A U.S. District Court judge has dismissed Boulder’s lawsuit against the Federal Aviation Administration, which challenged the agency’s position that the city must keep its airport open indefinitely as a condition of federal funding accepted decades ago.
The case was dismissed largely on procedural grounds, without addressing the central legal questions, leaving the airport’s long-term fate in limbo.
City officials have said the lawsuit was not an attempt to close the airport but to clarify whether closure is legally possible. In a statement, city spokeswoman Sarah Huntley said Boulder is reviewing the ruling and weighing its options.
The dispute has been a flashpoint in a broader debate over the airport’s future. Located in northeast Boulder, the facility primarily serves private pilots, flight trainees, gliders and researchers. Opponents of the airport want to repurpose the land for housing, while supporters argue it provides important services and should remain open.
In 2024, residents launched a ballot measure campaign to close the facility and use the land for affordable housing, but withdrew the proposal while the lawsuit played out. As calls to close the airport grew, a counter-effort to preserve it gained momentum as well, with backers warning that shutting it down could trigger a costly legal battle with the FAA.
The city’s lawsuit, filed July 26, 2024, sought a court ruling allowing Boulder to close the airport by 2040. At issue is whether federal grants accepted decades ago bind the city to keep the airport open permanently.
The city said it accepted two FAA grants for land purchases in 1959 and 1977, both of which stipulated a maximum 20-year obligation. The city argued that the other grants it received for easements, most recently in 1991, do not require the city to keep the airport running in perpetuity. However, the FAA argued a 1991 grant for about $650,000 to acquire an easement for a project related to realigning a taxiway obligated the city to keep the airport open unless the agency approves its closure.
In a Sept. 15 ruling, U.S. District Judge Nina Y. Wang dismissed one of Boulder’s claims for lack of jurisdiction, indicating the court had no authority to decide the issue. Wang also rejected the city’s constitutional claims, ruling Boulder lacked standing because any harm would not occur until “years in the future.” City officials have said that Boulder’s most recent FAA grant, accepted in May 2020, came with a 20-year obligation, meaning the airport could potentially close in 2040.
The claims were dismissed without prejudice, meaning it was not a judgment on their merits.
The case also has financial implications. Boulder has stopped accepting federal airport grants while the legal fight plays out, a decision that could leave the facility facing a budget shortfall as soon as next year, according to city budget records. During a Sept. 8 candidate forum, Councilmember Matt Benjamin called the lawsuit “frivolous” and urged Boulder to resume accepting federal funding.
“What we do need to do is take that money and let that airport start generating money,” Benjamin said in response to a question about the city’s budget challenges.
Laura Kaplan, a Planning Board member and organizer with the 2024 Airport Neighborhood Campaign ballot committee that sought to close the airport, said the city should continue pursuing legal options now or in the future and avoid accepting new grants that extend obligations beyond 2040.
“Litigation is often a winding road. This ruling on a technicality, without prejudice, is just the current twist,” Kaplan told Boulder Reporting Lab in an email. “The key legal issues remain unresolved. Clearly there are strong reasons why the city should seek to retain self-determination over the future and management of our city-owned land.”
Save the Airport.
How much money did we spend on this litigation? Who advised the council that a federal court would actually consider the merits of Boulder’s claim at this point in time? Matt Benjamin’s characterization of the lawsuit as frivolous is correct.
The Boulder airport supports ‘maybe’ 2 student pilot companies and about five Boulder-based hobby pilots. It costs the city $100ks/year to maintain. Some of the planes literally spew LEAD gasoline fumes – at low altitude – over neighborhoods with 100s of children. The planes buzz a town and neighborhoods that are only getting more populated and dense. The dollars and maintenance pull on city resources that is struggling to make budget. The land itself is literally owned by the city and can actually be put to other, community-based, business/tax-generating use, BUT the federal DC bureaucrats – 1,000s of miles away – is reaching in to Boulder to prevent its citizens to reconsider the use of its land while expressing no critical need to keeping it open. It’s not frivolous. Boulder deserves to control its land. The people of Boulder can then can decide for themselves.
How do you feel about voters deciding on a Vacancy Tax then? As I’m genuinly curious of consistent in belief for letting Democracy decide. As we also deserve to know whether someone on here is actually a vested local resident or instead an astroturf advocate pushing a narrative behalf of others..
Against it. If the city is worried about second homes, there are other positive tactics to bolster full time residents rather than making empty homes punitive.
I’m a city resident.
