Aviation and Airport Development Law : Aviation Lawyer & Attorney : Dr. Barbara E. Lichman : Airport Development, Environmental Law

For example, the Draft RTP anticipates that, after the “urban capacity constrained airports of Los Angeles International (“LAX”), Bob Hope, Long Beach and John Wayne Airports (sic)” all meet their “defined legally allowable or physical capacity constraints,” the remainder of the demand will be served at “suburban airports with ample capacity to serve future demand, including Ontario International, San Bernardino International, March Inland Port, Palmdale Regional, Southern California Logistics and Palm Springs airports.” Draft RTP, p. 58. While SCAG is correct about the availability of unused capacity at Ontario International (“ONT”) (which is at its lowest passenger level since 1987 despite ample facilities including a new, unused, terminal), SCAG is flat wrong in the assumption that: (1) the other named airports actually have usable capacity; and (2) the “remainder of the demand” will automatically be siphoned off to airports more remote than ONT (which is actually an urban airport in the midst of a highly developed and developing Inland Empire). For example, San Bernardino International Airport (“SBIA”), while sporting a new, completely empty, terminal with apparently ample groundside capacity, has serious airspace conflicts with ONT, as well as a $4,000 foot high mountain at the end of its principal runway.

The Draft RTP further opines that “congested airports have an interest in shifting traffic to less congested airports.” Draft RTP, p. 61. No they don’t. Airports earn revenue by, among other things, airline landing fees and concessions revenues like food and parking, which in turn depend on increasing numbers of passengers. The favored (although not always desirable) solution for congested airports is to simply create more capacity which is largely funded by Federal dollars appropriated by the Federal Aviation Administration (“FAA”), with little or no downside to the local operator.

Finally, the Draft RTP opines that “for airports like LAX which has a significant component of international traffic that generates more revenue than domestic flights, it may be more efficient to limit domestic flights that could be accommodated at other airports in the region, thereby freeing up capacity for more lucrative international flights.” Draft RTP, p. 61. As an organization charged with understanding transportation laws and regulations, SCAG should be aware that it is not up to the airport or the local jurisdiction that operates it to “limit domestic flights” or any flights for that matter. “The United States government has exclusive sovereignty of airspace of the United States,” 49 U.S.C. § 40103(a)(1), including the type of aircraft allowed to fly and where they may land. While other laws such as the Airport Noise and Capacity Act of 1990 (49 U.S.C. § 47521, et seq.) circumscribe the Federal government’s preemptive sovereignty to some extent, the local airport operator may only choose to construct, or not to construct, facilities to accommodate aircraft operations. Once such facilities exist, a local operator may not choose between operations based on their ultimate destinations.

In summary, while the Draft RTP’s general conceptual framework, analyzing transportation as a regional and cooperative issue among regional jurisdictions is supportable, the Draft RTP entirely omits from its aviation analysis reference to, or consideration of, the third party with the real power to make a difference in the allocation of regional air transportation resources – the FAA. Without such consideration, the Draft RTP’s aviation policies amount to nothing more than a wish list. The comment period on the Draft RTP extends until February 14, 2012.
 

Despite the economic downturn, there is still potential ridership, for Ontario, not only in Riverside and San Bernardino Counties, but also in Northern Orange County and parts of San Diego County that are closer to Ontario than to the coastal airports of John Wayne Airport and San Diego International Airport, located in their own counties.

Even a moderate degree of analysis reveals the true cause of the disparity: favorable treatment of LAX by the City of Los Angeles, to the severe detriment of Ontario’s future. For example, despite its facial commitment to “regionalization” of air traffic, i.e., the dispersion of passengers among the various airports in the region, affirmed in its settlement of a case brought by various impacted parties in 2004, City of El Segundo, et al. v. City of Los Angeles, et al., LAWA has apparently enticed air carriers to move to LAX by lower costs and fees, in order to pay the cost of its major, ongoing expansion project.

Ontario is left the orphan, saddled with hefty City employee contractual obligations; a $4.50 per passenger Passenger Facility Charge; and among the highest per passenger costs in the entire region, with little or no marketing effort by LAWA during the past three years to ameliorate these disparities.

