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O'MELVENY & MYERS LLP
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400 South Hope Street

Los Angeles, Califomi:i 90071-2899

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WASHINGTON, 0 .C.

Septembe r 19, 2016

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Office of the Chief Counsel

Attention: FAA Part 16 Airport Proceedings Docket
AGC-600
Federal Aviat ion Administration
800 Independence Ave., S.W.
Washington, D.C. 20591

Re:

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530,799-029
\\'RITt:R'S OIRt:CT DIAL

(213) 430-6670
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tallan@omm.com

MOTION FOR CEASE AND DESIST ORDER

Atlamic Aviation FBO, Inc. v. City of Santa Monica, California

Complai nant Atlantic Aviation FBO, Inc. respectfully requests that the Director issue an
emergency order pursuant to49 U.S.C. 47122 and 40113, and 14 C.F.R. 16.109(a),
directing the City of Santa Monica, California (the ''City") to cease and desist from evicting
Complainant during the pendency of Complainant's Part 16 actio n against the City. A cease and
desist order is necessary and appropriate because the City's September 15, 2016 notices to
Atlantic purporting to (1) evict Atlantic from SMO, and (2) terminate Atlantic's agreement
pursuan t to which it stores and pumps j et fuel and Avgas at SMO, both effective October 15,
2016, are in violation of its federal obligations, as demonstrated in Complainant's Part 16
Complaint. Permitting the City toevict Complainant while Complainant's claims are pending
before the FAA would irreparably hann Complainant, all aviation users of the Airport, and
would undermine the FAA 's exclusive authority to ensure safe and efficient use of national
airspace and to enforce airport grant assurances and other federal obligations.
Backi:round

On Tuesday, September I 3, 2016, Comp lainant liled its Part 16 Complaint against the
City, which is the owner, operator, and sponsor of Santa Monica Municipal Airport ("SMO" or
the "Airport"). As the Complaint makes clear, the City's conduct toward Complainant and all
aviation tenants at SMO is designed to restrict aviation operations at the Airport in accord with
the City's stated policy to effect the closure of the Airport as soon as possible.
On Thursday, September 15, 2016, the City served Complainant with a notice of eviction,
which is attached hereto as Exhibit l, requiring Complainant to vacate the premises within 30
days. The City also separately served a 30-day notice to terminate the Fueling Service

O 'MELVENY & MYERS UP

Agreement (also included as part of Exhibit I), pursuant to which Complainant stores and pumps
jet fuel and Avgas, using a storage facility owned by the City.
The City's conduct is inconsistent with the FAA's instruction to the City not to engage in
"self-help " to close the Airport. See Letter from Kevin C. Willis Director of Airport Compliance
and Management Analysis to Mayor Tony Vazquez (Aug. 29, 2016), attached hereto as Exhibit
2. The FAA's letter also stated: "Prior to implementation, we request that the City prepare and
submit its plan for proprietary exclusive fixed base operations to the FAA review." Id. To
Complainant's knowledge , the City has not submitted to the FAA any plans for providing
proprietary FBO services as requested (object ing that there is no "legal requirement" for such a
plan). See Letter from Mayor Tony Vazquez to Kevin C. Willis , Director of Airport Compliance
and Management Analysis (Sept. 6, 2016) , attached hereto as Exhibit 3. Rather, it has evicted
SM O's only full service FBO and the only provider of jet fuel to turbine aircraft using SMO.
Moreover, Complainant is informed and believes that a similar notice was also served upon
American Flyers, the only other provider of Avgas at SMO. Very few aircraft operators will
elect to use an airport at which there is no fuel service. Consequently , without intervention, the
City ' s actions will effectively shut down SM0 . 1
With the short deadline in the City's eviction notice, and the need to seek judicial
intervention if the City refuses to abide by a cease and desist order if the motion is granted, or if
the motion is denied , Complainant requests an expedited briefing schedule and decision for th is
motion. If the City is directed to provide its response to the motion within 5 business days, and
Comp lainant is afforded an opportunity to reply within 2 business days thereafter, this should
permit a ruling on the motion far enough in advance of October 15 that the FAA or Complainan t
will not be foreclosed from seeking judicia l relief shou ld that be necessary.

Argument
The FAA unquestionably has "the authority to issue interim cease and desist orders
pursuant to the general authority of 49 U.S.C . 40113 and 47 122 coupled with that provided
under 14 C.F.R. 16.11, 16.3l(d) and I6.109(a)." In re Compliance with Federal Obligations
by the City of Santa Monica, Ca. ("Santa Monica Supplemental Order"), No. 16-02-08, at 14
(Supplementa l Interim Cease and Desist Order May 12, 2008); accord Pro-Flight Aviation , Inc.
v. City of Renton, No. 16-15-03, at 2 (Order Sept. 1, 2015) (noting that " [t]he FAA previously
1

Even if the City were to submit a plan of some kind in the next 30 days, it should be reviewed
very carefully in view of the strong evidence , set forth in the Complaint , that the City intends to
operate the FBO in such a way so as to discourage air traffic at SMO. Complainant respectfully
submits that the FAA should only consider a plan ( 1) that includes ironclad conunitments from
the City to offer the full range of services and fueling options that are now provided by Atlantic
in a safe and efficient manner , with failsafe remedies should the City fail to honor its
commitments , and (2) that thoroughly describes how and when the City will undertake those
activities , including the transition from Atlantic.
2

