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Court Stops Santa Monica Runway Destruction

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Old October 9th 17, 02:37 PM posted to rec.aviation.piloting
Larry Dighera
external usenet poster
Posts: 3,771
Default Court Stops Santa Monica Runway Destruction

It's beginning to look like we're going to hear D9 Cats illegally
ripping up the runway in the dead of night again as occurred with
Meigs in Chicago and Capistrano in Orange County, California.

================================================== ======================


Court Stops Santa Monica Runway Destruction
By Russ Niles

A federal judge issued a temporary restraining order preventing the
shortening of the runway at Santa Monica Airport the day before the
work was to begin. As the National Business Aviation Association
convenes in Las Vegas for its annual convention, the last-ditch order
prevents the removal of 1,500 feet of the SMO runway, which
effectively bars all but the smallest business jets from using it.
Work was to start Monday morning (Oct 9, 2017). NBAA and other
aviation groups have spent millions of dollars over the last three
decades trying to preserve SMO as a viable business airport.

The order is significant because it could lead to a injunction against
ripping up the runway. The injunction is expected to be heard in about
two weeks. At issue was the private deal between the FAA and the City
of Santa Monica that led to the feds allowing the city to reclaim the
airport property in stages until its federal obligations expire in
2028. The court ruled that it was likely the petitioners would win
their case in a trial and the restraining order was issued to ensure
the damage wasn’t done before they got the chance to argue the case in

The full order is he


through 10, inclusive,

CV 17-07329 RSWL (FFMx)
Order Application
for Temporary
Restraining Order and
Order To Show Cause re
Preliminary Injunction
Currently before the Court is Plaintiffs Kate Scott
and James Babinski’s (“Plaintiffs”) Ex Parte
Application for Temporary Restraining Order and Order
to Show Cause re Preliminary Injunction [6]
(“Application”). Specifically, Plaintiffs seek to
enjoin Defendant City Council for the City of Santa
Monica (“Defendant”) from taking any action to shorten
the runway of the Santa Monica Municipal Airport (the
“Airport”). Ex Parte Appl. (“Appl.”) 1:21-26, ECF No.
6-1. The Court, having reviewed all papers and
arguments submitted pertaining to this Application, NOW
Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 1 of 8
Page ID #:697

Plaintiffs’ Application [6].
A. Legal Standard
1. Ex Parte Application
Ex parte applications are for extraordinary relief.
For ex parte relief to be granted, “the evidence must
show that the moving party’s cause will be irreparably
prejudiced if the underlying motion is heard according
to regular noticed motion procedures.” Mission Power
Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492
(C.D. Cal. 1995). The moving party also must be
without fault in creating the crisis that requires ex
parte relief, or that excusable neglect caused the
crisis. Id.
Pursuant to Local Rule 7-19.1, “[i]t shall be the
duty of the attorney so applying (a) to make
reasonable, good faith efforts orally to advise counsel
for all other parties, if known, of the date and
substance of the proposed ex parte application and
(b) to advise the Court in writing and under oath of
efforts to contact other counsel and whether any other
counsel, after such advice, opposes the application.”
2. Temporary Restraining Order
Injunctive relief is an “extraordinary remedy.”
Winter v. Natural Res. Def. Council Inc., 555 U.S. 7,
22 (2008). “Temporary restraining orders are governed
by the same standard applicable to preliminary
Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 2 of 8
Page ID #:698

injunctions.” Niu v. United States, 821 F. Supp. 2d
1165, 1167 (C.D. Cal. 2011)(citation omitted); see Fed.
R. Civ. P. 65. A plaintiff seeking a temporary
restraining order “must establish that he is likely to
succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and
that an injunction is in the public interest.” Winter,
555 U.S. at 20.
B. Analysis
1. Ex Parte Application
Because Defendant plans to begin construction on
October 9, 2017, Plaintiffs’ cause will be irreparably
prejudiced if the Court heard the matter on regularly
scheduled motion procedures. See Appl., Ex. A.
Plaintiffs were not at fault in creating this crisis
because the City of Santa Monica sent out an email on
September 22, 2017, notifying recipients that
construction would begin October 9, 2017. Decl. of R.
Christopher Harshman (“Harshman Decl.”) ¶ 10, Ex. A,
ECF No. 6-1.
Plaintiffs complied with Local Rule 7-19.1(a) by
providing written notice of and a voicemail regarding
this Application. Harshman Decl. ¶ 14. Additionally,
Plaintiffs satisfied Local Rule 7-19.1(b) through
counsel’s assertion that Joanna Simon, an attorney with
Morrison Foerster, intends to oppose this Application
on Defendant’s behalf. Id. Based on the foregoing, ex
Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 3 of 8
Page ID #:699

