City Manager Rick Cole: What More Did You Want Us to Do, to Close Santa Monica Airport?

Editor's Note: This is a mass e mail thread circulating among airport opponents and Rick Cole. In most cases, e mail address have been redacted. Since public figures like the City Manager Rick Cole are commenting, we feel it has significant public interest.

With respect, Marty, the City of Santa Monica was pursuing two Federal lawsuits, two State eviction actions and was the subject of five Part 16 FAA proceedings including a Notice of Investigation and a Cease and Desist Order.  Is that your definition of doing nothing? And the City of Los Angeles, which represents you?  Other than criticizing Santa Monica, what precisely did they do to support our/your battle with the FAA? 

 Rick Cole

From: CRAAP [mailto:jetairpollution@earthlink.net] Sent: Thursday, February 02, 2017 8:59 AM To: Rick Cole <>Cc: Over 100 e mail addresses redacted

Subject: RE: City gives away its avigation easement to FAA

Rick,

There is very little that is precise about the Consent Decree. That which is precise bodes poorly for the future.

The City has not learned from the lousy 1984 Agreement, but they appear to be in for a lesson. The City has made their bed, rather sloppily, and now they will have to sleep in it.

Santa Monica has been and continues to be driven by the dollar sign; they have never fought for the community when it comes to air pollution. Show me what the City has done.

Thee community is far too educated on SMO matters to be fooled again.

The City appears to have squandered an opportunity to do the right thing.

Martin Rubin, Director - Concerned Residents Against Airport pollution

From: Rick Cole

Sent: Thursday, February 02, 2017 7:40 AM

To: 'William Fordes'; CRAAP

Cc: Over 100 e mail addresses redacted

Subject: RE: City gives away its avigation easement to FAA

Actually, more precisely, the FAA learned how to compromise, grounding the horse: http://www.ainonline.com/aviation-news/general-aviation/2017-01-29/faa-caves-city-demand-close-santa-monica-airport

http://www.aero-news.net/index.cfm?do=main.textpost&id=1f29ee3e-6107-4fc0-99bb-bc5c3ec1ba6a

http://airsoc.com/articles/view/id/588fc339313944453d8b4567/faa-caves-santa-monica-has-a-big-win

From: William Fordes []

Sent: Wednesday, February 01, 2017 11:33 PMTo: CRAAP Cc: (over 100 e mail addresses redacted)

Subject: Re: City gives away its avigation easement to FAA

So, did the horse e re learn you talk.......

William N. Fordes 

On Feb 1, 2017, at 10:30 PM, CRAAP wrote:

Forwarded to all on behalf of Steven Unger. I'll send it to the others on this email list Steven.

From: Stephen Unger Sent: Wednesday, February 01, 2017 10:18 PM

To: William Sadler Cc: Jonathan A. Stein; Mr. David Klass; Alan Levenson; Martin Rubin; Bob Rigdon Subject: Re: City gives away its avigation easement to FAA

I'm limited to the number of folks I can copy on emails by my server.  If anybody cares to do a wider distribution of the following, feel free to:

I have a slightly different point of view based on a story my Dad once told me.  A modified version goes like this:

In pharonic Egypt once upon a time, there was a terrible drought.  As a result,  the crops were ruined.  The Pharoh decided to blame the Jews (who were slaves at that time.) The Pharoh ordered all the Jews to be killed the next week.  The Jews, naturally, panicked.  They assembled and their Chief Rabbi told them that he had a secret solution. The next day, the Rabbi went to meet with the Pharoh and said that he could make the Pharoh the greatest Pharoh in history and people would revere his name forever. He could teach the Pharoh's horse to talk.  The Pharoh was skeptical. How could this be done?  The Rabbi said:  If you will spare the Jewish people for eleven years, we will have your horse talking.  The Pharoh paused and considered this.  He said:  "All right,  you have eleven years; but, if that horse isn't tallking in eleven years, your people will experience torture, mutilation and death".  The Rabbi agreed to the terms.

When the Rabbi, leading the Pharoh's horse,  returned to his people and explained the deal with the Pharoh, the Jews were crestfallen.  "How can we teach a horse to talk?" they asked.  The Rabbi responded:  " A lot of things can happen in eleven years. The horse could die.  The Pharoh could die.  We could die.  In the meantime, we have eleven years."

I think the foregoing story may provide insight into some City CouncilMembers thinking when they made their secret deal with the FAA last Saturday.

