Courtroom Notes: Citizens for Quiet Skies vs Mile-Hi Skydiving

(Editor note: Below is guest contributor Robert Yoder’s transcribed notes, handwritten while observing five days of courtroom testimony in the case of Citizens for Quiet Skies vs Mile-Hi Skydiving, Inc.
Robert also has an aviation background that includes:
~1100 skydiving jumps, Parachute rigger, Private SEL & glider-aero-tow.)
____________

Notes from attending:

District Court, County of Boulder CO
Case 2013CV31563
Plaintiff:
Citizens for Quiet Skies
Kimberly Gibbs
Timothy Lim
Robert Yates
Suzanne Webel
John Behrens
Carla Behrens
Richard Dauer
Defendant:
Mile-Hi Skydiving, Inc.

Introduction:

This is pretty much verbatim from my hand-written notes.
There may be errors due to misunderstanding what was said, omissions,
and difficulty reading my own handwriting from two weeks ago.
The detail will likely lessen as the week dragged on and I got burned out
with taking notes.

Each section will begin with a 24-hour timestamp.

I will use parentheses to insert my own comments in the text, and will
sometimes add explanations and/or links.

I am not going to elaborate on each plaintiff witness noise complaints,
but here is a summary of the most common ones:
– Destroys enjoyment of being outdoors.
– Makes it impossible to hold conversation outdoors.
– Can be heard indoors.
– Can be heard in basement.
– Cannot concentrate on mental tasks.

Note this is a bench trial, i.e. there is no jury, just a judge.

Typical witness testimony is in 3 parts:
1. Direct – Questioned by the attorney who called them to be a witness.
2. Cross – Questioned by the opposing attorney.
3. Redirect – Questioned again by “friendly” attorney to
smooth over damage from the cross.
In rare cases, the judge asked a few questions directly of the witness,
then allowed both sides to ask followup questions.

Plaintiff witnesses were called the first 2.5 days.
Defense witnesses were called the last 2.5 days.

In the case of an *expert* witness, there would be an initial set of
questioning from both sides to establish the qualifications of the witness.
Then if the judge approved, the expert testimony would proceed.

Witness home addresses were stated in court, but have been removed here.


CQS Plaintiff & Witness locations / LMO Parachute Operations Area

13 April 2015 Monday ===========================================================

0830 Day begins

0837 Opening statement – Plaintiff

Plaintiff Richard Dauer is an inventor in pharmacology.
Plaintiff Suzanne Webel has an 80 acre horse farm.
Plaintiff Carla Behrens is a retired teacher.
Plaintiff Bob Yates is retired and his windows rattle from the noise.
Issues with the noise:
1. Pattern flown.
2. Frequency.
3. Duration.
4. Noise level.
Cites case of Concord SST being banned by NY Port Authority.
Claims the Longmont 55dB level applies to aircraft.
Claims no impact on interstate commerce.
(Defense will dispute this.)
Expert witness Matthew Robinson will testify MHS is not restricted to the
LMO Parachute Operations Area aka “LMO POA”.
(Defense will dispute this. Link: LMO POA is defined by FAA)
Cites MHS sending bumper stickers to CQS members: “I Love Airplane Noise”.
Claims MHS deliberately buzzed Gibbs/Lim residence.
Will be calling expert witness real estate broker Rob Myers who claims
5-10% property loss.

0837 Opening statement – Defendant

MHS:
– Has federal training contracts.
– Has ~100 employees (suspect most are “independent contractors”)
– Does do interstate commerce.
– Is always in contact with DIA ATC.
FAA is not involved in noise abatement.
Gibbs collects unemployment.
The 55dB Longmont ordinance would ground all aircraft.
No formal noise study has been done.
(2 studies have been done, but not a *formal* study. More about this later.)
FAA *requires* MHS to stay in LMO POA.
Expert witness Jack Freytag will be testifying on airport noise.
76% of airport noise complaints are from CQS members.
The nonprofit status of CQS is questionable, since they did a recall effort
on a Longmont councilman in violation of their non-profit status.
(Later on there will be an effort by plaintiffs to distinguish “CQS Inc”,
the non-profit, from “CQS – a group” the plaintiffs. Defense will testify
they are one and the same if you follow the money.)
Gibbs also owns a condo in the LMO POA.
“Schultz Annoyance Curve” cited.

(OK, here it begins getting technical.
dB = decibel, an *immediate* measure of sound level.
dBA aka dB(A) = dB adjusted with the “A” weighted scale to reduce weight of
the low frequencies to which humans are less sensitive.
Ldn aka DNL = Day Night Level. This is *not* an immediate measure of sound,
but is a cumulative measure of all sound over a 24-hour period with
the night time sound weighted by 10dB. This is what the FAA uses.
“Schultz Annoyance Curve” = a plot of DNL/Ldn on the x-axis vs percent of
people annoyed on the y-axis.
Note that at the FAA’s 65DNL level, 12% of people are annoyed.
Even at 55DNL level, 5% are still annoyed.)

Plaintiff expert audio witness could not find measurable noise inside
plaintiff homes.
Defense expert witness (real estate) found homes inside LMO POA appreciated
*faster* than comparable homes outside the LMO POA.
The plaintiff expert witness (aviation) Matthew Robinson is a crash
investigator, not a noise expert.
MHS asked FAA to move LMO POA, and was denied by DIA TRACON.
(Terminal Radar Approach CONtrol Facilities).

0922 Witness and plaintiff – Timothy Lim – direct

Research & engineering – NCAR.
Noise got worse in 2006-2009 timeframe.
25 years ago trained as a pilot.
(This topic will come up again when the site visit is negotiated on Friday.)
(Questions about engine noise got shot down by objections since he is not
an expert witness.)

Has never filed a complaint.
Is the husband of Gibbs.
Previously rented in Niwot.
(Niwot is in LMO POA.)
Does research & engineering on autonomous vehicles.
Wants weekend MHS hours limited.
Wants quieter equipment.

