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. DATE 1'10TICE OF APPEAL 

# I

KEL VIN L. SOLCO, in his Official Capacity as Acting FILED: 

### Ma

# i

- i2 , 2008 II IS THIS ACROSS-APPEAL? OYES Director, Office of Airport Safety and Standards, IF THIS lVIA ITER 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 AVIATION 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 Airport 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 IORDER RELlEF APPEALED li9 FEDERAL 

## o FINAL DECISION OF iC DEFAULT JUDGMENT 

## o DAMAGES: QUESTION DISTRICT COURT C DISMISSAL j JURiSDICTION SOUGHT $ C DISMISSAL IMERITS AWARDED ~ 0 DIVERSITY 

## o INTERLOCUTORY 0 SUMMARY JUDGMENT 

## o INJUNCTIONS: DECISION 0 JUDGMENT / COURT DECISION 

## o PRELIMINARY 

## o OTHER APPEALABLE AS OF 0 JUDGMENT IJURY VERDICT 

## o PERMANENT (SPECIFY) RIGHT C DECLARATORY JUDGMENT D GRANTED 0 JUDGMENT AS A MATTER OF LAW 

## o DENIED 

## o INTERLOCUTORY f8J OTHER (SPECIFY): ORDER CERTIFIED BY Administrativedecisionofthe FAA D ATTORNEY FEES: DISTRICT JUDGE SOUGHT 

## s (SPECIFY): AWARDED~ 0 PENDING 

## o COSTS: 

## s l&l OTHER (SPECIFY): Petition forReview 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 9TH 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: MARTINT. TACHIKI

. FIRM: CITYAn'ORNEY'S OFFICE, CITY OF SANTA MONIC" ADDRESS: J685 MainStreet,3rdFloor

SantaMonica.CA9040J 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, ITSHOULD BE FILED DIRECTLY WITH THE V.S. COliRT OF APPEALS·

Effective 7ft 12000 /0.-JJa (!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 ofAirport Safety and Standards, BYRON K. HUFFMAN, in his Official Capacity as Acting Director, Office ofAirport Safety and Standards, and the FEDERAL AVIATION ADMINISTRATION,

Respondents. ) ) ) DocketNo. 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 ofthe April 23, 2008 "Interim Cease and Desist Order" and the May 12,
2008 "Supplemental Interim Cease and Desist Order" both ofwhich 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 MATIER 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 aNotice ofInvestigatioa; ":: (NOI) dated October 8,2002, initiated bythe Director ofthe Office ofAirport 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 ofPractice for Federally Assisted Airport Enforcement Proceedings, 14Code ofFederal Regulations (C.F.R.) Part 16. The FAA's investigation seeks to determine the legality ofthe 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 Djet aircraft from SMO becomes effective on April 24, 2008. The City's executive summary to the Ordinance claims it

### win affect approximately 

### 1010of 130,000 annual operations orban 9,000 Category C andD aircraft operations. The Ordinance's stated purpose purports to be one ofsafety: toprotect 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 ofaeronautical 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.

2A 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 ofmore than 141 knots but less than 166 knots.On March 26, 2008, the FAA issued an Orderto Show Cause under 14C.F.R Part 16. The Order to

Show Cause directed the City to show cause as towhy the FAA should not supplement the existing Part 16investigation (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 ofthe initial determination pursuant to 14C.F.R. 

### § 16.11 because the Ordinance will take effect April 24, 2008. On April 1,2008, FAA denied the City's request for anextension oftime to file its response to the Order to Show Cause without prejudice and with anopportunity to renew ifthe renewal was based upon an agreement to suspend enforcement ofthe 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 2I, 2008, bye-mail, facsimile and express mail to the City and its counsel, the FAA requested that, by close ofbusiness Tuesday April 22, 2008, the City withdraw its April 14, 2008 letter to the aeronautical users ofSMO advising them ofthe ban, and assuring the FAA and those users in writing that the City will refrain from enforcing theban on Category C and D aircraft operations pending the outcome ofthe Part 16administrative proceeding. The FAA requested acopy of the City's withdrawal letter by close ofbusiness 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 itfail to comply with this request by close ofbusiness Tuesday April 22, 2008, the FAA would issue acease and desist order requiring the City to hold the Ordinance in abeyance in order to preserve the status quo pending the conclusion ofthe 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 ofthe issues raised by the City are being addressed inthe on-going investigation and wilJbe decided inthe FAA's forthcoming initial determination, the FAA finds it necessary to issue this Interim Cease and Desist Order pursuant to 14C.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 ofthe Ordinance pending the final outcome ofthe Part 16administrative proceeding. Furthermore, while wehave not yet issued the initial Director's determination, we can make a preliminary finding that the City's ban on operation ofthese 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 apresent right to utilize SMO. The City's ban would be unfounded while the Part 16administrative 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 Djet 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.


### 2Enforcement ofthe Ordinance on April 24, 2008, can only beinterpreted as an attempt to divest

Category C and D aircraft operators oftheirrightto use SMO andthe FAA ofitsjurisdiction over its administrative process to which the City, as 

### a federally obligated airport, must adhere. SMO is an important general aviation reliever forLosAngeles International Airport (LAX) in aregional airspace and airport system that is already strained interms ofavailable airports. Furthermore, Category C and 

### D aircraft operations have been landing and taking-off safely from SMO forover twenty years. There is no emergency requiring an immediate ban, and there is no safety orother basis for achange 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 ofthe aircraft that use the airport. FAA airport design standards are used so that all airport elements meet the requirements forthe most demanding aircraft that is expected to have 500 or more annual itinerant operations atthe airport, It is not inherently unsafe for an aircraft of alarger design category to utilize an airport thathas been designed to accommodate alesser design category of aircraft ifthe aircraft meets the FAA approved operational requirements for using SMO. The FAA strictly regulates the safe operation ofaircraft from certification (e.g. 14C.F.R. Part 25) to the manner in which the aircraft is operated (e.g. 14C.F.R. Part 135). Both types ofregulations cover runway length requirements. Moreover, pilot certification, and the operation ofa particular aircraft/flight, including the amount ofrequired runway for atake offand landing, are all regulated by the FAA. There are a1soanumber ofseparate 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 ofthe United States Code, §47] 0I, 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 acondition 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 atotal 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, ofthe prescribed sponsor assurances implements the provisions of49 U.S.C. 

