U.S.Department of Transportation Federal Aviation Administration Office ofAirport Safety and Standards 800 Independence Ave., S.W. Washington, D.C. 20591

Marsha Jones Moutrie City Attorney City of Santa Monica 1685 Main Street Santa Monica, CA 90401 

## MAY27 1008 Martin T. Tachiki Deputy City Attorney 1685 Main Street Santa Monica, CA 90401 Thomas R. Devine, Esq. Kaplan Kirsch & Rockwell, LLP 1001 Connecticut Avenue, NW #905 Washington, DC 20036

Dear Ms. Moutrie, and Messrs. Tachiki and Devine: FAA Docket No. 16-02-08 Enclosed is acopy ofthe Director's determination inthe above-captioned formal complaint under 14Code ofFederal Regulations (CFR) Part 16and adisc containing the documents that comprise the Administrative Record forthis proceeding. As discussed inthe Director's determination, we conclude that the City of Santa Monica is currently inviolation ofits federal obligations. The Federal Aviation Administration (FAA) directs the City ofSanta Monica and Santa Monica Airport to present aplan to the Office of Safety and Standards, Compliance Division, ofthe FAA within 20 days from the date ofthe Director's determination on how itintends to address the FAA's concerns by eliminating the violations outlined above. Pending FAA approval ofthe corrective action plan, oruntil further notice, the City and the Airport are ineligible to apply for new FAA grants pursuantto 49 U.S.C. §47106(d). This Director's determination is an initial agency determination and does not constitute final agency action and order subject tojudicial review under 49 U.S.C. §46110. Pursuant to 14CFR Part 16,the City of Santa Monica may request ahearing under subpart F ofPart 16within 20 days after service ofthe Director's Determination. (14 CFR §§ 16.31(d) and 16.109(1)). The City of Santa Monica may waive ahearing and may appeal the initial determination to the FAA2

Associate Administrator for Airports pursuant to 14CPR 16.33(b) within thirty (30) days after service ofthe Director's determination. Ifno appeal is filed by either party within thirty (30) days after service, the Director's determination becomes final. 

# f1~dW

~~~g Director ofAirport Safety and Standards EnclosuresUNITED STATES DEPARTMENT OFTRANSPORTATION 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

DIRECTOR'S DETERMINATION I. INTRODUCTION This matter isbefore the Federal Aviation Administration (FAA) based on aNotice ofInvestigation (NOl) dated October 8, 2002, initiated bythe Director ofthe Office ofAirport Safety and Standards, and supplemented by his March 26, 2008 Order to Show Cause.'. The NOl and Order to Show Cause were issued in accordance with the FAA Rules ofPractice forFederally Assisted Airport Enforcement Proceedings, 14 Code ofFederal Regulations (CFR) Part 16. The FAA's investigation seeks to determine the legality ofthe City of Santa Monica, California's ("the City") Ordinance adopted onMarch 25,2008 banning Category C and D aircraft operations from the Santa Monica Municipal Airport (SMO). The Ordinance (FAA Exhibit 1, Item 8) bans all C and D category aircraft from SMO, affecting approximately 9,000 annualjet aircraft

. 2 operations, For the reasons fully explained below this initial determination concludes that the City's Ordinance is unlawful. Federal aviation law preempts local ordinances such asthe City'S designed to control flight operations and impede safe and efficient airspace management. The FAA's role inregulating aviation and aviation safety is extensive and essentially plenary interms ofthe agency's statutory, regulatory and policy responsibilities. The City's Ordinance is anunlawful attempt to manage the movement ofaircraft and control, use ofthe navigable airspace. The City has attempted tojustify its action by asserting that the safety ofits community is its highest priority. Safety is also the highest priority ofthe FAA. The FAA Office ofAirport Safety and Standards gave serious consideration to the City'S concerns, and the agency continues to believe that safety improvements can be made to the runway ends at SMO without interfering with reasonable access to the airport by aircraft operators. We find that key facts undercut the City's argument that Category C and D aircraft should be. banned from SMO on safety grounds.

IThe City response to the NOI inNovember 2002, and did not adopt its proposed Aircraft Conformance Program but entered into discussions with the FAA. These discussions continued until recently, when the City adopted the Ordinance that isthe subject ofthis determination. The FAA expedited the investigation because the Ordinance was scheduled to take effect thirty days after itwas adopted by the City Council. 2 The ban affects alljet aircraft and few, ifany, propeller-driven aircraft at SMO. The term "category C and D aircraft" refers to types ofaircraft having approach speeds of 121 knots or more but less than 166 knots at maximum certificated landing weight. This is discussed in detail in footnote 7, below.

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-First, operations at SMO meet every FAA safety requirement for aircraft operation; operators ofC and D Category aircraft not only must comply with the same requirements as operators ofCategory A and B aircraft, inmany cases the requirements for operation ofthese aircraft are more stringent. There isno evidence that C and D aircraft are any less safe than A and B aircraft. There is simply no aspect ofthe normal operation of aircraft at SMO that can be identified as aproblem requiring aban on use ofthe airport by these aircraft. In fact, the performance range ofmany B, C and even D aircraft overlap to such an extent that restricting C and D aircraft would be unjustly discriminatory to the operators ofthose aircraft. Second, the City is basing its action onthe possible consequences ofadeparture from normal operation, specifically an aircraft overrun that does not stop on airport property. However, that kind ofevent isno more likely to involve the banned aircraft than the types ofaircraft not subject to the ban. The FAA recognizes the difficulty ofbalancing the need for safety enhancements with operational efficiency, but striking that balance isnecessary to maintain anational airport system. As explained inthis initial determination, the 2008 Ordinance far exceeds the City'S limited powers as an airport proprietor. Its action isnot reasonable, necessary, or lawful. The FAA has statutory jurisdiction to determine the City'S compliance with its grant assurance obligations and Surplus Property Act obligations and has conducted this investigation in accordance with 14CFR Part 16on an expedited basis as aresult ofthe City's decision to implement the Ordinance amonth after itwas adopted. Under the particular circumstances existing atthe Airport and the evidence ofrecord, as discussed below, the Director concludes that the City of Santa Monica is inviolation ofits Federal obligations. The FAA's determination inthis matter isbased onthe applicable Federal law and FAA policy, and review of the pleadings and supporting documentation submitted bythe City and by the FAA aspart ofits investigation, which comprise the administrative record reflected inthe attached FAA Exhibit 1. II. BACKGROUND A. The Airport (SMO) SMO is apublic-use airport owned and operated bythe City of Santa Monica, California. (FAA Exhibit 1, Item 26.) The Airport isused by general aviation aircraft andprovides access to Santa Monica and other surrounding communities inthe Los Angeles metropolitan area. The Airport isthe base ofoperations for over 400 aircraft. (FAA Exhibit 1,Item 40.) The 227-acre airport is located in ahighly congested airtraffic area, and is an important reliever airport for the Los Angeles International Airport (LAX), locatedjust 7miles to the north. As areliever forLAX, SMO serves avital and critical role as ageneral aviation reliever airport by diverting aircraft away from the air carrier airports and other more heavily used airports located inthe Los Angeles area. SMO serves the role of abusiness airport capable ofaccommodating awide range ofbusiness and personal aircraft, including corporate and business jets. As such, SMO is able to accommodate over 90% ofaircraft types inthe general aviation fleet, and itis capable ofserving the vast majority ofgeneral aviation aircraft with amaximum take offweight greater than 12,500 lb. (See Advisory Circular AC 150/5325-4B Runway Length Requirements for Airport Design, 7/1/2005, Chapter 3.) The airport's reliever role with respect to high performance jet aircraft is especially important to LAX because those arethe aircraft types that could and would otherwise use LAX if SMO was not accessible to them.

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-The Airport's runway 03-21 is approximately 5,000 feet long' and 150feet wide, with areported weight bearing capacity of40,000 lbs single-wheel loading, 60,000 lb. dual wheel and 105,000 dual tandem wheel loading." There are parallel taxiways onboth sides, each 40 feet wide. The runway-taxiway centerline separation is 240 feet on the northwest side and on most ofthe southwest side. However, there is ataxiway onthe south side, 1,100 feet in length, whose centerline is only 200 feet away from the runway centerline. This precludes operation ofcertain aircraft based on wingspan considerations. (FAA Exhibit 1,Item 2, p. 8.) The Airport has aVOR-A/GPS5approach with minimum of 1 '!4 mile visibility and 1,000-foot minimum descent altitude. Instrument approaches using these navigation aids are published for aircraft categories A, B, C, and D. (FAA Exhibit 1,Item 27.) Although SMO is apopular destination airport in aregion that has limited airport capacity, today the City reports only 135,000 annual operations, alow number ofoperations compared with years past. Since 1999, the Airport operations have not exceeded 200,000, and in2007, the Airport had 165,000 operations (FAA Exhibit 1,Item 26.) As shown below, there has been a steady decrease in overall operations from ahigh of over 366,000 in 1966 to today's level ofoperations. Annualjet operations have risen to 18,000 from 1,176· operations in 1983. (FAA Exhibit 1,Item 31.) From 1999to 2002, operations byjet aircraft rose from 9,608 to 16,157. Today there are approximately 18,000jet operations annually at SMO serving over 450 Instrument Flight Rules (IFR) destinations including many inthe continental United States, Hawaii, Alaska, Canada and Mexico.6 (FAA Exhibit 1,Item 32.) About 9,000 ofthesejet operations are by C and D category aircraft, which are banned by the 2008 Ordinance. B. Prior Attempts to Restrict Access at SMO and the 1984Agreement InSanta Monica Airport Association v. City ofSanta Monica, 481 F. Supp. 927 (CD Cal, 1979), aff'd 659 F.2d 100 (9th Cir. 1981), the Ninth Circuit Court ofAppeals upheld the City's aircraft-noise abatement ordinance and anight curfew on takeoffs and landings imposed bythe City, but struck down the ban onjet aircraft as violating the Commerce and Equal Protection clauses ofthe Constitution. The Ninth Circuit Court held as to equal protection that the proposed Ordinance was not rationally related to any legitimate state interest, whether that interest was safety orthe prevention ofnoise. The Court found the impact on commerce from thejet ban to be adirect burden since itprohibited interstate travel injets. The Court noted that the burden was not insubstantial. Santa Monica Airport Association at 945. The Court rejected the safetyjustification forthe ordinance, finding "as to safety, the evidence isutterly convincing that modem, small, business orexecutive typejets ofthe type that would be able to fly out ofthis airport with tpe jet ban lifted, are atleast as safe, ifnot much safer, than the types ofpiston-engine fixed wing aircraft which are now allowed to use the airport." Santa Monica Airport Association at944. InJune 1981,before the Ninth circuit affirmed that thejet ban was unlawful, the Santa Monica City Council enacted Resolution No. 6296, which would have closed SMO. That action resulted inyet another lawsuit against the City by airport associations, joined this time bythe FAA. The litigation concluded with a

3The actual length ofSMO's runway is 4,987 feet. (FAA Exhibit 1,Item 27.) 4 In 1966, the Airport had weight bearing capacities of 80,000 lbs single-wheel loading, 120,000 lb. dual wheel and 220,000 dual tandem wheel loading. The very strong pavement isthe result ofthe runway reconstruction conducted by the Federal Government after World War II in order to accommodate large four-engine transport category transport aircraft weighing over 150,000Ibs. (FAA Exhibit 1,Item 5B.) 5 A VOR is aVHF Omnidirectional Range/Distance Measuring Equipment (VORIDME) facility. It is aground based navigational facility. A VOR-GPS approach is anon-precision instrument approach based on aVOR signal that also incorporates GPS ofglobal positioning system signals for guidance. 6GCR & Associates, Inc. provides several aviation data sources, including FAA Form 5010 and airport-specific operations data.

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-settlement agreement memorialized on January 31, 1984 (the 1984Agreement). (FAA Exhibit 1,Item 4, Exhibit 3.) The 1984 Agreement between the City and the FAA confirms the terms and conditions under- .' which the City would continue to operate and maintain the Airport as aviable functioning facility without derogation ofits role as ageneral aviation reliever airport until atleast July 1,2015. The 1984 Agreement specifically provides:

• the "Airport istobe open and available to and forpublic use as an airport on fair and reasonable terms, without unjust discrimination, and without granting any exclusive rights prohibited by law." (Exhibit 1,Item 4, Exhibit 3,pg 2-3.)

• "pursuant to the Federal Aviation Act of 1958, as amended, exclusive authority is vested inthe FAA forthe regulation ofall aspects ofair safety, the management and control ofthe safe and efficient use ofthe navigable airspace, and movement ofaircraft through that airspace." (Id. at 3). The 1984 Agreement also states that the "Airport will be capable ofaccommodating most kinds ofgeneral aviation aircraft, generally consistent with Group IIDesign Standards

.... ,,7 (Id., page 9.) Section 9requires the City to maintain "continuously" the one designated runway (3/21) "which is 5,000 feet long and 150 feet wide." (Id., page 9.) The Airport Layout Plan (ALP) depicting the Airport's existing runway and taxiway configuration was incorporated by reference into the 1984Agreement "and shall guide the development ofthe Airport forthe duration ofthis Agreement." (Id. at 6.) Finally, the 1984 Agreement highlights SMO's important role inthe regional and national system ofairtransportation and air commerce. SMa serves a "vital and critical role in its functions as ageneral aviation reliever forthe primary airports inthe area ... by diverting aircraft away from the air carrier airports and other heavily used airports located inthe Greater Los Angeles Area." (Id. at 3-4.) C. Chronology ofPart 16Proceeding On July 22, 2002, the Santa Monica Airport Commission voted to recommend that the Santa Monica City Council implement, by ordinance, an Aircraft Conformance Program (ACP) at SMa. The ACP would restrict aircraft operations at SMO to aircraft that meet the standards for an airport with an Airport Reference Code (ARC)8 designation ofB-II. Essentially, the ACP would prohibit Category C and D aircraft from operating at the Airport.

7 The Airport Reference Code (ARC) designations, including the B-II designation at issue, are acoding system used to relate airport design criteria to the operational and physical characteristics ofthe categories ofaircraft for which the airport was designed. We note, however, that this provision inthe 1984 Agreement would not permit the City of Santa Monica to prohibit the use ofthe airport by other aircraft that can safely operate at SMO. As discussed more fully below, Design Standards are not intended to be used to limit operations of an airport, and may not be used forthat purpose. 8The ARC is aFAA coding system used to relate airport design criteria to the operational and physical characteristics ofthe aircraft types for which the airport was designed. FAA Advisory Circular No. 150/5300-13, "Airport Design" (September 29, 1989), chapter 1,pA. The ARC code has two components, both relating to the "critical design aircraft" forthe airport. The critical design aircraft is defined as the category of aircraft which conducts 500 itinerant or more operations per year atthe airport. (FAA Exhibit 1,Item 40, p. 38.) The first component, depicted by the letters A-E, isthe aircraft approach category and relates to aircraft approach speed. A Category A aircraft has an approach speed ofless than 91 knots, aCategory B aircraft has an approach speed of 91 knots but less than 121 knots, while aCategory C aircraft has an approach speed of 121 knots ormore, but less than 141 knots. A Category D aircraft has an approach speed ofmore than 141 knots but less than 166 knots. The second component, depicted by Roman numerals I-VI, isthe airplane design group and relates to airplane wingspan. For example, aGroup Iaircraft have awingspan ofup to but not including 49 feet, while aGroup II aircraft has awingspan of49 feet up to but not including 79 feet. (Id., p. 1.) The ARC can be based on a composite aircraft ifthe fastest approach category aircraft is different from the largest design group aircraft.

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-On October 1,2002, FAA representatives from the Air Traffic, Flight Standards, andAirports Divisions and the Regional Counsel for Western Pacific Region met with Santa Monica to discuss the proposed ACP. FAA cautioned the Santa Monica representatives that the proposal was not consistent with the City's Federal obligations and Federal law. FAA commented that safety determinations involving flight ofaircraft are the responsibility ofthe FAA and the agency did not consider itinherently unsafe for an aircraft ofafaster approach category orlarger design group to use an airport designed to accommodate alesser category or design group aircraft. (FAA Exhibit 1,Item 37.) Additionally, Air Traffic and Flight Standards representatives reiterated that design standard limitations do not translate into operational limitations, and that FAA develops separate instrument approaches to permit safe aircraft operations. Finally, the FAA told Santa Monica that the agency expects the City to comply with the requirement under Section 9 ofthe 1984 Agreement to maintain the existing runway length and width'. The FAA also advised the City that any action taken that conflicted with its Federal obligations would be of concern to the FAA. (FAA Exhibit 1,Item 37.) On October 8, 2002, the FAA issued the Notice ofInvestigation (NOI) under Part 16initiating the investigation concerning the legality ofthe Santa Monica Airport Commission recommendation that the City Council adopt an ACP that would restrict aircraft operations at SMO up to Category B-II aircraft, and thus exclude Category C and D aircraft. (FAA Exhibit 1,Item 1.) The City responded to the NOI onNovember 8, 2002. (FAA Exhibit 1,Item 2, p.l.) The City opposed the NOI but expressed some willingness to work with the FAA to achieve avoluntary and safe resolution. (FAA Exhibit 1,Item 4, p. 4-5.) On December 10,2002, the City Council received the Airport Commission's recommendation to approve the ACP and areport on the pending administrative proceeding. Following apublic hearing, the City Council approved the ACP concept ofimplementing 300 foot runway safety areas (RSAs) ateither end ofthe runway, a300 foot relocated threshold from the departure end ofthe runway, and aban on C and D aircraft. The City Council did not adopt the ACP as an ordinance but directed City staffto continue to meet with the FAA in an attempt to promptly resolve the matter. This was conveyed to the FAA inwriting on December 23, 2002. (FAA Exhibit 1Item 7LL.) Between 2002 and 2008, there were several meetings and discussions between SMO officials and the FAA that addressed new proposals and counterproposals as alternatives to the ACP. The City's proposals included displaced thresholds9 ofseveral hundred feet, declared distances 10and large engineered material arresting system (EMAS) installations/1 all ofwhich would have a significant impact onthe utility ofthe Airport. FAA's proposals included EMAS, but sized appropriately to minimize the operational impact on airport operations and maintain the Airport's utility. (FAA Exhibit 1,Item 7B.) In December 2006, the FAA hosted apresentation bythe City to users ofthe Airport concerning the City's latest proposal forthe Airport, which included a250-foot EMAS unit atthe end ofRunway 3/21 and a600- foot declared distance applied offthe length ofRunway 3/21, for atotal loss ofapproximately 800 feet of

9A displaced threshold is athreshold located at apoint on the runway other than the designated beginning ofthe runway. Displacement ofathreshold reduces the length ofrunway available for landings. The portion ofrunway behind adisplaced threshold is available fortakeoffs in either direction and landings from the opposite direction. (FAA 150/5200-13, Airport Design.) \0 Declared distances are the distances the airport owner (with FAA concurrence) declares available for the airplane's takeoff run, takeoff distance, accelerate-stop distance, and landing distance requirements. (FAA 150/5200-13, Airport Design.) \1 The current available EMAS is abed ofhighly crushable concrete blocks that are installed atthe ends ofthe runway. When an aircraft leaves the runway traveling at speed, the landing gear will crush the EMAS bed and the aircraft will come to aquick and safe stop. AC 150/5220-22A, EMASfor Aircraft Overruns.

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-runway.l'' Between December 2006 and March 2007, the FAA and City gathered user comments. The City also provided the FAA with public comments. (FAA Exhibit 1,Items 19A and 19B.) On July 31, 2007, the FAA proposed the installation ofone EMAS ateach end ofthe runway. (FAA Exhibit 1,Item 7I-1.) On August 28,2007, the FAA participated in apublic hearing on SMO in Santa Monica. At the meeting, the FAA reiterated that itsproposal provided an actual, physical stopping effect on overrunning aircraft that would directly benefit both persons onthe aircraft and the areas offthe ends ofthe runway. The FAA explained that the proposal, composed oftwo 130foot EMAS beds with 25 foot lead-in ramps on each end ofthe runway, would significantly enhance safety at SMO while maintaining the utility ofthe Airport. (FAA Exhibit 1,Item 7E.) The City rejected the FAA's proposal as inadequate. (FAA Exhibit 1,Item 4, p. 6- 7.) OnNovember 27,2007, the new Ordinance was read (first reading) atthe City Council meeting. The Ordinance would have the same effect asthe Aircraft Conformance Program (ACP) proposed by the City in 2002, with respect to banning Category C and D aircraft from using the Airport. (FAA Exhibit 1,Item 4, Trimbom Declaration, p. 46-47.) The 2002 ACP had two major components: (1) the creation ofrunway safety areas atboth ends ofthe runway; and (2) an Ordinance conforming Airport usage to the Airport Reference Code ofB-II, banning C & D category aircraft. The 2008 Ordinance only proposed to ban C'and D aircraft but argued that FAA's proposals were inadequate because the City asserted they fail toprovide runway safety areas that meet FAA published design standards. (FAA Exhibit 1,Item 2, Trimbom Declaration, p. 24, Item 4, Trimbom Declaration, p. 46 and Item 8.) On March 7, 2008, the FAA presented an integrated safety enhancement proposal which included modifications to its earlier EMAS proposal, apilot runway safety awareness and education program and a Runway Protection Zone (RPZ) proposal. (FAA Exhibit 1,Item 7B.) The modified EMAS installation would be a70-knot capable unit to be installed onthe departure end ofrunway 21, onthe west side ofthe Airport. This was based upon arisk assessment conducted using guidance prepared by the Airport Cooperative Research Program (ACRP) designed to improve aircraft arresting system. (FAA Exhibit 1,Item 23.) Complementing the EMAS element, isthe FAA's pilot awareness and education program, which was designed to prevent accidents, while the RPZ proposal isthe most effective way to enhance safety by removing residences within the runway protection zones ofthe Airport. (FAA Exhibit 1,Item 7B.) On March 25, 2008, the FAA Associate Administrator for Airports gave testimony urging the City council to consider the agency's proposal. The proposal, hepointed out, would enhance safety at SMO while maintaining the utility ofthe Airport. The City again rejected the FAA's proposal stating that itagain did not meet "FAA's own standards." (FAA Exhibit 1,Item 4, p. 6-7.) The City adopted the new Ordinance banning Category C and D aircraft from SMO effective within 30 days, that is on April 24, 2008. (Id.) The Ordinance adds section 10.04.06.220 to the Municipal Code prohibiting Category C orD aircraft' from landing or departing SMO except in abona fide emergency. Violations ofthe Ordinance are punished as misdemeanors by a$1,000 fine or six months imprisonment, orboth. The stated purpose ofthe 2008 Ordinance isto protect the safety ofpersons living adjacent to the Airport and flying in aircraft using the Airport. (FAA Exhibit 1,Item 8.) The Ordinance claims to comport with agreements between the City and the FAA "recognizing the City's obligation to serve category A and B aircraft atthe Airport." Itfurther claims to be consistent with the 1984 Settlement Agreement and 1991 ALP assigning an ARC designation of B-II to the Airport and, obligating the City to operate itaccordingly. The Ordinance also claims that itis

12 Such areduction inrunway would effectively prohibit operations by C and 0 Category aircraft.



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-enforcing Federal Runway Safety Area (RSA) Standards under FAA Advisory Circular 150-/5300-13 (Airport Design). According to the City's executive summary to the Ordinance, the ban on Category C and D aircraft would affect 7% of 130,000 annual operations or 9,000 operations. (FAA Exhibit 1,Item 8.) These banned aircraft types constitute approximately 64% ofthejet types that currently operate at SMO. The displaced operations could, according to the City, either downsize to Category A and B aircraft oruse the five other airports inthe region: Long Beach, Van Nuys, Burbank, Torrance, and LAX. (FAA Exhibit 1,Item 8.) All ofthe Category C and D aircraft that would be banned by the Ordinance at SMO are modern Stage 3 aircraft as defined under the Airport Noise and Capacity Act of 1990, (ANCA), 49 U.S.C. §47524(c). According to the City, the Ordinance is exempt from the California Environmental Quality Act (CEQA) under CEQA §15301 because the proposed Ordinance modifies the operation ofthe Airport, an existing facility, in a manner that does not expand its use, and under the common sense exemption §15061(b)(3) because itwill have no effect onthe environment. The City concluded that itwas too speculative to determine exactly where aircraft displaced from SMO would go. 13 (FAA Exhibit 1,Item 8.) On March 26, 2008, the FAA issued an order requiring the City to show cause why the FAA should not supplement the existing Part 16investigation with the facts pertaining to the Ordinance and expedite said investigation and issuance ofthe initial determination, pursuant to 14CFR § 16.11. (FAA Exhibit 1,Item 3.) On April 1,2008, the FAA issued an order denying without prejudice the City's request for an extension of time to file its response to the Order to Show Cause and with an opportunity to renew its request ifthe renewal was based upon an agreement to suspend enforcement ofthe Ordinance while the FAA investigation remained pending. (FAA Exhibit 1,Item 10.) The Order explained that the requested 20 day extension would extend the response date to one day after the Ordinance banning the 9,000 annualjet aircraft operations went into effect. (Id.) The City refuses to suspend enforcement ofthe Ordinance pending the completion ofthe FAA's investigation. On April 7, 2008, the City filed its response (2008 Reply) to the FAA's Order to Show Cause. (FAA Exhibit 1,Item 4.) By letter dated April 21, 2008, and delivered 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 assure the FAA and those users in writing that the City would refrain from enforcing the ban on Category C and D aircraft operations pending the outcome ofthe Part 16administrative proceeding. (FAA Exhibit 1,Item 79.) The FAA advised the City that ifitdid not withdraw its letter and refrain from enforcing the Ordinance, FAA would issue acease and desist order and take legal action ifthe City refused to comply with that order. On April 22, 2008, the City responded, and refused to withdraw the April 14,2008 letter to the aeronautical users, and again stated the City's intention to enforce the Ordinance effective April 24, 2008. (FAA Exhibit 1,Item 81.)

'; On April 23, 2008, the FAA issued an interim cease and desist order requiring the City to cease and desist\ immediately from enforcing the Ordinance until afinal agency decision is issued by the FAA under 

### 14CFR Part 16. The Order afforded the City ten days to respond. Also onApril 24, 2008, the FAA served a

13FAA notes that the Los Angeles Area may suffer an environmental impact as aresult of SMO's actions.

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-complaint and application fortemporary restraining order (TRO) onthe City seeking to enforce its cease and desist order. (FAA Exhibit 1,Item 91.) On April 23, 2008, the City Attorney advised the Department of Justice that the City would accede to the Department ofJustice's request and would not enforce the Ordinance until aTRO hearing was held. On April 28, 2008, the United States District Court forthe Central District ofCalifornia, granted the FA~'s request for aTRO enforcing the cease and desist order. On May 5, 2008, the City responded to the cease and desist order within the 10day 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 order by May 9, 2008. The City averred itwould file apetition forreview in an appropriate court ofappeals challenging the cease and desist order ifitwas not withdrawn by May 9, 2008. (FAA Exhibit 1,Item 92.) After considering the City's May 5, 2008 response to the FAA's interim cease and desist order, the FAA issued its Supplemental Interim Cease and Desist Order onMay 12,2008. (FAA Exhibit 1,Item 100.) The FAA also filed its Reply Memorandum onMay 12,2008 in support ofits application for aPreliminary Injunction in order to ensure that the City complies with the agency's cease and desist orders. (FAA Exhibit 1, Item 96.) The City filed its response to the Preliminary Injunction application on May 6, 2008. (FAA Exhibit 1,Item 97.) On May 15,2008, the United States District Court forthe Central District ofCalifornia, granted the FAA's request for apreliminary injunction (PI) enforcing the cease and desist order pending completion ofthe Part 16proceeding. (FAA Exhibit 1,Item 98.) As aresult, the City's Ordinance has yetto be enforced. On May 22, 2008, the City filed aNotice ofAppeal from the court's order granting the motion for Preliminary Injunction. (FAA Exhibit 1,Item 119.) On or about May 22, 2008, the City filed aPetition for Review challenging the FAA's cease and desist orders. (FAA Exhibit 1,Item 120.) D. Safety and Overrun Accident History at SMO The safety and overrun accident history at SMO does not substantiate the need for any ban ofcategory C & d aircraft at SMO. According toNational Transportation Safety Board (NTSB) data from 1981 to 2008, there were 8accidents, two ofwhich resulted infatalities. 14 These accidents included 7 overruns and 1

14TheNTSB database provides records going back to 1964, which are incorporated inthe record as FAA Exhibit 1,Item 82. These early accidents are not included inthe statistics reported here because detailed information is absent.

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-undershoot.f 7orwhich involved single-engine aircraft and 1ofwhich involved amulti-engine aircraft. Seven ofthese accidents, including the undershoot, were onrunway 21. The location ofone accident could not be determined from the NTSB data. All accidents involved aircraft that were small piston propeller driven A-lor B-1 aircraft, none ofwhich would beprohibited under the Ordinance. Specifically, Piper PA-28s single-engine piston aircraft had accidents inMay 1981 and December 2004, a Mooney M-20 had an accident inJuly 1995, aCessna 177RG inDecember 1993, two Cessna 182s inJanuary 1982 and September 1992, and atwin-engine Cessna 340A inNovember 2001 (2 fatalities ).16 The most recent overrun, early in 2008, was by an experimental Jabiru J400 single-engine aircraft. The record includes adetailed review ofall SMO accident data since 1964 and details about the Jabiru J400 accident. (FAA Exhibit 1,Items 18and 82.) Areview ofthe Aviation Safety Reporting System (ASRS)17data base, beginning in 1988 and ending in 2006, yielded atotal of223 reports concerning SMO. A detailed review ofall ofthese ASRS reports indicates that none identified the runway length orrunway safety areas at SMO as an issue. (FAA Exhibit 1,Item 17.) (The incidents all involved small (6,000 lb. and under) propeller driven aircraft, not banned by the Ordinance. ) E. Jet Safety Propeller Driven Aircraft Have Higher Accident Rates Than Jets The City's ban would affect all C and D Category jet aircraft and few ifany propeller driven aircraft operating at SMO. NTSB data shown inthe table below, establishes that, in fact,jets have abetter safety record than all propeller driven types. Jets, as an aircraft type, have an accident rate 8times lower than single-engine propeller aircraft, 5.75 times lower than twin-engine piston and 4.6 times lower than twin-engine turboprops. 18

15 Arunway overrun occurs when an aircraft rolls out, resulting from a landing or arejected take off, extends beyond the end ofthe runway. An undershoot is an event where an aircraft touches down prior to the runway threshold. See AC No: 150/5220-22A AC No: 150/5220-22A. Also, see FAA Advisory Circular AC No. 91-79 Runway Overrun Prevention. 16http://www.ntsb.gov. 17The ASRS, ajoint effort by the FAA and NASA, collects aviation safety incident/situation reports from pilots, controllers, and others and identifies deficiencies and discrepancies inthe National Aviation System (NAS) so that the appropriate authorities can remedy them. http://asrs.arc.nasa.gov 18 http://www.ntsb.gov/publictn

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-Accident Rate per Aircraft Type, 2003 (per 100,000 Flight Hours)

All Aircraft

• Whether the implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the City of Santa Monica is consistent with the Federal obligation to make its airport available as an airport forpublic use on reasonable terms and without unjust discrimination to alltypes, kinds, and classes ofaeronautical activities

- Grant Assurance 22.

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- • Whether the implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the City of Santa Monica is consistent with the Federal obligation prohibiting the granting ofan exclusive right atthe airport to conduct any aeronautical activities -Grant Assurance 23.

• Whether the implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the City of Santa Monica is consistent with the Surplus Property Act of 1944.

• Whether the implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the City of Santa Monica is consistent with the terms ofthe 1984 Agreement.

• Whether the implementation ofthe City's Ordinance prohibiting Category C and D aircraft is preempted under Federallaw.19

19Any arguments not specifically addressed herein, have been considered, and found to be without merit.

