1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JEFFREY S. BUCHOLTZ Acting Assistant Attorney General THOMAS P. O’BRIEN United States Attorney ARTHUR R. GOLDBERG, D.C. Bar No. 180661 Assistant Branch Director JOEL McELVAIN, D.C. Bar No. 448431 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20001 Telephone: (202) 514-2988 Fax: (202) 616-8202 Email: Joel.McElvain@usdoj.gov Attorneys for the Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION UNITED STATES OF AMERICA, and ) MARY E. PETERS, United States ) Secretary of Transportation, ) ) Plaintiffs, ) ) v. ) ) CITY OF SANTA MONICA, ) ) Defendant. ) Civ. Action No. ___________ Memorandum in Support of Application for Temporary Restraining Order1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page Introduction .......................................................1 Background .......................................................2 I. Statutory and regulatory background ..............................2 II. Factual background ............................................5 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 I. The plaintiffs are likely to succeed on the merits .....................9 II. There is a clear possibility of irreparable harm . . . . . . . . . . . . . . . . . . . . . . 11 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iiTABLE OF AUTHORITIES Page Cases A&M Records, Inc. v. Napster, Inc. , 239 F.3d 1004 (9th Cir. 2001) ................................................8 Civil Aeronautics Bd. v. Carefree Travel, Inc. , 513 F.2d 375 (2d Cir. 1975) ................................................9 Federal Maritime Comm’n v. Sourth Carolina Ports Auth. , 535 U.S. 743 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 GTE South, Inc. v. Morrison , 199 F.3d 733 (4th Cir. 1999) . . . . . . . . . . . . . . . . . 11 Navel Orange Admin. Comm. v. Exeter Orange Co. , 722 F.2d 449 (9th Cir. 1983) ................................................9 United States v. Nutri-Cology, Inc. , 982 F.2d 394 (9th Cir. 1992) ................................................9 United States v. Odessa Union Warehouse Co-op , 833 F.2d 172 (9th Cir. 1987) ................................................9 United States v. Ruzicka , 329 U.S. 287 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Yakus v. United States , 321 U.S. 414 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Statutes 49 U.S.C. § 40103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6 49 U.S.C. § 40113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8 49 U.S.C. § 44502 ..................................................2 49 U.S.C. § 44721 ..................................................2 49 U.S.C. § 46105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 8, 10 49 U.S.C. § 46106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9 49 U.S.C. § 46107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9 49 U.S.C. § 46110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10 49 U.S.C. § 47107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6 49 U.S.C. § 47111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9 49 U.S.C. § 47122 ..................................................3 49 U.S.C. § 47151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7 Regulations 14 C.F.R. § 16.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 14 C.F.R. § 16.31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 14 C.F.R. § 16.109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 14 C.F.R. § 97.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JEFFREY S. BUCHOLTZ Acting Assistant Attorney General THOMAS P. O’BRIEN United States Attorney ARTHUR R. GOLDBERG, D.C. Bar No. 180661 Assistant Branch Director JOEL McELVAIN, D.C. Bar No. 448431 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20001 Telephone: (202) 514-2988 Fax: (202) 616-8202 Email: Joel.McElvain@usdoj.gov Attorneys for the Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION UNITED STATES OF AMERICA, and ) MARY E. PETERS, United States ) Secretary of Transportation, ) ) Plaintiffs, ) ) v. ) ) CITY OF SANTA MONICA, ) ) Defendant. ) Civ. Action No. ___________ Memorandum in Support of Application for Temporary Restraining Order

Introduction The Plaintiffs, the United States of Am erica, and Mary E. Peters, the United States Secretary of Transportation, respect fully seek a temporary restraining order directing the Defendant, the City of Sa nta Monica, California (“the City”) to comply with the Interim Cease and DesistOrder (“Order”) issued by the Acting Director of the Office of Airport Safety and Standards of the Federal Aviation Administration (“FAA”) on April 23, 2008. The Order commands the City to refrain from enforcement of an ordinan ce that attempts to ban the operation of certain categories of aircraft from operating at Santa Monica Airport (“SMO”).1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 2 - The City has made clear its refusal to comply with the Order and its intent to commence enforcement of its ordinance on April 24, 2008. Plaintiffs are entitled to a temporary restraining order enjoining the City’s enforcement of its ordinan ce because they are not mere ly likely to succeed on the merits of their claim against the City, they are certain to do so. The City is squarely in violation of 49 U.S.C. §46105( a), which requires compliance with an order issued by the FAA until such order is amended, modified or set aside either in the ongoing administrative process or by the Court of Appeals. No showing of irreparable harm is needed because in en forcement actions such as this one where Congress has authorized injunctive relie