## UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

) IN THE MATTER OF COMPLIANCE ) WITH FEDERAL OBLIGATIONS ) BY THE CITY OF SANTA MONICA, ) CALIFORNIA )



## ------------- ) FAA Docket No. 16-02-08

INTERIM CEASE AND DESIST ORDER

This matter is before the Federal Aviation Administration (FAA) based on aNotice ofInvestigation (NOI) dated October 8, 2002, initiated by the Director ofthe Office ofAirport Safety and Standards, and supplemented by his March 26, 2008 Order to Show Cause. The NOI and Order to Show Cause were issued in accordance with the FAA Rules ofPractice for Federally Assisted Airport Enforcement Proceedings, 14Code ofFederal Regulations (C.F.R.) Part 16. The FAA's investigation seeks to determine the legality ofthe City of Santa Monica, California's ("the City") Ordinance adopted on March 25,2008 ("Ordinance") banning Category C and D aircraft operations from the Santa Monica Municipal Airport (SMa). The City's banning Category C and Djet aircraft from SMO becomes effective on April 24, 2008. The City's executive summary to the Ordinance claims itwill affect approximately 7% of 130,000 annual operations orban 9,000 Category C and D aircraft operations. The Ordinance's stated purpose purports to be one ofsafety: toprotect the people living adjacent to the airport and flying in aircraft using the airport. The Ordinance also claims to comport with a 1984 agreement between the City and the FAA I. The City claims the Ordinance conforms to the City's obligation under the agreement to serve category A and B aircraft at SMa and its asserted right to prohibit or limit any other type, kind or class ofaeronautical use ofSMO. The categories ofaircraft are based on wingspan and approach speed?

I The 1984 Agreement is a settlement agreement between the City and the FAA. For additional explanation, see page 5 infra.

2 A Category A-I aircraft, for example, has an approach speed ofless than 9I knots. A Category B-1 aircraft, for example, has an approach speed of less than 91 knots but less than 121 knots

..A Category C-I aircraft, for example, has an approach speed between 121 knots or more but less than 14I knots. A Category 0-1 aircraft, for example, has an approach speed ofmore than 141 knots but less than 166knots.On March 26, 2008, the FAA issued an Order to Show Cause under 14C.F.R Part 16. The Order to

Show Cause directed the City to show cause as to why the FAA should not supplement the existing Part 16investigation (begun in 2002 when a similar Ordinance was proposed') with the facts pertaining to the adopted Ordinance. The Order to Show Cause also expressly determined and stated the need to expedite said investigation and issuance ofthe initial determination pursuant to 14C.F.R. 

### § 16.11 because the Ordinance will take effect April 24, 2008.
On April 1,2008, FAA denied the City's request for an extension oftime to file its response to the Order to Show Cause without prejudice and with an opportunity to renew ifthe renewal was based upon an agreement to suspend enforcement ofthe Ordinance while the investigation remained pending.
On April 7, 2008, the City filed its response to the Order to Show Cause. By letter dated and delivered on April 21, 2008, bye-mail, facsimile and express mail to the City and its counsel, the FAA requested that, by close ofbusiness Tuesday April 22, 2008, the City withdraw its April 14, 2008 letter to the aeronautical users ofSMO advising them ofthe ban, and assuring the FAA and those users in writing that the City will refrain from enforcing the ban on Category C and D aircraft operations pending the outcome ofthe Part 16administrative proceeding. The FAA requested acopy of the City's withdrawal letter by close ofbusiness Tuesday April 22, 2008. The FAA's April 21, 2008 letter is attached to this Interim Cease and Desist Order. The FAA further advised the City that should itfail to comply with this request by close ofbusiness Tuesday April 22, 2008, the FAA would issue acease and desist order requiring the City to hold the Ordinance in abeyance in order to preserve the status quo pending the conclusion ofthe FAA's investigation. The City responded by letter dated April 22, 2008, copy attached, refusing to withdraw the April 14,2008 letter to the aeronautical users and which again stated the City's intention to enforce the Ordinance effective April 24, 2008.
While all ofthe issues raised by the City are being addressed inthe on-going investigation and will be decided inthe FAA's forthcoming initial determination, the FAA finds itnecessary to issue this Interim Cease and Desist Order pursuant to 14C.F.R.§§ 16.31(d) and 16.109(a), because the City has failed to comply with our request to withdraw the letter to the users and advise the FAA that itis refraining from enforcement ofthe Ordinance pending the final outcome ofthe Part 16administrative proceeding. Furthermore, while we have not yet issued the initial Director's determination, we can make a preliminary finding that the City's ban on operation ofthese aircraft is likely unlawful. Accordingly, it is our view that the Ordinance cannot be allowed to go into effect, since doing so will foreclose operations by aircraft with apresent right to utilize SMO. The City's ban would be unfounded while the Part 16administrative proceeding addressing its legality is ongoing.