parte relief is proper.
2. Temporary Restraining Order
Plaintiffs successfully establish all of the
required elements to grant their Application and enjoin
Defendant from shortening the Airport runway.
a. Success on the Merits
Under California Public Utilities Code section
21664.5, an amended airport permit is required for
every airport expansion, including “acquisition of
runway protection zones” and “realignment of an
existing runway.” While the department may provide
regulatory exemptions, it may not exempt the
requirement for public hearings pertaining to
environmental considerations.1 Cal. Pub. Util.
§ 21664.5(a). In Trancas Property Owners Association
v. City of Malibu, 41 Cal. Rptr. 3d 200, 210 (Ct. App.
2006), the court explained that California Public
Utilities Code “[s]ection 54956.9’s implied allowance
for adoption of settlements in closed
session . . . cannot be construed to empower a city
council to take or agree to take, as part of a nonpublicly
ratified litigation settlement, action that by
substantive law may not be taken without a public
hearing and opportunity for the public to be heard.”
1 “Environmental considerations include but are not limited
to noise, air pollution, and the burden upon the surrounding area
caused by the airport or airport expansion, including but not
limited to, surface traffic and expense.” Cal. Pub. Util. Code
§ 21666(e).
Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 4 of 8
Page ID #:700

Public hearings are to be conducted in accordance
with California Government Code section 11500 et seq.
Cal. Pub. Util. Code § 21669.6. Under California
Government Code section 11501, California Government
Code section 11400 et seq.’s requirements apply to
Defendant’s operation of the Airport.
Here, Defendant entered into a settlement agreement
(the “Settlement Agreement”), wherein it purportedly
acquires runway protection zones and realigns an
existing runway at the Airport. ECF No. 6-6 at 19, 22-
23; Harshman Decl. ¶ 12. To approve this Settlement
Agreement, Defendant held a closed session, preventing
public comment on the matter. See Verified Am. Pet.
(“Pet.”), Exs. D, E, ECF No. 6-4.
Thus, Plaintiffs will likely prevail at trial on
the merits of their claim that Defendant failed to
comply with the foregoing substantive law mandating a
public hearing for environmental considerations arising
from the terms of the Settlement Agreement.2
b. Irreparable Harm
Plaintiffs argue that the proposed realignment will
force planes to fly approximately 100 feet lower in
2 Plaintiffs also argue a public hearing was
required for the Airport’s nightly closures and ten-day
closure in December. Appl. 8:7-8. However, the
pertinent statute reads that “upon the request of an
affected or interested person, the department may
conduct a public hearing.” Cal. Pub. Util. Code
§ 21605 (emphasis added). Thus, Plaintiffs are not
likely to prevail on the merits of this ground.
Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 5 of 8
Page ID #:701

altitude, causing increased noise at the departure end
of the runway near adjacent neighborhoods. Harshman
Decl. ¶¶ 3-5. Plaintiff Kate Scott is a resident of
the Sunset Park neighborhood just west of the Airport.
Pet. ¶ 4.
Additionally, Plaintiffs contend flight at lower
altitude over densely populated areas increases the
risk to pilots, such as by eliminating the ability to
turn back to land on the departure runway in the event
of engine or other mechanical failure. Harshman Decl.
¶ 6. Plaintiff James Babinski regularly operates
aircraft at the Airport and enrolls in instrument
flying lessons at the Airport. Pet. ¶ 5.
These harms are irreparable because money damages
are inadequate for this kind of noise and danger. See
Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531,
545 (1987)(“Environmental injury, by its nature, can
seldom be adequately remedied by money damages.”). In
addition, these harms are imminent as construction,
which is currently scheduled for October 9, 2017,
immediately will prevent planes from utilizing the
runway in its current state and taking off at the
corresponding altitude.
c. Balance of Equities and Public Interest
Plaintiffs request to maintain the status quo at
the Airport. See Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 509
(2013)(balance of harms tipped in applicants’ favor
Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 6 of 8
Page ID #:702