0940 Witness and plaintiff – Timothy Lim – cross

Bought home in 2006.
Does not know about Terracon study.
(Link: Terracon was hired by KLMO to do a preliminary study of airport noise.)
(Link: Terracon Longmont Airport Noise Report )

Does not know about Barth study.
(Tim Barth was KLMO mgr for 19 years until recently moving to WY.)
Does not know about Twin Otter owned by survey company that is based at KBDU.
(KBDU is closer to the Gibbs/Lim home than KLMO).
Defense attorney unseals deposition of Oct 13 2014 to show Lim said he was
not complaining about Twin Otter.
Defense attorney presents chart showing Twin Otter flights have not been
increasing.
(Annoyingly, the courtroom was laid out in a manner that the spectators on the
defense side of the room got to look at the *edge* of the charts when
displayed on the easel, so we only got the occasional glimpse of the charts.)
Does not know about the CQS website.
(Really? He is married to Gibbs and shares a home, but is not familiar with the website?
Link: Citizens For Quiet Skies website)

0940 Witness and plaintiff – Timothy Lim – redirect

1002 morning break
1020 resume

1025 Witness and plaintiff – Richard Dauer – direct

Chemical engineer.
Works for CordenPharma.
2 miles from KLMO.
Previously lived 1/4 mile closer.
Signed document at closing acknowledging presence of airport.
Complains about MHS aircraft “screech-diving” at his home.
Does not know if he is a member of CQS.
(Huh?)
Learned about CQS when he found the FB page
“Citizens Against Citizens for Quiet Skies”.
The noise of the Twin Otter is an A-sharp.
When the Otter and a King Air are flying at the same time, it causes a
dissonance.

1052 Witness and plaintiff – Richard Dauer – cross

Defense attorney asks if he is aware he is in the primary flight path of KLMO.
Freytag report is admitted into evidence.
Admits to being noise sensitive.
Admits to having tinnitus.
Does not know about Twin Otter owned by survey company based KBDU.
Original CQS vs MHS lawsuit filed Oct 29 2013 had only Gibbs as plaintiff.
Dauer was add later.

1108 Witness and plaintiff – Richard Dauer – redirect

1116 Plaintiff Expert witness (aviation) – Matthew Robinson – direct

(Link: Robson Forensics Website)

(Matthew *Robinson* works for *Robson* Forensic. Not a typo.)
Is a pilot: ex-Marine aviator. ATP & Commercial.
Objection from defense in that Robinson’s expertise is in crashes.
Judge will allow testimony in “limited area”.
First mention of WebTrak.
(This site: http://webtrak5.bksv.com/den3 was apparently used extensively
by CQS to identify aircraft to complain about.)
Discussion of reduced power/pitch.
Discussion of classes of air space.
Discussion of IFR vs VFR.

1156 lunch break
1330 resume

Discussion of what enables an aircraft to climb fastest includes
“…flying into the wind…”.
(This guy has an ATP and still believes the Myth of the Downwind Turn???)
Seems to know nothing about the LMO POA, and insists MHS can fly anywhere
they please.
MHS could climb most efficiently if they would fly a straight line,
do a 180, then fly back to the airport, instead of circling.
Discussion of 3-bladed prop vs 4-bladed.
(MHS Otter has 3-bladed.)
Term “Standard of Care” used frequently.
(I am familiar with SoC use in EMS, but had not heard it used in aviation
before.)

1405 Plaintiff Expert witness (aviation) – Matthew Robinson – cross

Defense attorney: “What is in SoC besides FAA regulations?”
Defense calls attention to letter-of-agreement MHS has signed with FAA which
defines the LMO POA.
Witness insists MHS does not need to comply with it.
(WTF???)
Defense plays plaintiff audio made at location of plaintiff Yates.
Points out that one can hear whoosh of passing cars and the chirping of
birds over top of the airplane noise.

1442 Plaintiff Expert witness (aviation) – Matthew Robinson – redirect

Witness again insists that MHS does not need to comply with the agreement
they signed with FAA TRACON.

1523 Witness for plaintiff – Andrew Hill – direct

Airline captain: Mesa Airlines dba FedEx.
Flew for MHS Jun-Aug 2012.
Questioned on “quiet kit” for Otter; -34 engines required.
Was flying with DZO when DZO deliberately increased prop rpm while
descending over Gibbs residence.

1523 Witness for plaintiff – Andrew Hill – cross

Fired for crashing King Air.
Insists landing gear failed on landing.
States he previously complained to MHS about problem.
MHS maintains he forgot to lower gear.
FAA investigated and declared pilot error.
Was subject to FAA 44709 reexamination.
Reprimanded numerous times previously by MHS.

1536 Witness for plaintiff – Andrew Hill – redirect

FAA investigated, NTSB did not.
Lost a job at Trans States Airlines after leaving MHS, due to PRIA of 1996.
Seemed to be saying MHS was responsible for losing job.

1542 Witness for plaintiff – Gary Rubin – direct
Plane owner.
Never filed a noise complaint.
Didn’t want noise complaints on record that might be disclosed in a property
sale.

1554 Witness for plaintiff – Gary Rubin – cross

Built home in 1990.
Does not know about Twin Otter owned by survey company that is based at KBDU.
(Defense asked this question of every plaintiff witness.)

1607 Witness for plaintiff – David Shenk – direct

2.5 miles South of KMLO.
Bought home in 1980.
Plane owner.

1614 Witness for plaintiff – David Shenk – cross

1617 Witness for plaintiff – David Shenk – redirect

1619 Witness for plaintiff – Set Set – direct

(Believe it or not “Set Set” was his first-name/last-name.)
Lives 6 miles Southwest of KLMO.
Complained about noise at meeting and DZO seemed agitated.
Soon after his home was buzzed by a plane that did a wing-wag.

1631 Witness for plaintiff – Set Set – cross

Bought home in 1991.
Was unaware of airport.
(KLMO was built in the 1920’s.)

