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.