We Are At War With the FAA Over SM Airport. Does The City Attorney Want to Win or Lose?
A City FBO will needlessly extend flight operations. Why provide flight services at all?
December 9, 2016
According to public court documents, FAA has proposed a "Standstill Agreement" to the City, which the FAA insists the City Council agree to upon threat to issue a Cease and Desist Order. Like some in City Hall and on the Council, I urge the City not to sign the FAA Standstill Agreement. Let me explain why very briefly.
The City is pursuing a questionable strategy, but one that I support. It is setting up the City's own "fixed base operator" (FBO) to replace Atlantic and American Flyers. In other words, the City will provide certain services to jets and propeller aircraft.
On the one hand, a City FBO successfully follows FAA rules. It has kept the FAA from issuing the Cease and Desist Order. It will force out Atlantic Aviation and American Flyers. And when they leave, they will take most of their customers with them, hugely decreasing flight operations. Hooray for the City Council.
On the other hand, there is no legal requirement for the City to set up an FBO to rid itself of Atlantic and American Flyers. A City FBO will needlessly extend flight operations. After all, theyexplicitly agreed to the "surrender clause" in the lease agreement requiring them to leave in July 2015, some 17 months ago. There is nothing the FAA can do, or they can do, to prevent the City from prevailing on the merits. David Goddard advocates this position. Creating the City FBO is just one more legal hoax, he says, and he is 90% right.
Now, let us note what happened when Trump won. The FAA is led by senior officials, all of whom are leaving before Trump takes office. This is because Trump as stated that he will impose a 5-year ban on all federal officials lobbying after they leave. To avoid this draconian measure, they must leave by January 20.
But before they go, they have a "gift" they want to give their future employers, their friends, their peers, at AOPA and NBAA and NTSA. Thus their latest threat to issue the Cease and Desist Order now!
In light of this situation, I have repeatedly urged the City to prepare for this possibility – get in a massive response full of documents and legal arguments to the FAA, to create the proper administrative record as required by law, before the expected court action. We are at war.
The City Attorney and outside counsel have refused to do so, only last week have they grudgingly begun to review the "massive response" that Ben Wang and I prepared – without pay, enormous amounts of time spent, all because the City Attorney and outside counsel refused to make the administrative record required by law. Do they wish to lose on purpose??
Now, just as I warned would happen, the FAA has upped the ante. They say they will issue the Cease and Desist Order, unless the City accepts a lousy Standstill Agreement protecting Atlantic and American Flyers from eviction while gaining the City nothing. We should reject this expected move; we should make our record with the massive response; and we should call the bluff of these officials who will leave the FAA by January 20.
And we await the City Attorney's last day – another milestone in the march to freeing City Hall of special interests, including aviation interests. That will also happen shortly. How spectacularly inappropriate that the City Attorney insists on setting policy right up to her last day.
The Airport is a political tar baby. The idea that we should "stand still" in requiring Atlantic and American Flyers to leave – as they explicitly agreed to do 17 months ago – would in my opinion betray the resident of Sunset Park and Ocean Park. If Atlantic and American Flyers agreed to leave as part of the Standstill Agreement, that would be worth signing, but this is not the case.
Absent that, the Standstill Agreement gains the City nothing and would only prove that the City Council is not serious about closing the Airport.
Jonathan Stein, Santa Monica