where injunction harmed defendant by delaying change to
longstanding status quo for few months, but without
injunction, applicants’ harm would be permanent).
Defendant failed to file an opposition and delineate
its potential harms from injunctive relief, leaving the
Court to speculate as to its harms. Assuming the harms
are monetary losses from delayed construction,3 “it
appears that many of these costs may be self-inflicted”
due to Defendant’s rush to begin shortening the runway.
Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002),
abrogated on other grounds by Winter, 555 U.S. at 22.
Thus, the balance of equities tips in Plaintiffs’
favor. Finally, the public has a strong interest in
ensuring Defendant abides by California’s public
hearings requirements so that their interests are
fairly considered.
As such, Plaintiffs have established all of the
elements for temporary restraining orders.
Accordingly, Plaintiffs’ Application is GRANTED.
Defendant and its employees, agents, and all persons
3 Defendant apparently will spend $3.52 million to
complete construction by December 31, 2017. Appl., Ex.
C. This injunction will delay construction by two
weeks (pursuant to Federal Rule of Civil Procedure 65’s
time limit), but Plaintiffs are private individuals
obtaining an injunction against a governmental entity.
Therefore, they need only post a minimal bond. See
Friends of the Earth, Inc. v. Brinegar, 518 F.2d 322,
323 (9th Cir. 1975)(finding $1,000 bond to be
Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 7 of 8
Page ID #:703

acting with them or on their behalf are hereby ORDERED
not to take any action to shorten the runway of the
Airport beginning immediately.
Defendant also is ORDERED to show cause as to why
it should not be restrained and enjoined in the same
manner pending trial of this action. Defendant must
file its response, if any, no later than October 13,
2017 at 4:00 p.m. Plaintiffs must file any reply no
later than October 18, 2017 at 4:00 p.m., at which
point this Court will take the matter under submission.
Plaintiffs shall serve a copy of this Order on
Defendant no later than October 9, 2017. Additionally,
Plaintiffs are ORDERED to post a $5,000.00 bond or cash
in that amount by October 9, 2017 at 4:00 p.m.
DATED: October 8, 2017 /s/ RONALD S.W. LEW
Senior U.S. District Judge


Airport News
Monday, October 2, 2017

I hope this email finds you in good health.

I consider this a very special email because it will be my last
communication to you as a group. I am happy to share that on October
6th, I am retiring and will be leaving my post as Senior Advisor of
Airport Affairs. Thirty-four years of military, federal, state,
regional and local government service is enough, or as we say in
Spanish, Basta! (Or is 34 years enough? See below.) Indulge me as I
share some of my personal insights on the past two years of work. It
has been quite an adventure!

Just over two years ago, I saw a job announcement for Senior Advisor
to the City Manager and I decided to apply. I read hundreds of news
articles, Airport Commission and City Council reports. I read
articles by aviation lawyers, State Attorney General opinions, City
Attorney opinions, NBAA statements, AOPA statements, FAA Part 16
decisions, etc. After a great deal of research along with my extensive
background in federal grants administration and years of real estate
practice, I concluded the City of Santa Monica was in the right on the
issues. Having never joined a cause I knew to be wrong, I accepted
the job offer.

When I started this job , I heard many opinions, including:

"Closing the airport is a lost cause, the FAA will never agree."
"The City is not serious about regaining control of airport land."
"Big money interests will never let the airport close."
"The former City Attorney is secretly trying to sabotage the case"
"The 1948 Instrument of Transfer is iron clad
" The 1994 grant assurances are bullet proof."
"SMO is part of the national aviation system and the entire American
aviation system will collapse without it!"
I listened to these opinions, and began my work determined and

It took a little over a year, but in February of 2017, the City
Council agreed to a historic Consent Decree with the federal
government to close the airport in 2028 and shorten the runway to
3,500 feet in the interim. Many people thought shortening the runway
would never happen yet construction to shorten the runway begins
October 9 and is scheduled to be complete by December 30. According
to national aviation experts and local air traffic controllers, we
anticipate a 45% reduction in jet traffic.

How did we accomplish this? It started and ended with community
support and courage by the City Council, City Manager and City
Attorney. In my view, our outside legal counsel at Morrison &
Foerster also did an outstanding job. But in the end, it was people
power over a small but determined elite. To you, the Santa Monica
Community, I say congratulations!