Single-engine Piston Airplane Multi-engine Piston Airplane Total

• Fatal Turboprop Airplane
Jet Airplane Amateur-built Rotorcraft Gliders Lighter-than-air

Source: NTSB, http://www.ntsb.gov/publictn/2007/ARG0701.pdf
III. ISSUES UNDER INVESTIGATION The issues under investigation inthis case are:IV. APPLICABLE LAW AND POLICY A. FAA Legal Authority Over Air Safetv The FAA's role inregulating aviation and aviation safety is extensive and essentially plenary interms ofthe agency's statutory, regulatory and policy res~onsibi1ities. FAA's safety responsibility includes regulation of the safety ofaircraft take offs and landings.' Indeed, as noted in section II B above, the City has acknowledged the preeminent role ofthe FAA to determine safety matters inthe context ofSMO inthe 1984 Settlement Agreement. Pursuant to 49 U.S.C. §40103, the United States has sovereignty over navigable airspace, which includes that needed fortakeoff and landing aircraft. The principal aviation responsibilities assigned to the FAA under the Federal Aviation Act of 1958, as amended, 49 U.S.C. §40101 et seq., concern promoting the safety ofair commerce. The basic national policies intended to guide FAA actions under the Federal Aviation Act are set forth at49 U.S.C. §40101(d), which provides public interest standards. These include: (1) Assigning, maintaining, and enhancing safety as the highest priorities in air commerce; (2) Regulating air commerce in away that best promotes safety and fulfills national defense requirements; (3) Encouraging and developing civil aeronautics, including new aviation technology; (4) Controlling the use ofthe navigable airspace and regulating civil and military operations inthat airspace inthe interest ofthe safety and efficiency ofboth ofthose operations; (5) Consolidating research and development for airnavigation facilities and the installation and operation ofthose facilities; and (6) Developing and operating acommon system ofairtraffic control and navigation for military and civil aircraft. To achieve these statutory purposes, 49 U.S.C. §§ 40103(b), 44502, and 44721 provide extensive and plenary authority to the FAA concerning use and management ofthe navigable airspace, airtraffic control, and air navigation facilities. The FAA has exercised this authority bypromulgating wide-ranging and comprehensive Federal regulations on the use ofnavigable airspace and airtraffic control. See 14CFR Parts 71, 73, 75, 91, 93,95, and 97. Similarly, the FAA has exercised its aviation safety authority, including the certification of airmen, aircraft, air carriers, air agencies, and airports under Title VI ofthe Federal Aviation Act, section 601, et seq., 49 U.S.C. §§ 44701, et seq. by extensive Federal regulatory action. See 14CFR Parts 21-43, 61-67,' 91, 121 through 149. Title 49 ofthe United States Code assigns the FAA Administrator broad responsibilities forthe regulation of air commerce inthe interests ofsafety and, among other things, the promotion, encouragement, and development ofcivil aeronautics. 49 U.S.C. §§ 40101(c), (d), 40104.21 Under these broad powers, the FAA seeks to achieve safety and efficiency ofthe total airspace system through direct regulation ofairman, aircraft, and airspace. 49 U.S.C. §§ 40103, 44702-44705.

20 See Section A ofthe Applicable Law Section inthis determination.
21 In addition, the FAA shall make long-range plans and policy forthe orderly development and use ofthe navigable airspace and air navigation facilities that will best meet the needs and serve the interests ofcivil aeronautics and national defense. (49 U.S.c. §44501 (a).) Moreover, the FAA Administrator prescribes airtraffic regulations on the flight of aircraft for navigating, protecting, and identifying aircraft; protecting individuals and property on the ground; using the navigable airspace efficiently; and preventing collision between aircraft, between aircraft and land orwater vehicles, and between aircraft and airborne objects. (49 U.S.c. §40103(b)(2).)

- 11
-The FAA achieves atarget level ofsafety by employing alayered, integrated approach that includes standards forthe certification and oversight ofairmen (pilots and mechanics), aircraft, training providers, and maintenance centers. (See 14CFR Part 61, Part 25, Part 141/142, and Part 145.) The vast majority ofexisting turbojet airplanes, including those that operate at SMa, were certified in accordance with 14CFR Part 25,Airworthiness Standards: Transport Category Airplanes. The certification standard applies to airplanes ranging from business jets to large airliners and includes requirements to determine the minimum safe distances required for an airplane to take offand land under allpossible conditions, airplane weights, and configurations within the operating envelope defined forthe airplane. For takeoff, the current Part 25 certification rules require that an airplane be able to safely continue orreject a takeoff ifan engine fails atthe most critical point inthe takeoff. For both 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 acatastrophic outcome must be extremely improbable. (FAA Exhibit 1,Item 85.) The rules under which the airplane is operated (i.e., Parts 91, 121, 125, 135)relate the minimum safe takeoff and landing distances determined under Part 25 to the specific operation and airport for each takeoff. The combination ofthe airplane certification rules and the operating rules provide the requirements and parameters under which takeoff and landing operations can be safely conducted. (FAA Exhibit 1,Items 47 and 85.) B. The Airport Improvement Program and the Airport Sponsor Assurances Title 49 U.S.C. §47101, etseq., provides forFederal airport financial assistance forthe development of public-use airports under the Airport Improvement Program (AlP) established by the Airport and Airway Improvement Act (AAIA), as amended. Section 47107, etseq., sets forth assurances to which an airport sponsor agrees as acondition ofreceiving Federal financial assistance. Upon acceptance ofan AlP grant, the assurances become abinding obligation between the airport sponsor and the Federal Government. The FAA has a statutory mandate to ensure that airport owners comply with these sponsor assurances.v' FAA Order 5190.6A, Airport Compliance Requirements (1989) (Order 5190.6A orAirport Compliance Handbook), provides the policies and procedures to be followed bythe FAA in carrying out its legislatively-mandated functions related to Federally-obligated airport owners' compliance with their sponsor assurances.i'' , The City is obligated to provide reasonable access to SMa for all aeronautical users as acondition to the City'S acceptance ofFederal grants under the Airport Improvement Program, (AlP), authorized by the Airport and Airway Improvement Act of 1982, (AAIA), as amended, 49 U.S.C. §47101, etseq. FAA records indicate that the planning and development ofSMa has been financed, inpart, with funds provided by the FAA. Between 1985 and 1994, the Airport has received atotal of$9.7 million inFederal airport development assistance. (FAA Exhibit 1,Item 41.)

22 See, e.g., 49 U.S.C. §§ 40101, 40103(e), 40113, 40114, 46101, 46104, 46105, 46106, 46110, 47104, 47105(d), 47106(d), 47106(e), 47107, 47108, 47111(d), 47122. 23 Except forthe grant assurance regarding exclusive rights (which runs inperpetuity) the federal grant assurances remain in full force and effect throughout the useful life ofthe facilities developed or equipment acquired for an airport development program project or compatibility program project. This period does not exceed twenty (20) years from the date ofthe acceptance offederal funds for the project. See Federal Grant Assurances B. 

### -12

-In2003 the City requested, and the FAA approved agrant amendment for $240,000, increasing its AlP grant total to $10.2 million.24 (FAA Exhibit 1,Item 6.) This was the lastAlP-funded project at SMO to date. As a result, SMO is obligated under its AlP grant assurances until atleast 2023. C. Enforcement ofAirport Sponsor Grant Assurances Various laws actions augment the Federal role in developing civil aviation, including programs providing funds and other assistance to local communities forthe development ofairport facilities. Ineach program, the airport sponsor assumes certain obligations, either by contract orby restrictive covenants inproperty deeds and conveyance instruments, to maintain and operate its airport facilities safely, efficiently, and in accordance with specified conditions. Commitments assumed by airport sponsors inproperty conveyance or grant agreements are important factors inmaintaining ahigh degree ofsafety and efficiency in airport design, construction, operation and maintenance, as well as ensuring the public reasonable access to the airport. Pursuant to 49 U.S.C. §§ 47107 and 47122, the FAA has a statutory mandate to ensure that airport owners comply with their sponsor assurances. Federal Regulation 14CFR Part 16FAA Rules ofPracticefor Federally-Assisted Airport Enforcement Proceedings was published inthe Federal Register (61 FR 53998, October 16, 1996) and implemented on December 16, 1996 as the rules ofpractice in such compliance actions. Pursuant to 49 U.S.C §40113(a) FAA is authorized to issue orders to carry out Part A ofSubtitle VII of 49 U.S.C., including section 40103(e) prohibiting the granting ofexclusive rights. That section provides explicit authority forthe Administrator ofthe FAA to "take action the

... Administrator

... considers necessary to carry outthis part
.... " including the authority for" issuing orders." The FAA does have the authority to issue cease and desist orders pursuant to the general authority of49 U.S.C. §§ 40113 and 47122 coupled with that provided under 14C.F.R. 16.11, 16.31(d) and 16.109(a).

D. The FAA Airport Compliance Program The FAA ensures that airport owners comply with their Federal grant obligations through the FAA's Airport Compliance Program. The program isbased onthe obligations that an airport owner accepts when receiving Federal grant funds orthe transfer ofFederal property for airport purposes. These obligations are incorporated in grant agreements and instruments ofconveyance in order to protect the public's interest in civil aviation and to ensure compliance with Federal laws. The FAA Airport Compliance Program is designed to ensure the availability ofanational system of safe and properly maintained public-use airports operated in amanner consistent with the airport owners' Federal obligations and the public's investment in civil aviation. The Airport Compliance Program does not control ordirect the operation ofairports; itmonitors the administration ofthe valuable rights pledged by airport sponsors to the United States in exchange formonetary grants and donations ofFederal property to ensure that the public interest is being served.

24 On June 29, 1994, the City accepted agrant offer with amaximum Federal obligation of$I,604,700 to repair taxiways and aprons, pave infield areas, and construct blast walls, fencing, gates, aperimeter road alignment, lighting and signing, and an aircraft run-up enclosure. The specific grant was identified as AlP 3-06-0239-06. This grant agreement AlP 3-06-0239-06 was amended atthe request ofthe City inNovember 1999 inAmendment No.1 to GrantAgreement/or Project No. 3-06-0239-06

.. The grant agreement was amended asecond time asAmendment NO.2 to Grant Agreement/or Project No. 3-06-0239-06, in

. August 27, 2003 to address an increase infunding of$240,000. (FAA Exhibit 1,Item 6.) The FAA offered and the City accepted an additional $240,000 inAlP grant funds.

- 13-In addressing allegations ofnoncompliance, the FAA will make adetermination as to whether an airport sponsor is currently in compliance with the applicable Federal obligations. The FAA may also take into consideration any action orprogram the sponsor has taken orimplemented, orproposed action orprogram the sponsor intends to take, which inFAA's judgment is adequate to reasonably carry out the obligations under the grant assurances. E. Public Use ofthe Airport

- Grant Assurance 22 The owner ofany airport developed with Federal grant assistance isrequired to operate the airport forthe use and benefit ofthe public and to make itavailable to alltypes, kinds, and classes ofaeronautical activity on reasonable terms, and without unjust discrimination. Grant Assurance 22, Economic Nondiscrimination, in the prescribed sponsor assurances implements the provisions of49 U.S.C. §47107(a)(1) through (6), and requires, inpertinent part, that the sponsor ofaFederally-obligated airport "will make its airport available as an airport forpublic use onreasonable terms, and without unjust discrimination, to all types, kinds, and classes ofaeronautical activities, including commercial aeronautical activities offering services to the public atthe airport" (Assurance 22(a)); "may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users ofthe airport as may be necessary forthe safe and efficient operation ofthe airport" (Assurance 22(h)); and "[t]he sponsor may prohibit orlimit any given type, kind orclass ofaeronautical use ofthe airport ifsuch action isnecessary forthe safe operation ofthe airport ornecessary to serve the civil aviation needs ofthe public." (Assurance 22(i).) FAA Order 5190.6A describes in detail these responsibilities assumed

# bIthe owners ofpublic-use airports developed with Federal assistance as well as the applicable limitations? The Order provides the FAA isthe ultimate decision maker concerning whether arestriction that an airport sponsor proposes to impose on the ground of safety isjustified. Section 4-8 specifically states that "in all cases the FAA will make the final determination ofthe reasonableness ofthe airport owner's restrictions which denied orrestricted use ofthe airport." F. The Prohibition Against Exclusive Rights

- Grant Assurance 23 In Title 49 U.S.C. §40103(e), Congress re-codified and adopted substantially unchanged the exclusive rights prohibition prescribed in Section 303 ofthe Civil Aeronautics Act of 1938 and in Section 308(a) ofthe Federal Aviation Act of 1958, as amended. The statute prohibits exclusive rights atcertain facilities and states, inpertinent part, that "[a] person does not have an exclusive right to use an airnavigation facility on which Government money has been expended." 49 U.S.C. §47107(a)(4) similarly provides, inpertinent part, that "aperson providing, orintending to provide, aeronautical services to the public will not be given an exclusive right to use the airport." Grant Assurance 23, Exclusive Rights, ofthe prescribed sponsor assurances requires, inpertinent part, that the sponsor ofa Federally obligated airport:

25 See Order, Sec. 4-13(a).

- 14

-"will permit no exclusive right forthe use ofthe airport by any person providing, orintending toprovide, aeronautical services to the public

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

...." An exclusive right is defined as apower, privilege, orother right excluding ordebarring another from enjoying or exercising alike power, 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 one ormore parties, but excluding others from enjoying or exercising a similar right orrights, would be an exclusive right.26 Therefore, itis FAA's policy that the sponsor ofaFederally obligated airport will permit no exclusive right forthe use ofthe airport by any person providing, orintending to provide, aeronautical services to the public, and will not, either directly or indirectly, grant orpermit any person, firm, orcorporation, the exclusive right atthe airport to conduct any aeronautical activities. FAA Order 5190.6A clarifies the applicability, extent, and duration ofthe prohibition against exclusive rights under 49 U.S.C. §40103(e) with regard to airports developed with FAA-administered grant assistance and Federal property conveyances. The exclusive rights prohibition remains in effect as long asthe airport is operated as an airport. FAA takes the position that the grant ofan exclusive right forthe conduct ofany aeronautical activity on such airports is regarded as contrary to the requirements ofthe applicable laws, whether such exclusive right results from an express agreement, from the imposition ofunreasonable standards orrequirements, orby any other means. G. Surplus Property Obligations and Regulation 16 Obligations ofairport sponsors to allow all aircraft operators to utilize their airports without unjust discrimination and on reasonable terms are also imposed pursuant to the surplus property instruments of disposal issued under the Surplus Property Act of 1944 (SPA),27presently codified at49 U.S.C. §47151, et seq. The SPA authorizes conveyance ofproperty surplus to meet the needs ofthe Federal Government. The FAA (successor to the Civil Aeronautics Administration (CAA)) recommends which property should be transferred topublic agencies for airport purposes. Before the FAA assumed responsibility for conveyances for airport purposes, the General Services Administration (GSA) hadjurisdiction over the disposition ofall government property declared tobe surplus to the needs ofthe Federal Government and issued deeds, instruments oftransfer and other conveyance documents forthat purpose. Prior to the establishment ofthe GSA in 1949, instruments ofdisposal were issued bythe War Assets Administration (WAA).28 Property duly declared surplus was assigned to the WAA for disposal, acting pursuant to the provisions ofthe SPA, as amended, as implemented by Regulation 16(which is discussed in detail below) and agency orders.f" Surplus property instruments oftransfer are one ofthe means by which the Federal Government provides airport development assistance topublic airport sponsors. The conveyance ofsurplus Federal land and improvements topublic agencies for airport purposes is administered today by the FAA, in conjunction with the U.S. Department ofDefense (DOD) and the GSA pursuant to 49 U.S.C. §47151 et seq.

26 See FAA Advisory Circular 5190-6 Exclusive Rights At Federally Obligated Airports, January 4, 2007.

27 Surplus Property Act of 1944,58 Stat. 765, 770. Section 13 (g) ofthe Surplus Property Act of 1944 (49 U.S.C. §47151), which is continued in effect by section 602(a) ofthe Federal Property and Administrative Services Act of1949 and amended by Public Law 311, 81st Congress (50 U.S.C. App. I622(a)-(c)). 28 FAA Order 5190.6A, Section 1-5(a). 29 For example, see 1948 conveyance atFAA Exhibit 1,Item 15A, and SPA Regulation 16at Exhibit 1,Item 16.

- 15

-Surplus airport property instruments ofdisposal provide that the covenants assumed by the grantee regarding the use, operation and maintenance ofthe airport andthe property transferred shall be deemed to be covenants running with the land.i" Accordingly, such covenants continue infull force and effect until released under Public Law 81_31131 orother applicable Federal law. Pursuant to 49 U.S.C. §47151, the FAA has the statutory authority to ensure that airport owners comply with their Federal obligations contained in surplus property deeds and instruments ofconveyance. Under each surplus property conveyance the airport sponsor assumes certain obligations, reservations and conditions. These usually occur inthe property deeds and conveyance instruments inthe form ofrestrictive covenants to maintain and operate its airport facilities safely, efficiently, and in accordance with specified conditions. Standard surplus instruments ofconveyance required that the acceptance ofthe instrument, or any rights thereunder, by the airport receiving the property, for itself, its successors and assigns, assumes the obligations of, covenants to abide by and agrees that the property will remain subject to specific reservations and restrictions set forth inthe document which run with the land. The conditions contained in deeds and other instruments ofconveyance executed between the Federal Government and airport sponsors under the Surplus Property Act atissue inthis case are as follows:

•Restriction 1 "the land, buildings, structures, improvements and equipment inwhich this instrument transfers any interest shall be used forpublic airport purposes forthe use and benefit ofthe public, on reasonable terms and without unjust discrimination and without grant orexercise ofany exclusive righr 2 foruse ofthe airport

... "

•Restriction 2

"the entire landing area, as defined inRegulation 16.", and all structure, improvements, facilities and equipment inwhich this instrument transfers any interest shall be maintained forthe use and benefit ofthe public at alltimes in good and serviceable condition

.... "

30 Surplus property interests disposed ofby the Federal Government included airports and were inthe form of (1) leasehold interests, (2) fee simple ownership, (3) combined fee simple and leasehold interests and (4) airfields improvements. Inthe 1944 SPA, "property" is defined as "any interest inproperty, real orpersonal owned by the United States." This included leases, and included the lease between the U.S. Government and the City of Santa Monica forthe use of SMO. The SPA allowed (1) all personal property, (2) all landing facilities and (3) non landing facilities, which are owned, leased, or otherwise controlled by the United States to be declared surplus and disposed ofby the WAA inthe manner and under the terms and conditions prescribed inthe Act and in accordance to such regulations as the WAA may prescribe to effectuate they provisions ofthe Act. Concurrent CAA policy concerning surplus property disposals ofairfields specifically required the CAA to report on potential uses of surplus property for airport purposes and describe the portions ofthe land, owned or leased, which, inthe opinion ofthe CAA should be classified as airport property. In addition, any deed, bill of sale, lease, or other instrument executed by or on behalf ofagovernment agency purporting to transfer title or any other interest inproperty under the Act was "conclusive evidence ofcompliance with the provisions ofthe Act." 31 50 App. U.S.C.A. § 1622(g) (1949) (originally enacted as Surplus Property Act of 1944, ch. 479, § 13, 58 Stat. 765, 770.) See 49 U.S.c. §47151 and 49 CFR Part 155. 32Today, 49 U.S.C. §47152 (2) contains the reasonableness and unjust discrimination requirements contained inthe original Surplus Property Act and set forth inthe 1948 Instrument ofTransfer.

- 16 -•Restriction 3 "no exclusive right foruse ofthe airport atwhich the property transferred by this instrument is located shall be vested (directly orindirectly) in any person orpersons to the exclusion ofothers inthe same class, the terms "exclusive right" being defined to mean.... (FAA Exhibit 1,Item 15A.) The terms set forth inthe Instrument ofTransfer to maintain the airport forpublic use and benefit, without unjust discrimination and prohibiting the grant ofan exclusive rights are statutory. The additional terms were deemed necessary to protect or advance the interests ofthe United States in civil aviation or fornational defense. In addition, certain terms imposed pursuant to requirements ofRegulation 16Part 8316-Surplus Airport Property- WAA also apply here. Conveyances made under Regulation 16incorporate terms authorizing the reversion ofproperty interests in cases where obligations are notperformed. The right to revert property is at the option ofthe FAA. Typical reversion language (and as contained inthe 1948Instrument ofTransfer) states that "upon abreach ofany ofthe aforesaid reservations orrestrictions

... the title, right ofpossession and all other rights transferred to the (City), or any portion thereof, shall atthe option ofthe (Federal Government) revert to the (Federal Government) upon demand made inwriting

.... " (FAA Exhibit 1,Item 15A.) Under Regulation 16, all four types ofgovernment property interests, namely (1) leasehold interests, (2) fee simple ownership, (3) combined fee simple and leasehold interests and (4) airfields improvements were covered under the 1944 Surplus Property Act and related regulations. SPA Regulation 16(Regulation 16) was adopted by the WAA onNovember 16, 1945 and amended, June 26, 1946 and in effect atthe time ofthe SMO surplus classification and disposal. (FAA Exhibit 1,Item 16.) Regulation 16, section 8316.5, specifically states that declarations ofsurplus property include leasehold interest and that those interests not cancelled shall be filed with the WAA.33Regulation 16, Section 8316.9, Disposal ofLeasehold Interests and Improvements by Owning Agencies specifically discusses the process by which the government could dispose ofleasehold interests under the Act. Regulation 16section 8316.1 defines airport property asthe entire interest owned by the Government in any airport. Airport means any area ofland orwater and the improvements thereon. In instances where an airport consisted ofproperty aportion ofwhich is owned bythe Government and the balance ofwhich isproperty under lease to the Government, the lease was not cancelled, but the leasehold interest as well as the Government-owned property was declared surplus in accordance with Regulation 16section 8316.9(d). The FAA has the sole responsibility for determining and enforcing compliance with the terms and conditions ofall instruments oftransfer by which surplus airport property is orhas been conveyed to non-Federal public agencies pursuant to the Surplus Property Act of 1944 (SPA).34 Accordingly, such covenants continue infull force and effect until released. All ofthese SPA conditions are fully applicable at SMO. In 1941 the Federal Government leased the Airport from the City toprovide protection for Douglas Aircraft

- then agrowing defense contractor during World War 11.35The Federal Government also participated inthe

33 This isthe applicable regulation at issue here. (FAA Exhibit 1,Item 16.) 3441 CFR § 102-75.425 35SMO is not aunique airport with regards to the use ofleases. Leases were very common. Several hundred airports inthe



### - 17

-expansion ofthe facility. Between 1941 and 1942, a significant amount ofCivil Aeronautics Administration (CAA) Development ofLand Areas forNational Defense (DLAND) funding (defense related civilian CAA funds/grants) was used to improve the Airport. With Federal assistance, the Airport was extensively reconstructed in 1942 to accommodate the wartime needs. (FAA Exhibit 1,Item 80A/F.) The Federal Government's improvements included the acquisition ofadditional land through acondemnation proceeding onbehalf ofthe City; construction ofhangars, a$30 million manufacturing plant, and construction and improvement ofthe runways. Additional improvements to the Airport bythe Federal government followed during the War and immediately thereafter. For example, the main concrete Northeast-Southwest runway (atthe time there were two runways at Santa Monica) was constructed by the Works Progress Administration (WPA) and the CAA paid inpart forthe work with government funds. (See Leases atFAA Exhibit 1,Item 4, Exhibit 25 and Exhibit 26.) On May 7,1946, the Army granted the City ofSanta Monica arevocable Interim Permit forthe operation of the Airport, effectively returning some operational control ofthe Airport back to the City pending its disposition as surplus property. (FAA Exhibit 1,Item 60 and 80A/E.) This followed requests bythe City for such apermit inDecember, 1945. (FAA Exhibit 1,Item 80NA and A/B.) On July 29, 1946, the War Assets Administration (WAA) issued Form SPB-5 Declaration a/Surplus Real Property concerning the Santa Monica Airport and declaring as surplus, all leased land and improvements atthe Airport. (FAA Exhibit 1, Item 80A/F.) On September 19, 1946, the City requested that the WAA grant the City the opportunity to acquire the government's surplus property interest atthe Airport. Specifically, in asking that the facility be disposed ofas an airport, the City stated that itwould accept the associated conditions under the SPA Regulation 16. The City also understood that the government could not terminate the leases until the government surpluses its interest. (FAA Exhibit 1,Item 80A/G.) The WAA Director ofthe Airports Division responded on September 25, 1946 and said that the City's "desires as outlined in (their) letter will be given every consideration consistent with the Surplus Property Act." (FAA Exhibit 1,Item 80A/I.) On October 14, 1946, the final CAA airport disposal report concerning Santa Monica Airport (also known as "Clover Field" atthat time) was sent to the WAA. (FAA Exhibit 1,Items 60 and 80A/J.) On January 9, 1947, the government made the determination that its 168 acre leasehold interest atthe Airport, along with improvements valued at $1.12 million and its landing facilities, including two runways, taxiways, aprons, should be disposed ofunder SPA Regulation 16subject to the applicable restrictions.i" (FAA Exhibit 1,Item 80A/M.) As aresult, inAugust 1947, the government published apublic disposal notice forthe Santa Monica Airport inthe local newspaper. (FAA Exhibit 1,Item 80A/N.) By April 1948, the WAA had agreed to transfer the Airport to the City under the SPA.37 (FAA Exhibit 1,Item 80AIP.) The WAA, onbehalf ofthe Federal Government, and upon the recommendations and approval ofthe CAA, transferred the Airport land and improvements to the City ofSanta Monica foruse as apublic civilian airport.

US have surplus property deed and instrument oftransfer restrictions similar to SMa's. About 168 acres out of227 at SMa were subject to a leasehold interest (FAA Exhibit I, Items 15A, 60, 80A/D.) 36All ofthe property, including real, personal and mixed property, constituting SMa was duly declared surplus and was assigned to the WAA for disposal, acting pursuant to the SPA, as amended, and applicable regulations (including Regulation 16) and orders. 37The government's leasehold interests, approximately 168 acres, consisted ofleases executed in 1941 and subsequently amended, one for 85.87 acres and the other for 83 acres. The government's interest in fee simple land was for 21acres quit claimed back to the City. (FAA Exhibit 1, Items 15A, 15B, 4, Exhibits 25, 26 and 27, Items 57 and 80A/Q and 80B/H.) Information inthe record, indicates that in 1944, the City reimbursed the Federal Government for several parcels ofproperty used for the expansion ofthe Airport and that in 1945, the City acquired approximately 39 acres from the Federal Government for inclusion into the Airport. (FAA Exhibit 1,Item 39, p. 9.)

- 18 -In completing this transfer, the Federal Government executed an "Instrument ofTransfer" dated August 10; 1948" 

### (1948Instrument ofTransfer, FAA Exhibit 1,Items l5A and 80AlQ) inwhich the Federal Government relinquished to the City several easements, and its leasehold interest inthe Airport along with airfield improvements, including the entire landing area, the Airport's concrete 5,000-foot runway and taxiway system. The 

### 1948Instrument ofTransfer remised, released and forever quitclaimed the subject premises to the City subject to reservations, restrictions and conditions specified inthe document. The conditions which run with the land (and do not expire) required that the property beused forpublic airport purposes forthe use and benefit ofthe public and without grant orexercise ofan exclusive right. Id. The 1948 Instrument of Transfer was duly executed by the United States ofAmerica acting through the WAA and attested to by the Santa Monica City Manager and the City Clerk on orabout August 10, 1948. A second surplus property transfer was executed onApril 9, 1949 (1949 Quit Claim Deed) and transferred approximately 18-21 acres ofgovernment owned property under the applicable Surplus Property Act process and regulations, but did not include the standard restrictions atthe request ofthe City.38(FAA Exhibit 1,Items 15B and 80B/H.) Prior to its transfer ofthe Airport back to the City, the Federal Government completed the relocation and expansion ofthe runway and taxiway system to acondition that resembles its current configuration." This was done in 1947 when the main runway was moved approximately 1,000 ft south from its original location, replacing the previous two-runway configuration with a single east-west runway, runway 03_214

# °. As part.of the Airport expansion projects between 1944 and 1947, the Federal Government condemned property ont~e West side ofthe airport, over 130lots and totaling about 21 acres. (See also FAA Exhibit 1,Items 30, 57, 65, and 80B/H.) Part ofthis government-owned land was conveyed to the City inthe 1949 Quit Claim Deed mentioned above. When the Santa Monica Airport was finally returned to civilian control, the United States government had effectively conveyed to the City under the SPA alarger much improved airport, consisting ofthe original government leasehold interests as well as additional land and improvements constructed at Government expense. As aresult ofthese expansions and improvements, by 1949, SMO's 5,000-foot runway met air carrier standards. (See FAA Exhibit 1,Item 29, p. 65.) On the tenth ofAugust in 1948, the City confirmed its acceptance ofthe 1948 Instrument ofTransfer, including the restrictions stated above, bypassing Resolution No. 183,Resolution ofthe City ofSanta Monica Accepting An Instrument ofTransfer From the UnitedStates ofAmerica. (FAA Exhibit 1,Item 4, Exhibit 31.) The 1948 Instrument ofTransfer is a Surplus Property Act, Regulation 16conveyance, which includes restrictive covenants, and incorporates areversion clause atthe option ofthe Federal Government, giving title, and right ofpossession. Specifically, it states: "that inthe event that any ofthe aforesaid terms, conditions, reservations orrestrictions isnot met, observed, or complied with bythe Party ofthe Second Part (City) or any subsequent transferee, whether caused by the legal inability ofsaid party ofthe Second Part or subsequent transferee to,' perform any ofthe obligations herein setout, orotherwise, the title, right ofpossession and all other rights transferred by this instrument to the Party ofthe Second part, or any portion thereof, shall atthe

38 Premises conveyed via this deed were obtained in acondemnation proceeding brought by the Federal Government and paid with funds from the City. City requested that no restrictions attach to this conveyance. This is distinguishable from the 1948 transfer where the City accepted the premises with the SPA restrictions and without any request for a special conveyance. 39 http://santa-monica.org/airport/n airport h.aspx 40http://www.smc.edu/schedules/archives/profiles/2006/061/coverstories061.htm

- 19 -option ofthe Party ofthe First Part (Government) revert to the Party ofthe First part sixty (60) days

following the date upon which demand to this effect ismade inwriting by the Civil Aeronautics Administration orhis successor infunction

... ". (FAA Exhibit 1,Item 15A.) During the period from 1952-1956, several parcels ofland were released from the Federal obligations contained inthe 1948 Instrument ofTransfer, e.g. Lot A, George Tract, released on April 25, 1952 and other parcels released from the aeronautical use requirements ovcr time.l' (FAA Exhibit 1,Items 36 and 90.) In 1962, the Santa Monica City Attorney notified the City Council that hehad concluded in awritten opinion that the City could not unilaterally, onthe motion ofthe City Council, legally abandon the use ofthe Airport as an airport. (FAA Exhibit 1,Item 13.) In 1975, the California Attorney General opined that the City could not atthe present time cease using the Airport for airport purposes. The Attorney General noted that the City agreed that property transferred was to be used forpublic airport purposes forthe use and benefit ofthe public; the U.S. has the right to make nonexclusive use ofthe landing area; and that no property could beused, leased, sold, salvaged ordisposed ofby the City for other than airport purposes without the written consent ofthe Federal Government. (FAA Exhibit 1,Item 48.) As stated above, under the August 10,1948 Instrument ofTransfer, executed under the provisions ofthe SPA of 1944, the City assumed certain obligations, reservations and conditions. Upon acceptance ofsurplus property conveyance by the City, including land and improvements to the airport, the obligations inthe instrument ofdisposal became abinding obligation between the City and the Federal Government. 42 (FAA Exhibit 1,Items 15A and 80AIQ.) On October 2, 1948, the Chief ofthe General Services Branch wrote in an Office Memorandum to the Real Property Files regarding the transfer of SMO (Clover Field) that the "consideration involved inthe transfer was the assumption bythe transferee (the City) ofthe usual conditions, restrictions and reservations in connection with the transfer ofproperty asprescribed by the WAA regulations and procedures." The City stated that itwould comply with these very regulations in its letter requesting the transfer. (FAA Exhibit 1,Item 80A/G andA/T.) , H Airport Reference Code (ARC), Runway Safety Area (RSA) and Runwav Protection Zone (lU>Z) 1.Airport Reference Code (ARC) FAA guidance and policies on airport design standards are based, inpart, on acoding system known as the Airport Reference Code (ARC). This coding system relates airport design criteria to operational and physical characteristics ofaircraft (AC 15015300-13, Airport Design, Change 12,Paragraph 4,Airport Reference Code (ARC)). The ARC is derived from identification ofthe "critical aircraft" and is used to support decisions for airport planning and design, and forFederal funding ofairport capital development. FAA Order 5100.38C, Airport Improvement Program Handbook, Paragraph 428, FAAApproval Actions, subparagraph (a), states "[M]ore than one critical aircraft may control the design ofany specific airport's different facility features, such asrunway length, strength ofpaved areas orlateral separations in airfield layout. A critical design

410n March 5, 1956, the CAA granted permission to abandon Runway No.1 and released the City from the terms, covenants, conditions, reservations, and restrictions set forth inInstrument ofTransfer dated August 10, 1948 with respect to Runway No. 1. (FAA Exhibit 1,Item 50, FAA Exhibit 1,Item 90D.) 42InFAA Docket No. 16-03-11, Bombardier Aerospace Corp., and Dassault Falcon Jet Corp. v. the City ofSanta Monica, the FAA reconfirmed that "SMO is also obligated under the powers and authority contained inthe provisions ofthe Surplus. Property Act (SPA) of 1944 as amended, 49 U.S.C. §§ 47151-153. This Part 16Director's Determination became a final agency decision because itwas not challenged by the City orthe complainants.



