiency and equality of access to our

Nation’s air transportation system.” Id.

But even if Mr. Kunz had established that the Administrator was required to

give “significant weight” to state court findings, we cannot see how the

Administrator erred by concluding that those findings were wrong as a matter of

federal law. Specifically, the Utah state court found only that it was “undisputed”—

as between Mr. Kunz and the City in litigation arising under state law—“that [an]

avigation easement with the 34:1 slope was a condition of federal funding.” AR

at 69. This did not bar the Administrator from construing federal law to reach a

contrary conclusion. Indeed, the City’s representation, and the state court’s

acceptance thereof, was itself premised on a fundamental factual error regarding the

Airport’s technical specifications. As the Administrator explained, the Airport’s

runways require only a 20:1 landing slope, which allows for a higher aircraft

approach than a 34:1 slope. We can see no reason why the Administrator was

required, when assessing the City’s compliance with its federal grant obligations, to

give “significant weight” to a state court’s mere recitation of an undisputed fact that

was both legally and factually wrong insofar as federal law is concerned.11

11 The same must be said of the state court’s order permitting the City “to occupy [Mr. Kunz’s] airspace”—that is, to permit “aircraft [to] fl[y] over [Mr. Kunz’s] property”—during the pendency of the original condemnation action. AR at 86, 153. Mr. Kunz does not explain, and neither can we see, how relief granted 26 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 27

In sum, Mr. Kunz identifies nothing in the grant assurances or the federal laws

they embody that compels the City to acquire an interest in his property. At bottom,

while Mr. Kunz may well obtain just compensation in an appropriate forum under

laws that are outside the Part 16 purview, the federal grant assurances simply do not

create the kind of obligations he attempts to imbue them with.

B. Relocation Act-related request for litigation expenses

Our conclusion that Mr. Kunz can find no legal source—at least not one that is

vindicable in these proceedings—for the City’s obligation to acquire an interest in his

property does not end the matter because Mr. Kunz maintains that the City’s failure

to reimburse him for litigation expenses incurred in the failed condemnation

proceeding is an independent violation of Grant Assurance 35 and the Relocation Act

embodied therein. See 49 C.F.R. § 24.107(b) (requiring that “[t]he owner of the real

property shall be reimbursed for any reasonable expenses, including reasonable

attorney, appraisal, and engineering fees, which the owner actually incurred because

of a condemnation proceeding, if . . . [t]he condemnation proceeding is abandoned by

the agency other than under an agreed-upon settlement”).

The Administrator concluded that because Mr. Kunz’s property “does not have

to be purchased for airport purposes as part of any proposed project,” the grant

assurances do not compel the City to reimburse Mr. Kunz’s litigation expenses. AR

at 564. We can discern nothing arbitrary and capricious in that conclusion. Indeed,

by a state court in state law condemnation proceedings could enlarge federal obligations imposed by the grant assurances. 27 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 28

the Administrator’s view is more consonant with the relevant provision of the

Relocation Act itself, which requires reimbursement only in the context of

“proceeding[s] instituted by a Federal agency to acquire real property by

condemnation.” 42 U.S.C. § 4654(a) (emphasis added). The City is not a “Federal

agency” as defined by the Relocation Act. See 42 U.S.C. § 4601(1) (defining

“Federal agency” as “any department, agency, or instrumentality in the executive

branch of the government”). While the reimbursement requirements could be

implicated when a federal agency requires a municipality to acquire real property, we

cannot see how they could reach a municipality’s voluntary efforts to do the same.

See 42 U.S.C. § 4628 (“Whenever real property is acquired by a State agency at the

request of a Federal agency for a Federal program or project, such acquisition shall,

for the purposes of th[e] [Relocation Act], be deemed an acquisition by the Federal

agency having authority over such program or project.” (emphasis added)); 42 U.S.C.

§ 4601(3) (defining “State agency” to include “a political subdivision of a State”).

But the FAA neither required nor even urged the City to acquire an interest in

Mr. Kunz’s property. To the contrary, the FAA installed the ILS even though the City

had no enforceable interest in the property and subsequently approved an ALP that

both reflected that installation and made clear that Mr. Kunz’s property was entirely

unencumbered.12

12 Even if Mr. Kunz could establish error in the Administrator’s rejection of his reimbursement theory, he does not explain how the City can be said to have “abandon[ed]” the condemnation proceedings, which were dismissed on Mr. Kunz’s motion and over the City’s objection and attempt to correct procedural deficiencies. 28 Appellate Case: 22-9583 Document: 65-1 Date Filed: 05/20/2025 Page: 29

At bottom, Mr. Kunz has not shown that the Administrator’s reimbursement

conclusion was arbitrary and capricious, and we thus affirm the Administrator’s

determination that the City did not violate Grant Assurance 35 by declining to

reimburse Mr. Kunz for litigation expenses incurred in the original condemnation

action.

III. CONCLUSION

For the reasons articulated, Mr. Kunz has not established error in the FAA’s

resolution of his administrative complaint. We AFFIRM the FAA’s Final Agency

Decision.

Entered for the Court

Carolyn B. McHugh Circuit Judge

See United States v. 4.18 Acres of Land, More or Less, in Idaho Cnty., 542 F.2d 786, 789 (9th Cir. 1976) (reasoning that the government could not be said to have “abandoned” a condemnation proceeding dismissed “over the government’s opposition on motion by the landowner” and in the face of the government’s requests “to amend the complaint to reflect the correction of the procedural error”). 29