3 On October 8, 2002, the FAA issued aNotice ofInvestigation under Part 16initiating an investigation into the legality ofa Santa Monica Airport Commission recommendation that the City Council adopt an Aircraft Conformance Program (ACP) that, like the present 2008 Ordinance, would restrict aircraft operations at SMO up to Category B-II aircraft, thus excluding Category C and Djet aircraft. The City responded to the NOI on November 2, 2002, and did not adopt an Ordinance but entered into discussions with the FAA that continued until recently in 2008 when it adopted the new but substantially similar Ordinance.
2Enforcement ofthe Ordinance on April 24, 2008, can only be interpreted as an attempt to divest

Category C and D aircraft operators oftheir right to use SMO and the FAA ofitsjurisdiction over its administrative process to which the City, as afederally obligated airport, must adhere. SMO is an important general aviation reliever for Los Angeles International Airport (LAX) in aregional airspace and airport system that is already strained interms ofavailable airports. Furthermore, Category C and D aircraft operations have been landing and taking-off safely from SMO for over twenty years. There is no emergency requiring an immediate ban, and there is no safety or other basis for achange in the status quo that would bar these operations. Airport design standards for facilities such as runways are based on the operational and physical characteristics ofthe aircraft that use the airport. FAA airport design standards are used so that all airport elements meet the requirements for the most demanding aircraft that is expected to have 500 or more annual itinerant operations atthe airport, Itis not inherently unsafe for an aircraft ofalarger design category to utilize an airport that has been designed to accommodate alesser design category of aircraft ifthe aircraft meets the FAA approved operational requirements for using SMO. The FAA strictly regulates the safe operation ofaircraft from certification (e.g. 14C.F.R. Part 25) to the manner in which the aircraft is operated (e.g. 14C.F.R. Part 135). Both types ofregulations cover runway length requirements. Moreover, pilot certification, and the operation ofaparticular aircraft/flight, including the amount ofrequired runway for atake off and landing, are all regulated by the FAA. There are also anumber of separate reasons why the City's Ordinance is likely an unlawful ban. All of these have been communicated previously to the City and are discussed briefly below. Federal Grant Assurance Obligations Title 49 ofthe United States Code, §47101, et seq., provides for Federal financial assistance for the development ofpublic-use airports like SMO under the Airport Improvement Program (AlP) established by the Airport and Airway Improvement Act of 1982, as amended. Section 47107 and the grant contract, set forth assurances to which an airport sponsor agrees as acondition of receiving Federal financial assistance. Upon acceptance ofan AlP grant, the assurances become abinding obligation between the airport sponsor and the Federal government. Between 1985 and 1994, the Airport received atotal of$9.7 million in Federal airport development assistance. Because the City's AlP grants have not been used for purchasing land, most ofthe corresponding AlP grant assurance obligations are effective for 20 years. Since 1994, the City has not received new grants and the City's last grant amendment was in 2003.
Assurance 22, Economic Nondiscrimination, ofthe prescribed sponsor assurances implements the provisions of49 U.S.C. §47107(a) (1) through (6), and requires, inpertinent part, that the sponsor ofafederally obligated airport

"will make its airport available as an airport for public use on reasonable terms, and without unjust discrimination, to all types, kinds, and classes ofaeronautical activities, including commercial aeronautical activities offering services to the public atthe airport." Assurance 22(a)

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

the use and benefit ofthe public and to make itavailable to all types, kinds, and classes ofaeronautical activity on fair and reasonable terms, and without unjust discrimination. As such, itmay not deny reasonable access to aeronautical users. Title 49 USC §40103(e) states that "[a] person does not have an exclusive right to use an air navigation facility on which Government money has been expended."
49 USC §47107(a)(4) provides, inpertinent part, that "a person providing, or intending to provide, aeronautical services to the public will not be given an exclusive right to use the airport."
Grant Assurance 23, Exclusive Rights, ofthe prescribed sponsor assurances requires and subsumes the statute's pertinent parts, so that the sponsor ofafederally obligated airport: "will permit no exclusive right for the use ofthe airport by any person providing, or intending to provide, aeronautical services to the public

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

.... "
An exclusive right is defined as apower, privilege, or other right excluding or debarring 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 or exercising a similar right orrights, would be an exclusive right.
The City's Ordinance raises graves concerns under each ofthese statutory and grant assurance provisions since, ifeffective, the Ordinance would bar categories ofoperators currently serving SMO, and in doing so would favor other categories ofoperators. Consistent with the City's obligations discussed above there can be no basis for allowing the City to begin enforcing its unilateral ban while the legality ofthat ban is under question and is subject to ongoing administrative investigation. Contrary to the City's arguments inthe on-going Part 16investigation, the FAA has independent jurisdiction to address the proprietary authority and preemption issues. These issues are tied to enforcement ofthe assurances under 49 U.S.C.§§ 40103(e), 40113, 47122, and 47107. The 1984 Settlement Agreement
In June 1981,the Santa Monica City Council enacted aresolution calling for closure of SMO. That action resulted in extensive litigation against the City by airport associations, the FAA. The litigation resulted in anegotiated settlement memorialized onJanuary 31, 1984, referred to as the 1984Santa Monica Airport Agreement (" 1984 Agreement"). The agreement was executed by the City and the FAA and resolved all "existing litigation and/or administrative complaints pending between the parties." The 1984 agreement restates the City's Federal obligations including that ofAssurance 22 to permit reasonable access to aeronautical users. In Section 8 ofthe agreement, the City committed to "operate