### §47107(8) (1) through (6), and requires, in pertinent part, that the sponsor ofafederally 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)



### 3The owner of any airport developed with Federal grantassistance isrequired to operate the airport for

the use and ~nefit of thepublic and to make itavailable to alltypes, kinds, and classes ofaeronautical activity on fair and reasonable terms, andwithout unjust discrimination. As such, itmay not deny reasonable access to aeronautical users. Title 49 USC § 40103(e) states that "[a] person does nothave an exclusive right to use an air navigation facility on which Government money has been expended." 49 USC §47107(aX4) provides, inpertinent part, that "a person providing, or intending toprovide, aeronautical services to thepublic will notbe given anexclusive right to use the airport. » Grant Assurance 23, Exclusive Rights, ofthe prescribed sponsor assurances requires and subsumes the statute's pertinent parts, so that the sponsor ofafederally obligated airport: "will permit no exclusive right for the use ofthe airport by anyperson providing, or intending to provide, aeronautical services to the public

.... Itfurther agrees that it will not, either directly or indirectly, grant orpermit any person, firm, or corporation, the exclusive right atthe airport to conduct any aeronautical activities

.... " An exclusive right is defined as apower, priviJege, or other right excluding or debarring another from enjoying orexercising a like power, privilege, orright. An exclusive right can be conferred either by express agreement, bythe imposition ofunreasonable standards or requirements, orby any other means. Such aright conferred on one ormore parties, but excluding others from enjoying or exercising asimilar right or rights, would be an exclusive right. The City's Ordinance raises graves concerns under each ofthese statutory and grant assurance provisions since, ifeffective, the Ordinance would bar categories ofoperators currently serving SMO, and in doing so would favor other categories ofoperators. Consistent with the City's obligations discussed above there can beno basis for allowing the City tobegin enforcing its unilateral ban while the legality ofthat ban.is under question and is subject to ongoing administrative investigation. Contrary to the City'S arguments in the on-going Part 16investigation, the FAA has independent jurisdiction to address theproprietary authority and preemption issues. These issues are tied to enforcement ofthe assurances under 49 U.S.C.§§ 40103(e), 40113, 47122, and 47107. The ]984 Settlement Agreement InJune 1981,the Santa Monica City Council enacted aresolution calling for closure of SMO. That action resulted inextensive litigation against the City by airport associations, the FAA. The litigation resulted in anegotiated settlement memorialized on January 31, J984, 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 1984agreement restates the City's Federal obligations including that of Assurance 22 to permit reasonable access to aeronautical users. In Section 8 ofthe agreement, the City committed to "operate

4and maintain the Airport as a viable functioning facility without derogation ofitsrole as ageneral

aviation reliever, or its capacity interms ofrunway 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 150feetwide. The agreement also provides in Section 2that SMO "is to be open and available to and forpublic use as an airport on fair andreasonable terms and without unjust discrimination, and without granting any exclusive rights prohibited by law" and recognizes that "exclusive authority is vested inthe FAA forthe regulation ofall aspects ofair safety, the management and control ofthe safe andefficient use ofthe navigable airspace, and movement of aircraft through that airspace" inconnection with SMO. The City, ostensibly for safety reasons - an area within the "exclusive authority" ofthe FAA

- ispoised to restrict access oftwo categories ofusers to SMO that arecurrently 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 inthe 1984Agreement; 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 ofTransfer 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 inperpetuity 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 ofthe deed covenants. The United States executed an "Instrument ofTransfer" dated August 10, 1948" (1948 Instrument ofTransjert in which the federal government surrendered its JeasehoJd interest in the Santa Monica Airport, and transferred ittogether with U.S. airfield improvements back to the City. The 19481nslrument ofTransfer remised, released and forever quitclaimed the subject premises to the City subject to reservations, restrictions and conditions specified in the transfer document Two ofthe restrictions listed in the 1948Instrument ofTransfer 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 ofthe public, on reasonable terms and without unjust discrimination and without grant or exercise ofany exclusive right for use ofthe airport

.... " The second relevant restriction in the 1948Instrument ofTransfer 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 ofthe airport at whichtheproperty transferred bythis instrument is

located shall be vested (directly orindirectly) in anyperson orpersons tothe exclusion of others in the same class, the terms 

### "exclusive right" being defined to mean.... "

... any exclusive right to use the airport for conducting anyparticular aeronautical activity requiring operation ofaircraft."
On the tenth ofAugust in 1948, the City confumed its acceptance oftheInstrument ofTransfer from the U.S Government passing Resolution No. ]83. The City'S acquiescence to the terms, conditions and restrictions is demonstrated byits properly approved City resolution accepting the 1948Instrument ofTransfer; the ]948Instrument ofTransferwas recorded inthe County ofLos 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 ofall instruments of transfer by which surplus airport property is orhasbeen conveyed to non-federal public agencies pursuant to the SPA. Additionally, FAA is granted the authority torelease 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 ofthe United States in civil aviation. See 49 USC 

### §47153 and 14C.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 1948Instrument ofTransfer. Again, there is no basis, given this, to allow the Ordinance to take effect and disrupt the ongoing operations ofCategory C and D aircraft while the legality ofthe Ordinance is finally determined by the FAA. The City's Arguments in Support ofits Ordinance Will Be Decided in the On-Going 

### FM Proceeding The FAA recognizes that the City has offered reasons why itbelieves the Ordinance does not run afoul ofany ofthe 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 onthe 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 ahigher safety risk and thus cannot operate at SMO even though the approach speeds of manyjets 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 agiven airplane can safely land or take off at agiven airport; this is the function of

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

account the airplane design features and characteristics (forexample, airplane weight, configuration, engine thrust, stopping capability, speeds, and procedures) andthe operating environment (for example, airport elevation, runway surface condition (dry orwet), runway length and slope, and atmospheric conditions such as wind and temperature) to determine the conditions underwhich takeoff and landing operations can be conducted. Airplane approach categories only categorize airplanes in terms oftheir 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 ornot atakeoff or landing can be safely conducted, nor for evaluating the relative safety risk ofdifferent airplanes for takeoff orlanding. 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 CategoryAirplanes. These certification standards apply to airplanes ranging from businessjets to large airliners. These standards include requirements to determine the minimum safe distances required forthe airplane 

## to take offand 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 ifan engine fails atthe most critical point inthe takeoff. Forboth takeoff and landing, the probability ofthe failure ofany system needed to show compliance with the certification requirements must be inversely related to the severity ofthe failure. Failures that could result in a catastrophic outcome must be extremely improbable. The rules under which the airplane is operated (i.e., 14CFR Parts 91,121,125,135) relate the minimum safe takeoff and landing distances determined under Part 25 tothe specific operation and airport for each takeoff. The combination ofthe 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 atthis stage any basis for the contention that growing numbers ofCategory 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 ofmany 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 thatjets, including Category C and D types, have lower accident rates than propeJJer driven aircraft, largerjet aircraft have even lower accident rates than smallerjet aircraft types. There is nodata to support apremise thatjets have ahigher overrun rate than other aircraft types, or that largejets are more prone to an overrun than small ones, or that C or Djets have ahigher overrun rate than B aircraft. In fact, the overrun accident history at SMO does not support banning any type ofB, C or Djets. According to NTSB data from 1981 to 2007, aperiod oftwentyseven 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 onjet landings to violate the Equal Protection and the Commerce clauses ofthe U.S. Constitution. Santa

5 See NTSB database at ntsb.gov'
7Monica Airport Association v. City ofSantaMonica, 481 F. Supp. 927 (D.C C.D CA, 1979), atJ'd 659

F.2d 100 (9th Cir 198I). The District Courtrejected the City's safetyjustification for the Ordinance, finding: "as to safety, the evidence is utterly convincing thatmodem, small, business orexecutive type jets ofthe type that would be able to fly out ofthis airport withthejet ban lifted, are at least as safe, if not much safer, than the types ofpiston-engine fixed wing aircraft which are now allowed to use the airport." 