f as part of the statutory scheme, irreparable harm from the denial of enforcement is presumed to occur. In any event, irreparable harm would exist in the absence of temporary injunctive relief because the City’s a ttempted ban would disrupt 9,000 aircraft operations per year at SMO, thereby a ffecting some 20,000 to 30,000 passengers, and most importantly, would force the diversion of these flights to other area airports that are already operating at or near capacity. This would interfere with the federal government’s role in ensuri ng efficient and uniform national aviation operations. Accordingly, the Plaintiffs are entitled to an order from this Court enjoining the City to comply with the Order. Background I. Statutory and Regulatory Background Under federal law, the Administrator of the FAA holds plenary authority over matters concerning the use and manageme nt of navigable airspace, air traffic control, and air navigation facilitie s. 49 U.S.C. §§ 40103(b), 44502, 44721. In accordance with this plenary grant of authority to the federal government, federal law sharply restricts the ability of state orlocal governments to interfere with the operations of the federal aviation system.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 3 - Consistent with this grant of plenary authority to the federal government, an operator of an airport that is available fo r public use is subject to several statutory conditions, which are intended to ensure th at the airport operator does not interfere with the efficient operations of the national air system. In particular, an operator of an air navigation facility on which govern ment money has been expended may not grant exclusive rights for the use of thatfacility. 49 U.S.C. § 40103(e). That is, the operator of an airport may not impose unreasonable conditions on the use of the facility, or apply any standard for the use of the facility in an unjustly discriminatory manner. In addition, a recipient of federal gr ants for the use in the operation of an airport must make that airport “available for public use on reasonable conditions and without unjust discrimination.” 49 U.S.C. § 47107(a)(1). A grant recipient must also pledge that any air carrier making “similar use” of the airport will be subject to substantially comparable regulations and conditions “except for differences based on reasonable classi fications.” 49 U.S.C. § 47107(a)(2). Similarly, a recipient of a conveyance of any interest held by the federal government in surplus property, which the federal government has conveyed for use as a public airport, must maintain the airport “for public use and benefit without unreasonable discrimination,” and to ensure that that rights in the use of the airport may not be vested in a person “excluding others in the same class.” 49 U.S.C. § 47151. Federal law vests the primary authority with the federal government to determine whether these provisions, and other provisions of the federal aviation laws, have been violated. The Secretary of Transportation, or the Administrator of the FAA, is authorized to issue orders enforcing the federal aviation laws. 49 U.S.C. §§ 40113(a), 47122(a), (b). The Administraotr has delegated a portion of that authority to the Director of the Offi ce of Airport Safety and Standards of the1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 4 - FAA. Under 14 C.F.R. § 16.11(a), the Director may issue orders and take such other actions as are necessary to fulfill the purposes of 14 C.F.R., part 16 (which governs the administrative process of investigations of certain violations of the federal aviation laws). In particular , upon finding that the circumstances require expedited handling of a particular case orcontroversy, the Director may issue an order directing such measures as may be required. 14 C.F.R. § 16.11(b). See also 14 C.F.R. §§ 16.31, 16.109(a). Any person adversely affected by the te rms of an order issued under these provisions may apply for relief from the order in the United States Court of Appeals for the District of Columbia Circ uit, or in the Court of Appeals for the circuit in which the person resides or has its principal place of business. 49 U.S.C. § 46110(a). The Court of Appeals has “exc lusive jurisdiction” to affirm, amend, modify, or set aside any part of such order. 49 U.S.C. § 46110(c). Additionally, after notice to the Secretary, the Court of Appeals “may grant interim relief by staying the order or taking other appropriate action” for good cause. Id. Unless and until an order is amended, modified, or set aside by the Secretary or her designee, or by the Court of Appeals pursuant to 49 U.S.C. § 46110, the order “remains in effect under its own terms,” 49 U.S.C. § 46105(a), and all affected persons are required to comply with such order. Both the Secretary of Transportation a nd the Attorney General of the United States are authorized to “bring a civil ac tion against a person in a district court of the United States to enforce this part ora requirement or regulation prescribed, or an order or any term of a certificate or permit issue, under this part.” 49 U.S.C. §§ 46106, 46107; see also 49 U.S.C. § 47111(f). Such action may be brought in the judicial district where the defenda nt does business or where the violation occurred. 49 U.S.C. §§ 46106, 46107, 47111(f).1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Evidentiary support for the factual assertions in this memorandum is provided by the Interim Cease and Desist Order of the Acting Director of the Office of Airport Safety and Standards, a ttached as Exhibit 1 to the Declaration of Kelvin L. Solco.