4and maintain the Airport as aviable functioning facility without derogation ofits role as ageneral

aviation reliever, or its capacity interms ofrunway length and width, taxiway system, and runway weight bearing strength". Section 9requires the City to maintain continuously the one designated runway (3/21) which is 5,000 feet long and 150feet wide. The agreement also provides in Section 2that SMO "is to be open and available to and for public use as an airport on fair and reasonable terms and without unjust discrimination, and without granting any exclusive rights prohibited by law" and recognizes that "exclusive authority is vested inthe FAA for the regulation ofall aspects ofair safety, the management and control ofthe safe and efficient use ofthe navigable airspace, and movement of aircraft through that airspace" in connection with SMO.
The City, ostensibly for safety reasons - an area within the "exclusive authority" ofthe FAA

- is poised to restrict access oftwo categories ofusers to SMO that are currently permitted to utilize SMO without restrictions. Again, itwould be imprudent to allow that action, which appears to be directly contrary to its federal grant assurance obligations as set forth inthe 1984 Agreement; to take place before the underlying legality ofthe City's Ordinance has been determined by the FAA. By enforcing the ordinance, the City seeks to take unilateral action, despite the City's knowledge that the FAA believes the ordinance is likely unlawful and beyond the airport's authority to enforce. Surplus Property Act Restrictions Deeds issued under the Surplus Property Act (SPA), 49 U.S.C. §47151, such as the 1948 SPA Instrument ofTransfer that transferred SMO to the City, contain restrictive covenants similar to AlP grant assurance obligations such as providing reasonable access to aeronautical users without unjust discrimination. The SPA obligations run inperpetuity until released by the FAA. The SPA deed also provides the FAA with the right to revert the airport to the federal government for violation ofthe deed covenants. The United States executed an "Instrument ofTransfer" dated August 10, 1948" (1948 Instrument ofTransferv in which the federal government surrendered its leasehold interest inthe Santa Monica Airport, and transferred ittogether with U.S. airfield improvements back to the City. The 1948 Instrument ofTransfer remised, released and forever quitclaimed the subject premises to the City subject to reservations, restrictions and conditions specified inthe transfer document
Two ofthe restrictions listed inthe 1948Instrument ofTransfer executed between the Federal government and the City of Santa Monica, the surplus airport property instrument ofdisposal, are applicable here. The first provides: "the land, buildings, structures, improvements and equipment in which this instrument transfers any interest shall be used for public airport purposes for the use and benefit ofthe public, on reasonable terms and without unjust discrimination and without grant or exercise ofany exclusive right for use ofthe airport.

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

4 200 I Title Report sets out the 1948 Instrument ofTransfer as aquit claim deed.

5"no exclusive right for use ofthe airport atwhich the property transferred by this instrument is

located shall be vested (directly or indirectly) in any person orpersons to the exclusion ofothers inthe same class, the terms "exclusive right" being defined to mean .... "

'" any exclusive right to use the airport for conducting any particular aeronautical activity requiring operation ofaircraft."
On the tenth ofAugust in 1948, the City confirmed its acceptance ofthe Instrument ofTransfer from the U.S Government passing Resolution No. 183. The City's acquiescence to the terms, conditions and restrictions is demonstrated by its properly approved City resolution accepting the 1948Instrument ofTransfer; the 1948Instrument ofTransfer was recorded inthe County ofLos Angeles on August 23, 1948 as Document No. 1746.
Pursuant to 49 U.S.C §47151 only the Secretary may ensure compliance with an instrument conveying an interest in surplus property. Hence, the FAA has the sole responsibility for determining and enforcing compliance with the terms and conditions ofall instruments of transfer by which surplus airport property is orhas been conveyed to non-federal public agencies pursuant to the SPA. Additionally, FAA is granted the authority to release airport premises from surplus property disposal restrictions. This authority is conditioned on afinding that the release is necessary to protect or advance the interests ofthe United States incivil aviation. See 49 USC §47153 and 14C.F.R. § 155.3 Accordingly, the City's Ordinance also raises legal concerns under the Surplus Property Act since the ban on operations by Category C and D aircraft is in all likelihood contrary to the obligations contained inthe 1948Instrument ofTransfer. Again, there is no basis, given this, to allow the Ordinance to take effect and disrupt the ongoing operations ofCategory C and D aircraft while the legality ofthe Ordinance is finally determined by the FAA. The City's Arguments in Support ofits Ordinance Will Be Decided inthe On-Going FAA Proceeding The FAA recognizes that the City has offered reasons why itbelieves the Ordinance does not run afoul ofany ofthe provisions discussed above. Principally the City contends that the Ordinance ban on Category C and D aircraft isbased onthe City's assumptions that Category A and B aircraft are somehow safer onthe runway at SMa than Category C and D aircraft. The City claims that growing numbers ofCategory C and D aircraft have begun using SMa since 1984 and exacerbate the safety risks ofoperating at SMa. The City therefore assumes that because category C and D aircraft may have faster approach speeds than Category A and B aircraft, they carry ahigher safety risk and thus cannot operate at SMa even though the approach speeds ofmanyjets like C-I and C-II, may at certain weights be faster than some B-II aircraft. This does not necessarily mean that they will need longer runways. It is incorrect to categorically assume that operations ofCategory C and D airplanes 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 off at agiven airport; this is the function of