Jake,
You didn’t answer the question. At what cost are we pursuing this?
Hi Steve,
The cost of a federal government control of land owned by the citizens of Boulder? I think that’s worth a court’s consideration. Again, I personally believe locally owned land should be determined by the locals (citizens of Boulder), not DC. The actual dollar cost for the litigation? Don’t know the numbers, but on its face it seems testing the federal/local obligations is/was worth putting it thru the courts. Case in point: the decision was based on procedural grounds rather than merits of the case. We’ll see where it goes next.
“Neighborhoods that are only getting more populated and dense,” how would the construction of new subdivisions help with this problem you have identified?
Hi Jeff,
This comment was in reference to the communities that have built up in recent decades within the airport’s flight patterns. Not a discussion of Boulder density (another issue!). As I hear from friends and a relative, they are seeing a really dramatic uptick in very low-flying planes, exceeding noise, landing and take-offs being practiced over and over. But the city has no power or say over any of the airport issues because of federal/FAA control from a small grant made 34 years ago? I think that’s wrong. Our city and its citizens should be able to control its own land. If the feds owned the land, got nothing to say. BRL reporters covering the airport could probably share more.
Jake
You mention that the City has allowed neighborhoods to be built up in the vicinity of the airport. Did you know that the City has had, and still has, an obligation to ensure that those developments are compatible with airport activities?
Here is the legal obligation that the city has agreed to when they took FAA Funding over the past 50 years:
FAA Grant Assurance #21 – Compatible Land Use.
It [The City] 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. In addition, if the project is for noise compatibility program implementation, it will not cause or permit any change in land use, within its jurisdiction, that will reduce its compatibility, with respect to the airport, of the noise compatibility program measures upon which Federal funds have been expended.
Grant Assurances to the State of Colorado have similar language. Note that the development is required to be compatible with airport activities, not the other way around.
Seems you and I might agree that the City hasn’t lived up to this obligation to ensure that development in and around the airport is compatible with the airport activity. What that means is those residents considering buying properties in the vicinity of airport activity should have been, or should be in the future properly informed that they will be impacted by that activity. Presumably they would then make an informed decision about whether or not they want to accept that outcome. There is nothing that can be done after the fact to make someone happy when they made a bad decision about where to live.
Instead, the results speak for themselves, and we now have lots of development in and around the airport (soon to include 4500 residential units in the East Boulder Sub-community) with residents that seem to be, or will be surprised by the fact that their lives are impacted by airport activity. Were they informed by the City through proper zoning overlays? No Did the City require Avigation Easements? Not comprehensively. Did developers disclose this issue? No. Were they informed by their realtors? No. The City has not done its job with regards to this Grant Assurance Obligation.
By the way, nobody in Washington DC forced the City to agree to these Grant Assurances. That decision was made voluntarily right here locally at Boulder City Hall and no doubt involved our elected Council, the City Manager, and the City Attorneys. If that isn’t a demonstration of local control, I don’t know what is. Nobody in DC is forcing the City to do anything that it hasn’t already agreed to do.
Regarding the number of operations at Boulder Airport, we are not seeing a “dramatic uptick” in operations. Yes, there has been an uptick since a low in 2014, but we are at about 50% of the historic highs for operations at the airport. It was a lot busier back in the 1970’s through the 1990’s.
The rest of your original post is so full of inaccuracies that I can’t address them all here. You really need to do more homework before you post stuff that that is demonstrably inaccurate.
This result isn’t surprising to me at all–the lawsuit was always a Hail Mary b/c the city’s attorneys used a creative, but tenuous, strategy designed to sidestep the clear language of the law and the contractual arrangements with the FAA. I base my conclusion only on my reading of the Complaint and the court’s dismissal ruling and my experience as a lawyer practicing for almost 38 years.
Thank you for publishing the budgeted deficits in the airport fund, which are important considering the current reported budget woes. To put a finer bead on it, I’d like to see the numbers since the city quit accepting the FAA subsidies and what the numbers would look like if the city re-starting accepting the FAA money. The airport fund budget is also a bit misleading b/c it doesn’t have have a line item for the litigation cost. The cost would make the deficit bigger.
It was helpful that you mentioned Matt Benjamin’s questioning the City’s current approach on the airport. With this year’s election, it’s really important that each candidate and council member clearly state their position on the cost of the lawsuit and the revenue lost from the FAA. It will tip the scales on who I and many others vote for.
