Wake got nothing wrong. Dismissal based on ripeness versus merit are two very different animals. In fact, the 9th warned USAPA it would more or less lose if this case ever became ripe.
The problem in this understanding gap here is that Wake was being realistic and knew full well that USAPA would not negotiate an agreement that would be more beneficial to the west than the Nic. Is it possible for USAPA to negotiate something that is less harmful to the west? Yes. Is there any chance of that happening? Absolutely not. They would then have to deal with a potential DFR from east pilots if they did so.
Wake looked at the details of the case, the 9th looked at the concepts involved.