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

account the airplane design features and characteristics (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 in terms 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 or not atakeoff or landing can be safely conducted, nor for evaluating the relative safety risk ofdifferent airplanes for takeoff or landing.
The vast majority ofexisting turbojet airplanes, including those that operate at SMO, were certified in accordance with 14CFR Part 25,Airworthiness Standards: Transport Category Airplanes. These certification standards apply to airplanes ranging from business jets to large airliners. These standards include requirements to determine the minimum safe distances required for the airplane to take off and land under the conditions, airplane weights, and configurations within the operating envelope defined for the airplane.
For takeoff, the current Part 25 certification rules require that an airplane be able to safely continue or reject atakeoff 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 a catastrophic outcome must be extremely improbable. The rules under which the airplane is operated (i.e., 14CFR Parts 91, 121, 125, 135) relate the minimum safe takeoff and landing distances determined under Part 25 tothe specific operation and airport for each takeoff. The combination ofthe airplane certification rules and the operating rules provide the requirements and parameters under which takeoff and landing operations can be safely conducted. The FAA does not believe that the City has demonstrated atthis stage any basis for the contention that growing numbers ofCategory C and D aircraft decrease safety at SMa. There is no evidence that C and D aircraft are any less safe than A and B aircraft. In fact, the performance range ofmany B, C or even D aircraft overlap to such an extent that restricting C and D aircraft and not certain B aircraft may be judged to be unjustly discriminatory. Moreover, not only do accident rates indicate thatjets, including Category C and D types, have lower accident rates than propeller driven aircraft, largerjet aircraft have even lower accident rates than smaller jet aircraft types. There is no data to support apremise thatjets have ahigher overrun rate than other aircraft types, orthat largejets are more prone to an overrun than small ones, orthat C or Djets have ahigher overrun rate than B aircraft. In fact, the overrun accident history at SMO does not support banning any type ofB, C or Djets. According toNTSB data from 1981 to 2007, aperiod oftwentyseven years, there were 6 accidents, including two fatalities at SMa. All six accidents involved aircraft that were small piston propeller driven A-lor B-1aircraft, and not those prohibited by the Ordinance'
In 1979, the U.S. District Court found an earlier Santa Monica Ordinance imposing atotal ban onjet landings to violate the Equal Protection and the Commerce clauses ofthe U.S. Constitution. Santa

5 See NTSB database at ntsb.gov'

7Monica Airport Association v. City ofSanta Monica, 481 F. Supp. 927 (D.C C.D CA, 1979), affd 659