Stephen Unger, Taxpayer and Resident, Santa Monica

On Feb 1, 2017, at 9:01 PM, William Sadler wrote:

 This email reflects my own beliefs and thoughts as a member of the community and not as representative on any other entity or institution.

Let me preface this letter by saying how much I admire Martin Rubin,  Alan Levenson, David Goddard (who is my neighbor) and everyone else who has worked so hard to get us to the point we are at today. I am truly in awe of what you have done and how hard you have worked for it. You, and everyone else who fought the tough battle of LC and D are owed a great deal of thanks. I fondly remember the knock down arguments many of us had with paid signature collectors. Your tenacity and advocacy are inspiring.

My opinion on the consent agreement may be a little different than many of the people I count as friends who are in this group. Let me tell you why, at this point of time, I am reservedly in favor of the agreement.

1.       12 years is tool long-  yes, I agree that 12 years is a long time to wait for a result that should have been in effect several years ago. Every time a huge jet flies over my house I feel as angry as anyone else and trust me, my home bears the brunt of those jets.  My heart tells me that this is too long to wait, but my head tells me that it isn't worth the risk of abandoning the agreement. I was a lawyer for 28 years. I never practiced aviation or administrative law, so I can give no advice except to say that I do trust the law firm that the city has chosen to represent it's interests. I believe they know what they are doing. I think the most important thing to remember when we look at a timeline is to acknowledge that our starting point is NOT closure tomorrow. Everything the city does is subject to litigation in the federal courts and in administrative proceedings. What that means is that our starting points in negotiating with the FAA are not on a level playing field. The status quo is a fully functional airport. It is what we have NOW. The FAA can run out the clock with litigation as a matter of course. This means that without an agreement, we are guaranteed numerous years of litigation. How many years could the litigation drag on? Prior experience in the federal courts have shown us that these cases can drag on for years and years. For example, the period of time between the filing of the lawsuit against the FAA seeking title to the airport and the scheduled trial date (after the 9thcircuit reversed the trial court) is about four years.  If the agreement does not go forward, the one thing we can count on is that the trial will be appealed and appealed again. The case may be subject to remand to the trial court again if there is a mistake in the trial and the whole procedure starts again. We know that other lawsuits may be filed and other administrative proceedings may prolong certain issues from even getting to court in any reasonable time. Because the FAA can run out the clock and keep the status quo, they have a guarantee of the airport being open for several years.  In other words, they start at a bargaining position knowing the airport will be open "as-is" for several years no matter what! It is against this backdrop that we have to analyze whether a 12 year wait coupled with a significant reduction in big jets is acceptable, even if it stinks.

2.       We will win- I know that some of us have great certainty that we will win at trial. I do not.  For example, our current litigation in front of the District Court was originally decided against the city on a procedural issue that was very much intertwined with Santa Monica's claim that it owns the airport. The 9th circuit sent the case back to the trial court. However, the city will be asking the same judge who ruled against Santa Monica to make conclusions of fact in favor of the city. Remember, the appellate court only rules on issues of law. If the trial court makes factual findings in favor of the FAA, there may be little that the 9th Circuit can do. What will happen during the trial? That is anyone's guess, but I think it is irresponsible to represent to anyone that they can predict the outcome.   Remember, the city is battling the Federal government. We are also battling money...big money. "Being right" doesn't mean that you win in court. What are our chances? 50-50? 75-25? 25-75? I don't know, but I have to believe that our past history in the federal courts does not necessarily bode well for our future chances.  If we eventually do win in the trial court, the airport will still exist in its present form for several years, that is acertainty. If we lose, we are guaranteed that the airport will exist in its present form, undoubtedly open to commercial activity (jet-suite, etc.) forever.  That is an extremely dire outcome.  In other words our best outcome after litigation is no airport after several years of a fully functioning airport. Our worst outcome is a fully functioning airport forever. Our agreement calls for an end to an airport in 12 years with a reduction in large jets in 6 months to a year. To me, considering the alternatives, I believe there is only one prudent course.

3.       BUT THREE COUNCIL MEMBERS VOTED AGAINST IT-  Yes, that is true. I know the Council Member McKeown said that he thought a better deal could have been had. Perhaps he is right and if the FAA was pressed, a better deal could have been made. If so, it is a shame that a better deal wasn't made. However, that ship has sailed. We are not in that situation. We currently have a Trump administration that has made its priorities well known and it's priorities are not the health and safety of Santa Monica residents. I sincerely doubt we will get a better deal from the FAA NOW.   