1641 Witness for plaintiff – Set Set – redirect (none)

1641 Witness and plaintiff – Carla Behrens – direct

Built home in 2001.
Retired teacher.
MHS planes are louder than jets.
(Really???)

1707 end of day

14 April 2015 Tuesday ==========================================================

0830 Begin
0834 discussion of “order of proof”.

0838 Witness and plaintiff – Carla Behrens – direct (continued)

Seeking damages of loss of property values.
Believes range of 7.5-10%.

0841 Witness and plaintiff – Carla Behrens – cross

“Do you live in the approach path?”
Prior deposition unsealed confirms she knew.
Joined suit after original filing.
(Gibbs was only plaintiff in original suit.)
Questions on Gibbs fishing for additional plaintiffs.
Shows exhibit to witness of Gibbs email seeking more plaintiffs.
Attorney points out error in which Longmont code is in question.
(Don’t recall context for previous line.)

0902 Witness and plaintiff – Carla Behrens – redirect

Questions on separate sets of plaintiffs.

0908 Witness for plaintiff – Jennifer Skwiot – direct

1/2 mile from KLMO.

0915 Witness for plaintiff – Jennifer Skwiot – cross

Only MHS planes land at KLMO.
(Huh?)

0918 Witness for plaintiff – Jennifer Skwiot – redirect

Has no problems with *propellor* airplanes.
(So what are those spinny things on the front of MHS aircraft?
This witness was confused.
Also, her home is almost on the centerline of the KLMO runway.)

0919 Plaintiff Expert witness (audio) – Robert Rand – qualification questions

(Link to Robert Rand website)
Plaintiff: Expert in acoustics and sound replication.
Defense: No previous experience in aircraft noise: Unqualified.
Judge overrules, expert witness will be allowed.

0931 Plaintiff Expert witness (audio) – Robert Rand – direct

Did study at Behrens home.
Sensation of noise “pushing on my ears”.
Advocates using L90 level.
(L# levels refer to what percent of time background noise exceeds a certain
level. e.g. L90 is the measure of noise level exceeded 90% of the time,
whereas L10 would be a much higher number reflecting level exceeded 10% of
the time.)
Cites Danish LPALF study.
( Link to study )
Discusses “dominant discrete tones” which make noise more annoying, and
produces a chart showing that Otter noise has such a dominate component.
(Upon reflection I realized that this is the opposite of “white noise” which
contains an evenly distributed range of frequencies.)
Audio recording of Otter played.

1007 break
1027 resume

States DNL does not accurately reflect annoyance.
Criticizes Schultz Curve on basis it is a 1978 HUD study for urban areas.

1049 Plaintiff Expert witness (audio) – Robert Rand – cross

FAA uses DNL as primary measurement of noise.
The Danish codes previously referenced are only recommendations.
DNL = 30.
(Missing context here.)
FAA uses the Schultz Curve.
The community at large (in the LMO POA) was not studied.
Witness does not recall noise interfering with conversation.
Witness study at Gibbs home was not included in his report.
(Wonder why?)

1100 At this point Robert Rands testimony was paused in order to conduct a
previously-arranged telephone testimony from Stephen Jennings, who was in
Europe.

1100 Witness for plaintiff – Stephen Jennings – direct

Formerly lived in Niwot.
Currently lives in Northern part of Boulder.
(Has filed recent complaints from Boulder which is outside LMO POA.)
30 years as an aerial surveyor.
Previously lived 1.5 miles from KLMO.
Moved to Boulder to get away from the noise.
Took a big loss on home when he moved: only got ~$440K for house.
Still hears MHS aircraft in North Boulder.
Claims MHS aircraft routinely leave the LMO POA.

1126 Witness for plaintiff – Stephen Jennings – cross

Defense asks Jennings if he recalls the documents emailed to him the day before.
He does.
Defense calls attention to the document that is a public record of the home
sale in LMO POA, which originally listed for $659K, and sold for $642K.
He acknowledges that is correct.
(Claimed he sold home for $440K. Witness credibility just fell to zero.)
Questions about how witness made >1000 complaints in just the year 2013,
especially since he is often traveling on business.
Questions about witness setting up a computer with a sound-level-meter to
automatically generate an email complaint every time the sound level
exceeded 55dB.
Witness denied it.
(This will come up again in the testimony of former KLMO manager Tim Barth.)

1140 Witness for plaintiff – Stephen Jennings – redirect

1141 Plaintiff witness (audio) – Robert Rand – cross resumes

Inside study of Gibbs/Lim home completed but not used.
(Interesting!)
Inside study of Webbel home completed but not used.
(Also Interesting!)
Only Otter analyzed, no King Air study.

1157 lunch break

1330 Plaintiff Expert witness (audio) – Robert Rand – redirect

1347 Plaintiff Expert witness (real estate) – Robert Myers – direct

( Robert Myers LinkedIn Page )
Real estate appraiser / broker from Colorado Springs.
(Note that plaintiffs brought real estate expert from CO Springs,
but defense real estate expert is local.)
Reviewed years 2008-2014.
No decline, but a lack of appreciation.
Used baseline area larger than the LMO POA.
Used maximum price of $800K for homes evaluated.
Calculated 5-10% damage to home values.

1429 Plaintiff Expert witness (real estate) – Robert Myers – cross

Admitted home in the LMO POA saw the largest appreciation.
Defense: “Do you know what a Twin Otter is?”
Witness: “Oh, yes, I flew one in Alaska; I really enjoyed it!”[big smile]
(Much amusement on defense side of the courtroom.)

1520 Plaintiff Expert witness (real estate) – Robert Myers – redirect

1530 Plaintiff Expert witness (real estate) – Robert Myers – judge questions.

(This is the first time the judge questions a witness.)

The judges questions are related to a neighborhood used to compare
appreciation. The judge is making the point that it was a lower-priced
neighborhood which may have appreciated faster than the plaintiffs
neighborhood, *because* lower-priced homes were in higher demand.
The witness agrees.

