Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - K43
‘
Proceedings
BEFORE THE OHIO DEPARTMENT OF TRANSPORTATION
ae
In the Matter of:
Exhibit
One Energy, LLC v. Ohio
Department of Transportation. A
Administrative Hearing for
Denial of Permits for
2016-DOT-647-OF (2015-WTE-5286-O0E)
and
2016-DOT-4888-OE (2016-WTE-2721-0K)
eee
PROCEEDINGS - VOLUME I
before Michael J. Hardesty, Hearing Officer, at the
Ohio Department of Transportation, Ohio Emergency
Management Agency, 2855 West Dublin-Granville Road,
Room 204, Columbus, Ohio, called at 9:00 a.m. on
Monday, June 5, 2017.
=e
ARMSTRONG & OKEY, INC.
222 East Town Second Floor
Street,
Columbus, Ohio 43215-4620
(614) 224-9481 - (800) 223-9481
- a -
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - K44
.
Proceedings
48
full-time?
A No
Q. How many of those are full-time?
A All but a few.
Q Okay. And with respect to the 20 or
some individuals in the Office of Aviation -- and
we'll just -- we'll mark it since March 20, 2016, how
many of them are involved in any way in the
permitting process?
10 A. Other than myself, we have some help
11 administratively, but essentially it's just myself.
12 Q Okay. So when counsel was describing
43 the Department's greater expertise than the FAA as
14 relating to the subject matters, he's referring to
15 your expertise; is that right?
16 A I assume so.
i7 Q Okay. Is there anyone else in the
18 Office of Aviation that from your perspective has
19 greater expertise with respect to FAA -- excuse me,
20 the Ohio -- Ohio Airport Protection Act than
21 yourself?
22 A. In the Office of Aviation?
23 Q Yes, sir.
24 A No.
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - K45
' 4
Proceedings
100
Q. Okay. So what specific language did you
have input on?
A. All of it.
Qo. All of it, okay. And was your input
communicated via email, or what was the medium by
which it was communicated?
A. Verbally.
Q You never put pen to paper or -- or hit
a key stroke to come up with the proposed language?
10 A Not that I recall.
1. Q Do you agree that the proposed
12 legislation would clarify from the perspective of the
13 Department that the -- its authority regarding
14 airspace extends beyond the clear zone surface,
15 horizontal surface, conical surface, primary surface,
16 approach surface, and transitional surfaces?
17 A. It's my opinion that the proposed
i8 changes clarify the Department's position, if that
19 was. what the question was.
20 Q That is the -- the purpose of the
21 legislation is to clarify what the Office of
22 Aviation's position is as to the scope of its
23 statutory authority to regulate certain airspace?
24 MR. SEVERANCE: Objection, calling for a
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - K46
Proceedings
101
legal conclusion.
OFFICER HARDESTY: Well, I would say
that you can answer if you -- if you think it
clarified the Department's position, iff you know. Tf
you don’t know, then you should say that.
THE WITNESS: It's my opinion that the
language clarifies the Department's position.
BY MR. LITTLE:
Q And the position it clarifies is the
10 Department's position that it is entitled, from a
1. statutory standpoint, to grant or deny a permit for
12 airspace falling outside the clear zone, horizontal,
13 conical, primary, approach, and transitional
14 surfaces?
15 A. You're going to have to ask the question
16 again. I'm sorry.
17 Q. Sure. The clarification, you
18 understand, that is intended by this legislation is
19 to make clear the Department's position that it has
20 the statutory authority to grant or deny a permit for
21 an obstacle that is -- that doesn't penetrate the
22 clear, horizontal, conical, primary, approach, or
23 transitional surfaces?
24 MR. SEVERANCE: Probably the same
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - KA7
r
Proceedings
102
objection as to a legal conclusion by a nonattorney.
OFFICER HARDESTY: Well, he has to
interpret this language in his job. Are you asking
if it goes beyond the six surfaces?
MR. LITTLE: I'm asking if that's what
the intention was, to clarify that the Department
believes that it has the statutory authority to
regulate or grant or deny a permit for an obstacle --
excuse me, a structure falling outside the six
10 surfaces.
11 OFFICER HARDESTY: If you know.
12 THE WITNESS: It's my opinion it
13 clarifies the Department's position that we are
14 required to enforce Part 77 as a whole.
