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

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.

Northward view at Santa Monica Airport. Imagine this a park.

Northward view at Santa Monica Airport. Imagine this a park.

It’s About Building a Park

In anticipation of Thursday night’s workshop on turning Santa Monica Airport into a park I had intended to write another post about how building a park there would be the best legacy we current Santa Monicans could leave for the future. It was going to a joyful piece. The apparent death, however, of Mark Benjamin and his son Luke in Sunday evening’s crash has drained me of anything in the category of joy.

I knew Mark; not well, not personally, but with as much affection and regard as one can have for a person one knows not personally, but politically. Not that any dealings I ever had with Mark were political in the usual (negative) sense of the word, but they were political in the positive sense that they had to do with community.

In 1999 I served with Mark on an oversight committee for a school bond. Suffice it to say that having the head of a major construction firm on an oversight committee for a construction bond meant that at least someone knew what was going on. Another fond memory is of the pride Mark, who was Jewish, took from the fact that the Archdiocese in L.A. chose his company, Morley Builders, to build the cathedral downtown. It was wasn’t just the ecumenical angle, which Mark got a kick out of, but he said it was humbling to be charged with building something that was expected to last for centuries.

Mark and Luke will be missed by everyone involved in community affairs here, and we can only hope that their family and friends ultimately find solace in the memories they left behind.

• • •

As for turning the airport into a park, while the crash is sure to affect the controversy about closing the airport, it has little to do with whether the airport should be turned into a park. Even if airplanes never crashed, Santa Monica should do everything it can to close the airport and build a park. For that matter, even if planes were quiet and didn’t pollute, Santa Monica should build a park.

Why? Well, it’s true that building a park would solve the negatives associated with the airport, but building a park is not about closing the airport. It’s about building a park. Specifically, it’s about building a park on land that the public owns, in a place where there are not enough parks.

People who use or benefit from the airport make many arguments against the park, all framed in negative terms. This is understandable; it is difficult to make a positive argument for the airport, given how few people it serves (and given its negative impacts).

One of the negative anti-park arguments is that because the airport is located on the border with Los Angeles, a park will serve non-Santa Monicans. This argument fails on four counts.

First, as it stands now, the airport serves few residents of Santa Monica. When pilots and others appear at meetings to argue for the airport, few can identify themselves as Santa Monicans. As it happens, Santa Monica is subsidizing, to the tune of more than $1 million per year, a facility that mostly serves non-residents. On any given day, more Santa Monicans use the soccer fields that the City built in the ’90s on the “non-aviation” land it regained control of under the 1984 agreement with the FAA, or use the various cultural and educational facilities at the airport, than use the airport as an airport.

Second, for its entire history Santa Monica has happily been a destination for visitors, who come to use the beach and our other attractions. Being a regional, even international, center for recreation is part of Santa Monica’s identity and character, and a beautiful park will be consistent with that history.

Third, the argument ignores the fact that we residents of Santa Monica don’t lock ourselves into the city’s limits; we freely use regional attractions all around us, including parks and cultural facilities like museums and concert halls. We know we are part of something big. We share and they share.

Fourth, there is every reason to believe that because of the importance of the new park to the region, Santa Monica would not need to bear all the costs of building the park. Regional funding should be available. Keep in mind that the most costly item in the capital costs of building a park has already been paid for – the land itself, which was purchased in the ’20s with money raised from a parks bond. Airport2Park.org, which is sponsoring the workshop Thursday evening, intends to explore financing possibilities at a future event.

Thanks for reading.