### -20-aircraft isthat airplane using (or ishighly likely to use) the airport on aregular basis. Aregular basis is atleast 500 annual itinerant operations." This airplane classification relies on approach speed

- theAircraft Approach Category, classified as category A, B, C, D and E. Aircraft Approach Category is agrouping ofaircraft based on 1.3times their stall speed in their landing configuration (Vso) attheir maximum certificated landing weight (MLW). (AC 150/5300-13, Airport Design, Change 12,Paragraph 2,Definitions.) AC 150/5300-13 defines the specific aircraft approach categories as follows: Category A: Speed less than 91 knots (e.g. single-engine piston PA-28) Category B: Speed 91 knots ormore but less than 121 knots (e.g. twin-engine turboprop King Air) Category C: Speed 121 knots ormore but less than 141 knots (e.g. Learjet 31 corporate jet) Category D: Speed 141 knots ormore but less than 166knots (e.g. Gulfstream GIV corporate jet) Category E: Speed 166knots ormore (e.g. military trainer Northrop T_38)43 FAA Exhibit 1,Item 83 provides a sample visual representation ofaircraft and their respective categories. In addition to approach category, the other variable inthe Critical Design Aircraft isAirplane Design Group, classified as I, II, II, IV, V and VI, as shown inthe table below:



### T hIll A' I D' G (tillG) a 

### e 

## -

# . irptane 

### esrgn roups 

## . Group 

### # Tail Height (ft) Winzspan (ft) 

### I <20 <49 II 20

-<30 49

-<79 III 30

-<45 79-<118 IV 45

-<60 118-<171 V 60

-<66 171

-<214 VI 66

-<80 214-<262

While the design ARC isused in airport planning, design, and funding, itisnever used to control aircraft operations. The Advisory Circular expressly provides "these standards and recommendations

...do not limit orregulate the operations ofaircraft"

-AC 150/5300-13, Airport Design, Change 12,Paragraph 1,and that the standards and recommendations inthis publication complement, but are not intended to take precedence over, aircraft operating rules and procedures. The overlap between planning, design and operations exists because aircraft-specific runway length requirements are afunction ofaircraft physical characteristics attime offlight, weather conditions, runway conditions and many other performance variables, and are determined on case-by-case basis and rely upon FAA-Approved Airplane Flight Manual (AFM) performance data.44The FAA, in designing, approving and ultimately funding runways, has already incorporated aircraft performance and operational needs as a variable. There is a significant level offlexibility inupgrading airports from one design standard to another. Noteworthy isthat inmany cases, only afew changes are needed to go from one standard to another. The

43 91 knots is approximately 105 mph. 44See e,g., FAA AC 150/5325-4, Runway Length Requirements/or Airport Design.

- 21

-implication isthat there isno underlying safety ofoperation issue automatically raised by operations ofhigher category aircraft at an airport originally designed for alower category ordesign group. See, e.g., the Increases inAirport Design Standards table inFAA Exhibit, Item 84. The FAA's publication ofapproach minima (sometimes referred to as "minimums") for airports, including SMa, already contains a safety determination by FAA. FAA Order 8260.3B, Change No. 19, United States Standard/or Terminal Instrument Procedures (TERPS), FAA Order 8260.19D, Flight Procedures and Airspacef' contains criteria used to formulate, review, approve, and publish procedures for instrument approach and departure ofaircraft to and from civil and military airports inthe United States. These criteria are for application at any location over which an appropriate United States agency exercises jurisdiction. Concerning take offand landing minimums, TERPS provides that minimums should bepublished for each approach category that can be accommodated ateach airport. The airport landing surfaces must accommodate aircraft that can be reasonably expected to use the instrument procedure. Appropriate runway markings, hold position markings, and signs, shall be established and inplace; and certain runway design standards must be met.46 However, where the airport landing surface isnot adequate inmeeting certain approach design criteria other restrictions exist which prohibit certain categories ofaircraft from making an instrument approach at an airport. No Federally obligated airport inthe U.S. restricts operations onthe basis ofairport reference code. 2. Runway Safety Areas (RSAs) Runway Safety Areas (RSAs) enhance safety inthe event ofanundershoot, overrun, or excursion from the side ofthe runway. Federally funded airports like SMO are required to establish standard runway safety areas, to the extent practicable, when improving their runways. (See FAA Order No. 5200.8, Runway Safety Area Program (Order 5200.8).)47 The RSA standard ispart ofFAA's airport design standards. The FAA requires certificated airports and federally funded airports building new and rehabilitating existing runways to meet FAA standards, including the RSA standard. However, design standards for airport RSAs are independent ofsafety requirements for aircraft operations. No FAA aircraft operating rule requires a standard RSA. (FAA Advisory Circular (AC) 150/5300-13, Airport Design.)

45Thisorder provides guidance for FAA personnel inthe administration ofthe Flight Procedures and Airspace Program. It defines responsibilities, establishes criteria, and provides standards to ensure effective and orderly processing of alltypes ofprocedures actions. The FAA Flight Technologies and Procedures Division, AFS-400, isresponsible for the rulemaking process ofthe Flight Procedures Program, which includes development, application, and oversight ofthe National Flight Procedures Program and development ofcriteria pertinent to designing instrument flight procedures. 46FAAOrder 8260.3B, Change No. 19, United States Standard/or Terminal Instrument Procedures (TERPS), Par 122, and AC 150/5340-1, Marking 

### 0/Paved Areas onAirports and Appendix 16ofAdvisory Circular 150/5300-13, Airport Design Change 12. 47Pursuant to FAA Order 5200.8, "the objective ofthe Runway Safety Area Program isthat all RSAs at federally obligated airports and all RSAs at airports certificated under 14Code ofFederal regulations (CFR) part 139 shall conform to the standards contained inAC 150/5300-13 Airport Design, to the extentpracticable." (emphasis added). This policy guidance for FAA employees is consistent with requirements for federally funded airports to comply with applicable FAA advisory circulars, including the AC for Airport Design, when proposing airport development projects. In addition, all airports certificated by the FAA for commercial service under 49 U.S.C. §44706, as implemented by 14CFR Part 139, are required to establish standard runway safety areas, to the extent practicable, by 2015. (Title 49 U.S.C §44706 note II (2005).) We agree with the City that federally funded airports as well as commercial service airports are required to establish standard runway safety areas, but for slightly different reasons than, and not to the extent, claimed by the City.

- 22-There isno basis inFederal law forFederally funded airports to restrict access based upon runways that do not meet Federal airport design standards forrunway safety areas. FAA Advisory Circular (AC) 150/5300-13, Airport Design Change 12,Paragraph 305, Runway Safety Area (RSA), prescribes RSA design standards. This document sets forth the basic design standards for all airports inthe U.S. that are certificated for commercial service under 14CFR Part 139, Certification ofAirports (Part 139) and for all airports that are subject to assurances from AlP grant funding. The standard dimensions of the RSA depend upon the aircraft and the approach procedure visibility minimums associated with the runway. Except under special conditions, the RSA standard dimensions forrunways used by aircraft with approach speeds of 121 knots ormore (approach category C) are 500 feet wide, 600 feet prior to the threshold, and 1,000 feet beyond the end ofthe runway. (AC 150/5300-13, Airport Design, Change 12,Table 3-3.) Not all runways meet RSA standards, even atcommercial airports. Under anFAA program to expedite RSA improvements atcommercial airports using targeted grant funding, the number ofrunways at airports with an RSA complying with 100% ofthe FAA standard has increased from 30% in 2000 to 54% in 2006.48 However, this does not mean that the other 46% areunsafe, orthat operations by ahigher category aircraft requiring larger RSA dimensions areprohibited. As runways are built orrehabilitated, the FAA and the airport sponsors work to improve the runway's RSA to meet FAA design standards, to the extent practicable, as discussed inmore detail below. Also, these figures apply only to commercial airports certificated under 14 CFR Part 139, i.e., airports with scheduled and large aircraft charter airline service. The FAA has determined that ablanket application ofthe RSA standards to all existing runways is neither realistic nor reasonable. 49 Although runway safety area standards cannot be modified like other dimensional standards contained inAC 150/5300-13, the FAA makes practicability determinations ofthe best alternative for improving any RSA that does not meet standards. (FAA Order 5200.8, Runway Safety Area Program.) Order 5200.8 contains procedures for making RSA practicability determinations. This order also encourages alternative improvements, when full RSA standards are notpossible. The phrase, "[t]o the extent practicable" as used inthe FAA Order 5200.8 requires the weighing ofvarious relevant factors, such astechnical difficulty, benefit/cost, ownership orcontrol ofland, and effect onairport operations. (FAA Exhibit 1,Item 88, p. 5.) Thus, "to the extent practicable" includes not only engineering feasibility and cost, but also the effect on operations atthe airport. Order 5200.8 identifies acceptable alternatives to constructing orexpanding the RSA (such as the installation ofanEngineered Materials Arresting System (EMAS)), reconfiguration ofthe runway, orthe use ofdeclared distances. However, consistent with FAA Order 5200.8 guidance in general, the FAA must ensure that in applying RSA standards asrequirements, itisnot eliminating the aircraft operations that routinely are accommodated by the airport. For example, Order 5200.8, Appendix 2, states that areduction inrunway length to meet RSA standards may be considered only when the existing runway length exceeds that which is required forthe existing orprojected design aircraft. 50 To date, consistent with its policy, the FAA has not required an airport sponsor to physically reduce thelength ofarunway or effectively shorten arunway through the use ofdeclared distances to meet runway safety area standards ifthere is an operational impact to the airport even atcommercial airports subject to 14CFR Part 48Runway Safety Areas Improvements inthe United States, June 20, 2007. See website hrtp://www.icao.int 49 Part 139, Paragraph 139.309, Runway Safety Areas, FAA Order 5200.8, Runway Safety Area Program, and FAA Order 5200.9, Financial Feasibility and Equivalency ofRunway Safety Area Improvements and Engineered Material Arresting Systems. s°lt is not FAA's policy to require an owner or operator to reduce runway length oruse declared distances ifit would limit aircraft operations atthe airport. Inthese instances, installing EMAS is away ofenhancing safety. (AC 150/5220-22A.)

-23-139.51 "Safety area upgrading methods

... should be tailored to each airport, without degrading the safety and efficiency ofaircraft operation." (FAA Exhibit 1,Item 25.) Busy commercial airports such as LaGuardia, Reagan National, and San Diego allhave nonstandard RSAs, while others, like Boston, and Chicago Midway, have EMAS with aperformance below 70knots. (FAA Exhibit 1,Item 74.) EMAS may provide safety enhancements atairports like SMa where a standard RSA isnot possible.Y As explained above the FAA has recommended installation ofa70-knot capable EMAS unit to be installed on the departure end ofrunway 3/21, onthe West side ofthe Santa Monica Municipal Airport. The existence ofan RSA isnot, in any event, an operating requirement for safe operations. Although the FAA will work with airport sponsors to enhance RSA safety inbalance with the utility ofthe airport, atnon Part 139 airports such as SMa. There isno regulatory requirement to meet RSA standards, nor is itrequired for any operation under FAA aircraft operating rules. (See 14CFR Parts 91, 121, 125, 135, FAA Order 5200.8, Runway Safety Area Program, and FAA Order 5200.9, Financial Feasibility andEquivalency of Runway Safety Area Improvements andEngineered Material Arresting Systems.) Thus, the City cannot base its ban on Category C and D aircraft onthe absence ofRSAs at SMa.
3. Runway Protection Zone (RPZ) Inresponse to concerns articulated by the City the FAA has addressed Runway Protection Zone's (RPZ) at SMa. The RPZ's function isto enhance the protection ofpersons and property onthe ground. Itis achieved through the airport owner's control over RPZs. Such control often includes clearing RPZ areas (and maintaining them clear) ofincompatible objects and activities. Control ispreferably exercised through the acquisition ofsufficient property interest inthe RPZ. (AC 150/5300-13, Airport Design, Change 12, Paragraph 212, Runway Protection Zone (RPZ).) The RPZ istrapezoidal in shape and centered about the extended runway centerline. The central portion and controlled activity area are the two components ofthe RPZ. Id. The RPZ dimensions for aparticular runway are based onthe type ofaircraft and approach visibility minimum associated with the end ofthat runway. There are land use criteria forthe RPZ. For example, land uses that should not be inthe RPZ are residences and places ofpublic assembly such as schools, hospitals, office buildings, shopping centers, and other uses with similar concentrations ofpersons typify places ofpublic assembly. (AC 150/5200.8, Runway Safety

51Forexample, inthe case ofthe Memphis International Airport (MEM), Memphis, Tennessee, the FAA determined that "the existing RSA does not meet standards contained inAC 150/5300-13 but can be improved to enhance safety." The Runway Safety Area Determination for Memphis states the existing RSA does not meet the standards contained inthe AC 150/5300=13, but can be improved to enhance safety, but the RSA will still not meet current standards. The Memphis ADO concluded that all reasonable alternatives considered by Memphis such as full application ofdeclared distances, shortening the runway, and relocating an existing major street were deemed impractical and/or would adversely impact operations atMemphis. (See RSA Determination, dated September 25, 2000.) 52F AA Order 5100.9, Financial Feasibility and Equivalency ofRunway Safety Area Improvements and Engineered Material Arresting Systems, was issued in2004 to provide additional guidance for making practicability determinations. This order establishes amaximum feasible RSA improvement cost above which improvements may not be practicable. Italso encourages the use ofEMAS as an acceptable and desirable alternative when the full RSA is not practicable. In fact, itestablishes EMAS as an equivalent alternative to a standard RSA interms ofsafety enhancement. Italso requires a life cycle cost comparison with any alternative that results in a standard-sized RSA. The maximum feasible cost under Order 5100.9 isbased onthe cost ofadding EMAS beds on either end of an existing, sub-standard RSA. Change 8to AC 150/5300-13 allows the use ofEMAS as an alternative way to meet RSA standards.

-24-Area Program and AC 150/5300-13, Airport Design, Change 12,Paragraph 212, Runway Protection Zone (RPZ).) As with the RSA, the existence ofanon-standard RPZ, i.e. an RPZ that isnot clear ofincompatible land uses, does not mean that safe aircraft operations cannot take place from the runway and airport in question. Safe operation ofaircraft requires the availability ofa suitable runway, protected airspace around the runway, and protection ofapproach and departure airspace forvisual and instrument approaches and departures. For example, FAA allows operations atairports such as LaGuardia, and many other airports where the RPZ are not completely clear ofincompatible land uses. In addition, the RPZ isnot mentioned in any Flight Standards operational rules (see 14CFR Parts 91, 121, 125, 135). Although the FAA will work with airport sponsors to enhance RPZ safety inbalance with the utility ofthe airport, there is no operational regulatory requirement to meet RPZ standards.

V. ANALYSIS AND DISCUSSION A Preliminarv Matters Raised bySanta Monica 1.Jurisdiction Contrary to the City's argument in its Reply to the Order to Show Cause, the FAA did not expressly or implicitly waive future enforcement jurisdiction to enforce the exclusive rights prohibition, the grant assurances orthe Surplus Property Act by entering into a settlement agreement in 1984 to settle then existing litigation with the City. The 1984 Agreement does not contain any such waiver ofstatutory jurisdiction by the FAA, nor could it. The FAA may not by agreement waive its statutory enforcement jurisdiction over future cases. The FAA has express jurisdiction under 49 U.S.C §§ 40113(a), 46101(a) and 47122 to conduct investigations and issue orders pertaining to the issues inthis case: prohibition on granting exclusive rights, 49 U.S.C. § 40103(e); violations ofthe grant assurances, 49 U.S.C. §47107; and violations ofthe Surplus Property Act, 49 U.S.C. §47151 et seq. These statutes form the basis forjurisdiction under 14CFR Part 16for investigating and deciding this case. (See e.g., 14CFR §§16.1(a)(I),(5),(8).) The FAA isthe Federal agency assigned responsibility by Congress for enforcing the statutory safety and AlP grant obligations referenced inthe 1984Agreement. The FAA did not and could not abdicate that responsibility by signing an agreement with Santa Monica that settled existing litigation. The City's argument that the 1984 Agreement is acontract that can only be enforced infederal court is mistaken. The City agreed to make the 1984 Agreement a special grant condition in a subsequent 1985 grant agreement. (FAA Exhibit 1,Item 4, Exhibit 3 and Item 6.) As such the City agreed that the 1984 Agreement was also enforceable as agrant condition by the FAA. In any event, FAA Part 16actions, like the present case, may address the 1984 Agreement because the Agreement incorporates and restates several ofthe City's Federal grant and SPA obligations. Therefore, ifthe FAA were to find on the record that the City violated assurance 22 requiring SMO to permit access on reasonable terms and not engage in unjust discrimination, then that same evidence would also establish a violation ofthe corresponding section inthe 1984 Agreement bythe City (section 2(a)(i) ofthe 1984 Agreement). Inthis regard, the FAA isnot "interpreting the agreement" as the City claims, rather itismaking

-25-a supplementary finding pertaining to the violation ofthe City's Federal obligations asrestated inthe Agreement. In addition, the FAA does not need the Agreement to enforce grant assurances 22 or23 because FAA has independent jurisdiction to enforce these assurances based on49 U.S.C. §§ 40103(e) and 47107(a) and the applicable grant agreements between the City and the FAA that contain the assurances. The City entered into several grant agreements after the 1984 Agreement inwhich the City renewed the assurances atissue herein. The City could not have entered into the subsequent grant agreements inwhich itgave new grant assurances aspart ofits valuable consideration to the United States forthe grant funds that the City accepted, if, asthe City appears to argue, the earlier 1984 Agreement somehow was the exclusive contract evidencing the assurances. The provision inthe 1984 Agreement that the City will operate the Airport until 2015 clearly does not imply, as the City seems to argue, that the parties agreed to waive the City's existing Federal statutory obligations through 2015 and be subject only to the 1984 Agreement. Just asthe FAA cannot agree to waive its statutory enforcement jurisdiction, the agency cannot, and did not, agree to awaiver by aFederally obligated airport of its statutory obligations under the grant assurances orthe SPA. Indeed, the argument isparticularly frivolous given that the 1984 Agreement resulted from the City's attempts then to ignore its Federal obligations, and embodies the City's undertaking that this would, infact not happen again. The City also argues that preemption lies outside FAA Part 16jurisdiction and may only be adjudicated in court.53 However the City'S Ordinance regulating as airport proprietor the safety ofpilots, passengers and others, raises the issue ofwhether the City has exceeded its limited authority as an airport proprietor and whether ithas legislated in an area that ispreempted by Federal law. See Section F onPreemption Law below. Indeed, the City raises as adefense that as an airport proprietor the City has alegal responsibility to keep the airport safe. (FAA Exhibit 1,Item, 2). The issue ofpreemption and proprietary authority is inherent in ' Assurance 22, which is within Part 16jurisdiction. (See 14CFR § 16(a) (5).) Assurance 22(a) prohibits denial ofreasonable access to aeronautical users while 22(i) provides for limited proprietary rights, which represent an exception to Federal preemption. 2. Burden ofProof Itistrue that the burden ofproof ofnoncompliance with "an Act or any regulation, order, agreement or document ofconveyance issued under the authority ofan Act is onthe agency." (See 14CFR § 16.229(a).) The City, however, has the burden ofproof with respect to establishing its affirmative defenses.i" (See 14 CFR § 16.229(c).) For example, assuming, without conceding, that the City's ordinance isnot federally preempted on its face as amatter of

### law", the City has the burden ofproof to establish that the 2008

53 The City relies onMillard Refrigerated Services, Inc, v Omaha Airport Authority, FAA Docket No. 13-93-19 as support for this contention. The language cited by the City is dicta, Millard actually refutes the City's contention because after noting thejurisdictional issue, the decision addressed the federal preemption issue onthe merits. (See Millard atpg, 23 and FAA Exhibit 1,Item 4, pgs 11-12,) 54 In determining what constitutes an affirmative defense, fairness and convenience are relevant considerations. Wright & Miller, Federal Practice &Procedure: Civil2d § 1271. Thus, ifall or most ofthe relevant information iswithin the control ofthe defending party, then fairness and convenience suggest that the matter should be considered an affirmative defense. Id. 55 For example, an airport sponsor may institute Minimum Standards based on safety concerns. (FAA Advisory Circular 150/5190-7, Minimum Standards for Commercial Aeronautical Activities, August 28, 2006, discusses FAA policy regarding the development and enforcement ofairport minimum standards.) Grant Assurance 19requires an airport sponsor to ensure the airport and all facilities necessary to serve aeronautical users are operated at alltimes, in a safe and

-26-Ordinance is areasonable regulation under its authority as an airport proprietor that does not impose unlawful orunreasonable burdens. The City also has the burden to establish that the ban isjustified because operations ofC and D Category Jets, which have operated from the airport for over 20 years, are now somehow unsafe at SMa. Nothing the City has offeredjustifies overruling the conclusion reached by the Ninth Circuit more than 21 years ago that the City's safetyjustification is insufficient to support aban ofjet aircraft operations. The FAA, aspermitted by 14CFR § 16.101, initiated its own investigation concerning the action taken by the City, as the sponsor, proprietor, oroperator ofaFederally assisted airport, alleging the specified violations. Hence, the FAA is aparty to the current proceeding and isrequired under 14CFR §16.229(a) to carry the burden ofproof ofnoncompliance. The FAA did sobypointing outthat the City had no authority to promulgate the Ordinance and that in any event, aban on Category C and D aircraft operations was not supported by the City's safety concerns. Having established noncompliance, the burden shifted to the City to demonstrate that the Ordinance was reasonable within its authority to issue and was reasonable in light ofthe City's expressed concerns. The City has every opportunity toprovide the evidence on which itbased its safety and public needs determination. Even ifthe City had shown that ithad the authority to ban categories ofaircraft at SMa, and itdid not since such authority is federally preempted on its face as amatter oflaw, it still had not presented evidence showing that the Ordinance isreasonable and necessitated by safety. Thus, the City fails to meet itsburden ofproof. 3. Due Process The City argues that itwas denied due process because the FAA has prejudged the case asreflected by the Associate Administrator ofAirports D. Kirk Shaffer's remarks onthe matter, and because the Order to Show Cause added the City's Federal Surplus Property Act obligations as an issue to the investigation although not included inthe 2002 NOI and only provided the City 10days to respond. (FAA Exhibit 1,Item 4, p. 16.) Prejudice on the part ofadecision maker must be evident from the record and cannot be based on surmise or report. (Cheney v

# us. District Court, 541 U.S. 913 (2004).) (Where adecision maker has taken apublic position on apolicy issue related to the dispute, he will not be disqualified absent a showing that they cannot objectively judge the particular controversy.) (Hortonville Joint School District vHortonville Educ. Association, 426 US 482, 493 (1976). (That an official has aphilosophy intune with their appointed function is an asset not adefect.). The City has not presented any evidence of bias, but merely provided allegations and surmise, in other words, speculation. However, in order to avoid even the appearance ofalleged bias, the Associate Administrator, who under 14CFR §§16.33 or 16.241(c) is authorized to make the final agency decision in aPart 16case, has removed himself asthe final decision maker inthis case and delegated his authority as the final decision maker to an FAA executive outside the Office ofAirports who isnot subordinate to him. (FAA Exhibit 1, Item 117.)

serviceable condition, and in accordance with the minimum standards as may berequired orprescribed by applicable federal, state, and local agencies for maintenance and operation. The airport sponsor may impose conditions on users of the airport to ensure its safe and efficient operation. Such conditions must be fair, equal, and not unjustly discriminatory. They must be relevant to the proposed activity, reasonably attainable, and uniformly applied. [See FAA Order 5190.6A, Sec. 3-12] The FAA ordinarily makes an official determination regarding the relevance and/or reasonableness ofthe minimum standards only when the effect ofa standard denies access to apublic-use airport. FAA's determination is generally limited to ajudgment as to whether failure to meet the qualifications ofthe standard is areasonable basis for such denial, unjustly discriminatory, orwhether the standard results in an attempt to create an exclusive right. [See Order, Sec. 3-17(b).]

-27-The City's contention that the FAA as awhole should be disqualified is ludicrous, especially in light ofthe City's Federal obligations. The FAA has and will continue to afford the City afair hearing. The very act by the Associate Administrator ofremoval is consistent with the process presented bythe City in Cinderella v. FTC, 425 F2d 583 (1970). The Associate Administrator's actions are consistent with acontinued effort 'bythe FAA to protect the City's due process rights. The review, preparation and issuance ofthis determination reflects afair and balanced approach, in determining whether the City has conformed with its Federal obligations. The FAA has conducted its investigation consistent with its ordinary Part 16process. The City was afforded due process protections and will continue to be afforded the same should itchoose to request a hearing and orto appeal this determination seeking afinal agency decision. While the City asserts that the FAA isresult driven and not supportive ofthe City's supposed safety efforts, the FAA throughout this process has carefully considered the implications ofboth safety as well as the utility ofthe Airport. The FAA supports and encourages safety measures that do not unreasonably curtail the very use ofthe Airport. InRombough 

### v. FAA, 594 F2d 893, 900 (1979), the Court found that the FAA properly determined that itwas not necessary to disqualify the Federal Air Surgeon from ahearing.i" Citing Cinderella, the court acknowledged that courts have forced members ofregulatory agencies to step down when they have exhibited prejudgment orbias, but more importantly recognized "it isnot improper for members ofregulatory commissions to form views about law and policy onthe basis oftheir prior adjudications ofsimilar issues which may influence them in deciding later cases." The Associate Administrator has had significant ~" experience in airport matters which would lead him to form views and policy regarding compliance with' Federal obligations. Nonetheless, he has elected to remove himself as the final decision-maker inthis,matter. The Order to Show Cause properly added an issue to be investigated concerning the City's SPA obligations and provided the City with an adequate opportunity to respond. The City was in fact able to respond concerning that issue and has not shown that its ability to do someaningfully was prejudiced in any way. Pursuant to 14CFR § 16.102 the FAA may issue aNotice ofInvestigation setting forth the agency's concerns and the reasons therefore. The Order to Show Cause did that with respect to the SPA obligations and then requested aresponse within 10days instead ofthe usual 30 days, because the Ordinance itself was scheduled to take effect in 30 days. Ten days isthe normal time period forresponding to amotion under 14CFR Part 16. Nor was there anything prejudicial orunfair inthe FAA's decision to expedite the Part 16proceeding. As stated inthe Order Denying Extension ofTime (FAA Exhibit 1,Item 10), and elsewhere inthis determination, Part 16permits expedition ofthe process where the Director finds that circumstances require it. See 14CFR § 16.11(b). The Order to Show Cause correctly found that the City's adoption ofthe Ordinance, effective within 30 days on April 24, 2008, warranted expedited processing. Furthermore, the City could have had the normal 30 day period to respond under the Notice ofInvestigation procedure ofsubsection 16.103 had it agreed to suspend enforcement ofthe Ordinance. (FAA Exhibit 1,Item 10.) Itwas the City that chose to expedite initiation ofthe ban where no emergency had been demonstrated, and after over 5years of

56The question at issue inthis case pertained to the "Age 60 Rule." The petitioner alleged the proceeding was tainted by the participation ofthe Federal Air Surgeon. The petitioner asserted that the Air Surgeon should have been disqualified because ofhis bias and prejudgments on the question ofexemptions from the Age 60 Rule. The Court found that the Federal Air Surgeon was not involved inthe consideration ofthe petition, but that he had warned petitioners and others of the agency's position regarding such petitions. The Court concluded that the petitioner had not shown that the Federal Air Surgeon did not form his views inthe course ofperforming his proper functions in connection with earlier controversies relating to the Age 60 Rule.