### Id_ The City also attempts tojustify the Ordinance as meeting FAA requirements for Runway Safety Areas'

. ("RSAs"). RSAs enhance safety inthe event ofan undershoot, overrun, orexcursion from the side of the runway. All airports certificated bythe FAA for commercial service under 49 U.S.C.§ 44706, as implemented by 14 C.F.R. Part 139 arerequired to build standard runway safety areas to the extent practicable by 2015.49 V.S.C §44706 note (2005). The RSA standard ispart ofFAA's airport design standards; itis not an operating requirement orcondition forfederally 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 forRSAs as claimed by the City. Moreover, at commercial service airports the RSA standard only has to bemet to the extent practicable. Even ifSanta Monica were a commercial service airport, standard RSAs would not bepracticable because there is little leveled property at both ends. Accordingly, Santa Monica has no independent proprietary authority to restrict access based upon heightened application offederal 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 amanner 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 ofthe obligations noted above. RSAs are not considered during aircraft certification nor do they enter into the determination ofthe minimum runway length required under airplane operating rules. Airplanes must be able to safely operate regardless ofthepresence or absence ofanRSA. 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 ofthe ongoing FAA proceeding. But there is absolutely no demonstrated basis, at this stage of the proceeding, and while the legality ofthe City's Ordinance is being examined in the context ofthe 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 anumber ofrespects. 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

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

According to the City's own estimates the banwould affect over 9,000 Category C and D aircraft operations or approximately 7% oftotal operations at SMO. Disruption ofover 9000 annual operations is a significant number for the Los Angeles region andnationally as well. For example, the FAA uses 500 annual operations as a standard forfunding runways. The exclusion of9,000 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 ofnon-stop interstate flights. This willresult in a significant burden on interstate Commerce. By banning 9,000 or more operations from SMO andforcing themto use other airports, the ban affects Federal air traffic and airspace management inthe 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 ofthe 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 toLAX is inconsistent with SMO's reliever status obligation: to relieve general aviation operations from LAX. Allowing one City to ban Categories ofaircraft inviolation ofits Federal.obligations will encourage other local governments to follow suit thus creating apatchwork oflocal 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 ofPart 16administrative proceedings wiIJdetract 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 ofexclusive rights. That section provides explicit authority.for the Administrator ofthe FAA to "take action the

... Administrator

... considers necessary to carry out this part
.... " including the authority for" issuing orders." Pursuant to49 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 to49 U.S.c. §461lO(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 ofAppeals. Under 14C.F.R § 16.33(d) ifthe Director's Determination finds the respondent in noncompliance and proposes the issuance ofacompliance order, the initial determination will include notice and opportunity for ahearing under Subpart F, ifsuch an opportunity is provided by the FAA. Section 16.J09(a) ofthe regulation provides authority for the issuance ofproposed orders ofcompliance including acease and desist order in initial determinations.

9The FAA recognizes that itis anunusual step to issue acease anddesist order thatis effective

immediately. However, no localgovernment haspreviously evertaken the unprecedented action the City now contemplates. In the context ofthis proceeding, wherethe City ispoised tobegin enforcing a local ordinance with criminal penalties thatmay very well be unlawful for ahost ofreasons, allowing the Ordinance to take effect at thisjuncture inthe administrative proceeding cannot be countenanced. There is no basis here for the City to alterthe status quo, deprive operators oftheir right to use S~O and subject other airports and the airnavigation systemto the disruption that will ensue while the City tests its various arguments indefense ofits Ordinance 'inthe ongoing administrative proceeding. Therefore the FAA has determined that advance notice ofthis Order, and any opportunity for hearing prior to its effectiveness is not practical and will notbe inthepublic 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 outthe aviation statutes, including section 40] 13(a). Under the statutory and regulatory scheme, an initial Director's Determination with a finding of noncompliance andproviding the opportunity for ahearing, may propose issuance of acompliance 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 ofthe Ordinance, the City was provided notice on April 21, 2008 ofFAA's intention to issue an interim cease anddesist order. The City responded by letter dated April 22, 2008, and refused to suspend enforcement ofthe Ordinance. Good cause exists for issuance ofan interim cease and desist order. SMO is an important general aviation reliever for LAX in aregional 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 apreliminary finding that the City's 

### ban on operation ofthese aircraft is unlawful. Accordingly, it is ourview 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 torespond to matters set forth in this Order the FAA is affording the opportunity for aresponse to be filed within I0 days. In the event that those comments articulate abasis, consistent with legal constraints and with the public interest, for allowing the Ordinance to take effect during thependency ofthe FAA's proceeding we 

### wiU re-visit this issue. Otherwise itis our intention that the City must beprecluded from banning operations by Category C and D operators until such time that the legality ofthe City's proposed ban is determined, one way or the other. IT IS ORDERED: That the City of SantaMonica, California cease and desist immediately from enforcing its Ordinance banning Category C and 0aircraft operations from Santa Monica Municipal Airport until a final agency decision is issued inthis matter pursuant to 14C.F.R. §§ 16.33 or 16.241(c). That City shall pubJically withdraw its letter ofApril 14, 2008 to airport users regarding enforcement of the ordinance. :

10

### That City shall provide, withinthree (3)days ofthis order,writtennotification tothe airport users that

the Ordinance is inabeyance until completion oftheFAA's administrative process. That City shall provide acopy ofthenotification aboveto theFAA aswellasthe list ofusers to whom it was sent, no later than close ofbusiness April 28, 2008. That The City may file aresponse tothisInterim Cease and DesistOrderwithin 10days fromthe date of this Order. That The FAA shall consider any arguments made insuchresponse concerning conclusions reached in this order inasubsequent order.

Acting Director 

### Office ofAirport Safety and Standards

. i

IIOffICe ofthe 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 ofbusiness 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 120day 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 10counsel 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 ofthe community and the FAA's arguments "e:.rinstthe 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 ofthe 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 wiDbe 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 ifyOW'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 itsjW'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 ofgovernmental duties

- the duty to k~p the public safe. Your assertion that this effort is undertaken to divest your agency ofjurisdiction 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.st liability 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 iftrue, establish that the City may not meet theKevin L. Solco

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. 