F.2d 100 (9th Cir 1981). The District Court rejected the City's safetyjustification for the Ordinance, finding: "as to safety, the evidence is utterly convincing that modern, small, business or executive type jets ofthe type that would be able to fly out ofthis airport with thejet ban lifted, are at least as safe, if not much safer, than the types ofpiston-engine fixed wing aircraft which are now allowed to use the airport." Id._
The City also attempts tojustify the Ordinance as meeting FAA requirements for Runway Safety Areas ("RSAs"). RSAs enhance safety inthe event ofanundershoot, overrun, or excursion from the side of the runway. All airports certificated by the FAA for commercial service under 49 V.S.c.§ 44706, as implemented by 14C.F.R. Part 139 are required to build standard runway safety areas to the extent practicable by 2015.49 V.S.C §44706 note (2005). The RSA standard ispart ofFAA's airport design standards; itis not an operating requirement or condition for federally funded general aviation airports like SMO. No FAA aircraft operating rule requires astandard RSA.
There is no basis in federal law for federally funded airports to restrict access based upon runways that do not meet federal airport design standards for RSAs as claimed by the City. Moreover, at commercial service airports the RSA standard only has to bemet to the extent practicable. Even if Santa Monica were acommercial service airport, standard RSAs would not bepracticable because there is little leveled property atboth ends. Accordingly, Santa Monica has no independent proprietary authority to restrict access based upon heightened application offederal RSA standards. Assuming arguendo that an airport proprietor has authority to exceed minimum airport design standards such as those relating to RSAs, that authority clearly may not be exercised in amanner that violates its obligations under its federal grant assurances and Surplus Property Act obligations to allow access on fair and reasonable terms without unjust discrimination. For similar reasons, SMO lacks authority to interpret FAA's Airport Reference Code ("ARC") designation to restrict access in violation ofthe obligations noted above.
RSAs are not considered during aircraft certification nor do they enter into the determination ofthe minimum runway length required under airplane operating rules. Airplanes must be able to safely operate regardless ofthe presence or absence ofan RSA. FAA-approved Airplane Flight Manual (AFM) limitations and performance information, developed in accordance with the airplane certification requirements, are used to show compliance with the requirements applicable to that operation. When those requirements are met, there is no aircraft performance regulatory basis for prohibiting that operation.
In any event, these arguments, and any others offered by the City, will ultimately be considered in the context ofthe ongoing FAA proceeding. But there is absolutely no demonstrated basis, atthis stage of the proceeding, and while the legality ofthe City's Ordinance isbeing examined in the context ofthe ongoing proceeding, for the City's attempt to ban category C and D aircraft, that have been safely operating for over twenty years at SMO. Irreparable Harm The City's Ordinance, as explained above is likely unlawful in anumber ofrespects. Allowing, an Ordinance (that may subsequently be determined to be unlawful) to subvert present operations of Category C and D airplanes is harmful on its own and its effects onthe national air system. Santa

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

According to the City's own estimates the ban would affect over 9,000 Category C and D aircraft operations or approximately 7% oftotal operations at SMa. Disruption ofover 9000 annual operations is a significant number for the Los Angeles region and nationally as well. For example, the FAA uses 500 annual operations as a standard for funding runways. The exclusion of9,000 operations may also impact the travel ofapproximately 20,000-30,000 passengers annually. The ban will affect interstate travel because the Category C and D aircraft are used for asubstantial portion ofnon-stop interstate flights. This will result in a significant burden on interstate Commerce. By banning 9,000 or more operations from SMa and forcing them to use other airports, the ban affects Federal airtraffic and airspace management inthe greater Los Angeles region. Several other airports in the region, Los Angeles International Airport ("LAX"), Van Nuys, and Burbank, are already at capacity and many are working with the FAA to institute access restrictions. The LAX Master Plan Final EIS states that "all ofthe general aviation airports are constrained from large scale expansion and there is a concern to avoid displacing general aviation operations from those busy facilities into other commercial airports in the region." Diverting general aviation operations to LAX is inconsistent with SMa's reliever status obligation: to relieve general aviation operations from LAX. Allowing one City to ban Categories ofaircraft inviolation ofits Federal obligations will encourage other local governments to follow suit thus creating apatchwork oflocal laws affecting aviation which is the province ofthe Federal government. The ban undermines the FAA's role to ensure the safe and efficient use ofairspace pursuant to 49 U.S.C. §40103(b)(l). Permitting the City to enforce its ban during the pendency ofPart 16administrative proceedings will detract from FAA's statutory role to enforce airport grant assurances and other Federal obligations. Legal Authority.
Pursuant to 49 U.S.C §40113(a) FAA is authorized to issue orders to carry out Part A ofSubtitle VII of 49 U.S.C., including section 40103(e) prohibiting the granting ofexclusive rights. That section provides explicit authority for the Administrator ofthe FAA to "take action the

... Administrator

... considers necessary to carry out this part
.... " including the authority for" issuing orders."
Pursuant to 49 U.S.C §47122(a) the FAA may issue orders to carry out Subchapter Ion Airport Improvement, sections 47101

- 47142. This subchapter includes the grant assurances requiring reasonable access and prohibiting unjust discrimination to aeronautical users. Pursuant to 49 U.S.C. §4611O(a), FAA final orders issued under Part A or Part B of Subtitle VII of49 U.S.c. may be appealed to the United States Court ofAppeals. Under 14C.F.R § 16.33(d) ifthe Director's Determination finds the respondent innoncompliance and proposes the issuance ofacompliance order, the initial determination will include notice and opportunity for ahearing under Subpart F, ifsuch an opportunity is provided by the FAA. Section 16.109(a) ofthe regulation provides authority for the issuance ofproposed orders ofcompliance including a cease and desist order in initial determinations.