I’m just a concerned citizen and do not use the airport and I’m not affiliated with any organizations that do so. I also live right under the flight path a bit more than a mile west of the airport, and I’m not bothered in the slightest by the airplanes and actually love seeing them fly overhead.
I live right under the flight path, and the noise is awful. Some planes sound like a Harley Davidson motorcycle — so loud that I can’t even hear the music or podcast I’m listening to when I’m out walking. I can hear the planes when I’m in my house with the doors and windows closed. Many planes are ridiculously loud, noisy and annoying. And there are probably 20 planes an hour on most days. The airport was built when this was mostly open land surrounding it — the city continues to build housing up to the airport periphery. We’re still a mile away, but plane flight paths are long, and this airport creates more negative value than positive.
I agree with Lucy.
I think this quote from the article mischaracterizes the issue: “Opponents of the airport want to repurpose the land for housing.”
For me this is about control of our own land and the ability to actually manage it for the public good not a tiny percentage of Boulder’s population. The FAA restricts our ability regulate much of anything related to the airport. For example, under FAA control the city is obligated to supply unlimited amounts of leaded fuel to pilots, many (most?) of which don’t even live in Boulder. Why do we keep polluting ourselves like this?
With Federal environmental regulations being what they are, the city has a huge role to play to clean up our air. Unfortunately, Matt Benjamin seems to be yet another Boulder City Council member with little interest in environmental issues.
I am concerned about the at times irresponsible use of legal fees and consultants. These costs are significant and do not represent the will of the people. The winding road comment is rich: it is an expensive, risky road that most people and businesses avoid if possible.
The dismissal of the lawsuit is a positive step in restoring some sanity into the consideration of what to do with the airport. However, the dismissal still leaves the airport in limbo in terms of whether or not the City is going to move forward by accepting further FAA grant funding to help the airport continue to be as self sufficient as it can be, or refuse FAA and CDOT grants until 2040 and put the substantial burden of millions of dollars maintaining the Airport to FAA standards on the City taxpayers.
With the City’s finances already strained to the point of hiring freezes and existing programs going un-funded, I think it is foolish for the City to consider putting more resources into this lost cause of suing the FAA. The City needs abandon this legal trivial pursuit and embrace its airport, one of the most interesting and unique airports in the country.
Boulder airport should and could be a leader in sustainable aviation including the adoption of quieter electric and Light Sport aircraft, utilization of unleaded aviation fuels, and become the community resource for education and advanced air mobility of the future. Instead of wasting money on lawsuits and consultants, why not put the resources to work right here at the airport to benefit the community directly?
Boulder Airport has been a self sustaining economic engine that employs several hundred (mostly) Boulder residents, including a large number of entry level jobs for Boulder youth. Many who have trained or worked at Boulder Airport have gone on to have fulfilling professional careers in aviation. We are, in essence, a launching pad incubator for well paid and practical careers that cannot be replaced by AI. Why would we not lean into that?
It is time for the City to decide we’re gong to have an airport and embrace making it the best airport it can be so it can continue to serve the Boulder Community well into the future.
Hi Andrew,
You wrote: “Boulder airport should and could be a leader in sustainable aviation including the adoption of quieter electric and Light Sport aircraft, utilization of unleaded aviation fuels, and become the community resource for education and advanced air mobility of the future.”
Love this, but there is literally no influence the city has over making this happen without fighting the FAA in court. The airport is essentially a concrete runway strip open to any hobby plane on the front range to use at will. The city cuts the grass and collects a vendors fees. Unless it pushes back in court (like it just did).
The city council should take more control of the airport over fuel, types of planes landing/taking off, when the airport can be used, and noise issues. It’s the city’s (the people’s) land. My guess is the FAA won’t let it happen without a fight.
Jake In fact, the City does have influence over many things at the airport, including migrating to unleaded fuel, but they have to help incentivize what they want. For the last two years, the airport community has been trying to get the City to engage with CDOT so that we can get a grant for unleaded infrastructure and fuel subsidy to make the cost equivalent to avgas. The City has dragged their feet on this initiative despite CDOTs grant term not interfering with the FAA grant assurance timeline. The money was there, the City just didn’t want to go after it as they felt it would interfere with their lawsuit against the FAA. Also, to facilitate the future of electric aircraft, the City needs to consider upgrading the airport electrical infrastructure, but has dragged their feet on that as well. There is no need to fight the FAA to pursue these things that would help make Boulder Airport a more sustainable airport. Journeys aviation has spend over $300,000 on smaller quieter trainers that burn less fuel and don’t need to use leaded fuel. How much has the City spent making the airport more sustainable? Zip. It won’t happen without some participation on the part of the City. If the City doesn’t want to spend any of their own money, they need to create incentives for others to do so.
