Form 6. Civil Appeals Docketing Statement USCA DOCKET # (IF KNOWN)

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CIVIL APPEALS DOCKETING STATEMENT

PLEASE ATTACH ADDITIONAL PAGES IF NECESSARY

TITLE IN FULL: DISTRICT: N/A a JUDGE: N/A a

CITY OF SANTA MONICA, FAA DOCKET NUMBER: 16-02-08

Petitioner,

vs. DA TE 1'10TICE OF APPEAL I

KEL VIN L. SOLCO, in his Official Capacity as Acting FILED: Mai-i2, 2008 II IS THIS ACROSS-APPEAL? OYES

Director, Office of Airport Safety and Standards,

IF THIS lVIAITER HAS BEEN BEFORE THIS COURT PREVIOUSLY, BYRON K. HUFFMAN, in his Official Capacity as

Acting Director, Office of Airport Safety and Standards, PLEASE PROVIDE THE DOCKET NUMBER AND eITA TION (IF ANY):

and FEDERAL AVIA TION ADMINISTRATION,

Respondents. ••

BRIEF DESCRIPTION OF ACTION AND RESULT BELOW:

Petition for Review oflnterim Cease and Desist Order and Supplemental Interim Cease and Desist Order issued by the FAA in FAA Docket No.

16-02-08 to prohibit the City of Santa Monica from enforcing a City Ordinance banning category C and D aircraft at the Santa Monica Municipal

A irport for safety reasons.

PRINCIPAL ISSUES PROPOSED TO BE RAISED ON APPEAL:

Whether the FAA has the authority to issue and enforce an interim cease and desist order and a supplemental interim cease and desist order before it

has complied with statutory and regulatory requirements that must proceed issuance of such an order.

PLEASE IDENTIFY ANY OTHER LEGAL PROCEEDING THAT MAY HAVE A BEARING ON THIS CASE (INCLUDE

PENDING DISTRICT COURT POST-JUDGMENT MOTIONS):

UNITED STATES OF AMERICA and PETERS v. CITY OF SANTA MONICA, USDC Case No. CV 08-02695 GW{Ex} {C.D. Cal. Filed April

24,2008.

DOES THIS APPEAL INVOLVE ANY OF THE FOLLOWING:

o Possibility of settlement

o Likelihood tbat intervening precedent will control outcome of appeal

IRl Likelihood of a motion to expedite or to stay the appeal. or otber procedural matters (specify)

..

Petitioner expects to file a Motion to Expedite and a Motion for a Stay Pending Appeal in conjunction with its appeal from the Preliminary

injunction in the related action of UNITED STATES et al. v. CITY OF SANTA MONICA, supra.

EXHIBIT

o Any other information relevant to the inclusion of this case in the Mediation Program j Jc20

o Possibility parties would stipulate to binding award by Appellate Commissioner in lieu of submission to judges.

Ei'fec.tj'·,re 7/ !/2000

A-I 13 (l0/00) CIVIL APPEALS DOCKETING STATEMENT Page I of2
..

LOWER COURT l~FORMATION Page 2 01'2

JURISDICTION j DiSTRiCT COURT DISPOSlTJON

FEDER..<\L APPELL-A.TE TYPE OF JUDGMENT I ORDER RELlEF

APPEALED

li9 FEDERAL o FINAL DECISION OF

i

C DEFAULT JUDGMENT o DAMAGES:

QUESTION DISTRICT COURT C DISMISSAL j JURiSDICTION SOUGHT $

C DISMISSAL I MERITS AWARDED ~

0 DIVERSITY o INTERLOCUTORY 0 SUMMARY JUDGMENT o INJUNCTIONS:

DECISION 0 JUDGMENT / COURT DECISION o PRELIMINARY

o OTHER APPEALABLE AS OF 0 JUDGMENT I JURY VERDICT o PERMANENT

(SPECIFY) RIGHT C DECLARATORY JUDGMENT D GRANTED

0 JUDGMENT AS A MATTER OF LA W o DENIED

o INTERLOCUTORY f8J OTHER (SPECIFY):

ORDER CERTIFIED BY Administrative decision of the FAA D ATTORNEY FEES:

DISTRICT JUDGE SOUGHT s

(SPECIFY): AWARDED~

0 PENDING

o COSTS: s

l&l OTHER (SPECIFY):

Petition for Review

49 U.S.c. sec. 46110

CERTIFICA TION OF COUNSEL

I CERTIFY THAT:

l. COPIES OF ORDER / JUDGMENT APPEALED FROM ARE ATTACHED.

2. A CURRENT SERVICE LIST OR REPRESENTATION STATEMENT WITH TELEPHONE AND FAX NUMBERS IS

ATf ACHED ( SEE 9

TH CIR. RULE 3-2

3. A COpy OF THIS CIVIL APPEALS DOCKETING STATEMENT WAS SERVED IN COMPLIANCE WITH FRAP 25.

4. I UNDERSTAND THAT FAILURE TO COMPLY WITH THESE FILING REQUIREMENTS MAY RESULT IN SANCTIONS,

INCLUDING DISMISSAL OF THIS APPEAL.

~7 7~L-..

May 22, 200&.

Signature Date

COUNSEL WHO COMPLETED THIS FORM

NAME: MARTIN T. TACHIKI .

FIRM: CITY An'ORNEY'S OFFICE, CITY OF SANTA MONIC"

ADDRESS: J685 Main Street, 3rd Floor

Santa Monica. CA 9040J

E-MAIL: marty.lachiki@smgov.net

!,'r

TELEPHONE: 310-458-8336

FAX: 310-395-6727

* THIS DOClJ!\1ENT SHOVLD BE FILED IN THE DISTRICT COURT WITH THE NOTICE OF APPEAL*

• IF FILED LATE, IT SHOULD BE FILED DIRECTLY WITH THE V.S. COliRT OF APPEALS·

Effective 7ft 12000

/0.- J J a (!0/00) CIVIL APPEALS DOCKETING STATEMENT Pagel 01'2
Case No.

-------

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF SANTA MONICA, CALIFORNIA,

Petitioner,

v.

KELVIN L. SOLCO, in his Official Capacity as

Acting Director, Office of Airport Safety and

Standards, BYRON K. HUFFMAN, in his Official

Capacity as Acting Director, Office of Airport Safety

and Standards, and the FEDERAL AVIATION

ADMINISTRATION,

Respondents.

)

)

) Docket No. FAA 16-02-08

)

)

)

)

)

)

)

)

)

)

)

)

PETITION FOR REVIEW

MARSHA JONES MOUTRIE

City Attorney

JOSEPH LAWRENCE

Assistant City Attorney

LANCE S. GAMS - Bar No. 125487

MARTIN T. TACHIKl - Bar No. 083044

Deputy City Attorneys

1685 Main Street, Room 310

Santa Monica, California 90401-3295

Telephone: (310) 458-8336

Facsimile: (310) 393-6727

lance. gams((v,smgov .net

marty. tachiki@smgov.net

[Counsel List Continued On Next Page]
ARTHURP. BERG, ESQ.

Kaplan Kirsch & Rockwell, LLP

730 Fifth Avenue, Suite 900

New York, New York 10019

Telephone: (212) 265-7008

Facsimile: (646) 514-5440

THOMAS R. DEVINE, ESQ.

W. ERIC PILSK, ESQ.

Kaplan Kirsch & Rockwell, LLP

1001 Connecticut Ave., NW # 905

Washington, D.C. 20036

Telephone: (202) 955-5600

Facsimile: (202) 955-5616

Attorneys for Petitioner

CITY OF SANTA MONICA
The City of Santa Monica, California, hereby petitions the Court for a

review of the April 23, 2008 "Interim Cease and Desist Order" and the May 12,

2008 "Supplemental Interim Cease and Desist Order" both of which were issued

by the Federal Aviation Administration in FAA Docket No. 16-02-08. Copies of

the Orders are attached hereto.

DATED: May 22, 2008 MARSHA JONES MOUTRIE

City Attorney

~77JL'

By .

MARTIN T. TACHIKI

Deputy City Attorney

Attorneys for Petitioner

CITY OF SANTA MONICA
.•.,... ,;:;

UNITED STATES DEPARTMENT OF ~9'r~T~q~: 5 :

FEDERAL AVIATION ADMINISTRA1101't

WASHINGTON, DC .: .I;',·f

)

IN THE MA TIER OF COMPLIANCE )

WITH FEDERAL OBLIGATIONS )

BY THE CITY OF SANTA MONICA, )

CALIFORNIA ) .

------------- )

FAA Doeket No.16-02-oS

INTERIM CEASE AND DESIST ORDER

:::110

This matter is before the Federal Aviation Administration (FAA) based on a Notice of Investigatioa; "::

(NOI) dated October 8,2002, initiated by the Director of the Office of Airport Safety and Stan~, mi&

supplemented by his March 26, 2008 Order to Show Cause. The NOI and Order to Show Cause were

issued in accordance with the FAA Rules of Practice for Federally Assisted Airport Enforcement

Proceedings, 14 Code of Federal Regulations (C.F.R.) Part 16. The FAA's investigation seeks to

determine the legality of the City of Santa Monica, California's ("the City") Ordinance adopted on

March 25, 2008 ("Ordinance") banning Category C and D aircraft operations from the Santa Monica

Municipal Airport (SMO).

The City's banning Category C and D jet aircraft from SMO becomes effective on April 24, 2008. The

City's executive summary to the Ordinance claims it win affect approximately 1010 of 130,000 annual

operations or ban 9,000 Category C and D aircraft operations.

The Ordinance's stated purpose purports to be one of safety: to protect the people living adjacent to the,

airport and flying in aircraft using the airport. The Ordinance also claims to comport with a 1984

agreement between the City and the FAA1• The City claims the Ordinance conforms to the City's

obligation under the agreement to serve category A and B aircraft at SMO and its asserted right to

prohibit or limit any other type, kind or class of aeronautical use of SMO. The categories of aircraft are

based on wingspan and approach speed.'

I The 1984 Agreement is a settlement agreement between the City and the FAA. For additional explanation, see

page 5 infra.

2 A Category A-I aircraft, for example, has an approach speed ofless than 91 knots. A Category 8-1 aircraft, fOT

example, has an approach speed of less than 91 knots but less than 121 knots .. A Category C-I aircraft, for example,

has an approach speed between 121 knots or more but less than 14I knots. A Category D-l aircraft, fOT example,

has an approach speed of more than 141 knots but less than 166 knots.
On March 26, 2008, the FAA issued an Order to Show Cause under 14 C.F.R Part 16. The Order to

Show Cause directed the City to show cause as to why the FAA should not supplement the existing Part

16 investigation (begun in 2002 when a similar Ordinance was proposed') with the facts pertaining to

the adopted Ordinance. The Order to Show Cause also expressly determined and stated the need to

expedite said investigation and issuance of the initial determination pursuant to 14 C.F.R. § 16.11

because the Ordinance will take effect April 24, 2008.

On April 1,2008, FAA denied the City's request for an extension of time to file its response to the Order

to Show Cause without prejudice and with an opportunity to renew if the renewal was based upon an

agreement to suspend enforcement of the Ordinance while the investigation remained pending.

On April 7,2008, the City filed its response to the Order to Show Cause.

By letter dated and delivered on April 2 I, 2008, bye-mail, facsimile and express mail to the City and its

counsel, the FAA requested that, by close of business Tuesday April 22, 2008, the City withdraw its

April 14, 2008 letter to the aeronautical users ofSMO advising them of the ban, and assuring the FAA

and those users in writing that the City will refrain from enforcing the ban on Category C and D aircraft

operations pending the outcome of the Part 16 administrative proceeding. The FAA requested a copy of

the City's withdrawal letter by close of business Tuesday April 22, 2008. The FAA's April 21, 2008

letter is attached to this Interim Cease and Desist Order.

The FAA further advised the City that should it fail to comply with this request by close of business

Tuesday April 22, 2008, the FAA would issue a cease and desist order requiring the City to hold the

Ordinance in abeyance in order to preserve the status quo pending the conclusion of the FAA's

investigation. The City responded by letter dated April 22, 2008, copy attached, refusing to withdraw

the April 14, 2008 letter to the aeronautical users and which again stated the City's intention to enforce

the Ordinance effective April 24, 2008.

