FAA & City of Santa Monica Reach Compromise
Consequences May Deteriorate the National System of Airports
It’s early and already what’s “known” is neither contained in formal legal documents nor subject to any 3rd party questions. The articles are many in number and even more numerous in opinions of what happened.
The agreement requires the city to maintain continuous and stable operation of the airport for 12 years, until December 31, 2028, and after that the City has the right to close the airport.
In recognition of the city’s authority to make decisions about land use, the agreement allows Santa Monica to shorten the airport’s single runway to 3,500 feet from its current length of 4,973 feet. The city is obligated to enter into leases with private aeronautical service providers to ensure continuity of those services until the runway is shortened and it decides to provide such services on its own.
“Mutual cooperation between the FAA and the city enabled us to reach this innovative solution, which resolves longstanding legal and regulatory disputes,” said FAA Administrator Michael Huerta. “This is a fair resolution for all concerned because it strikes an appropriate balance between the public’s interest in making local decisions about land use practices and its interests in safe and efficient aviation services.”
Both documents have typos [FAA: “…it decides to provide such services on its own”— editorial: as written the sentence is at best unclear and at worst, it does not make sense. CITY: “S. Government” = U.S. government?] The phrases “private aeronautical service providers” [FAA] and “proprietary exclusive fixed based operation” [CITY] do not reflect a meeting of the minds. The FAA’s word choice denotes that it wants a private FBO at SMO while the City’s terminology reflects their previous effort to fire the two existing FBOs and to operate its own (proprietary) facility. THAT’S A DIRECT CONFLICT.
The words highlighted in red in the FAA version reflect critical concepts which are absent in the City’s bulleted points. The City’s purple text is not found in the US summary.
If that’s not confusing enough, the City has issued a MUCH longer version with many more terms than reflected in any federal document. It recites
- its preferred “proprietary” wording plus specific citation of the City’s right to control fueling
- the possibility of SMO’s closure BEFORE December 30, 2028.
Those are significant points which will incur some ire from the aviation community. This more legalistic document recites that the parties will:
- Within 30 days of this Agreement’s execution, the Parties shall jointly move in City of Santa Monica v. United States of America, et al., Case No. 13-CV-8046-JFW (VBKx)(D. Cal.), for entry of this Agreement as a Consent Decree and for a stay of the litigation pending the decision on the Consent Decree.
- Within 30 days of this Agreement, the Parties shall jointly move to stay City of Santa Monica v. Federal Aviation Administration, No. 16-72827, (9th Cir.), pending the entry of the Consent Decree.
- Within 14 days of the entry of the Consent Decree, the City shall dismiss with prejudice City of Santa Monica v. Federal Aviation Administration, No. 16-72827, (9th Cir.).
- The Parties agree that entry of the Consent Decree shall resolve all pending disputes at issue in In re Compliance with Federal Obligations by the City of Santa Monica, FAA NO. 16-16-13 (S. Dep’t of Transp., Fed. Aviation Admin.), and that the FAA shall therefore dismiss the NOI.
- Further, the Parties agree that this Agreement upon entry of the Consent Decree shall resolve all claims by the Parties that have been brought, or could have been brought, in City of Santa Monica v. United States of America, et al., Case No. 13-CV-8046-JFW (VBKx) (D. Cal.), City of Santa Monica v. Federal Aviation Administration, No. 16-72827, (9th Cir.), or In re Compliance with Federal Obligations by the City of Santa Monica, FAA NO. 16-16-13 (U.S. Dep’t of Transp., Fed. Aviation Admin.), including all the Parties’ actual or potential claims pertaining to the past operation of the Airport by the City pertaining to tenants, aircraft and FBOs.
WOOOSH, that’s the sound of aviation lobbyists heading in ground vehicles to the White House and the swearing in ceremony of Secretary Chao. There they will remind the new Administration about their collective support of President Trump and demanding that the DoT reverse this aberrant decision. As soon as Attorney General-nominee Sen. Sessions is sworn in, a band of different Washington Practitioners will head to the Department of Justice to plea for a reversal.
WOOOSH, that’s the sound of aviation lawyers flying west to the US Federal District for the Central District of California and to the US Court of Appeals for the 9th Circuit. As fast as the Microsoft Word programs will print out Motions and Briefs in Opposition, the court docketing clerks will be inundated with voluminous and thorough arguments against this abuse of justice and aviation.