9The FAA recognizes that itis an unusual step to issue acease and desist order that is effective

immediately. However, no local government has previously ever taken the unprecedented action the City now contemplates. In the context ofthis proceeding, where the City is poised to begin enforcing a local ordinance with criminal penalties that may very well be unlawful for ahost ofreasons, allowing the Ordinance to take effect atthisjuncture inthe administrative proceeding cannot be countenanced. There is no basis here for the City to alter the status quo, deprive operators oftheir right to use SMO and subject other airports and the air navigation system to the disruption that will ensue while the City tests its various arguments in defense ofits Ordinance inthe ongoing administrative proceeding. Therefore the FAA has determined that advance notice ofthis Order, and any opportunity for hearing prior to its effectiveness is not practical and will not be inthe public interest. The FAA has therefore determined that there is good cause to make this cease and desist order effective upon issuance consistent with the FAA's authority to take action deemed "necessary" to carry out the aviation statutes, including section 401 13(a). Under the statutory and regulatory scheme, an initial Director's Determination with afinding ofnoncompliance and providing the opportunity for ahearing, may propose issuance ofacompliance order. However because the Ordinance is effective April 24, 2008 before the Director's Determination will issue, and given the immediate and severely disruptive nature ofthe Ordinance, the City was provided notice on April 21, 2008 ofFAA's intention to issue an interim cease and desist order. The City responded by letter dated April 22, 2008, and refused to suspend enforcement ofthe Ordinance. Good cause exists for issuance ofan interim cease and desist order. SMO is an important general aviation reliever for LAX in aregional airspace and airport system that is already strained interms of available airports. Furthermore, Category C and D aircraft operations have been landing and taking-off safely from SMO for over twenty years. There isno emergency requiring an immediate ban, and there is no basis for achange in the status quo that would bar these operations. Furthermore, while we have not yet concluded our initial determination, we can make apreliminary finding that the City's ban on operation ofthese aircraft is unlawful. Accordingly, itis our view that the Ordinance cannot be allowed to go into effect, particularly while the FAA's proceeding is ongoing.
In order to ensure that the City has ample opportunity to respond to matters set forth inthis Order the FAA is affording the opportunity for aresponse to be filed within 10days. Inthe event that those comments articulate abasis, consistent with legal constraints and with the public interest, for allowing the Ordinance to take effect during the pendency ofthe FAA's proceeding we will re-visit this issue. Otherwise itis our intention that the City must beprecluded from banning operations by Category C and D operators until such time that the legality ofthe City's proposed ban is determined, one way orthe other.
IT IS ORDERED: That the City of Santa Monica, California cease and desist immediately from enforcing its Ordinance banning Category C and D aircraft operations from Santa Monica Municipal Airport until afinal agency decision is issued inthis matter pursuant to 14C.F.R. §§ 16.33 or 16.241(c). That City shall publically withdraw its letter ofApril 14,2008 to airport users regarding enforcement of the ordinance.

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

the Ordinance is in abeyance until completion ofthe FAA's administrative process. That City shall provide acopy ofthe notification above to the FAA as well as the list ofusers to whom it was sent, no later than close ofbusiness April 28, 2008. That The City may file aresponse to this Interim Cease and Desist Order within 10days from the date of this Order.
That The FAA shall consider any arguments made in such response concerning conclusions reached in this order in a subsequent order.

Acting Director Office ofAirport Safety and Standards

11Office of the CityAttorney City Hall 1685 Main Street PO Box2200 Santa Monica. California 9040; Cit Y J: Sanfa Moniea®
April 22, 2008
Kevin L. Soleo Acting Director, Airport Safety and Standards Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591
Re: Enforcement of Santa Monica's Aircraft Conformance Program Ordinance No. 2251 (CCS) Dear Mr. Solco: Yesterday, you communicated to Santa Monica Airport Director Robert Trimbom the FAA's demand that Mr. Trimbom take specified actions by the close ofbusiness today. The actions include withdrawing his letter ofApril 14,2008 notifying aircraft users that the City Council had adopted Ordinance No. 2251 ("Ordinance"), which prohibits the operation of Category C and D aircraft at Santa Monica Airport, in order to protect public safety. Your conununication warns Mr. Trimborn that ifhe fails to accede to the demand, the FAA will issue a cease and desist order requiring that the City refrain from enforcing City Ordinance No. 2251 pending the outcome of the administrative proceeding, which the FAA initiated over five years ago and recently attempted to "revive" through issuance of an Order to Show Cause. Your letter claims that the proceeding was "stayed," but in fact there was no stay and the 120 day period for decision expired without extension.
Before responding to your demand, Imust express the City's objections to the FAA's process. As you are aware from the City's response to the Order to Show Cause, the City is represented by counsel in this proceeding. Any conununications you issue should be addressed to counsel listed on that pleading, not to the Airport Director. The necessity ofyour doing so is particularly obvious under these circumstances: you threatened legal action and required aresponse within one day.
In the context ofthis more than five year old dispute, your demand appears both unreasonable and misdirected on its face. The FAA is well aware that the Ordinance was adopted according to the standard process dictated by state and local law. There were multiple public hearings over the course of several months, four ofwhich your agency attended. Even after the Ordinance was approved on first reading, the second reading was postponed to ensure ample opportunity to explore possibilities that might have existed for acooperative resolution. Thus, the City Council took the time to carefully consider both the safety ofthe conununity and the FAA's arguments against the Ordinance. Ultimately, the Council concluded that the Ordinance should he adopted to ensure safe and appropriate operation ofthe City's Airport. The Council's authority cannot be circumvented by simply demanding that the Airport Director inunediately withdraw a letter