In the past two years, we also fundamentally reformed the economics at
the airport. In 2015, Santa Monica Airport generated $5.8M in annual
rent revenue and owed the City's general fund millions. In 2017,
because Council's policy to eliminate subtenant leases, and bring all
tenants to market rates, the Airport will generate over $13M in annual
rent revenue. This means the airport will be financially
self-sufficient, generate enough funds to repair and replace
facilities, (there is a huge back logged of deferred maintenance) and
finally repay the debt owed to Santa Monica taxpayers. A job well

Despite the great leap forward, there is still some unfinished
business. To ensure continued progress, City Manager Rick Cole has
appointed Suja Lowenthal as my replacement. Suja is a current City
employee, working at the Big Blue Bus. She is well qualified to serve
in the position and I am confident will devote all of her creative
talents to the job.

Now what will I do? My intent was to retire and chill in Puerto Rico
because that is my family origin. Now that Hurricane Maria has hit
the island I will go there to work with FEMA and help the island
recover. Bad times is when you need friends and family. I am hurt
deeply by what happened to Puerto Rico-the enchanted island that truly
lives up to its name. If you want to help Puerto Rico, I encourage
you to visit when the time is right and stay for as long as possible.
Despite the new travel restrictions imposed by the President my
passport is valid, I think?. So, eventually once Puerto Rico is a bit
more stable I will travel overseas and return to the USA, if allowed
back in. Ha ha! I will also definitely teach yoga. Given the
zaniness in DC, I will continue to write political satire.

I will miss the work at the City and hope you will continue to remain
engaged and active on all airport issues and the City in general. And
by the way my, my encouragement to remain engaged in airport issues
also applies to the pro-aviation activists. I want to thank my
colleagues at City Hall for their support. I encourage everyone to
treat each other with respect and work together to keep Santa Monica a
wonderful community.

Amen! Hari Ohm! Inshala! Sadhu!

Now I fly off into the sunset, but not over Sunset Park residents!

Nelson Hernandez
Former Senior Advisor to the City Manager


Santa Monica Rushes to Shorten SMO Runway

City Council approves $3.5 million contract to help quickly eliminate
jet traffic from the 100-year-old airport.

By Pia Bergqvist August 10, 2017

SMO runway
The city of Santa Monica will spend $3.5 million of taxpayer money to
move forward with the controversial shortening of the runway at SMO.
City of Santa Monica

With the agreement the City of Santa Monica made with the FAA earlier
this year to shorten the runway at SMO and ultimately close the
airport in 2028, the city is working quickly to shut out business jets
from the embattled airport as soon as possible.

This week, the city council approved a contract with Aecom for the
shortening of the runway from 4,973 feet to 3,500 feet for a
“guaranteed maximum price” of $3.5 million out of the pockets of the
city’s taxpayers. Aecom has been contracted to design and oversee the
runway project. The new runway distance would render it too short for
most jet traffic that now flies in and out of the 100-year-old

What the city refers to as construction, but what is actually
destruction, is set to begin in October. Initially the work will be
done at night, but there will be 7 to 10 days during which the airport
will be closed. The plan is for the work to be complete by the end of
the year. According to NBAA attorney Jol Silversmith, the city’s goal
is to complete the work before the deadline for chart amendments to be
published in February.

Staff members from Santa Monica’s Planning and Public Works boards
have started working on a plan for the future use of the parcels of
airport property that the city has reclaimed.

While the city’s plans are in line with the agreement reached with the
FAA, there are several lawsuits and amicus briefs in the process that
could put a stop to the shortening of the runway as well as the
planned closure of the airport in 2028. NBAA has a lawsuit pending
against the FAA, claiming it was beyond the agency’s authority to sign
the agreement to close the airport. Airport tenants have a similar
lawsuit in the process against the city.

Initial plans for the runway shortening are mostly for restriping,
Silversmith said – modifications that would not be very difficult to
reverse. Should the pending lawsuits be successful, the city will be
obligated to return the runway to its previous length, at additional
costs to its taxpayers.



Santa Monica Department of Public Works

Please be advised that the construction schedule to shorten the Santa
Monica runway has been adjusted by nine (9) days due to delays in
vendor mobilization of equipment and personnel. The new project start
date is Wednesday, October 18, 2017. ...

Stelios Makndes
Airport Director

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