Closing Arguments: Citizens for Quiet Skies vs Mile-Hi Skydiving

(The below are my handwritten notes while observing closing arguments in the Citizens for Quiet Skies vs Mile-Hi Skydiving “noise” case on May 6th, 2015. I am not a court-reporter and I may have missed some things said. I also have a strong opinion about the case, which is why this was posted not to my Longmont Examiner media column as I did with another article (link), but here where I could also add a bit of my own opinion about what was said, especially after having observed all of the courtroom testimony.)

*An added note, I wasn’t the only courtroom observer there for the entire case. Read the post from another courtroom observer Guest contributor Robert Yoder: Courtroom Notes – CQS vs MHS

5/18 Update: Once the judge’s ruling is issued, according to her court assistant, it will be posted online at this link: “Cases of Interest

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The courtroom is overflowing for the closing arguments in the case of Citizens for Quiet Skies vs. Mile-Hi Skydiving and Judge Judith LaBuda tells courtroom observers that they can go sit in the jury box, which is not being used for this case. A majority of those who file into it are supporters of Mile-Hi Skydiving.

Citizens for Quiet Skies (CQS) attorneys Osofsky and Weiner began closing arguments by stating that the plaintiffs have suffered a loss of use of their backyards. CQS attorneys state that the plaintiffs don’t want to close Mile-Hi Skydiving or the Airport (yet, video obtained from the City of Longmont, shows CQS plaintiff Kimberly Gibbs stating ‘close the airport’ as a “choice” she gave at a Longmont City Council meeting on January 20th, 2015.) CQS Attorney Osofsky says it is in the best interest of the airport and aviation to take action and restrict Mile-Hi Skydiving and that “They can fly friendly, but they choose not to do so.”

CQS attorneys spend a majority of their hour allowed recapping testimony. With regard to their acoustic noise expert who used Danish standards, they state CQS is not asking judge to rule based on that but rather it’s only a descriptive method to describe annoyance. They try to minimize the use of the word “could” by their acoustic noise expert. They refer to Mile-Hi’s highly experienced aviation expert, Jeffrey Freitag as having “generally sloppy work” in his analysis and claim overall airport flight number data came from forecast tables used during the 2012 master plan process for the airport and compared it to “using a weather report for a different day.” They also talk about the analysis of noise complaints and how the people who filed the most complaints were ignored (it was revealed during testimony that the highest number of complaints came from members of CQS who attempted to skew data to register high numbers of complaints, including utilizing an automated device to file noise complaints, even when Mile-Hi wasn’t flying. CQS was not happy that they were then referred to as “statistical outliers.”). CQS attorneys then take issue with how the MHS defense “diverted the courts attention” to (self-proclaimed “Head Honcho”) Kimberly Gibbs.

CQS attorneys then speak about Mile-Hi Skydiving interstate commerce and how they seek to restrict only procedures, not goods and services of MHS (yet, MHS stated skydivers come from all over to jump with MHS and buy goods and services, which promotes tourism). CQS Attorneys state that “just discrimination” is allowed in this case because they believe it is to “remedy a harm.”

(It is noted that during an attorney transition, a row of supporters comprised of mostly Hispanic juveniles, who were sitting on the CQS side of the courtroom, get up and leave. Seat fillers?)

Mile-Hi Skydiving attorneys Leffert and Ellenberger begin their closing arguments by stating that MHS is complying with FAA regulations and not breaking noise limits applicable to aviation and how you can’t fly a plane in the U.S. if it doesn’t comply with FAA requirements. It’s stated that MHS is in compliance with the “Letter of Agreement” with Denver Tracon and the Noise Abatement Procedures in Longmont for aircraft at the airport are “voluntary.” MHS attorneys remind the court that the lease MHS has with the city of Longmont allows for 50,000 jumps a year and regardless if CQS thinks that is too much, MHS has complied with that requirement.

MHS attorneys point out that this is not a “public nuisance” case but rather a “private” nuisance case as payment of monetary damages to plaintiffs are being requested. It’s also noted by MHS attorneys that some of the houses used in appraisals are jointly owned, but not all owners of particular properties are plaintiffs and if the court were to award damages, that for those jointly owned homes, it should be half of the award. MHS attorneys state that CQS has presented a “moving target” for the defense in this case, clogging the case with subjective opinions of a few people vs “those who do” and that Ms. Gibbs encouraged people to file complaints, resulting in 76% of complaints coming from CQS members.

MHS attorneys state that if there was a noise issue at the airport in the 20 years that MHS has been in business, that FAA would have already come in to do their own noise study. He points out that CQS claimed that former airport manager Tim Barth, who has a 25 year career in aviation, did nothing about their complaints, yet there were instances where Tim went to houses and took readings at the actual homes of those complaining. He also states that Air Traffic Control at Denver Tracon agreed with Tim.