### acity 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 

### suchoverweight vehicles 

### to use the bridge in the future. Indeed, ifthe "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 offaster 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 inthis 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 Daircraft 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 ofpublic safetY. The City ~es you to change your course and steadfastly put safety first. Even ifyou will not, or canilOt, the City must. Therefore, itmust 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 8March 25,2008 City Ordinance, Category C and D aircraft operations are prohibited at SMO effective as ofThursday 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 anwnber of occasions and, as you know, the subject ofthe legality of the Ordinance is now part ofan on-going FAA proceeding. While we have not yet concluded that proceeding, our initiaJ view, as we have previously communicated to you, isthat the City's ban on operation of these aircraft is unlawful. Accordingly, itis our view that the Ordinance cannot be allowed to go into effect, particularly while the FAA's proceeding is ongoing. The legality ofthe ban on Category C and Daircraft litSMO is before the FAA pursuant to a Notice of Investigation under 14C.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 16proceedings, which until that time were stayed by the parties' attempts atnegotiation. 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 inthe status quo that would bar these operations.
Your enforcement ofthe Ordinance on April 24, 2008, can only be interpreted as an attempt to divest the FAA of itsjurisdiction 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 oftheOrdinanceunderthese circumstances while the

administrative proceeding isunderway. Therefore, theFAA requests that, byclose ofbusiness Tuesday Apri122, 2008, you withdraw your lettertotheaeronautical users and assure the FAA and

. those users inwriting that the City willrefrain fromenforcing the banon Category CandO aircraft operations pending the outcome ofthe Pan 16administrative proceeding. Please provide this office with acopy ofyour withdrawal letter byclose ofbusiness Tuesday April 22, 2008. Should the City faiJ to comply with this request, theFAA willissue acease and desist order requiring the City notto enforce the Ordinance inorder to preserve thestatus quo. In the event that. for whatever reason, the City does not compJywith anFAA cease anddesist order, we willpursue appropriate remedies through all means available.

~~ Acting Director Office ofAirport 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 aninterim cease and desist order that directed the City of SantaMonica (the City) notto enforce aMarch 25, 2008 Ordinance (Ordinance), thatpurported to ban operations ofCategory C and D aircraft at Santa Monica Airport (SMO). That order advised the City ofitsright to file aresponse within 10days. 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 ofthe data and documents submitted by the City, this supplemental order also restates the bases forthe issuance ofaninterim cease and desist order. This matter isbefore the FAA based onaNotice ofInvestigation (NOI) dated October 8, 2002, initiated by the Director ofthe Office ofAirport Safety and Standards, and supplemented by his March 26, 2008 Order to Show Cause. TheNOI and Orderto Show Cause were issued in accordance with the FAA Rules ofPractice forFederally Assisted Airport Enforcement Proceedings, 14Code ofFederal Regulations (C.F.R.) Part 16. TheFAA's investigation seeks to determine the legality ofthe City's Ordinance banning Category C and D aircraft operations at SMO. The City's ban on Category C andDjet aircraft was scheduled to take effect and be enforced against operators onApril 24, 2008. OnApril 23, however, the City Attorney agreed to arequest by the Department ofJustice torefrain from enforcing the Ordinance pending the April 28, 2008 hearing in United States District Court ontheFAA's request for atemporary restraining order (TRO). After the hearing the Court entered an Order granting the TRO, which prohibits enforcement ofthe Ordinance, and scheduled apreliminary injunction hearing on May 15,2008.1 

### The Ordinance's statedpurpose 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 theCity and the FAA2• 

### The City claims the Ordinance conforms to the City's

I United States v. City ofSanta Monica, Case No. CV 08-2695. 2 The 1984 Agreement isasettlement agreement between the City and the FAA. For additional explanation, see page 5 infra.

### obligation under the agreement to servecategoryA andB aircraftatSMO, andthe City asserts the right to prohibit orlimit any othertype, kindorclassofaeronauticaluseofSMO. The categories ofaircraft are based on wingspan and approach speed.3


### OnMarch 26, 2008, the FAA issuedanOrderto ShowCauseunder 14C.F.RPart 16. The Order directed the City to show causewithintendays asto whytheFAA should not supplement the existing Part 16investigation (begun in2002 whenasimilar Ordinance wasproposed") withthe factspertaining to the adopted Ordinance. The Orderto ShowCause alsoexpressly determined the investigation and

. issuance ofthe initial determination hadto beexpeditedpursuantto 14C.F.R. § 16.11because the Ordinance would otherwise take effectApril 24, 2008. On April 7, 2008, the City filed its responsetothe Orderto ShowCause. By letter dated and delivered onApril 21, 2008, bye-mail, facsimile and express mail to the City and its counsel, the FAA requested that, by closeofbusiness Tuesday April 22, 2008, the City withdraw its April 14, 2008 letter to the aeronautical users ofSMO advising them ofthe ban, and assure theFAA and those users inwriting that the City wouldrefrain from enforcing theban on Category C andD aircraft operations pending the outcome ofthePart 16administrative proceeding. TheFAA requested acopy of

.the City's withdrawal letterby close ofbusiness Tuesday Apri122, 2008. The FAA's Apri121, 2008 letter was attached to the Interim Cease andDesist Order. The-FAA further-advised the City thatshould itfailto comply withthis request by.close .of'business Tuesday April 22, 2008, the FAA wouldissue acease and desist orderrequiring the City to hold the Ordinance in abeyance in ordertopreserve the status quo pending the conclusion ofthe FAA's investigation. The City responded by letterdated 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 ceaseand desist order onApril 23, 2008, ordering the City of Santa Monica to cease and desist immediately from enforcing the Ordinance until afinal agency decision is issued by the FAA inthis matter under 14C.F.R. Part 16. The Order afforded the City ten days to respond. OnApril 23, 2008, the City Attorney advised the Department ofJustice that the City would accede totheDepartment ofJustice's request and would not enforce the Ordinance until aTRO hearing was held. OnApril 28, 2008, the United States District Court granted the FAA's request for a TRO 

### enforcing the cease and desist order. As aresult, the City's Ordinance has yet to be enforced. The preliminary injunction hearing is scheduled forMay 15,2008.

3 A Category A-I aircraft, has an approach speed ofless than 91 knots. A Category B-J aircraft has an approach speed of 91 knots but lessthan 121 knots. A Category C-J aircraft has an approach speed between 121 knots or more but lessthan 141 knots. A Category D-l aircraft has an approach speed ofmore than 141 knots but less than 166 knots.
4 On October 8,2002, the FAA issued aNotice oflnvestigation under Part 16 initiating an investigation into the legality ofa 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 Djet 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 itadopted the new but substantially similar Ordinance.


