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Final Brief Filed in FAA Appeals:

The multiple legal proceedings in which the City of Santa Monica and the Federal Aviation Administration (FAA) are facing off over safety issues at Santa Monica Airport (SMO) reached something of a milestone as the final brief was filed last week in the City’s consolidated appeals from both the FAA Interim Cease and Desist Order and the federal district court preliminary injunction, each of which in effect enjoins enforcement of the City’s ordinance banning larger, faster Category C and D aircraft from Santa Monica Airport (SMO).

The stage is now set for oral argument in the federal Ninth Circuit Court of Appeals, expected to be scheduled for later this year or during the first quarter of 2009.

At issue is the enforcement of the City ordinance designed to protect public safety by conforming use of SMO to federal airport design standards.  The city-owned airport has no runway safety areas to protect against overruns.  The ordinance reduces the risks arising from the lack of safety areas, the fact that homes sit just below and within 300 feet of the runway ends, and the dramatic increase in the number of faster planes using the airport.

After the City gave final approval to the ordinance on March 25 of this year, the FAA re-started administrative proceedings against the City that had laid dormant since 2002 and then issued its Interim Cease and Desist Order on April 23 (the day before the ordinance was to take effect), directing the City to forestall enforcement of the ordinance.  When the City refused, the FAA filed suit in Los Angeles federal district court and obtained a preliminary injunction on May 16 against enforcement of the ordinance, largely on procedural grounds.  The pending appeals represent the City’s challenges to both the FAA order and the district court preliminary injunction.

In the appeals, the City applied for a stay of the preliminary injunction (in effect trying to enjoin the injunction) – something of a long shot, which the appeals court denied without comment on July 17.  Meanwhile, the City’s appeals on the merits moved forward, and it is in those appeals that the briefing has now been completed with the August 27 filing of the City’s Reply Brief.

Meanwhile, back at the FAA, the administrative proceeding in which the Interim Cease and Desist Order was issued proceeded to a Director’s Determination on May 27 which was, not surprisingly, adverse to the City, which then exercised its right to challenge this initial administrative decision and seek a hearing on the matter.  That hearing, which will be held before an FAA hearing officer from Washington, D.C., should soon be set for mid-November to early December, according to Santa Monica Deputy City Attorney Lance Gams.

The decision of the FAA hearing officer will then be reviewed upon the request of either party by the FAA Associate Administrator of Airports, whose order would then be appealable to the Ninth Circuit.  Gams says that such an appeal, if it comes to that, would probably not be heard with the now-pending appeals because the timing would likely not be in synch.

(It is worth noting that the FAA Associate Administrator of Airports who would review the hearing officer’s decision will not be D. Kirk Shaffer, who held that position through much of this continuing contest – he has stepped aside, said Gams, inasmuch as there is a conflict arising from a November 27, 2007 letter he wrote to the City calling the then-proposed ordinance “flatly illegal.”)

More to come as the proceedings develop. 

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