MONTROSE – Barring an unfavorable outcome to at least one appeal, Montrose County's nearly six-year legal battle with JetAway Aviation is over, following last week's decision by a federal court judge.
"The ball is in their (JetAway’s) court… but some time or another they'll need to look at this as a business decision and cut their losses and get out," said former Montrose County Commissioner Bill Patterson, who was personally named in the cases. "I can't say it's over, but realistically, it's over because it's a real uphill battle for them. It's a clear ruling and it's the fourth time for a clear ruling."
U.S. District Judge Richard Matsch, known for presiding over the trial of Terry Nichols in the Oklahoma City bombing case, dismissed JetAway's antitrust case against the county last week and detailed his findings and ruling in a 12-page order that tagged JetAway's argument as "not determinative" of their claims, and its relief request as "impractical."
The order not only dismissed the civil action against the county, its building authority and several individuals, it also awarded costs.
The recent ruling does not definitively conclude the county's battle with JetAway, but county officials are hopeful they are near the end of the fight that started when the county decided to privatize its fixed-base operations at the Montrose Regional Airport and awarded the FBO contract to Black Canyon Jet Center rather than to JetAway.
JetAway can still appeal the case, County Attorney Robert Hill said.
JetAway has already filed an appeal with the district court regarding a prior ruling by District Judge James Schum that prohibited the airport access that enabled JetAway to provide fuel and maintenance at its off-airport facility.
JetAway also was ordered to pay costs in that case, which Hill said could be in the ballpark of $250,000.
A hearing for a judge to listen to that appeal is scheduled for April 19-20, he said.
Along with JetAway's filings with the district court, it also filed two complaints with the Federal Aviation Administration stating that denying its airport access was in violation of the conditions of federal grants. Both complaints were rejected by the FAA.
With four JetAway complaints and four rejections, Patterson said he hopes this battle is finally coming to an end.
Patterson, who was a county commissioner at the time the FBO contract was awarded to Black Canyon Jet Center (referred to as Jet Center Partners in the recent order), was personally named in the lawsuit, as was Kevin Egan and James Rumble.
Rumble owned and managed V.I.P Flyers and provided the county with FBO services until its contract was terminated in 1991. From that time until 2005, the county provided its own FBO services. In 2002, however, its terminal building was closed due to asbestos concerns and its FBO moved to a doublewide trailer.
"We needed something better than what we had, but we couldn't afford to pay for the millions in investments that it would take to get it going. That was the whole reason for privatization," Patterson said. "When you look at it, what we have now is exactly what we were striving to get."
At the time the county was deciding whether or not privatization was the right route, Rumble, Egan and Kevin Scott formed the Black Canyon Jet Center business for the sole purpose of obtaining and operating an FBO at the airport. JetAway, of which Steve Stuhmer is the managing principal, claimed Patterson favored Rumble because Patterson was on the airport authority when V.I.P Flyers had the FBO contract.
Matsch's finding stated that JetAway's attempts to prove sinister motives by the parties involved were not validated during the hearings, and "at best, the only thing shown was favoritism toward JCP and antagonism toward JetAway and Stuhmer."
Matsch went on to say that the commissioners may not have acted in the best interest of their constituents, but "that is a matter of political concern; it is not an antitrust conspiracy."
In the ruling, Matsch also said the county may have selected JCP before issuing a request for proposal, but "it is not illegal to do so" as the county could have chosen an FBO without using the proposal process.
He went on to state that JetAway's claims of "bid rigging" do not fit its filing that there were violations of the Sherman Act. (The Sherman Act was passed in 1890 and prohibits certain business activities that reduce competition in the marketplace.)
He also said that JetAway's evaluation of the proposals, which concluded that JetAway's proposal was in fact better than JCP, also is not determinative of the antitrust claims, and that there was no evidence that JetAway's proposal was shared with competing bidders.
In the case, JetAway asked the court for injunction relief that would allow it to compete against the current FBO.
Matsch did not grant that relief, stating that it was "impractical."
In a further blow to JetAway, he granted court costs to the county.
Patterson is protected from liability damages as a former county commissioner, according to the ruling. He said most of his personal costs have been accrued through travel and time away from work to fight this case. He said he is still finding out what costs of his might be covered by the rulings, if any.
The county also is trying to determine its costs and must submit that figure to the courts next week, Hill said. The awarded costs in the federal case will not include attorney fees, but will include such expenses as filing and deposition fees, he said.
According to the county's records, it has spent more than $1.78 million in legal services from 2005 to April 30, 2012 on its battle with JetAway.
Attempts to contact Stuhmer and his legal team for comments were unsuccessful.