4.       There is an aviation easement-  I read the language of the easement and yes I am concerned about whether that means that pre-existing noise and curfew limitations are in effect still. I think one interpretation of the language is that because the city would own the land and in order to comply with the agreement,  it would have to give an aviation easement to the FAA and that is the standard language of an aviation easement. The life of the easement would be for the life of the airport.  I would also like it confirmed whether or not commercial flights are prohibited per FAA rules. I would also like to know what class of jets would be unable to use the runway and whether or not the standard on whether the new runway length is safe for those classes are based on industry standards, manufacturing standards or FAA determinations.

5.       What is the agreement with Jet-X? – That is a question I would like to know? Is this "stand-still" agreement an agreement that to forgo litigation in contemplation of the consent agreement or in contemplation of allowing them to fly while the runway length is at its current status. Their planes cannot fly with a shortened runway and I would like that confirmed.

6.       Disputes go to US District Court instead of to FAA hearings- That is a good thing. Since disputes would not be resolved in the kangaroo courts of the FAA hearings, wouldn't the city be able to enforce some limitations without fear that the litigation would place us in a precarious legal position? With an agreement in place, there is no downside to setting up rules or limitations that are not specifically in violation of the consent agreement.

7.       We have to wait 12 years to inform the FAA we want to close the airport- That concerns me as well. However, I do not see how this can change politically in 12 years. Yes, lots can happen in 12 years, just look at our current political climate. However, of all the issues that we face, as long as we keep the pressure on, I do not believe it will be the position of the city to keep the airport open.

The above are my thoughts and are meant only for the people who are on this list. I know there are a few people who think any form of disagreement is wrong and that the law is straight-forward and that any judge would clearly rule in our favor and if we followed a certain course of action, we could stop the airport in a matter of days.  I respectfully disagree and am concerned that the bird we have in our collective hands could fly away if we try to grab the two in the metaphorical bush.

Those are my thoughts. Don't kill the messenger. -- Bill

On Jan 31, 2017, at 3:35 AM, Jonathan Stein <> wrote:

All,

For the first time in 100 years, the City has given away its avigation easement over the Airport to the FAA.  That is the most devastating loss of "local control" possible.  The City has quite literally transferred its authority over the sky to the FAA.

An avigation easement is the real property right to conduct flight operations over houses or the Airport.  Residents successfully sued the City, which owned the avigation easement, when too many jets were flying in year 2001 (compared to earlier years).  And I wrote a year ago that, once again, more jets are using the avigation easement than allowed by law, so residents could sue the City and win.

No more.  Residents would have to sue the federal government, which will own the avigation easement.  For 100 years, the City owned the avigation easement.  Now, to settle lawsuits the City is 90% likely to win, it is transferring the avigation easement to the FAA.  First time in 100 years!!

To get rid of the 1948 Instrument of Transfer, a very limited document, the City is giving the FAA an avigation easement, which by its language is unlimited.  Any number of jets, at any time of the day or night, with any noise level of flight height, can be flown into and out of the Airport.  If the City objects, well it can't.  The FAA owns the avigation easement.

Like the rest of the Settlement Agreement and Consent Decree, it is supposed to end in 2028 but does not.  None of the typical termination language for an agreement or an easement is included.  Rather, specifically envisioned is another fight in 2028 to close the Airport, very similar to the fight we are in now.  

And if this agreement stands the test of court which I will be filing this week, we have lost that one.  Residents in Sunset Park and Ocean Park are being stabbed in the back. 

In closing, as a lawyer, I have sought a remedy for some very serious wrongs.  I have looked into the eyes of true villains, truly bad people whom I was paid to bring to some semblance of justice.  But in 30 years, I don't think I have seen as bad a betrayal as this Settlement Agreement and Consent Decree, adopted in the dark of night on a Saturday morning.

And one last thing.  A "Consent Decree" is when feds take over the schools because black people are not allowed in.  A consent decree is when feds take over a local police department because it is shooting unarmed teenagers.  A consent decree is when feds take over the prison system because it is so crowded it violates constitutional rights of prisoners.  And now the City of SM will be operating under a federal consent decree, why, because we tried to close the Airport. 

Jonathan Stein, Law Offices of Jonathan Stein