### 2On 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 apetition for review in an appropriate court of appeals challenging the cease and desist order ifit 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 ofthe 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 safeoperationofaircraftfromcertification (e.g. 14C.F.R.Part 25)to the

manner in which the aircraft is operated (e.g. 14C.F.R. Part 135). Bothtypes ofregulations cover runway length requirements. Moreover, pilotcertification, andthe operation ofaparticular aircraft/flight, including the amount ofrequiredrunway foratake offandlanding, are allregulated by the FAA. Category C and D operations atSMOcomplywithalloftheserequirements. There are also anumber ofseparate reasonswhy the City's Ordinance is likely anunlawful ban. All of these have been communicated previously tothe City andarediscussedbriefly below. The upcoming Director's Determination will fully addressthe merits ofthecase as noticed inthe 2002 NOI, and as supplemented inthe 2008 Orderto ShowCause. Federal Grant Assurance Obligations We adhere to ourprior determination thatthe City's Ordinance appears facially to violate Federal grant assurances thatthe City has committed tobebound by. Title 49 oftheUnited States Code, §47101, et seq., provides forFederal financial assistance forthe development ofpublic-use airports like SMO under the Airport Improvement Program ("AlP") established bythe Airport and Airway Improvement Act of 1982, as amended. Section 47107 andthegrant contract, setforth assurances to which an airport sponsor agrees as a condition to receiving Federal financial assistance. Upon acceptance of.an AlP grant, the assurances become abinding obligation between the airport sponsor and the Federal government. ;i,• .::


### Between 1985 and 1994, the Airport received atotal of$9.7 million inFederal airport development assistance. Because the City's AlP grantshave notbeen used forpurchasing land, most ofthe corresponding AlP grant assurance obligations are effective for 20 years. Since 1994, the City has not received new grants and the City's lastgrant amendment was in 2003. The City's grant assurance obligations therefore remain in effect. Assurance 22, Economic Nondiscrimination, ofthe prescribed sponsor assurances implements the provisions of49 U.S.C. §47107(a) (1) through (6), andrequires, inpertinent part, that the sponsor ofa Federally obligated airport will make its airport available as an airport forpublic use on reasonable terms, and without unjust discrimination, to all types, kinds, and classes ofaeronautical activities, including ·.i 

### commercial aeronautical activities offering services to the public atthe airport. The owner ofany airport developed withFederal grant assistance is required to operate the airport for the use andbenefit ofthepublic and to make it available to all types, kinds, and classes of aeronautical activity on fairandreasonable terms, andwithout unjust discrimination. As such, itmay not deny reasonable access to aeronautical users. Title 49 USC § 

### 40I03(e) states that "[a] person does not have an exclusive right to use an airnavigation facility on which Government money has been expended."

. . 49 USC §47107(a)(4) provides, inpertinent part, that "a person providing, or intending to provide, aeronautical services tothe public will notbe given an exclusive right to use the airport."

4

### Grant Assurance 23, Exclusive Rights, oftheprescribed sponsorassurancesrequires andsubsumes the statute's pertinent parts, sothat the sponsorofafederally obligatedairport will permit no exclusive rightforthe use ofthe airportby anypersonproviding, orintending to provide, aeronautical services to thepublic

...Itfurtheragreesthat itwill not, either directly or indirectly, grant orpermit anyperson, firm, orcorporation, the exclusive right atthe airport to conduct any aeronautical activities

.... An exclusive right is defined as apower, privilege, orotherright excluding or debarring another from enjoying or exercising alikepower, privilege, orright. An exclusive right can be conferred either by express agreement, bythe imposition ofunreasonable standards orrequirements, orby any other means. Such aright conferred on oneormoreparties, butexcluding others from enjoying orexercising a similar right orrights, is anexclusive rightthat isforbidden bythe Grant Assurance. That isprecisely the type ofright that the City's Ordinance attempts to asserttothe detriment ofCategory C andD operations. The City's Ordinance therefore raises serious concerns under each ofthese statutory and grant assurance provisions since, ifeffective, the Ordinance would bar categories ofoperators currently serving SMO, and in doing sowould favor other categories ofoperators. Consistent with the City's obligations discussed above there canbe nobasis for allowing the City to begin enforcing its unilateral banwhile the legality ofthat ban is under question and is subjectto ongoing administrative investigation. The 1984Settlement Agreement As we explained inthe prior cease and desist order, this isnot the first time the City has attempted to limit operations at SMO. InJune 1981,the Santa Monica City Council enacted aresolution calling for closure ofSMO.s That action resulted in extensive litigation against the City by airport associations and the FAA. The litigation resulted in anegotiated settlement memorialized on,January 31, 1984,referred to as the 1984SantaMonica Airport Agreement (1984 Agreement). The agreement was executed bythe City andtheFAA andresolved all "existing litigation and/or administrative complaints pending between the parties." The 1984agreement restates the City's Federal obligations, including those set forth in Assurance 22, to permit reasonable access to aeronautical users. In Section 8 ofthe agreement, the City committed to "operate andmaintain theAirport as aviable functioning facility without derogation ofits role as a general aviation reliever, orits capacity interms ofrunway 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 150feet wide. The agreement also provides in Section 2that SMO "is to be open and available to and forpublic use as an airport on fair and reasonable terms andwithout unjust discrimination, and without granting any exclusive rights prohibited by law" andrecognizes that "exclusive authority is vested in the FAA for the regulation ofall aspects of

5 See also, City a/Santa MonicaAirport 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 controlofthesafeandefficientuseofthenavigable airspace, and movement ofaircraft through that airspace" inconnectionwith SMa. The City, ostensibly for safety reasons - anareawithinthe agreed-to "exclusive authority" ofthe FAA

- ispoised to restrict access oftwo categoriesofusers that arecurrently permitted toutilize SMa without restrictions. Again, itwouldbeimprudentto allowthataction, which appears to be directly contrary to the Federal grant assurance obligations specifically agreed toby the City as setforth inthe 1984Agreement, to take place beforetheunderlying legality ofthe 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), 49U.S.C. §47151, such asthe 1948 SPAInstrument of Transfer that transferred SMa to the City,contain restrictive covenants similar to AIP grant assurance obligations. These covenants ensurecontinued reasonable access to aeronautical users without unjust discrimination. The SPAobligations run inperpetuity unless released bythe FAA. The SPA deed and other instruments oftransfer also provide the FAA with therightto revert the airport to the Federal government forviolation ofthe deed and instrument covenants. The United States executed an "Instrument ofTransfer" dated August 10, 1948" (1948 -rInstrument: 

### ofTransfer)6in which theFederal-government surrendered its leasehold interest in the Santa Monica Airport, and transferred ittogether with U.S. airfield improvements backto the City. The 1948Instrument ofTransferremised, released and forever quitclaimed the subject premises to the City subject to reservations, restrictions and conditions specified inthe transfer document. Two oftherestrictions listed in the 1948Instrument ofTransfer executed by the Federal government and the City ofSanta 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 forpublic airport purposes forthe use and benefit ofthe public, on reasonable terms and without unjustdiscrimination and without grant or exercise ofany , exclusive right foruse ofthe airport

.... The second relevant restriction inthe 1948Instrument ofTransfer independently re-states the exclusive rights prohibition:

no exclusive right for use ofthe airport atwhich the property transferred by this instrument is located shalJbevested (directly orindirectly) in any person orpersons to the exclusion ofothers inthe 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 ofaircraft."