15 BY MR. LITTLE:
16 Q And Part 77 as a whole would include
17 space that is other than the six surfaces that are
18 enumerated currently in 4561.31
(A) (1)?
19 A. Well, it's our position that the current
20 language already says that and that this clarifies
2b that.
22 Q. That this proposed amendment is entitled
23 to serve as a clarification of existing 4561.31?
24 A That's correct.
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - K48
‘
Proceedings
170
A. I -- in this case, I denied it on
~17
(a) (2).
QO. Okay. Well, have you -- I'll ask it
again -- all right. We'll take your answer.
Your testimony is the sole reason
that it was denied here is because it's 77.17
(a) (2)?
A Correct.
MR. LITTLE: All right. This might be a
good time to break and organize the next witness.
10 OFFICER HARDESTY : Okay. We'll break
11 till 3:00 o'clock.
12 (Recess taken.)
13 (Witness placed under oath.)
14
15 JAMES E. BRYANT,
16 being by me first duly sworn, as hereinafter
17 certified, deposes and says as follows:
18 CROSS-EXAMINATION
19 BY MR. LITTLE:
20 Q Would you please state your full name
21 for the record?
22 A. Yes, sir, James E. Bryant, B-r-y-a-n-t.
23 Q Mr. Bryant, my name's Marion Little.
24 What is your current position with the Ohio
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - K49
Proceedings
a7.
Department of Transportation?
A. I'm the Aviation Administrator, sir.
Q. And how long have you held that
position, please?
A. Since 2004.
Q. And were you associated with the
Department of Transportation prior to 2004?
A. I was not. I was a public servant,
though.
10 Q. Were you associated with avia- --
di aviation -- excuse me, if I can speak -- aviation
12 prior to 2004?
13 A Since 1973.
14 Q. And '73, that would have -- would that
15 have been military related?
16 A. No, sir.
17 Q All right. What was your experience in
18 aviation starting in '73?
19 A I started taking private flying lessons.
20 Q. And then did you ultimately become a
21 private pilot?
22 A. Private, commercial, instrument, multi
23 engine, and helicopter rated.
24 Qo. And were you a pilot for any
——t
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
0D643 - K50
‘
Proceedings
179
A Yes, sir
Q. And each of these surfaces there, I
count them being six, you're familiar with those; is
that correct?
A. Yes, sir
Q. And each of those surfaces are defined
in Part 7 7: is that correct?
A. Of the six surfaces, sir?
Q Yes, sir.
10 A. Yes, sir, that's correct.
11 Q. Okay. And with respect to each of those
12 six surfaces, those are the surfaces that a structure
13 cannot be constructed or penetrate into without the
14 State providing some form of permit; is that correct?
15 A. No, not really. There is six surfaces,
16 and there's an additional surface which we felt that
17 we had jurisdiction to also administer that we didn't
18 feel that the Ohio Revised Code when it was prepared
19 in 1991 or '92 adequately explained that. So we've
20 always felt that we had the jurisdiction to
21 administer the Part 77, we just wanted to make it
22 clear.
23 Q When you say "Part 77," can we agree
24 that that does -- that does not appear in
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
0D643 - K51
Proceedings
181
eliminate any ambiguity as to the ability of the
Department to regulate the space in 77.17(a)
(1) and
(a) (2)?
A. No, sir. When Mr. Wharton was putting
his information together, he was not addressing the
-17(a) (1) and (a) (2). That's come since with this
second iteration of reviewing it.
Q. Okay. So who -- who was responsible
then for trying to go forward with the task of
10 clarifying the statutory language to make clear from
11 the Department's perspective that it had the
12 authority to regulate 77.17(a)
(1) and (a) (2) space?
13 A. Carrie Glaeden, staff attorney, and John
14 Stains.
15 Q. Okay. And the process of trying to
16 remedy this ambiguity about the State's ability to
a7 regulate that airspace began when, please?
18 A I would say a year-and-a-half, give or
19 take, year-and-a-half, two years ago.
20 Q Okay. And I take it that that's a
21 process that remains ongoing today?
22 A. Say that again, sir.
23 Q That's a process that remains ongoing
24 today?