While all of the issues raised by the City are being addressed in the on-going investigation and wilJ be

decided in the FAA's forthcoming initial determination, the FAA finds it necessary to issue this Interim

Cease and Desist Order pursuant to 14 C.F.R.§§ 16.31(d) and 16.109(a), because the City has failed to

comply with our request to withdraw the letter to the users and advise the FAA that it is refraining-from

enforcement of the Ordinance pending the final outcome of the Part 16 administrative proceeding.

Furthermore, while we have not yet issued the initial Director's determination, we can make a

preliminary finding that the City's ban on operation of these aircraft is likely unlawful. Accordingly, it

is our view that the Ordinance cannot be allowed to go into effect, since doing so will foreclose

operations by aircraft with a present right to utilize SMO. The City's ban would be unfounded while the

Part 16 administrative proceeding addressing its legality is ongoing.

3 On October 8, 2002, the fAA issued a Notice ofInvestigation under Part ]6 initiating an investigation into the

legality of a Santa Monica Airport Commission recommendation that the City Council adopt an Aircraft

Conformance Program (ACP) that, like the present 2008 Ordinance, would restrict aircraft operations at SMO up to

Category B-lI aircraft, thus excluding Category C and D jet aircraft. The City responded to the NOI on November

2,2002, and did not adopt an Ordinance but entered into discussions with the FAA that continued until recently in

2008 when it adopted the new but substantially similar Ordinance.

2
Enforcement of the Ordinance on April 24, 2008, can only be interpreted as an attempt to divest

Category C and D aircraft operators of their right to use SMO and the FAA of itsjurisdiction over its

administrative process to which the City, as a federally obligated airport, must adhere. SMO is an

important general aviation reliever for Los Angeles International Airport (LAX) in a regional airspace

and airport system that is already strained in terms of available airports. Furthermore, Category C and D

aircraft operations have been landing and taking-off safely from SMO for over twenty years. There is

no emergency requiring an immediate ban, and there is no safety or other basis for a change in the status

quo that would bar these operations.

Airport design standards for facilities such as runways are based on the operational and physical

characteristics of the aircraft that use the airport. FAA airport design standards are used so that all

airport elements meet the requirements for the most demanding aircraft that is expected to have 500 or

more annual itinerant operations at the airport, It is not inherently unsafe for an aircraft of a larger

design category to utilize an airport that has been designed to accommodate a lesser design category of

aircraft if the aircraft meets the FAA approved operational requirements for using SMO. The FAA

strictly regulates the safe operation of aircraft from certification (e.g. 14 C.F.R. Part 25) to the manner in

which the aircraft is operated (e.g. 14 C.F.R. Part 135). Both types of regulations cover runway length

requirements. Moreover, pilot certification, and the operation ofa particular aircraft/flight, including the

amount of required runway for a take off and landing, are all regulated by the FAA.

There are a1so a number of separate reasons why the City's Ordinance is likely an unlawful ban. All of

these have been communicated previously to the City and are discussed briefly below.

Federal Grant Assurance Obligations

Title 49 of the United States Code, § 47] 0 I, et seq., provides for Federa1 financial assistance for

the development ofpubJic-use airports like SMO under the Airport Improvement Program (AlP)

established by the Airport and Airway Improvement Act of] 982, as amended. Section 47107

and the grant contract, set forth assurances to which an airport sponsor agrees as a condition of

receiving Federal financial assistance. Upon acceptance of an AlP grant, the assurances become

a binding obligation between the airport sponsor and the Federal government.

Between 1985 and 1994, the Airport received a total of $9.7 million in Federal airport

development assistance. Because the City's AlP grants have not been used for purchasing land,

most of the corresponding AlP grant assurance obligations are effective for 20 years. Since

1994, the City has not received new grants and the City's last grant amendment was in 2003.

Assurance 22, Economic Nondiscrimination, of the prescribed sponsor assurances implements

the provisions of 49 U.S.C. § 47107(8) (1) through (6), and requires, in pertinent part, that the

sponsor of a federally obligated airport

"will make its airport available as an airport for public use on reasonable terms, and

without unjust discrimination, to all types, kinds, and classes of aeronautical activities,

including commercial aeronautical activities offering services to the public at the airport."

Assurance 22(a)

3
The owner of any airport developed with Federal grant assistance is required to operate the airport for

the use and ~nefit of the public and to make it available to all types, kinds, and classes of aeronautical

activity on fair and reasonable terms, and without unjust discrimination. As such, it may not deny

reasonable access to aeronautical users.

Title 49 USC § 40103(e) states that "[a] person does not have an exclusive right to use an air navigation

facility on which Government money has been expended."

49 USC § 471 07(aX4) provides, in pertinent part, that "a person providing, or intending to provide,

aeronautical services to the public will not be given an exclusive right to use the airport. »

Grant Assurance 23, Exclusive Rights, of the prescribed sponsor assurances requires and subsumes the

statute's pertinent parts, so that the sponsor of a federally obligated airport:

"will permit no exclusive right for the use of the airport by any person providing, or intending to

provide, aeronautical services to the public .... It further agrees that it will not, either directly or

indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to

conduct any aeronautical activities .... "

An exclusive right is defined as a power, priviJege, or other right excluding or debarring another

from enjoying or exercising a like power, privilege, orright. An exclusive right can be conferred

either by express agreement, by the imposition of unreasonable standards or requirements, or by

any other means. Such a right conferred on one or more parties, but excluding others from

enjoying or exercising a similar right or rights, would be an exclusive right.

The City's Ordinance raises graves concerns under each of these statutory and grant assurance

provisions since, if effective, the Ordinance would bar categories of operators currently serving

SMO, and in doing so would favor other categories of operators. Consistent with the City's

obligations discussed above there can be no basis for allowing the City to begin enforcing its

unilateral ban while the legality of that ban.is under question and is subject to ongoing

administrative investigation.

Contrary to the City'S arguments in the on-going Part 16 investigation, the FAA has independent

jurisdiction to address the proprietary authority and preemption issues. These issues are tied to

enforcement of the assurances under 49 U.S.C.§§ 40103(e), 40113, 47122, and 47107.

The ]984 Settlement Agreement

In June 1981,the Santa Monica City Council enacted a resolution calling for closure of SMO. That

action resulted in extensive litigation against the City by airport associations, the FAA. The litigation

resulted in a negotiated settlement memorialized on January 31, J 984, referred to as the 1984Santa

Monica Airport Agreement ("1984 Agreement"). The agreement was executed by the City and the FAA

and resolved all "existing litigation and/or administrative complaints pending between the parties."

The 1984 agreement restates the City's Federal obligations including that of Assurance 22 to permit

reasonable access to aeronautical users. In Section 8 of the agreement, the City committed to "operate

4
and maintain the Airport as a viable functioning facility without derogation of its role as a general

aviation reliever, or its capacity in terms of runway length and width, taxiway system, and runway

weight bearing strength". Section 9 requires the City to maintain continuously the one designated

runway (3/21) which is 5,000 feet long and 150 feet wide. The agreement also provides in Section 2 that

SMO "is to be open and available to and for public use as an airport on fair and reasonable terms and

without unjust discrimination, and without granting any exclusive rights prohibited by law" and

recognizes 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 use of the navigable airspace, and movement of

aircraft through that airspace" in connection with SMO.

The City, ostensibly for safety reasons - an area within the "exclusive authority" of the FAA - is poised

to restrict access of two categories of users to SMO that are currently permitted to utilize SMO without

restrictions. Again, it would be imprudent to allow that action, which appears to be directly contrary to

its federal grant assurance obligations as set forth in the 1984 Agreement; to take place before the

underlying legality of the City's Ordinance has been determined by the FAA. By enforcing the

ordinance, the City seeks to take unilateral action, despite the City's knowledge that the FAA believes

the ordinance is likely unlawful and beyond the airport's authority to enforce.

Surplus Property Act Restrictions

Deeds issued under the Surplus Property Act (SPA), 49 U.S.C. §47151, such as the 1948 SPA

Instrument of Transfer that transferred SMO to the City, contain restrictive covenants similar to

AlP grant assurance obligations such as providing reasonable access to aeronautical users

without unjust discrimination. The SPA obligations run in perpetuity until released by the FAA.

The SPA deed also provides the FAA with the right to revert the airport to the federal

government for violation of the deed covenants.

The United States executed an "Instrument of Transfer" dated August 10, 1948" (1948

Instrument ofTransjert in which the federal government surrendered its JeasehoJd interest in the

Santa Monica Airport, and transferred it together with U.S. airfield improvements back to the

City. The 19481nslrument of Transfer remised, released and forever quitclaimed the subject

premises to the City subject to reservations, restrictions and conditions specified in the transfer

document

Two of the restrictions listed in the 1948 Instrument of Transfer executed between the Federal

government and the City of Santa Monica, the surplus airport property instrument of disposal. are

applicable here. The first provides:

"the land, buildings. structures, improvements and equipment in which this instrument transfers

any interest shall be used for public airport purposes for the use and benefit of the public, on

reasonable terms and without unjust discrimination and without grant or exercise of any

exclusive right for use of the airport .... "

The second relevant restriction in the 1948 Instrument of Transfer independently re-states the exclusive

rights prohibition:

• 200 I Title Report sets out the 1948 Instrument of Transfer as a quit claim deed.

5
"no exclusive right for use of the airport at which the property transferred by this instrument is

located shall be vested (directly or indirectly) in any person or persons to the exclusion of others

in the same class, the terms "exclusive right" being defined to mean .... "

... any exclusive right to use the airport for conducting any particular aeronautical activity

requiring operation of aircraft."

On the tenth of August in 1948, the City confumed its acceptance of the Instrument of Transfer

from the U.S Government passing Resolution No. ]83. The City'S acquiescence to the terms,

conditions and restrictions is demonstrated by its properly approved City resolution accepting the

1948 Instrument of Transfer; the ]948 Instrument of Transfer was recorded in the County of Los

Angeles on August 23, ]948 as Document No. ]746.

Pursuant to 49 U.S.C § 47]5] only the Secretary may ensure compliance with an instrwnent

conveying an interest in surplus property. Hence, the FAA has the sole responsibility for

determining and enforcing compliance with the terms and conditions of all instruments of

transfer by which surplus airport property is or has been conveyed to non-federal public agencies

pursuant to the SPA.

Additionally, FAA is granted the authority to release airport premises from surplus property disposal

restrictions. This authority is conditioned on a finding that the release is necessary to protect or advance

the interests of the United States in civil aviation. See 49 USC § 47153 and 14 C.F.R. § 155.3

Accordingly, the City's Ordinance also raises legal concerns under the Surplus Property Act since the

ban on operations by Category C and D aircraft is in all likelihood contrary to the obligations contained

in the 1948 Instrument of Transfer. Again, there is no basis, given this, to allow the Ordinance to take

effect and disrupt the ongoing operations of Category C and D aircraft while the legality of the

Ordinance is finally determined by the FAA.

The City's Arguments in Support of its Ordinance Will Be Decided in the On-Going FM

Proceeding

The FAA recognizes that the City has offered reasons why it believes the Ordinance does not run afoul

of any of the provisions discussed above. Principally the City contends that the Ordinance ban on

Category C and D aircraft is based on the City's assumptions that Category A and B aircraft are

somehow safer on the runway at SMO than Category C and D aircraft. The City claims that growing

numbers of Category C and D aircraft have begun using SMO since ]984 and exacerbate the safety risks

of operating at SMO. The City therefore assumes that because category C and D aircraft may have

faster approach speeds than Category A and B aircraft, they carry a higher safety risk and thus cannot

operate at SMO even though the approach speeds of many jets like C-I and C-II, may at certain weights

be faster than some B-II aircraft. This does not necessarily mean that they will need longer runways.

It is incorrect to categorically asswne that operations of Category C and D airplanes into and out of

SMO are less safe than operations of Category A and B airplanes. Airport design standards do not

determine whether a given airplane can safely land or take off at a given airport; this is the function of

6
the airplane certification and operating rules. The airplane certification and operating rules take into

account the airplane design features and characteristics (for example, airplane weight, configuration,

engine thrust, stopping capability, speeds, and procedures) and the operating environment (for example,

airport elevation, runway surface condition (dry or wet), runway length and slope, and atmospheric

conditions such as wind and temperature) to determine the conditions under which takeoff and landing

operations can be conducted. Airplane approach categories only categorize airplanes in terms of their

approach speed at the maximum certificated landing weight. They are not intended to and should not be

used as a sole criterion for determining whether or not a takeoff or landing can be safely conducted, nor

for evaluating the relative safety risk of different airplanes for takeoff or landing.