- 5 - II. Factual Background The City operates the Santa Monica Municipal Airport (“the airport,” or “SMO”). 1 The airport serves an important role in the regional and national system of air transportation and air commerce. It has a vital and critical role in its function as a general aviation reliever airport for the primary airports in the area, by diverting aircraft away from other more h eavily used airports in the greater Los Angeles area. The City and the FAA entered into a settlement agreement in January 1984 to resolve then-pending litigation. Under th at agreement, the City obligated itself, consistent with the requirements of fe deral law discussed above, to keep SMO “open and available for public use as an airport on fair and reasonable terms, without unjust discrimination, and withoutgranting any exclusive rights prohibited by law,” and without derogation of the airport’s role as a general aviation reliever airport. The settlement agreent also conf irms the City’s recognition of the FAA’s preeminent role in airport safety matters by stating that “exclusive authority is vested in the FAA for the regulation of all aspects of air safety, the management and control of the safe and efficient us e of the navigable airspace, and movement of aircraft through that airspace.” On March 25, 2008, the City adopted an ordinance that purports to regulate the operation of aircraft at SMO. Sa nta Monica, Cal., Mun. Code § 10.04.06.220 (2008) (“the ordinance”). The ordinance purports to prohibit operations at SMO1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2The ordinance’s letter designations of categories of aircraft is based on an FAA categorization system for aircraft. Under that system, letter designations refer to an aircraft’s approach speed at landing. A Category C aircraft has an approach speed of more than 120 knots and less than 141 knots. A Category D aircraft has an approach speed of more than 140 knots and less than 166 knots. See 14 C.F.R. § 97.3.

- 6 - by Category C and Category D airc raft, except in an emergency. 2The ordinance purports to punish violations of its terms by a $1,000 fine, a term of imprisonment by as much as six months, or both. Th e ordinance will become effective on April 24, 2008. Approximately 9,000 out of the approximately 130,000 aircraft operations at SMO each year involve Cate gory C or Category D aircraft. These aircraft have operated for y ears at SMO without incident. By an Order to Show Cause dated March 26, 2008, Kelvin L. Solco, the Acting Director of the Office of Airport Safety and Standards of the FAA (“the Acting Director”), informed the City thatthe FAA had reason to believe that the new ordinance was in violation of federal law. The order directed the City to show cause, within ten days, as to whethe r the FAA should supplement an existing investigation to include an investigation in to the legality of the new ordinance. In particular, the order noted that the new ordinance likely: (a) was preempted by the vesting, under federal law, of exclusive authority in the federal government to regulate all matters related to air safety; (b) violated the City’s obligation not to award exclusive rights for the use of an air navigation facility, 49 U.S.C. § 40103(e); (c) violated the City’s obligati on, as a recipient of federal grants, to make the airport “available for public use on reasonable conditions and without unjust discrimination,” 49 U.S.C. § 47107(a)(1); (d) violated the City’s obligation, as the recipient of a deed of property fro m the federal government, to maintain the airport “for public use and benefit w ithout unreasonable discrimination,” and to ensure that that rights in the use of th e airport may not be vested in a person1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 7 - “excluding others in the same class,” 49 U.S.C. § 47151; and (e) violated the City’s obligation, under the 1984 settlement agreement, to keep SMO “open and available for public use as an airport on fair and reasonable terms, without unjust discrimination, and without granting any exclusive rights prohibited by law,” and without derogation of the airport’s role as a general aviation reliever airport. The City responded to the Order to S how Cause on April 7, 2008, reiterating the reasons that it believed the ordinance to be lawful. The City indicated that it intended to enforce the ordinance. The FAA accordingly is continuing its investigation into the City’s operations of SMO, including the legality of the new ordinance. Under the procedures described in 14 C.F.R., part 16, that investigation will result in an initial determination by the Acting Director of the Office of Airport Safety and Standards, stating a non-final determination whether the new ordinance complies with federal law. If th e Acting Director concludes that it does not, the City will be afforded an opportun ity for a hearing, and a hearing officer will issue an initial decision. The Associat e Administrator for Airports of the FAA may review that initial decision, and may issue a final agency decision on behalf of the Secretary of Transportation. That fina l agency decision may be reviewed in the Court of Appeals. See generally14 C.F.R., pt. 16. Despite the pendency of these admini strative proceedings, the City has already taken steps to enforce its ordinance. On April 14, 2008, Robert Trimborn, the Airport Director for SMO, sent a letter to users of the airport warning them that they must comply with the ordinance. On April 21, 2008, the Acting Director sent a letter to Mr. Trimborn asking him to confirm (no later than close of business of April 22) that the City would withdraw its letter to airport users, and th at the City would refrain from any efforts to enforce the ordinance while ad ministrative proceedings are pending.