### -28-negotiations. Itcannot complain that ithas been denied due process when its actions banning aeronautical users from aFederally obligated airport resulted inthe response time ofwhich itcomplains. As stated inthe Order on Motion forExtension ofTime: "The shortened time period forthe City's response is aproblem ofthe City's own making. The City chose to adopt the Ordinance and make iteffective in 30 days, on April 24th• The City's request for a20 day extension, ifgranted would make its response due one day after the ban goes into effect, thus ensuring that approximately 9000 Category C and D aircraft operations are banned from SMO. The Part 16investigation has been pending subject to good faith efforts to resolve the matter between the City and the FAA. The City filed aresponse in2002 to the Notice ofInvestigation and could have supplemented the record atanytime during the past five years. Under the circumstances, 10days, the normal time period forresponding to amotion under Part 16,isreasonable due to the April 24th effective date imposed by the City's adoption ofthe Ordinance. The City has waited five years to adopt the Ordinance. Itcould have waited until the end ofthe administrative process to make iteffective. Instead itchose to make iteffective within 30 days even though there isno emergency warranting such precipitous action, and by April 14,2008 had begun notifying users and that itintends to implement the Ordinance on April 24, 2008." (FAA Exhibit 1,Item 10.) Further, contrary to the City's argument, the Part 16NOI process has no settime limit for issuance ofa director's determination. The reference in 14CFR § 16.31(a) to a 120day deadline for issuing adirector's determination, itself refers to "120 days ofthe date the lastpleading specified in 16.23 was due." Section 16.23 only applies to Part 16proceedings initiated bythe complaint ofathird-party and not toproceedings like this one initiated by the FAA pursuant to aNotice ofInvestigation. This makes sense since the NOI procedure permits the FAA to invite good faith efforts by the airport sponsor to resolve the matter informally. (See 14CFR §§ 16.103, 16.105.) The City accepted the FAA's invitation inthe 2002 NOI to continue discussions regarding the ACP. The City Council expressly directed City officials to negotiate with the FAA after the Council decided not to adopt the proposed ACP in 2002. (FAA Exhibit 1,Item 7LL.) Certainly the City never complained that itwas being denied due process by not receiving adetermination during the 5

. years that the FAA and the City were in discussions. Although the City responded to the 2002 NOI allegation that the 2002 proposed Ordinance was preempted (FAA Exhibit 1,Item 2.), itis only when the preemption issue was restated inthe Order to Show Cause, that the City argues that the preemption claim is sovague asto deny the City due process. The record shows that the FAA NOI and Order to Show Cause both advised that the City's regulation ofsafety with respect to Category C and D aircraft operations could bepreempted bythe Federal Government's sovereignty over airspace. (FAA Exhibit 1,Items 1 and 3.) The documents did not need to further specify atheory of preemption. The City's claim that itwas denied due process because the Order to Show Cause stated that the issues "include but are not limited to" the issues listed for investigation, is also without merit. The phrase "includes but is not limited to" reflects the fact that additional issues may arise during the investigation other than those listed inthe NOI or Order to Show Cause. Regardless, no additional issues have been included and all due process rights are afforded including appropriate rights to ahearing and an appeal. There is also no violation ofthe Tenth Amendment, as alleged by the City in its Response to the Order to Show Cause. After arecitation ofgeneral Tenth Amendment case law, the City alleges that the FAA is in violation ofthat Amendment because itintends to coerce the City into using its municipal resources and into exercising its proprietary authority to maximize the convenience ofaircraft operators atthe expense ofpublic

-29-safety. But as discussed inthis determination, itisinfactthe City that has exceeded its limited airport proprietary rights and legislated in an area preempted by Federal law. The City relies onNY v. US, 505 US 144 (1992), in support ofits contention that FAA's action to invalidate the Ordinance would violate the

# io" Amendment. However, inthe City's attempts to categorize FAA's actions as coercive within its limited reading ofNY v. US, ittotally ignores afundamental aspect ofthe case. As the Supreme Court noted, citing South Dakota v.Dole, 483 U.S. 203, 210 (1987), "Congress may attach conditions on the receipt ofFederal funds." NY, supra at 145. The Tenth Amendment does not restrict the range ofconditions Congress can impose onthe receipt ofFederal funds when the conditions bear some relationship to the purpose ofthe Federal spending. Id.57 The City willingly accepted Federal surplus property and grants, each with designated terms and conditions that directly relate to the Congressional purpose ofairport development and aeronautical use. The City's Tenth Amendment argument ignores the City'S Federal contractual obligations and isunpersuasive. The City argues that this FAA action conflicts with the policy in49 U.S.C. §40101 (d) that the FAA should promote the public interest by assigning the goals ofmaintaining and enhancing safety and security as the

. highest priorities in air commerce, and by regulating air commerce in away that best promotes safety and fulfils national defense requirements. There isno such conflict here. Here, the FAA has followed and implemented all ofthe policies in §40101, which require the balancing of many different public interests. The City conveniently omits FAA's statutory mandates to enforce the grant assurances and SPA covenants atissue inthis case. Aviation safety is an area wholly regulated by the Federal Government and not state and local governments, asthis determination confirms.i" Thus, the FAA isthe agency with the authority to implement 49 U.S.C. §40101 through its regulations and guidance, and as its interpretation ofthe statute isreasonable, it should receive deference. Chevron USA, Inc. v.National Resources Defense Council, 467 U.S 837 (1984). For the reasons discussed above, the Director finds that the City's objections based on Jurisdiction, Burden of Proof and Due Process in its response to the Order to Show Cause lack merit. The remaining objections inthe City'S response to the Order to Show Cause are addressed below. 59 Finally, the City'S 2008 Ordinance also presents issues ofcompliance with the ANCA, 49 U.S.C. §47524. Section 47524(c) provides that an airport noise oraccess restriction that affects Stage 3 aircraft, may become

57The Court did acknowledge that "decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point atwhich 'pressure turns to compulsion.'" However, that is clearly not the case here and the City makes no showing or argument that itis. 58The declarations attached to the City's response to the Order to Show Cause ofthe SMO Director, a former NTSB Chairman, are not adequately supported by documented evidence, and are rebutted by evidence inthis record, including FAA Exhibit 1,Items 47 and 85 attached hereto. 59In its response to the Order to Show Cause the City also contends that the FAA failed to take action onthe City's September 8, 2004 proposal to amend its airport layout plan (ALP). Specifically, the City argues that the FAA "has taken no action on the proposed ALP and other materials submitted to them in September 2004." (FAA Exhibit 1,Item 4, p. 45.) The proposed ALP included displaced thresholds for both runway 3 and runway 21 in addition to use ofdeclared distances, resulting in a loss of 600 feet in available runway length. Under 49 U.S.C. §47107(a)(16) and grant Assurance 29, Airport Layout Plan, the City is obligated to maintain an updated ALP and to seek approval from the FAA to make orpermit any changes or alterations inthe Airport or any ofits facilities. The FAA reviews and approves proposed changes to the ALP if they would not adversely affect the safety, efficiency, and utility ofthe airport. The FAA did not act upon the changes proposed by the City in September 2004, (FAA Exhibit 1, Item 7V.), because the FAA determined itwould adversely affect the utility ofthe Airport.

-30-effective only ifagreed to bythe airport proprietor and all aircraft operators orhas been submitted and approved by the Secretary ofTransportation. Restrictions covered bythis paragraph include any restriction on Stage 3 aircraft. The ANCA statute also provides inpart that unless the Secretary is satisfied that an airport is not imposing an airport or access restriction not in compliance with this subchapter, the airport may not receive grants or impose Passenger Facility Charges (PFCs). 49 U.S.C. §47526. While the City's 2008 Ordinance presents issues ofcompliance with ANCA, ANCA has its own separate enforcement procedure and process.i" B. Whether the implementation ofthe adopted Ordinance prohibiting Category C and

# n aircraft operations by the City ofSanta Monica is consistent with the Federal obligation to make its airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds, and classes ofaeronautical activities. As the owner ofan airport developed with Federal grant assistance, SMO isrequired to operate the Airport for the use and benefit ofthe public and to make itavailable to alltypes, kinds, and classes'" ofaeronautical activity on reasonable terms, and without unjust discrimination. Grant Assurance 22(a), Economic Nondiscrimination, implementing the provisions of49 U.S.C. §47107(a)(l) through (6). The City's March 25,2008 Ordinance declares that the Airport inits current state isunsafe for operations ofC and D category aircraft. The progenitor ofthe City's 2008 Ordinance was the Aircraft Conformance Program (ACP) that the City proposed in 200262 Both measures ban C and D Category aircraft as apurported safety measure. (FAA Exhibit 1,Item 2, p. 11.) The 2002 ACP isbased onthe City's Design Standards Study (Studyj.I" The Study claims to show the ACP would keep the Airport safe by merely implementing existing "Federal safety guidelines." (FAA Exhibit 1,Item 2,p. 11.) There are no significant differences between'the ACP and the 2008 Ordinance. The City contends "because the Federal standards and guidelines are themselves reasonable, their application to the indisputable factual realities ofthe Airport's surroundings, topography and layout cannot yield anunreasonable result.64" Thus "the proposal (ACP) is areasonable means ofensuring safety." "Any resulting limitations upon access should therefore be viewed asthe

60The C and D category aircraft affected by the City's ban are Stage 3 aircraft. The applicability ofANCA to the circumstances ofthe SMO ban will not be further addressed inthese proceedings. 61FAA Order 5190.6A, Appendix 5. "Class" of aircraft is defined in 14CFR Section 1.1: Class: (1) As used with respect to the certification, ratings, privileges, and limitations ofairmen, means aclassification of aircraft within acategory having similar operating characteristics. Examples include single engine; multiengine; land; water; gyroplane; helicopter; airship; and free balloon; and (2) As used with respect to the certification ofaircraft, means abroad grouping of aircraft having similar characteristics ofpropulsion, flight, or landing. Examples include: airplane; rotorcraft; glider; balloon; landplane; and seaplane. 62Asexplained previously, this Part 16investigation was initially triggered by the City's proposed Aircraft Conformance Program (ACP) in 2002, which forms the basis forthe adopted 2008 Ordinance. (See, e.g. FAA Exhibit 1,Item 4, Trimborn, Declaration.) 63Coffman and Associates, an independent airport consulting firm, prepared the City's Design Standards Study in2002. (FAA Exhibit 1,Items 2, p. 10, and Exhibit A, 4, p. 4, and 78.) ., 64"(T)he Airport isbordered, atboth runway ends, by residential neighborhoods. There are no runway safety areas on the Airport atthe runways ends. There are no buffer zones between the Airport and its neighbors' homes. Instead, the homes to the Airport's east and west are within 250 feet ofthe runway ends." (FAA Exhibit 1,Item 2, p. 8-9.) The Airport sits on aplateau. Immediately to the west ofthe Airport boundary, the plateau drops offabout 10-30 feet. Directly below is a two-lane arterial road, which feeds into the Santa Monica Freeway. Single family residences line the opposite side ofthat street which marks the eastern edge ofadense neighborhood. The end ofthe runway is above the roofs ofthose homes. This topography combined with the airport's western boundary currently limits any opportunity to create abuffer zone to address safety concerns. (FAA Exhibit 1,Item 2, p. 9.)

-31

-foreseeable and inevitable result ofapplying reasonable and salutary Federal standards." 65 (FAA Exhibit 1, Item 2, p. 11.) With its adoption on March 25,2008, effective on April 25, 2008, the City's Ordinance prohibits C and D Category aircraft from landing and taking offat SMa. The Ordinance does not prohibit the landing and takeoffofA and B Category aircraft. The plain language bans C and D Category aircraft from the Airport and thus makes the Airport unavailable to these categories ofaircraft. Inorder to be compliant with the aviation statutes and grant assurances, this ban must bereasonable and not unjustly discriminatory. (See Grant Assurance 22(h).) The City's ban ofC and D Category aircraft from SMO relies on a safetyjustification based on City's studies and general conclusions. Inthis case, the first question to be answered is whether the City's restriction is reasonable. The Cityjustifies the Ordinance onthe following grounds: 1. The City alleges that its Airport Reference Code designation ofB-IIprevents itfrom serving C and D category aircraft; 2. The City alleges that the FAA Advisory Circulars mandate no deviation from FAA Order 5200.8 (Runway Safety Area Program) and the standards defined inFAA Advisory Circular 150/5300-13 (Airport Design); 3. The City alleges that the Airport was designed to accommodate afleet ofgeneral aviation aircraft with slow approach speeds; and 4. The City alleges that FAA is only concerned with operational impact at SMO and not safety. (FAA Exhibit 1,Item 8.) 1. The City alleges that its Airport Reference Code designation ofB-II prevents itfrom serving C and D category aircraft. (See FAA Exhibit 1,Item 8.) Airport Reference Code (ARC)

The City argues that as aB-II Airport, itcannot safely accommodate Category C and D aircraft. The B-II designation refers to SMO's ARC. The ARC is anFAA coding system which relates airport design criteria to the operational and physical characteristics ofthe aircraft types for which the airport was designed. (FAA Advisory Circular No. 150/5300-13, Change 12,Airport Design, para. 4 (September 29, 1989).) The ARC code has two components, both relating to the "critical aircraft" for the airport, and is used in planning, design, and to support decisions forFederal funding ofairport capital development. FAA Order 5100.38C, Airport Improvement Program Handbook, Paragraph 428, FAA Approval Actions, subparagraph (a), states "[M]ore than one critical aircraft may control the design ofany specific airport's different facility features, such asrunway length, strength ofpaved areas orlateral separations in airfield layout. A critical
65Generally, the FAA and many airport sponsors take action to improve airports and increase runway length to 5,000 feet, not erode away their utility. In example, atFlying Cloud Airport (FCM), areliever airport inthe Minneapolis-St. Paul metropolitan area, the runway extension increased the pavement from 3,900 to 5,000 feet at acost of over $15 millions is considered aneeded asset to accommodate growing jet operation levels from 5,900 in2007 up to 24,000 by 2010. Therefore, in function, FCM is not unlike SMa. Another good example is Ohio State University (OSU) with its longest runway 09R/27L at 5,004 feet and a large number ofjet operations, over 11,000 operations in2005.

-32-design aircraft isthat airplane using (or ishighly likely to use) the airport on aregular basis. Aregular basis is atleast 500 annual itinerant operations." Critical aircraft isthe type ofaircraft, which conducts 500 ormore itinerant operations per year atthe airport. (FAA Exhibit 1,Item 83, p. 38.) The first component ofthe ARC, depicted by the letters A-E represents the aircraft approach category, and relates to aircraft approach speed, specifically, 1.3times its stall speed inlanding configuration atmaximum certificated landing weight. For example, aCategory A aircraft has an approach speed ofless than 91 knots while aCategory C aircraft has an approach speed of 121 knots ormore, but less than 141 knots. The second component ofthe ARC, depicted by Roman numerals I-VI, isthe airplane design group, and relates to airplane wingspan and tail height. For example, aGroup Iaircraft has awingspan ofup tobut not including 49 feet with atail height ofup to but not including 20 feet, while aGroup II aircraft has awingspan of49 feet up to but not including 79 feet with atail height ofup to but not including 30 feet. (Id., p. 1.) The ARC is areference code foruse in airport planning and design, not a safety standard. "These standards and recommendations

...do not limit orregulate operations ofaircraft.,,66 (AC No. 150/5300-13, Change 12, Airport Design, para. 1 (September 29, 1989).) On the contrary, the use ofa 500-operation per year threshold to trigger design to acertain standard inherently assumes that fewer operations by aircraft in ahigher category could occur, safely, without the corresponding change to airport standards. That isin factthe case throughout the U.S. Ifoperations by aircraft inthe higher category increase above 500 ayear over time, that does not trigger arequirement for anupgrade in airport standards, and isnot abasis for limiting those operations. Although the runway itself was designed for much larger aircraft, because the airport was historically used for aircraft manufacturing, SMa generally meets standards to accommodate general aviation aircraft consistent with Group IIDesign Standards inAC 150/5300.13B. Aircraft inthe C and D categories can use an airport meeting Group IIdesign standards ifthe runway is sufficiently long and wide, and the pavement will support the aircraft weight. (See generally AC 150/5325-4, Runway Length Requirements for Airport Design.) The C and D operations at SMO meet all of those requirements, and the fact that the Airport generally meets Group II standards is irrelevant to those operations. AC 150/5200-13 is amanual for airport design, and neither this AC nor any other FAA guidance provides authority forthe City to ban aircraft types simply because 500 operations per year ofsuch aircraft trigger designing ofairfield construction projects using ahigher design category. Airport design standards do not determine whether agiven airplane can safely land ortake offat agiven airport. (FAA Exhibit 1,Items 47 & 85.) Thus, the B-II design standards do not determine whether itis safe for aircraft to land. The FAA does provide a standard forpilots to determine ifaparticular operation is safe: reference to the FAA-approved aircraft certification manuals for each aircraft, which define minimum requirements for safe operation under various conditions, e.g. wind conditions and available runway length. (See 14CFR Part 25,Airworthiness Standards: Transport Category Airplanes.) Often the manual will indicate itis safe for certain aircraft ofahigher design category than the airport to utilize the airport. Itis incorrect to assume that the aircraft operating at SMO that are larger or faster than B-II aircraft are not compatible with the Airport's Airport Reference Code. (FAA Exhibit 1,Items 47 & 85.) The FAA finds that SMO's Airport Reference Code Design Category Designation ofB-II is acode reference to adesign standard. The ARC has no bearing on whether itis safe to land aparticular aircraft at an airport. Use ofthe ARC to support the ban ofC and D Category aircraft operations isunreasonable and unjustly

66 "The standards and recommendations inthis publication complement, but are not intended to take precedence over aircraft operating rules and procedures." (AC 150/5300-4B, Chg. 6, UtilityAirports-Air Access toNational Transportation, superseded by AC 150/5300-13.)

-33-discriminates against C and D Category aircraft by denying those aircraft access to aFederally obligated airport that is capable ofhandling such aircraft. 2. The City alleges that the FAA Advisory Circulars mandate no deviation from FAA Order 5200.8 (Runway Safety Area Program) and the standards defined inFAA Advisory Circular 150/5300-13 (Airport Design). (FAA Exhibit 1,Item 8.) The City argues that itmust ban C and D Category aircraft because the Airport's runway lacks the RSAs that the FAA has determined are "binding. ,,67 (FAA Exhibit 1,Item 2, p. 17.) The City avers that "the vitally important topic ofaverting calamity inthe event ofsuch overruns is addressed inFAA Order 5200.8 Runway Safety Area Program" and explains that the Runway Safety Area (RSA) program "is an integral part ofa runway safety environment." (FAA Exhibit 1,Item 2,p. 12.) The City claims that the FAA's RSA design standards must be applied to SMa. (FAA Exhibit 1,Item 2.) The Cityjustifies the C and D ban inpart because "the City applied the criteria ofFAA Order 5200.8 to analyze the alternatives available to the City." (FAA Exhibit 1,Item 2, p. 12-13.) The City also relies on written testimony by James E. Hall (Mr. Hall), former Chairman ofthe NTSB, who left the NTSB more than seven years ago in2001. (FAA Exhibit 1,Item 4, Hall Declaration, p. 55.) Inmaking his declaration, Mr. Hall states that he examined an aerial photograph of SMa. He opines that "in the absence ofmeeting the Federal standards for RSAs at Santa Monica Airport, Category C and D aircraft should not bepermitted to operate due to the serious risk ofinjuries and deaths to occupants ofthe aircraft and members ofthe community resulting from aircraft operating onthe margins ofsafety with no provision forthe possibility ofmechanical failure orpilot error." (FAA Exhibit 1,Item 4, Hall Declaration, p. 55.) The RSA is adefined surface surrounding the runway and prepared or suitable forreducing the risk of damage to airplanes inthe event ofanundershoot, overshoot, orexcursion from the runway. (AC 150/5300- 13,Airport Design.) Runway Safety Area RSA dimensions are based on the ARC. Id. The RSA is intended to provide an additional measure ofsafety inthe event ofan aircraft's excursion from the runway. Itisnot a guarantee that an aircraft will never getbeyond the safety area.68 As to the City's argument that itis enforcing the FAA's RSA standard, the standard is clearly a safety enhancement for airports, which is applied to new runway projects atairports to the degree practicable.f" The concept of "practicable" includes the need to align technical difficulty, cost and cost-benefit, ownership or 67TheCity admits that airports are not strictly required to conform to the RSA standard as itquotes FAA's AC 150/5300-13, "RSA standards cannot be modified or waived like other airport design standards

...acontinuous evaluation ofallpracticable alternatives for improving each substandard RSA isrequired until itmeets all standards

... ". (FAA Exhibit 1,Item 2, p. 17.) The use of "practicable" clearly indicates FAA's realistic approach to updating safety areas. The City alleges that neither end ofits runway has aRunway Safety Area (buffer zones) to protect airport neighbors and users against the risk of accidents occurring during takeoffs and landings. The City argues that inaddition to the residential neighborhoods bordering the Airport to the east and west, agasoline station is situated opposite the eastern end ofthe runway and heavily utilized public facilities are located inthe residential neighborhood to the west, including achild care facility. However, the gas station the City refers to is located outside the RSA and the RPZ, and there are no daycare centers located within the RSA ofeither runway. The City also argues that the natural terrain (drop offs) exacerbates the risks inherent inthe proximity ofhomes to the runway ends, and itlimits the options for enhancing safety. (FAA Exhibit 1,Item 4, p. 3.) These factors are considered in determining practicable alternatives for RSA improvements. 68RSA's are designed for the protection offlight crews and aircraft. Runway Safety Zones (RPZs) are designed forthe protection ofpersons and property on the ground, rather than crew and passengers ofaircraft. (FAA's AC 150/5300-13, Airport Design, para 212.) 69The RSA standard applies to certificated airports and Federally obligated airports, to the extentpracticable. FAA Order 5200.8, Runway Safety Area Program.

-34-control ofland, and effect on airport operations. (FAA Exhibit 1,Item 88, p. 5.) The RSA design standard is not an operating requirement orcondition under any FAA aircraft operating rules. RSA improvements to meet FAA design standards must be considered when airports like SMO seek federal funding for runway projects and then only to the extent practicable. FAA's aircraft operating rules do not require a standard RSA, and there is no basis inFAA regulations forprohibition ofany operation based on the status ofthe RSA. While an RSA enhances safety, itdoes not define what is safe atany airport. The safety ofan aircraft's operation is afunction ofthe requirements ofthe FAA-approved aircraft certification manual and the underlying regulatory frame work." (FAA Exhibit 1,Items 47 & 85.) Mr. Hall also acknowledges that Runway Safety Area's are "safety enhancements" and designed to provide protection when something goes wrong. (FAA Exhibit 1,Item 4, Hall Declaration, p. 55-56.) He recognizes that the FAA's standards or specifications "in no way guarantees that an actual operation on such arunway by such an aircraft will be accomplished safely." (Id., p. 55-56.) Mr. Hall states "For aviation safety, itisvery important that aircraft only operate atairports that meet the design criteria forthose aircraft." (Id., p. 55-56.) As discussed above this statement isnot accurate, ifthe phrase "airports that meet the design criteria forthose aircraft" isintended to refer to an airport's ARC designation. Supra,. Ifthe runway meets the aircraft operating requirements, there is no safety basis for prohibition ofthat operation. The applicable FAA operational limitations for category C and D aircraft are found inFAA's regulations and inAirplane Flight Manual performance data. (See also 14CFR Part 91 and Part 135.) The FAA recognizes that itisnot practicable for all airports to meet the RSA standards inthe Advisory Circular, even atcommercial airports that must comply with the RSA requirements in 14CFR Part 139by 2015. (See also FAA Orders 5200.8, Runway Safety Area Program and 5200.9, Financial Feasibility and Equivalency ofRunway Safety Area Improvements andEngineered material Arresting Systems. )Most ofthe airports that cannot meet the standard are older, urban airports. Busy commercial airports such as La Guardia, Washington- Ronald Reagan National Airport, and SanDiego allhave non-standard RSAs. To provide standard RSAs, each ofthese airports would need to shorten its runways. Shortening the runways restricts use and is not necessary to assure safety. The FAA requires sponsors offederally obligated non-Part 139 airports such as SMa, to consider improving RSAs to meet airport design standards, to the extent practicable, when they seek federal funding forrunway projects. Moreover, the Order states its object as to the extent practicable. (See FAA Order 5200.8, Runway Safety Area Program.) At many airports itis simply not practicable to obtain the standard RSA, and a smaller RSA is considered acceptable." When an airport isunable to meet the standard, there are alternatives that can be implemented to enhance safety. While RSAs are an integral part ofrunway safety, FAA also recognizes that RSAs are not the sole component to safety forpeople in aircraft oronthe ground. In some cases, EMAS can beused to achieve a

70The rules under which the airplane is operated (i.e., Parts 91, 121, 125, 135) relate the minimum safe takeoff and landing distances determined under Part 25 to the specific operation and airport for each takeoff. The combination ofthe airplane certification rules and the operating rules provide the requirements and parameters under which takeoff and landing operations can be safely conducted. (FAA Exhibit 1,Items 47 & 85, para 7.) 71 Generally, the FAA Regional Airports Division Manager reviews data collected for each RSA on existing runways and makes a determination. Where the determination isthat the proposed RSA is not consistent with the standard, or itis not practicable to improve a safety area to meet current standards, the documentation and determination must address the alternatives that were considered and explain the reasons why one was selected over the others. Ofcourse, anew runway must meet RSA standards. (See FAA Order 5200.8, Runway Safety Area Program, Appendix 2.) The alternative concepts should be evaluated to determine ifitis apracticable alternative. Id. Arunway reduction is aconsideration ifthe current fleet ofaircraft requires less than what is presently available orthe use of other runways will accommodate the faster aircraft. Id. As there is only one runway at SMa, no such option is available at SMa.



### -35-standard RSA, or atleast enhance safety, even where only anonstandard installation ispossible.f (See also FAA Orders 5200.8, Runway Safety Area Program and 5200.9, Financial Feasibility andEquivalency of Runway Safety Area Improvements andEngineered material Arresting Systems and AC 150/5220-22, Engineered Materials Arresting Systems (EMAS)for Aircraft Overruns.) Between 2002 and 2008, SMO officials and the FAA met several times to discuss new proposals and counterproposals as alternatives to the ACP. The City's proposals included displaced thresholds 73 ofseveral hundred feet, declared distances 74 and large engineered material arresting system (EMAS) installations.f which would have a significant impact onthe utility ofthe Airport." On August 28, 2007, the FAA proposed an actual, physical stopping effect on overrunning aircraft, that would directly benefit both persons onthe aircraft and the areas offthe ends ofthe runway. The FAA's proposal comprised two 130 foot EMAS beds with 25 foot lead-in ramps on each end ofthe runway. Such EMAS beds would significantly enhance safety at SMa while maintaining the utility ofthe Airport, and despite the loss of about 140 feet ofrunway aspart ofthe EMAS installations. (FAA Exhibit 1,Item 7E) The City rejectedthe FAA's proposal. (FAA Exhibit 1,Item 4, p. 6-7.) Finally, on March 7, and March 25,2008, the FAA proposed an integrated safety enhancement proposal for SMa, which included modifications to its EMAS proposal, apilot runway safety awareness and education program, and aRunway Protection Zone (RPZ) proposal.f The modified EMAS installation would be a70- knot capable unit to be installed onthe departure end ofrunway 21, onthe West side ofthe Airport." Complementing the EMAS element, the FAA's pilot awareness and education program was designed to prevent accidents, while the RPZ proposal, isthe most effective way to enhance safety by removing residences within the runway protection zones ofthe Airport in avoluntary program. (FAA Exhibit 1,Item 7B.)

72Inthe 1990s, FAA began research seeking to ensure maximum safety at airports where the full RSAs cannot be obtained. Working in concert with the University ofDayton, the Port Authority ofNew York and New Jersey, and the Engineered Arresting Systems Corporation (ESCO) ofLogan Township, NJ, anew technology emerged to provide an added measure of safety. An Engineered Materials Arresting System (EMAS) uses materials ofclosely controlled strength and density placed at the end of arunway to stop or greatly slow an aircraft that overruns the runway. The best material found to date is a lightweight, crushable concrete. When an aircraft rolls into an EMAS arrestor bed, the tires ofthe aircraft sink into the lightweight concrete and the aircraft decelerates when itrolls through the material. (See FAA Exhibit 1,Item 45.) 73 A displaced threshold is athreshold located at apoint onthe runway other than the designated beginning ofthe runway. Displacement ofathreshold reduces the length ofrunway available for landings. The portion ofrunway behind adisplaced threshold is available for takeoffs in either direction and landings from the opposite direction. 74Declared Distances are the distances the airport owner (with FAA concurrence) declares available forthe airplane's takeoff run, takeoff distance, accelerate-stop distance, and landing distance requirements. 75EMAS is abed ofhighly crushable concrete blocks that are installed atthe ends ofthe runway. When an aircraft leaves the runway traveling at speed, the landing gear will crush the EMAS bed and the aircraft will come to aquick and safe stop. 76TheFAA's proposals included EMAS, but sized more appropriately to minimize the impact on airport operations while preserving the Airport's same level ofutility. 77Asexplained above, the FAA defines aRunway Protection Zone (RPZ) as an area offthe end ofa runway that is free of incompatible land uses, including residential areas. (AC 150/5300-13, Airport Design, para. 212.) The RPZ is for protection of persons and property near the end ofthe runway. Thus, aRPZ limits land uses atthe ends ofrunway areas. When necessary, the FAA promotes and funds the acquisition and clearing of structures located inthe RPZ to eliminate non-compatible land uses. Id. Many communities have undertaken voluntary programs to buyout homes and clear other incompatible uses in RPZs, often with financial assistance from the FAA. Since 1982, the FAA has expended about $2 billion ofAirport Improvement Program funds to acquire homes near airports. Some homes were located in RPZs. The record herein reflects that the FAA has offered to fund RPZ land acquisition and relocation for SMO, but the City has rejected all ofthe FAA's recommendations to buyout residences and other incompatible uses inthe RPZ, with orwithout Federal assistance to enhance safety inthe RPZs at SMO. (FAA Exhibit 1,Item 8.) 78Recentanalysis enabled FAA to determine that the greatest safety enhancement would be gained by maximizing stopping capability inthat direction, due to the overwhelming percentage ofoperations on runway 21 versus runway 3.

-36-The City's arguments regarding RSAs are very similar to those regarding parachute drop zones in apriorPart 16Case; Skydive Paris Inc. v. Henry County, Tennessee (Skydive), FAA Docket No. 16-06-06, Director's Determination (January 20, 2006).79 Here, the City argues safety requires the SMa to ban C and D Category aircraft, and that "the program would not ban any person orentity from the Airport so long as they utilized aircraft consistent with Airport design standards

.... A commercial operator who presently utilized Class C and D aircraft could, under the Aircraft Conformance proposal, continue to use the Airport by simply opting for a smaller aircraft that is compatible with the facility's Airport Reference Code." (FAA Exhibit 1,Item 2, p. 15-16.) The airport inSkydive declared that its safety concerns were twofold; conflicts with other aeronautical activities and current drop zone sites were inconsistent with FAA airport design standards in AC 150/5300-13, Airport Design. The FAA found that the airport improperly based itsprohibition on AC 150/5300-13, Airport Design. The FAA concluded after study that drop zones could be safely accommodated atthat airport, that the coexistence ofan Object Free Area (OFA) with an established drop zone was not inherently unsafe, and that each situation must byjudged on its individual merits. FAA also noted that in certain cases itis operationally sound and not inherently unsafe for flight operations to take place inthe OFAs. Skydive at 18. Here, the City similarly claims that FAA airport design standards justify its restriction on access. The FAA has concluded that RSA's are safety enhancements to be applied to the extent practicable, and only required when afederally obligated airport proposes runway improvements. The safety ofan aircraft's operation is a function ofthe requirements ofthe FAA-approved aircraft certification manual and the underlying regulatory frame work. The FAA has specifically determined that C and D Category aircraft can safely land on SMa's 5000 ft. runway. InSkydive, the Director acknowledged the airports' right as aproprietor to designate the location ofon-airport drop zones. However, the Director found that the evidence did not support the airport's assertion that there were no areas onthe airport that could safely accommodate adrop zone. The FAA, as the authority on issues ofaviation safety, determined that the previously established drop zones were safe. Furthermore, 

### sinceFAA found that the airport could safely accommodate adrop zone, the airport was required to accommodate skydiving operations through use ofan on-airport drop zone as long as needed by aeronautical users provided they used itin accordance with applicable standards.

Forthe purpose ofmaking adetermination onreasonableness when aviation safety is atissue, FAA safety determinations pursuant to the Federal Aviation Regulations take precedence over any local ordinances or local actions taken inregard to safety. (See Skydive_andFlorida Aerial Advertising v. St. PetersburgClearwater International Airport, FAA Docket No. 16-03-01, Director's Determination (December 18,2003.) This is especially true forthe purpose ofdetermining compliance with Federal obligations in cases where restrictions are imposed inthe interest ofsafety. The FAA, onbehalf ofthe United States, preempts flight safety, flight management, and the control ofnavigable airspace under 49 U.S.C. §40103. See discussion infra. Based on the above, the Director finds that C and D Category aircraft can safely operate at SMO, which has a designated airport reference code ofB-II, based on the limitations ofthe applicable AFMs and regulations. Such operations occur frequently, on arepetitively, daily basis on many runways across the country

- both at

79Theairport essentially withdrew complainant's permission to use the airport's skydive drop zones which resulted in aban to: skydivers' use ofthe airport. The airport inSkydive suggested that the skydivers couldjust land at other airports. The results are similar here inthat SMO's also asserts that the outcome is not aban on use because commercial operators couldjust opt for smaller aircraft compatible with the ARC oruse other airports.