The vast majority of existing turbojet airplanes, including those that operate at SMO, were certified in

accordance with 14 CFR Part 25, Airworthiness Standards: Transport Category Airplanes. These

certification standards apply to airplanes ranging from business jets to large airliners. These standards

include requirements to determine the minimum safe distances required for the airplane to take off and

land under the conditions, airplane weights, and configurations within the operating envelope defined

for the airplane.

For takeoff, the current Part 25 certification rules require that an airplane be able to safely continue or

reject a takeoff if an engine fails at the most critical point in the takeoff. For both takeoff and landing,

the probability of the failure of any system needed to show compliance with the certification

requirements must be inversely related to the severity of the failure. Failures that could result in a

catastrophic outcome must be extremely improbable.

The rules under which the airplane is operated (i.e., 14 CFR Parts 91,121,125,135) relate the minimum

safe takeoff and landing distances determined under Part 25 to the specific operation and airport for each

takeoff. The combination of the airplane certification rules and the operating rules provide the

requirements and parameters under which takeoff and landing operations can be safely conducted.

The FAA does not believe that the City has demonstrated at this stage any basis for the contention that

growing numbers of Category C and D aircraft decrease safety at SMO. There is no evidence that C and

D aircraft are any less safe than A and B aircraft. In fact, the performance range of many B, C or even D

aircraft overlap to such an extent that restricting C and D aircraft and not certain B aircraft may be

judged to be unjustly discriminatory.

Moreover, not only do accident rates indicate that jets, including Category C and D types, have lower

accident rates than propeJJer driven aircraft, larger jet aircraft have even lower accident rates than

smaller jet aircraft types. There is no data to support a premise that jets have a higher overrun rate than

other aircraft types, or that large jets are more prone to an overrun than small ones, or that C or D jets

have a higher overrun rate than B aircraft. In fact, the overrun accident history at SMO does not support

banning any type of B, C or D jets. According to NTSB data from 1981 to 2007, a period of twentyseven years, there were 6 accidents, including two fatalities at SMa. All six accidents involved aircraft

that were small piston propeller driven A-I or B-J aircraft, and not those prohibited by the Ordinance.'

In 1979, the U.S. District Court found an earlier Santa Monica Ordinance imposing a total ban on jet

landings to violate the Equal Protection and the Commerce clauses ofthe U.S. Constitution. Santa

5 See NTSB database at ntsb.gov'

7
Monica Airport Association v. City of Santa Monica, 481 F. Supp. 927 (D.C C.D CA, 1979), atJ'd 659

F.2d 100 (9th Cir 198 I). The District Court rejected the City's safety justification for the Ordinance,

finding: "as to safety, the evidence is utterly convincing that modem, small, business or executive type

jets of the type that would be able to fly out of this airport with the jet ban lifted, are at least as safe, if

not much safer, than the types of piston-engine fixed wing aircraft which are now allowed to use the

airport." Id_

The City also attempts to justify the Ordinance as meeting FAA requirements for Runway Safety Areas' .

("RSAs"). RSAs enhance safety in the event of an undershoot, overrun, or excursion from the side of

the runway. All airports certificated by the FAA for commercial service under 49 U.S.C.§ 44706, as

implemented by 14 C.F.R. Part 139 are required to build standard runway safety areas to the extent

practicable by 2015.49 V.S.C § 44706 note (2005). The RSA standard is part of FAA's airport design

standards; it is not an operating requirement or condition for federally funded general aviation airports

like SMO. No FAA aircraft operating rule requires a standard RSA.

There is no basis in federal law for federally funded airports to restrict access based upon runways that

do not meet federal airport design standards for RSAs as claimed by the City. Moreover, at commercial

service airports the RSA standard only has to be met to the extent practicable. Even if Santa Monica

were a commercial service airport, standard RSAs would not be practicable because there is little leveled

property at both ends. Accordingly, Santa Monica has no independent proprietary authority to restrict

access based upon heightened application of federal RSA standards. Assuming arguendo that an airport

proprietor has authority to exceed minimum airport design standards such as those relating to RSAs, that

authority clearly may not be exercised in a manner that violates its obligations under its federal grant

assurances and Surplus Property Act obligations to allow access on fair and reasonable terms without

unjust discrimination. For similar reasons, SMO lacks authority to interpret FAA's Airport Reference

Code ("ARC") designation to restrict access in violation of the obligations noted above.

RSAs are not considered during aircraft certification nor do they enter into the determination of the

minimum runway length required under airplane operating rules. Airplanes must be able to safely

operate regardless of the presence or absence of an RSA. FAA-approved Airplane Flight Manual

(AFM) limitations and performance information, developed in accordance with the airplane certification

requirements, are used to show compliance with the requirements applicable to that operation. When

those requirements are met, there is no aircraft performance regulatory basis for prohibiting that

operation.

In any event, these arguments, and any others offered by the City, will ultimately be considered in the

context of the ongoing FAA proceeding. But there is absolutely no demonstrated basis, at this stage of

the proceeding, and while the legality of the City's Ordinance is being examined in the context of the

ongoing proceeding, for the City's attempt to ban category C and D aircraft, that have been safely

operating for over twenty years at SMO.

Irreparable Harm

The City's Ordinance, as explained above is likely unlawful in a number of respects. Allowing, an

Ordinance (that may subsequently be determined to be unlawful) to subvert present operations of

Category C and D airplanes is harmful on its own and its effects on the national air system. Santa

8
Monica is an important general aviation reliever airport for Los Angeles International Airport (.LAX).

According to the City's own estimates the ban would affect over 9,000 Category C and D aircraft

operations or approximately 7% of total operations at SMO. Disruption of over 9000 annual operations

is a significant number for the Los Angeles region and nationally as well. For example, the FAA uses

500 annual operations as a standard for funding runways. The exclusion of 9,000 operations may also

impact the travel of approximately 20,000-30,000 passengers annually.

The ban will affect interstate travel because the Category C and 0aircraft are used for a substantiaJ

portion of non-stop interstate flights. This will result in a significant burden on interstate Commerce.

By banning 9,000 or more operations from SMO and forcing them to use other airports, the ban affects

Federal air traffic and airspace management in the greater Los Angeles region. Several other airports in

the region, Los Angeles International Airport ("LAX"), Van Nuys, and Burbank, are already at capacity

and many are working with the FAA to institute access restrictions. The LAX Master Plan Final EIS

states that "all of the general aviation airports are constrained from large scale expansion and there is a

concern to avoid displacing general aviation operations from those busy facilities into other commercial

airports in the region." Diverting generaJ aviation operations to LAX is inconsistent with SMO's

reliever status obligation: to relieve general aviation operations from LAX.

Allowing one City to ban Categories of aircraft in violation of its Federal. obligations will encourage

other local governments to follow suit thus creating a patchwork of local laws affecting aviation which

is the province of the Federal government. The ban undermines the FAA's role to ensure the safe and

efficient use of airspace pursuant to 49 U.S.C. § 40103(bX1). Permitting the City to enforce its ban

during the pendency of Part 16 administrative proceedings wiIJ detract from FAA's statutory role to

enforce airport grant assurances and other Federal obligations.

Legal Authority.

Pursuant to 49 U.S.C § 40113(a) FAA is authorized to issue orders to carry out Part A of Subtitle VII of

49 U.S.c., including section 40J03(e) prohibiting the granting of exclusive rights. That section provides

explicit authority. for the Administrator of the FAA to "take action the ... Administrator ... considers

necessary to carry out this part .... " including the authority for" issuing orders."

Pursuant to 49 U.S.C § 47J22(a) the FAA may issue orders to carry out Subchapter Ion Airport

Improvement, sections 47101 - 47142. This subchapter includes the grant assurances requiring

reasonable access and prohibiting unjust discrimination to aeronautical users.

Pursuant to 49 U.S.c. § 461 lO(a), FAA final orders issued under Part A or Part B of Subtitle VII of49

U.S.C. may be appealed to the United States Court of Appeals.

Under 14 C.F.R § 16.33(d) if the Director's Determination finds the respondent in noncompliance and

proposes the issuance of a compliance order, the initial determination will include notice and

opportunity for a hearing under Subpart F, if such an opportunity is provided by the FAA. Section

16.J 09(a) of the regulation provides authority for the issuance of proposed orders of compliance

including a cease and desist order in initial determinations.

9
The FAA recognizes that it is an unusual step to issue a cease and desist order that is effective

immediately. However, no local government has previously ever taken the unprecedented action the

City now contemplates. In the context of this proceeding, where the City is poised to begin enforcing a

local ordinance with criminal penalties that may very well be unlawful for a host of reasons, allowing

the Ordinance to take effect at this juncture in the administrative proceeding cannot be countenanced.

There is no basis here for the City to alter the status quo, deprive operators of their right to use S~O

and subject other airports and the air navigation system to the disruption that will ensue while the City

tests its various arguments in defense of its Ordinance 'in the ongoing administrative proceeding.

Therefore the FAA has determined that advance notice of this Order, and any opportunity for hearing

prior to its effectiveness is not practical and will not be in the public interest. The FAA has therefore

determined that there is good cause to make this cease and desist order effective upon issuance

consistent with the FAA's authority to take action deemed "necessary" to carry out the aviation statutes,

including section 40] 13(a).

Under the statutory and regulatory scheme, an initial Director's Determination with a finding of noncompliance and providing the opportunity for a hearing, may propose issuance of a compliance order.

However because the Ordinance is effective April 24, 2008 before the Director's Determination will

issue, and given the immediate and severely disruptive nature of the Ordinance, the City was provided

notice on April 21, 2008 of FAA's intention to issue an interim cease and desist order. The City

responded by letter dated April 22, 2008, and refused to suspend enforcement of the Ordinance.

Good cause exists for issuance of an interim cease and desist order. SMO is an important general

aviation reliever for LAX in a regional airspace and airport system that is already strained in terms of .

available airports. Furthermore, Category C and D aircraft operations have been landing and taking-off

safely from SMO for over twenty years. There is no emergency requiring an immediate ban, and there

is no basis for a change in the status quo that would bar these operations. Furthermore, while we have

not yet concluded our initial determination, we-can make a preliminary finding that the City's ban on

operation of these aircraft is unlawful. Accordingly, it is our view that the Ordinance cannot be allowed

to go into effect. particularly while the FAA's proceeding is on~oing. .

In order to ensure that the City has ample opportunity to respond to matters set forth in this Order the

FAA is affording the opportunity for a response to be filed within I0 days. In the event that those

comments articulate a basis, consistent with legal constraints and with the public interest, for allowing

the Ordinance to take effect during the pendency of the FAA's proceeding we wiU re-visit this issue.

Otherwise it is our intention that the City must be precluded from banning operations by Category C and

D operators until such time that the legality of the City's proposed ban is determined, one way or the

other.

IT IS ORDERED:

That the City of Santa Monica, California cease and desist immediately from enforcing its Ordinance

banning Category C and 0 aircraft operations from Santa Monica Municipal Airport until a final agency

decision is issued in this matter pursuant to 14 C.F.R. §§ 16.33 or 16.241(c).

That City shall pubJically withdraw its letter of April 14, 2008 to airport users regarding enforcement of

the ordinance. :

10
That City shall provide, within three (3) days of this order, written notification to the airport users that

the Ordinance is in abeyance until completion of the FAA's administrative process.

That City shall provide a copy of the notification above to the FAA as well as the list of users to whom it

was sent, no later than close of business April 28, 2008.

That The City may file a response to this Interim Cease and Desist Order within 10 days from the date of

this Order.

That The FAA shall consider any arguments made in such response concerning conclusions reached in

this order in a subsequent order.