tel: 310 458-8336 • fax: 310395-6727

c:~~ .. , p",'" ~ ,\' !,.,-,;.(Kevin L. Solco

Acting Director, Airport Safetyand Standards April 22, 2008 Page2

intended toimplement Citylaw andpolicy bygivingfairnotification ofthe new lawto aircraft operators. Additionally, yourcommunication withMr. Trimborn isfurtherevidence thatthis process is infected withprejudgment. As explained, atlength, intheCity's response tothe Orderto Show Cause, theFAAhas already decided thematter. Months ago, Associate Airport Administrator Shafferdecreed, inwriting, thatthe Ordinance is "flatly illegal". Yesterday, theFAA's counsel, conveyed aletterwhich asserts, without anybasis infact,thatthere willbedireconsequences if the Ordinance goes intoeffect. This assertion isapparently based solely onthenwnber of operations bynoncompliant aircraftwithinthelastyear. Itignores the factthatfractional operators havepublicly statedthattheirparticipants mayeasilyusecompliant aircraft andthat charteraircraft users maydothe same. Thus, the statements inyesterday's communications perpetuate theFAA's practice ofprejudging theoutcome ofthisproceeding. Thethreatened cease anddesist order againsttheCitywouldonly constitute furtherevidence oftheFAA's bias. Suchblindprejudgment has noplaceingovernmental process. Evenifyour agency remains determined toignore standardrequirements ofDueProcess initsefforts toplacethe convenience ofa smallpercentage ofAirportusers abovepublic safety, you shouldconsider theFAA's reputation. Itcanonlybeprotected, orperhaps salvaged, bytreating theCity fairly and reasonably inthis case. To date, youhavenotdone so. TheFAA assertsthatnoemergency exists atthistimethat warrants implementation ofthe City's banonCandDoperations attheCity's Airport. The FAAfurther assertsthatthe City is somehow attempting to "divesttheFAA ofitsjurisdiction over itsadministrative process". Both statements arepatently unreasonable. Astheextensive record onfilewiththeFAA clearly demonstrates, theAirportfacilities arenot, according tothe FAA's own standards, adequate forCandDaircraft. There arenorunway safetyareas, and there arehomes insingularly closeproximity totherunway ends. TheCity isresponsible and liable fortheAirport's op-.:cution. TheCitymustkeeptheAirport safeandis simply attempting to implement theFAA's own safety standards. The City actedprudently toaddresstheserisks. TheOrdinance was adoptedthrough the standard municipal process - indeed, asexplained above,thatprocess was extended toensure a fullopportunity forconsideration oftheFAA's concerns andpossible solutions. And, itwas adoptedto fulfillthe mostbasicofgovernmental duties

- thedutytokeepthepublic safe. Yourassertionthatthis effortisundertaken todivestyouragency ofjurisdiction reveals stunning self-absorption orinstitutional paranoia. Nor, contrary toyourassertions, doesthe lawrequire thatanemergency existpriortothe adoption ofthe Ordinance. Likeyouragency, the City servesthepublic and does so,by among otherthings, adopting laws thatprotectpublic health and safety. Moreover, asAirport proprietor, theCirj mustbothprotectthepublic and safeguard againstliability forfailuretokeep the Airport safe. Youragency's assertionthatCandDaircrafthavebeenusing SMO forover twenty years without incident wouldnot, eveniftrue, establish thattheCitymaynotmeettheKevin L. Soleo

Acting Director, Airport Safety and Standards April 22, 2008 Page 3

FAA's own safety standards. The FAA's argument to the contrary is as foolish as saying that if acity bridge designed to handle 10,000 pound vehicles has been able to support some 25,000 pound vehicles in the past, the City is therefore required to allow all such overweight vehicles to use the bridge in the future. Indeed, ifthe "tombstone mentality" evidenced in your letter were national policy