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 8 - On April 22, 2008, Marsha Jones Moutrie, the City Attorney for Santa Monica, responded by letter, and stated thatthe City continued to adhere to its intent to enforce the ordinance. On April 23, 2008, the Acting Directorissued an Interim Cease and Desist Order, pursuant to 49 U.S.C. §§ 40113 and 47122 and 14 C.F.R. § 16.11, 16.31, and 16.109(a), directing the City to immediately cease and desist from the enforcement of the ordinance. The Orde r also afforded the City ten days to respond, to show cause why its terms should not remain in effect during the pendency of the administrative proceed ings concerning the legality of the ordinance. Given the City’s responses to the Order to Show Cause and to the Acting Director’s letter of April 21, it is apparent that the City intends to violate the Interim Cease and Desist Order. Argument As stated above, the City is placing itsel f squarely in violation of a valid and effective Order of the FAA by refusing to comply with th e Interim Cease and Desist Order. Pursuant to 49 U.S.C. § 46105, the City may not do so; the Order is effective under its own terms until such time as it is modified or set aside by the Secretary (or her designee) or the Court of Appeals. Because the City refuses to comply with its clear obligation to obey the Order, and to refrain from the enforcement of its ordinance, the Plainti ffs are entitled to a temporary restraining order. As a general matter, preliminary in junctive relief (such as a temporary restraining order) may issue when the moving party demonstrates either “a combination of probable success on the merits and the possibility of irreparable harm,” or “that serious questions are rais ed and the balance of hardships tips in its favor.” See A&M Records, Inc. v. Napster, Inc. , 239 F.3d 1004, 1013 (9th Cir. 2001).1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 9 - However, in statutory enforcement actons brought by the federal government, such as the present case, wh ere an injunction is authorized by the statute, the requirement of showing an i rreparable injury is considered satisfied once a violation of federal law has been established. “In statutory enforcement actions, . . . the passage of the statute is itself an implied finding by Congress that violations will harm the public . . . [and] further inquiry into irreparable injury is unnecessary.” United States v. Nutri-Cology, Inc. , 982 F.2d 394, 398 (9th Cir. 1992); see also United States v. Odessa Union warehouse Co-op , 833 F.2d 172, 175 (9th Cir. 1987). In other words, “[w]hen the government is seeking compliance pursuant to a statutory enfor cement scheme, irreparable injury from a denial of enforcement is presumed.” Navel Orange Admin. Comm. v. Exeter Orange Co. , 722 F.2d 449, 453 (9th Cir. 1983). This rule, that the federal government need not show irreparable injury to gain injunctive relief, applies fully to enforcement actions under the Federal Aviation Act pursuant to 49 C.F.R. §§ 46106, 46107, and 47111. See Civil Aeronautics Bd. v. Carefree Travel, Inc. , 513 F.2d 375, 385 (2d Cir. 1975). Accordingly, the Plaintiffs need only show a likelihood that they will succeed on the merits. In any event, the Plaintiffs easily meet either standard. I. The Plaintiffs Are Likely to Succeed on the Merits In this case, it is not only likely th at the Plaintiffs will succeed on their claim, it is certain. The Interim Cease and Desist Order issued by the Acting Director instructs the City to cease and desi st all efforts to enforce its ordinance. The City persists in its efforts to enfor ce its ordinance, and accordingly is acting in violation of this Order. The City how ever, may not determine on its own initiative whether it will obey this Order. The Plaintiffs are accordingly entitled to relief from this court enjoining the City to comply with the Order.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 10 - Pursuant to 49 U.S.C. § 46105(a), the Interim Cease and Desist Order “remains in effect under its own terms or until superseded.” Neither the Secretary (nor any designee of the Secretary) nora Court of Appeals has modified or superseded the Order. The Order thus is valid and binding. The City’s efforts to continue to enforce its ordinance violate the Order, and thus place it in violation of the terms of Section 46105, which require compliance with the Order while it is in effect. By terms of the Order itself, the City may respond to the FAA to show cause why the Order should not remain in effect. The City may also petition to the Court of Appeals, which would have “exclu sive jurisdiction” to review the Order. 