Acting Director

Office of Airport Safety and Standards

. i

II
OffICe of the City Attorn~

City Hall

1685 Main StrHt

PO Box 2200

Sarrta Monica, California 9040;

(qy J:

S.n'. Mon••.•.••

April 22, 2008

Kevin L. Solco

Acting Director, Airport Safety and Standards

Federal Aviation Administration

800 Independence Avenue, S.W.

Washington, D.C. 20S91

Re: Enforcement of Santa Monica's Aircraft Conformance Program

Ordinance No. 225] (CCS)

Dear Mr. 801co:

Yesterday, you communicated to Santa Monica Airport Director Robert Trimbom the FAA's

demand that Mr. Trimborn take specified actions by the close of business today. The acUODI

include withdrawing his Jetter of April 14,2008 notifying aircraft users that the City Council bad

adopted Ordinance No. 22S 1 ("Ordinance"), which prohibits the operation of Category C and D

aircraft at Santa Monica Airport, in order to protect public safety. Your communication WIlDS

Mr. Trimbom that ifbe fails to accede to the demand, the FAA will issue a cease and desist order

requiring that the City refrain from enforcing City Ordinance No. 2251 pending the outcome of

the administrative proceeding, which the FAA initiated over five years ago and recently

attempted to "revive" through issuance of an Order to Show Cause. Your letter claims that the

proceeding was "stayed," but in fact there was no stay and the 120 day period for decision

expired without extension.

Before responding to your demand, Imust express the City's objections to the FAA's process.

As you are aware from the City's response to the Order to Show Cause, the City i.represented

by counsel in this proceeding. Any communications you issue should be addressed 10 counsel

listed on that pleading, not to the Airport Director. The necessity of your doing SO is particularly

obvious under these circumstances: you threatened legal action and required a response within

one day.

In the context of this more than five year old dispute. your demand appears both unreasonable

and misdirected on its face. The FAA is well aware that the Ordinance was adopted aecordins to

the standard process dictated by state and local law. There were multiple public hearings ova'

the course of several months, four of which your agency attended. Even after the Ordinance was

approved on first reading, the second reading was postponed to ensure ample opportUnity to

explore possibilities that might have existed for a cooperative resolution. Thus, the City Council

took the time to carefully consider both the safety of the community and the FAA's arguments

"e:.rinst the Ordinance. Ultimately, the Council concluded that the Ordiuancc shOuld he adopted

to ensure safe and appropriate operation of the City's Airport. The Council's authority cannot be

circumvented by simply demanding that the Airport Director immediately withdraw a Jenmtel: 310 458-8336 • fax: 310395-6727

o •., I·'.I"~,r u,;,- •. I•.•·.~·I··•.. '•.••.•-. : r-..J.
Kevin L. Solco

Acting Director, Airport Safety and Standards

April 22, 2008

Page 2

intended to implement City law and policy by giving fair notification of the new law to aircraft

operators.

Additionally, your communication with Mr. Trimbom is further evidenee that this process is

infected with prejudament. As explained, at length. in the City's response to the Order to Show

Cause, the FAA has already decided the matter. Months ago, Associate Airport Administrator

Shaffer decreed, in writing, that the Ordinance is "flatly illegal". yesterday, the FAA's coUDICI,

conveyed a letter which asserts, without any basis in fact. that there wiD be dire consequeoccs if

the Ordinance goes into effect. This assertion is apparently based soldy on the number of

operations by noncompliant aircraft within the last year. It ignores the fact that ftactionaJ

operators have publicly stated that their participants may easily use compliant aircraft and that

charter aircraft users may do the same. Thus, the statements in yesterday's communications

perpetuate the FAA's practice of prejudging the outcome of this proceeding- Thethreatened

cease and desist order against the City would only constitute further evidence of the FAA's bias.

Such blind prejudgment has no place in governmental process. Even if yOW'agency remains

determined to ignore standard requirements of Due Process in its effort! to place the convenience:

of'a small percentage of Airport users above public safety, you should consider the FAA's

reputation. It can only be protected, or perhaps salvaged, by treating the City fairly and

reasonably in this case.

To date, you have not done so. The FAA asserts that no emergency exists at this time thsl

warrants implementation of the City's ban on C and D operations at the City's Airport. The

FAA further asserts that the City is somehow attempting to "divest the FAA of its jW'isdiction

over its administrative process". Both statements are patently unreesonable. As the extensive

record on file with ~ FAA clearly demonstrates, the Airport facilities are not, according to the

FAA's own standards, adequate for C and D aircraft. There are no runway safety areas, and

there are homes in singularly close proximity to the runway ends. The City is responsible and

liable for ule Airport's op;;nition. The City must keep tbe Airport safe and is simply attempting

to implement the FAA's own safety standards.

The City acted prudently to address these risks. The Ordinance was adopted through the

standard municipal process - indeed, as explained above, that process was extended to ensure a

full opportunity for consideration of the FAA's concerns and possible solutions.

And, it was adopted to fulfIJI the most basic of governmental duties - the duty to k~p the public

safe. Your assertion that this effort is undertaken to divest your agency of jurisdiction reveals

stunning self-absorption or institutional paranoia.

Nor, contrary to your assertions, does the law require that an emergency exist prior to the

adoption of the Ordinance. Like your agency, the City serves the public an<Jdoes so, by among

other things, adopting laws that protect public health and safety. Moreover, as AiIpOrt

proprietor, thl: Cit)' must both protect the public and safeguard Ul,;ain.stliability for tidlW"C to keep

the Airport safe. YoW"agency's assertion that C and D aircraft have been using SMO for over

twenty years without incident would not, even if true, establish that the City may not meet the
Kevin L. Sol co

Acting Director. Airport Safety and Standards

April 22, 2008

Page 3

FAA's own safety standards. The FAA's argument to the contrary is as foolish as sayina that if.

a city bridge designed to handle 10,000pound vehicles has been able to support some 25.000

pound vehicles in the past, the City is therefore required to allow all such overweight vehicles to

use the bridge in the future. Indeed, if the "tombstone mentality" evidenced in your leucr were

national policy - which it is not - compliant runway safety areas would only be required at those

airports which had already experienced serious runway ovcmm aa:ideDts.

Simply put, the law does not require Santa Monica to suffer a c8tastrophc in order to qualify 110

meet FAA nmway standards. In recent years, the number of faster aircraft operatina at the

Airport has increased significantly. At the same time, federal acknowledgement oftbe

importance of runway safety areas bas grown. Indeed, James Hall. who served as Chaimum of

the NTSB for six yean, concluded in his Declaration, on file in this case, that nmway safety

areas are "critically important" and "especially important to safety at [Santa Monica Airport] due

to its unique topography and close proximity to residential housiJla." He also concluded that in

the absence of meeting the federal standards, "Category C and D aircraft sbould not be permitted

to operate due to the serious risks of injuries and deaths. to

The City, as a prudera airport operator, cannot ignore these realities. And, we are confident that

implementation of the Ordinance will greatly enhance public safety while only minimally

inconvenience AUpoI1 users. When the Ordinance was adopted, there were about 25 C and D

aircraft per day at the Airport. When the law goes into effect on April 24, 2008, the operators of

affected aircraft can and will either switch to compliant aircraft or make adequate 8IT8l1gemeats

at one of the surrounding airports where C and D operations do not create serious safety risks.

They have choices. The City simply does not have the choice of ignoring the growing safety

risk.

Nor should the FAA ignore it. Your agency is already under criticism and pressure from

CC:Jlg!CSSfor puttiug aviation in~try convenience aheed of public safetY. The City ~es you

to change your course and steadfastly put safety first. Even if you will not, or canilOt, the City

must. Therefore, it must respectfuUy decline to withdraw Mr. Trimbom'sletter notifying pilots

that the Ordinance win go into effect on April 241h• .

cc: Mayor and City Council

P. Lamont Bwell, City Manager

R~h Trimbom. A<:titl1!Aitpm1 Director

Marty Tachiki, Deputy City Attorney

Frank San Martin, Office of Chief Counsel, FAA

vcry truly yours,

.7J;~{s1.o1~/-;/~

MARsHA JQ~ES MOUfRm

City Attorney .
e

u.s. Department

of Transportation

Federal Aviation

Administration

800 IndllPllndenc» Ave .• S.W.

Wnhlnglon.D.C. ~1

April 21, 2008

Mr. Robert Trimbom

Airport Manager

Santa Monica Municipal Airport

3223 Donald Douglas Loop S.

Santa Monica, CA 90405

RE: Santa Monica Municipal Airport - City Ban on Category C and D Aircraft

Dear Mr. Trimbom:

You have advised aeronautical users of Santa Monica Municipal Airport (SMO) by letter, dated April

14,2008, that pursuant to 8 March 25,2008 City Ordinance, Category C and D aircraft operations are

prohibited at SMO effective as of Thursday April 24. Your letter further advises that operators of

those aircraft will be subject to misdemeanor prosecutions, fines and possible jail sentences for .; \

violating the Ordinance. We have discussed this matter with the airport and with the Santa Monica

City Council on a nwnber of occasions and, as you know, the subject of the legality of the Ordinance

is now part of an on-going FAA proceeding. While we have not yet concluded that proceeding, our

initiaJ view, as we have previously communicated to you, is that the City's ban on operation of these

aircraft is unlawful. Accordingly, it is our view that the Ordinance cannot be allowed to go into effect,

particularly while the FAA's proceeding is ongoing.

The legality of the ban on Category C and D aircraft lit SMO is before the FAA pursuant to a Notice of

Investigation under 14 C.F.R. Part 16. On March 26, 2008, one day after the City adopted the new

Ordinance imposing the ban, the FAA moved to expedite the Part 16 proceedings, which until that

time were stayed by the parties' attempts at negotiation. Presently, we are near to completing the

initial determination but the administrative process may extend for some additional time

SMO maintains that Category C and D aircraft presently represent approximately 9,000 aircraft

operations or 7 % of total annual aircraft operations .. SMO is an important general aviation reliever for

Los Angeles International Airport (LAX) in a regional airspace and airport system that is already taxed

in terms of available airports. Furthermore, Category C and D aircraft operations have been landmg ..

and taking-off safely from SMO for over twenty years. There is no emergency requiring an immediate

ban, and there is no basis for a change in the status quo that would bar these operations.

Your enforcement of the Ordinance on April 24, 2008, can only be interpreted as an attempt to divest

the FAA of its jurisdiction over its administrative process to which the City, as a federally obligated

airport, must adhere. Moreover, your attempted enforcement of the City's Ordinance aJso suggests a

complete disregard for the FAA's authority and responsibility as the final arbiter of aviation safety in

the National Air Transportation System.
The FAA cannot countenance enforcement of the Ordinance under these circumstances while the

administrative proceeding is underway. Therefore, the FAA requests that, by close of business

Tuesday Apri122, 2008, you withdraw your letter to the aeronautical users and assure the FAA and .

those users in writing that the City will refrain from enforcing the ban on Category CandO aircraft

operations pending the outcome of the Pan 16 administrative proceeding. Please provide this office

with a copy of your withdrawal letter by close of business Tuesday April 22, 2008.

Should the City faiJ to comply with this request, the FAA will issue a cease and desist order requiring

the City not to enforce the Ordinance in order to preserve the status quo. In the event that. for

whatever reason, the City does not compJy with an FAA cease and desist order, we will pursue

appropriate remedies through all means available.

~~

Acting Director

Office of Airport Safety and Stand8Jds
••

UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

)

IN THE MATTER OF COMPLIANCE )

WITH FEDERAL OBLIGATIONS )

BY THE CITY OF SANTA MONICA, )

CALIFORNIA )

------:-------)

FAA Docket No. 16-02·08

SUPPLEMENTAL INTERIM CEASE AND DESIST ORDER

On April 23, 2008, the Federal Aviation Administration (FAA) issued an interim cease and desist order

that directed the City of Santa Monica (the City) not to enforce a March 25, 2008 Ordinance

(Ordinance), that purported to ban operations of Category C and D aircraft at Santa Monica Airport

(SMO). That order advised the City of its right to file a response within 10 days. The City filed a

response on May 5, 2008 .. This.supplementalorder addressesthepointsJ.ml,debYJJ.utCity_m.Q.PPQsitio~

to the order. Following careful review and consideration of the data and documents submitted by the

City, this supplemental order also restates the bases for the issuance of an interim cease and desist order.

This matter is before the FAA based on a Notice of Investigation (NOI) dated October 8, 2002, initiated

by the Director of the Office of Airport Safety and Standards, and supplemented by his March 26, 2008

Order to Show Cause. The NOI and Order to Show Cause were issued in accordance with the FAA

Rules of Practice for Federally Assisted Airport Enforcement Proceedings, 14 Code of Federal

Regulations (C.F.R.) Part 16. The FAA's investigation seeks to determine the legality of the City's

Ordinance banning Category C and D aircraft operations at SMO.