The land may be the City’s, but the City agreed to Grant Assurances when they took FAA funding. The City has to live up to those Assurances as they are contractual obligations, even if a small minority of the Boulder population thinks they shouldn’t have to abide by those obligations.
Boulder Airport is part of the national airspace system. Think of it as part of the transportation infrastructure in this country. Would we give local jurisdiction to every small town over the section of interstate highway that ran through their town? No, it serves a larger societal purpose. If every town had a say in how much and what kind of traffic traveled down the highway in their town, it would create chaos and be completely unworkable. That is why the FAA exerts jurisdiction over the skies, and has requirements for taking federal dollars. Boulder was in full control when they agreed to the terms of the deal.
Thanks, Andrew.
The courts will decide how much control should be exerted for a small ‘sponsored’ grant from 1991. Why the case is not frivolous. We litigated those opinions on that here.
Calling Boulder Airport part of an interstate highway system is a bit of a stretch. Pilots have to do flight plans all the time and adjust accordingly. And many hobby airports have local restrictions. I think the FAA, pilots and Boulder Airport would still thrive if Boulder Airport gets more regulated by the community it impacts. Lead fuel planes and touch and goes top the list.
As for that city control of the airport currently, lets be honest: other than cutting the grass and collecting a few vendor fees, what else does the city do? It appears some communities are now organizing to get some regulation over the traffic and noise, which I support if true.
Important local debate. Thx.
Andrew – You say that the airport “should and could be a leader in sustainable aviation.” You are uniquely positioned to take action that would show the community that you are sincere and yet not a single action has been taken to that end.
At the aviation lead meeting a few weeks ago, there were representatives from the state talking about a program that would enables airports to offer unleaded fuel at no cost to the airport or the pilots and yet again BDU has done nothing. I don’t even think anyone representing BDU even bothered showed up or engage with the community.
You’ve even downplayed the health impacts. https://boulderreportinglab.org/2024/07/09/as-boulder-considers-closing-its-municipal-airport-to-address-housing-shortage-lead-concerns-also-emerge/
I hope you can understand why so many of us feel that at this point we’ve been left with no choice, but to take back control of our own land in order to stop poisoning ourselves.
Just wanted to clarify the funding. The City of Boulder has never spent local tax dollars on the Boulder Airport. It has always been funded by airport operations and FAA/CDOT grants. As of the end of 2023, the fund balance was $2M. Because the City has been refusing FAA or CDOT grants, the balance at the end of 2026 (link provided in BRL’s article) is projected to be ($319,605). And, as was pointed out in previous comments, I don’t believe that included the cost of the lawsuit. So, beginning in 2026, local taxpayers will begin paying for the airport for the first time.
Good points. Thank you.
If the city is going to be paying for it going forward, city should have more control of its land, enforce stronger usage restrictions, like no lead fueled planes and no endless runway landing practices.
@ Andrew
We agree the ball always lands with City Council. And it should here as well.
And I’m not advocating closing of the airport. I personally was air’vaced during the flood to the airport when I lived in the foothills.
I’m simply saying the airport – unlike say Longmont Airport – is owned by the city. And as I read the action and the grant assurance in dispute, the city contends the 1991 FAA grant was “sponsor funded”, not FAA money, and did not impose, nor did the city accept, an in perpetuity obligation to operate the municipal airport under FAA obligations to the end of time.
That question is still to be adjudicated.
If you were living in Boulder, which you seem to not and I’m assuming tied to the FAA’s interests, then you’d land on Boulder wanting clarity of control of its airport land, which it OWNS, so it can mitigate very real community and citizen concerns.
As for my other inaccuracies on those concerns that you claim — I’m open to be convinced WITH FACTS that there is no lead-gasoline fueled plane using Boulder for their touch and goes flying over communities packed with 100s+ of children (BRL reported on this very issue) … or noise complaints are not way up with the city and airport by the community … Or there are more than just a few vendors out there (look at airport’s vendor page!), a handful of local local pilots… or at least half the planes over Boulder at any given time are from other airports because Boulder CANNOT enforce any noise regulations, hourly regulations, plane regulations, or lead-use regulations.
Why? Because city council has not stepped up and because of the FAA.
City needs to take control of this situation and appeal the District court ruling right away.
Too much is at stake, beginning with the city’s children.