Throughout the case testimony there were questions about the non-profit filing of Citizens for Quiet Skies, LLC and whether it was being used for things other than what is allowed. MHS attorney Leffert reveals that there was a “discovery dispute” with the magistrate of the State of Colorado and records were not released to him for the case to determine whether the non-profit LLC was improperly used, especially in the case of influencing legislation at the city council level and use of funds to pay legal fees. He states that both Citizens for Quiet Skies and the non-profit LLC arm of CQS really are both “alter egos for Kimberly Gibbs.”

He then goes down the line of CQS plaintiffs pointing out how each is still enjoying and working in their yards. Ms. Gibbs had also emailed the acoustic noise expert that he should come out to record MHS planes and she would just be working in her yard when he came over. In the case of one plaintiff, he made statements that he enjoyed drink beer on his deck, and watch the skydivers with friends. It is then that the video of Ms. Gibbs from prior testimony is again played, showing her in the backyard of her Gunbarrel home, pointing her video camera skyward toward where the MHS plane is (but not visible to those viewing) and then states there is nothing to look at up there, so let’s look at her flowers. (It’s noted that during this video replay, Ms. Gibbs has turned her back to the courtroom to look at the screen behind her.)

MHS’ attorney makes a valid point with regard to the witness called by CQS, a former employee of MHS who is a pilot. CQS had used him as a witness to talk about MHS owner Frank Casares and a employee dispute they had.. MHS’ attorney Leffert asks why didn’t they use his experience as a pilot for MHS and have him testify about their flight procedures? MHS’ attorney also mentions that the CQS acoustic noise expert did not present parts of his findings because they weren’t consistent with plaintiff statements, so he didn’t make them public. Mr. Leffert then mentions how realtors who did talk about airport “noise” are not specifically talking about MHS. He points out that the real estate expert of CQS was a “nice guy” but did not do actual appraisals. It’s pointed out that real estate experts for both sides agree that houses in the flight box appreciated higher. It’s pointed out how one plaintiff’s home over $1M was a statistical outlier and that the CQS real estate expert also did look at homes in that range for comparison, citing the “Boulder Factor” (note: CQS was upset about “statistical outliers” in noise complaints logs being viewed as “skewed” data. Double standard?)

It was at this point, MHS attorney Leffert states, “If this wasn’t so serious, it would be funny” and then goes right into how “noise” is not an adverse condition requiring deviations in flying and that decision is best left up to those who are the pilots. And that any noise compatibility planning done for an airport by a city has to be approved by the FAA.

MHS attorney Leffert appears visibly disgusted by the innuendo with regard to the judge’s site visit and points out what the judge saw matches the plaintiffs own videos presented during testimony and states, “With all due respect, you cannot impose injunctions.”

It is then that MHS attorney Ellenberger talks about a case involving Centennial Airport in Colorado involving a ban on an air carrier that resulted in a complaint filing with the FAA, in which the FAA pulled grants because the case resulted in a violation of grant assurances. It is pointed out that if CQS request that a ruling be issued based on city noise limits of 55db be applied to MHS, then no airplane could fly in or out of Longmont’s airport and that this case is an economic “noise based” restriction.

CQS attorneys begin their rebuttal that they stated earlier they were reserving time for. They appeared flustered, clock watching, and grasping for words in the short time they have left. They tell the judge they owe the court an apology a debt of gratitude for hearing the case. They then state that CQS plaintiff Ms.Gibbs is a compromiser and MHS is not. They elicit the biggest reaction from courtroom observers when a comparison is made of Ms. Gibbs to Erin Brockovich, in that Ms. Gibbs was “doing nothing wrong by alerting the community about a problem.” (Erin Brockovich alerted her community to an unknown chemical found in drinking water, yet is compared to Ms. Gibbs alerting plaintiffs in an audible “noise” complaint case generated by a visible source?)

I can see CQS drinking water from up here. Does that make me Erin Brockovich too? (photo: Paul Gordon)

I can see ‘chemicals’ in CQS drinking water from here. Does that make me Erin Brockovich too? (photo: Paul Gordon)

Closing statements end and the judge then gave each attorney the opportunity to prepare up to 20 pages each in a document called “Final Findings of Fact” statement, with a deadline by May 14th to receive them so that she can read them over the weekend (Update 5/17: You can find the PDF’s to both at the bottom of this article). She then states that because her court clerk will be leaving on May 22nd, that she’d like to issue a ruling by then. She tells each party that she is aware that the case was an emotional one and thanks them and the courtroom observers (many of which, she notes, had been there each day of the case) and declares court adjourned.

Times Call media was also present, with reporter Karen Antonacci this time sitting on the side where supporters for Mile-Hi Skydiving were sitting. A media photographer was also outside the courtroom, flash bulbs visibly popping as people left the court.
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MHS Final Findings of Fact

CQS Final Findings of Fact

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