The City's ban on Category C and D jet aircraft was scheduled to take effect and be enforced against

operators on April 24, 2008. On April 23, however, the City Attorney agreed to a request by the

Department of Justice to refrain from enforcing the Ordinance pending the April 28, 2008 hearing in

United States District Court on the FAA's request for a temporary restraining order (TRO). After the

hearing the Court entered an Order granting the TRO, which prohibits enforcement of the Ordinance,

and scheduled a preliminary injunction hearing on May 15,2008.1

The Ordinance's stated purpose purports to be one of safety: to protect the people living adjacent to the

airport and flying in aircraft using the airport, The Ordinance also claims to comport with a 1984

agreement between the City and the FAA2• The City claims the Ordinance conforms to the City's

I United States v. City of Santa Monica, Case No. CV 08-2695.

2 The 1984 Agreement is a settlement agreement between the City and the FAA. For additional explanation, see

page 5 infra.
obligation under the agreement to serve category A and B aircraft at SMO, and the City asserts the right

to prohibit or limit any other type, kind or class of aeronautical use of SMO. The categories of aircraft

are based on wingspan and approach speed.3

On March 26, 2008, the FAA issued an Order to Show Cause under 14 C.F.R Part 16. The Order

directed the City to show cause within ten days as to why the FAA should not supplement the existing

Part 16 investigation (begun in 2002 when a similar Ordinance was proposed") with the facts pertaining

to the adopted Ordinance. The Order to Show Cause also expressly determined the investigation and .

issuance of the initial determination had to be expedited pursuant to 14 C.F.R. § 16.11 because the

Ordinance would otherwise take effect April 24, 2008.

On April 7, 2008, the City filed its response to the Order to Show Cause.

By letter dated and delivered on April 21, 2008, bye-mail, facsimile and express mail to the City and its

counsel, the FAA requested that, by close of business Tuesday April 22, 2008, the City withdraw its

April 14, 2008 letter to the aeronautical users of SMO advising them of the ban, and assure the FAA and

those users in writing that the City would refrain from enforcing the ban on Category C and D aircraft

operations pending the outcome of the Part 16 administrative proceeding. The FAA requested a copy of

.the City's withdrawal letter by close of business Tuesday Apri122, 2008. The FAA's Apri121, 2008

letter was attached to the Interim Cease and Desist Order.

The-FAA further-advised the City that should it fail to comply with this request by.close .of'business

Tuesday April 22, 2008, the FAA would issue a cease and desist order requiring the City to hold the

Ordinance in abeyance in order to preserve the status quo pending the conclusion of the FAA's

investigation. The City responded by letter dated April 22, 2008, copy attached, refusing to withdraw

the April 14,2008 letter to the aeronautical users and stating again the City's intention to enforce the

Ordinance effective April 24, 2008.

As stated above, the FAA issued a cease and desist order on April 23, 2008, ordering the City of Santa

Monica to cease and desist immediately from enforcing the Ordinance until a final agency decision is

issued by the FAA in this matter under 14 C.F.R. Part 16. The Order afforded the City ten days to

respond. On April 23, 2008, the City Attorney advised the Department of Justice that the City would

accede to the Department of Justice's request and would not enforce the Ordinance until a TRO hearing

was held. On April 28, 2008, the United States District Court granted the FAA's request for a TRO

enforcing the cease and desist order. As a result, the City's Ordinance has yet to be enforced. The

preliminary injunction hearing is scheduled for May 15,2008.

3 A Category A-I aircraft, has an approach speed of less than 91 knots. A Category B-J aircraft has an approach

speed of 91 knots but less than 121 knots. A Category C-J aircraft has an approach speed between 121 knots or

more but less than 141 knots. A Category D-l aircraft has an approach speed of more than 141 knots but less than

166 knots.

4 On October 8,2002, the FAA issued a Notice oflnvestigation under Part 16 initiating an investigation into the

legality of a Santa Monica Airport Commission recommendation that the City Council adopt an Aircraft

Conformance Program (ACP) that, like the present 2008 Ordinance, would restrict aircraft operations at SMO up to

Category B-II aircraft, thus excluding Category C and D jet aircraft. The City responded to the NOJ on November

2, 2002, and did not adopt an Ordinance but entered into discussions with the FAA that continued until recently in

2008 when it adopted the new but substantially similar Ordinance.

2
On May 5, 2008, the City responded to the cease and desist order within the 10 day period provided for

a response. In its response, the City again objected to the cease and desist order and demanded that the

FAA withdraw the cease and desist order by May 9, 2008. The City avers that it will file a petition for

review in an appropriate court of appeals challenging the cease and desist order if it is not withdrawn by

May 9,2008.

All of the issues raised by the City are being addressed in the on-going investigation, and will be

decided in the FAA's forthcoming initial determination. The FAA is issuing this Supplemental Interim

Cease and Desist Order pursuant to 14 C.F.R. §§ 16.11,16,3l(d) and 16.109(a), and consistent with the

provisions of our previous order, which afforded the City with notice and an opportunity to comment on

the terms of that order. We have carefully reviewed and considered the City's May 5 response in

opposition to the interim cease and desist order. Based upon that review, we conclude that the City has

not articulated any basis, consistent with law and the public interest for allowing the Ordinance to take

effect during the pendency of the FAA's administrative proceeding. The City therefore may not enforce

its ban on operations by Category C and D operators until a final agency decision is issued on the

legality of the City's ban.

We reiterate our previous finding that although we have not yet issued the initial Director's

determination, we can and do make the preliminary finding that the City's ban on operation of these

aircraft is likely unlawful. Accordingly, it is our view that the Ordinance cannot be enforced, since

doing so will foreclose operations by aircraft with a present right to utilize SMa. The City's ban on

---these-operations cannot-be allowed while-thePert 1-6administrative pr-oceeding-addressing-its -legality is

ongoing.

Enforcement of the Ordinance before the FAA's final agency decision is issued can only be interpreted

as an attempt to divest Category C and D aircraft operators of their right to use SMa and the FAA of its

jurisdiction over its administrative process to which the City, as a Federally obligated airport, must

adhere. Notwithstanding the City's arguments in its Response to the Cease and Desist Order, SMO isan

important general aviation reliever for Los Angeles International Airport (LAX) in a regional airspace

and airport system that is already strained in terms of available airports. Furthermore, Category C and D

aircraft operations have been landing and taking-off safely from SMO for over twenty years. There is

no emergency requiring a ban, and the City has identified no safety or other basis for a change in the

status quo that would bar these operations.

Airport design standards for facilities such as runways are based on the operational and physical

characteristics of the aircraft that use the airport. FAA airport design standards are used so that all

airport elements meet the requirements for the most demanding aircraft that is expected to have 500 or

more annual itinerant operations at the airport. As stated in the Advisory Circular for Airport Design,

AC 150/5300-13, "The use of the standards and recommendations contained in this publication for the

design of airports supports this public charge [i.e. to develop and maintain a national system of safe,

delay-free, and cost-effective airports]. These standards and recommendations, however, do not limit or

regulate the operations of aircraft." AC 150/5300-13, page 1.

We reiterate that it is not inherently unsafe for an aircraft of a larger design category to utilize an airport

that has been designed to accommodate a lesser design category if the aircraft meets the FAA approved

operational requirements for using that airport. This is the case at SMO for Category C & D aircraft.

3
The FAA strictly regulates the safe operation of aircraft from certification (e.g. 14 C.F.R. Part 25) to the

manner in which the aircraft is operated (e.g. 14 C.F.R. Part 135). Both types of regulations cover

runway length requirements. Moreover, pilot certification, and the operation of a particular

aircraft/flight, including the amount of required runway for a take off and landing, are all regulated by

the FAA. Category C and D operations at SMO comply with all of these requirements.

There are also a number of separate reasons why the City's Ordinance is likely an unlawful ban. All of

these have been communicated previously to the City and are discussed briefly below. The upcoming

Director's Determination will fully address the merits of the case as noticed in the 2002 NOI, and as

supplemented in the 2008 Order to Show Cause.

Federal Grant Assurance Obligations

We adhere to our prior determination that the City's Ordinance appears facially to violate Federal grant

assurances that the City has committed to be bound by. Title 49 of the United States Code, § 47101, et

seq., provides for Federal financial assistance for the development of public-use airports like SMO under

the Airport Improvement Program ("AlP") established by the Airport and Airway Improvement Act of

1982, as amended. Section 47107 and the grant contract, set forth assurances to which an airport

sponsor agrees as a condition to receiving Federal financial assistance. Upon acceptance of.an AlP

grant, the assurances become a binding obligation between the airport sponsor and the Federal

government.

;i,•.::

Between 1985 and 1994, the Airport received a total of$9.7 million in Federal airport development

assistance. Because the City's AlP grants have not been used for purchasing land, most of the

corresponding AlP grant assurance obligations are effective for 20 years. Since 1994, the City has not

received new grants and the City's last grant amendment was in 2003. The City's grant assurance

obligations therefore remain in effect.

Assurance 22, Economic Nondiscrimination, of the prescribed sponsor assurances implements the

provisions of 49 U.S.C. § 47107(a) (1) through (6), and requires, in pertinent part, that the sponsor of a

Federally obligated airport

will make its airport available as an airport for public use on reasonable terms, and without

unjust discrimination, to all types, kinds, and classes of aeronautical activities, including ·.i

commercial aeronautical activities offering services to the public at the airport.

The owner of any airport developed with Federal grant assistance is required to operate the airport for

the use and benefit of the public and to make it available to all types, kinds, and classes of aeronautical

activity on fair and reasonable terms, and without unjust discrimination. As such, it may not deny

reasonable access to aeronautical users.

Title 49 USC § 40 I03(e) states that "[a] person does not have an exclusive right to use an air navigation

facility on which Government money has been expended." . .

49 USC § 47107(a)(4) provides, in pertinent part, that "a person providing, or intending to provide,

aeronautical services to the public will not be given an exclusive right to use the airport."

4
Grant Assurance 23, Exclusive Rights, of the prescribed sponsor assurances requires and subsumes the

statute's pertinent parts, so that the sponsor of a federally obligated airport

will permit no exclusive right for the use of the airport by any person providing, or intending to

provide, aeronautical services to the public...It further agrees that it will not, either directly or

indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to

conduct any aeronautical activities....

An exclusive right is defined as a power, privilege, or other right excluding or debarring another

from enjoying or exercising a like power, privilege, or right. An exclusive right can be conferred

either by express agreement, by the imposition of unreasonable standards or requirements, or by

any other means. Such a right conferred on one or more parties, but excluding others from

enjoying or exercising a similar right or rights, is an exclusive right that is forbidden by the Grant

Assurance. That is precisely the type of right that the City's Ordinance attempts to assert to the

detriment of Category C and D operations.

The City's Ordinance therefore raises serious concerns under each of these statutory and grant

assurance provisions since, if effective, the Ordinance would bar categories of operators

currently serving SMO, and in doing so would favor other categories of operators. Consistent

with the City's obligations discussed above there can be no basis for allowing the City to begin

enforcing its unilateral ban while the legality of that ban is under question and is subjectto

ongoing administrative investigation.

The 1984 Settlement Agreement

As we explained in the prior cease and desist order, this is not the first time the City has attempted to

limit operations at SMO. In June 1981,the Santa Monica City Council enacted a resolution calling for

closure ofSMO.s That action resulted in extensive litigation against the City by airport associations and

the FAA. The litigation resulted in a negotiated settlement memorialized on,January 31, 1984, referred

to as the 1984Santa Monica Airport Agreement (1984 Agreement). The agreement was executed by the

City and the FAA and resolved all "existing litigation and/or administrative complaints pending between

the parties."

The 1984 agreement restates the City's Federal obligations, including those set forth in Assurance 22, to

permit reasonable access to aeronautical users. In Section 8 of the agreement, the City committed to

"operate and maintain the Airport as a viable functioning facility without derogation of its role as a

general aviation reliever, or its capacity in terms of runway length and width, taxiway system, and

runway weight bearing strength." Section 9 requires the City to maintain continuously the one

designated runway (3/21), which is 5,000 feet long and 150 feet wide. The agreement also provides in

Section 2 that SMO "is to be open and available to and for public use as an airport on fair and

reasonable terms and without unjust discrimination, and without granting any exclusive rights prohibited

by law" and recognizes that "exclusive authority is vested in the FAA for the regulation of all aspects of

5 See also, City a/Santa Monica Airport Assn v City a/Santa Monica, 481 F. Supp 92 (C.D. Cal. 1979), aff'd 659

F.2d 100 (9th Cir 198I) (Cityjet ban held unconstitutional). Discussed infra at page 9. .

