Santa Monica and the FAA encounter some turbulence at the U.S. 9th Circuit Court of Appeals

By Will Theisen

In the latest chapter of the complex legal battle for control of Santa Monica Airport, attorneys for both the city of Santa Monica and the Federal Aviation Administration appeared Friday before a three-judge panel of the U.S. 9th Circuit Court of Appeals in Pasadena.

Discussion touched on the highly technical, the hypothetical and, at times, the inscrutable.

Santa Monica is appealing a 2014 district court dismissal of its lawsuit claiming that terms of 1948 and 1984 operating agreements with the federal government allow the city to take control of airport land. The city owns the land the airport is on, but the feds control airport operations.

Appeals Court Judges Harry Pregerson, Richard Paez and Jacqueline Nguyen heard several minutes of oral argument, most of which pertained to those agreements, before asking questions of the attorneys.

With many of those complex arguments already laid out in the original written motions, Paez posed hypothetical questions in an attempt to get at underlying issues of the dispute.

“What would happen if city officials decided, ‘We’re just not going to use this as an airport anymore?” Paez asked Deanne Maynard, an attorney with Morrison & Foerster LLP who is representing Santa Monica.

Maynard responded by saying that the city has not stated an intent to close the airport.

“What the city really wants is to be able to decide for itself what is best for the city of Santa Monica,” she said.

Paez later posed a similar question to Alisa Klein, the attorney representing the federal government.

Klein also did not provide a definitive answer, but said one option would be for the feds to file for an injunction. This raised a few eyebrows from the members of the bench.

Maynard said the city believes the feds do not have the right to take airport land away from the city if local officials got control of the airport and shut it down.

The hearing’s livelier moments were the questions and comments from Pregerson, the 9th Circuit’s longest-serving judge.

President Jimmy Carter appointed Pregerson, 92, to the court in 1979. The Judge Harry Pregerson Interchange at the 110 and 105 freeways is named for him.

A Marine Corps veteran who was wounded at the battle of Okinawa, Pregerson has gained notoriety over the years for several rulings that were later overturned. In 2007 Pregerson held that the Interstate Commerce Clause of the U.S. Constitution forbade the government from interfering with state medical marijuana laws (overruled by the U.S. Supreme Court), in 2003 he ordered the recall of Gov. Gray Davis to be postponed (overruled by the rest of the 9th Circuit), and in 1992 he stayed the execution of Robert Alton Harris only to be overruled by the U.S. Supreme Court two hours later.

During the hearing on Santa Monica Airport, Pregerson frequently interrupted the attorneys with questions that drew stifled laughter from the audience.

He also drew a few groans when Klein, who is short in stature, approached the stand.

“You’re flying low to the ground,” Pregerson said — a comment the Princeton and Harvard alumna ignored.

At one point, he asked Maynard to slow down her speech.

“I didn’t grow up in this age,” he said while holding up his hands and moving his thumbs to mimic the use of a touchscreen device.

Throughout Maynard’s argument, Pregerson repeatedly asked questions that suggested he didn’t understand the operational state of the airport.

“I thought that land was all clear, is there still a runway there?” Pregerson asked Maynard.

After a brief pause, Maynard replied, “There’s still an airport there, sir.”

Pregerson then asked if there was an aerial shot of the area, as if seeking proof that it’s more than just a patch of dirt.

Later, following a short rebuttal, Maynard made one last comment, directed at Pregerson, to assure him that the airport exists: “SMO is a general aviation airport with over 80,000 takeoffs and landings
a year.”

With a wrinkled expression, Pregerson replied: “Oh, I know that. My son flies in and out of there all the time.”