City of Santa Monica on Track for Confrontation with Federal Aviation Administration

Predictably, the Federal Aviation Administration (“FAA”) has weighed in strongly in opposition to the City of Santa Monica’s (“City”) plan to close the Santa Monica Airport (“Airport”) within the next two years.  The City, owner and operator of the Airport, plans to begin the process of closure, including cancellation and/or modification of leases held by various aeronautical service providers, such as providers of fuel, maintenance and hangar storage.  Those Airport incumbents are already paying rent on a month-to-month basis, subject to summary eviction. 

 

The apparent basis of Santa Monica’s position is that: (1) its obligation to maintain the airport is based solely on the terms of its contract with FAA for the provision of funding; and (2) according to its terms, that contract expires 20 years after the FAA’s last grant of funding.
 
The FAA’s position, obviously, differs dramatically.  The agency claims that, according to the terms of a $240,000 federal grant to the City in 2003, the City is obligated to keep the Airport open until at least 2023, see, e.g., FAA Order 5190.6B, Chapter 4, §§ 4.6.h(1) and (2).  Moreover, the FAA asserts that, under the terms of the transfer agreement governing the transfer of the airport property from the military back to the City after World War II, the City is obligated to keep the Airport open in perpetuity.
 

FAA’s position is not unanticipated, as we pointed out in our blog of February 20, 2014.  In the first instance, it is common knowledge among airport operators that the United States Congress has attached to the acceptance of federal funds responsibilities to consumers of the improvements made with those funds.  See, e.g., 49 U.S.C. § 47107(a)(1)-(6), implemented by Grant Assurance 22 which requires, in turn, that the operator of a federally obligated airport “make [its] airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.” See R-T 182, LLC v. Federal Aviation Administration, 519 F.3d 307, 309 (6th Cir. 2008).   

Moreover, while federal fund obligations normally last for the useful life of the facilities, or 20 years, after the grant of the funding, there are notable exceptions.  In addition to the exception that requires that real property purchased with federal funds be used for airport purposes in perpetuity, FAA Order 5190.6B, Chapter 4, §§ 4.6.h(2), there is also the parallel requirement that property transferred from the military pursuant to a surplus property agreement also be used for airport purposes indefinitely.  Both of these conditions apply in the case of the Airport, and both moot the “20 year” escape route relied upon by the City.  
 
Finally, the City plans to oppose, through legal action, FAA’s determination to stop the closure.  The City may be disappointed, however, when it arrives as it plans to do, in Federal District Court.  This is because the United States Congress, in the Federal Aviation Act, 49 U.S.C. § 40101, et seq., requires that any challenge to an FAA order be brought in a Federal Circuit Court of Appeals, either the Circuit in which the project is located, in this case the Ninth Circuit, or in the D.C. Circuit Court of Appeals.  See 49 U.S.C. § 46110(a).  Doubtlessly, City will argue that FAA’s effort to stop the closure is not the sort of agency action that falls within the strictures of that section of the statute.  That contest is inevitable, but the outcome for Santa Monica Airport is far from certain.  Stay tuned. 

Santa Monica Airport Commission's Proposal to Limit Aircraft Access by Limiting Emissions is Foreclosed by Federal Law

The Santa Monica Airport Commission has recently made a proposal to limit access of certain aircraft to Santa Monica Airport by limiting emissions allowable from those aircraft.  The proposal may be public spirited in its intent, but shocking in its naiveté with respect to the preemptive authority of federal law and specifically the federal authority over emissions from aircraft engines. 

The Administrator of the Environmental Protection Agency (“EPA”) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines.  “The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.”  42 U.S.C. § 7571(a)(2)(A) and (a)(3).  There are, however, some limits on EPA’s authority.
 

The principal constraint on the EPA’s authority is the requirement that it consult with the Federal Aviation Administration (“FAA”), 42 U.S.C. § 7571(a)(2)(B)(i), [“Any regulation prescribed under this section (and any revision thereof) shall take effect after such period as the Administrator finds necessary (after consultation with the Secretary of Transportation) to permit the development and application of the requisite technology . . .,” 42 U.S.C. § 7571(b)].  Only the President of the United States has the authority to change or veto regulations promulgated by EPA, also after consultation with FAA.  [“Any regulations . . . or amendments thereto, with respect to aircraft shall not apply if disapproved by the President, after notice and opportunity for public hearing, on the basis of a finding by the Secretary of Transportation that any such regulation would create a hazard to aircraft safety,” 42 U.S.C. § 7571(c)].