5
air safety, the management and control of the safe and efficient use of the navigable airspace, and

movement of aircraft through that airspace" in connection with SMa.

The City, ostensibly for safety reasons - an area within the agreed- to "exclusive authority" of the FAA

- is poised to restrict access of two categories of users that are currently permitted to utilize SMa

without restrictions. Again, it would be imprudent to allow that action, which appears to be directly

contrary to the Federal grant assurance obligations specifically agreed to by the City as set forth in the

1984 Agreement, to take place before the underlying legality of the City's Ordinance has been

determined by the FAA.

Surplus Property Act Restrictions

As we also noted in our previous Order, deeds and other conveyance instruments issued under

the Surplus Property Act (SPA), 49 U.S.C. § 47151, such as the 1948 SPA Instrument of

Transfer that transferred SMa to the City, contain restrictive covenants similar to AIP grant

assurance obligations. These covenants ensure continued reasonable access to aeronautical users

without unjust discrimination. The SPA obligations run in perpetuity unless released by the

FAA. The SPA deed and other instruments of transfer also provide the FAA with the right to

revert the airport to the Federal government for violation of the deed and instrument covenants.

The United States executed an "Instrument of Transfer" dated August 10, 1948" (1948

-rInstrument: of Transfer)6 in which the Federal-government surrendered its leasehold interest in

the Santa Monica Airport, and transferred it together with U.S. airfield improvements back to the

City. The 1948 Instrument of Transfer remised, released and forever quitclaimed the subject

premises to the City subject to reservations, restrictions and conditions specified in the transfer

document.

Two of the restrictions listed in the 1948 Instrument of Transfer executed by the Federal government

and the City of Santa Monica, are directly applicable here. The first provides:

the land, buildings, structures, improvements and equipment in which this instrument transfers

any interest shall be used for public airport purposes for the use and benefit of the public, on

reasonable terms and without unjust discrimination and without grant or exercise of any ,

exclusive right for use of the airport ....

The second relevant restriction in the 1948 Instrument of Transfer independently re-states the exclusive

rights prohibition:

no exclusive right for use of the airport at which the property transferred by this instrument is

located shalJ be vested (directly or indirectly) in any person or persons to the exclusion of others

in the same class, the terms "exclusive right" being defined to mean

.. .any exclusive right to use the airport for conducting any particular aeronautical activity

requiring operation of aircraft."

6 2001 Title Report sets out the 1948 Instrument of Transfer as a quit claim deed.

6
On the tenth of August, 1948, the City confirmed its acceptance of the Instrument of Transfer

from the U.S Government by passing Resolution No. 183. The City's acquiescence to the terms,

conditions and restrictions is demonstrated by this City resolution accepting the 1948 Instrument

of Transfer; the 1948 Instrument of Transfer was recorded in the County of Los Angeles on

August 23, 1948 as Document No. 1746.

The City nonetheless argues that it is not subject to obligations under the Surplus Property Act. This is

contrary to the previous history of the City seeking, and the FAA's awarding of, partial releases from its

Surplus Property Act obligations. During the period from 1952-1956 and into the 1970s, several parcels

ofland were released from the Federal obligations contained in the 1948 Instrument of Transfer.

Pursuant to 49 U.S.C § 47151 only the Secretary may ensure compliance with an instrument

conveying an interest in surplus property. Hence, the FAA has the sole responsibility for

determining and enforcing compliance with the terms and conditions of all instruments of

transfer by which surplus airport property is or has been conveyed to non-federal public agencies

pursuant to the SPA.

Additionally , FAA is granted the authority to release airport premises from surplus property terms and

obligations. This authority is conditioned on a finding that the release is necessary to protect or advance

the interests of the United States in civil aviation. See 49 USC § 47153 and 14 C.F.R. § 155.3

Accordingly, the City's-Ordinancealso raises legal concerns underthe Surplus Property.Actsince the

ban on operations by Category C and D aircraft is in all likelihood contrary to the obligations contained

in the 1948 Instrument of Transfer. Again, there is no basis, given this, to allow the Ordinance to take

effect and disrupt the ongoing operations of Category C and D aircraft while the legality of the

Ordinance is finally determined by the .FAA.

The City Has Provided No Basis That Would Support Allowing the Ordinance to Take Effect

In response to the FAA's prior Cease and Desist Order, the City's May 5 filing offers various arguments

as to why the City believes the Ordinance does not run afoulof any of the provisions discussed above.

These arguments, as specifically discussed below, largely reiterate prior arguments advanced by the

City. Principally the City contends that the Ordinance ban on Category C and D aircraft is based on the

City's assumptions that Category A and B aircraft operations are somehow safer at SMO than are

Category C and D aircraft operations. The City claims that growing numbers of Category C and D

aircraft have begun using SMO since 1984, and that this exacerbates the safety risks at SMO. The City

therefore assumes that because category C and D aircraft may have faster approach speeds than

Category A and B aircraft, they have a higher safety risk and thus cannot operate at SMO. However, ,

this assumption is flawed. The approach speeds of many jets, like C-I and C-II, may at certain weights C

be slower than some B-II aircraft.

As the FAA has previously explained, however, it is incorrect to categorically assume that operations of

Category C and D aircraft at SMO are less safe than operations of Category A and B aircraft. Airport

design standards do not determine whether a given aircraft can safely land or take off at a given airport;

this is the function of the aircraft certification and aircraft operating rules. The aircraft certification and

operating rules take into account the aircraft design features and characteristics (for example, aircraft

7
weight, configuration, engine thrust, stopping capability, speeds, and procedures) and the operating

environment (for example, airport elevation, runway surface condition (dry or wet), runway length and

slope, and atmospheric conditions such as wind and temperature) to determine the conditions under

which takeoff and landing operations can be conducted. Aircraft approach categories only categorize

aircraft in terms of their approach speed at the maximum certificated landing weight. These categories ".

are not intended to be, and should not be used as, a sole criterion for determining whether or not a'

takeoff or landing can be safely conducted, nor for evaluating the relative safety risk of different aircraft

for takeoff or landing.

The vast majority of existing turbojet aircraft, including those that operate at SMO, were certified in

accordance with 14 CFR Part 25, Airworthiness Standards: Transport Category Airplanes. These

certification standards apply to airplanes ranging from business jets to large airliners. These standards

include requirements that determine the minimum safe distances required for the aircraft to take off and

land under the conditions, airplane weights, and configurations within the operating envelope defined

for the aircraft.

For takeoff, the current Part 25 certification rules require that an aircraft must be able to safely continue

or reject a takeoff if an engine fails at the most critical point in the takeoff. For both takeoff and

landing, the probability of the failure of any system needed to show compliance with the certification

requirements must be inversely related to the severity of the failure. Failures that could result in a

catastrophic outcome must be extremely improbable.

The rules under which a given aircraft is operated(i.e., 14 CFR Parts 91, 121, 125, 135) relate the

minimum safe takeoff and landing distances determined under Part 25 to the specific operation and

airport for each takeoff. The combination of the aircraft certification rules and the operating rules

provide the requirements and parameters under which takeoff and landing operations can be safely

conducted.

Under the rules discussed above, operations by Category C & D aircraft at SMO are completely

permissible. The FAA has concluded that the City has not demonstrated at this stage of the proceeding

any basis supporting its contrary contention that growing numbers of Category C and D aircraft decrease

safety at SMO. There is simply no evidence that C and D aircraft are any less safe than A and B aircraft.

In fact, the performance range of many B, C or even D aircraft overlap to such an extent that restricting

C and D aircraft would be unjustly discriminatory to the operators of those aircraft.

Moreover, not only do accident rates indicate that jets, including those in Category C and D, have lower

accident rates than propeller driven aircraft, larger jet aircraft have even lower accident rates than

smaller jet aircraft types. There, again, is no data to support a premise that jets have a higher overrun

rate than other aircraft types, or that large jets are more prone to an overrun than smaller aircraft, or that

C or D jets have a higher overrun rate than B aircraft. In fact, the overrun accident history at SMO

could not support banning any type ofB, C or D jets. According to NTSB data from 1981 to 2007, a

period of twenty-six years, there were 6 accidents, including two fatalities at SMO. All six accidents

involved aircraft that were small piston propeller driven A-I or B-1 aircraft, and not those prohibited by

the Ordinance. 7

7 See NTSB database at ntsb.gov

8
In 1979, the U.S. District Court found an earlier Santa Monica Ordinance imposing a total ban on jet

landings to violate the Equal Protection and the Commerce clauses of the U.S. Constitution. Santa

Monica Airport Association v. City a/Santa Monica, 481 F. Supp. 927 (D.C C.D CA, 1979), aff'd 659

F.2d 100 (9th Cir 1981). The district court rejected the City's safety justification for the Ordinance,

finding: "as to safety, the evidence is utterly convincing that modem, small, business or executive type

jets of the type that would be able to fly out of this airport with the jet ban lifted, are at least as safe, if:

not much safer, than the types of piston-engine fixed wing aircraft which are now allowed to use the

airport." ld. Since jet operations at SMO include category C and D operations, the City's Ordinance is

again attempting to ban the types of operations that were at issue in the 1979 proceeding. This history

reinforces the harmful precedent that would be established if the City is permitted to enforce the 2008

ordinance pending the Part 16 proceeding.

The City also attempts to justify the Ordinance as meeting FAA requirements for Runway Safety Areas'

("RSAs"). RSAs enhance safety in the event of an undershoot, overrun, or excursion from the side of

the runway. All airports certificated by the FAA for commercial service under 49 U.S.C. § 44706, as

implemented by 14 C.F.R. Part 139 are required to build standard runway safety areas to the extent

practicable by 2015.49 U.S.C § 44706 note (2005). The RSA standard is part of FAA's airport design

standards; it is not an operating requirement or condition for federally funded general aviation airports

like SMO. No FAA aircraft operating rule requires a standard RSA.

There is no basis in Federal law for Federally funded airports to restrict access on this basis. Moreover,

--atcomrnerclal service·airpertsthe RSA -standard-only has to be met ''to theextent-practicable" .Even if

Santa Monica were a commercial service airport, and it is not, standard RSAs would not be practicable

at SMO because there is little leveled property at both ends of the runways. Accordingly, Santa Monica

has no independent proprietary authority to restrict access based upon Federal RSA standards. In any

event, assuming arguendo that an airport proprietor has authority to exceed minimum airport design

standards such as those relating to RSAs, that authority clearly may not be exercised in a manner that

violates its obligations under its Federal grant assurances and Surplus Property Act obligations to allow

access on fair and reasonable terms without unjust discrimination. For similar reasons, SMO lacks

authority to interpret FAA's Airport Reference Code ("ARC") designation to restrict access in violation

of the obligations noted above.! "

RSAs also are not considered during aircraft certification, nor do they enter into the determination ,o(the

minimum runway length required under airplane operating rules. Airplanes must be able to safely" ,

operate regardless of the presence or absence of an RSA. FAA-approved Airplane Flight Manual

(AFM) limitations and performance information, developed in accordance with the airplane certification

requirements, are used to show compliance with the requirements applicable to that operation. When

those requirements are met, there is no aircraft performance regulatory basis for prohibiting operations.

8 The standards and recommendations in the FAA Airport Design Circular, FAA AC 150/5300-13, dated 9/29/89,

are recommended by the FAA for use in the design of civil airports. For airport projects receiving Federal grant-inaid assistance for a project, the use of these standards is mandatory. At certificated airports, the standards and

recommendations may be used to satisfy 14 CFR Part 139, subpart D. AC, paragraph 3. SMO is neither a recipient

of Federal funding for an airport development project nor certificated under Part. 139. Where such standards are

mandatory, FAA approval may be sought to modify design standards other than dimensional standards for runway

safety areas to meet local conditions, AC paragraph 6.

9
In any event, these arguments, and any others offered by the City, will continue to be considered in the

context of the ongoing FAA proceeding. But, at this stage, and based on all the arguments the City has

made thus far, there is absolutely no demonstrated basis for the City's attempt to ban category C and D

aircraft that have been safely operating for over twenty years at SMO.