-37-commercial and GA airports. Aircraft-specific runway length requirements are afunction ofaircraft physical characteristics atthe time offlight, in conjunction with weather and runway conditions, plus many other variables. (FAA Exhibit 1,Items 47 & 85.) The RSA isnot afactor in computing necessary runway length for aircraft and provides no basis to restrict access to C and D aircraft to SMO's 5,000-foot runway. (FAA Exhibit 1,Items 47 & 85.) The City has viable alternatives available to enhance safety and runway safety areas without degradation ofthe runway at SMO. Inthe past, FAA has addressed matters ofaviation safety inPart 16cases. See, e.g., Skydive and Glynn Johnson d/b/a Zoo City Skydivers v. Yazoo Counraand Yazoo County Port Commission, FAA Docket 16-04- 06, Director's Determination (February 9, 2006). 0 When making 14CFR Part 16findings regarding matters ofaviation safety, the Director may rely on other offices within the FAA fortheir safety expertise and experience. (See Skydive) Inthis case, the Director relies on the expertise ofthe Aircraft Certification and Flight Standards divisions ofthe FAA. (FAA Exhibit 1, Items 47 & 85.) Itis incorrect to categorically assume that operations ofCategory C and D airplanes operating into and out of SMO are less safe than operations ofCategory A and B airplanes. Airport design standards do not determine whether agiven airplane can safely land ortake offatagiven airport; this isthe function ofthe airplane certification and operating rules. The airplane certification and operating rules take into account the airplane design features and characteristics (for example, airplane weight, configuration, engine thrust, stopping capability, speeds, and procedures) and the operating environment (for example, airport elevation, runway surface condition (dry orwet), runway length and slope, and atmospheric conditions such as wind and temperature) to determine the conditions under which takeoff and landing operations can be conducted. Airplane approach categories only categorize airplanes interms oftheir approach speed atthe 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 at aparticular airport. (FAA Exhibit 1,Items 47 & 85.) There can be a significant performance overlap intake offand landing capability between Category B, C, and D aircraft. The approach category is determined by the stall speed atthe maximum certificated weight. Actual approach speeds vary with the weight ofthe aircraft, and increase as weight increases. At lighter weights, the landing approach speed will be lower. Depending onthe aerodynamics and weight ofthe aircraft, the landing approach speed ofaCategory C orD aircraft can be less than that ofaCategory B aircraft operating at aheavier weight. The City, inits response (FAA Exhibit 1,Item 24, p. 25), appears confused by this fact and states that aircraft speeds are defined by category. Ofcourse, they are not, and each aircraft will operate at arange ofapproach speeds depending on the above factors. This is significant, because the City has banned two categories ofaircraft types based solely (itclaims) on approach speed atthe aircraft's maximum certificated landing weight, which isnot the operating condition for C and D Category landing operations at SMO. Aircraft do not routinely operate attheir maximum certificated landing weight as this is a structural design limitation forthe aircraft, not aroutine operating condition.t' Moreover, ifaCategory C 8oConversely, the FAA has also noted that inthe interest ofimmediacy, some safetyjudgments are best handled outside ofthe Part 16process. (See Richard Steere v. County ofSan Diego, FAA Docket No. 16-99-15, Final Agency Decision (December 7, 2004). (Complainant did not cite any specific safety concerns in either the complaint or appeal. FAA's office ofcompliance forwarded Complainant's general concerns to the regional FAA safety personnel.) 81 By example, automobile manufacturers design their vehicles with an ever increasing number of safety design features. Ifavehicle isdesigned to safely operate under test track conditions at 90 miles per hour, it should not be banned from public roadways because the posted speed limit is 55 miles per hour. The driver can safely operate the vehicle atthe 55 mile per hour posted speed. So too with aircraft.

-38-aircraft is operating atlightweight, at an approach speed within the Category B range, then there isno basis for safety concerns even under the City's theory. Also, because the stopping performance ofagiven Category C orD aircraft may be better than that

# o['a given Category B aircraft, the Category C orD aircraft may be able to land in a shorter distance than the Category B aircraft even ifthe landing approach speed ishigher. The landing distance depends not only on the landing approach speed, but also onthe capability ofthe aircraft's braking system (including anti-skid system efficiency, ifthe aircraft has an anti-skid system), spoilers and speedbrakes (ifthe aircraft has them), time delays associated inusing any deceleration means, andthe airplane's lift and drag characteristics on the ground inthe landing configuration. An airplane's approach category has an even lesser relationship to its takeoff performance capability, since the takeoff configuration (and hence takeoff speeds) is likely to be different than the landing configuration, and the airplane's thrust/weight ratio, which isnot reflected inthe airplane's approach category, is avery important factor fortakeoff performance capability. (FAA Exhibit 1, Items 47 & 85.) In addition to the above, there may be other differences between different airplanes, independent ofthe approach category, that provide additional safety benefits over and above adherence to the applicable takeoff and landing performance requirements. These differences may include airplane design features, operating procedures, and pilot training. Examples ofairplane design features that provide enhanced takeoff and/or landing safety include items such as autothrottles, autobrake systems, automatic spoilers, enhanced flight deck displays, and thrust reversers. (FAA Exhibit 1,Items 47 & 85.) As illustrated by the foregoing analysis, itisincorrect to assume that because an airplane is in approach category C orD, itcannot safely operate, orthat such operations categorically carry ahigher risk at SMO. (FAA Exhibit 1,Items 47 & 85.) Moreover, federally funded airports like SMO are not required to meet the RSA standard setforth inAC 150/5300-13, Airport Design, where, as here, there isno proposed runway improvement. Even ifthere were such aproject and request, RSA standards only have to be met to the extent practicable. (FAA Order 5200.8, Runway Safety Area.) Therefore, the Director finds that the City's nonstandard RSA and RPZ will safely support the operations ofC and D Category aircraft at SMO. Thus, the City's reliance upon FAA Order 5200.8 to support the ban ofC and D Category aircraft operations is unreasonable and unjustly discriminates against C and D Category aircraft by denying those aircraft access to aFederally obligated airport. 3. The City alleges that the Airport was designed to accommodate afleet ofgeneral aviation aircraft with slow approach speeds. (FAA Exhibit 1,Items 47 & 85.) The City alleges itisreasonable to ban C and D Category aircraft from SMO because the Airport was designed to accommodate afleet ofgeneral aviation aircraft with slow approach speeds.82 (FAA Exhibit 1, Items 47 & 85.) Notably, in its March 2008 Reply to Order to Show Cause, the City takes exception to references to "large or larger aircraft" inthe Order to Show Cause. (FAA Exhibit 1,Item 4, p. 5.) The Ordinance passed by the City Council bans C and D Category aircraft. The C and D Category aircraft excluded bythe City, are generally faster on approach than Category A and B aircraft permitted to continue to operate at SMO, irrespective ofsize. The FAA's A-E designations categorize aircraft solely based on" approach speeds. (FAA AC 150/5300-13, Airport Design, para.2.) Upon reconsideration, the city's point about large aircraft is well taken. Indeed, many B aircraft are larger (i.e. heavier) than many C category types

82Whether larger, faster, or acombination ofthe two attributes, the City has banned C and D Category aircraft from operations at SMO based on its contention that the Airport was not designed to handle these Category ofAircraft.

- 39-(by several thousand pounds.) For example, aB-II 45,000 lb. Falcon 900 far exceeds the weight ofaC-I Lear Jet 35 at 17,000 Ib.83 The City states "[t]he bigger and faster the planes, the larger the RSA needed to ensure safety." (FAA Exhibit 1,Item 2, p. 12.) In its 2008 Reply, the City states that "over the lasttwenty years, traffic atthe Airport has changed; as have attendant safety risks. Inparticular, the number ofaircraft with faster approach speeds has increased." 84 (FAA Exhibit 1,Item 4, p. 4, see also Item 2.) FAA airport design standards doprovide for alarger RSA for C and D aircraft than for some B aircraft. However, this simply has no relevance to the safety ofaparticular operation. First, as explained in our . analysis ofthe previous issue, the ARC categories are based on speeds atmaximum certificated gross weight. C and D aircraft would rarely ifever operate atmaximum certificated gross weight at SMa, because the mission would not require itorbecause the runway length would limit the gross weight. In either case the final approach speed would generally be slower than the maximum used for maximum weight operation. As a result, approach speeds for C and D operations may be slower than for B operations in some cases. In fact, there can be substantial performance overlaps between many B, C and even D Category aircraft operations, notwithstanding how they are categorized under the ARC. As discussed above, the ARC design categories are based on maximum certificated landing weights, notthe routine operating conditions ofthe aircraft within the different categories. This operating performance overlap exists interms ofapproach speed (VRef),take off speed (V1),take offdistance, and landing distance. For example, the approach speed ofaC-I Learjet 35 is (VRef)speed of 115knots at 12,000 lb. This 115knots speed is lower than the Category C designated speed of"121 knots ormore but less than 141 knots" and falls within the Category B speed of"91 knots ormore but less than 121 knots", hence the overlap. Thus, the actual approach speed for this C-Iaircraft ismore akin to an approach speed ofa slower B aircraft. Several B-II types, including several turboprops, have approach speeds that can exceed 115knots. For example, the approach speed ofaKing Air 200 turboprop'" at 11,500 lb. is about 128knots. The Piaggio P180Avanti typically lands atapproach speeds ofabout 115knots." and itisnot uncommon forthe Fairchild 300 turboprop to fly its approach at 135knots.8? Thus, the actual approach speeds ofthese Category B aircraft overlap with the C-1 Learjet 35 described above. Finally, aD-II Gulfstream GIV has an approach speed over 141 knots atits maximum landing weight. (Pilot's Checklist, Gulfstream IV, Basic Issue, June 2005) This aircraft would not operate atthose weights at SMa (GIV operations at SMa are limited to less than 66,000 lb.) The City therefore isprohibiting aircraft from operating at SMa because ofits category under the ARC reference code, not the aircrafts actual operating approach speed when landing at SMa. This aircraft has the capability to reach an approach speed under that which the City would ban. Moreover, higher approach speed does not always mean longer landing and take offdistances. Additional performance related variables, such as higher performance ofaircraft can also result in overlaps where a

### B-II turboprop has atake-offlength requirement that exceeds that ofaC-Ijet. In each ofthese examples, a

83 See Vref Aircraft Value Reference, 2005 (Volume 3). 84 For example, when the FAA initiated this proceeding six years ago, there were about 6,800 C & D operations per year; currently there are about 9,000 such operations. (FAA Exhibit 1,Item 4, p. 4.) 85 Best Single Engine Rate ofClimb Airspeed, Flying Light Twins Safely, FAA-P-8740-66, AFS-803 (2001). 86 See FAA Exhibit 1,Item 101, p. 54-60. 8? See FAA Exhibit 1,Item 104, p. 70-74.

-40-restriction on an operation based solely on its classification under an airport design category would result in unjust discrimination against that operation. The City has offered no evidence showing that C and D Category aircraft are less safethan A and B Category aircraft that are permitted to continue to operate inunlimited numbers at SMO. Moreover, the City's reliance upon FAA airport design standards tojustify the ban isnot reasonable. As amatter offederal law, there isno rational relationship between airport design standards and safety ofoperations by particular aircraft at an airport. Aircraft ofalarger design category may safely utilize an airport that has been designed to accommodate alesser design category ifthe aircraft meets the FAA approved operational requirements for using that aircraft. This isthe case at SMO fro category C andD aircraft.

. There isno documentation or study to suggest that conditions at SMO make an accident more likely than at any other airport. The Airport's difficult terrain and incompatible land uses offthe runway ends do not meet FAA design standards for an RSA orRPZ, and the current terrain and standards do not affect aircraft operations. Operations into and out ofthe Airport are ordinary. (FAA Exhibit 1,Item 45 and 85.) In 2001, in order to address safety risks, the City hired Coffman Associates (consultant)," an aviation consulting firm, to assess increased safety risks resulting from: the proximity ofhomes, arterials, agas station and other development, the physical constraints oftopography, the lack ofrunway safety areas orother safety measures, and the increase in faster approach speed aircraft. Since the Santa Monica Airport is an ARC B-II airport, the City's consultant studied FAA airport design standards and applied them to the Airport and its fleet mix. Ultimately, the consultant recommended various safety measures, which became known as the Aircraft Conformance Program ACP. (FAA Exhibit 1,Item 4, p. 4.) The consultant prepared areport in 2002 and an update in 2004. (FAA Exhibit 1,Items 2 and 78.) The City'S safetyjustification isbased on the reports, which assume and conclude that because there has been an increase in operations by certain faster aircraft, the safety risks are higher. There isno data substantiating this conclusion. The City's report "describes existing conditions atthe Airport, provides a sufficiency analysis, and identifies alternatives." (FAA Exhibit 1,Item 2, p. 10,Exhibit A, Item 4, p. 4 and Item 78.) In general, itidentifies several specific concerns arising as aresult ofthe Airport's layout and design in combination with its use by an increasing number offaster aircraft. The most serious concern identifies the lack ofaRSA atthe stop end ofthe runway. The study concludes that the most reasonable alternative for addressing the concern is adisplaced threshold (See Footnote 12Supra.) which has the effect ofcreating an RSA on airport property which is sufficient to meet the design standards for Category B aircraft. (FAA Exhibit 1,Items 2 and 78.) Neither ofthe two reports provides alegitimate safety basis forrestricting access (other than misinterpreting the FAA's design guidance as mandatory requirements for safe operations). Neither ofthe reports discuss accident data, risk analysis, or any other relevant ormeaningful evidence that C and D Category aircraft are unsafe ormore likely to have an accident than other types ofaircraft at SMO. None ofthe documents provided by the City to FAA aspart ofits 2008 reply demonstrate that acomprehensive safety orrisk assessment ofC and D Category aircraft versus A and B Category aircraft operations has been undertaken by the City for SMO.

88 Coffman Associates, specializes inAirport planning, airport master planning, noise and environmental consulting. See http://www.coffmanassociates.com/experi ence.php

-41 -Current Jet Operations Are Safe SMa was specifically built to accommodate large four-engine piston transport aircraft (e.g. DC-6 and DC-7), which weighed over 150,000 lbs., and operated at approach speeds that equaled and inmany cases exceeded those ofjets. For example, atypical DC-6 operating at SMa is 92,360 lb. (15,000 lb. below maximum gross take offweight) would have an approach speed of 124knots, higher than somejets. 89(FAA Exhibit 1,Item 34.) than, the same 124-knot approach speed used by a 1967 G-II (similar in size, weight and flying characteristics to today's GrV) at about 46,000 Ib.90Use by large transport category aircraft isthe reason why SMa's runway 21/3 is 5,000 feet long and 150feet inwidth with adual tandem wheel weight bearing capacity of 105,000 lbs. SMa, therefore, was not designed as a "recreational" or small GA airport, and was not designed to accommodate only small aircraft, as the City argues. The Airport has experienced an increase intraffic by larger and faster aircraft during the last two decades. (FAA Exhibit 1,Item 4, p. 4.) The Airport's tota12001 total operations were 147,869. Approximately 90% were piston powered aircraft and 9% were turbine powered aircraft. The 13,252 turbine-powered aircraft operations represents an increase over the 1,556turbine powered aircraft operations in 1984 (up by over 10,000 annual operations). (FAA Exhibit 1,Item 2,p. 9.) The City and FAA agree that "aircraft can and do overrun the ends ofrunways, sometimes with devastating results." (See AC No. 150/5220-22A, Engineered Materials Arresting Systems (EMAS)for Aircraft Overruns.) However, the increase inthe number ofjets inthe general aviation (GA) fleet does not translate into an increase in dangerous runway conditions. The opposite istrue. Corporate jet operations have an excellent safety record and that record has improved significantly

. (FAA Exhibit 1,Item 113.) In fact, as NTSB Chairman Jim Hall recognizes the "U.S. business jet fleet has almost doubled in size inthe last 10 years and some segments have grown atan even faster rate
... despite that growth, corporate aviation has an enviable safety record and history ofimprovement.?" Ofall aircraft types used in general aviation, corporate jets, large and small, like the ones using SMa, have the lowest accident rates. The facts demonstrate that many C and D aircraft not only have better safety records than many B-IIs, but that inmany ofthose cases, are able to perform, interms ofrunway requirements, much better than many B-II. (FAA Exhibit 1,Items 47, 85 and 86.) Thus, there isno reason, orjustification, to restrict C and D aircraft because oftheir approach speed atmaximurnlanding weight. Jet aircraft are responsible for nearly 11% ofthe total annual operations (18,000 out of 165,000 operations in 2005) at SMa. (FAA Exhibit 1,Item 26.) This isnot unusual at areliever airport such SMa. Many reliever and GA airports like SMa have a similar or an even larger ratio ofjets to total operations. (FAA Exhibit 1, Item 118.) More than 1,360 ofthejets inthe US registry, or about 14% ofthe corporate/business jet fleet (540,000 annual operations annually), are based at over 342 airports with arunway length between 5,500 and 3,500 feet,92 Corporate operations typically involve professional crews. These flights operate under regulations that often require specialized training and other requirements that do not apply to lower performance aircraft (i.e., 14· CFR Part 135 and 14CFR Part 91K

- or, charter and fractional operators).

89FAA Item 1Exhibit 102. This would be 130% ofthe stalling speed atthat weight about (92,500 lb.), which would be about 95 knots. 90FAAExhibit 1,Item 103.) 91http://ntsb.gov/speeches/former/hall/jhc001215.htm 92FAA Data, 5010 database. Query completed April 9, 2006. Note: An assumption of400 operations per based aircraft was used.

-42-Many ofthejets that are today using 5,000-foot runways are straight-wing types and have approach speeds similar to those ofmany twin-engine piston andturboprop aircraft. Many C and D aircraft are smaller than BIltypes and, in several cases, perform very well in short field operations. New technologies make this possible. (FAA Exhibit 1,Items 47 & 85.) The City argues that C and D category jets should not operate at SMO because the runway was not (originally) designed and built forthem. (FAA Exhibit 1,Item 8.) As discussed above, SMO was built for large four-engine transports. Assuming pavement that is in good condition (as isthe case at SMO), operations byjet aircraft on older 5,000-foot runways arenot any more orless safe than on anew 5,000 foot runway. Jet aircraft routinely operated on 5000-foot runways throughout the U.S. Many, ifnot most airports inthe U.S. were built without anticipating the level ofjet orother types ofoperations these airports would handle today. The airports are not unsafe simply because they were built inthe 1940s. For example, in 1977 there were 3,137 airports intheNational Airport System Plan (NASP) and by 2007, the number ofairports inthe National Plan ofIntegrated Airport Systems (NPIAS) has only risen by 294 to 3,431 airports. (See FAA Exhibit 1,Items 106 and 107.) There are over 800 airports today that were built and improved during WWII, and none ofthem was originally built orimproved with today's jets inmind, yet thousand ofjet operations take place safely every day onthese airports." Aircraft size isnot necessarily related to safety as far as overruns are concerned. In any event, overrun studies show that as far as distance traveled during an overrun is concerned, smaller and larger aircraft exhibit similar behaviors. (See FAA Exhibit 1,Item 108. p.9-12.) Additionally, aircraft manufacturers design aircraft to safely operate atthe existing inventory ofairports inthe Nation's airport system, including SMO. The City'S ban does not take in account the performance characteristics ofexisting C and D categories ofaircraft; nor does the City consider the potential for future enhancements to aircraft design. Aircraft inthe banned C and D categories do not necessarily require more runway than B category aircraft. For example, on landing, better and more effective braking systems, automatic spoilers and other new technologies may reduce the landing distance ofaC orD aircraft to shorter distances than some Btypes I would require. In addition, on take off, more powerful engines may allow aC oreven aD type to outperform some B types interms oftakeoff length requirements. Inthe end, the performance range ofmany C oreven D aircraft allows them to safely operate atuseful weights on a5,000 foot runway. (FAA Exhibit 1,Itemsd? & 85.) As the Court noted inSanta Monica Airport Ass 'nv. City ofSanta Monica, 481 F. Supp. 927 (C.D.Cal 1979), inthe context of SMO operations, the evidence was utterly convincing that modem, small, business and executive typejets are atleast as safe, ifnot much safer than the piston-engine powered aircraft. Accident data for corporate/executive aircraft shows that accident rates have decreased significantly over the years to the point that they are similar to the rates for air carriers. For example, the accident rate for corporate aviation is 0.08 per 100,000 hours, 0.14 for fractional jets and 0.17 for scheduled airlines. (FAA Exhibit 1,Item 113.) Moreover, not only do accident rates indicate thatjets have lower accident rates than other types, such a propeller driven aircraft, largejet aircraft have lower accident rates than smaller types. (FAA Exhibit 1,Item 71.) To Date, Accidents At SMO Only Involve AAnd B Category Aircraft

93 See FAA Order 5190.2R for a listing of all existing airports originally built during WII or inthe years immediately following" the War.

-43-The City suggests that its safety concern isreflected inits accident data. (FAA Exhibit 1,Item 8.) It states that "two fatalities recently occurred at SMa when apropeller aircraft overran the runway while attempting to abort atakeoff' and that "similarly, inBurbank, acommercial aircraft recently overran the runway and came to rest in abusy commercial area." (FAA Exhibit 1,Item 8.) The City states that "these accidents, and others, demonstrate the importance ofmaintaining amargin forerror." (FAA Exhibit 1,Item 2, p. 12.) According to NTSB data from 1981 to 2007, there were eight accidents, including the two fatalities at SMO. However, all eight accidents involved aircraft that were small piston propeller driven A-I orB-1 aircraft, and the type ofaircraft not prohibited under the 2008 Ordinance. (FAA Exhibit 1,Item 82.) SeeNTSB database at ntsb.gov." The almost 300% reduction (nationally) inoverruns between 1970 and 2004 ismost likely the result ofimproved braking devices (antiskid, autobrakes, etc.), abetter understanding ofrunway friction issues, and safety awareness campaigns. (See FAA Exhibit 1,Item 109.) Some research data also indicates that the accident rate for largejets is actually lower than the accident rates for medium and lightjets. (See FAA Exhibit 1,Item 110, p. 109-114.) Another study for 1998-2002 shows that the accident rate for larger jest is lower than for otherjet categories. (See FAA Exhibit 1,Item 111.) Moreover, there is also some indication that that C orD category jets have alower overrun rate than B aircraft. (FAA Exhibit 1,Item 86,.) The City has not provided documentation orevidence to support its contention that C and D aircraft are more likely to have an overrun than other category aircraft. The City's concern for safety rests on the assumption that an overrun by aC orD aircraft would have greater consequences than the overrun ofanA orB aircraft, because C and D aircraft aretypically larger and faster. However, the actual circumstances ofeach accident are unique, and itis sheer speculation that certain categories ofaircraft at an airport will result in acertain kind ofaccident, in acertain place given performance variations and weights ofamong categories ofaircraft. This speculation, with no support other than the excellent safety record ofthe types ofaircraft operating at SMO, provides no basis forthe ban ofC and D aircraft types from SMa. In making this determination, the FAA fully recognizes that any kind ofaccident could happen at any time. The FAA works to anticipate the causes ofaccidents, and to minimize the probability offuture accidents and also to minimize the risk ofinjury and damage when they occur. However, the C and D aircraft operations banned by the City are now being conducted safely, in accordance with all FAA operating requirements, including the safety margins built into those requirements and into runway length calculations. Ifthese operations could bebanned because an accident involving aC orD aircraft is conceivable, then any aircraft operation at any airport could bebanned forthe same reason. The fact that an accident could happen involving an overrun and extension from the runways mayjustify. making safety improvements atthe Airport, as the FAA has repeatedly recommended, but itdoes notjustify restricting access to C and D aircraft. Since this isthe onlyjustification offered forthe ban on C and D aircraft operations, the Ordinance isunreasonable. 4. The City alleges that FAA is only concerned with operational impact at SMa and not safety. (FAA Exhibit 1,Item 8.) Operational Impact The City maintains that its ordinance would cause only arelatively minimal inconvenience on a small number ofaircraft operators and passengers. (FAA Exhibit 1,Items 4 and 92.)

94 The NTSB data goes back to 1964 but pre-1981 data is not complete. Prior to 1981 there were reports ofthree overruns, all involving Category A aircraft, but these reports lack descriptive details.

-44-The City's evidence ofonly arelatively minimal inconvenience on a small number ofaircraft operators and passengers appears based on a4-page table, dated June 12,2007, listing aircraft departures by stage length. The table identifies as impacted by the loss ofpavement only large aircraft traveling long distances, e.g. SMO to the East Coast ofthe U.S. As aresult, the table shows 235jet takeoffs impacted out ofa total of9,000jet departures annually." (FAA Exhibit 1,Item 67.) On September 21,2007, the FAA submitted its own comprehensive impact assessment to the City. (FAA Exhibit 1,Item 68)96 The City then revised and presented its study again aspart ofthe March 25,2008 City Council proceedings. The revised study concludes that only a small number ofoperations would be affected by a shortening ofthe runway, but uses a methodology calculated to understate impacts. (FAA Exhibit 1,Item 4, Exhibit 19.) Specifically, the study fails to consider the most basic variables in aircraft performance such as useful load; disregards user input reflected in comments between December 2006 and February 2007; considers the effects on only afew selected types ofaircraft; does not consider non-jet aircraft; does not consider Part 91K and Part 135 landing requirements; and considers stage length as the only critical variable. (FAA Exhibit 1,Items 19,67 and 68.) But more importantly, the City's March 25,2008, impact study also assesses the impact ofa shorter runway but not ofan outright ban on operation by aircraft types. The Ordinance, ofcourse, includes aban on C and D aircraft, but does not address operation on a shorter runway. (FAA Exhibit 1,Item 8.) No specific plan to obtain additional RSA by shortening the runway has been approved by the FAA orimplemented by the City, and the March 25 impact study isnot relevant to the City's conclusion that the ban on C and D aircraft will have no substantial effect. The City argues that the vast majority offlights in and out ofthe Airport are less than 1000 nautical miles:' which means that slower planes, carrying less fuel could readily be substituted forthe C and D aircraft now used forthese trips. According to the City, participants infractional share ownership arrangements are, as a matter ofright, able to trade down to other aircraft, and fractional operators tout the ease ofsuch trades. Similarly, travelers who charter aircraft may choose to charter aircraft that are in conformity with the Airport's reference code. Passengers inboth categories will be safer, the City argues, using aircraft appropriate forthe Airport facilities. Finally, the City asserts that any travelers who feel that they must travel inprivate aircraft inthe C & D categories may use other airports inthe area, ofwhich there are several." (FAA Exhibit 1,Item 4, p. 38-39.) However, the City's assumption that users can simply replace aCor D Category aircraft with aCategory B-II aircraft minimizes the value ofthese flights to customers and the operational considerations involved. First, although some fractional companies dohave trade-down options, not all contracts have that option. Second, if the option already exists for fractional and charter users to use a smaller, slower B-II aircraft, presumably at a lower price, then users could already be expected to beusing this option when appropriate, and generally using the more expensive C and D flights only when required forthe purpose ofthe flight. Moreover, some

95 Following amore thorough FAA analysis, loss ofrunway length indicated that the number ofimpacted flights is estimated to be at least 1,400 takeoffs and at least 3,800 landings per year. (FAA Exhibit 1,Item 68.) 96FAA used several variables in its analysis, i.e. useful load of60% and preserving non-stop capability. Both are FAA planning standards and criteria used in airport and runway length determinations. Other variables considered are based on regulatory requirements such as Part 135 and Part 91K landing distance computations, fuel reserve requirements (Part 91 and, NBAA reserves). For example, the landing distance for all Part 135 operations would be only 2,848 feet inOO feet were removed from runway 21-03. Depending on aircraft type and certification, takeoff needs were not limited to ageneric takeoff distance ortakeoff roll, but rather accelerate-stop, accelerate-go, balanced field, second climb segment, and possible combinations, when appropriate. Specific operational values interms ofweight, range, and other variables were also accounted for. For example, a loss of200 nautical miles inrange and aloss of 500 pounds inweight capability (in some aircraft 200 lb.) were used as guidelines and benchmarks. Finally, analyzing impact was not limited tojet aircraft as several turboprop and some piston-powered aircraft would be affected by a loss ofpavement. (See FAA Exhibit 1,Item 68.) "

- 45-users, such as acorporate flight department with one aircraft, would have no ability to use adifferent aircraft." Even more importantly, the City's suggestion ignores the fact that ithas committed to make SMa available to all aircraft on areasonable and nondiscriminatory basis. This isnot accomplished by requiring existing users to substitute other aircraft forthe category C and Djets they now have. 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 SMa with Category A and B aircraft is frivolous. The argument completely disregards the City's Federal obligation toprovide 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 isunlawful because itprecludes those aircraft from operations at SMa. Harm will also result from having afederally-obligated airport proprietor appear to have unbridled discretion to violate its grant obligations and usurp the agency's jurisdiction over safety ofaircraft operations. The City also assumes that intermediate fueling stops which would be unnecessary with aC orD category aircraft, but necessary for aB aircraft onthe same flight, are simply amatter ofinconvenience. 