49 U.S.C. § 46110. No provision of law, however, permits the City to violate the Order absent such relief either fro m the FAA or the Court of Appeals. The City may attempt to justify its violation of the Order before this Court by asserting arguments with respect to whether the ordinance may ultimately be found to be legal – the matter that is ultimately before the FAA, and that ultimately will be the subject to review by the Court of Appeals. Any such arguments would be improper in this forum. While the C ity is certainly entitled to present these arguments to the agency, and to the Court of Appeals, they have no bearing in this proceeding, which concerns only the enforcem ent of the Order while it is in effect. Under 49 U.S.C. § 46110(c), the Court of Appeals, and not this Court, holds exclusive jurisdiction to review the Inte rim Cease and Desist Order, as well as to review any final order that results fro m the administrative proceedings currently under way. The Court of Appeals also hol ds exclusive jurisdiction to award the City any “interim relief” it may seek fro m that Order, upon a showing before that Court of good cause for such relief, under Section 46110(c). Under this statutory scheme, any e ffort by the City to challenge the underlying merits of the Order in this Court would intude upon the Court of Appeals’ exclusive jurisdiction, and cannot be countenanced. See Federal1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 11 - Maritime Comm’n v. Sourth Carolina Ports Auth. , 535 U.S. 743, 762 (2002) (under similar statutory scheme for exclus ive appellate jurisdiction over review of Commission’s orders, district court’s review is limited only to enforcement of the order, and “the sa nctioned party is not permitted to litigate the merits of its position in that court”) (emphasis in original). See also Yakus v. United States , 321 U.S. 414, 429-30 (1944) (under statute vesting exclusive jurisdtion in court of appeals, district court lacked authority to hearchallenge to validity of order in an enforcement action); United States v. Ruzicka , 329 U.S. 287 (1946); GTE South, Inc. v. Morrison , 199 F.3d 733, 744 (4th Cir. 1999). The only question before this Court is whether the City is in violation of the Interim Cease and Desist Order. The City is free to seek any appropriate relief from the Court of Appeals; it may not, howev er, unilaterally decide to violate the Order, nor may it seek to justify such a violation before this Court by disputing the Order’s merits. Because there is no dispute that the City is so in violation, the Plaintiffs are not only likely, but ar e certain, to succeed on their claim for enforcement of the Interi m Cease and Desist Order. II. There is a Clear Possibility of Irreparable Harm As noted above, the Plaintiffs need not demonstrate the danger of irreparable harm to gain the relief sought here, the enforcement of a valid order issued under federal law. In any event, there is a cleardanger of irreparable harm to the national aviation system if the City’s ordinance were to be permitted to go into effect. The ordinance would prohibit the operations of Category C and Category D aircraft at SMO. There currently are approximately 9,000 aircraft operations at that airport per year. The ban thus would likely affect approximately 20,000 to 30,000 passengers annually. These aircraft w ould be diverted to other airports in the region, including LAX. These other airports, however, already operate at or near capacity; the ban thus would create congestion and delays , and interfere with1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 12 - safe and efficient use of the air space in the Los Angeles area. In addition, the effect of the ordinance, if other airport operators were to follow suit, would multiply the impact of local efforts to in terfere with the unifom operations of the federal aviation system. This interference with regional and national aviation operations presents a possbility of irreparable injury to the fede ral government’s interest in ensuring safe and efficient use of air space. The balance of equities lies in favor of enforcing the Interim Cease and Desist Order, which seeks only to preserve the status quo in which Category C and Category D aircraft have operated without incident for over twenty years. Conclusion For the foregoing reasons, the Plaintiffs respectfully request that the Court enter a temporary restraining order that w ill enjoin the Defendant, the City of Santa Monica, California (“the City”): 1. To comply with the Interim Cease and Desist Order issued by the Acting Director of the Office of Airport Safety and Standards of the Federal Aviation Administration (“FAA”) on April 23, 2008; 2. To cease and desist from the en forcement of Santa Monica, Cal., Mun. Code § 10.04.06.220 (2008) during the pe ndency of the FAA’s administrative proceedings with respect to the validity of that ordinance; and 3. To permit Category C and Category D aircraft to operate at SMO during that same time period to the extent that such aircraft are permitted to do so under federal law.