Santa Monica Airport litigation: The FAA’s problem is no remedy, no right

Northward view at Santa Monica Airport. Imagine this a park.
Northward view at Santa Monica Airport. Imagine this a park.
Here's my latest on The Healthy City Local blog.

In litigation as in life people waste time trying to avoid what matters, and a good example of that was the response that the federal government filed Friday to the City of Santa Monica’s lawsuit seeking to confirm the City’s control over the Santa Monica Airport.

On behalf of the Federal Aviation Administration, U.S. attorneys moved to dismiss the City’s lawsuit on various procedural and jurisdictional grounds, including that some claims should have been filed in a different court, some were outside of jurisdiction of federal courts, and that some were not “ripe” for adjudication — as if there is no controversy yet because the City has not already sent bulldozers to tear out the airport’s runway.

In court, procedural challenges are always the first line of defense – but you have to wonder: does the FAA want Santa Monica to send in the bulldozers? This dispute is going to end up in court somewhere, sometime, and we may as well get to the substance sooner rather than later.

The substance in the case of Santa Monica vs. United States is a clause in a 1948 agreement, called an “Instrument of Transfer” (IOT), between the federal government and Santa Monica. The IOT returned the airport to Santa Monica’s control after the federal government had leased it from the City during World War II (so that the army could protect Douglas Aircraft). The feds transferred many airports to cities after the War, and the IOT’s, including the one for Santa Monica Airport, contained a clause that the cities agreed to operate the airports in perpetuity. It is the enforceability of this perpetuity clause that will determine the future of the airport land.

Because I am involved in Airport2Park.org, the movement to turn the airport into a park, friends often ask me whether I believe Santa Monica will be able to close the airport. I’m not a litigator or expert on the laws at issue in the case, and you are welcome to take what I say with all the grains of salt you want, but I believe that the perpetuity clause is not enforceable, and the courts will confirm the City’s control over the airport land.

I believe this for two reasons. I’ll admit that the first is somewhat circumstantial — it is that if the FAA could stop the City from closing the airport it would not have entered into the settlement agreement with the City in 1984 that says that the City won’t close the airport before July 1, 2015, implying strongly that the City has that right to do so.

Somewhere deep in the FAA’s collective consciousness I suspect that there was in 1984 and is today a realization that there is no way that the courts – or if not the courts, politicians – are going to require, because of a pro forma clause in a 1948 contract, that a city continue to operate, at a financial deficit, a dangerous nuisance surrounded by homes, businesses, and schools. The 1984 agreement, at a minimum, should be seen as superseding any earlier agreement. The FAA is operating from a level of desperation, something the agency is familiar with because for all its bluff it hasn’t been able to stop hundreds of airports around the country from being closed.

Even if that is not the case, and the FAA believes in its cause, the second reason the City will win is not circumstantial — it is that even if the courts reject the City’s arguments that the 1948 perpetuity clause is unconstitutional or otherwise invalid (arguments that sound good to me!), and uphold the clause, the FAA doesn’t have a remedy to stop the City from closing the airport.

And as they teach you in law school, there is no right without a remedy.

The reason the FAA doesn’t have a remedy is stated right in the government’s response, on page 12, when the U.S. attorneys state that the “operative language” in the IOT if the City doesn’t comply with its obligations (i.e., operate the airport) is that the federal government has an interest in all rights “transferred by this instrument.” This means, and the IOT is specific about this, that if the City does not comply with its obligations, the rights or property transferred to the City under the IOT can revert, at the government’s option, to the government. That is the government’s remedy — it’s not as if the FAA could obtain an injunction to require the City to continue to operate the airport. It’s the reversion or nothing.

The problem for the FAA is that there’s nothing left of the rights transferred in 1948 to revert, because all the government had then was a lease that expired long ago and equipment and improvements that are long gone. This is what makes the Santa Monica Airport situation different from the typical postwar airport transfer — the feds never owned the land. There is nothing to revert.

As I said, I don’t know anything about the procedural or jurisdictional claims in the government’s motion to dismiss, but this is a case where Santa Monica could lose every motion and every argument, and then still win in the very last sentence of the final decision of the last court that considers the case.

Thanks for reading.