1548 Witness and plaintiff – Robert Yates – direct

Bought home in 1974.
2 miles from KLMO.
MHS dive-bombs his house on a weekly basis.

1601 Witness and plaintiff – Robert Yates – cross

Home is under departure path of KLMO.
He is married, but his wife is not a plaintiff.
Deposition unsealed.
He only began noticing aircraft noise 2 years ago.
At the deposition he did not want money, but now he does.

1610 Witness and plaintiff – Robert Yates – redirect

1611 Plaintiff witness – Andria Allen – direct
Andria Allen Real Estate page
Is a realtor with Wright Kingdom real Estate.
Lived there 10 years.
1/2 mile Southeast of KLMO.
On flight path.
Attempted discussion of attempting to sell a $6.5M home.
(Plaintiffs made a mistake in bringing in this witness.
She was brought in as a regular witness, but plaintiffs tried to use her
as an expert (real estate) witness. There is a different set of rules
of evidence, and their attempts to question her were shot down by the
rules against hearsay evidence by a non-expert witness.)

1632 Plaintiff witness – Andria Allen – cross

1633 Plaintiff witness – Andria Allen – redirect

1634 Plaintiff witness – Kathie Hibbard – direct

Bought home 25 years ago.
Witness stated she lives 5 miles West of airport, but can hear parachutes
flapping and jumpers screaming.
(In fact is she is 4500′ from the West end of the runway.)
Airplane noise interrupts her ~150 times/day.
(Another confused witness.)

1643 Plaintiff witness – Kathie Hibbard – cross

She is a horse breeder.
She has held concerts in a barn.

1645 Plaintiff witness – Kathie Hibbard – redirect

1646 Plaintiff witness – Geoff Collins – direct

Noise is painful.
Can hear it at the Boulder Reservoir.
(Reservoir is inside LMO POA.)
Can see takeoff with binoculars.
(Home is 6 miles West of KLMO, on the West border of the LMO POA.
This Youtube channel correlates to his location:
Link to You Tube Channel )

1654 Plaintiff witness – Geoff Collins – cross (none)

1654 Plaintiff witness – Geoff Collins – redirect (none)

1654 end of day

15 April 2015 Wednesday ========================================================

0830 Witness and plaintiff – Suzanne Webel – direct

Runs 80-acre “Starlight Farm”: horse boarding, grows hay.
House built in 1999.
In 2008 noise increased.
Claims loss of customers, but not seeking lost business income.
Claiming property loss of 5-10%.

0853 Witness and plaintiff – Suzanne Webel – cross

Also owns condo on Nelson Road.
No renters have left due to noise.
Unsealed deposition proves Gibbs asked her to become a plaintiff.
No proof of harassment.
(Missing context here.)

0900 Witness and plaintiff – Suzanne Webel – redirect

Runs the Table Mountain Association: (Link)

0904 Witness for plaintiff – Judith Hinks – direct

1 mile from KLMO.

0914 Witness for plaintiff – Judith Hinks – cross

Lives under landing pattern.
Not a plaintiff.

0915 Witness for plaintiff – Judith Hinks – redirect

0916 Witness and plaintiff – Kimberly Gibbs – direct

Spent 25 years working in software, not manages real estate.
(Defense will be attacking the claim of managing real estate.)
Lives 8 miles South of KLMO, 4 miles North of KBDU.
Only MHS operations bother her.
Bought home in 2006.
Previously lived in Niwot and Gunbarrel.
(Both in the LMO POA.)
Problems started in 2009.
Prior to 2010 did not know of KLMO.
Complained to Tim Barth.
(Barth was KLMO manager for 19 years, until moving to WY recently.)
First meeting of CQS was in Fall 2011 with 25 people.
Later met with Clayton Schultz and Frank Casares met with CQS.
(Schultz is a MHS pilot, Casares is the DZO.)
Casares refused to make the changes they wanted.
There are hundreds of CQS supporters.
(But only 7 plaintiffs in 5 households.)
2012: Began meeting with local government officials.
Approached Airport Advisory Board.
May 2012: MHS sent bumper stickers “I Love Airplane Noise”.
MHS thinks it is untouchable.
Attempted to use mediation service.
Fall 2012: Invited Casares to mediation via Longmont city.
He declined.
Decided to sue.
Created non-profit “CQS Inc” in order to open bank account.
“CQS Inc” is not the same as “CQS – the group”.
(Oh?)
100-150 email addresses in CQS mailing list.
Facebook (link) Twitter account(link).
Yahoo: Yahoo Group Citizens For Quiet Skies Message Board )
200 donations.
CQS mission: To reduce MHS noise.
The plaintiff is “CQS – the group”, not “CQS Inc”.
(Oh?)
MHS flies night jumps as late as 0035.
WebTrak used to track flights.
(WebTrak Link)
Can hear Otter from 8 miles away.
(Google Maps give the distance from Gibbs/Lim home to KLMO runway as 5.56 miles.)

1000 break

1020 resume

Played video from Gibbs/Lim home on July 2012 when MHS not flying.
Played second video with Gibbs narrating.
Attempted to introduce video from Teresa Foster;
Objection: Hearsay, sustained.
(i.e. the video could not be admitted into evidence unless its author was
called as a witness. lived 3700′ from end of runway,
under the flight pattern.
Video Link)
“Pilot Hill testified about buzzing.”
Gibbs confirms aggressive flights around her house, but can’t confirm timing.

1109 Witness and plaintiff – Kimberly Gibbs – cross

2010: MHS flights dropped in half for next two years but CQS continued.
CQS Inc – Request for discovery redacted addresses.
Gibbs “property management” is just renting a few condos and sitting on
condo board.
CQS Inc is a non-profit, but not a 501(c)(3).
Exhibit W – CQS website; Donations go to CQS *Inc*.
“Have you asked to have Otter stop flying?”. Yes.
“Are you asking court to stop Otter flying?”. Yes.
“Were the CQS flyers prepared by you?”. Yes.
One flyer admitted into evidence.
Katie Witt: Longmont city council member opposed by Gibbs.
Defense cites “Airport Noise & Capacity Act 1990″.
(ANCA moved aviation noise control from local to federal jurisdiction.)
Gibbs insists it does not apply.
Deposition unsealed.
In it, Gibbs acknowledges that many people are not bothered by MHS.
References an email from Gibbs to CQS Strategy Team.
In it Gibbs told people that Tim Barth(mgr KLMO) was misleading people.
Was original plaintiff only CQS & Gibbs?
Gibbs won’t acknowledge.