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - K52
'
Proceedings
182
A. What process are you speaking of?
Q That is the process of trying to secure
legislation that would affirmatively state that the
Department of Transportation has jurisdiction or
authority over the space in 77.17(a)
(1) and (a) (2)?
A Correct. There is currently in the
Budget Bill at the Statehouse, that -- that
information's in there, those recommended changes
that -- I think that you're showing me here are in
10 the Budget Bill.
11 QO. Okay. So if -- just so we're clear, if
12 we could please turn to -~- bear with me -- B-5, just
13 a couple tabs in.
14 A. Okay.
15 Q. And I've got something marked "As Passed
16 by the House, Sub. House Bill No. 49." Is that what
17 you're referring to?
18 A. That’s correct, six.
19 Q. And if I could direct your attention to
20 the third page of the exhibit.
21 A Including the front page, sin?
22 Q Yes, sir. It will say Page 2061 at the
23 top.
24 A Okay.
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
0D643 - K53
. ‘
Proceedings
183
Q. And if we look there at Subparagraph
{L), do you see where there is an insertion of
proposed language defining navigable airspace?
A. Yes, sir.
Q. Okay. And the definition of navigable
airspace as set forth here would include all the
space in 14 CFR Part 77, including the imaginary
surfaces that are already listed in the statute?
A. That's correct.
10 Q. Okay. And so then if we turn to the
11 page which says 2063 at the top --
12 A Okay.
13 Q. -- two pages over, where we see a red
14 lining, if you will, of existing 4561.31. Are you
15 with me?
16 A. I don't see any red line,
17 Q I refer to red line as the striking of
18 language.
19 A There's several strikings on the page.
20 Can you direct me to which part, please?
21 Q Sure. The one that is under Section
22 4561.31, it will be the last paragraph on that page.
23 A. Okay, sir.
24 Q. Are you with me?
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - K54
:
Proceedings
184
A. Yes, sir.
Q. And in that paragraph, there's certain
language that is struck out.
A. Yes, sir.
Q. So if we look at -- and there's line
numbers in the right-hand column. So if you look
at -~- starting at Line Item 64079, do you see where
the language in existing 4561.31(A)
(1) relating to
the six imaginary surfaces is being struck? Do you
10 see that?
11 A. Yes, sir.
12 Q And then what is being inserted is
13 navigable airspace; is that right?
14 A. That's correct, sir.
15 Q. Okay. And so the end result of this
16 proposed change will be to state that the Department
17 has the ability to regulate and exercise jurisdiction
18 over all Part 77 airspace irrespective of whether
19 it's one of these six imaginary surfaces or not?
20 A. That's correct, sir.
21 Q And -- and the reason that that position
22 has been advocated is to eliminate any uncertainty or
23 ambiguity in this regard?
24 A. That's correct, sir.
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
0D643 - K55
'
Proceedings
185
Q. And that's because there have -- there
has been issues expressed about the language being
ambiguous and not supporting the Department having
jurisdiction on the chap- -- excuse me, the Part 77
errors other than the six imaginary surfaces set
forth in the current version of the statute?
A. I've been told that.
Q. Okay. And so in order to remedy that,
there is proposed legislation being pursued?
10 A. Yes, six.
11 Q And, in fact, you have appeared before a
12 Senate committee advocating the adoption of this new
13 language?
14 A I'm trying to think if I testified or
15 not. I'm sorry.
16 Q Well, let me ask a better question.
17 A. Okay.
18 Q You have -- you have spoken before a
19 Senate committee regarding this proposed amendment
20 irrespective of whether they've sworn you in or not?
21 A I believe so.
22 Q. Okay. Now, what I want to do is drill
23 down for a moment, because you started off describing
24 in 2011, or whatever the particular year was, that
Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
OD643 - X56
Proceedings
aes
251
CERTIFICATE
ide hereby certify that the foregoing
is a true and correct transeript of the proceedings
taken by me in this matter on Monday, dune 5, 2017,
and carefully compared with my original stenographic
notes.
Canslyn D. edo
Carolyn WM Ross,
19 Registered Professional
Reporter and Notary
Li Public in and for the
State of Ohio.