### Infact, an additional stop for ajet aircraft means descent from high altitude and climb back to altitude, a substantial increase infuel used, an additional landing cycle onthe aircraft airframe, use ofATC services, and additional cost and lost time forthe user. The City's Ordinance would subvert present operations ofCategory C and D airplanes and thus isharmful on its own and because ofits effects onthe national air system. Santa Monica is an important general aviation reliever airport for Los Angeles International Airport (LAX). As stated inthe background section, the ban would affect over 9,000 Category C and D aircraft operations or approximately 7% oftotal operations at SMa according to the City's own estimates. Disruption ofover 9,000 annual operations is a significant number for the Los Angeles region and nationally as well. The exclusion of9,000 operations and the effect onthese critical design aircraft." could also burden the travel ofapproximately 20,000-30,000 passengers annually. The LAX Master Plan Final EIS states that "all ofthe general aviation airports are constrained from large scale expansion and there is aconcern to avoid displacing general aviation operations from those busy facilities into other commercial airports inthe region." The ban will likely affect interstate travel because the Category C and D aircraft are used for a substantial portion ofnon-stop interstate flights. This will result in a significant burden on interstate commerce. By banning 9,000 ormore operations from SMa, and forcing those operations to use other airports, the ban affects Federal airtraffic and airspace management inthe greater Los Angeles region. As discussed inmore detail below, several other airports inthe region, Los Angeles International Airport ("LAX"), Van Nuys (VNY), and Burbank (BUR), are already at ornear capacity.I" LAX is atcapacity and the others are working

97 Many users, be itfractional or charter, use C and D aircraft because ofcost and performance. A used 1989 Category D-II Gulfstream GIV sells for approximately $17 million, while the newer and comparable 2004 G400 costs approximately $ 31 million. See Vref Aircraft Value Reference, 2005 (Volume 3). A B-II Falcon 900, as a 1986 model costs $14 million while the 1996 model costs $27 million. See Vref Aircraft Value Reference, 2005 (Volume 3). 98 Supra page 34. Airplane using (or ishighly likely to use) the airport on aregular basis; aregular basis is at least 500 annual itinerant operations. (FAA Order 5100.38C A.) 99 The primary role ofSMO and other general aviation airports inthe region isto act as relievers forthe commercial airports like LAX. General aviation jet operation numbers drop as delays increase atLAX because general aviation jet operations move to reliever airfields like SMO that do not experience such delays. The role ofcommercial airports like LAX is not to accept general aviation from SMO, itisthe other way around. Single engine piston operations may have dropped atVNY over the last 20 years,

-46-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 ofthe general aviation airports are constrained from large scale expansion and there is aconcern to avoid displacing general aviation operations from those busy facilities into other commercial airports inthe region." Diverting general aviation operations to LAX is inconsistent with SMO's reliever status obligation: torelieve general aviation operations from LAX. Given capacity constraints, and the petition ofother airports inthe region to restrict access, itis simply incorrect forthe City to claim that other airports could absorb, without consequence, the effects ofthe City's unilateral decision to ban 9,000 annual operations ofcategory C & D operations at SMO. Accordingly, the elimination of9,000 operations ayear has significant implications for operators and passengers now using SMO, and the impact ofthe Ordinance cannot be considered a "relatively minimal inconvenience" as the City portrays it. Importance ofSMO as aReliever Airport The importance of SMO as areliever't" was clearly stated inthe 1984Agreement. The Agreement declared that SMO serves a "vital and critical role inits functions as ageneral aviation reliever forthe primary airports inthe area ... by diverting aircraft away from the aircarrier airports and other heavily used airports located in the Greater Los Angeles Area

.... " (FAA Exhibit 1,Item 4, Exhibit 3,pg. 3-4.) There is no doubt that the Santa Monica Airport plays acritical role inthe regional and national airtransportation systems. Itis responsible for approximately 18,000jets operations inthe LA area. SMO was designated as one of274 reliever airports in CY 2004.101 (FAA Exhibit 1,Item 40, p. 9.) Along with Van Nuys Airport (VNY), SMO isthe most important reliever airport forLAX, and ranks inthe first 15most important GA airports inthe country interms ofbased aircraft and operations. (FAA Exhibit 1,Item 113.) In general, distribution oftraffic among airports in aregion reduces delays inthe national transportation system and is one ofthe cornerstones ofthe FAA airport planning process. (FAA Exhibit 1,Item 107, p. 23.) The FAA views SMO as an extremely important airport, not only forthe Los Angeles area, but also for Southern California, the state and the national system, aspresented inthe National Plan ofIntegrated Airport Systems (NPIAS).102 Imagine if Teterboro, NJ (areliever inthe New York City area), Chicago Executive, IL

however, multi-engine andjet powered aircraft operations have grown. Van Nuys will be petitioning FAA to consider noise restrictions on the growth ofjet aircraft atVan 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. 100 The FAA's standard for an airport classified as areliever airport isto have at least 100based aircraft or 25,000 annual itinerant operations. (See FAA Exhibit 1,Item 40., p. 9.) SMO has 400 based aircraft, and 135,000+ operations. (FAA Exhibit 1,Item 26 and 105.) 101 As previously, stated reliever airports are airports designated by the FAA to relieve congestion at acommercial service airports, like LAX, Burbank, and Ontario, and to provide improved general aviation access to the overall community. Report to Congress Nineteenth Annual Report ofAccomplishments Under theAirport Improvement Program, Fiscal Year 2000, Report ofthe Secretary ofTransportation to the United States Congress Pursuant to Section 47131 ofTitle 49, United States Code, Federal Aviation Administration, Washington DC, December 2003. Large metropolitan areas, like LA, usually have a system ofreliever airports, one or more ofwhich can accommodate general aviation, including corporate jet aircraft and smaller, propeller-driven aircraft and rotorcraft. Over the years, relievers have been very successful atrelocating general aviation activity from congested airports and as aresult, general aviation activity atcongested airports is a small and decreasing percentage oftotal operations. S) 2007-201 I, FAA, September 29,2006, p. 23. http://www .faa.gov/airports

_airtraffic/airports/aip/ grant_histories/media/aip _annual_report

_fy2006.pdf 102 Section 47103 ofTitle 49 U.S.C. requires the Secretary ofTransportation to publish anational plan for the development of public-use airports inthe United States. This plan, the National Plan ofIntegrated Airport Systems (NPIAS), lists development considered necessary to provide a safe, secure, efficient, and integrated airport system meeting the needs ofcivil aviation. Report to Congress Nineteenth Annual Report ofAccomplishments Under theAirport Improvement Program, Fiscal Year2000, Report

-47-(areliever for Chicago O'Hare), Hanscom Field, MA (areliever for Boston Logan) all decided to divert their C and D Category aircraft operations to the airports they relieve. The commercial airports would suffer as a consequence, and the impacts would be felt nationwide. The FAA's standard for an airport's classification as areliever airport isto have atleast 100based aircraft or 25,000 annual itinerant operations. 103 SMO has 400 based aircraft, and 135,000+ annual operations. The 2008-20 12FAA Flight Plan clearly indicates that one ofthe Agency's primary targets isto create new capacity with new reliever airports, not to reduce it.104 All ofthe other commercial and reliever airports inthe Los Angeles area already experience substantial traffic and several are proposing some form ofaccess restriction, like SMO. Many, like LAX, have serious capacity limitations.l'" FAA does not view moving additional operations from SMO to these airports as without impact, as the City suggests. A discussion ofthe relevant airports follows:

a. Burbank Airport (BUR). Space around the airport to expand isvirtually non-existent due to the encroachment ofthe surrounding city. The option ofan aggressive land acquisition by Burbank is almost entirely out offiscal reach. A 2004 FAA report cited the need for expansion atthis airport, but for now this seems impossible due to agreed upon restrictions inthe size and number ofaircraft gates. (See FAA Exhibit 1,Item 63.) In addition, this airport has initiated a study under 14CFR Part 161 with the goal ofrestricting access by adopting amandatory nighttime curfew.i'" b. Van Nuys Airport (VNY). Located on 730 acres, VNY is approximately 25 miles northwest of downtown Los Angeles. VNY isthe busiest general aviation airport inthe world and seventh busiest airport inthe United States. VNY has unscheduled jet charter service and isbase to over 150corporate jets. The airport, which isthe major reliever forLAX, isthe base ofoperations for over 750 aircraft and accounts for approximately 504,000 operations each year. VNY has an average of 1,380 operations per day. The airport contains approximately 82jet airplane hangars ofall sizes, 41 helicopter hangars, and 201 piston aircraft hangars. In addition, since 1969, ithas implemented several noise restrictions and has implemented several non-restrictive noise control measures. Recently, VNY has initiated a 14CFR Part 161 study with the goal offurther restricting operations atthe airport. The scope ofthe Part 161 Study proposes (1) establishing a system ofdifferential landing fees for aircraft using VNY; (2) establishing fines forviolations ofthe airport's noise abatement policies; (3) establishing maximum daytime noise limits; (4) establishing alimit onthe number of Stage 3jets; and (5) expand the curfew. 107

ofthe Secretary ofTransportation to the United States Congress Pursuant to Section 47131 ofTitle 49, United States Code, Federal Aviation Administration, Washington DC, December 2003. 103 Airport Improvement Program

-Fiscal Year 2006, p. 9. http://www.faa.gov/airports_ airtraffic/airports/aip/grant_ histories/media/aip

_annualJeport_ fy2006.pdf 104 As an example, inFY 2006, the FAA expended over $219 million for funding ofthe reliever systems nationwide. Airport Improvement Program

-Fiscal Year 2006, p.l6, (over $27 million in California alone) Airport Improvement Program

-Fiscal Year 2006, p.I-2. http://www.faa.gov/airports_ airtraffic/airports/aip/grant_ histories/media/aip _annual_report

_fy2006.pdf 105 Airfield capacity is expressed interms ofthe number ofaircraft operations that can be conducted in agiven period oftime. Capacity is most often expressed as annual capacity (or annual service volume) and hourly capacity (or throughput capacity) for aparticular runway and taxiway configuration. See AC No: 150/5070-6B Airport Master Plans, July 29,2005. I06http://www.ci.burbank.ca.us/airport! current/faqs .html 107 See http://www.vnvoartI61.com/ProjectBackground.cfm. VNY also initiated a$15-million residential soundproofing program in2000.

-48-c.Long Beach Airport (LGB). Long Beach Airport is also abusy general aviation airport, serving 400,000 annual general aviation operations. lOS Its capacity is also limited. The airport isunder one ofthe strictest ordinances inthe United States onboth airport noise and the number ofcommercial flights. Long Beach has a noise budget program inplace, which effectively controls airport operations by capping them.I09 The current noise levels allow for amaximum of41 daily commercial flights and 25 commuter flights. LGB is also physically located away from the areas served by SMO.IIO (FAA Exhibit I, Item 28.) d. Torrance Airport (TOA). Torrance Airport is ageneral aviation airport owned by the city ofTorrance. TOA is approximately 16nautical miles away from SMO. With the displaced threshold, the runway length is approximately 4,460 feet long. In addition, the pavement atTOA is concrete asphalt and rated infair condition. TOA has implemented noise level restrictions. TOA isnot afederally obligated airport. (FAA Exhibit I, Item 28.) TOA is generally not an appropriate substitute for SMO's C and D Category aircraft.

e. Hawthorne Municipal Airport (HHR). Hawthorne Municipal Airport, also known as Jack Northrop Field, is anFAA-designated general aviation reliever airport owned by the City ofHawthorne. The Airport features a4,956-foot long, 100-foot wide lighted runway that can accommodate aircraft weighing up to 90,000 pounds (with dual tandem wheel loading). The airport is also home to anFAA-operated Air Traffic Control Tower, and houses Northrop Grumman Aviation, Inc., a subsidiary ofNorthrop Grumman Corporation. Although Hawthorne Airport will develop up to 190,000 square-feet ofnew hangar space, the airport is physically limited for future development or expansion. III The location ofthe airport, close to LAX, and the already tight airspace constrictions, presents little room for a significant increase ofInstrument Flight Rules (IFR) traffic (typical for corporate jet operations) in and out ofthe airport, especially additional facilitiesto accommodate the corporate aviation needs that could be displaced from SMO. f. Los Angeles International Airport (LAX). With over 650,000 operations annually, 112 LAX handles more origin and destination (i.e. not connecting) passengers than any other airport inthe world. Itisthe world's , fifth-busiest airport bypassenger traffic and sixth-busiest by cargo traffic, serving some 60million passengers and more than two million tons offreight in 2004. Moreover, LAX isthe busiest airport inthe state of California, and the third-busiest airport bypassenger traffic inthe United States. Interms ofinternational passengers, LAX isthe second-busiest inthe U.S. (behind only JFK International Airport inNew York City), and 20th worldwide. LAX is an airport that already has capacit~ and delay problems. Delay is estimated at an average of7 minutes per operation. (FAA Exhibit I, Item 63.) 13 From acapacity standpoint, with its 145 hourly arrival and departure rates, LAX isnot a suitable airport to bereceiving traffic displaced from SMO. (FAA Exhibit I, Item 114, p.30.) Nevertheless, the City would have LAX serve as areliever for SMO. The City claims that SMO's increase in transient business jets is due to "inadequate air side and landside facilities atLAX" and that LAX development should "not only stop the displacement ofbusiness jet aircraft but must, in fact, return these previously displaced traffic to itsproper setting

.... "that there should be a "re-positioning ofLAX asthe center ofbusiness jet aircraft activity" and that "LAX isthe most appropriate setting for business jet aircraft

108http://www.gcrl.com/5010web/REPORTS/AFD04102008LGB.pdf 109http://www.longbeach.gov/airport/ 110Long Beach Airport is situated midway between Los Angeles and Orange County. II! http://www.cityofhawthome.com/depts/airport/default.asp 112http://www.gcrl.com/5010web/airporl.cfm?Site=LAX 113 In addition, LAX's Master Plan Final EIS calls for maintaining general aviation levels at orbelow 34,000 operations. (LAX,_ Master Plan Final EIS, Executive Summary), January 2005, A.I-6.

-49-accessing the Southern California area, particularly the Westside ofthe region." The City also argues that "business jet aircraft are more appropriately served atLAX as itcan provide for ahigher margin ofsafety with longer runway surfaces and safety areas, more high speed turn outs and taxiways, dedicated airspace, continuous tower support and afull complement ofemergency facilities and services. The re-focusing of business jet aircraft activity to LAX will provide opportunities forbetter integration with commercial air operations, rental cars, customs, and better maintenance and support services for such aircraft." (FAA Exhibit 1,Item 115.) The FAA's Office ofAirports has approved use ofAlP grant funds for aproject to study ofthe Los Angeles metropolitan areas capacity issues. II The FAA rejects the City's logic because diverting jet operations to LAX isnot consistent with the fact that LAX is acommercial service airport and the third largest airport in the U.S. (in terms ofenplanements and the fourth interms ofoperations). (FAA Exhibit 1,Item 114, p. 21.) LAX needs reliever airports in its system; itis certainly not ageneral aviation reliever airport itself for SMO or any other airport. LAX ishardly an option to accommodate SMO corporate jet operations. Future growth atLAX is limited and constrained by special circumstances. The LAX Master Planl15 promotes aregional solution to airtransportation demand (Alternative D), improves the level ofpassenger service, and addresses both community and environmental concerns. More information on LAX's overall plan can be found on http://www.laxmasterplan.org/. There are noise restrictions already inplace atLAXl16 LAX's Part 161 study determined that "a serious noise disturbance problem exists with the late night easterly departures and has asked LAWAto eliminate these operations through the Part 161 process .... ,,1l7 The goal ofthe Part 161 Study atLAX isto establish an operational restriction that would prohibit the easterly departure ofall aircraft, with certain exemptions, between the hours of 12:00 midnight and 6:30 a.m. when the airport is in over ocean operations, orwhen itremains inwesterly operations during these hours. I18 Against this background, it seems obvious that LAX has limited ability to accommodate SMO's traffic and that, contrary to what the City has stated, SMO isthe reliever forLAX, not the other way around. f. Los Angeles Regional Airport System Considerations. The City's actions impact the regional airport system. The Southern California Airport and Airspace System Study commissioned by the Southern California Association ofGovernments (SCAG) states that although there is some capacity inthe Los Angeles airport system, several airports have significant interactions with each other as to impact capacity, and SMO is one ofthem. (FAA Exhibit 1,Item 62, p. 34.) SCAG also finds that that LAX, Burbank, Long beach and Ontario, all airports the City proffers as destinations for its banned operations, have either physical, policy-based or legal constraints. (FAA Exhibit 1,Item 66.)

114Airport Improvement Program

-Fiscal Year 2006, p.74. http://www

.faa.gov/airports

_airtraffic/airports/aip/grant_ histories/media/aip

_annualreport fy2006. pdf 115 Airport Master Plans

- An airport master plan is acomprehensive study ofthe airport and typically describes short-, medium-, and long-term plans for airport development. Master planning studies, that address major revisions are commonly referred to as "Master Plans," while those that change only parts ofthe existing document and require arelatively low level of effort tend to be known as "Master Plan Updates." In common usage, however, the distinction refers to the relative levels of effort and detail ofmaster planning studies. See AC No: 150/5070-6B Airport Master Plans, July 29,2005. 116LAX Rules and Regulations, Aircraft Noise Abatement, (2005), https://www.lawa.org/airops/rules.cfm 117http://www.laxpart161.com/en/index.cfm 118 http://www.laxpart161.com/en/index.cfm

- 50-SCAG also reports that C and D operations take place atB airports, including SMO, and that the regional airport analysis by Airport Reference Code (ARC) isvery limited forthe corporate jet fleet, which is represented primarily by B-III through C-II aircraft. Ofthe 56 airports inthe regional study, only 5would typically beused by acorporate jet fleet represented by B-III through C-II ARC and only 3 would typically be used by aircraft represented by D-II through D-III ARC. (FAA Exhibit 1,Item 64.) In addition to this limited number ofairports, one ofthese, Rialto, will soon close, and while others, such Camarillo and BarstowDaggett, are too far away from SMO to be effective replacements. (FAA Exhibit 1,Item 64.) Finally, as the Los Angeles region is one ofthe most congested airtraffic control areas inthe country, air traffic and airspace implications should be considered before the City bans 9,000 operations. The FAA has proposed and made modifications tojet arrival routes, airtraffic control sectors, and airtraffic control (ATC) coordination procedures between the Los Angeles Air Route Traffic Control Center (ARTCC) and the Southern California (SOCAL) Terminal Radar Approach Control (TRACON).119 The very nature ofairtraffic control and airspace management requires uniform regulations and planning. The City has provided no information onthe consequences its actions may have on airtraffic control and airspace management. To date, SMO has not requested that the FAA's ATC personnel study the effect ofits ban. By banning all ofits C and D category aircraft operations, SMO would impact not only its facility, but that of other airports, all ofwhich are critically tied to airtraffic control and airspace management. Inthe end, the same number ofoperations would be divided among fewer facilities. Depending on traffic volume, this may necessitate the enlargement ofnormal arrival and departure routes, ormodification toprocedures to handle the realignment oftraffic. This could put alarge number ofaircraft over places they normally wouldn't fly

.. The restricted C and D aircraft from SMO are not easily absorbed bythe systems, and ifevery B-II airport similarly were to ban all C and D aircraft, the Southern California airport system would be seriously compromised. The City's argument that the ban on category C and D aircraft operations has not impact because such operations may still be conducted at SMO with Category A and B aircraft lacks merit. This argument discounts the City's federal grant and surplus property obligations toprovide access on fair and reasonable terms to all aeronautical users. The ban also causes impact because harm will result from having a federally-obligated airport exercise unbridled discretion to violate its assurances and deed covenants and usurp the agency's jurisdiction over safety ofaircraft operations. Based on all ofthe above, the Director finds that even ifoperations diverted from SMO can be operated at surrounding airports that does not negate the factthat the Ordinance would have an impact on SMO users and neighboring communities inthe region. The ban affects Federal airtraffic and airspace management inthe greater Los Angeles region. That impact would still be significant and not de minimus and thus the ban is unreasonable. CONCLUSION ON ECONOMIC DISCRIMINATION Whether aproposed restriction on airport access isreasonable and not unjustly discriminatory is determined by the FAA, in accordance with 49 U.S.C. §§ 40103 and 47107(a)(l), and FAA Order 5190.6A, Par 4-8(a), which states:

119 See FAA Exhibit I, Item 116. http://www.tc.faa.gov/acb300/techreports/laxdraft.pdf

- 51

-"In all cases the FAA will make the final determination ofthe reasonableness ofthe airport owner's restrictions, which denied orrestricted use ofthe airport." FAA also has statutory authority inmaking determinations ofsafety. (See 49 U.S.C. §40101, etseq., and 40103(b).) FAA isthe final arbiter ofmatters regarding aviation safety. The City's arguments concerning Assurance 22(i) are not persuasive and are addressed in Section F, infra. When making 14CFR Part 16findings regarding matters ofaviation safety, the Director may consult with other offices within the FAA fortheir safety expertise and experience. Inthis case, the Director relies on FAA's operational safety experts (including, the FAA Aircraft Certification Service, Air Carrier and Transportation Divisions and the opinions ofthose offices contained inthe record ofthis determination). The opinion offered by the Aircraft Certification Service and Air Carrier and Transportation Divisions, corresponds to and fully supports the conclusions taken by the Office ofAirport Safety and Standards since the initial Notice ofInvestigation in 2002. Based on the above, the Director finds that the operation ofC and D Category aircraft at SMO takes place with an acceptable level ofsafety. FAA's runway safety area design standards can further enhance safety and should be implemented whenever itispracticable to do so, even at general aviation airports such as SMO that are not required by regulation to have an RSA. However, the presence or absence ofa standard RSA isnot a factor in any FAA operating rule for safe aircraft operations. Here, the safety concern cited by the City appears to be based solely onthe potential consequences ofacertain kind ofaccident in certain locations off ofairport property, and not on anything inherently unsafe (or even unusual) about the use ofthe runway itself. Because aircraft can use the SMO runway safely and in accordance with all applicable FAA safety regulations and practices, the Director finds that itisunreasonable to ban such aircraft from use ofthe airport for reasons ofsafety. Based on the above, the Director finds that banning C and D Category aircraft operations from SMO is an unreasonable requirement for aeronautical access to SMO that unjustly discriminates against aeronautical users or C and D Category aircraft by denying them reasonable access to aFederally obligated airport. The Director finds that the record does not support the City'S claim that itmust restrict access to ensure safety, nor does the City have the authority to ban Category C and D aircraft based upon such adetermination. The Director finds the City inviolation ofGrant Assurance 22, inthat Ordinance adopted on March 25, 2008 banned C and D Category aircraft from using SMO. This ban is found to be unreasonable inlight ofthe circumstances discussed above. The City is inviolation ofits Federal obligations to ensure reasonable access on reasonable terms without unjust discrimination. The FAA continues to urge the City to consider establishing aRunway Protection Zone offthe ends ofthe SMO runway. Federal funding may be available to assist with this alternative. C

. Whether the implementation ofthe adopted Ordinance prohibiting Category C and D aircraft bythe City ofSanta Monica is consistent with the Federal obligation prohibiting the granting ofan exclusive right at the airport to conduct any aeronautical activities. Title 49 U.S.C. §40103(e) states that "(a) person does not have an exclusive right to use an airnavigation facility on which government money has been expended." 49 U.S.C. §47107(a)(4) provides, inpertinent part, that "aperson providing, or intending toprovide, aeronautical services to the public will notbe given an exclusive right to use the airport."

-52-Grant Assurance 23, Exclusive Rights, ofthe prescribed sponsor assurances requires and subsumes the statutes' pertinent parts, sothat the sponsor ofaFederally obligated airport: "will permit no exclusive right forthe use ofthe airport by any person providing, orintending toprovide, aeronautical services to the public

.... Itfurther agrees that itwill not, either directly orindirectly, grant or permit any person, firm, orcorporation, the exclusive right atthe airport to conduct any aeronautical activities

...." An exclusive right is defined as apower, privilege, orother right excluding ordebarring another from enjoying or exercising alike power, privilege, orright. An exclusive right can be conferred either by express agreement, by the imposition ofunreasonable standards orrequirements, orby any other means. Such aright conferred on one ormore parties, but excluding others from enjoying orexercising a similar right orrights, would be an exclusive right. (FAA Advisory Circular 5190-6 Exclusive Rights At Federally Obligated Airports, January 4,2007.) The exclusive rights prohibition remains in effect as long as the airport is operated as an airport. FAA Order 5190.6A Section 3-8 (b). Any grant ofan exclusive right forthe conduct ofany aeronautical activity (on an airport) isregarded as contrary to the requirements ofthe statute and grant assurances, regardless ofwhether such exclusive right result from an express agreement, from the imposition ofunreasonable standards or requirements, orby any other means. (FAA Order 5190.6A Section 3-8 (b).) Here, the ordinance directly confers an exclusive right on Category A aircraft over Category C and D aircraft. The ordinance also directly confers an exclusive right on Category B over Category C and D aircraft. The exclusive right is conferred onboth Category A and B aircraft because the ordinance absolutely denies the privilege ofusing the Airport's runways to Category C and D aircraft. The ordinance specifically excludes Category C and D aircraft from enjoying and exercising the same rights as the Category A and B aircraft. In William Dean Bardin d/b/a Ultralight ofSacramento v. County ofSacramento, California, FAA Docket No. 16-00-11 (August 9, 2001) the FAA found that a sponsor's ban ofultralights created an exclusive right for certain airport users. As aresult ofthe ban, certain aeronautical users were granted a special privilege inthe use ofthe public use airport facilities while those with restricted activities did not enjoy those rights. Consequently, the FAA concluded that the airport sponsor's restrictions on certain aeronautical activities at the airport were not consistent with the applicable deed covenant obligations under the surplus property agreement signed by the airport sponsor. Specifically, the FAA stated that precluding certain aeronautical activities "as currently implemented isunreasonable, unjustly discriminatory, and constitutes the granting of an exclusive right. Such actions onthe part ofthe Respondent are contrary to the requirement to make its airport available forpublic use on reasonable terms and without unjust discrimination to all aeronautical uses without granting any person, either directly orindirectly, the exclusive right to conduct aeronautical activities atthe airport." (Id., p. 11-12.) The City argues here that "the prohibition against exclusive rights addresses unfair and arbitrary discrimination as between similarly situated persons" and thus "the prohibition would be violated ifSanta Monica gave anunfair advantage to one particular business operator over others conducting business in a similar manner. " (FAA Exhibit 1,Item 2, p. 15-16.) The City infers that the ACP and adopted ordinance would not have such an effect inthat it"would not ban any person orbusiness entity from the Airport so long as they utilized aircraft consistent with Airport design standards" and that it "would not create any unlawful monopoly" since "a commercial operator who presently utilizes Class C and D aircraft could, under the ACP continue to use the Airport by simply opting for a smaller aircraft that is compatible with the facility's Airport Reference Code." (FAA Exhibit 1,Item 2, p. 15-16.)



### -53-Itfurther argues that "even ifthe (ACP and adopted ordinance) did create disadvantages for abusiness operator, public safety interests would prevail over the operator's private interests" and that "even ifthe proposed program arguably did constitute an impermissible exclusive right because itmight give an advantage to one private business owner over another, Advisory Circular No. 150/5190-5 recognizes that certain safety interests must prevail over the financial interests ofaparticular operator." 120 (FAA Exhibit 1, Item 2, p. 16.) The City correctly notes that Advisory Circular No. 150/5190-5 allows an airport sponsor to deny a prospective business operator the right to engage in an on-airport aeronautical activity forreasons of safety and efficiency under some circumstances (emphasis added). However, as discussed above, the FAA isthe final arbiter for safety issues. The City's arguments concerning safety are addressed elsewhere inthis determination and found to be without merit as applied to the circumstances here. An airport may not create an exclusive right under the guise ofan operational safety issue. The Director finds that that isthe effect of the City's Ordinance. D. Wbether tbe implementation oftbe adopted Ordinance probibiting Category C and D aircraft by tbe City of Santa Monica is consistent with tbe Surplus Property Act of 1944. 1.Applicability oftbe Surplus Property Act of 1944 The City argues that SMO isnot obligated under the Surplus Property Act of 1944 (SPA) and that "the FAA utterly mischaracterizes the nature ofthese transfers." (FAA Exhibit 1,Item 4, p. 16.) The City argues that "the Federal government, which leased the Airport from the City during World War II, did not and legally could not impose restrictive covenants governing airport operations when the Airport land reverted to its owner" and that such restrictions cannot be "imposed now, sixty years after the reversion." (FAA Exhibit 1, Item4,p.19.) According to the City, "there was no deed

- only leases from the City to the Federal government and a reversion back to the City." (FAA Exhibit 1,Item 4, p. 20.) The City argues "during WWII, the United States government leased from the City portions ofthe Santa Monica Municipal Airport and surrounding lands" and as a "mere lessee, itdid not and could not impose conditions upon the City when the wartime leases ended," that the City "retained its fee interest inthe airport land." Specifically, the City adds that "on December 1, 1941, the City and Federal government entered into Lease No. W- 3460-Eng-549 forproperty, then occupied by agolf course, that isnow part ofthe Airport" and that "by amendment to the original lease, the lease terms establish an expiration date ofJune 30, 1945 with annual extensions that, under no circumstances would extend longer than 12months after the termination ofProclamation 2487, declaring anational war emergency." (FAA Exhibit 1,Item 4, p. 20.) The City contends that "President Truman terminated the Proclamation on April 28, 1952, and, by its own terms, the lease therefore expired on April 28, 1953." Another lease dated December 8, 1941, between the City and Federal government (Lease No. W- 04-193-Eng-4894 and City Contract No. 832(CC)) covered

.. "about 86 acres ofland, including the land now occupied by the runway ...that lease expired by its own terms 12months after the expiration ofProclamation 2487 by which the President declared anational emergency ...the President terminated that proclamation onApril 28, 1952; and the lease therefore expired on April 28, 1953." (FAA Exhibit 1,Item 4, 20-21, and Exhibits 25-30.)

120The FAA notes that the City relies on Advisory Circular No. 150/5190-5, last updated on August 28, 2006 to AC No. 150/5190- 7.

- 54-The City recognizes that onAugust 10, 1948, "the City and Federal government entered into an agreement entitled Instrument ofTransfer," and that "an accompanying resolution ofthe City Council, approving the agreement, characterized itas the United States' surrender ofits leasehold interests to the Santa Monica Airport and certain appurtenant easements and rights ofway" but argues that "as amatter oflaw, atenant cannot impose restrictive conditions on alandlord orthe landlord's reversion" and that "a lease transfers the right ofexclusive possession and use ofthe leased property to the tenant forthe duration ofthe lease, but it does not transfer any title interest to the tenant." (FAA Exhibit 1,Item 4, p. 21.) The City contends that "as to the Santa Monica Airport inparticular, the FAA has already tacitly recognized that there isno deed from the Federal government to the City imposing restrictions on the Airport's operation" because "in afinding important to the outcome ofaprevious Part 16case, the FAA stated that "the (1984) Settlement agreement makes clear that the City is obligated to operate the Airport only forthe duration ofthe Agreement (through July 1,2015)" referring to Docket No. 16-99- 21 Santa Monica Airport Assoc. v. City of Santa Monica." "Had any obligations orrestrictions been imposed on the Airport land through adeed covenant, the City's obligation to operate the Airport would not expire in2015, as the FAA determined in 2000

...however, there were no such restrictions, because there was no deed. Consequently, the FAA correctly observed inthe same decision that the future ofthe Airport in 2015 "is alocal land use matter." (FAA Exhibit 1,Item 4, p. 22.) Itisthe City that mischaracterizes the present status ofits Federal obligations. The City misconstrues the terms ofthe valid 1948Instrument ofTransfer and statements inthe November 22,2000 Part 16Director's Determination. The City also conveniently overlooks statements acknowledging SMa's surplus property obligations inthe final agency decision on appeal from the November 2000 determination and a subsequent Part 16Director's Determination issued onJanuary 3, 2005 inBombardier Aerospace Corp.; Dassault Falcon Jet Corp. v. City of Santa Monica. The City of Santa Monica assumed Federal obligations inthe form ofAlP grant assurances until 2023, and surplus property obligations (1948 Instrument ofTransfer) inperpetuity. Thus, the City isrequired to operate its airport facilities in accordance with specified conditions in all ofthese documents, including making SMO available forpublic use onreasonable terms, and without unjust discrimination, and without granting an exclusive right, to alltypes, kinds, and classes ofaeronautical activities, including commercial aeronautical activities offering services to the public atthe airport. (See Applicable Law section) 2. The Record Shows the City Is On Notice that itis Obligated Under the Surplus Property Act of 1944 The City's position is also contrary to reported opinions issued by both the California Attorney General and a former Santa Monica City Attorney. (FAA Exhibit 1,Item 13, and FAA Exhibit 1,Item 48.) As referenced in the Applicable Law section, both the California Attorney General and the City Attorney opined that the City could not cease using the Airport for airport purposes. The California Attorney General in Opinion No 74- 317 premised his conclusion on only afew ofthe conditions inthe 1948Instrument ofTransfer, namely, that the property transferred was to beused forpublic airport purposes forthe use and benefit ofthe public; the U.S. has the right to make non-exclusive use ofthe landing area; and that no property could be used, leased, sold, salvaged or disposed ofbythe City for other than airport purposes without written release ofthe conditions inthe Instrument ofTransfer. In a 1962 legal memorandum from the City Attorney to the City Council.Y' the City Attorney notified the City Council that he had concluded in awritten opinion that the City could not legally unilaterally, on the

121 The California Attorney General references this Memorandum inhis Opinion No. 74-317, dated May 30, 1975. (FAA Exhibit 1,



### -55-motion ofthe City Council, abandon the use ofthe Airport as an airport. (FAA Exhibit 1,Item 13.) The City Attorney recognized that "(i)t isto this 'Instrument ofTransfer' that we must look to determine the present status ofthe Airport." (FAA Exhibit 1,Item 13,p. 4-5, 9-10.) Nothing inthe 1984 Agreement changes or supersedes this. Itis also clear from the 1948 Instrument o£Transfer, as detailed inthe Applicable Law Section, that the obligations transferred run with the land. I 2 The leased land and improvements were conveyed to the City in accordance with Regulation 16. (FAA Exhibit 1,Item 16.) Specific provisions ofRegulation 16are pertinent here. Regulation 16at section 8316.1 defines airport property asthe entire interest owned by the government inany airport. Airport is defined as any area ofland orwater and the improvements thereon, including arunway. Regulation 16at section 8316.5 states that declarations ofsurplus property, including leasehold interests under leases or similar rights ofoccupancy not cancelled by the owning agency pursuant to section 8316.9 shall be filed with the WAA.123 Section 8316.9, Disposal ofLeasehold Interests andImprovements by Owning Agencies, specifically discusses at subsection (d) the process by which the government could dispose ofleasehold interests under the Act. In instances where an airport consisted ofproperty, aportion ofwhich is owned bythe government and the balance was property under lease to the government, the lease could not be cancelled by the owning agency, but the leasehold interest as well as the government-owned property was declared surplus in accordance with Regulation 16, Section 8316.9(d). Contrary to the assertions bythe City, the government could not cancel the lease, but rather was required to comply with the requirements ofRegulation 16and had to declare the property surplus. This is what occurred inthis case. In furtherance ofthis, on May 7, 1946, the Army granted the City of Santa Monica arevocable Interim Permit forthe operation ofthe Airport. This grant effectively returned some operational control ofthe Airport back to the City pending its disposition as surplus property. The final CAA airport disposal report concerning "Clover Field" (Santa Monica Airport) was sent to the WAA on October 14, 1946. (FAA Exhibit 1,Items 60 and 80AfF and A/J.) With the war over, the WAA and the CAA administered the surplus property disposal forthe entire airfield property (original leasehold and improvements). All ofthe subject property was duly declared surplus arid was assigned to the WAA for disposal, acting pursuant to the provisions ofthe SPA, as amended, and applicable rules, regulations (including Regulation 16)and orders. 124 (FAA Exhibit 1,Item 16,and Item 80A.) The surplus property instrument ofdisposal was prepared and inthis case, itwas the 1948 Instrument of Transfer. The City accepted the 1948Instrument ofTransfer including the terms, conditions, and restrictions contained therein. The City acquiescence is demonstrated by itsproperly-approved City resolution accepting the 1948 Instrument ofTransfer; the 1948Instrument ofTransfer was recorded inthe County ofLos Angeles

Item 48.) 122This is further evidenced inthe Title Report prepared by Chicago Title Insurance Company which sets out the 1948 Instrument of Transfer as aquit claim deed. (FAA Exhibit 1,Item 76.) 123Regulation 16Part 8316 -Surplus Airport Property was adopted by the WAA onNovember 16, 1945 and amended by Regulation 16dated, June 26, 1946. The 1946 amended Regulation 16was in effect atthe time ofthe SMO surplus classification and disposal. 124 Surplus property instruments ofdisposal are issued under the SPA which authorizes conveyance ofproperty surplus to the needs ofthe Federal Government.