1200 lunch break
1330 resume

Attorneys and judge debating whether “CQS Inc” and “CQS the group” are one
and the same.

1338 Witness and plaintiff – Kimberly Gibbs – cross resume

Gibbs email from Nov 10 2013:
– Calling for additional plaintiffs.
– Offer to release plaintiffs from liability of incurring liability if case fails.
After some discussion of attorney/client privilege, plaintiff attorney confirms.
“Miss Gibbs, are you the ‘head honcho’ of CQS?”
Evasive answer about it CQS being a group of equals.
Deposition cited: Gibbs called herself the “head honcho”.
Questions about email to Robert Rand (plaintiff expert audio witness).
Questions about Gibbs making complaints about a helicopter that was inspecting
power lines.
Questions about Gibbs filing complaints with Centennial Airport(KAPA) because
a cargo turboprop departing from there was cruising over her home in
the middle of the night at 10,000AGL.
(We saw the YouTube video she had put up complaining about this.
She quickly took it back down. KAPA is FORTY miles away from her home.)
2014 appraisal of her home had no deduction for proximity to an airport.

1405 Witness and plaintiff – Kimberly Gibbs – redirect

MHS purple Otter began flying in 2006.
CQS Demands:
– Twin Otter must not be flown.
– No aircraft with capacity over 15 may be flown.
– All aircraft must be equipped with quiet props.
– Only one aircraft may be flown at a time.
– Hours must be reduced.
– Mon-Fri 0900-1700.
– Maximum 8 hours flown on weekends.
– Reduced hours on summer holidays.

1418 Plaintiffs rest their case.
(Defense witnesses will be called from the point forward.)

1419 Defense witness – Tim Barth – direct
(Jeff Friedland, Assistant City Attorney of Longmont was present to watch the
testimony of former and current city officials.)
Current resident of Cheyenne WY.
Managed KLMO for 19 years.
Graduate of Embry-Riddle.
1. Washoe City NV Airport Authority 1985.
2. South Lake Tahoe – noise abatement.
3. Reno-Tahoe International Airport.
4. Stapleton International Airport.
5. Vance Brand (KLMO) manager since 1996.
Wrote Noise Abatement Procedures NAP for KLMO.
FAA not involved with KLMO NAP.
Has flown on MHS Otter to observe procedures.
Explains KLMO NAP.
Explains National Plan of Integrated Airport Systems NPIAS.
(Link to NPIAS)
Explains that FAA uses it to classify airport funding.
KLMO is a funding recipient.
NPIAS includes interstate commerce.
MHS customers include out-of-state and international customers.
Injunction against MHS would violate NPIAS.
Only safety issues could be valid reason for injunction.
Discussion of business vs private leases of land/hangers on KLMO.
MHS conducts one or two night jumps per year.
Website & brochure are used to introduce new pilots to KLMO NAP.
Noise abatement is voluntary.
NAP does not supersede FAA regs.
MHS complies with KLMO NAP.
NAP applies within 3 mile radius of KLMO, 0-1000′ AGL.
Attended meeting with Casares(DZO), Clay Schultz(MHS pilot), and Gibbs.
Gibbs demanded numerous restrictions that were unreasonable.
Barth conducted his own noise study of area around KLMO using gear borrowed
from DIA.
Also used WebTrak data to investigate Gibbs complaints.
(WebTrak data link)
Complaints were found to be invalid.
Noise measurements found background noise louder than aircraft.
All KLMO aircraft exceed the Longmont 55dB ordinance.
(Boulder County and the city of Longmont both have 55dB ordinances.
The county ordinance specifically exempts aircraft.
The Longmont ordinance does not mention aircraft.)

1527 break
1547 resume

Prepared Dec 7 document for Longmont City Council.
Clarified where MHS could fly.
Longmont cannot restrict MHS airspace.
Referenced Yancy O’Barr, FAA manager in Denver area.
Explains LMO Parachute Operations Area defined by FAA to which MHS has
signed letter of agreement.
DIA arrival corridors border North and South edges of LMO POA above 5000’AGL.
MHS contacts TRACON above 2000′, sets provided transponder code,
and remains in contact until descending back through that altitude.
There are no “noise sensitive areas” in the LMO POA.
FAA rejected plan to restrict MHS.
LMO POA defined by FAA TRACON.
FAA has refused to move the LMO POA.
Document prepared by Barth to Longmont City Council:
MHS never found in violation of any FAA regulations.
Reference to email from Linda Bruce – FAA Airport Planner.
Federal airport funding could be revoked retroactively.
An FAA representative testified to Longmont City Council.
Reference to June 24 2014 memo to Longmont City Council.
MHS is in compliance with FAA noise regulations.
MHS aircraft are in compliance with annual inspections.
Noise complaints have been filed against MHS aircraft on days they did not fly.
75% of KLMO aircraft are louder than MHS aircraft.
MHS is 3-6% of traffic.
MHS does charity work:
– Donated money to city.
– Donated to feed the poor.
– Donated flights for officials to do aerial surveys of 2013 floods.
– Donated jumps to the terminally ill.
CQS member John Bowker was filing complaints on the flights MHS donated to
survey flood damage.
Noise complaint logs are used for city planning.
Longmont Airport Advisory Board has 7 volunteer members.
(Link to City of Longmont Airport Advisory Board page
Longmont census: 87,000
Memo to Airport Advisory Board – Annual report included complaint summary;
Valid complaints vs Invalid complaints, i.e. statistical outliers:
2011 – ~400 complaints
2012 – 1006 complaints
2013 – 1582 complaints
One person – Steve Jennings, made ~1100 complaints, and admitted using an
automated system to complain.
(Sound meter connected to computer that sent emails when threshold exceeded.)
Email list of CQS Strategy Team correlates to complaint log biggest complainers.
367 valid complaints, and 1300 non-valid complaints.
Discussed Terracon noise study.