12 gBRtrin,
> x
Sa fy,
be%
43
14 My commission expires April 8, 2019.
ey Oe
is {CDR-83914)
&
16 ANB
Ay
Ag
49
20
21
22
23
24
eerste nih seers
Armstrong & Okey, IN. + Columbus, Ohio {614} 224-9481
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
0D643 - K57
EXHIBIT
As Passed by the House B-5
132nd General Assembly
Regular Session Sub. H. B. No. 49
2017-2018
Representative Smith, R.
Cosponsors: Representatives Duffey, Ginter, Hambley, Hill, Lanese,
Manning, McColley, Patton, Perales, Reineke, Ryan, Scherer, Sprague
Speaker Rosenberger
A BILL
To amend sections 101.27, 101.34, 102.01, 162.02,
102.022, 102.03, 102.05, 102.06, 102.09, 102.99,
103. 41, 103.42, 103.45, 103.47, 105.41, 107.031,
3107 35, 109.572, 109.5723, 109.803, 117.04,
120 08, 120.18, 120.28, 120.33, 120.34, 120.35,
120 36, 121.22, 121.48, 122.01, 122.071, 122.08,
122 08i, 122.47, 122.171, 122.174, 122.175,
122 33, 122 641, 122.85, 122.86, 123.01, 123.20,
123 21, 124 38, 124.384, 124.823, 124.93, 125,035,
1258 04, 125 O61, 125.18, 125,22, 125.28, 126.11, 10
126 22, 126 35, 131.23, 131.33, 131.35, 131.44, at
131 51, 133 022, 133.06, 133.061, 135.143, 12
435 182, 135.45, 135.63, 135.71, 147.08, 147.541, 13
149 43, 151.03, 152.08, 153.01, 153.02, 154.11, 14
166 08, 166. a1, 167.03, 173.01, 173.14, 173.15, 15
173 17, 173. 19, 173.20, 173.21, 173.22, 173.24, 16
173 27, 173. 28, 173.38, 173.381, 173,42, 173.424, aq
173 48, 4173. 501, 173.51, 173.521, 173.542, 173.55, 18
173 99, 174. 02, 183.51, 191.04, 191.06, 305.05, 19
307 283, 307.678, 307.93, 307.984, 317.32, 20
317. 321, 319.11, 319.26, 319.54, 319.63, 321.26, 21
EXHIBIT
B
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513
0D643 - K58
1
Sub. H. B. No. 49
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - K43 ‘ Proceedings BEFORE THE OHIO DEPARTMENT OF TRANSPORTATION ae In the Matter of: Exhibit One Energy, LLC v. Ohio Department of Transportation. A Administrative Hearing for Denial of Permits for 2016-DOT-647-OF (2015-WTE-5286-O0E) and 2016-DOT-4888-OE (2016-WTE-2721-0K) eee PROCEEDINGS - VOLUME I before Michael J. Hardesty, Hearing Officer, at the Ohio Department of Transportation, Ohio Emergency Management Agency, 2855 West Dublin-Granville Road, Room 204, Columbus, Ohio, called at 9:00 a.m. on Monday, June 5, 2017. =e ARMSTRONG & OKEY, INC. 222 East Town Second Floor Street, Columbus, Ohio 43215-4620 (614) 224-9481 - (800) 223-9481 - a - Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - K44 . Proceedings 48 full-time? A No Q. How many of those are full-time? A All but a few. Q Okay. And with respect to the 20 or some individuals in the Office of Aviation -- and we'll just -- we'll mark it since March 20, 2016, how many of them are involved in any way in the permitting process? 10 A. Other than myself, we have some help 11 administratively, but essentially it's just myself. 12 Q Okay. So when counsel was describing 43 the Department's greater expertise than the FAA as 14 relating to the subject matters, he's referring to 15 your expertise; is that right? 16 A I assume so. i7 Q Okay. Is there anyone else in the 18 Office of Aviation that from your perspective has 19 greater expertise with respect to FAA -- excuse me, 20 the Ohio -- Ohio Airport Protection Act than 21 yourself? 22 A. In the Office of Aviation? 23 Q Yes, sir. 24 A No. Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - K45 ' 4 Proceedings 100 Q. Okay. So what specific language did you have input on? A. All of it. Qo. All of it, okay. And was your input communicated via email, or what was the medium by which it was communicated? A. Verbally. Q You never put pen to paper or -- or hit a key stroke to come up with the proposed language? 10 A Not that I recall. 1. Q Do you agree that the proposed 12 legislation would clarify from the perspective of the 13 Department that the -- its authority regarding 14 airspace extends beyond the clear zone surface, 15 horizontal surface, conical surface, primary surface, 16 approach surface, and transitional surfaces? 