The journalists have started to spin out stories, some in favor of the compromise, some opposed to it because the City did not get enough and some arguing that the FAA/Justice have lost their minds. Here is a representative smattering of this range of views:
A. In favor of the compromise:
B. Some opposed to it because the City did not get enough:
C. Some arguing that the FAA/Justice have lost their minds:
The last article, although more than a bit irreverent, raises some interesting observations:
President-elect Donald Trump’s nominee to run the DOT, Elaine Chao, testified before a Senate panel last week en route to what is expected to be an easy confirmation, says the Washington Post. She was deputy secretary of transportation under George H.W. Bush. Chao has not been confirmed or sworn in yet, however.
To understand why this is Huerta’s slap in the face to the Republicans, consider two facts: Chao is married to Mitch McConnell, Senate Majority Leader. She has not yet been confirmed, but will be soon, at which time she will become Huerta’s boss.
Santa Monica is perhaps the most liberal community in the US. It is filled with the type of people Trump despises; well educated, left wing one percenters. Hillary Clinton came here to conduct numerous fundraisers with Hollywood A-Listers. 88% of Santa Monica voters were With Her in November 2016.
On June 7, 2016, the night of the California Primary election, Bernie Sanders’ State HQ was in Santa Monica. At the Airport’s Barker Hanger, of all places. A Bernie Sanders rally is very much the kind of “cultural event” that Santa Monica plans for the airport’s future.
Why would the Trump administration want to reward Santa Monica with the gift of 227 prime acres, used for 100 years as a municipal airport? The answer is: He doesn’t.
Most of those vocal opponents are vigorously rejecting the settlement. The SM City Council only voted to accept it 4-3, and ONLY AFTER THE CITY ATTORNEY TOLD THEM AT A RARE SATURDAY CLOSED SESSION, THAT THIS OFFER WAS ON THE TABLE UNTIL CHAO IS CONFIRMED. At their final opportunity, the City reluctantly accepted the offer because they know it’s their last chance to get rid of the airport, and 12 years is better than never.
The rushed settlement was jammed through in the closing days of the Obama administration, along with a flurry of pardons, executive orders and national parks. Obama did approve the settlement himself; however President Donald Trump or Chao can override it and will probably do so next month.
Stay tuned. There’s more here than meets the eye, and it ain’t over till it’s over.
Without the actual documents, further commentary is speculation. The inconsistencies between the FAA and City’s versions demonstrate the fluid nature of this “compromise.”
The final version of what the FAA has allowed or not allowed may well set a precedent which other Cities will quickly replicate to break the strictures of their AIP agreements. THE CONSEQUENCES MAY BE TO SUBSTANTIALLY DETERIORATE THE NATIONAL SYSTEM OF AIRPORTS. The scrutiny of these papers will be extreme.
If the differences in the respective press releases reflect merely poor drafting, the reaction from AOPA, NBAA and others will intensify. It is possible that in the haste to finalize the papers the parties did not have a meeting of the minds on critical terms. In either event, the revelation or evolution of the precise points of agreement will create great energy on either or both sides. Ambiguities may serve as a basis for the new Administration to withdraw from the pleadings and proceedings.
The original City argument was to convert the airport into higher revenue producing property because the government’s tax base was not increasing and the its expenses increasing. Conversion of the airport into a park would not help that financial stress.
What the release of the documentation will clarify is the federal review of the compromise. Usually such a precedent-setting policy would require high levels of review within the Department of Transportation and the Department of Justice. As of January 20, there were no political appointees in either organization. WHO THEN HAD THE AUTHORITY TO SIGN OFF ON THIS COMPROMISE? Administrator Huerta, by virtue of his five year term, may have been the senior official reviewing the proposal and his quote in the FAA press release indicates that he approved of the terms.
The terms of the settlement may not be reversible; if that is correct and if the Trump Administration may likely have difficult questions for all involved in the decision, if this is as reported, to use the swearing-in date as a deadline. If Secretary Chao and/or Attorney General Sessions disagree with the terms, the Administrator will be put in an awkward position and that may have influence the placement of the political appointments within his senior staff.
The Santa Monica Airport has been one of the most difficult, if not visible, airport policy battles for almost 40 years. THE FINAL DETERMINATIONS OF WHAT THE PROPOSED AGREEMENT REALLY MEANS AND WHETHER THE TRUMP ADMINISTRATION INTENDS TO LET IT STAND WILL NOT ONLY BE A LANDMARK AIRPORT DECISION, BUT MAY INFLUENCE THE POLICY DIRECTIONS OF THE FAA FOR THE NEXT FEW YEARS.
Attorney Says FAA/Santa Monica Deal Threatens National Airport System | Former FAA Deputy Administrator Says Terms of the 'Compromise' are not clear Press Release – FAA Reaches Settlement Agreement with City of Santa Monica Santa Monica Airport will Close Forever on December 31, 2028 Santa Monica City Council Reaches Historic Agreement with the Federal Aviation Administration and the Department of JusticeShare this article: