MARSHA JONES MOUTRIE, City Attorney 

JOSEPH LAWRENCE, Assistant City Attorney 

2 LANCES. GAMS, Deputy City Attorney 

IVAN CAMPBELL, Deputy City Attorney 

3 1685 Main Street, Room 310 

Santa Monica, California 90401 

4 Telephone: (31 0) 458-8336 

Facsimile: (31 0) 451-5862 

5 lance.gams@smgov.net 

6 Attorneys for Respondent 

CITY OF SANTA MONICA 

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UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

IN THE MATTER OF COMPLIANCE WITH 

FEDERAL OBLIGATIONS BY THE CITY OF 

SANTA MONICA, CALIFORNIA 

FAA Docket No. 16-14-04 

CITY OF SANTA MONICA'S REBUTTAL 

TO REPLY BRIEF OF COMPLAINANTS 

Respondent CITY OF SANTA MONICA (hereinafter "CITY"), by and through its 

attorneys of record, respectfully submits the following Rebuttal Brief, pursuant to 14 C.F.R. 

§16.23(f), to Complainants' Reply to CITY's Answer to the Part 16 Complaint filed by the 

National Business Aircraft Association, Inc., Krueger Aviation, Inc., Harrison Ford, Justice 

Aviation, Kim Davidson Aviation, Inc., Aero Film, Youri Bujko, James Ross, Paramount 

Citrus LLC and Aircraft Owners and Pilots Association (hereinafter collectively referred to 

as "NBAA") with the Federal Aviation Administration (hereinafter "FAA"). 

As a preliminary matter, CITY's Answer to NBAA's Complaint was filed and served in 
1 should be dismissed. 

2 Likewise, and even if the CITY's Motion to Dismiss is denied, such issues remain 

3 properly before the Director for purposes of the Director's Determination to come, and if 

4 necessary for possible consideration by an FAA hearing officer, the Associate Administrator 

5 in making his/her Final Agency Decision, and even for potential appellate review by a Court 

6 of Appeals thereafter. What's unexpected is NBAA's surprise at seeing these arguments 

7 again, given that defenses raised in a Motion to Dismiss in Federal District Court cases will 

8 often reappear in a subsequent Answer to the Complaint. A rejection of an argument at an 

9 early pleadings stage of a case will not preclude its later consideration and even 

10 acceptance by the very same judicial officer. 

J 1 Similarly, NBAA takes issue with the fact that, in its Answer to the Complaint, the 

12 CITY did not address arguments NBAA made in its opposition to the Motion to Dismiss. 

13 However, as should be fairly elementary, CITY's Answer is in response to the Complaint, 

14 not to the opposition of Complainants to City's Motion to Dismiss and not to the Complaint 

15 as somehow modified or amended by Complainants' opposition to City's Motion to Dismiss. 

16 Finally, CITY believes that it has already advanced many compelling arguments and 

17 reasons as to why NBAA's Complaint should be dismissed, and nothing in NBAA's Reply 

18 brief changes that. However, CITY would be remiss if it didn't point out a few glaring 

19 miscues in the Reply. 

20 I. 

21 There Has Never Been A Ruling By The FAA Extending The Grant Assurance 

22 Expiration Date To 2013 

23 CITY's view of the existing landscape queuing up this current dispute is very 
the Grant Assurance obligations extend 'until at least 2023"' (Reply, page 2) is a 

2 misstatement at best if not completely false. 

3 NBAA cites to the Director's Determination (hereinafter "DO") to support its 

4 contention, and admits that such statement did not become part of any finding of or 

5 conclusion by the Hearing Officer or by the Associate Administrator in her Final Agency 

6 Decision And Order. This is because that issue had absolutely nothing to do with In The 

7 Matter Of Compliance With Federal Obligations By The City of Santa Monica, California, 

8 FAA Docket No. 16-02-08. "As is noted elsewhere, the scope of these proceedings under 

9 the Part 16 Rules and the Hearing Order, is limited to the consideration of five specific 

10 issues." (Hearing Officer's Determination, p. 67). 

11 The Hearing Officer in that matter correctly framed the gravamen of that Part 16 

12 Complaint and the issue to be decided, as "Whether the implementation of the adopted 

13 Ordinance prohibiting Category C and D aircraft by the City of Santa Monica is consistent 

14 with the Federal obligation to make its airport available as an airport for public use on 

15 reasonable terms and without unjust discrimination to all types, kinds, and classes of 

16 aeronautical activities- Grant Assurance 22." (Hearing Officer's Determination, p. 71). 