17 A. It's my opinion that the proposed i8 changes clarify the Department's position, if that 19 was. what the question was. 20 Q That is the -- the purpose of the 21 legislation is to clarify what the Office of 22 Aviation's position is as to the scope of its 23 statutory authority to regulate certain airspace? 24 MR. SEVERANCE: Objection, calling for a Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - K46 Proceedings 101 legal conclusion. OFFICER HARDESTY: Well, I would say that you can answer if you -- if you think it clarified the Department's position, iff you know. Tf you don’t know, then you should say that. THE WITNESS: It's my opinion that the language clarifies the Department's position. BY MR. LITTLE: Q And the position it clarifies is the 10 Department's position that it is entitled, from a 1. statutory standpoint, to grant or deny a permit for 12 airspace falling outside the clear zone, horizontal, 13 conical, primary, approach, and transitional 14 surfaces? 15 A. You're going to have to ask the question 16 again. I'm sorry. 17 Q. Sure. The clarification, you 18 understand, that is intended by this legislation is 19 to make clear the Department's position that it has 20 the statutory authority to grant or deny a permit for 21 an obstacle that is -- that doesn't penetrate the 22 clear, horizontal, conical, primary, approach, or 23 transitional surfaces? 24 MR. SEVERANCE: Probably the same Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - KA7 r Proceedings 102 objection as to a legal conclusion by a nonattorney. OFFICER HARDESTY: Well, he has to interpret this language in his job. Are you asking if it goes beyond the six surfaces? MR. LITTLE: I'm asking if that's what the intention was, to clarify that the Department believes that it has the statutory authority to regulate or grant or deny a permit for an obstacle -- excuse me, a structure falling outside the six 10 surfaces. 11 OFFICER HARDESTY: If you know. 12 THE WITNESS: It's my opinion it 13 clarifies the Department's position that we are 14 required to enforce Part 77 as a whole. 15 BY MR. LITTLE: 16 Q And Part 77 as a whole would include 17 space that is other than the six surfaces that are 18 enumerated currently in 4561.31 (A) (1)? 19 A. Well, it's our position that the current 20 language already says that and that this clarifies 2b that. 22 Q. That this proposed amendment is entitled 23 to serve as a clarification of existing 4561.31? 24 A That's correct. Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - K48 ‘ Proceedings 170 A. I -- in this case, I denied it on ~17 (a) (2). QO. Okay. Well, have you -- I'll ask it again -- all right. We'll take your answer. Your testimony is the sole reason that it was denied here is because it's 77.17 (a) (2)? A Correct. MR. LITTLE: All right. This might be a good time to break and organize the next witness. 10 OFFICER HARDESTY : Okay. We'll break 11 till 3:00 o'clock. 12 (Recess taken.) 13 (Witness placed under oath.) 14 15 JAMES E. BRYANT, 16 being by me first duly sworn, as hereinafter 17 certified, deposes and says as follows: 18 CROSS-EXAMINATION 19 BY MR. LITTLE: 20 Q Would you please state your full name 21 for the record? 22 A. Yes, sir, James E. Bryant, B-r-y-a-n-t. 23 Q Mr. Bryant, my name's Marion Little. 24 What is your current position with the Ohio Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - K49 Proceedings a7. Department of Transportation? A. I'm the Aviation Administrator, sir. Q. And how long have you held that position, please? A. Since 2004. Q. And were you associated with the Department of Transportation prior to 2004? A. I was not. I was a public servant, though. 10 Q. Were you associated with avia- -- di aviation -- excuse me, if I can speak -- aviation 12 prior to 2004? 13 A Since 1973. 14 Q. And '73, that would have -- would that 15 have been military related? 16 A. No, sir. 17 Q All right. What was your experience in 18 aviation starting in '73? 19 A I started taking private flying lessons. 20 Q. And then did you ultimately become a 21 private pilot? 22 A. Private, commercial, instrument, multi 23 engine, and helicopter rated. 