6 2001 Title Report sets outthe 1948 Instrument ofTransfer as a quit claim deed.

6

### On the tenth ofAugust, 1948,the Cityconfirmedits acceptanceofthe

### Instrument ofTransfer from the U.S Government bypassing ResolutionNo. 183. The City's acquiescence to theterms, conditions andrestrictions is demonstratedbythis Cityresolution acceptingthe 1948

### Instrument ofTransfer; the 1948 

### Instrument ofTransferwasrecordedinthe CountyofLos Angeles on August 23, 1948 as Document No. 1746. The City nonetheless argues that itisnot subjectto obligations underthe Surplus Property Act. This is contrary to the previous history ofthe City seeking, andtheFAA's awarding of,partial releases from its Surplus Property Act obligations. During theperiod from 1952-1956andintothe 1970s, several parcels ofland were released from the Federal obligations contained inthe 1948

### Instrument ofTransfer. Pursuant to 49 U.S.C § 47151 onlythe Secretary may ensure compliance with an instrument conveying an interest in surplus property. Hence, the FAAhas the soleresponsibility for determining and enforcing compliance withtheterms andconditions ofall instruments of transfer by which surplus airportproperty is orhas been conveyed to non-federal public agencies pursuant to the SPA. Additionally ,FAA is granted the authority to release airportpremises from surplus property terms and obligations. This authority is conditioned on afinding thatthe release is necessary to protect or advance the interests ofthe United States in civil aviation. See49USC §47153 and 14C.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 inthe 1948

### Instrument ofTransfer. Again, there is no basis, given this, to allow the Ordinance to take effect and disrupt the ongoing operations ofCategory C and D aircraft while the legality ofthe Ordinance is finally determined by the

. FAA. The City Has Provided No Basis That Would Support Allowing the Ordinance to Take Effect Inresponse 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 ofthe 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 andD aircraft isbased on the City's assumptions that Category A and B aircraft operations are somehow safer at SMO than are Category C andD aircraft operations. The City claims that growing numbers ofCategory C and D aircraft have begun using SMO since 1984, and that this exacerbates the safety risks at SMO. The City therefore assumes thatbecause category C and D aircraft may have faster approach speeds than Category A and B aircraft, they have ahigher safety risk and thus cannot operate at SMO. However, , this assumption is flawed. The approach speeds ofmanyjets, 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 andD aircraft at SMO are less safe than operations ofCategory A and B aircraft. Airport design standards donotdetermine whether a given aircraft can safely land ortake offat a given airport; this is the function oftheaircraft certification and aircraft operating rules. The aircraft certification and operating rules take intoaccount the aircraft design features and characteristics (for example, aircraft

7

### weight, configuration, engine thrust, stoppingcapability, speeds, andprocedures) andthe operating environment (for example, airport elevation,runway surfacecondition (dry orwet), runway lengthand slope, and atmospheric conditions suchaswindandtemperature)to determine the conditions under which takeoff and landing operations canbe conducted. Aircraftapproach categories only categorize aircraft interms oftheir approach speed atthemaximum certificatedlanding weight. These categories ". are not intended to be, and shouldnotbeused as, a solecriterion fordetermining whether ornot a' takeoff orlanding can be safely conducted, norforevaluating therelative safety risk ofdifferent aircraft for takeoff orlanding. The vast majority of existing turbojet aircraft, including those that operate at SMO, were certified in accordance with 14CFR Part 25,Airworthiness Standards: Transport CategoryAirplanes. These certification standards apply to airplanes ranging from businessjets to large airliners. These standards include requirements that determine theminimum safe distances required forthe aircraft totake off and land under the conditions, airplane weights, andconfigurations within the operating envelope defined forthe aircraft. For takeoff, the current Part 25 certification rules require that an aircraftmust be able to safely continue orreject atakeoff ifan engine fails atthe most critical point inthe takeoff. Forboth takeoff and landing, the probability ofthe failure ofany system needed to show compliance with the certification requirements must be inversely related tothe severity ofthe failure. Failures that could result in a catastrophic outcome must be extremely improbable. The rules under which agiven aircraft isoperated(i.e., 14CFR Parts 91, 121, 125, 135)relate the minimum safetakeoff and landing distances determined underPart 25 to the specific operation and airport for each takeoff. The combination ofthe aircraft certification rules and the operating rules provide the requirements andparameters 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 atthis stage oftheproceeding anybasis supporting its contrary contention that growing numbers ofCategory 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 ofmany B, C or even D aircraft overlap to such an extent thatrestricting C and D aircraft would be unjustly discriminatory to the operators ofthose aircraft. Moreover, not only do accident rates indicate thatjets, including those in Category C and D, have lower accident rates than propeller driven aircraft, largerjet aircraft have even lower accident rates than smallerjet aircraft types. There, again, isno data to support apremise thatjets have ahigher overrun rate than other aircrafttypes, orthat largejets are more prone to an overrun than smaller aircraft, orthat C orDjets have ahigher overrun rate than B aircraft. In fact, the overrun accident history at SMO could not support banning any type ofB, C orDjets. According to NTSB data from 1981 to 2007, a period oftwenty-six years, there were 6 accidents, including two fatalities at SMO. All six accidents involved aircraft thatwere small piston propeller driven A-I or B-1 aircraft, and not those prohibited by the Ordinance. 7

7 See NTSB database atntsb.gov


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

landings to violate the Equal Protection and the Commerce clauses ofthe 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 ofthis airport with thejet 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 ifthe City is permitted to enforce the 2008 ordinance pending the Part 16proceeding.
The City also attempts tojustify 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 inthe FAA Airport Design Circular, FAA AC 150/5300-13, dated 9/29/89, are recommended bythe FAA for use in the design ofcivil airports. For airport projects receiving Federal grant-inaid assistance for aproject, the use ofthese standards is mandatory. At certificated airports, the standards and recommendations may be usedto satisfy 14CFR Part 139, subpart D. AC, paragraph 3. SMO is neither arecipient of Federal funding foranairport development project nor certificated under Part. 139. Where such standards are mandatory, FAA approval maybe sought to modify design standards other than dimensional standards for runway safety areas to meet localconditions, AC paragraph 6.