Finally, the law explicitly forecloses any action such as that proposed by the City of Santa Monica to adopt and enforce emissions regulations different from those established by the EPA.  “No State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof unless such standard is identical to a standard applicable to such aircraft under this part.”  42 U.S.C. § 7573.  [Emphasis added.]

In summary, it is not necessary to go beyond the face of the statute to determine that the establishment and enforcement of regulations governing aircraft engines is wholly within the jurisdiction of the federal government.  Therefore, any attempt by the City of Santa Monica to adopt or enforce different regulations requiring certain aircraft to create lower emissions that those established by the EPA, or sacrifice access to Santa Monica Airport, would be void from the outset.  Given the above statutory and regulatory framework, the City of Santa Monica clearly needs to look further for a solution to its problems. 
 

Santa Monica Sues for Closure of Airport

The internet has been abuzz lately with talk about the latest legal action filed by the City of Santa Monica (“City”) against the Federal Aviation Administration (“FAA”), on October 31, 2013, seeking to avoid FAA’s refusal to allow the closure of Santa Monica Airport, see City of Santa Monica v. United States of America, et al., U.S.D.C. Case No. CV13-08046, an active general aviation airport surrounded by residential neighborhoods.

More specifically, the suit seeks to: (1) quiet title to the real property upon which the airport is now located, pursuant to 28 U.S.C. § 2409a, as having been owned in fee simple by the City since approximately 1926; (2) obtain a judicial declaration that any attempt by FAA to prevent closure interferes with the City’s constitutional obligations to protect the public health, safety and welfare and, thus, constitutes a “taking” without just compensation in violation of the Fifth Amendment to the United States Constitution.  The City bases this claim on its ownership of the airport property in fee simple, and any constraint on closure is “constructive confiscation of airport property, and, thus, a violation of the prohibition on takings with just compensation in the Fifth Amendment to the United States Constitution;” (3) establish violation of the Tenth Amendment to the United States Constitution brought about by FAA’s stepping outside the rights given to the federal government under Constitution, and incurring on the powers of protection of the public health, safety and welfare left to the states; and (4) establish violation of the Due Process Clause in the Fifth Amendment to the United States Constitution arising from FAA’s contravention of its own regulatory guidance, which limits FAA’s power to restrict closure to those instances where FAA owned the property upon which the airport to be closed is located. 

Leaving aside: (1) the difficulty of maintaining a case for inverse condemnation, or “taking” by one public entity against another where the express language of the Fifth Amendment provides that “private property [shall not] be taken for public use without just compensation,” see, e.g., Complaint, ¶ 106 [emphasis added]; and (2) the hurdle of obtaining declaratory and injunctive relief as a remedy for unconstitutional taking, where the law is clear that monetary damages are the exclusive remedy, there are several attributes that make this case unique, and, thus, not a precedent for action by others seeking to close airports. 
 

First, in this case, the City remains the owner of the underlying fee simple property which was never owned by the federal government before it was leased in 1941 to facilitate the ongoing war effort.  It is, in this case, the lease with the federal government that contains the “reverter” clause allowing the airport to revert to federal ownership upon cessation of aviation use, upon which FAA depends in restraining the City’s efforts to close the airport.  In the typical case, however, such as in military base conversions, the federal government is the deed holder to the underlying property, and the local jurisdiction receives fee simple property in return for perpetual aviation use. 

Second, the City is in the unique position of having accepted its last airport improvement program (“AIP”) grant from the FAA in 1994.  Even though such grants carry with them contractual obligations (“Grant Assurances”) including a requirement for the continuing operation of the airport, those Grant Assurances last, in most cases, for 20 years.  Therefore, the City’s obligation will expire at the end of 2014.  FAA may, therefore, be precluded from relying on the Grant Assurances to keep the City from closing the airport.

In short, for reasons both of the tenuous legal strength of the City’s claim, and the uniqueness of the governing facts, it is suggested that other jurisdictions contemplating the same path, and local organizations advocating such action, think carefully about embarking on the stormy and expensive sea of airport closure, especially where the unique conditions applicable to the City do not apply.