24 Qo. And were you a pilot for any ——t Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 0D643 - K50 ‘ Proceedings 179 A Yes, sir Q. And each of these surfaces there, I count them being six, you're familiar with those; is that correct? A. Yes, sir Q. And each of those surfaces are defined in Part 7 7: is that correct? A. Of the six surfaces, sir? Q Yes, sir. 10 A. Yes, sir, that's correct. 11 Q. Okay. And with respect to each of those 12 six surfaces, those are the surfaces that a structure 13 cannot be constructed or penetrate into without the 14 State providing some form of permit; is that correct? 15 A. No, not really. There is six surfaces, 16 and there's an additional surface which we felt that 17 we had jurisdiction to also administer that we didn't 18 feel that the Ohio Revised Code when it was prepared 19 in 1991 or '92 adequately explained that. So we've 20 always felt that we had the jurisdiction to 21 administer the Part 77, we just wanted to make it 22 clear. 23 Q When you say "Part 77," can we agree 24 that that does -- that does not appear in Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 0D643 - K51 Proceedings 181 eliminate any ambiguity as to the ability of the Department to regulate the space in 77.17(a) (1) and (a) (2)? A. No, sir. When Mr. Wharton was putting his information together, he was not addressing the -17(a) (1) and (a) (2). That's come since with this second iteration of reviewing it. Q. Okay. So who -- who was responsible then for trying to go forward with the task of 10 clarifying the statutory language to make clear from 11 the Department's perspective that it had the 12 authority to regulate 77.17(a) (1) and (a) (2) space? 13 A. Carrie Glaeden, staff attorney, and John 14 Stains. 15 Q. Okay. And the process of trying to 16 remedy this ambiguity about the State's ability to a7 regulate that airspace began when, please? 18 A I would say a year-and-a-half, give or 19 take, year-and-a-half, two years ago. 20 Q Okay. And I take it that that's a 21 process that remains ongoing today? 22 A. Say that again, sir. 23 Q That's a process that remains ongoing 24 today? Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - K52 ' Proceedings 182 A. What process are you speaking of? Q That is the process of trying to secure legislation that would affirmatively state that the Department of Transportation has jurisdiction or authority over the space in 77.17(a) (1) and (a) (2)? A Correct. There is currently in the Budget Bill at the Statehouse, that -- that information's in there, those recommended changes that -- I think that you're showing me here are in 10 the Budget Bill. 11 QO. Okay. So if -- just so we're clear, if 12 we could please turn to -~- bear with me -- B-5, just 13 a couple tabs in. 14 A. Okay. 15 Q. And I've got something marked "As Passed 16 by the House, Sub. House Bill No. 49." Is that what 17 you're referring to? 18 A. That’s correct, six. 19 Q. And if I could direct your attention to 20 the third page of the exhibit. 21 A Including the front page, sin? 22 Q Yes, sir. It will say Page 2061 at the 23 top. 24 A Okay. Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 0D643 - K53 . ‘ Proceedings 183 Q. And if we look there at Subparagraph {L), do you see where there is an insertion of proposed language defining navigable airspace? A. Yes, sir. Q. Okay. And the definition of navigable airspace as set forth here would include all the space in 14 CFR Part 77, including the imaginary surfaces that are already listed in the statute? A. That's correct. 10 Q. Okay. And so then if we turn to the 11 page which says 2063 at the top -- 12 A Okay. 13 Q. -- two pages over, where we see a red 14 lining, if you will, of existing 4561.31. Are you 15 with me? 16 A. I don't see any red line, 17 Q I refer to red line as the striking of 18 language. 19 A There's several strikings on the page. 20 Can you direct me to which part, please? 21 Q Sure. The one that is under Section 22 4561.31, it will be the last paragraph on that page. 23 A. Okay, sir. 24 Q. Are you with me? Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - K54 : Proceedings 184 A. Yes, sir. Q. And in that paragraph, there's certain language that is struck out. A. Yes, sir. Q. So if we look at -- and there's line numbers in the right-hand column. So if you look at -~- starting at Line Item 64079, do you see where the language in existing 4561.31(A) (1) relating to the six imaginary surfaces is being struck? Do you 10 see that? 11 A. Yes, sir. 12 Q And then what is being inserted is 13 navigable airspace; is that right? 14 A. That's correct, sir. 15 Q. Okay. And so the end result of this 16 proposed change will be to state that the Department 17 has the ability to regulate and exercise jurisdiction 18 over all Part 77 airspace irrespective of whether 19 it's one of these six imaginary surfaces or not? 20 A. That's correct, sir. 21 Q And -- and the reason that that position 22 has been advocated is to eliminate any uncertainty or 23 ambiguity in this regard? 24 A. That's correct, sir. Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 0D643 - K55 ' Proceedings 185 Q. And that's because there have -- there has been issues expressed about the language being ambiguous and not supporting the Department having jurisdiction on the chap- -- excuse me, the Part 77 errors other than the six imaginary surfaces set forth in the current version of the statute? A. I've been told that. Q. Okay. And so in order to remedy that, there is proposed legislation being pursued? 10 A. Yes, six. 11 Q And, in fact, you have appeared before a 12 Senate committee advocating the adoption of this new 13 language? 14 A I'm trying to think if I testified or 15 not. I'm sorry. 16 Q Well, let me ask a better question. 17 A. Okay. 18 Q You have -- you have spoken before a 19 Senate committee regarding this proposed amendment 20 irrespective of whether they've sworn you in or not? 21 A I believe so. 22 Q. Okay. Now, what I want to do is drill 23 down for a moment, because you started off describing 24 in 2011, or whatever the particular year was, that Armstrong & Okey, Inc., Columbus, Ohio (614) 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 OD643 - X56 Proceedings aes 251 CERTIFICATE ide hereby certify that the foregoing is a true and correct transeript of the proceedings taken by me in this matter on Monday, dune 5, 2017, and carefully compared with my original stenographic notes. Canslyn D. edo Carolyn WM Ross, 19 Registered Professional Reporter and Notary Li Public in and for the State of Ohio. 12 gBRtrin, > x Sa fy, be% 43 14 My commission expires April 8, 2019. ey Oe is {CDR-83914) & 16 ANB Ay Ag 49 20 21 22 23 24 eerste nih seers Armstrong & Okey, IN. + Columbus, Ohio {614} 224-9481 Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 0D643 - K57 EXHIBIT As Passed by the House B-5 132nd General Assembly Regular Session Sub. H. B. No. 49 2017-2018 Representative Smith, R. Cosponsors: Representatives Duffey, Ginter, Hambley, Hill, Lanese, Manning, McColley, Patton, Perales, Reineke, Ryan, Scherer, Sprague Speaker Rosenberger A BILL To amend sections 101.27, 101.34, 102.01, 162.02, 102.022, 102.03, 102.05, 102.06, 102.09, 102.99, 103. 41, 103.42, 103.45, 103.47, 105.41, 107.031, 3107 35, 109.572, 109.5723, 109.803, 117.04, 120 08, 120.18, 120.28, 120.33, 120.34, 120.35, 120 36, 121.22, 121.48, 122.01, 122.071, 122.08, 122 08i, 122.47, 122.171, 122.174, 122.175, 122 33, 122 641, 122.85, 122.86, 123.01, 123.20, 123 21, 124 38, 124.384, 124.823, 124.93, 125,035, 1258 04, 125 O61, 125.18, 125,22, 125.28, 126.11, 10 126 22, 126 35, 131.23, 131.33, 131.35, 131.44, at 131 51, 133 022, 133.06, 133.061, 135.143, 12 435 182, 135.45, 135.63, 135.71, 147.08, 147.541, 13 149 43, 151.03, 152.08, 153.01, 153.02, 154.11, 14 166 08, 166. a1, 167.03, 173.01, 173.14, 173.15, 15 173 17, 173. 19, 173.20, 173.21, 173.22, 173.24, 16 173 27, 173. 28, 173.38, 173.381, 173,42, 173.424, aq 173 48, 4173. 501, 173.51, 173.521, 173.542, 173.55, 18 173 99, 174. 02, 183.51, 191.04, 191.06, 305.05, 19 307 283, 307.678, 307.93, 307.984, 317.32, 20 317. 321, 319.11, 319.26, 319.54, 319.63, 321.26, 21 EXHIBIT B Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Jun 20 11:15 AM-17CV005513 0D643 - K58 1 Sub. H. B. No. 49