17 Similarly, the Final Agency Decision And Order makes no mention anywhere of this 

18 statement from the DO, let alone being a final "conclusion" reached by her (Final Agency 

19 Decision And Order, p. 56), a fact which NBAA admits. 

20 Moreover, neither the Hearing Officer nor the Associate Administrator gave any 

2 1 deference to any statements or findings in the DO, even where it was on an issue relevant 

22 to the proceedings and within the Director's authority to make. 

"Th

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herein are reviewed de novo with regard to the facts and the law, in light of 

the traditional preponderance-of-the-evidence standard of proof." 

(Hearing Officer's Determination, p. 71 ). 

The comment by the Director in the DO is pure dicta, and has no precedential value 

in this matter or any other. Likewise, the two page footnote 4 in NBAA's Reply (at pp. 6-7), 

which quoted the Agency's Response to First Set of Interrogatories from docket No. 16-02-

08, is merely the attorneys' rhetoric as to their position on that issue and, again, of no 

binding or precedential value in this matter. As a result, NBAA's plea that the FAA in this 

proceeding not "reconsider its position" rings hollow. 

II. 

Contracts That Are Unambiguous And Do Not Involve Technical Expertise Are 

Not Entitled To Agency Deference 

CITY does not dispute that there is much legal authority for the proposition that 

where an issue involves technical expertise that falls within an agency's area of authority, 

the agency is entitled to deference in its interpretation of its regulations or the statute which 

that agency is charged to administer. For example, the Court of Appeals in City and 

County of San Francisco v. FAA, 942 F.2d 1391 (91h Cir. 1991) granted deference to the 

FAA in that case, which involved whether the airport proprietor's regulation barring 

retrofitted aircraft from operating at San Francisco airport breached the proprietor's grant 
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However, there is absolutely nothing "technical" about the current dispute, nor does 

it involve intrinsically regulatory terms, such that the FAA should be expected or thought to 

have some special expertise which it frequently employs that causes it to be better able 

than the CITY, or a judicial officer or third party, to read the plain language of the 

documents and determine what it means. NBAA has not explained what there is about this 

issue which involves the technical expertise of the FAA for which the FAA should be 

afforded deference, because there is nothing. Instead, NBAA asserts only a very broad, 

omnibus clause which suggests that the FAA's authority extends to "anything done or 

omitted to be done by any person in contravention of any provision of any Act, as defined in 

this section, as to matters within the jurisdiction of the Administrator." As such, NBAA has 

not made a proper showing that this issue must be left for the FAA to decide. 

In fact, this issue may not be one that will, ultimately, be for the FAA to decide. Even 

if the Director were to render a decision on the issue of the expiration date, without a 

compelling need for it to do so at this time, and if there is an actual Final Agency Decision 

in that regard, judicial review will likely follow. If that occurs, the Court may agree with the 

CITY that there are no ambiguities within the language of the agreement and agree with the 

CITY that the grant obligations expired in 2014. Moreover, even if the Court determines 

that ambiguities exist, it will " ... attempt to resolve ambiguities by consulting the Act, the 

regulations, and the policies behind them." Student Loan Fund of Idaho, Inc. v. Department 

162 (91

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NBAA h

ot alluded to 
Ill. 

2 NBAA Claims That Its Complaint Has Nothing To Do With Lease Terms, But Its 

3 Arguments Suggest Otherwise 

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Although NBAA says that it is not asking the FAA to "consider proposed lease 

terms" (Reply, page 2), the length of its leases or lease extensions are clearly things that it 

wants the Director to influence by determining that the Grant obligations continue through 

2023. NBAA questions the likelihood of the Santa Monica City Council offering 3 year 

lease extensions to its tenants, and instead focuses on a different scenario by which the 

leases would be renewed on a month-to-month basis. Interestingly, NBAA would not be 

satisfied with either of these alternatives. "As the Complainants also noted, either decision 

would conflict with the City's obligations to offer leases of adequate duration to Airport 

tenants." (Reply, page 3, footnote 2) Apparently, even if the CITY were to offer 3 year 

lease extensions through 2018, NBAA would complain to the FAA that the CITY was not 

honoring its Grant obligations. 