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Victor Ludorum January 22, 2014 at 06:30 PM
Insulting people and calling them liars is no way to win people over to your side Rick. And it's hard to take your arguments seriously when your spelling is so poor. I don't live next to the airport but I'd love to see it disappear. It seems like it only serves corporate types with private planes and a few pilots, but it has a harmful effect on the quality of life of so many others....
pilot_rick January 22, 2014 at 07:12 PM
Victor, what about all of the insults Michael S has given me. He has constantly attacked me and attacked my character. If you don't live next to the airport why would you want to see it disappear. It provides thousands of jobs to our community and is part of our national infrastructure. Your argument is nonsensical.
Michael S January 23, 2014 at 11:21 AM
It would be easy to prove you are not a liar not a pilot_rick. If there was even one study of the many you claim there are you would have linked it long ago. Liars like you are as old as the internet itself. You claim there are studies or that articles claim something that they don't and then hope that no one calls you on it. Guess what? You got called on this one and have been shown for the liar that you are.
pilot_rick January 23, 2014 at 03:55 PM
Michael why do you keep calling me a liar?
Michael S January 24, 2014 at 01:56 PM
Because you are a liar. The numerous studies you claim prove that there are no health risks associated with Santa Monica airport traffic don't exist. That makes you a liar and everyone should know it by now.
pilot_rick January 24, 2014 at 08:46 PM
Michael in the words of the great pee wee herman, I know you are but what am I. I have cited many numerous studies that show Santa Monica does not pollute. In fact here is another one. And because you are incapable of using a search engine here is a link especially for you. http://smdp.com/report-samo-air-quality-some-of-the-best-in-socal/121552 The anti airport establishment will go to whatever lengths it takes to shut down our beloved airport just so fat cat real-estate developers can get richer!
Michael S January 24, 2014 at 09:07 PM
Priceless and pathetic all in one. You link an article about santa Monica's overall air quality. Not a study of the particulates that rain down on the homes under the flight path which is what you claim the other studies you refuse to link to prove are safe. You need to go back to troll school not a pilot rick. Only the very stupid wil ever believe you.
pilot_rick January 24, 2014 at 10:43 PM
Michael why don't you show me a study that actually measured particulates. I have posted countless studies on here however you seem not to be able to find them. This was just the latest article and if you bothered to read it it did sample the air quality from all over los angeles. Only the very very stupid will believe you!
Victor Ludorum January 25, 2014 at 01:53 AM
Pilot RIck: here's the problem. It's not enough that you attempt, very feebly, to rebut my arguments, but then you add the rider 'your arguments are nonsensical'. THat is not an argument, it's an attack. So let me respond, item by item: 1. you attempt to justify your personal attacks on Michael S by saying, in essence 'he's doing it too'. That is an argument my son used to make until he reached his sixth birthday and grew out of it. I suggest you do the same. 2. The fact that I don't live next to the airport doesn't not mean I'm not concerned for the greater good. In fact, that's the opposite of selfish. By your logic only people who live right by the sea should be concerned about water quality. 3. Thousands of jobs...really? I'd love to see hard evidence that this is the case. And you know what? A nice oil processing facility next to the Pier would create jobs too. Should we break ground on that, too? 4. It's part of our infrastructure. So what? Things can change. Route 66 was part of our infrastructure too, once upon a time. Then we moved on. 5. Finally, I don't know what your level of education is, but judging by your inability to make a coherent, logical argument, I'm going to assume it's not that high. If you really want to get into a battle of wits with me, you'd better bring along a dictionary and a smart friend, because as things stand, you're woefully outgunned...
pilot_rick January 25, 2014 at 03:28 AM
Great Idea. Route 66 was replaced with a much bigger and better freeway. I have always said Santa Monica Airport should be expanded to the sea. Just imagine. An airport to the Sea. Currently the air force's heavy lift aircraft operate out of riverside. It would be great for the troops to move them right in sunny Santa Monica. Riverside gets too hot for the troops in the summer. That way the airport could be expanded and become a joint military/civilian airport. Even the heaviest jets could operate there!
Michael S January 25, 2014 at 12:12 PM
Michael S January 25, 2014 at 12:24 PM
Michael S January 25, 2014 at 12:26 PM
Michael S January 25, 2014 at 12:31 PM
You have posted no studies. The studies you claim to have posted don't exist as is patently obvious since you have never posted a link. I just posted 3. See how easy it was?
pilot_rick January 25, 2014 at 02:57 PM
Michael none of these links work. Only the very very very stupid will believe your lies.
JeanB January 25, 2014 at 04:16 PM
Rick, I just tried all of them and they all work perfectly. Who are you trying to fool with your silly claims? Did you think nobody would check your statement and show it to be a lie?