1356 end of day

16 April 2015 Thursday =========================================================

0830 Defense witness – Tim Barth – cross

Noise abatement procedures can be ignored.
FAA prohibits discrimination of airport users.
Mention of Linda Bruce.
(Media article: FAA gives stern warning to critics of Longmont Airport)
Not aware of the NY Port Authority banning the Concorde SST.
Regarding the meeting with Casares, Barth, & Gibbs:
– Gibbs would not listen to what she was being told.
– Gibbs demands were unreasonable.
The noise study Barth did showed 60% of KLMO fleet is louder than MHS aircraft.
Noise abatement log is data.
FAA provides funds for capital improvements, not operating expenses.
Plaintiff attorney tries to prove:
– Barth is protecting his budget.
– Charts disagree with Barth’s statements to city council.
– Statements to city council wrong about Otter use since 1999.
Raisbeck 4-blade propellors available, but require -34 engines.
DIA arrival corridors define the LOM POA.
MHS operates under positive radar control.
Plaintiff attorney insists that email from Yancy O’Barr ignores LMO POA.
In complaint log, Steve Jennings filed 44 complaints in a single day.
Don Dolce prepared the 2014 summary of noise complaints.
(Dolce is member of Airport Advisory Board, and is a defense witness.)
Justin Neway was leading complainer in 2014.
(Noise complaint summary of 2014: Justin Neway made 850 complaints out of a total of 1646 for the entire year)
Questions on log summary adjustments.
Reference to “Citizens for Noisy Skies” FB page with Gibbs photo.
(Citizens for Noisy Skies Facebook Page)

1002 break
1022 resume

Attempt to enter pages from Chris Rodriguez blog into evidence.
(My memory was that this was admitted, but my notes say it was denied.
Rodriguez is an ATC and former member of the Airport Advisory Board.
This was the blog article shown to Mr. Barth: The Airport’s Pitchfork Vigilantes)

1022 Defense witness – Tim Barth – cross resumed

FAA flight track data used for operations/year at KLMO.
2010:
– 61,000 KLMO operations.
– 5,000 MHS
– 34,000 local
– 23,500 flight instruction
1 flight is 2 operations: takeoff and landing.
Questions on sponsor agreement.
(Missing context)
Questions on state court affect on FAA grants.

1047 Defense witness – Tim Barth – redirect

Discussion of outliers in noise complaint logs, e.g. Steve Jennings.
Discussion of “Nuisance Noise Levels”.

1109 Defense witness – Tim Barth – questions by judge

Do you apply more/less/same weight to complainers?
Same.
Do you respond differently to CQS complaints?
No.
Why do you not, if traffic other than MHS is at 12,000’AGL?
(Missing context.)

1112 Defense witness – Don Dolce – direct

MS Physical & Organic Chemistry.
Was employed by IBM/Lexmark as engineer/scientist.
Retired in 2001.
Flight instructor.
Chairman of Longmont Airport Advisory Board.
Joined board: Jan 2011.
Judge reads 31 March court order.
(Missing context.)
Did spreadsheet analysis of noise complaints.
110 complainers, 1600 complaints.
Statistical analysis showed 89 people in 3 Sigma, 22 people outside of it.
11 people are in a different population.
6 categories of complaints:
1. General Aviation
2. Rotorcraft
3. Jets
4. Ultralights
5. Unmanned Aerial Vehicles
6. Skydiving
2 populations of complaints:
a) Normal: 328 complaints by 89 people
b) Other: 1300 complaints by 22 people

1201 break
1330 resume

21 complaints occurred on days when MHS did not fly.

1332 Defense witness – Don Dolce – cross

Defense runs a line of questioning to support idea complaints may be *under*
reported.

1345 Defense witness – Don Dolce – redirect

1348 Defense witness – Frank Casares – direct

President/owner of MHS.
Bought MHS in 2004.
(Original owner Jeff Sands was killed in an aerobatic plane crash in 2003.
It was my understanding the Sands family inherited MHS at that time.
Casares was the manager at the time of Sand’s death, and continued that role
at that time.)
MHS gets contracts for government training.
Skydiving gears sales have local and out-of-state customers.
~100 employees and contractors.
States that MHS procedures manual was provided to pilot Andrew Hill.
(Hill was a plaintiff witness.)
Denies buzzing Gibbs residence.
Skydiving operations are included in the MHS hanger lease contracts with KLMO.
10 years experience as a pilot.
Otter propellor rpms:
– 2200 for takeoff
– 2000 for climb
Night jumps occur twice per year.
Descents are done at idle power settings.
Has witnessed the Otter based at KBDU making s-turns.
The 2007 letter signed with the FAA defining the LMO POA, provides that a
request to leave the POA can be made if there are adverse climb conditions.
MHS flights make contact with ATC by 5000’AGL.
ATC sometimes temporarily moves DIA approach corridors due to weather.
Ramp checks are made by FAA prior to demo jumps.
Some Otters at Skydive Arizona SDAZ are 3-bladed, and some are 4-bladed.
(Plaintiffs previously stated all Skydive AZ are 4-bladed.)
In 2010 MHS rented a 3-bladed Otter from SDAZ.
Skydive AZ Otter rentals go back to 1998.
MHS Otter began operations in 2006.
At maximum gross weight, 3-bladed propellor 4dB louder than 4-bladed.
Question about putting 4-bladed propellor on King Air;
Answer: Not feasible because it would raise jump run speed to 104 knots.
Nikolai Starrett is MHS chief pilot.
(Starrett will be a defense witness.)
MHS has procedure manual for MHS pilots.
Power reduction from 700C to 680C engine temperature.
Descent propellor minimum rpm is 1800.
MHS is USPA member.
Charity work includes Santa Claus jumps.
The proposed KLMO runway extension caused a surge in noise complaints
about MHS.