What is clear from a comparative analysis of the passenger traffic at the two venues is that LAWA’s defense, i.e., “there won’t be any net growth until you see the economy bounce back,” is without a cognizable basis. If the economy were the controlling factor, LAX would also be experiencing a decline, or at least less growth. That LAX is booming is proof positive of the views of Inland Empire officials who have taken the consistent position that “LAWA which operates both LAX and Ontario has become an absentee landlord bent on completing a multi-billion dollar modernization of LAX at the expense of its weaker stepchild and potential competitor 56 miles to the east.”
 

Local control would be exercised through a joint powers agency comprised of the City of Ontario and San Bernardino County. The benefits of such an arrangement are manifest: (1) local control could eventually escape the onerous employee contractual requirements which burden Los Angeles and add substantially to airline costs; (2) local control could avoid the inherent conflict of interest which has inhibited LAWA from allowing airlines to divert to ONT rather than concentrating service at LAX, with consequent financial benefits to LAX and disbenefits to ONT in the form of lost landing, concession and other fees; (3) local control takes into account local needs, preferences and conditions, with historically greater success in attracting airline incumbents and passengers and stimulating airport development; and (4) with successful airport development, theory and practice amply demonstrate, comes economic development for the entire region.

Despite ONT’s downward spiral, the transfer of ONT to local control, and its consequent successful development, are opposed by the City of Los Angeles as an attempt to hijack a “valuable asset.” The irony is that what could have been a valuable asset has been debased under Los Angeles’ control. An answer to the woes of the region in general, and ONT in particular is clear – return ONT to local control where it will be understood and exploited to its full potential as a “valuable asset,” not just to Los Angeles alone, but to the entire Southern California region.
 

The transfer is also regarded by Petitioners in the case City of El Segundo, et al. v. City of Los Angeles, et al., Riverside County Superior Court Case No. RIC426822 as critical to the success of the “regionalization” provision of the Settlement Agreement in that action. Under the settlement, over which the Court still retains jurisdiction, Los Angeles’ Airport Department, L.A. World Airports (“LAWA”) is obligated to make its best efforts to divert passenger traffic to other Los Angeles owned airports throughout the region. Because ONT is the only Los Angeles owned airport with terminal and airfield facilities sufficient to accommodate substantial increases in commercial air traffic, a number of Petitioners have already taken formal positions in support of the transfer and the proposed legislation.

Ontario and San Bernardino have committed to continue their fight for local control of the valuable asset that ONT could be, if effectively managed.
 

For the last 15 years, these “thousands of spectators” who “kept their eyes to the sky for the Orange County Great Park’s air show” had the opportunity to see airplanes as “up close and personal” as the rest of Newport Beach does every day. The El Toro Marine Corps Air Station, the site of the Great Park, had been a military airport for decades, even generations. The short-sighted opposition of some citizens who now flock to see airplanes “flying around” at an air show has denied Orange County and the region as a whole the economic opportunity of an adequate sized airport to supplement the postage stamp 536 acres at John Wayne Airport. Ironically, these same folks would not have seen airplanes “flying around” over their homes if the El Toro Airport had been built, as the people of Newport Beach do every day, because the military had kept 14,000 acres around El Toro free of residential property that could potentially be impacted.

In a final irony, the managers of the “Great Park” project have paid $200 million to planning firms outside Orange County, and spent 10 years on planning, so that a few people can “stop by the park a few times a year to enjoy the green space or . . . play soccer on the grass or field hockey.” In other words, the “Great Park” is not a park at all, with actual structures or services. It remains instead a mere concept that has been used to digest public dollars at an unseemly rate. If the people of Southern Orange County are so fascinated with aircraft flying around, they should have thought twice before denying Orange County what they and the rest of its citizens really need, a new, economically productive commercial airport.

Fortunately, that opportunity still exists at Ontario International Airport. Ontario is close enough to Orange County to be practical, but far enough away to deny all those onlookers fascinated with aircraft overflights a second chance to walk away from the opportunity. The rest of the citizens of Orange County can only hope that the managers of the “Great Park” project will finally devote its massive potential to something constructive, other than even more “aircraft flying around.”
 

FAA may have pulled the trigger too quickly, however. On May 10, 2010, the Los Angeles City Council approved a motion to study the transfer of Ontario International Airport to the control of the City of Ontario (control that shifted to Los Angeles in 1967). As the City of Ontario has a strong interest in growth of Ontario International Airport as an economic engine for the currently economically moribund Inland Empire, the jury is still out as to whether Ontario will steal those passengers FAA now projects for LAX and John Wayne Airport. Stay tuned.