Charges FAA Can’t Back Up Jet Ban Case
By Jorge Casuso
September 2 – An Appeals Court judge should reject
the Federal government’s arguments against Santa Monica’s
ban on large private jets at its municipal airport because they
cannot be adequately backed up, according to a reply brief filed
in the Ninth Circuit Court last week.
In the brief, the City challenged a U.S. District judge’s preliminary
injunction barring Santa Monica from imposing the ban. It also challenged the
Federal Aviation Administration’s (FAA) Interim Cease and Desist order,
arguing that the agency has “acted outside the scope of its authority.”
In the final brief before the court hears oral arguments late this year or
in early 2009, City Attorney Marsha Moutrie argued that “the agency fails
to refute, or even acknowledge, many of the City’s key authorities, including
prior decisions of this court.”
“The FAA’s brief falls short,” Moutrie wrote in the brief
filed last Wednesday. “In defending its interim orders, the FAA relies
on general statutory language but ignores both its own specific regulations
and the basic rule of statutory construction that specific provisions control
over the general.”
“The FAA also mistakes its own powers by incorrectly assuming it may
effectively enjoin enforcement of a duly adopted local law, mistakes the applicable
standard for injunctive relief, and relies on assertions rather than evidence
to support its overblown claim that the Ordinance will cause irreparable injury,”
the City Attorney wrote in the 28-page brief.
In ordering the City to suspend the ordinance approved by the council in April,
the FAA argued that the measure -- --which bans C and D aircraft with approach
speeds of between 139 and 191 mph -- is unnecessary and would harm jet operators.
The City has called the federal government’s challenge a “legal
assault” on an ordinance responding to increasing concerns that soaring
jet traffic -- from 4,829 jet operations in 1994 to 18,575 last year -- is putting
neighboring homes, as well as pilots, in danger.
In the brief, Moutrie speculates that the FAA is acting out of the unfounded
fear the ordinance “will somehow cause other cities to impose access restrictions
that will eventually cripple the national air transportation system.”
Moutrie argues that Santa Monica’s 62-year-old municipal airport, which
is a street away from homes near both ends of the runway, is “unique.”
“This case is about Santa Monica’s rights and conduct; not about
what may happen elsewhere,” Moutrie wrote. “Perhaps the agency is
battling to protect industry interests and the convenience of a relatively small
number of people.
“If so, it is a losing battle; federal law does not confer the right
to travel by the aircraft one prefers,” she wrote.
FAA officials argue that federal law trumps the local ordinance and that the
City lacks the authority to ban jets under the 1984 settlement agreement between
“Federal aviation law preempts local ordinances such as the City's designed
to control flight operations and impede safe and efficient airspace management,”
FAA officials wrote in a brief to the court.
The City disagrees with the FAA’s interpretation of the 1984 agreement
and counters that the ordinance is legal because the City is merely trying to
implement federal runway standards.
The City also contends that the FAA’s interim cease and desist orders
were issued illegally without a hearing, that as airport proprietor
it has the legal right to protect public safety and limit its own
liability and that the Tenth Amendment protects the City from federal