- which it is not

- compliant runway safety areas would only be required at those airports which had already experienced serious runway overrun accidents. Simply put, the law does not require Santa Monica to suffer a catastrophe in order to qualify to meet FAA runway standards. In recent years, the number of faster aircraft operating at the Airport has increased significantly. At the same time, federal acknowledgement ofthe importance ofrunway safety areas has grown. Indeed, James Hall, who served as Chairman of the NTSB for six years, concluded in his Declaration, on file in this case, that runway safety areas are "critically important" and "especially important to safety at [Santa Monica Airport] due to its unique topography and close proximity to residential housing." He also concluded that in the absence ofmeeting the federal standards, "Category C and D aircraft should not be permitted to operate due to the serious risks of injuries and deaths."
The City, as aprudent airport operator, cannot ignore these realities. And, we are confident that implementation ofthe Ordinance will greatly enhance public safety while only minimally inconvenience Airport users. When the Ordinance was adopted, there were about 25 C and D aircraft per day at the Airport. When the law goes into effect on April 24, 2008, the operators of affected aircraft can and will either switch to compliant aircraft or make adequate arrangements at one ofthe surrounding airports where C and D operations do not create serious safety risks. They have choices. The City simply does not have the choice ofignoring the growing safety risk.
Nor should the FAA ignore it. Your agency is already under criticism and pressure from Congress for puuiug aviation industry convenience ahead ofpublic safety. The City urges you to change your course and steadfastly put safety first. Even ifyou will not, or cannot, the City must. Therefore, it must respectfully decline to withdraw Mr. Trimborn's letter notifying pilots that the Ordinance will go into effect on April 24th• Very truly yours, 

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### "fn~--' MARSHA JQNES MOUrJRIE City Attorney cc: Mayor and City Council P. Lamont Ewell, City Manager Roh Trimhorn. Acting Airport Director Marty Tachiki, Deputy City Attorney Frank San Martin, Office of Chief Counsel, FAA

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u.s. Department of Transportation Federal Aviation Administration 800 Independence Ave

.. S.w. Washington. D.C.20591
April 2I, 2008
Mr. Robert Trimbom Airport Manager Santa Monica Municipal Airport 3223 Donald Douglas Loop S. Santa Monica, CA 90405

RE: Santa Monica Municipal Airport

- City Ban on Category C and D Aircraft
Dear Mr. Trimbom:
You have advised aeronautical users of Santa Monica Municipal Airport (SMO) by letter, dated April 14, 2008, that pursuant to a March 25, 2008 City Ordinance, Category C and D aircraft operations are prohibited at SMO effective as ofThursday April 24. Your letter further advises that operators of those aircraft will be subject to misdemeanor prosecutions, fines and possible jail sentences for violating the Ordinance. We have discussed this matter with the airport and with the Santa Monica City Council on anumber of occasions and, as you know, the subject ofthe legality ofthe Ordinance is now part ofan on-going FAA proceeding. While we have not yet concluded that proceeding, our initial view, as we have previously communicated to you, isthat the City's ban on operation ofthese aircraft is unlawful. Accordingly, itis our view that the Ordinance cannot be allowed to go into effect, particularly while the FAA's proceeding is ongoing.
The legality ofthe ban on Category C and D aircraft at SMO isbefore the FAA pursuant to aNotice of Investigation under 14C.F.R. Part 16. On March 26, 2008, one day after the City adopted the new Ordinance imposing the ban, the FAA moved to expedite the Part 16proceedings, which until that time were stayed by the parties' attempts atnegotiation. Presently, we are near to completing the initial determination but the administrative process may extend for some additional time
SMO maintains that Category C and D aircraft presently represent approximately 9,000 aircraft operations or 7 % oftotal annual aircraft operations. SMO is an important general aviation reliever for Los Angeles International Airport (LAX) in aregional airspace and airport system that is already taxed in terms ofavailable airports. Furthermore, Category C and D aircraft operations have been landing and taking-off safely from SMO for over twenty years. There is no emergency requiring an immediate ban, and there is no basis for achange inthe status quo that would bar these operations.
Your enforcement ofthe Ordinance on April 24, 2008, can only be interpreted as an attempt to divest the FAA ofitsjurisdiction over its administrative process to which the City, as afederally obligated airport, must adhere. Moreover, your attempted enforcement ofthe City's Ordinance also suggests a complete disregard for the FAA's authority and responsibility as the final arbiter ofaviation safety in the National Air Transportation System.The FAA cannot countenance enforcement ofthe Ordinance under these circumstances while the

administrative proceeding is underway. Therefore, the FAA requests that, by close ofbusiness Tuesday April 22, 2008, you withdraw your letter to the aeronautical users and assure the FAA and those users in writing that the City will refrain from enforcing the ban on Category C and D aircraft operations pending the outcome ofthe Part 16administrative proceeding. Please provide this office with a copy ofyour withdrawal letter by close ofbusiness Tuesday April 22, 2008.
Should the City fail to comply with this request, the FAA will issue acease and desist order requiring the City not to enforce the Ordinance in order to preserve the status quo. In the event that, for whatever reason, the City does not comply with anFAA cease and desist order, we will pursue appropriate remedies through all means available.

Sincerely,

~~ Acting Director Office ofAirport Safety and Standards