Contrary to the City's argument in its Response to the Interim Cease and Desist Order, this case is not

about FAA "aggressively" attacking the City. It is about the City taking action that would ban operators

currently using SMO and doing so on a basis that appears facially unlawful. Even more importantly, the

City's Ordinance would take this step while an investigation into the legality of the Ordinance is

ongoing. It is therefore the City's disruption of the status quo without apparent legal authority that has

prompted this order and our prior order.

The FAA has presented the City with numerous alternatives to the City's Ordinance, including the FAA

proposal presented to the City on March 7, 2008, which includes a pilot awareness program to be

developed in conjunction with FAA, installation of a 70-knot Engineered Materials Arresting System

(EMAS) on the departure end of runway 21, and the implementation ofa voluntary program of property

acquisition, initially limited to approximately 15-20 homes in the most critical areas in the RSA and

Runway Protection Zone (RPZ) for both runways at SMO. The FAA also offered the possibility of

Federal funding to assist the City to implement these alternatives. The City has consistently rejected.·.·

each of these proposals. Any of these alterations could have addressed the City's concerns without;

unlawfully curtailing operations by C and D operators.

As to the agency's alleged misconduct, the City's bases for this claim are legally and procedurally

incorrect. The initiation of the investigation of the City's proposed action (2002 Ordinance) was well

within the authority of the Rule. See 14 C.F.R. §16.l01. Part 16 actions like this one initiated by the

FAA, as opposed to by third party complaint, do not have any time prescribed period for issuance of a

Director's Determination. See 14 C.F.R. §16.31 (a). As previously explained, the Order to Show Cause

provided the City 10 days to respond, the time period for responding to a motion under 14 C.F.R. §

16.19( c). The City was provided 30 days to respond to the 2002 NOr and would have been provided

additional time to respond to the 2008 Order to Show Cause had the City agreed to delay enforcement of

the ordinance which had been due to become effective within less than 30 days following issuance of the

Order to Show Cause. The Order to Show Cause provided that the proceedings would be expedited. As

to the City's Freedom of Information Act request the FAA provided a partial response and release of

documents to the City and is working to complete the same. Additionally, once the Director's

Determination is issued, the FAA will provide the City with any documents comprising the index of

administrative record not in the possession of the City.

The City's argument that the ban on Category C and D aircraft imposes no harm on aircraft operations

because operations may still be conducted at SMO with Category A and B aircraft is frivolous. The' :

argument completely disregards the City's Federal obligation to provide reasonable access to

aeronautical users. Under section 47107(a)(1) and assurance 22 the reasonable access requirement

applies to aircraft access, not to operators who elect, consistent with the City'S ban, to utilize other

aircraft. The ban on Category C and D aircraft is unlawful because it precludes those aircraft from

operations at SMO. Harm will also result from having a federally-obligated airport proprietor appear to

have unbridled discretion to violate its grant obligations and usurp the agency's jurisdiction over safety

of aircraft operations.

10
The City has failed to demonstrate any safety rationale or proprietary authority for its proposed ban on

Category C and D aircraft. It correctly acknowledges that there have been no overruns of Category C or

D aircraft at SMO. Although the City has submitted a declaration by Robert Trimbom that lists

overruns that have occurred at other airports, its fails to note that several of the overruns in its list --

those of a Cessna 340, a Cessna-Sen, and a Falcon 900 -- were each of Category B aircraft, not Cor D.

Furthermore, the City purports to justify its ban on operations of Category C and D aircraft by',

speculating as to the damage that would occur in the (exceedingly unlikely) event of an overrun' at SMO

by such aircraft. As some Category B aircraft (such as, for example, the Falcon 900) weigh more than

twice as much as some Category C aircraft (such as, for example, the Learjet), there is no basis for the

City's speculation on this score.

Again, the City cannot deny access to Category C and D aircraft since the FAA regulations permit

Category C and D aircraft that meet relevant FAA airworthiness standards and aircraft operating

requirements to land and takeoff at SMO. See, e.g., Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th

Cir.2007) ("[T]he FAA preempts the entire field of aviation safety through implied field preemption.

The FAA and regulations promulgated pursuant to it establish complete and thorough safety standards

for air travel, which are not subject to supplementation by ... state laws.") The FAA Part 16 case cited by

the City, Pacific Coast Flyers Inc. v County of San Diego, is distinguishable. The case involved the '"

temporary displacement of aircraft during construction of an airport improvement project. In no respect

can the case be relied upon as supporting SMO's permanent ban.

'--The-City fails to cite any court decision upholding the authority of an airport proprietcr.to.ban certain

aircraft operations because of local aviation safety concerns. That is because no court has ever

interpreted the scope of the proprietor exception, codified at 49 U.S.C. 41713(b)(3), to support such an

argument. Courts that have addressed the airport proprietor exception have recognized that local .,',.'",

proprietors play an "extremely limited" role in the regulation of aviation. American Airlines, Inc. v.

DOT, 202 F.3d 788, 806 (5th Cir. 2000). See also British Airways Board v. Port Authority of New York

and New Jersey, 564 F.2d 1002, 1010 (2d Cir. 1977) ("[A]irport proprietors have an 'extremely limited

role' in the system of aviation regulation").

The City cites assurance 22(i), which provides that an airport may prohibit or limit any given type, kind,

or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport

or to serve the civil aviation needs of the public. But 22(i) reflects only the limited proprietary authority

discussed above. See, for example, Ashton v. City of Concord, Docket No. 16-02-01 (August 22, 2003), ,

affirmed in Final Agency Decision, February 27,2004, petition dismissed Ashton v. FAA,

181 Fed. Appx. 2, (D.C. Cir, 2006), where FAA found that an airport sponsor properly exercised its

limited proprietary rights in declining to enter into an aeronautical business agreement.'' .\

Assurance 22(i) is the exception to the rule, which is that the prohibition on denial of access and unjust

discrimination under Grant Assurance 22(a). Furthermore, the 10th Circuit Court of Appeals' decision in

9 See also AOPA v, Pompano Beach, Docket No. 16-04-01, (December 15,2005) "Airport owners may impose

reasonable rules or regulations to restrict or deny use of the airport for purposes deemed to be incompatible with

safety under the local conditions peculiar to that airport. However, as noted in the Order, this authority is not e .

unbridled. The airport may propose an access restriction based on safety and efficiency, but when such a restriction

triggers a complaint, such as this complaint, the FAA Airports Office will review the supporting justification and

make the final determination regarding the reasonableness of an access restriction. Restrictions based on safety

and/or efficiency require supporting justification from the appropriate Flight Standards and/or Air Traffic Offices."

11
Arapahoe County Public Airport Authority v FAA, 242 F3d 1213 (C.A. 10,2001), rejected the

Authority's argument that its scheduled passenger service ban is per se an exercise of its proprietary

power because grant assurance 22(i) permits the Authority to make that determination without

articulating a viable purpose for the restriction. Arapahoe at 1222-1224.

The City's reliance on the FAA's final agency decision in Millard Refrigerated Services v Omaha

Airport Authority, FAA Docket No. 13-93-19 (8/4/95), a 25 year old FAA administrative decision, is

also misplaced. Millard is factually distinguishable because the airport authority there .was compelled to

choose which airport design standards to meet when the FAA issued newly effective standards. The

airport authority was proposing airport improvements and seeking federal funding and therefore

compliance was mandatory. Unlike the City of Santa Monica, the authority in Millard thoroughly

studied and evaluated the actions required to meet the standards for small and large airplane design'

category airports before concluding that it was only feasible to meet the standards for former. Its

decision was primarily based upon existing physical constraints of the airport and substantial difference

in costs ($156,000 vs $3,550,000). Unlike the ban at issue here, the change in design category of

Millard only affected three based operators, who were offered assistance in relocating to another airport.

Finally, the airport did not take action to limit access until required to do so by the FAA. The FAA

determined that, in part due to frost conditions, the airport's pavement stength was not designed to

support regular use by large airplanes. FAA's subsequent warning that the authority's federal grant

obligations required it to limit use of its runway to aircraft weighing less than 12,500 pounds MGTW

prompted the airport to adopt a ban.

The City's Tenth Amendment argument is also inapposite. This argument, like the argument that the

ban causes no harm, improperly disregards SMO's status as a federally obligated airport. The Supreme

Court in NY v. US, 505 US 144, 145 (1992) continues to rely on a key holding from SouthDakota v.

Dole, 483 U.S. 203, 210 (1987): "Congress may attach conditions on the receipt of Federal funds." The

Tenth Amendment does not restrict the range of conditions Congress can impose on the receipt of

Federal funds when the conditions bear some relationship to the purpose of the Federal spending. In any

event, as previously discussed, the area of national air transport and air safety is a recognized Federal .

concern.

Santa Monica has also failed to articulate any irreparable harm it will suffer if the Ordinance, which

purports to ban operation by aircraft that have safely operated at SMO for over twenty years, is not

allowed to take effect. In fact, public interest concerns dictate that the Ordinance should not take effect.

The City's Ordinance, as explained above, is likely unlawful in a number of respects. Allowing, an

Ordinance (that may subsequently be determined to be unlawful) to subvert present operations of

Category C and D airplanes is harmful on its own and because of its effects on the national air system.

Santa Monica is an important general aviation reliever airport for Los Angeles International Airport

(LAX). According to the City's own estimates the ban would affect over 9,000 Category C and D

aircraft operations or approximately 7% of total operations at SMO. Disruption of over 9000 annual

operations is a significant number for the Los Angeles region and nationally as well. For example, the

FAA uses 500 annual operations as a standard for funding runways. The exclusion of 9,000 operations,

may also impact the travel of approximately 20,000-30,000 passengers annually.

12
The ban would also affect interstate travel because the Category C and D aircraft are used for a

substantial portion of non-stop interstate flights. This would result in a significant burden on interstate

commerce.

By banning 9,000 or more operations from SMO, and forcing those operations to use other airports, the

ban affects Federal air traffic and airspace management in the greater Los Angeles region. Several other

airports in the region, Los Angeles International Airport ("LAX"), Van Nuys (VNY), and Burbank:

(BUR), are already at or near capacity. 10 LAX is at capacity and the others are working to petition the

FAA to institute noise access restrictions that could affect the very aircraft that the City seeks to displace

at SMO. The LAX Master Plan Final EIS states that "all of the general aviation airports are constrained

from large scale. expansion and there is a concern to avoid displacing general aviation operations from

those busy facilities into other commercial airports in the region." Diverting general aviation operations

to LAX is inconsistent with SMO's reliever status obligation: to relieve general aviation operations from

LAX. Given capacity constraints, and the petition of other airports in the region to restrict access, it is ,

simply incorrect for the City to claim that other airports could absorb, without consequence, the effects ."

of the City's unilateral decision to ban 9,000 annual operations of category C & D operations at SMO.

Allowing one City to ban categories of aircraft in violation of its Federal obligations could also

encourage other local governments to follow suit thus creating a patchwork of local laws affecting

aviation which is the province of the Federal government. The ban undermines the FAA's role to ensure

the safe and efficient use of airspace pursuant to 49 U.S.C. § 40103(b)(1). Permitting the City to enforce

- itsiJan-duringthe pendency-of-Part 16 administrative proceedingswill detract-fromFAA~s-statutory role

to enforce airport grant assurances and other Federal obligations and plenary jurisdiction over aircraft

operations and safety in movement areas. It would also be harmful in undermining the congressional

policies underlying the airport grant compliance and improvement programs.

Legal Authority.

Pursuant to 49 U.S.C § 40113(a) FAA is authorized to issue orders to carry out Part A of Subtitle VIl~f

49 U.S.C., including section 401 03(e) prohibiting the granting of exclusive rights. That section provides

explicit authority for the Administrator of the FAA to "take action the ... Administrator ... considers

necessary to carry out this part .... " including the authority for" issuing orders."

Pursuant to 49l.!.S.C § 471 22(a) the FAA may issue orders to carry out Subchapter Ion Airport

Improvement, sections 47101 - 47142. This subchapter includes the grant assurances requiring

reasonable access and prohibiting unjust discrimination to aeronautical users.

