Airport Battle is Back in Court

Posted March 16, 2016 by The Argonaut in News

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.”



    They met in PASADENA?
    This airport either needs to decide to ban JETS, or it needs to become a public park.
    I don’t think that most Venice residents realise that Rose Avenue is the out to the ocean runway for this airport.
    That terrible, terrible air that pollutes airport neighborhoods?
    We get it in Venice from SANMO Airport!

    John Barsky

    IS THIS FOR REAL? The Santa Monica Airport should be shut down just for the pollution and noise alone NOT TO MENTION the safety issues of flying aircraft over populated areas. The FAA has only one agenda here.TO KEEP US ALL UNDER PRESSURE while they support the so called art of flying.This area is not bean fields anymore. Maybe old judge Pergerson remembers when it was BUT IT AIN’T ANYMORE.

    I’m sick of the fumes and the noise!!

    Where is the Governor and the President ? Our great environmental protectors? When does it register with all the selfish people in their jets and planes that they are gross polluters and endangers of our safety and well being? Were is the EPA??

    Wake up and smell it folks..IT’S CALLED POLLUTION AND PUBLIC ENDANGERMENT !!!


    I don’t see how a tenant (the FAA), who borrowed and never owned the land, could legally put a restriction on a the land when it has always been owned by the landlord (the City of Santa Monica).


    SMO adversely affects the 40,000+ residents of Venice that receive none of the funding that goes to Santa Monica but suffers all the detrimental effects of its operations. Although there are hundreds of examples to choose from, a simple yet effective point would be to review the negative impact to children and adolescent’s through long-term potentiation and cognitive development studies that have already been empirically validated. There are several thousand academic articles that showcase airport noise and pollution fosters disturbances to well-being, is associated with social disorders, and linked to Attention-deficit/hyperactivity disorder (ADHD). Real impact should be the topic of debate not when and who brokered a deal.


    Having attended the hearing in Pasadena, it was apparent that the judges were attempting to understand what is really going on at SMO. That specific question was asked by Judge Pregerson and, unfortunately left unanswered by the attorney representing the City of Santa Monica. The case was argued over legalese, and did not touch upon health and safety impacts to the surrounding communities. The aerial photo asked for by the judge would been a great help toward clarifying the problem.


    The land belongs to the city. The agreement forcing us to use the land for aviation purposes ended in 2015. The airport creates horrible sound and air pollution. The will of the people, demonstrated by measure LCs big win, is to end aviation activity there.


    The city of Santa Monica made a binding legal agreement in 1948 to always operate the land as an airport. The impact to the vast majority of residents of Santa Monica and Los Angeles is negligible. Do you think Los Angeles International airport should be shut down as well as the 10 and 405 freeways? Plenty of pollution and potential danger lurking there if you apply the same criteria as you apparently find useful to apply to Santa Monica airport.


      No one is talking about closing LAX/10/405 but let’s entertain your comment. Anyone delusional enough to call for closure of those MASS TRANSIT options would use the detrimental affects of noise and air pollution as their main argument. I agree that SMOs contributions to noise and air pollution as it pertains to greater Los Angeles is negligible. But to the health of the people living in Mar Vista, Venice and Santa Monica, the pollution is extremely detrimental. Suggesting otherwise is delusional and irresponsible. As for the IOT the city may very well lose that case in the ninth distict court of appeals but there are other avenues leading to closure of SMO. The city owns the land and the will of the people is to close the airport. It’s only a matter of time…


        I don’t understand your point that the pollution from Santa Monica airport is “extremely detrimental” to the people of Mar Vista, Venice and Santa Monica but the LAX pollution is not detrimental to the people of Inglewood, El Segundo and Westchester. The city agreed to always operate the land as an airport. Does the city must understand what it committed to in 1948 but certainly wants to change its mind today. I think the local residents should consider the impact of not having an airport available for emergency operations in the event of earthquake or other natural disasters. I think the will of the people of Santa Monica would overshadow the will of the minority that lives near the airport to want to keep the airport around in the event of such an emergency.


          No. Pollution is pollution. I am by no means saying that the people living near LAX don’t suffer the affects of pollution. That would be an outrageous claim. You asked whether SMO opponents should seek to shut down 405/10/LAX and I’m saying that’s a ridiculous question. Yes those transportation hubs create tons of pollution but they are used by the masses and obviously shutting them down would grind the city to a halt. I realize you’re saying it sarcastically but ultimately you’re trying to comparie SMO, which is used by a precious few, to 405/10/LAX. When SMO ceases aviation operations the city will not grind to a halt nor will the worlds air transportation system become crippled. SMO creates alot of pollution which is detrimental to those living in SM, MV and Venice. There is no denying this. Maintaining aviation operations at SMO, even for cases of emergency, is not worth the adverse affects it has on people’s health. You mentioned the will of the people in your last comment. That will was demonstrated through good old fashioned democracy by LC’s victory.


    That sneaky airport. Just snuck in a few years ago with no notice.


    Oh! Well then feel free to sneak back out!


    The airport was there before you so if you don’t like then move. Period

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