JeanB January 25, 2014 at 04:17 PM
Oh and Rick, I am not very very very stupid, far from it, so what should we conclude about you?
pilot_rick January 25, 2014 at 05:09 PM
Jean I think you are very very very very very stupid.
JeanB January 25, 2014 at 05:40 PM
Rick, given your last response, your difficulty with the English language, and the fact that you apparently don't know that you need to cut and paste links into a browser to read them, I believe we can safely conclude that it is you, and not I, that when referenced, must be preceded by the word stupid and a plurality of 'very'. In an earlier exchange you claimed to be a commercial pilot. We are now forced to one of two inescapable conclusions, EITHER: (a) it is now clear why there has been a recent rash of news reports concerning commercial aircraft that have landed in small airstrips 'by mistake'; navigation charts after all are quite hard to read. In this case we should all begin campaigning for higher educational standards for commercial pilots. OR: (b) You are not a pilot at all, you are just someone of mediocre intellect who enjoys making false statements in order to see how upset you can make people. In either case I think everyone can see for themselves that nothing you say appears to be true, and none of your statements should be taken seriously.
pilot_rick January 25, 2014 at 05:58 PM
How dare you question my integrity as a pilot. Jean B it is clear from your difficulty with the english language that you are just a fat cat real estate developer trying to close our beautiful airport so you can line your pockets with more money. Its time your lies stop!
JeanB January 25, 2014 at 06:41 PM
Rick, you are ridiculous. I have better things to do with my time than bandy insults with you and your ilk.
JeanB January 25, 2014 at 06:42 PM
Oh and just in case you are wondering, I really did mean ilk, not elk.
pilot_rick January 25, 2014 at 08:59 PM
My ilk? You mean freedom loving americans?
Michael S January 26, 2014 at 01:22 AM
At least you gave up your pretense of being anything other than a right wing troll.
pilot_rick January 26, 2014 at 01:34 AM
why do you think I am "right wing"? Michael S, you are very judgmental.
Victor Ludorum January 26, 2014 at 03:52 PM
Couple of observations here: 1. Pilot Rick has repeatedly claimed SM Airport provides 'thousands of jobs'. According to the airport's own website, their administrative staff numbers....'nearly 25'. So where are the rest of the jobs coming from Rick, that fertile imagination of yours? 2. When challenged on the issue of our changing infrastructure needs, Rick turns to humor to suggest we should build the airport to the sea. In other words, he changes the subject because he know's he's lost the argument. 3. Pilot Rick is worried about losing his job or having to move to another airport. Nothing wrong with that. But instead of being honest he is disingenuous, talking about 'selfish' neighbors, when in fact their concerns are about the general welfare - specifically noise pollution and air quality that affect us all. It is Rick who is being selfish, because he is worried about his job. Calling other people a name which in fact describes yourself is a common, but revealing tactic. It's called projection. 4. Pilot Rick's first tactic was to say this article was full of lies. That's a very inflammatory and aggressive posture to take. And yet in his last post Rick accuses Michael of being 'judgmental'. Three words, Rick: Pot, Kettle, Black.
pilot_rick January 26, 2014 at 09:01 PM
Victor you are wrong. The airport provides over 2000 jobs and over 200 million dollars in economic impact. It's true nearly 25 people work for SMO. But many thousands of people work in aviation related jobs such as mine, a pilot, mechanics, fixed base operators etc. etc. The 25 number refers to just the people who work directly for the city. I do not like your tone and attack on my character but I assume you are like everyone else against the airport and must resort to lies and personal attacks to further your special interest agenda.
Frank Gruber January 27, 2014 at 12:28 AM
Hi, folks -- Oddly enough, I just realized that people were making a lot of comments to my post on Patch -- I usually just monitor my original post on my WordPress blog (where, btw, I don't accept comments from anonymous posters). It's okay here to have anonymous posts, but I believe I have the authority to delete posts (because I see a delete button under every post), and I will delete posts in the future if they involve name-calling, especially, but not limited to, posts by anonymous posters. So this -- the airport -- is an important issue -- play nice. Thanks for reading, Frank
Victor Ludorum January 27, 2014 at 12:36 PM
Rick: you when you 'assume' you make an ass' ...well, I'm sure you've heard the rest of that quote. If you insist on demonizing those that disagree with you or imputing dark, sinister motives it's hard to take you seriously. The reality is there are many regular, working families in Santa Monica who would welcome an end to the airport because of the noise and the pollution. If you don't believe me start talking to folks who live nearby and perhaps you'll change your mind. Finally, a reminder that minds are like parachutes...they only work when they are open.
pilot_rick January 27, 2014 at 02:48 PM
Victor I find your post to involve name calling. But because your post is directed at an airport supporter it is allowed to stay. Typical.


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