10 The primary role of SMO and other general aviation airports in the region is to act as relievers for the commercial airports

like LAX. General aviation jet operation numbers drop as delays increase at LAX because general aviation jet operations

move to reliever airfields like SMO that do not experience such delays. The role of commercial airports like LAX is not to

accept general aviation from SMO, it is the other way around. Single engine piston operations may have dropped at VNY

over the last 20 years, however, multi-engine and jet powered aircraft operations have grown. Van Nuys wil1 be petitioning

FAA to consider noise restrictions on the growth of jet aircraft at Van Nuys. Therefore, SMO can't assume LAX and Van

Nuys can accept SMO's displaced Category C and D aircraft anymore than Van Nuys can assume it can displace aircraft to

SMO.

13
Pursuant to 49 U.S.C. § 46llO(a), FAA final orders issued under Part A or Part B of Subtitle VII of 49

U.S.C. may be appealed to the United States Court of Appeals.

Under 14 C.F.R § l6.33(d) if the Director's Initial Determination finds the respondent in noncompliance

and proposes. the issuance of a compliance order, the initial determination will include notice and

opportunity for a hearing under Subpart F, if such an opportunity is provided by the FAA. Section

16.109(a) of the regulation provides authority for the issuance of proposed orders of compliance

including a cease and desist order in initial determinations. Under 14 C.F.R.§ 16.11 the Director of the

Office of Airport Safety and Standards may issue orders and take such other actions as are necessary to

fulfill the purposes of Part 16. Said purposes include the adjudication of proceedings instituted

by the FAA to determine compliance with the prohibition on exclusive rights, the grant assurances, and

Surplus Property Act obligations. See 14 C.F.R. §§ 16.1(a) (1),(5), (8). Section 16.11(a) expressly cites

the explicit authority of the agency in 49 U.S.C. §§ 40113 and 47122 to take action that it considers

necessary to carry the applicable statutes.!'

The City's May 5 response nevertheless questions the FAA's authority to order a party to desist from

apparent unlawful action pending final agency determination on the legality of that action. In effect, the

City argues that unlawful aircraft bans must be tolerated until such time that an administrative

proceeding has been finally concluded. That is not, and cannot be, the law. Notwithstanding the City's

arguments, the FAA does have the authority to issue interim cease and desist orders pursuant to the

general authority of 49 U.S.C. §§ 40113 and 47122 coupled with that provided under 14 C.F.R. 16.11,

--l-6;3-l(-d}and16.109(a~; Theregulatoryscheme outlined-in the City's Response.that.ends.withafinal.

cease and desist order in a final agency decision is the normal Part 16 process but it is not the only :

possible process under the statutes and regulation. It certainly is not a basis that can support the City's

aircraft ban.

Section 40113(a) and 47122 authority exists to provide broad authority that is completely applicable in

situations such as this, where a city is purporting to ban classes of aircraft under an untested and likely

unlawful ordinance while refusing to wait until the administrative process has run its course. The broad

authority of sections 40113 and 47122 give the Department and FAA the authority to take action that the

agency considers necessary to carry out the applicable part or subchapter, including issuing orders in

extraordinary circumstances, such as those presented in this case. Further, section 16.11 of the

regulation expressly cites the explicit authority of the agency in 49 V.S.c. §§ 40113 and 47122 to take

action that it considers necessary to carry the applicable statutes. 12

The FAA has provided the City notice and an opportunity to be heard pursuant to section 16.11. The

City received (and responded to) our earlier letter of April 21 and to the initial order imposing the cease

and desist order for a limited time period. At base, the City argues that existing procedures hamstring

the agency so that it must countenance unlawful activities until such time that an agency proceeding has

been ultimately concluded. That is not the case. The interim cease and desist order, together with this

Supplemental Order, ensures orderly continuation of the status quo during the existing administrative

process and until a final decision is issued with appeal rights to the United Court of Appeals pursuant to

49 V.S.C. § 46110.

11 In 14 C.F.R § 16.ll(a) section 47122 is miscited as 47121

12.See footnote 8.

14
The FAA has therefore concluded that there is ample authority for the Agency to require the City to

cease and desist from any enforcement of the Ordinance. No local government has previously ever

taken the unprecedented action the City now contemplates. In the context of this proceeding, where the

City is poised to begin enforcing a local ordinance with criminal penalties that may very well be

unlawful for a host of reasons, allowing the Ordinance to take effect at this juncture in the administrative

proceeding cannot be countenanced. There is no basis here for the City to alter the status quo, deprive

operators of their existing right to use SMO, and subject other airports and the air navigation system to

the disruption that will ensue while the City tests its various arguments in defense of its Ordinance in the

ongoing administrative proceeding.

Under the statutory and regulatory scheme, an initial Director's Determination with a finding of noncompliance and providing the opportunity for a hearing, may propose issuance of a compliance order.

However because the Ordinance would become effective before the Director's Determination will issue,

and given the immediate and.severely disruptive nature of the Ordinance the FAA has determined to

leave in place the Cease and Desist Order previously imposed in our April 23 Order.

Good cause exists for issuance of an interim cease and desist order. As we have discussed above, SMO

is an important general aviation reliever for LAX in a regional airspace and airport system that is already

strained in terms of available airports. Furthermore, Category C and D aircraft operations have been

landing and taking-off safely from SMO for over twenty years. No emergency has been shown

requiring an immediate ban, and there is no urgent or compelling basis for a change in the status quo that

.. ' -would bar these operations. Furthermore-while we have not yetissuedan initialdetennination we

continue to believe that the City's ban on operation of these aircraft is likely unlawful. Accordingly, it is

our view that the Ordinance cannot be allowed to go into effect.

IT IS ORDERED:

That the City of Santa Monica, California continue to cease and desist from enforcing its Ordinance

banning Category C and D aircraft operations from Santa Monica Municipal Airport until a final agency

decision is issued in this matter pursuant to 14 C.F.R. §§ 16.33 or 16.241(c).

That the City of Santa Monica shall continue to notify all aeronautical users of the Santa Monica

Municipal Airport, including operators of Category C and D aircraft, that the Ordinance's ban on C and

D aircraft is not in effect.

Acting Director

Office of Airport Safety and Standards

15
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 12,2008, the FAA served by electronic mail (e-mail)

and I caused to be served by overnight express delivery service (Federal Express), a true

copy of the Supplemental Interim Cease and Desist Order addressed to:

Thomas R. Devine

Kaplan Kirsch & Rockwell, LLP

1001 Connecticut Avenue, NW, Suite 905

Washington, D.C. 20036

tdevine@kaplankirsch.com

Marsha Jones Moutrie

City Attorney

City of Santa Monica

1685 Main Street, Room 310

Santa Monica, CA 90401

marsha.moutrie@smgov.net

Martin Tachiki

City of Santa Monica

1685 Main Street, Room 310

Santa Monica, CA 90401

marty. tachiki@smgov.net

aron Long

Airports and Environmental La

Office of the Chief Counsel
CERTIFICATE OF SERVICE

I hereby certify, in accordance with Fed. Rule of App. Proc. 15(c)(1), that a

true copy of the foregoing Petition for Review was served by electronic mail (email) to the following parties in the agency proceedings that are the subject of the

Petition, on this 22nd day of May 2008:

Kelvin L. Solco

Acting Director, Airport Safety and Standards

Federal Aviation Administration

kelvin.l.solco@faa.gov

Byron K. Huffman

Acting Director, Airport Safety and Standards

Federal Aviation Administration

Byron.K.Huffman@faa.gov

Jeffrey S. Bucholtz

Acting Assistant Attorney General

Thomas P. O'Brien

United States Attorney

Arthur R. Goldberg

Assistant Branch Director

Joel McElvain, D.C. Bar No. 448431

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

J oel.McElvain@usdoj.gov

•
Case No.

-------

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF SANTA MONICA, CALIFORNIA,

Petitioner,

v.

KELVIN L. SOLCO, in his Official Capacity as

Acting Director, Office of Airport Safety and

Standards, BYRON K. HUFFMAN, in his Official

Capacity as Acting Director, Office of Airport Safety

and Standards, and the FEDERAL AVIATION

ADMINISTRATION,

Respondents.

)

)

) Docket No. FAA 16-02-08

)

)

)

)

)

)

)

)

)

)

)

)

REPRESENTATION STATEMENT

MARSHA JONES MOUTIUE

City Attorney

JOSEPH LAWRENCE

Assistant City Attorney

LANCE S. GAMS - Bar No. 125487

MARTIN T. TACHIKI - Bar No. 083044

Deputy City Attorneys

1685 Main Street, Room 310

Santa Monica, California 90401-3295

Telephone: (310) 458-8336

Facsimile: (310) 393-6727

lance. gams(cv,smgov.net

marty. tachiki@smgov.net

[Counsel List Continued On Next Page]
ARTHUR P. BERG, ESQ.

Kaplan Kirsch & Rockwell, LLP

730 Fifth Avenue, Suite 900

New York, New York 10019

Telephone: (212) 265-7008

Facsimile: (646) 514-5440

THOMAS R. DEVINE, ESQ.

W. ERIC PILSK, ESQ.

Kaplan Kirsch & Rockwell, LLP

1001 Connecticut Ave., NW # 905

Washington, D.C. 20036

Telephone: (202) 955-5600

Facsimile: (202) 955-5616

Attorneys for Petitioner

CITY OF SANTA MONICA
REPRESENTATION STATEMENT

The undersigned represents City of Santa Monica, Petitioner in this matter,

and no other party. Attached is a service list that shows all of the parties to the

action below, and identifies their counsel by name, firm, address and telephone

number, where appropriate. (F.R.A.P. 12(b); Circuit Rule 3-2(b).)

Dated: May 22, 2008 Respectfully submitted,

MARSHA JONES MOUTRIE

City Attorney

~77a.J.~ '

By _

MARTIN T. TACHIKI

Deputy City Attorney
SERVICE LIST FOR REPRESENTATION STATEMENT

Respondents:

Kelvin L. Solco, in his Official Capacity as

Acting Director, Office of Airport Safety and

Standards, Byron K. Huffinan, in his Official

Capacity as Acting Director, Office of Airport Safety

and Standards, and the Federal Aviation

Administration

Counsel for Respondents:

Jeffrey S. Bucholtz

Acting Assistant Attorney General

Thomas P. O'Brien

United States Attorney

Arthur R. Goldberg

Assistant Branch Director

Joel McElvain, D.C. BarNo. 448431

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Washington, DC 2000 I

Telephone: (202) 514-2988

Facsimile: (202) 616-8202

Joel.McEIvain@usdoj.gov

Petitioner:

City of Santa Monica

Counsel for Petitioner:

MARSHA JONES MOUTRIE (SBN 69711)

City Attorney

JOSEPH LAWRENCE (SBN 99039)

Assistant City Attorney

LANCE S. GAMS (SBN 125487)

MARTIN T. TACHIKI (SBN 83044)

Deputy City Attorneys

1685 Main Street, Third Floor

Santa Monica, California 90401-3295

Telephone: (310) 458-8336

Facsimile: (310) 395-6727

lance.gams@smgov.net

marty. tachiki@smgov.net

[Counsel list continued on next page]
· ARTHUR P. BERG, Esq.

Kaplan Kirsch & Rockwell, LLP

730 Fifth Avenue, Suite 900

New York, New York 10019

Telephone: (212) 265-7008

Facsimile: (646) 514-5440

THOMAS R. DEVINE, Esq.

W. ERIC PILSK, Esq.

Kaplan, Kirsch & Rockwell, LLP

1001 Connecticut Ave. NW #905

Washington, D.C. 20036

Telephone (202) 955-5600 .

Facsimile: (202) 955-5616
CERTIFICATE OF SERVICE

Ihereby certify, in accordance with Fed. Rule of App. Proc. 15(c)(l), that a

true copy of the foregoing Representation Statement was served by electronic mail

(e-mail) to the following parties in the agency proceedings that are the subject of

the Petition, on this 22nd day of May 2008:

Kelvin L. Solco

Acting Director, Airport Safety and Standards

Federal Aviation Administration

kelvin.l.solco@faa.gov

Byron K. Huffman

Acting Director, Airport Safety and Standards

Federal Aviation Administration

Byron.K.Huffman@faa.gov

Jeffrey S.Bucholtz

Acting Assistant Attorney General

Thomas P. O'Brien

United States Attorney

Arthur R. Goldberg

Assistant Branch Director

Joel McElvain, D.C. Bar No. 448431

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

JoeI.McElvain@usdoj.gov

DEBORAH FREEMAN