### -56-on August 23, 1948 as Document No. 1746. Atthe time, the City had requested the property it specifically acknowledged that itknew itwould have to take the premises subject to the provisions ofRegulation 16.125 The City's tries to discount the weight ofthe 1948Instrument ofTransfer by arguing that itisnot actually a deed. However, this argument is disingenuous. The 1948Instrument ofTransfer is an instrument inwriting conveying the government's interest inthe airport premises to the City with restrictions. Itwas duly delivered, accepted and recorded. The City's arguments are belied by a2001 Title Report which classifies the 1948Instrument ofTransfer as aquit claim deed. (FAA Exhibit 1,Item 76.) Accordingly, the document speaks for itself and itclearly remised, released and quitclaimed the property to the City subject to the reservations, restrictions, conditions, and exceptions setout init. As the record shows, the process undertaken in 1948 forthe Santa Monica Airport was standard practice for transferring surplus airport property. This process isvery similar to the process undertaken today; any conveyance ofsurplus Federal land topublic agencies for airport purposes is administered today by the FAA, in conjunction with the U.S. Department ofDefense (DOD) and the GSA and pursuant to 49 U.S.C. §47151, et seq.. 50U.S.C. App. 1622(a)-(c) specifically imposes upon the FAA the sole responsibility for determining and enforcing compliance with the terms and conditions ofall instruments oftransfer by which surplus airport property is orhas been conveyed to non-Federal public agencies pursuant to the SPA. The SPA and Regulation 16both covered the transfer ofreal property infee simple, leasehold interests and government improvements (the whole airfield) under the same obligations provided under the Act and incorporated inthe 1948 Instrument ofTransfer. The Director isnot questioning the validity ofleases the City had with the Federal government orwhether they were valid when amended, but rather recognizes that the leases were superseded by other events, namely the government surrender ofits leasehold interests together with improvements conveyed via the specific obligations outlined inthe 1948Instrument ofTransfer. Accordingly, Proclamation 2487 and its termination byPresident Truman on April 28, 1952, has no application to the circumstances at SMa since these acts only applied to existing leases, not surrendered leases like the ones discussed herein. The 1948Instrument ofTransfer superseded the December 1944 "Resolution Constituting Agreement With the United States Relative to Operation andMaintenance ofthe Santa Monica Airport, "inthat with the executed surplus property conveyances, the City's obligations run with the land

- inperpetuity. 3. Specific Restrictions in the 1948 Instrument ofTransfer In accepting the 1948Instrument ofTransfer, the City assumed certain obligations, reservations and conditions aspart ofthis transfer (Federal obligations), and these took the form ofrestrictive covenants inthe conveyance instruments requiring the grantee to maintain and operate the airport in accordance with specified conditions. (FAA Exhibit 1,Item 15A and 80AIQ.) Three ofthe restrictions listed inthe 1948Instrument of Transfer executed between the Federal government and the City ofSanta Monica, are atissue inthis case. The first restriction isthat: "the land, buildings, structures, improvements and equipment inwhich this instrument transfers any interest shall be used forpublic airport purposesfor the use and benefit ofthe public, on reasonable terms and without unjust discrimination and without grant orexercise ofany exclusive right foruse ofthe airport

.... "

125Cityrequested facilities constructed on airport land owned by City be classified for "disposal as an airport or as airport facilities, subject to such conditions asthe Administrator may desire to impose under the provisions of Surplus Property Administration Regulation 16and amendments thereto." (FAA Exhibit 1,Item 80A/G.)

- 57-The second restriction inthe 1948Instrument ofTransfer pertains to the improvements transferred (in this case anew 5000 foot runway): "the entire landing area, as defined inRegulation 16

... ,and all structure, improvements, facilities and equipment inwhich this instrument transfers any interest shall be maintainedfor the use and benefit ofthe public atall times in good and serviceable condition

... " Athird relevant restriction independently re-states the exclusive rights prohibition that: "no exclusive right foruse ofthe airport atwhich the property transferred by this instrument is located shall be vested (directly orindirectly) in any person orpersons to the exclusion ofothers inthe same class, the !. terms "exclusive right" being defined to mean... and any exclusive right to use the airport for conducting any particular aeronautical activity requiring operation ofaircraft." In addition, the 1948 Instrument ofTransfer states that: "the entire landing area, as defined inRegulation 16

... ,and all structure, improvements, facilities and equipment inwhich this instrument transfers any interest shall be maintained forthe use and benefit ofthe public at all times in good and serviceable condition

.... " The FAA has the sole responsibility for determining and enforcing compliance with the terms and conditions ofall instruments oftransfer by which surplus airport property is orhas been conveyed to non-Federal public agencies pursuant to the SPA.126 Accordingly, such covenants continue in full force and effect until released under 50App. U.S.C.A. § 1622(g) (1949) (originally enacted as Surplus Property Act of 1944, ch. 479, § 13, 58 Stat. 765, 770) orother applicable Federal law. While FAA recognizes certain approved property was released from the obligations inthe 1950'sand thereafter, the restrictions embedded inthe 1948 Instrument of Transfer remain onbulk ofthe airport premises transferred. Violations ofthe restrictive covenants trigger the provision ofthe 1948Instrument ofTransfer providing for reversion ofthe premises. The specific language states: "that inthe event that any ofthe aforesaid terms, conditions, reservations orrestrictions isnot met, observed, orcomplied with bythe Party ofthe Second Part (City) or any subsequent transferee, whether caused by the legal inability ofsaid part ofthe Second Part or subsequent transferee to perform any of the obligations herein set out, orotherwise, the title, right ofpossession and all other rights transferred by this instrument to the Party ofthe Second part, or any portion thereof, shall atthe option ofthe Party ofthe First Part (government) revert to the Party ofthe First Part sixty (60) days following the date upon which demand to this effect ismade inwriting by the Civil Aeronautics Administration orhis successor in function" Equally noteworthy isthe fact that the City, as grantee under the 1948Instrument ofTransfer, accepted the transfer subject to the specific reservations and restrictions, including the three stated above, which were set out inthe document and stated to run with the land. This also can be contrasted with the subsequent 1949 Quit Claim Deed, which transferred approximately 18- 21 acres ofgovernment owned property without the standard restrictions atthe request ofthe City. (FAA Exhibit 1,Item 15B, FAA Exhibit 1,Item 80B/H.) AFebruary 21, 1949, US Army communications

12641 CFR § 102-75.425.

-58-discussing the City's request to have the subject premises conveyed without the restrictions confirms that the remainder ofthe installation (SMa) "has been transferred to the City ofSanta Monica under allthe restrictions imposed by Regulation 16ofthe Surplus Property Act of 1944." (FAA Exhibit 1Item 80B/D.) The City completely ignores the climate and the times when this transfer occurred. As the 9th Circuit noted in Us. v.Jones, 176F2d 278, 289 (9th Cir, 1949), the Surplus Property Act of 1944 was not acasual statute, enacted inhaste to cover anunexpected situation. The statute became effective on October 3, 1944, at atime when the tide ofthe war was turning. Congress anticipated that the early end ofhostilities would find many governmental agencies inpossession ofproperty intended 'forwar purposes and common defense', and which, no longer needed, would become surplus. They, therefore, devised acomprehensive scheme for disposing of the property in amost effective manner, and in conformity with their conception ofthe American way oflife, which they setforth intwenty avowed aims, 50U.S.C.A. Appendix, § 1611(a) to (t). Moreover, the City isplainly wrong in stating that California state law has any application to the validity and reading ofthe terms ofthe 1948Instrument ofTransfer. (FAA Item 1,Exhibit 92, p. 21.) TheJones court addressed this issue as well and disposed ofitwith "brevity". The court relied on

# us. v.Allegheny County, 322 U.S. 174 (1944), and reiterated that the "validity and construction ofcontracts through which the United States is exercising its constitutional functions, their consequences onthe rights and obligations ofthe parties, the titles orliens which they create orpermit, allpresent questions ofFederal law not controlled by the law of any state." 176F.2d at281. The Surplus Property Act of 1944 was passed to aid the reconversion from awar to apeace economy through the distribution ofsurplus government property. (See Surplus Property Act of 1944, Pub. L. No. 78-457, 58 Stat. 765 (1944)) "Whenever any government agency is authorized to dispose ofproperty under this Act, then the agency may dispose ofsuch property by sale, exchange, lease, ortransfer

...with orwithout warranty, and upon such other terms and conditions, as the agency deemsproper" Id. at § 15(a). (emphasis added.)The City conveniently sidesteps the fact, that itreceived millions ofdollars ofsignificant valuable improvements to the airfield for free with the only caveat that the transfer was conditioned onthe inclusion ofcertain restrictions designed to protect subsequent users ofthat property. This was inkeeping with the SPA and Regulation 16; the City's acceptance ofthe 1948Instrument ofTransfer with the stated conditions is clearly evidenced by its request forthe property and its actual recording ofthe document. Now, the City contends that the restrictions only attached to the improvements and that "any improvements that may have been made and conveyed by the Federal Government as of 1948 have exhausted their useful lives"

. (FAA Exhibit 1,Item 92, p. 24.) The City is again mistaken. The restrictions attached to the whole transfer, per Regulation 16,which is discussed in detail inthe Applicable Law Section and subsection two ofthis section. As stated, where an' airport consisted ofproperty aportion ofwhich is owned by the Government and the balance ofwhich is property under lease to the Government, the lease was not cancelled, but the leasehold interest as well as'the Government-owned property was declared surplus in accordance with Regulation 16, Section 8316.9(d). In this case, the whole ofthe airport premises at Santa Monica was declared surplus and the restrictions properly attached to the leasehold interest as well asthe improvements. Additionally, the City has acontinuing obligation to maintain the improvements, including the brand new 5000 foot runway that was transferred in 1948. This critical infrastructure improvement continues to have value today. The City cites to FAA Order 5190.6A, paragraph 8-2 as support for its narrow construction ofthe City's surplus property obligations. Paragraph 8-2 addresses the Federal government's right to revert surplus property. The City overlooks the portion ofparagraph 8-2which states that the right to revert extends to not only title and right ofpossession but also to other rights vested in the USatthe time the property described in the instrument ofconveyance was transferred to the grantee. The SPA restrictions were imposed in

-59-accordance with Regulation 16as stated above and such rights were vested inthe US atthe time the property was transferred. As previously mentioned, SMO isnot unique inthis regard. The Federal government held leasehold interests in substantial numbers ofairports across the county and several hundred ofthese airports have surplus property deed and instrument oftransfer restrictions similar to SMO's. 4. Prior Santa Monica Part 16Cases As noted, the City contends inits 2008 Reply that the FAA in executing the 1984 Agreement, released the City from the "conditions, covenants, and restrictions imposed bythe Instrument ofTransfer dated August 10, 1948, Deed No.4 (CCS), and allowed "use ofland designated asparkland and residual land therein for other than airport and aviation purposes." (FAA Exhibit 1,Item 4, Exhibit 3,p. 7.) The Director finds that this argument lacks merit. The 1984 Agreement, agreed to bythe City, only evidences release ofsome airport land covered by the Surplus Property Act, specifically certain residual land to be used fornon-aeronautical uses, but not remaining aeronautical use property. (See FAA Exhibit 1,Item 4, Exhibit 3.) The 1984 Agreement, as discussed is subsection lIB above and V.E below, is subject to review here and did not result in arelease ofFederal obligations permitting the City to close the Airport. For example, formal releases ofFederal obligations for disposal would include a "Deed ofRelease," asprovided for under FAA Order 5190/6A, Chapter 7 and Appendix 4 and in accordance with 14CFR Part 155. (See also FAA Exhibit 1,Items 80A and 90.) Title 14CFR Part 155 contains procedures which must be followed to release airport property from surplus property disposal restrictions contained inthe conveyance instrument. (FAA Order 5190.6A,Section 7-6 (a).) In addition, the Associate Administrator for Airports (ARP-l) must concur before an airport sponsor may be released from its obligations and permitted to abandon ordispose ofan entire airport for non-airport purposes. (FAA Order 5190.6A, Section 7-20 (a).) No record evidencing the same has been presented for consideration inthis proceeding. Based on the foregoing, all ofthe property today classified for airport purposes remains obligated under the 1948 Instrument ofTransfer. Additionally, the City relies on afaulty reading ofaDirector's Determination issued onNovember 22,2000 in Santa Monica Airport Association, Krueger Aviation, Inc., and Santa Monica Air Center v. City ofSanta Monica (Krueger), FAA Docket No. 16-99-21. The Complainants inthat 1999 case did not allege violations ofsurplus property obligations. Therefore, the Director did not find itnecessary to reach issues concerning potential violations ofthe obligations contained inthe 1948Instrument ofTransfer inhis determination. This is clear from the Applicable Law Section ofthe determination, which does not recite the Surplus Property Act. The City refers to one sentence inthe determination, which states: "[T]he Settlement Agreement makes clear that the City is obligated to operate the Airport only forthe duration ofthe Agreement (through July 1, 2015)." This one sentence isnot sufficient to establish that the City has no surplus property obligations. It must be read in context ofthe case inits entirety, including

- the footnote that the Associate Administrator included on appeal inthe final agency decision clarifying the very limited relationship between the 1984 Agreement and the City's Federal obli¥ations to use certain property for airport purposes. (See Krueger Final Agency Decision (FAD), footnote 4.)1 7

127The Associate Administrator noted on appeal inthe February 4, 2003 Krueger FAD that "(t)he Appellants mention the existence ofa '1948 Instrument ofTransfer' that obligates the Sponsor to operate the Airport. However, the FAA, as specified inthe 1984 Agreement to which the FAA is aparty, approved the boundary ofthe Airport as shown on the Airport Layout Plan and consented to the use of land designated as parkland and residual land therein for other than airport purposes. FAA also released the City and these parcels from the restrictions imposed inthis instrument ofconveyance, and agreed that the City may develop these parcels in accordance with the 1984 Agreement." (See Krueger FAD, footnote 12.)

-60-Ten months later, on October 15,2003, (over ayear after the issuance ofthe NOI) and aspart ofan extensive letter concerning proposed safety enhancements at SMO, the FAA notified the City that SMO was obligated under the SPA. Specifically, the FAA stated: "In addition, the Airport has incurred obligations inthe form ofrestrictive [instrument oftransfer] covenants arising from conveyances ofland executed onAugust 10, 1948

... under the Surplus Property Act of 1944, as amended, 49 U.S.C. 47151-47153." (FAA Exhibit 1,Item 12.) Moreover, inthe Director's Determination forBombardier Aerosgace Corp.; Dassault Falcon Jet Corp. v. City ofSanta Monica, issued onJanuary 3,2005, No. 16-03-11,1 8the Director made abundantly clear that the City is obligated under the SPA and also found that the City was inviolation ofthe SPA. The Determination stated: "SMO is also obligated under the powers and authority contained inprovisions ofthe Surplus Property Act (SPA) of 1944 as amended, 49 U.S.C. §4715 1

- 1 53. Surplus Property agreements contain restrictive deed covenants similar to those under 49 U.S.C. §47107 (a)(l), 49 U.S.C. §47107 (a)(4) and 49 U.S.C. §40103 (e) addressing reasonableness, unjust discrimination and exclusive rights. Therefore, these surplus property obligations also apply inthis case. Surplus property deed covenants run with the land and do not expire." These extensive examples ofnotice to the City ofits SPA obligations, in addition to the actual record notice in the Los Angeles County Clerk's Office andthe absence ofany recorded release, refute any legitimate claim by the City that the restrictive covenants do not apply or are not enforceable. Additionally, the notices counter any merit to the City's claim that the SPA allegations are flawed since they were not raised inthe 2002 NOr. As mentioned above, the FAA has the sole responsibility for determining and enforcing compliance with the terms and conditions ofall instruments oftransfer by which surplus airport property has been conveyed to non-Federal public agencies pursuant to the SPA. Based upon acomprehensive review ofthe record, the Director finds that the City's actions are contrary to the obligations contained inthe 1948 Instrument of Transfer, which run with the land and do not expire. Specifically, the City's actions in, implementing the Ordinance to restrict access to category C and D aircraft are not consistent with the City's Federal SPA obligations. 5. Conclusion on the Applicability ofthe Surplus Property Act of 1944 to SMO The 1948 Instrument ofTransfer is standard, valid and enforceable. The SPA, applicable regulations and policy permitted the military, the CAA and the WAA to classify the government's property interests (lease and improvements) in SMO as surplus property and dispose ofitsproperty interests, in exchange for standard restrictions on the use ofthe property. These restrictions included the obligations that the airport be operated as an airport, that itbeproperly maintained, without granting an exclusive right, without unjust discrimination and on reasonable terms that run with the land. In summary, the record shows that the government disposed ofthe property in atransparent manner, in accordance with all existing laws, regulations and polices, and that the City willingly agreed to the terms and conditions imposed bythe government when the lease was surrendered. Moreover, the government's property interest was conveyed to the City under the 1948Instrument ofTransfer, by which the government

128The Director's Determination was not appealed and thus became the final decision and order ofthe FAA without further action. (See 14CFR § 16.33(e).)

- 61

-specifically quit claimed itsproperty interest to the City but with specific terms and conditions asprovided for inthe 1944 SPA. The record also shows that the City's adoption ofthe Ordinance is contrary to the provisions requiring public access at SMO and thus conflict with the City's Federal obligations contained inthe 1948 Instrument of Transfer inthat the City's action is inconsistent with the SPA obligations to make SMO available to the public as an airport under reasonable terms, without unjust discrimination and without granting an exclusive right. Therefore, based onthe above, the Director rejects the City's argument that SMO isnot obligated under the Surplus Property Act of 1944 (SPA) and that "the FAA utterly mischaracterizes the nature ofthese transfers" in addition to asserting these "new claims against the City" forthe first time. (FAA Exhibit 1,Item 4, p. 16.) The Director concludes that the City has acted contrary to the obligations contained inthe 1948 Instrument of Transfer, which run with the land and do not expire. E. Whether the implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the City ofSanta Monica is consistent with the terms ofthe 1984 Agreement. As explained above inthe discussion onjurisdiction, we address the 1984 Agreement inthe present Part 16 action because the Agreement incorporates and restates several ofthe City'S Federal obligations including the reasonable access requirement andprohibitions on unjust discrimination and the granting ofexclusive rights. The FAA has statutory jurisdiction to determine the City's compliance with its grant assurance and surplus property act covenants independently ofthe 1984 agreement. However, the Agreement entered into by the City inthe context ofsimilar litigation also stands as a separate specific undertaking by the City to be bound by those assurances. Sohaving found onthe record inthis determination that the City violated its assurance and surplus property act obligations requiring SMO to impose reasonable terms, not engage inunjust discrimination, and not grant exclusive rights, the same evidence establishes aviolation ofthe corresponding section inthe 1984 Agreement by the City (section 2(a)(i) ofthe 1984 Agreement). The FAA isnot "interpreting the agreement" as the City claims, but rather making a supplementary finding pertaining to the violation ofthe City's Federal obligations asrestated inthe Agreement and as agreed to by the City. The City'S arguments onthe 1984 Agreement are addressed in other sections ofthis determination but are reviewed here as well. The City takes the position that "by reference to and incorporation ofFAA Advisory Circular 150/5300AB, dated February 24, 1983 regarding aircraft with slower approach speeds, the 1984 Settlement Agreement establishes that the Airport will continue to accommodate Category A 

### & B aircraft until 2015" and that the 1984 Agreement does not require the City to accommodate Category C & D aircraft. (FAA Exhibit 1,Item 4, p.3.) In fact, the City goes as far asreferring to A & B design references inthe 1984 Agreement "mandate" a certain level ofaccess. (FAA Exhibit 1,Item 4, p. 24-25.) As stated above while the design Airport Reference Code (ARC) isused in airport planning, design, and in funding airports and runways, itis never used to control aircraft operations ("These standards and recommendations

...do not limit orregulate the operations ofaircraft"

-AC 150/5300-13, Airport Design, Change 12,Paragraph 1. Also," [t]he standards and recommendations inthis publication complement, but are not intended to take precedence over, aircraft operating rules andprocedures"

- (superseded) AC 150/5300- 4B, Change 6, UtilityAirports

- AirAccess toNational Transportation.)



### -62-The City misquotes and misinterprets the express language ofFAA Advisory Circular on Airport Design. Its interpretation ofthe 1984 Agreement is also not supported by the terms ofthe agreement orthe relevant facts. The section ofthe 1984 Agreement atissue, Section 8, clearly commits the City to operate and maintain the airport without derogation ofits role as ageneral aviation reliever airport or its capacity interms ofrunway length and width (5000 feet by 150feet). Itfurther provides that the Airport will be capable of accommodating most kinds ofgeneral aviation aircraft generally consistent with Group IIDesign Standards set forth inFAA Advisory Circular 150/5300.4B. When the 1984 agreement was executed, Category C and D aircraft were qualified to operate and were operating safely at SMa and have continued to so qualify and operate through the present day. Said operations are inkeeping with SMa's role ageneral reliever airport and generally consistent with Group II Design standards because, as explained above itisnot inherently unsafe for an aircraft ofalarger design category to utilize an airport that has been designed to accommodate alesser design category ofaircraft ifthe aircraft meets the FAA approved operational requirements forusing SMa. The FAA strictly regulates the safe operation ofaircraft from certification (e.g. 14CFR Part 25) to the manner inwhich the aircraft is operated (e.g. 14CFR Part 135). Both types ofregulations cover runway length requirements. Moreover, pilot certification, the operation ofaparticular aircraftlflight, including the amount ofrequired runway for a take offand landing, are all regulated bythe FAA. For over 20 years Category C and D aircraft have operated at SMO inkeeping with the 1984 Agreement. Separate and apart from other requirements that itnot unjustly discriminate against operators, the City is also bound by its own specific promise not to unjustly discriminate against airport users inthe 1984 Agreement, which was included as a special grant assurance condition in its federal grant agreements. F. Whether the implementation ofthe adopted Ordinance prohibiting category C and D aircraft by the City ofSanta Monica is otherwise preempted by Federal law. The Ordinance isPreempted The City inresponse to the Order to Show Cause argues that the FAA has identified no basis for its finding that the Ordinance in question is either expressly orimpliedly preempted, and that the Ordinance is entitled to a strong presumption ofvalidity as aproper exercise ofpolice power. The City is wrong in every respect. The FAA Has Exclusive Authority Over Aviation Safety Congress's clear desire for auniform, nationwide system ofaviation safety, and the FAA's exercise ofits authority, leave no room for state orlocal regulations promulgated expressly on the basis ofaircraft safety. When Congress enacted the Federal Aviation Act of 1958, Pub. L. No. 85-726, 72 Stat. 731 (codified as amended at49 U.S.C. §40101 et seq.)(See H.R. REp.No. 85-2360 (1958), reprinted in 1958 U.S.C.C.A.N. 3741,3742) itprovided for a single, uniform scheme ofnationwide regulation and authorized the FAA "to provide forthe regulation and promotion ofcivil aviation in such manner as to best foster its development and safety, and to provide for the safe and efficient use ofthe airspace by both civil and military aircraft." Pub. L. No. 85-726, 72 Stat. at 731; see also id. § 103(c), 72 Stat. at740 (declaring that the FAA consider, "as being inthe public interest," "[t]he regulation ofair commerce in such manner as to best promote its development and safety") (codified as amended at49 U.S.C. §4010l(a)(1) (placing "safety" as "highest priority in air commerce")). In accordance with this goal, Congress authorized the FAA to exercise "full responsibility and authority forthe advancement and promulgation ofcivil aeronautics generally, including the promulgation and enforcement of safety regulations." H.R. REP.No. 85-2360, reprinted in 1958 U.S.C.C.A.N. at 3741; see also S. REP.No. 85-1811, at 1 (1958).

- 63-In accordance with its statutory obligations under the Federal Aviation Act, the FAA has developed an extensive system ofaviation safety certification and regulation. This system governs, among other aspects of aviation safety, certification ofaircraft design and manufacture in accordance with federal airworthiness standards, 14C.F.R. Parts 21, 23, 25, 27, 29, 31, and 33; certification ofthe safety ofoperators seeking to transport cargo ormembers ofthe public in specified operations, 14C.F.R. Parts 119, 121, 125, and 135; the operation ofaircraft in specific classes ofairspace, 14C.F.R. §§ 91.101-91.145; and the flight rules under which an aircraft is operated, 14C.F.R. §§ 91.151-91.193.129 The courts have properly recognized that this comprehensive statutory and regulatory scheme endows the FAA with exclusive authority over aviation safety. Montalvo v.SpiritAirlines, 508 F.3d 464,476 (9th Cir. 2007); Greene v.B.F. Goodrich Avionics Systems, Inc., 409 F.3d784, 794-95 (6th Cir. 2005); Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999). A local ban affecting categories ofaircraft otherwise free to serve an airport intrudes onto this field in amanner directly contrary to this national approach.v'" Even the case relied upon by the City, Rice v.Santa Fe Elevator Corp., 331 U.S. 218 (1947), acknowledges that there isno presumption against preemption inthese circumstances. Santa Monica's invocation ofRice for the proposition that its Ordinance is entitled to apresumption against preemption as an exercise ofpolice power ismisplaced. InRice, Congress had legislated "in afield which the States have traditionally occupied." But that isnotthe case with regulation ofthe nation's airways and aircraft, where (as the Rice Court noted) the Federal scheme is one "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." 331 U.S. at230. The presumption on which the City relies has no application inthese circumstances. See United States v.Locke, 529 U.S. 89 (2000) (there isno initial assumption that State laws arevalid inthe traditionally Federal domain ofnational and international maritime commerce). Airport Proprietary Powers Do Not Authorize the Ordinance Equally unpersuasive isthe City's contention that its Ordinance isproper under the airport proprietor exception to Federal preemption. The exception, codified in49 U.S.C. §41713(b)(3), is "extremely limited in scope." American Airlines, Inc. v.DOT, 202 F.3d 788, 806 (5thCir. 2000) and cases cited therein. The exception has never been held to allow aproprietor to ban categories ofaircraft from an airport based on.. safety. 13) Even actions within the exception's scope must bereasonable, nonarbitrary, and nondiscriminatory. Id.;Arapahoe County Public Airport Authority v. FAA, 242 F.3d1213, 1221-22 (loth Cir. 2001),' City and County ofSan Francisco v.FAA, 942 F.2d 1391, 1394 (9thCir. 1990). The City'S effort to ban Category C and D aircraft, which have qualified to operate and have operated safely at SMO for over twenty years, is

129According to the Supreme Court, the Federal Aviation Act was enacted to create a "uniform and exclusive system ofFederal regulation" inthe field of aviation safety. City ofBurbank v.Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973). 130The Federal Aviation Act of 1958, recodified at49 U.S.c. 40101, et seq., "requires adelicate balance between safety and efficiency, and the protection ofpersons on the ground." Id. 131MillardRefrigerated Services, Inc. v.FAA, 98 F.3d 1361 (D.C. Cir. 1996) is not to the contrary. Inthat case the airport did not purport to exercise proprietary authority to ban aircraft on safety grounds in defiance ofFAA. To the contrary, the proprietor ofa small design category airport acted to ban large airplanes inaccordance with the agency's specific direction. The FAA advised the airport that continued operation of large aircraft on aregular basis inthe circumstances ofthat case would be unsafe and violate the airport's federal grant assurance obligations. The facts were that FAA issued newly effective standards for large and small airplane design category airports while the airport was planning improvements using federal funding. Due to physical constraints and the great expense, the airport could not make the modifications needed to meet large airplane design category airport standards. Moreover, the strength ofthe airport pavement, given frost conditions, could not support regular operations by large airplanes. The court ruled only that the FAA had to consider an argument ithad addressed outside the Part 16proceeding, e.g. the applicability ofthe Airport Noise and Capacity Act of 1990.

- 64-unreasonable, arbitrary, and discriminatory. Not only does its proprietary power not extend so far, butit is difficult to imagine amore clear-cut local attempt to frustrate Federal law. Arapahoe County, supra. 132 The City cites Grant 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 that assurance reflects only the limited proprietary authority discussed above, and is limited so as to ensure consistency with FAA safety determinations. Arapahoe County, 242 F.3d at 1223 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 forpurposes deemed to be incompatible with safety under the local conditions peculiar to that airport. However, as noted inthe Order, this authority isnot unbridled. The airport may propose an access restriction based on safety and efficiency, but when such arestriction triggers acomplaint, such as this complaint, the FAA Airports Office will review the supporting justification and make the final determination regarding the reasonableness ofan access restriction. Restrictions based on safety and/or efficiency require supporting justification from the appropriate Flight Standards and/or Air Traffic Offices.") Accordingly, assurance 22(i) does not authorize proprietors to act outside that "vary limited" scope, much less in amanner contrary to FAA's express safety determinations. The FAA has concluded that category and C and D aircraft operate safely at SMO, and the City'S proprietary authority does not empower itto ban their operations onthe basis ofunfounded safety concerns. The City contends that the courts have recognized airport proprietary rights to restrict access based on ' local considerations, citing WesternAirlines vPortAuthority, 658 F. Supp 952 (SDNY 1986), aff'd, 817 F.2d 222 (2ndCir. 1987); cert. denied 485 U.S. 1006 (1988); see e.g. City ofBurbank v Lockheed Air Terminal, Inc., 411 U.S. 624, 635 n.14 (1973); British Airways Board vPortAuthority ofNew Yorkand New Jersey, 558 F.2d 75,84 (2nd Cir. 1977); Santa Monica Airport Assoc. v City ofSanta Monica, 659 F.2d 100, 102-104 (9th Cir. 1981). The City argues that the Ordinance furthers the compelling local interest inmanaging potential govemmentalliability. Itmaintains that "the risk offinancial loss is greatly exacerbated by the disparity between the FAA's own design standards and the physical realities ofthe Santa Monica Airport

.... " Itfurther argues that there isno field preemption with regard to aproprietor's ordinance and that "the only conceivable, question is whether the City's Ordinance must yield to conflict preemption. " The City cites no authority for the proposition that airport proprietors may restrict access based upon financial liability for operations that comply with federal safety laws because there isnone. All ofthe cases cited by the City (i.e. City ofBurbank, British Airways, andSanta Monica Airport Ass 'n.) are inapposite. These cases address liability fornoise damages and ground congestion, not restrictions based upon local safety concerns about aircraft approach speed. In any event, it isrecognized that proprietary exceptions inthe context ofaviation must be narrowly construed. Cf., Rowe vNew Hampshire Motor Transport Ass 'n, 128 S. Ct. 989, 996 (2008)(In the context ofthe Airline Deregulation Act the Supreme Court recognizes only the narrowest proprietary exception). Indeed, state and local laws purporting to regulate landings and takeoffs and infringe upon federal regulation ofthe navigable airspace are

132Neither does the FAA Airport Compliance Requirements Handbook on which the City relies, support its contentions. Although the reference airport proprietary authority inthe context ofsafety, the Handbook explicitly reserves to the FAA the power to "make the final determination ofthe reasonableness ofthe airport owner's restrictions which denied orrestricted use ofthe airport." (FAA Order 5190.6A, section 4.8.),



### -65-unenforceable under the supremacy clause and may properly be enjoined by afederal court. Us. v. City ofNew Haven, 496 F.2d 452 (2d Cir. 1974)(orders ofstate court purporting to halt use of airport runway extension in connection with use ofexpanded clear zones in adjacent town held federally preempted). The City's reliance upon City ofBurbank as authority forrestrictions based upon local considerations is also misplaced. According to the Burbank court,

Ifwe were to uphold the Burbank ordinance and a significant number ofmunicipalities followed suit, itis obvious that fractionalized control ofthe timing oftakeoffs and landings would severely limit the flexibility ofFAA in controlling airtraffic flow. 411 U.S. at 639-640. See alsoAir Transport Ass'n ofAmerica, Inc v Cuomo, ---F. 3d ---, 2008 WL 763163 (2d Cir., Mar. 25, 2008 at 6 (differing restrictions would "unravel[] the centralized Federal framework for airtravel"); French v.Pan Am Express, Inc, 869 F.2d at 6 ("Such a "patchwork ofstate laws inthis airspace

...would create acrazy-quilt effect") and Rowe v.New Hampshire Motor Transport Ass'n, 128 S.Ct. 989, 996 (2008) (to interpret the Federallaw to permit these, and similar, state requirements could easily lead to apatchwork ofstate servicedetermining laws, rules, and regulations). The FAA has, in any event, offered to assist the City with installation ofEMAS onthe runways and other reasonable measures to enhance safety but the City has refused to consider such measures. Similarly, FAA's proposal for aFederally funded voluntary program ofproperty acquisition, initially limited to approximately 15-20 homes inthe most critical areas inthe RSA and RPZs for both runways at SMO, has not been acted upon by the City. As opposed to an outright ban the City has available anumber ofoptions to address its claimed potential liability, but has failed to actupon any ofthem.

