Procrastination can pay. For the past two weeks the top item on my to-do list has read, “Blog on SMO—read dox.” “Dox,” meaning the pleadings and briefs that have been piling up in multiple pending Santa Monica Airport (“SMO”) court cases.
“Pending”—scratch that. The settlement announced Saturday between the City of Santa Monica and the Federal Aviation Administration (FAA) resolves all litigation between the City and the FAA. As for litigation with third parties, such as aviation businesses at SMO, the FAA agreed to defend the settlement against any challenges.
Happy now that I didn’t waste time reading those dox.
The settlement has been widely reported, even making the front page of Sunday’s Los Angeles Times. There have been many articles in the local press, such as here (Santa Monica Lookout News) and here (Santa Monica Daily Press).
Most attention has focused on the City’s getting from the FAA an absolute date, Jan. 1, 2029, by which the City can close SMO. Other important points include that the runway will be shortened to 3,500 feet, eliminating most larger (“C and D” class) jets and preventing charter services like JetSuiteX, which was already selling tickets, from operating. The City also strengthened its authority over operations at the airport.
Speaking broadly, most observers outside of Santa Monica expressed astonishment that the City got the FAA to agree that the airport could close, while within Santa Monica a considerable number of anti-airport activists are shocked that the City agreed to operate the airport for 12 more years. In fact, three members of City Council voted against the settlement for precisely that reason.
So—is it a good deal?
Well, as one of those anti-airport activists—one who believed the City’s case against the FAA was good—my initial reaction was shock. I mean, Jan. 1, 2029? It’s also impossible not to recall that this is not the first time the FAA has agreed the City could close SMO. The first time was in 1984, when the FAA agreed the City only had to keep the airport open until July 1, 2015. As of 2000 the FAA was acknowledging that after that date SMO’s future would be a “local land use matter.”
But then in 2008, for reasons I’ll get to, the FAA changed its mind. The feds said the City couldn’t close the airport in 2015; that when the 1984 agreement expired the parties would return to where they were in 1984, fighting again over the same issues. It hurts to say it, but as a result of the SMO saga, I’ve become a little more understanding of the Sagebrush Rebellion.
So is the agreement, as Council Member Kevin McKeown said to the Daily Press, a case of “snatching defeat from the jaws of victory?”
I don’t believe so, and let me explain why.
First, would there have been a victory to snatch defeat from? As I’ve written often, the City had a good case that it had the right to close SMO, but that doesn’t mean it would win. The City was facing a party, the federal government, with unlimited resources, an agency, the FAA, dedicated to keeping airports open, and an incoming administration that favors business. (Not to mention a president whose most potent symbol was his private jet.) It’s significant that the law firms representing the City in its cases against the FAA advised the City to take the settlement. That was advice coming from lawyers who are naturally competitive, who like to win, and whom, incidentally, the City would have paid millions in fees if the cases continued to be litigated.
The great example of allowing enthusiasm to influence litigation was the fiasco of the City’s attempt to ban from SMO class C and D jets, an attempt that resulted in litigation that the City lost catastrophically. It felt good to ban the jets, and everyone was certain that the City was in the right. Not only, however, did the City lose and spend a lot of money doing so, but it was that case that prompted the FAA to change its interpretation of the 1984 Agreement. In years when the City should have been lying low, waiting until 2015, the C and D litigation kicked awake the sleeping dog of the FAA.
The only certainties about litigation are that it costs a lot and that no one knows how it will turn out. There is a reason that city councils discuss litigation in closed session. Decisions about legal tactics are not best made in response to public comment.
In evaluating the settlement, one also has to consider the context, namely the threat from JetSuiteX to begin the equivalent of commercial air service at SMO. If JetSuiteX succeeded, no one knows how that might have changed the political dynamic. Inevitably the aviation industry will try another initiative to keep SMO open; the vote might go differently than it did in 2014 with Measure D if voters not negatively affected by SMO are using and benefiting from it.
One is reminded of the axiom that the price of liberty is eternal vigilance. (Something we are reminded of these days whenever we look at a newspaper.) The fight to close SMO is not over because the fight to keep it open is not over. The aviation industry is just as angry about the settlement as anti-airport activists. They’re fired up and they’re not ready to go.
What will be most important in coming years is that the City use its enhanced powers over the airport—enhanced more because the FAA has decided to wash its hands of SMO than because of any specific right the City obtained under the settlement—to continue to reduce operations at SMO until no one has a financial interest in keeping it open.
For those of us who want to close the airport and build a park there, it’s going to be essential to remain politically involved. Council Member Tony Vazquez, as quoted in the Daily Press, made the valid point in explaining his “No” vote on the settlement that he would “hate to see a future council cut a deal with the FAA to continue to operate this airport any longer than 12 years,” but that’s a political reality settlement or no settlement. Meaning that even if there were no settlement, a future council could decide to cease litigating against the FAA. At least the settlement neutralizes the FAA.
The settlement is not the end of SMO. But, apologies to Winston Churchill, it should be the beginning of the end.
Thanks for reading.