1455 Defense witness – Frank Casares – judge asked questions.

Explained freefall formation jumps, and record-setting jumps.

1456 break
1516 resume

1516 Defense witness – Frank Casares – cross

Plaintiff attorney insists all SDAZ Otters have 4-bladed propellors.
Discussion of Raisbeck 4-blade propellors.
“Did you send CQS members ‘I Love Airplane Noise’ bumper stickers?”
“Yes”.
Reference to Barth email regarding airport tenant Sherwood and use tax.
(Missing context)
Barth alerted Casares to Times-Call story about night jumps.
(Times Call: No-notice night jump by Mile-Hi raises grumbling in Longmont)
Plaintiff was trying to establish Barth was actively siding with MHS.)
FAA Part 105 requires ATC contact.
Plaintiff attorney spends much time trying to get Casares to agree that it
is safe and legal to fly into the DIA approach corridors.
Casares refuses to agree.
(At this point the plaintiff attorney’s questions cause Casares to mention
the Mode C Ring, and the attorney gets in over his head.
The Mode C ring around DIA extends over KLMO requiring all aircraft to
have altitude-encoding transponders.
I think the plaintiff attorney had this over-simplistic view of flight regs:
a) IFR: You fly exactly where ATC tells you to fly.
b) VRF: You fly anywhere you please, airspace classes be damned.
And MHS does not fly simple VFR, but operates in communication with ATC using
a transponder code assigned by ATC.
)

1605 Defense witness – Frank Casares – redirect

1610 Defense witness – Frank Casares – questions by judge

Casares draws on map chart to show Mode C ring and DIA approach corridors.

1626 Defense witness – Nikolai Starrett – direct

BA Economics & Business.
ATP, instructor.
Pilot since 1994.
Chief pilot for MHS since 2003.
Regarding Andrew Hill:
– He sent electronic copy of MHS procedure manual to Hill.
– Hill displayed unprofessional behavior.

1653 Defense witness – Nikolai Starrett – cross none

1653 Defense witness – Nikolai Starrett – judge asks questions

Clarifying questions on how manual was provided to Hill.

1656 Defense witness – Kimberly Gibbs – direct

(For whatever reason, I took no notes on this.)

1708 Judge announces site visits.

Plaintiffs propose:
1. Behrens residence.
2. Lagerman Reservoir.

Defendants propose:
1. Behrens residence.
2. Gibbs/Lim residence.

Judge chooses the defendants proposal.
Closing arguments will occur after the site visits.
First site visit: May 1 1100.
Closing arguments: May 1 1400.

1731 end of day

17 April 2015 Friday ===========================================================

0830 Defense witness – William Kamin – direct
(Link to appraisal consultants, inc)
Real estate appraiser.
Appraised all plaintiff properties.
MHS has no affect on property values.
Compared appreciation of property in LMO POA to area on East side of Longmont.
County maps show an “airport influence zone”.
Types of property loss:
– “precipitous loss”:
— e.g. a forest fire.
— Occurs outside of property.
– “general loss”:
— e.g. next to a highway.
KLMO was built in the 1920’s.
Talked to other real estate brokers and owners; Found no impact from MHS.
Talked to several dozen realtors.
FHA uses FAA noise regulations: 65DNL.
Cited Randall Bell LAX study.
(http://realestatedamage.com/Articles/PDF/AirportNoise.pdf)
Longmont Master Plan references 65DNL.
(Link to Longmont Airport Master Plan)
Adverse conditions disclosures are down by the selling owner.
Studied real estate sales from 2005-2014.
– Property in LMO POA appreciated faster.
Charted 1994-2014:
– 8% average annual increase.
– Pink: near airport.
– Blue: away from airport.
One of the plaintiff real estate charts showed LMO POA properties rose faster.
Federal lending institutions use FAA 65DNL.
LMO POA properties range from <$200K to $10M.

0939 Defense witness – William Kamin – cross

Questions about price point versus appreciation.
Attorney reads quotes from real estate report.
Plaintiff Attorney: “Why didn’t you talk to the plaintiffs?”
Witness: “Because you had told them not to talk to me.”
Plaintiff Attorney: “You could have requested a Rule 35 exception.”

1015 break
1035 resume

1048 Defense witness – William Kamin – redirect

Defense attorney: “Defense *did* request Rule 35 exception.”
Plaintiff attorney: “Objection!”
Judge: “Denied; You brought it up in cross.”
(Much amusement in defense side of courtroom.)
Appraisals have an error range of +/- 5%.

1058 Defense expert witness – John Freytag – direct (expert qualification)
(John Freytag website)
Acoustic expert
MS Stanford
Has done 40 airport noise projects for FAA.

1104 Defense expert witness – John Freytag – cross (expert qualification)

1106 Defense expert witness – John Freytag – direct

Cites Federal Interagency Committee on Urban Noise 1979 (FICUN).
(Link)
Adopted EPA, FAA, Federal Highway Administration, DOD, DOT, HUD, VA, NASA.
Local ordinances look to EPA standards.
Federal Interagency Committee on Noise 1990 (FICON) reevaluated and confirmed
DNL.
DNL used by all federal and state agencies.
DNL conforms to Schultz Curve.
The TRACOR study included rural areas.
(TRACOR study 1967-1970 contracted by NASA. Link)
SEL -> Single Event Level.
DNL accounts for 24 hours.
FAA uses annual average.
DNL included a 10dB penalty for 10pm-7am.
Performed monitoring near Gibbs and Behrens for 24 hours:
– Visually identified MHS Otter and King Air.
– DNL of 55.3 and 56.7 found.
WebTrak used.
30.2, 32.0 maximum for MHS aircraft.
(i.e. the aircraft contributed that much to the total DNL measurement.)
All public airports are greater than 55dB in surrounding residential areas.
Discussion of A-weighted metric.
(dBA aka dB(A) )
People are less sensitive to low frequencies versus speaking frequencies.
The Danish study cited by plaintiff expert was for wind farms.
In the Schultz Curve:
– at DNL 55, 5% of people are annoyed.
– at DNL 65, 12% of people are annoyed.
Test sites were:
– Prairie Fire Circle (near Behrens)
– Gunbarrel (near Gibbs)
Low-cost sound meters measure instantaneous level.
High-end sound meters measure sound levels integrated over time.

1159 break
1330 resume

Reviewed the reports of plaintiff expert Robert Rand:
– Only the Behrens home study was reported.
– External measurements were very low.
Speech interference if >= 65dB.
Danish recommendations (cited by Rand) apply only to wind-farms.
Tonal assessment is already included in DNL.
(see Rand’s testimony regarding “dominant discrete tones”.)
Terracon study:
– Calculated 5 minutes averages from 30-60 minute captures at 6 locations.
– Found King Air was louder than Otter.
– There were multiple noise sources.

1350 Defense expert witness – John Freytag – cross

Questions on distinguishing “highly annoying” versus “annoying”.
“Sound above” principle.
– background noise variance.
(Referring to how much a specific noise source contributes to total noise.)
The MHS Otter has had its engines upgraded from those originally installed.
Could it make more noise than it did when certificated?

1417 Defense expert witness – John Freytag – redirect

Discussion of “unreasonable and substantial interference”.

1426 Defense witness – Richard Stewart – direct

1.1 miles South of KLMO.
20 year Navy pilot.
Professor part time at CU Boulder, ROTC.
15 years with IBM.
(Judge discloses that based on his address, her sister lives near him.)
In his neighborhood:
– 2-bladed single-engine-land aircraft are the noisiest.
– Motorcycles, lawnmowers are worse.
He started the Airport Advisory board, and served on it 1999-2008.
He was the former chairman.
He has been involved with the Bolder Boulder (foot race) for 20 years.
MHS donates free demo jumps into it.
The airport master plan is a prerequisite for FAA funds.
Runway extension was proposed for safety.
He bought current home in 2001.
A hot air balloon is louder than other aircraft.

1447 Defense witness – Richard Stewart – cross

Hot air balloons usually fly on weekends.
He know Chris Rodriguez.

1518 Defense witness – Jody Whitmore – direct

Move to Loveland recently.
Real estate agent.
Was located at intersection of Renaissance Dr & Venice Ln.
Moved to Longmont in 2003; Moved to Loveland in 2015.
5400sf home.
2 miles from KLMO.
Sold on April 10 after less than 60 days on market.
Included disclosure of airport nearby.

1530 Defense witness – Jody Whitmore – cross

1530 Defense witness – Jody Whitmore – redirect

1532 Defense witness – Philip Sugg – direct

currently Gunbarrel, 1 mile from KBDU
formerly Longmont, 1.02 miles from KLMO, under flight path
Is a realtor.
Sold previous town home, after one day on market for a nice profit.

1543 Defense witness – Philip Sugg – cross

Sold town home in May 2014.

1545 Defense witness – Philip Sugg – redirect

1547 Defense attorney speaks.

Defense rests.
Per Rule 50, defense asks for a directed verdict.
Reads January court order.
No proof of FAA violations.
Cites case of Vorhees v. Naper Aero Club Inc. Link
Calls to dismiss claim of negligence.
Calls to dismiss claim of nuisance.

1554 Plaintiff rebuttal.

Planes have been modified so original manufacturer certification does not
apply.

1558 Judge speaks.

She will not rule today.
Regarding site visits:
Frank will not fly the Otter.
Defense recommends Nikolai Starrett.
Judge agrees.

1601 Plaintiff attorney speaks.

Conditions for site visits:
1. 2 flights of the MHS Otter
2. Full load & full fuel.
3. 17,500-18,000 MSL.
4. Locations: Gibbs/Lim and Behrens.
5. Use flight path from Freytag data.
6. Plaintiff Timothy Lim ride as observer to record instruments and flight
path. Qualifications: Flight training while in USAF, avionic specialist,
flies as part of his job with National Center for Atmospheric Research.

1601 Defense attorney speaks.

Re: Conditions for site visits:
1. Agreed.
2. No, it is not safe to operate with full load *and* full fuel.
(The runway is 4799′ and elevation is 5055’MSL.)
3. Agreed.
4. Locations: Gibbs/Lim and Behrens.
5. Starrett to fly typical path.
6. No, Lim has no valid airman certificate.
He is a student pilot with an expired medical.
From 1986-1994 he was an enlisted avionics tech in USAF.
Also, observation rides are not done in the Otter.
Alternatively, the defense offers to take judge as an observer in King Air.
Judge declines.

1605 Judge speaks

Site visits 1100 Friday May 1.
1. 2 flights of the MHS Otter.
2. Typical load & fuel.
3. Typical full altitude ~12,500AGL.
4. Site #1 Gibbs, Site #2 Behrens.
5. Starrett will fly the loads in typical flight path and provide signed
affidavit confirming this.
6. Present at the sites will be judge, plaintiff attorney, defense attorney
& Casares. The three parties will take separate cars to each site.

Closing arguments to be Friday May 1 at 1400.
Each side gets one hour.

(Weather postponed the site visits until 1430 Saturday May 2.
Casares flew one plane, and MHS manager Nate Banton took his place on the ground.
(Times Call article: With ears to the sky, judge visits 2 homes in Longmont airplane-noise lawsuit)
At this time, closing arguments are scheduled for 1400 Wednesday May 6.)

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One Response to Courtroom Notes: Citizens for Quiet Skies vs Mile-Hi Skydiving

  1. Pingback: Closing Arguments: Citizens for Quiet Skies vs Mile-Hi Skydiving - LightningRod Blog

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