9In 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 apilot 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 

### ofthe 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 ofInformation Act request the FAA provided apartial 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 safetyrationale orproprietary authority for itsproposed ban on Category C andD aircraft. Itcorrectly acknowledges thattherehavebeenno overruns ofCategory C or D aircraft at SMO. Although the Cityhas submitted adeclarationbyRobert Trimbom that lists overruns that have occurred atotherairports, its failsto notethat severalofthe overruns in its list

-- those ofa Cessna 340, aCessna-Sen, and aFalcon 900

--wereeach ofCategory B aircraft, not Cor D. Furthermore, the City purports tojustify itsban onoperations ofCategory C and D aircraft by', speculating as to the damage that would occur inthe (exceedingly unlikely) event ofan overrun'at SMO by such aircraft. As some Category B aircraft (such as, forexample, the Falcon 900) weigh more than twice as much as some Category C aircraft (such as, forexample, theLearjet), there is no basis forthe City's speculation on this score. Again, the City cannot deny access to Category C andD aircraft sincethe FAA regulations permit Category C andD aircraft that meetrelevant FAA airworthiness standards and aircraft operating requirements to land and takeoff at SMO. See, e.g., Montalvo v.SpiritAirlines, 508 F.3d 464, 468 (9th Cir.2007) ("[T]he FAA preempts the entire field ofaviation safety through implied field preemption. The FAA andregulations promulgated pursuant to itestablish complete andthorough safety standards for air travel, which are not subjectto supplementation by

... state laws.") The FAA Part 16case cited by the City, Pacific Coast FlyersInc. v County ofSan Diego, is distinguishable. The case involved the '" temporary displacement ofaircraft during construction ofan airport improvement project. Inno respect can the case berelied upon as supporting SMO's permanent ban. '--The-City fails to cite any court decision upholding the authority ofan airport proprietcr.to.ban certain aircraft operations because oflocal aviation safety concerns. That isbecause no court has ever interpreted the scope oftheproprietor exception, codified at49 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 inthe regulation ofaviation. American Airlines, Inc. v. DOT, 202 F.3d 788, 806 (5th 

### Cir. 2000). See also BritishAirways Board v.PortAuthority ofNew York andNew Jersey, 564 F.2d 1002, 1010(2d Cir. 1977) ("[A]irport proprietors have an 'extremely limited role' inthe system ofaviation regulation"). The City cites assurance 22(i), which provides that an airport may prohibit or limit any given type, kind, or class ofaeronautical use ofthe airport ifsuch action isnecessary forthe safe operation ofthe airport orto serve the civil aviation needs ofthe public. But 22(i) reflects only the limited proprietary authority discussed above. See, forexample, Ashton v. City ofConcord, Docket No. 16-02-01 (August 22, 2003), , affirmed inFinal 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 indeclining to enter into an aeronautical business agreement.''

.\ Assurance 22(i) is theexception to the rule, which is that the prohibition on denial ofaccess and unjust discrimination under GrantAssurance 22(a). Furthermore, the 10th 

### Circuit Court ofAppeals' decision in

9 See alsoAOPA v, Pompano Beach, Docket No. 16-04-01, (December 15,2005) "Airport owners may impose reasonable rules orregulations to restrict or deny use ofthe airport for purposes deemed to be incompatible with safety under the local conditions peculiar to that airport. However, as noted inthe Order, this authority is not e . unbridled. The airport maypropose an access restriction based on safety and efficiency, but when such a restriction triggers acomplaint, such asthis 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 AirportAuthority vFAA, 242F3d 1213(C.A. 10,2001), rejected the Authority's argument that its scheduledpassenger serviceban isper seanexercise ofitsproprietary power because grant assurance 22(i)permits theAuthoritytomakethatdetermination without articulating aviable purpose fortherestriction.Arapahoe at 1222-1224. The City's reliance on the FAA's final agency decisioninMillardRefrigerated Services v Omaha Airport Authority, FAA DocketNo. 13-93-19 (8/4/95), a25 yearoldFAA administrative decision, is also misplaced. Millard is factually distinguishable becausethe airportauthority there .wascompelled to choose which airport design standards tomeet whentheFAA issuednewly effective standards. The airport authority was proposing airport improvements and seeking federal funding andtherefore compliance was mandatory. Unlike the City ofSantaMonica, theauthority inMillard thoroughly studied and evaluated the actions requiredto meetthe standards for small and large airplane design' category airports before concluding that itwas onlyfeasible to meetthe standards for former. Its decision was primarily based upon existing physical constraints ofthe airport and substantial difference in costs ($156,000 vs $3,550,000). Unlike the ban atissuehere, the change in design category of Millard only affected three based operators, who were offered assistance inrelocating to another airport. Finally, the airport did nottake actionto limit access until required to do soby the FAA. The FAA determined that, inpart dueto frost conditions, the airport's pavement stength was not designed to support regular use by large airplanes. FAA's subsequent warning thatthe authority's federal grant obligations required itto limit use ofitsrunway to aircraftweighing less than 12,500 pounds MGTW prompted the airport to adopt aban. 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 inNYv. US, 505 US 144, 145 (1992) continues to rely on akey holding from SouthDakota v. Dole, 483 U.S. 203, 210 (1987): "Congress may attach conditions onthe receipt ofFederal funds." The Tenth Amendment does notrestrict the range ofconditions Congress can impose on the receipt of Federal funds when the conditions bear some relationship to the purpose ofthe Federal spending. In any event, aspreviously discussed, the area ofnational airtransport and air safety is arecognized Federal

. concern. Santa Monica has also failed to articulate any irreparable harm itwill suffer ifthe Ordinance, which purports to ban operation by aircraft thathave safely operated at SMO for over twenty years, is not allowed totake effect. Infact, public interest concerns dictate that the Ordinance should not take effect. The City's Ordinance, as explained above, is likely unlawful in anumber ofrespects. Allowing, an Ordinance (thatmay subsequently be determined to beunlawful) to subvert present operations of Category C and D airplanes is harmful on its own andbecause ofits effects on the national air system. Santa Monica is animportant general aviation reliever airport for Los Angeles International Airport (LAX). According tothe City's own estimates the ban would affect over 9,000 Category C and D aircraft operations orapproximately 7% oftotal operations at SMO. Disruption ofover 9000 annual operations is a significant number forthe Los Angeles region and nationally as well. For example, the FAA 

### uses 500 annual operations as a standard for funding runways. The exclusion of9,000 operations, may also impact thetravel ofapproximately 20,000-30,000 passengers annually.

12The 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 inthe region is to act as relievers for the commercial airports like LAX. General aviationjet operation numbers drop as delays increase at LAX because general aviationjet operations move to reliever airfields like SMO that do not experience such delays. The role ofcommercial airports likeLAX 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 last20 years, however, multi-engine andjet powered aircraft operations have grown. Van Nuys wil1be petitioning FAA to consider noise restrictions on the growth ofjet 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 itcan displace aircraft to SMO.


