background image
Page 137
A History of Austin's Newest General Aviation Airport
W. H
Chapter 7
2008, less than a month later, the FAA made
its final determination regarding Bird's Nest
Airport's Form 7480-1 Notice of Landing Area
Proposal, in which the agency said some of
LCRA's structures would be objectionable
from an airspace utilization standpoint and in-
dicated acceptable tower height could be no
more than 100 feet above ground level.
So, in December the FAA approved towers
122 feet tall. In January the approval height
shrunk to 100 feet. Both couldn't be right and
LCRA planned to make hay from the mistake.
The reason for the mix-up, if I understand
all the machinations correctly, was that the
earlier aeronautical studies did not take into
account Bird's Nest's proposed new runway
13-31, even though we had filed the required
Notice of Landing Area Proposal back in No-
vember 2007, and FAA regulations stipulated
that once filed, all future determinations must
take into account the proposed new runway.
From LCRA's point of view, why it had hap-
pened was less important than making the
earlier determination stick.
Kay and Frank and I quickly scrambled
to contact Ben Guttery with the FAA, who it
turned out was well aware of the goof and was
in the process of setting the record straight.
Turns out it takes longer than you'd think to
verify the correct height of a single tower.
Thirty days later--coincidently, as LCRA was
in the process of constructing its towers along
the Gilleland Creek to McNeil upgrade based
on the earlier erroneous determination--ev-
eryone agreed any tower over 100 feet was
trouble. The problem was that nobody both-
ered to tell the gang at LCRA, who naturally
went several shades of red when, in May, my
sagacious attorney Kay Trostle filed a brief in
the case that included an internal FAA e-mail
exchange between Ben Guttery and several
managers and staff. The gist of the back and
forth was that yes, we, the FAA, got it wrong
the first go-round, but we're not wrong now.
After checking and double checking and tri-
ple checking, the correct maximum height
for transmission towers in and around Bird's
Nest Airport was about 100 feet. Anything
taller and something had to give.
The brief and accompanying e-mail ex-
change was a clever bit of lawyering.
Kay submitted the e-mail chain as a "late-
filed exhibit." In truth, she didn't think the
judges would admit the e-mail, which wasn't
her goal anyway. Her strategy was to get the
judges to read the e-mail and, once read, it
was hard to ignore. The facts noted in the e-
mail were presented in the starkest possible
terms--that plans for a precision instrument
approach to new runway 13-31 were on file
and that the correct "no effect" height was
100 feet above ground level--and left little
room for legal waffling.
After she filed the brief and e-mail exhibit,
LCRA's legal team went apoplectic, claiming,
somewhat weakly, that they had already in-
stalled the structures for the Gilleland Creek
to McNeil upgrade at the height approved by
the FAA late in 2007. The Pollard/Ohlendorf
group was quietly enraged. None of it came
as a surprise.