However, such begs the question, as the FAA has already settled this issue and has 

given Airport proprietors significant discretion in determining the terms and conditions of 

tenancies and leases at airports. As the Associate Administrator determined in Santa 

Monica Airport Association, et at., v. City of Santa Monica, CA, Docket No. 16-99-21, "We 

find that the Director's finding that no entity is 'entitled' to a long term lease at the location of 
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IV. 

NBAA's Own Argument Supports A Determination By The FAA That The Grant 

Amendments Did Not Change The Expiration Date Of The Contract That It Entered 

With The City In 1994 

NBAA cites to the Agency's Response to First Set of Interrogatories, dated August 8, 

2008, from docket No. 16-02-08, as background support for its argument that amendments 

to the original Grant agreement change the expiration date of that original Grant. "The 

Airport would have been obligated for the original grant project until 20 years after June 27, 

1994 or 2014. But since the project changed under Amendment No. 1 to a different project, 

the 20 year date is calculated from the date of Amendment No. 1, (2019) since that is when 

the Airport accepted the federal offer of AlP funds for the project." (Reply, page 7, footnote 

4) Thus, NBAA argues that a new 20 year period began to run on November 8, 1999 (until 

2019), when the CITY and FAA executed Amendment No. 1 to the 1994 Grant Agreement. 

Unfortunately, NBAA's argument, bootstrapped onto the Agency's lawyers' selfserving discovery response, is undercut by evidence of the FAA's position on this issue 

years earlier. "To the extent that Complainants and SMAA seek to prevent the future 

closure of the Airport or require the City to operate the Airport beyond July 1, 2015, that is a 

local land use matter. Since 1994, the City has not accepted FAA grants for airport 

development. When the City's last grant agreement expires in approximately 2014, the AlP 
Director stated that the Grant was set to expire in 2014 despite Amendment No. 1 being 

2 executed in 1999! 

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In conclusion, Complainants want the FAA to believe that the CITY has acted in a 

manner consistent with a " ... blanket rejection of the entire Grant Assurance Program ... . " 

This is not the case. Instead, CITY simply believes that it has fulfilled its obligations to the 

Federal government pursuant to the Grant Agreement, including the Amendments thereto. 

As a result, CITY respectfully requests that the Director either dismiss the Complaint in its 

entirety, or make a finding that the CITY's grant obligations pursuant to the Grant 

Agreement expired on June 29, 2014. 

Dated: November 13, 2014 

BY ~= 

Mft:RSHA JONES MOUTRIE 

JOSEPH LAWRENCE 

LANCES. GAMS 

IVAN CAMPBELL 

Attorneys for Respondent 

CITY OF SANTA MONICA 
PROOF OF SERVICE 

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 

I, Bradley C. Michaud, declare: 

I am employed in the County of Los Angeles, State of California. My business address is 

1685 Main Street, Santa Monica, California 9040 I. l am over the age of eighteen years and not a 

party to the action in which tbis service is made. 

On November 13, 2014, I served the document(s) described as CITY OF SANTA 

MONICA's REBUTTAL TO REPLY BRIEF OF COMPLAINANTS on the interested parties in this 

action by enclosing the document(s) in a scaled envelope addressed as follows: 

Richard K. Simon, Esq. 

1700 Decl<cr School Lane 

Malibu, CA 90265 

rsimon3@vcrizon.nct 

Office of the Chief Counsel 

Attention: FAA Part 16 Docl<et Cieri< 

AGC-600 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

9-AWA-AGC-Part-l6@faa.gov 

IBl BY MAIL: I am "readily familiar" with this firm's practice fo r the collection and the 

processing o[ correspondence for mailing with the United States Postal Service. In the 

ordinary course of business, the correspondence would be deposited with the United States 

Postal Service at 1685 Main Street, Santa Monica, California 90401, with postage thereon 

fully prepaid the same day on which the correspondence was placed for collection and 

mailing at the firm. Following ordinary business practices, I placed for collection and mailing 

with the United States Postal Service such envelope at 1685 Main Street, Santa Monica, 

California 90401. 

IBl COURTESY COPY TO COMPLAINANT'S COUNSEL BY ELECTRONIC DELIVERY 

0 [State] I declare under penalty of petjury under the laws of the State of California that 

tbe above is true and correct. 

IBl [Federal] I declare that I am employed in the office of a member of the Bar of this Court 

at whose direction the service was made.