Air Tactics

By Frank Gruber

October 10, 2011 -- Going into last week’s City Council meeting on the future of Santa Monica Airport there was a lot of criticism of the City’s commissioning three studies regarding, respectively, public attitudes toward the airport, the airport’s economic impact, and possible future scenarios for the use of airport non-aviation land.

City staff and the council defended themselves from charges that these studies presupposed that the City would not close the airport, but the ironic thing about the studies, given the criticism, was that the economic study showed not that the airport plays an important role in the local economy, but that its impact is near trivial.

Longtime analyzer of Santa Monica Paul Silvern, of HR&A Advisors Inc., gave the report, and although he referred to the many businesses connected to the airport, and their ripple effects, ultimately the numbers showed that the economic impact of the airport was equivalent to 350,000 square feet of office space.

This isn’t much. Since the mid-80s the city added about 9 million square feet of offices, and as anyone who has been following the planning for new development around Bergamot Station knows, even just one project there, the redevelopment of the Papermate site, would add about 350,000 square feet of office space to the city’s economy.

In the process of planning the airport’s future the City is putting a lot of effort into gathering data and surveying attitudes, to get the big picture. But that “strategic” approach should not hide the fact that the real focus is on tactics. Given that the majority of political sentiment both in the community and on the council dais ranges from closing the airport to severely restricting operations there, the questions that most consumed counsel members and staff were how best to deal with the Federal Aviation Administration (FAA).

That was the message Los Angeles City Council Member Bill Rosendahl delivered in his remarkds to the council. His suggested tactics were political: that the most effective way to deal with the FAA would be for Los Angeles and Santa Monica to unite to pressure our congressional representatives to persuade the Obama administration to direct the FAA to change its policies to allow closure of the airport.

This is an avenue that should be pursued, and the council directed staff to connect with Council Member Rosendahl and his staff to mount a coordinated effort to enlist Congressmen Henry Waxman and other local House members, and California’s senators, to support local control over the airport. However, this tactic is not by any means assured of success.

It is instructive to realize how many years it took City Council Member Bobby Shriver and other advocates for homeless veterans to get our congressional delegation to do anything about changing policies at the Veterans Administration to use the VA facilities in Westwood to house homeless vets, a lobbying effort that only recently, and only after the ACLU sued the VA in June, bore fruit when Congress allocated $35.5 million to renovate the first of three buildings there into housing.

The fact is that our local representatives may be Democrats, but that doesn’t mean they might not want to please wealthy Westside constituents who use the airport. Also, regardless of the political leadership at the FAA, the FAA as an institution will argue that to allow airport operations in Santa Monica to cease would go against the agency’s long-term policies. They will have support in Congress for this argument.

For these reasons, notwithstanding the importance of politics, it’s paramount that the City consider the legal tactics that are available vis-à-vis the FAA.

Last week I wrote that the City should investigate the possibilities of obtaining “declaratory relief” to determine its rights with respect to the airport before engaging in a long public process to determine what the City wanted to do with the airport, since the process might turn out to be irrelevant if the City doesn’t turn out to have the rights it needs.

What is “declaratory relief?” While courts typically want to adjudicate only “ripe” disputes where the defendant has already done something the plaintiff objects to, federal law provides that federal courts may “declare the rights … of any interested party” if there is an “actual controversy,” and such a declaration would have the same effect as a “final judgment or decree.” To get a decision on its rights before making decisions about what to do about the airport, the City would have to show that there was an actual controversy even though it had not yet taken an action the FAA opposed.

It seemed to me, watching the public hearing, that the public understood the situation. While there was a lot of emotion and frustration, most of the people testifying were grown-up enough to realize that the City’s options were limited by the FAA and possibly by history. What the public wanted to know was what those limitations were. Heeding this, the council members, following comments by Gleam Davis and Bobby Shriver, directed the city attorney to investigate the possibilities for an action for declaratory relief.

The reaction from City Attorney Marcia Moutrie was interesting. She responded with a tactical argument of her own: she was concerned that if the City failed in an action for declaratory relief, that would weaken the City’s position. Her view was that the City should engage in the upcoming rounds of planning to create a good record on which to base any litigation with the FAA.

It is hard to see how being denied declaratory relief from a procedural standpoint, i.e., if a court did not find there was an “actual controversy,” would hurt the City’s case, but if the federal courts accepted the City’s petition for declaratory relief, looked at the facts and the law and found that the City did not have the right to close the airport, obviously that would drastically reduce the City’s bargaining power with the FAA.

Ms. Moutrie put the focus on the existing agreement with the FAA. This agreement settled litigation between the City and the FAA in 1984, when the issues mostly had to do with noise and the City’s rights to use “non-aviation” land at the airport. This agreement expires July 1, 2015, and under the agreement, the City cannot close the airport until that date. This clause raises the implication that the City can close the airport after that date, or at least was thought to have that right in 1984, but today the FAA vociferously denies that the City has that right.

Presumably when the 1984 agreement expires, both the City and the FAA could revert to the positions they had in 1984 before the settlement.

It was unstated, but I suspect that Ms. Moutrie feels that it’s better to negotiate with the FAA if the FAA, as reflected in the 1984 agreement, has some doubts about its own position. However, the FAA will never voluntarily negotiate a closure of the airport or even a drastic reduction in airport operations, at least not unless political pressure changed the agency’s attitude, and so negotiations would probably lead to a dead end.

The City’s tactics need to be based on sound legal advice. What the City needs is outside, objective and expert legal analysis of what its rights are under the World War II-era documents and the laws that define the City’s and the federal government’s respective rights to the airport.