### 13

### Pursuant to 49 U.S.C. 

### §46llO(a), FAAfinalorders issuedunderPartAorPartB ofSubtitle VII of49 U.S.C. may be appealed to theUnited StatesCourtofAppeals. Under 14 C.F.R § l6.33(d) ifthe Director's InitialDetermination findstherespondent innoncompliance and proposes.the issuance ofacompliance order, the initialdetermination will include notice and opportunity for ahearing under SubpartF,ifsuch anopportunity isprovidedby the FAA. Section 16.109(a) ofthe regulation provides authorityforthe issuance ofproposed orders ofcompliance including a cease and desist order ininitialdeterminations. Under 14C.F.R.§ 16.11 the Director ofthe Office ofAirport Safety and Standards mayissue orders andtake suchother actions as arenecessary to fulfill the purposes of Part 16. Saidpurposes includethe adjudication ofproceedings instituted by the FAA to determine compliance withtheprohibition onexclusive rights, the grant assurances, and Surplus Property Act obligations. See 14C.F.R. §§ 16.1(a) (1),(5), (8). 

### Section 16.11(a) expressly cites the explicit authority of the agency in49U.S.C. §§40113 and47122 totake action that itconsiders necessary to carry the applicable statutes.!' The City's May 5 response nevertheless questions theFAA's authority to order aparty to desist from apparent unlawful action pending final agencydetermination onthe legality ofthat action. In effect, the City argues that unlawful aircraft bans mustbetolerated until suchtime that an administrative proceeding has been finally concluded. Thatis not, and cannot be, the law. Notwithstanding the City's arguments, the FAA does have the authority to issue interim cease anddesist orders pursuant to the general authority of49 U.S.C. §§ 40113 and47122 coupled with thatprovided under 14C.F.R. 16.11, --l-6;3-l(-d}and

16.109(a~; Theregulatoryscheme outlined-in the City's Response.that.ends.withafinal. cease and desist order in afinal agency decision is the normal Part 16process but itis notthe only : possible process under the statutes andregulation. Itcertainly is not abasis 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 ispurporting to ban classes ofaircraft under anuntested and likely unlawful ordinance while refusing to waituntil the administrative process has run its course. The broad authority ofsections 40113 and 47122 givethe Department and FAA the authority to take action that the agency considers necessary to carry outthe applicable part or subchapter, including issuing orders in extraordinary circumstances, such as thosepresented inthis case. Further, section 16.11 ofthe regulation expressly cites the explicit authority ofthe agency in49 V.S.c. §§ 40113 and 47122 to take action that itconsiders necessary to carrythe applicable statutes. 12 

### The FAA hasprovided the City notice and an opportunity to be heard pursuant to section 16.11. The City received (andresponded to) our earlier letter ofApril 21 and to the initial order imposing the cease and desist order for alimited time period. Atbase, the City argues that existing procedures hamstring the agency sothat itmust 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 ofthe status quo during the existing administrative process anduntil afinaldecision is issued with appeal rights to the United Court ofAppeals pursuant to 49 V.S.C. §46110.

11 In 14C.F.R § 16.ll(a) section 47122 is miscited as 47121 12.See footnote 8.


### 14

### The FAA has therefore concluded thatthere is ampleauthorityfortheAgencyto require the City to cease and desist from any enforcement ofthe Ordinance. No local governmenthas previously ever taken the unprecedented actionthe Citynow contemplates. Inthe context ofthis proceeding, where the City is poised to begin enforcing alocal ordinance with criminalpenalties thatmay very well be unlawful for ahost of reasons, allowingthe Ordinancetotake effect atthisjuncture inthe administrative proceeding cannot be countenanced. There is nobasis hereforthe Cityto alterthe status quo, deprive operators oftheir existing rightto use SMO, and subjectotherairports andthe airnavigation system to the disruption that will ensue whilethe City tests itsvarious arguments in defense ofits Ordinance inthe ongoing administrative proceeding. Under the statutory and regulatory scheme, an initialDirector's Determination with afinding ofnoncompliance andproviding the opportunity for ahearing, may propose issuance ofacompliance order. However because the Ordinance would become effective before the Director's Determination will issue, and given the immediate and.severely disruptive nature ofthe Ordinance theFAA has determined to leave inplace the Cease andDesist Orderpreviously imposed in ourApril 23 Order. Good cause exists for issuance ofaninterim cease and desist order. As we have discussed above, SMO is an important general aviation reliever forLAX in aregional airspace and airport system that is already strained in terms ofavailable airports. Furthermore, Category C and D aircraft operations have been landing and taking-off safely from SMO for overtwenty 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 havenot yetissuedan initialdetennination we continue to believe that the City's ban on operation ofthese aircraft is likely unlawful. Accordingly, itis our view that the Ordinance cannot be allowed to go into effect.

IT IS ORDERED: That the City ofSanta Monica, California continue to cease and desist from enforcing its Ordinance banning Category C and D aircraft operations from Santa Monica Municipal Airport until afinal agency decision is issued inthis matter pursuant to 14C.F.R. §§ 16.33 or 16.241(c). That the City ofSanta Monica shall continue to notify all aeronautical users ofthe Santa Monica Municipal Airport, including operators ofCategory C and D aircraft, that the Ordinance's ban on C and D aircraft is not in effect.

Acting Director Office ofAirport Safety and Standards

15

### CERTIFICATEOFSERVICE

IHEREBY CERTIFY that onMay 12,2008, the FAA servedbyelectronicmail (e-mail) and Icaused to be served byovernightexpress delivery service (FederalExpress), atrue copy ofthe Supplemental InterimCeaseandDesist Orderaddressedto:

Thomas R. Devine Kaplan Kirsch & 

### Rockwell, LLP 1001 Connecticut Avenue, NW, Suite905 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 ofthe Chief Counsel

## CERTIFICATE OF SERVICE

Ihereby certify, in accordance with Fed. Rule ofApp. 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 ofthe 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 ofJustice Civil Division, Federal Programs Branch Joel.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 ofAirport Safety and Standards, BYRON K. HUFFMAN, in his Official Capacity as Acting Director, Office ofAirport Safety and Standards, and the FEDERAL AVIATION ADMINISTRATION,

Respondents. ) ) ) DocketNo. 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 ofthe 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 AttorneySERVICE LIST FOR REPRESENTATION STATEMENT



### Respondents: Kelvin L. Solco, inhis Official Capacity as Acting Director, Office ofAirport Safety and Standards, Byron K. Huffinan, inhis Official Capacity asActing Director, Office ofAirport Safety and Standards, and the Federal Aviation Administration Counsel forRespondents: 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 ofJustice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, DC 2000I Telephone: (202) 514-2988 Facsimile: (202) 616-8202 J

### oel.McEIvain@usdoj.gov Petitioner: CityofSantaMonica Counsel forPetitioner: 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 1685Main Street, Third Floor SantaMonica, 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 ofApp. 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 ofMay 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 ofJustice Civil Division, Federal Programs Branch JoeI.McElvain@usdoj.gov

DEBORAH FREEMAN