VI. FINDINGS AND CONCLUSIONS Under the particular circumstances existing at SMO and the entire record herein, and upon consideration of the submissions and responses bythe City and the applicable law andpolicy and forthe reasons stated above, the Director concludes that:

• The implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the City of Santa Monica isnot consistent with the Federal obligation to make its airport available as an airport for public use on reasonable terms and without unjust discrimination to alltypes, kinds, and classes of aeronautical activities (Grant Assurance 22Economic Nondiscrimination).

• The implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the City of Santa Monica isnot consistent with the Federal obligation prohibiting the granting ofan exclusive right at the airport to conduct any aeronautical activities (Grant Assurance 23 Exclusive Rights).

• The implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the.City of Santa Monica isnot consistent with the Surplus Property Act of 1944.

• The implementation ofthe adopted Ordinance prohibiting Category C and D aircraft by the City ofSanta Monica isnot consistent with the terms ofthe 1984 Agreement.

-66-• The implementation ofthe adopted Ordinance prohibiting Category C and D aircraft bythe City of Santa Monica ispreempted under Federal Law. VIII. ORDER ACCORDINGLY, the FAA Orders that:

a. The City of Santa Monica and Santa Monica Airport (SMO) present aplan to the Office of Safety and Standards, Compliance Division, ofthe FAA within 20 days from the date ofthis Director's Determination on how itintends to address the FAA's concerns by eliminating the violations outlined above; b. Pending FAA approval ofthe corrective action plan specified in Ordering Paragraph I, oruntil further notice, the City and SMO are ineligible to apply for new FAA grants pursuant to 49 U.S.C. § 47106(d);133

c. Ifthe City and SMO do not submit acorrective action plan in accordance with the Ordering Paragraph 1 above or appeal this determination as setforth below, the FAA proposes to issue aFinal Cease and Desist order pursuant to 49 U.S.C. §47122 and 14CFR §16.109(a)) directing the City of Santa Monica to permanently cease and desist from banning by Ordinance orotherwise, from Santa Monica Municipal Airport, Category C and D aircraft operations or any other aircraft operations that the FAA considers to be operationally safe to use the Airport; 134 d. The FAA will provide acopy ofthis Determination and Order to the Secretary ofTransportation to permit the Secretary to notify the appropriate Department operating administrations ofthe City's noncompliance posture with its Federal obligations when considering an award offuture Federal funds that would otherwise be made available to the City, and funds that would be made available to the State ofCalifornia for the City (including any multimodal transportation agency ortransit authority ofwhich the City is amember entity) aspart ofaTitle 49 apportionment orgrant;

e. The Supplemental Interim Cease and Desist Order ofMay 12, 2008 is incorporated byreference herein and continues in effect until such time as the FAA accepts acorrective action plan from the City and SMO resolving this matter orthe final cease and desist order isissued. All motions not expressly granted herein are denied. 135

133The I80-day limit on suspension ofeligibility contained in §47106(d) applies only to applications to receive AlP funds apportioned under 49 U.S.C. §§ 47II4(c) and (e). The City and SMO are not eligible to receive these apportioned funds. Therefore, the I80-day limit does not apply. 134Based on the record, the City has stopped taking Federal AlP grants as of2003, Therefore the immediate suspension of grant payments pursuant to 49 U.S.c. §47III(d) and future grant applications pursuant to 49 U.S.C §47I06(d) are not an effective sanction inthis case. 135 Safety Recommendation: The Director notes that restricting C and D aircraft, in addition to being inconsistent with the City's Federal obligations, is not an effective means to enhance safety at SMa. As the FAA has advised on several occasions inthe past few months, and as represented inthe record, the FAA's proposal to enhance safety at SMa would both help prevent, reduce the likelihood, and reduce the severity of an accident, should one occur. This proposal, outlined by the FAA to the City inwriting on March 7, 2008 and again at the City Council meeting on March 25,2008, includes (I) a pilot awareness program to be developed inconjunction with FAA's Flight Standards office and based on an Information for Operators (Info), (2) a 70-knot Engineered Materials Arresting System (EMAS) on the departure end ofrunway 2I, where arisk analysis indicates the potential for overrun is higher and hence where the maximum benefits lie, including arresting aircraft of any category that exceed 12,500 lb (and possibly even lower to 9,000 lb. single-wheel), and (3) the implementation of a voluntary program ofproperty acquisition, initially limited to approximately 15-20 homes inthe most critical areas inthe RSA and RPZs for both runway at SMa. (FAA Exhibit I, Items 7b and 113.)

- 67-RIGHT TO APPEAL OR REQUEST A HEARING

Pursuant to 14CFR Part 16,the City may request ahearing under subpart FofPart 16within 20 days after service ofthe Director's Determination. (14 CFR §§ 16.31(d) and 16.109(1).) There is no statutory requirement to afford the opportunity to request ahearing inthis matter. (See e.g., 49 U.S.c. §§ 47106(d) and 47111(d).) However, the FAA isaffording the City this opportunity here inthe exercise ofthe FAA's discretion. The City may waive ahearing and appea.I this initial determination tothe FAA Associate Administrator forAirports pursuant to 14CFR § 16.33(b) within thirty (30) days after service ofthe Director's Determination (14 CFR §§ 16.31(c), 16.33, and 16.109(c)(2).) Alternatively, the City may submit, jointly with FAA counsel, aproposed consent order under §16.243(e). (14 CFR §16.109(4).)

This Director's Determination is an initial agency determination and does not constitute final agency action subject tojudicial review under 49 U.S.c. §46110. See also 14CFR § 16.247. However, ifthe City elects notto request ahearing orto file an appeal inwriting within the time period specified in 14CFR § 16.109, the Director's Determination becomes final. (14 CFR § 16.l09(d)) 

# 14~~

~~n~ Director, Office ofAirport Safety and Standards" Date: 

# .5/9~ ;?

136 The Office was reorganized effective April 29, 2008 and the functions that were formerly performed by AAS-l are now the responsibility ofACO-I. Byron K. Huffinan isacting AAS-I and acting ACO-l. The Office ofAirports expects to fill the ACO-l position inJune.

- 68-CERTIFICATE OF SERVICE IHEREBY CERTIFY that on May 27,2008, Icaused to be served by electronic mail (e-mail) atrue copy ofthe foregoing document, and by overnight express delivery service (Federal Express), atrue copy ofthe foregoing document and adisc containing the documents comprising the Administrative Record addressed to: Marsha Jones Moutrie City Attorney City of Santa Monica 1685 Main Street Santa Monica, CA 90401 marsha.moutrie@smgov.net

Martin T. Tachiki Deputy City Attorney 1685 Main Street Santa Monica, CA 90401 Marty. Tachiki@SMGOV.NET

Thomas R. Devine, Esq. Kaplan Kirsch & Rockwell, LLP 1001 Connecticut Avenue, NW #905 Washington, DC 20036 tdevine@kaplankirsch.com 

# ~~iAeJL

FAA Office ofChief Counsel 

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- 69-INDEX OF THE ADMINISTRATIVE RECORD The following items constitute the administrative record inthis proceeding: FAA Exhibit 1 Item 1 Notice ofInvestigation (NOI), October 8, 2002. Item 2 City's Reply to the NOI, dated November 7, 2002 containing the following documents: Trimborn Declaration, dated November 7, 2002 and a Exhibit A Santa Monica Airport Design Standards Study. a Exhibit B Santa Monica City Charter Sections 1015 and 1016. a Exhibit C Aerial photo of SMO. a Exhibit D Aerial photo and 6close up photos of SMO's East End. a Exhibit F Aerial photo and 7close up photos of SMO's West End. a Exhibit G Airport Commission Recommendation, May 20, 2002. Item 3 FAA's Order to Show Cause, March 26,2008. Item 4 City's Reply to the Order to Show Cause, April 7,2008 containing the following documents: Declaration ofRobert Trimborn, dated April 4, 2008. Declaration ofJames E. Hall, dated April 4, 2008. Declaration ofLamont Ewell, dated April 4, 2008 and 

### a Exhibit 1 Aerial picture ofAirport. a Exhibit 2 Airport Layout Plan of 1991. a Exhibit 3 Santa Monica Airport Agreement (" 1984Agreement"). a Exhibit 4 FAA Advisory Circular 150/5300.4B dated 2/24/1983. a Exhibit 5 City Council Minutes and Staff Reports from 12/10/2002. a Exhibit 6 Letter dated 2/3/2004 from David L. Bennett to Robert Trimborn. a Exhibit 7 Letter dated 9/2/2004 from R. Austin Wiswell to Woodie Woodward. a Exhibit 8 Letter dated 9/8/2004 from Robert Trimborn to David L. Bennett. a Exhibit 9 Letter dated 1120/2006 from David L. Bennett to Robert Trimborn. a Exhibit 10 Written responses from Aviation Operators dated 3/2/2007. a Exhibit 11 Statement ofBrian Armstrong dated 3/26/2007. a Exhibit 12 Letter dated 7/31/2007 from Kirk Shaffer to Robert Trimborn. a Exhibit 13 Council Minutes and StaffReport from 8/28/2007. 

### a Exhibit 14 Council Minutes and StaffReport from 10/09/2007. a Exhibit 15 Letter dated 11126/2007 from Kirk Shaffer to Mayor Bloom. a Exhibit 16 Council Minutes and StaffReport from 11127/2007. a Exhibit 17 Packet for Congressional representatives atJanuary 29, 2008 meeting. a Exhibit 18 Letter dated 3/7/2008 from Kirk Shaffer to P. Lamont Ewell. a Exhibit 19 City Analysis oflmpact ofRelocated Threshold RSA of300 feet. a Exhibit 20 Copy ofNet jets website regarding trade-down rights. a Exhibit 21 Copy ofFlight Options website regarding trade-down rights. a Exhibit 22 Copy ofFlexJet website regarding trade-down rights. a Exhibit 23 Letter dated 3/12/2008 from P. Lamont EweIl to Kirk Shaffer. a Exhibit 24 Council Meeting Minutes and Staff Report from 3/25/2008. 

### a Exhibit 25 Copy ofLease No. W-04-193-eng-4894. a Exhibit 26 Copy of Supplemental Agreement No.1 ofLease No. W-3460-eng-549

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### o Exhibit 27



### o Exhibit 28



### o Exhibit 29



### o Exhibit 30



### o Exhibit 31 

### o Exhibit 32 

### o Exhibit 33 o Exhibit 34 o Exhibit 35 o Exhibit 36 o Exhibit 37

o Exhibit 38 o Exhibit 39 Item 5 dated 12/20/1944. Copy of Supplemental Agreement No.2 ofLease No. W-04-193-4894 dated 7/15/1946. Copy of Supplemental Agreement No.1 to Lease No. W-3460-eng-549 dated 12/20/1944. Copy of Supplemental Agreement No.2 to Lease No. W-3460-eng-549 dated 7/15/1946. Printout from Government Printing Office ofMiscellaneous Proclamation and other Executive Orders. Resolution No. 183 (CCS) dated 8/10/1948. Aerial View ofRunway Ends at Santa Monica Airport. NTSB Safety recommendation A-77-16 of4/20/1977 NTSB Recommendation A-94-211 of 1/5/1995 NTSB Recommendation A-03-11 of5/6/2003 Order on Motion for Extension ofTime dated 4/1/2008. Letter to Congressman Waxman from Marion C. Blakey ofthe FAA dated 6/12/2006. Video Recording ofAugust 28,2007 City Council Meeting. Video Recording ofMarch 26, 2008 City Council Meeting.

A. FAA Form 5010 and other Airport data. B. FAA Form-29A (1-61) Airport Facilities Record, 1/20/1966. Item 6 Grant Agreement, Santa Monica Airport, June 27, 1994 for Project No. 3006-0239-06, Amendment No.2, August 27,2003 and Amendment No.1, November 8, 1999 and project status report; Grant Agreement, Santa Monica Airport, September 5, 1985 for Project No. 3-06-0239-02 and Amendment No.1, September 15, 1992 and project status report; Grant Agreement, Santa Monica Airport, September 23, 1985 for Project No. 3-06- 0239-03 and Amendment No.1, August 27, 1993 and project status report; Grant Agreement, Santa Monica Airport, August 23, 1991 for Project No. 3-06-0239-05 and Amendment No.1, December 31, 1991 and project status report; project status reports for Project Nos. 3-06-0239-04 and 3-06-0239-01. Item 7 Correspondence between the City, FAA and others from 2000 through June 2007:

A. City Manager to Associate Administrator, dated March 12,2008. B. Associate Administrator to City Manager, dated March 7, 2008. C. Associate Administrator to Mayor, dated November 26,2007. D. Acting Administrator to Congresswoman Harman, dated October 12,2007. E. Associate Administrator's Presentation to City Council, dated August 28,2007. F. NBAA to Associate Administrator, dated August 24, 2007. G. Congresswoman Harman to Administrator, dated August 14,2007. H. Congresswoman Harman to Administrator, dated June 5,2007. I-I Acting Associate Administrator to Airport Manager, dated July 31,2007. I. Congressman Waxman to Administrator, dated May 22, 2007. J. AAS Director to City Airport Commission Chairman, dated Aprilll, 2007. K. Airport Director to AAS Director, dated March 7, 2007. L. AAS Director to Whom ItMay Concern, dated December 1,2006. M. Airport Director to AAS Director, dated September 7,2006. N. AAS Director to Kaplan, Kirsch & Rockwell, dated August 11,2006. O. AAS Director to Kaplan, Kirsch & Rockwell, dated August 1,2006. P. Kaplan, Kirsch &Rockwell to AAS Director, dated June 13,2006. Q. AAS Director to Airport Manager, dated May 12,2006. R. Acting Associate Administrator to Senator Feinstein, dated March 17,2006. -71-S. Edwards Angell Palmer & Dodge to AAS Director, dated February 2, 2006.

T. AAS Director to Airport Manager, dated January 20,2006. U. AAS Director to Airport Manager, dated November 22,2004. V. Airport Manager to AAS Director, dated September 8, 2004. W. Airport Manager to AAS Director, dated May 10,2004. X. AAS Director to Airport Manager, dated February 3, 2004. Y. Airport Manager to AAS Director, dated November 26,2003. Z. AAS Director to Airport Manager, dated November 10,2003. AA. Airport Manager to AAS Director, dated November 6, 2003. BB.Associate Administrator to Senator Feinstein, dated October 30,2003. CC.Bailey &Partners to AAS Director, dated October 29, 2003. DD. AAS Director to Airport Manager, dated October 15,2003. EE. Senator Feinstein to Quentin Burgess, dated October 6, 2003. FF. Airport Manager to AAS Director, dated August 12,2003. GG. Acting Manager to Airport Manager, dated July 2, 2003. HH. Airport Manager to AAS Director, dated May 21, 2003. II. Airport Manager to AWP Manager, dated May 7, 2003. Jf. Santa Monica Airport Association to AAS Director, dated April 27, 2003. KK. Associate Administrator to Senator Feinstein, dated January 29, 2003. LL. Airport Manager to AAS Director, dated December 23, 2002. MM. Regional Administrator to Deputy City Attorney, received December 19,2002. NN. FOIA Coordinator to Deputy City Attorney, dated November 5, 2002. 00. Deputy City Attorney to FOIA Coordinator, dated October 29, 2002. PP. AAS Director to Airport Manager, dated October 8,2002. QQ. Airport Manager to AWP-621, dated September 10,2002. RR.Hogan & Hartson to AAS Director, dated August 6, 2002. SS. AOPA to Mayor, dated August 2, 2002. TT.NBAA to City Airport Commission, dated July 22, 2002. DU. AWP Manager to Airport Director, dated July 22, 2002. VV. AWP-620 Report ofCity Airport Commission, dated July 22, 2002. WW. AWP-620/621 Phone Discussion Record with City Airport Commission Vice-Chairman, dated July 23, 2002. XX. Regional Administrator to Joni Jacobson, dated December 18,2000. YY. AAS Director to Congressman Waxman, dated December 11,2000. ZZ. Regional Administrator to Congressman Waxman, dated July 19,2000. AAA. Airport Manager to AWP-621, dated July 10,2000. BBB. Congressman Waxman to Administrator, dated May 26,2000.

Item 8 City Ordinance, dated March 25, 2008, and Municipal Code Section 10.04.06.220. Item 9 City of Santa Monica's Motion for Extension ofTime to respond to FAA's Order to Shaw Cause, March 28, 2008. Item 10 Order on Motion for Extension ofTime, April 1,2008. Item 11 City FOIA Request (March 28, 2008) and FAA's Response (March 31,2008). Item 12 Letter from David L. Bennett to Robert Trimborn, dated October 15, 2003. -72
-Item 13 Memorandum from the City Attorney to the City Council, January 23, 1962. Item 14 FAA Record ofMeeting

- October 1,2002. Item 15A. 1948 Instrument ofTransfer B. 1949 Quitclaim Deed. Item 16 Regulation 16. Item 17 NASA ASRS Reports for SMO. Item 18 Sample NTSB reports for SMO accidents. Includes some local media coverage. Item 19A. B. Users Comments

- December 2006-March 2007. Community Comments

- June 6, 2007. Item 20 Leasehold examples. Item 21A. FAA Order 5200.8 Runway Safety Area Program. B. Advisory Circular AC 150/5220-22 Engineered Materials Arresting Systems (EMAS)for Aircraft Overruns. Item 22 Listing ofEMAS installation inthe US. Item 23 Developing Improved CivilAircraft Arresting Systems, Interim Report, prepared for the Airport Cooperative research Program (ACRP), Project No. 07-03, January 31,2008. Item 24 Excerpt from AC 15/5300-4B, Change 6. Item 25 Letter from Congressmen Bud Shuster and James L. Oberstar to FAA Administrator Jane F. Garvey, August 30, 2000. Item 26 Airport Master Record, FAA Form 5010, dated 5/14/2007. Item 27 SMO Airport Diagram, Airport Facility Directory extract and SMO VOR-A or GPS-A approach plate. Item 28A. Airport Facility Directory Reports for SMO, LAX, BUR, HHR, LGB, TOA and VNY.

- 73-B. FAA Form 5010 for LAX, BUR, HHR, LGB, TOA and VNY.

Item 29 Frederick, John H.,Airport Management, Richard E. Irwin, Chicago, Illinois, 1949, Item 30 LA Times 1944 newspaper excerpts. Item 31 Evaluation ofthe City ofSanta Monica's Authority toAddress Environmental Impactsfrom Santa Monica Municipal Airport's Operations, Frank G. Wells Environmental Law Clinic, UCLA School ofLaw, November 2006, Item 32 GCR's Market Share Reportfor Santa Monica, dated 12/19/2004 to 12/19/2005. Item 33 FAA Airports Response toNTSB Safety Recommendations A-03-11 and A-03-12. Item 34 Selective aircraft performance chart Manual excerpts (DC-6, Learjet 23, Gil, AIB-26). Item 35 Runway Overshoot/Runway Side Excursion USRegistered Business JetAccidents 1997 through 2006, Robert E. Breiling Associates, Inc., May 2007. Item 36 Surplus Property Map. Item 37 FAA Record ofMeeting with City, October 1,2002. Item 38 Public Runway Census, Continental US, July 2006. Item 39 Excerpts from Defendant City ofSanta Monica's response toFirst Set ofInterrogatories andRequest For Admissions From Santa Monica Airport Association, Volume I, Case No. 77 2852-1H. Item 40 National Plan ofIntegrated Airport Systems (NPIAS), 1998-2002 Item 41 SMO Grant History. Item 42A. Letter from Santa Monica to California Aviation, Inc., August 5, 1981. B. Letter from FAA to Santa Monica, February 9, 1989. Item 43 FAA 2005 Report to Congress on Declared Distances.



### -74-Item 44 Aerodynamicsfor Pilots, Air Training Command, USAF, ATC Manual 51-3, 15May 1966, Reprinted 3 April 1967 With Change "A" Included, 88. Item 45 FAA Fact Sheet on EMAS. Item 46 Improved Standards for Determining Rejected TakeoffandLanding Performance, RIN: 2120-AB 17, 63 Federal Register 8298, February 18, 1998. Item 47 FAA Memorandum, Air Transportation Division, Air Carrier Operations Branch re: Safety ofC and D Aircraft Operations atthe Santa Monica Municipal Airport. Item 48 California Attorney General's Opinion No. CV 74-317

- May 30, 1975. Item 49 Conference Record, Santa Monica Airport, California, and Review ofCity's Planning Effort, March 31, 1982. Item 50 Major Instruments and Agreements on Santa Monica Airport Land (prepared by the LA ADO

- August 2007) Item 51 Declaration by the SMAA and Notification ofGrievances Relating to the 1984 Agreement and the Santa Monica Municipal Airport (SMO) Grant Agreements. Item 52 Compliance Inspection Reports for SMO, 1966-1994. Item 53 Letter from FAA Regional Counsel to City of Santa Monica, February 12, 1981 Item 54 January 19, 1983 Agreement. This exhibit includes the Consolidated Scope ofWork and Task Orders. Item 55 Response byBailey &Partners to the Reply ofthe City ofSanta Monica to the Notice ofInvestigation; Declaration ofScott Wardle and Carolyn Shields inSupport, September 30, 2003. Item 56 Commercial Operations Permit, AirShares Elite West, July 23,2007. Item 57 Plat ofthe properties (lots) condemned by the government in 1944-1945. Source: LA County land records. Item 58 Interrelationships Between the Federal Aviation Administration and the City ofSanta Monica regarding the Operation ofthe Santa Monica Airport, February 25, 2002. Item 59 Letter from the Airport Manager to Air Group Inc., April 14,2008 and letter from users inresponse.

-75-Item 60 CAA references concerning Clover Field/Santa Monica Interim Permit, January 8, 1946. Item 61 2007 Capacity Needs in theNational Airspace System Report, Draft, (January 2007). Item 62 Southern California Association ofGovernments (SCAG) Simulation &Analysis Report, Final Report Revision 1, June 13,2007. Item 63 2008 Regional Transportation Plan: Aviation andAirport Ground Access Report, DRAFT, December 2007. Item 64 Excerpt from SCAG Analysis, Chapter 2: Analysis ofExisting General Aviation System. Item 65 Condemnation and Declaration ofTaking No.1, November 23, 1945. Item 66 Regional Aviation Planning inSouthern California, SCAG, March 11,2008. Item 67 City's June 12,2007 Impact Data. Item 68 FAA Revised Impact Assessment Released to the City and Users on September 17,2007. Item 69 Listing of SMO users, December 2006. Item 70 Listing ofcontacted SMO users, October

-December 2006. Item 71 Business Aviation Safety Brief, Summary ofGlobal Accident Statistics 1998-2002, International Business Aviation Council, Issue No.2, March 10,2004. Item 72 NTSB Records (1998-2008) for Gulfstream GlY, Learjet 45, Learjet 60, Hawker 800 and Falcon 900. Item 73 NTSB Records (1998-2008) for Cirrus SR20/22. Item 74 Engineered Materials Arresting System (EMAS) installation inthe US. Item 75 Excerpt from House Report 108-143

- Flight 100, Sec. 419 Runway Safety Standards. Item 76 Title Report, prepared by Chicago Title Insurance, dated December 1,2001.

- 76-Item 77 Newspaper article Council Bans Faster Planes atAirport, LookOut News, November 28, 2007. Item 78 2002 and 2004 (Santa Monica Design Standards Study andAddendum #1). Item 79 FAA letter to the City, April 21,2008. Item 80 A. Documents related to 1948 Surplus Property Conveyance including:

A. City Mayor to SPA, December 11, 1945. B. City Commissioner ofFinance to SPA, December 17, 1945. C. Adjutant General declaration, dated February 5, 1946. D. Lt. Col. To War Assets Corporation, dated February 8, 1946. E. Air Corps Colonel to WAA, dated April 26 1946. F. Declaration of Surplus, dated July 29, 1946, and Supplemental Report. G. City Clerk to WAA, dated September 19, 1946. H. City Clerk to WAA, dated September 20, 1946. I. WAA to City, dated September 25, 1946. J. CAA Chief to WAA, dated October 14, 1946. K. Office Memorandum, dated November 26, 1946. L. Transmittal Memo, dated December 31, 1946. M. Office ofReal Property Disposal Memo, dated January 9, 1947. N. Newspaper Notice of Sale, August 18, 1947. O. General Counsel Memo on Unconditional Conveyances ofProperty, dated January 27, 1948. P. WAA Memo, dated April 9, 1948. Q. WAA Memo, dated August 24, 1948, conformed copy ofAugust 10, 1948 Instrument of Transfer, and related documents including Delegation ofAuthority, City Resolution and Certificate ofDelivery. R. District Director to CAA, August 27, 1948. S. WAA Memo, dated September 13,1948. T. WAA Memo, dated October 2, 1948. U. WAA Memo, dated March 9,1949. B. Documents related to 1949 Surplus Property Conveyance, including:

A. Congressman Jackson to WAA, dated October 28, 1948. B. Real Property Disposal to CAA, dated December 22, 1948. C. CAA to WAA, dated January 27, 1949. D. Office ofReal Property Disposal to Air Force, dated February 21, 1949. E. Memo dated March 28, 1949 enclosing March 17, 1949 letter from Secretary ofAir Force to WAA Office ofReal Property. F. WAA Real Property Classification, April 20, 1949. G. WAA Memo, dated April 22, 1949. H. WAA Regional Counsel Memo, dated May 27, 1949. Item 81 City letter to the FAA, April 22, 2008. Item 82 NTSB Accident data for SMO. Item 83 Visual Depiction ofthe Airport Reference Code (ARC).

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-Item 84 Increases inAirport Design Standards, Excerpt Table 1-1,Airport Design AC 150-5300.13. Items 85 Declaration ofDonald K. Stimson, April 23, 2008. Item 86 Letter from Gulfstream to the City, November 30,2007. Item 87 NetJets.com Summary on Safety Standards, printed April 30, 2008. Item 88 FAA Powerpoint Presentation, Runway Safety Areas, presented toNTSB onJune 20, 2006. Item 89 SMO Map, August 20, 1946. Item 90 Surplus Property Release Documents A. Release from USA to City, dated April 25, 1952. B. Agreement between USA and City regarding proceeds from sale ofreleased premises, dated May 16, 1952. C. Amended Release from USA to City, dated September 15, 1952. D. Instrument ofRelease from USA to City, dated March 5, 1956. Item 91 Cease and Desist Order, April 23, 2008. Item 92 City's Response to Cease and Desist Order, including Declarations, May 5, 2008. Item 93 Application for TRO and Supporting Declarations, April 23, 2008. Item 94 City's Response in Opposition to TRO, Declarations, and Exhibits, April 23, 2008. Item 95 Order Granting TRO, April 28, 2008. Item 96 FAA's Reply Memorandum in Support ofApplication for Preliminary Injunction and Declaration, May 12,2008. Item 97 City's Response to Preliminary Injunction, May 6, 2008 Item 98 Order Granting Preliminary Injunction, May 16, 2008. Item 99 City Letter to User's Regarding Implementation ofBan, April 14,2008. Item 100 Supplemental Interim Cease and Desist Order, May 12,2008.

- 78-Item 101 McClellan, Advantage, Avanti. Flying, Vol. 114,No. 12(December 1987): 54-60. Item 102 1955 Characteristic Speed Chart from the DC-6 Operation Manual, and DC-6A andDC-6B Description and Operations Manual. Douglas Aircraft Co., Inc., Santa Monica, December 24, 1951, Rev. June 1, 1959. Item 103 Airplane Flight Manualfor Grumman Gulfstream IIG-1159, Approved 19October 1967, Grumman Aerospace Corporation, Savannah, Georgia, Figure 4-68. Item 104 Collins, Richard, Fairchild 300. Flying, Vol. 111,No.3 (March 1984): 70-74. Item 105 FAA Data, 5010 database. Query completed April 9, 2006. Note: An assumption of400 operations per based aircraft was used. Item 106 National Airport System Plan, Revised Statistics 1978-1987, iii. Item 107 Report to Congress, National Plan ofIntegrated Airport Systems (NPIAS), 2007-2011. Item 108 RiskAnalysis inSupport ofAerodrome Design Rules; Additional Studies Concerning Overrun Accidents Involving Smaller Aircraft. AEA Technology, December 2003. Item 109 Report No. NLR-TP-2005-498, Running Out OfRunway, G.W.H. van Es, September 2005. Item 110 Veillette, Patrick. Slip Sliding Away. Business & Commercial Aviation, Vol. 97 No.5 (November 2005). Item 111 1998-2002 data, SeeBusiness Aviation Safety Brief, 1998-2002, International Business Aviation Council, Table 4.3a. Item 112 Business Aviation Safety BriefSummary ofGlobal Accident Statistics 1998-2002, International Business Aviation Council, Montreal, Quebec, Canada, Issue No.2, March 10,2004. Item 113 Presentation onEnhancing Safety atSMa to Santa Monica City Council by Associate Administrator for Airports, March 25, 2008. Item 114 Aviation Capacity Enhancement Plan (ACE) 2000, excerpt. Item 115 Item 8-A, Council Meeting July 10,2001, Santa Monica, California, To Mayor and City Council, from City Staff, Subject: Recommendation toAdopt aFormal Position on theLosAngeles International Airport Master Plan, http://www.santa-monica.org/cityclerk/councillagendas/2001/s2001071008-A.htm

- 79-Item 116 Los Angeles Arrival Enhancement Project, Real-Time Simulation Test Report (Draft), Prepared by System Resources Corporation and the William J. Hughes Technical Center Atlantic City International Airport, NJ. Item 117 Declaration ofAssociate Administrator for Airports, May 23, 2008. Item 118 AAS-400 Memo To File, March 2007. Item 119 City's Notice ofAppeal ofPreliminary Injunction Order, May 22,2008. Item 120 City's Petition for Review ofCease and Desist Orders, May 22, 2008.

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