The Future Santa Monica Airport (SMO)
A Complex Matter of Facts & Law
The aviation community, in particular the GA community (AOPA and NBAA in the lead) and even more specifically the California pilots, woke up on January 28, 2017 to be shocked by an announcement about the future of the Santa Monica Airport would be December, 2028. The timing, as the Obama Administration left and the Trump Team arrived, added to both confusion and conspiracy theories. That the precise language of the FAA announcement and the City’s PR Release varied in important details added to the controversy and mystery.
Recently, information has been added to the SMO docket:
- United States District Court Judge John F. Walter on Wednesday approved the agreement between the City and the Federal Aviation Administration (FAA) to shut down the facility no earlier than December 31, 2028.
- AOPA has published a very informative interview with the Administrator. Mr. Huerta’s articulate explanation is well worth taking the time to listen to the 22 minutes of dialogue. The association also included a comprehensive article on the subject.
- The City may shorten its 4,973-foot runway to an operational length of 3,500 feet after providing 30 days’ notice. The runway safety areas at both ends of the runway are not included in the 3,500 feet, but the agreement does not define the length of those safety areas.
- The city may exercise its proprietary privilege and can chose to provide airport services directly.
• In the unlikely event that Santa Monica reverses it position and decides to use 3rd party FBOs, or if the City decides to enter the FBO business, either must offer as fuel sales.
• If the city offers leases to tenants, they must have a three-year minimum, and all terms must be “reasonable” to those provided at other airports similar to Santa Monica.
• No hard limits were set on fuel prices or landing, ramp, or hangar or tiedown fees. The FAA will not set fuel/service prices.
• None of the Part 16 cases have been dismissed; the Administrator expects that the private complainants will decide how to respond there to the impact to the USDC compromise.
CONSPIRACY THEORY RESPONSES:
- The Administrator, who was acting Secretary at the time, denies that the Presidential Transition had any impact.
- The settlement was the result of lengthy mediation between the USG and the City; the date reflects the Judge’s calendar.
- Secretary-nominee Chao was not involved, but her transition team was briefed about the facts and the law.
The lead counsel for the US/FAA on the case was Alisa B. Klein, who is a career DoJ Appellate lawyer and who teaches a Georgetown Law Course on the scope of federal and state powers. She knew the law and the risks.
- “First, and most importantly, the Court stated that the City’s action to quiet title was barred by the statute of limitations.”
- “Second, the Court granted the FAA’s Motion to Dismiss with respect to the City’s ‘takings’ claim on the basis that they were premature.”
- “Finally, the Court found the City’s claims of violation of the 10th Amendment and the Due Process clause of the 5th Amendment by requiring the City to operate the Airport in perpetuity not to be ripe for review.”
The Ninth Circuit reversed the District Court’s opinion and found:
- “The district court erred in concluding that the statute of limitations issue is not inextricably intertwined with the merits of the City’s Quiet Title Act claim.”
- “For similar reasons, the district court erred in holding that the Instrument of Transfer ‘clouded’ title to the Airport Land.”
The Appellate Court remanded the case back to Judge Walter for trial on the merits.
Administrator Huerta explained that the FAA looks to the local community to make land use decisions. The essence of this case was a complex mixed matter of facts and law. For example, one of the deeds to the City required the land to be operated as an airport in perpetuity while the other was silent on the issue. The City asserted that the airport requirement terminated in 2014, while the US lawyers held that under the AIP Grant Assurance would extend to 2023.
From that history, a settlement date UNTIL 2028 was fair to both parties in the Administrator’s opinion. Giving the aviation advocates twelve years to offer alternatives to the City and to prepare some practical transition. The fact that many of the City’s citizens have argued against the compromise adds some sense that it may be balanced.
The Administrator believes that the City will honor its obligation to operate SMO for 12 years and anticipates that the Part 16 process will assure that the City’s promise will be met in good faith. If that optimism is accurate, it would reflect a change in the City’s antagonistic attitude for 30 years. In fact, the City has not waited long to express that a benevolent husbanding of SMO is not likely.
From the AOPA interview:
“…the settlement does not set a precedent, according to Huerta.
‘It is an incredibly complicated situation, a very unique[sic] set of facts that relate to Santa Monica,’ Huerta said.
Because of the settlement, the courts never ruled regarding federal surplus property being returned to cities, he said. Huerta also explained that the length of grant assurance obligations was never a question; Huerta clarified that the lawsuits over the grant assurances were based on a difference in opinion of the expiration date, not on the length of the obligations in general. He also said the agency would continue to ensure that airport operators comply with the contractual agreements they commit to when accepting federal funding.
‘I DON’T THINK IT SETS ANY PRECEDENT,’ HUERTA SAID.”
Technically, in the legal sense of the word “precedent,” the Administrator was right; however, EVERY ANTI-AIRPORT ADVOCAT WILL ADOPT THE BATTLE CRY “WE DEMAND THE SMO DEAL.” They will not accept that the basis for the compromise was that the land was transferred under the Surplus Property Act or that the deeds included conflicting languages. Antagonistic City Managers will adopt the SMO “death by a thousand cuts” strategy, fire existing FBOs, take over the fueling/hangaring/maintenance functions with intent to drive aircraft/pilots away.
Even more likely, the Members of Congress, who represent communities that want to end their airports, will be quick to introduce the SMO Community Equity Act. SMOCE will absolve their airports of all AIP obligations. Count on it!
A compromise may have been the best alternative for SMO; the FAA’s attorneys should be given credit for their expertise and command of the facts. Perhaps getting this controversy behind makes sense? That retrospective view may not seem as wise if the Santa Monica City managers continue their past practices and other communities/Congresspersons attempt to emulate what happened in California. HOPEFULLY THAT PROSPECTIVE PESSIMISM PROVES WRONG.Share this article: