This commentary is by John Tayer, President and CEO of the Boulder Chamber; Leslie Durgin, former mayor of the City of Boulder; and Jan Burton, former Boulder City Councilmember, pilot and former chair of the Save Boulder Airport committee.
At a time when the City of Boulder is freezing hiring, cutting programs and generally tightening its belt under a “constrained” budget, we can no longer afford flights of fancy.
It was the definition of a flight of fancy when, in July 2024, the City of Boulder decided to pursue a lawsuit against the Federal Aviation Administration (FAA) to determine if the city has the right to close the 100-year-old Boulder Municipal Airport. The city filed the lawsuit in response to a letter from the FAA stating that by continuing to accept grant funds from the agency — something the city has done for decades — Boulder would be required to operate the municipal airport until the FAA gave permission for closure.
Many lawyers were surprised by the city’s decision to sue the FAA, characterizing it as legal folly. For example, former Boulder District Attorney and current private practice attorney Stan Garnett stated in a 2024 memo to the city manager and city attorney: “After review of the letter, the federal regulations, and further legal research, our law firm’s opinion is that the FAA’s position is strong. It would be extremely expensive and very difficult, if not impossible, to decommission the airport.”
A year later, a U.S. District Court judge agreed with Garnett, ruling decisively against the city in a decision issued on Sept. 15. In her ruling, Judge Nina Y. Wang stated that courts could not decide the city’s claim until 2040. This is because even the City of Boulder acknowledged that it had made a legal commitment to keep the airport open for at least another 15 years. Judge Wang did not speculate on how a court might rule if the lawsuit were refiled in 2040.
There is plenty to wade through in Judge Wang’s opinion, but we find the last line of her decision most compelling: “Respectfully, the Court cannot conclude that the possibility of an injury 15 years in the future is an actual injury — or an imminent or certainly impending one — even if the City believes that the FAA’s recent interpretation will extend its regulatory burdens at that time.” Judge Wang referenced a previous court ruling in her opinion: “[F]or a declaratory judgment to redress an injury-in-fact, as opposed to serving as an advisory opinion, it must provide something other than the ‘emotional satisfaction’ of a favorable ruling.”
In a review of last month’s court opinion, Garnett offered this legal analysis: “The opinion is very well reasoned, is based on principles of constitutional law that have been well established for centuries, and is carefully worded. It is exactly what I predicted would be the result when the City filed this ill-advised lawsuit last year. I don’t fault the City, because I understand the political pressures, but I was surprised that they found outside counsel willing to make these arguments. It would be a complete waste of time and of taxpayer money to appeal.”
Now that Judge Wang has ruled, the city faces two choices: (1) Should the city appeal last month’s decision? and (2) Should the city resume accepting grants from the FAA? As the Boulder City Council, city attorney and city manager weigh their options, we ask them to focus on Garnett’s concluding line: “It would be a complete waste of time and of taxpayer money to appeal.”
The city’s own legal papers acknowledge that it “may cost more than $41 million to operate and manage the Boulder Municipal Airport in accordance with the city’s federal grant assurance obligations through the expiration of its most recent grant agreement with the FAA.” That is the full burden our taxpayers will bear if the city fails to accept further FAA maintenance grants through 2040 for the airport — a facility that has operated without local tax dollars for its entire 100-year existence. This is in addition to the tens of thousands in legal fees already spent to pursue the lawsuit. (The city attorney declined to provide the exact expenditure, stating that the office does not disclose legal costs.)
We could spend another 1,000 words addressing all the arguments against this misguided effort to close the Boulder Municipal Airport — from critiquing the “red herring” vision some have of converting the airport land to housing, to the loss of millions of dollars in economic benefit the airport provides. Quite simply, this entire effort to close the Boulder Municipal Airport has always been a flight of fancy. Now, as the city cuts staff and services and seeks more tax dollars to cover basic maintenance costs, it’s time to stop the legal folly.
Let’s accept Judge Wang’s sound ruling, abandon any fruitless appeal and resume accepting funding from the FAA to maintain our century-old local airport.
Another reason to abandon this strategy is that the airport is going to have new purpose in the near future. Air taxis are coming to town. Quick flights to DIA will be available in a few years. Electronic Vertical Takeoff and Landing airplanes will make air travel to Summit, Eagle, and Pitkin counties safe and affordable. Hopefully quieter and less polluting than current air traffic, but air traffic nonetheless. We will be improving the airport, not developing it into housing.
Assuming you think Boulder needs more people, there are better places to put houses than the airport. The best and highest use of our fully functioning municipal airport property is an airport.
I thought We the People settled this when we voted our clear disinterest in closing the airport for any reason, but most decidedly to prevent a massive development there.
If Council chooses to continue this course in defiance of the vote we need to make changes to Council in this fall’s elections. Do your homework; look at which member of council choose to ignore our voice.