O'MELVENY & MYERS LLP

has exercised its authority to issue a cease and desist order as an interim measure to maintain the
status quo"). 2 An interim cease and desist order should issue where the respondent is likely in
violation of its federal obligations and the failure to issue such an order will result in irreparable
harm. See In re Compliance with Federal Obligations by the City of Santa Monica, Ca., ("Santa
Monica Interim Order"), No. 16-02-08, at 6-9 (Interim Cease and Desist Order Apr. 23, 2008);
see also Pro-Flight, supra No. 16-15-03, at 2.
Complainant has provided a compelling case that the City is in violation of its federa l
obligations. See Atlantic's Part 16 Complaint, which is incorporated herein by reference.
Th erefo re, the only question is whether the eviction of SM O's only full service FBO and only
provider of jet fuel (along with the only other provider of Avgas at SMO) will cause irreparable
harm. There can be no doubt that it will.
Eviction will irreparably harm Comp lainant. Complainant is SMO's largest aviation
employe r and has invested substantial resources in its operation at SMO. See Complaint at ,i,i 26. Eviction threatens those employees' livelihoods as well as Comp lainant's substantial SMO
investment. Even if Complainant is correct that eviction is unlawful, there is no guaranteeindeed , it is unlikely given the City's treatment of Complainant-that it will be restored to its
position at SMO if the City is permitted to evict Complainant. Worse still, the City's actions
threaten to prevent that determination from ever being made: eviction might moot Complainant's
Part 16 proceeding as Complainant would no longer be a tenant at SMO. Eviction thus threatens
to eviscerate Complainant's legal rights , which "is not, and cannot be, the law." Santa Monica
Supplemental Order, supra No. 16-02-08, at 14.
The aviating public will also be irreparab ly harmed by the City's conduct. As far as
Complainant is aware, the City has no plan to effectively and safely implement the same services
as a proprietary FBO in the next 30 days. The result, if the City's conduct is permitted, will be to
shut down SMO to almost all aviation uses, as very few, if any, aircraft will elect to use an
airport at which there is no fuel service. See Santa Monica Interim Order, supra No. 16-02-08,
at 2 (issuing cease and desist order preventing the City from enforcing its ban on Category C and
D aircraft operations because "doing so wi l1 foreclose operations by aircraft with a present right
to utilize SMO"). The City cannot "divest" nearly all "aircraft operators of their right to use
SMO and the FAA of its jurisdiction over its administrative process to which the City, as a
Federally obligated airport, must adhere." Santa Monica Supplemental Order, supra No. 16-022

To the extent the City relies on Pro-Flight, supra No. 16-15-03, in which the FAA affirmed its
authority to issue a cease and desist order but declined to issue such relief under the facts of that
case, that decision is entirely distinguishable. There, the complainant sought a preliminary
injunction preventing the respondent from evicting it from 9 aircraft tiedown spots it leased from
respondent. The FAA declined to issue such an order because the complainant failed to
demonstrate irreparable harm. Id. at 4. Respondent "offe red other airport property for
Complainant to use for aircraft tiedown s," which would have alleviated most, if not all of the
harm that complainant alleged it would suffer. Id. The City has obviously not undertaken any
compara ble remedial measures here.

O'MELVENY & MYERS LLP

08, at 3; see also Santa Monica Interim Order, supra, No. 16-02-08 (holding that conduct that
"subvert[s] present operations [at SMO] is hannful on its own").
The hann flowing from the City's actions will be felt beyond just SMO. As the FAA has
previously explained in directing the City to cease and desist from unlawful conduct designed to
restrict aviation operations at the Airport, "Santa Monica is an important general aviation reliever
airport for Los Angeles International Airport." Id. at 9. Effectively "forcing [aircraft wishing to
use SMO] to use other airports ... affects Federal air traffic and airspace management in the
greater Los Angeles region," including air traffic at Van Nuys and Burbank, which are
consistently overburdened. Id. at 9 ("Diverting general aviation operations to LAX is
inconsistent with SMO's reliever status obligation: to relieve general aviation operations from
LAX," and justifies a finding of irreparable hann). The City's conduct will unquestionably
impose "a significant burden on" both regional and "interstate commerce." Id.; see also id. at 8
(conduct that "subvert[s) present operations" at SMO has injurious "effects on the national air
system").
Finally, the City's conduct undermines the FAA ' s role in maintaining a safe and efficient
national aviation network and its exclusive authority to enforce airport grant assurances and
other Federal obligations. Complainant and other FBO operato rs, as well as aircraft owners and
operators, other airport authorities, and related businesses must be able to rely on the FAA's
authority and decisions. "Allowing one City" to flout the FAA ' s authority , distort the grant
assurances, and severely restrict aviation operations at SMO "will encourage other local
govenunents to follow suit thus creating a patchwork of local laws affecting aviation which is
the province of the Federal govenunent," and more specifically the FAA. Id.; see also Santa
Monica Supplemental Order, supra No. 16-02-08, at 13 (noting that allowing municipalities to
usurp the FAA' s authority over aviation matters "would also be harmful in undermining the
congressional policies underlying the airport grant compliance and improvement programs").
Moreover, the City,s conduct should not subvert the FAA ' s jurisdiction over Part 16
proceedings.

In sum, Complainant is highly likely to prevail on the merits of its Part 16 complaint, will
suffer irreparable hann if evicted, and the public interest supports the issuance of a cease and
desist order. Accordingly, Complainant respectfully requests that the Director issue an order
directing the City to cease and desist from evicting Complainant and from terminating the
fueling agreement .

O'MELVENY & MYERS LLP

Dated: September 19, 2016

Respectfully submitted,

lU11a,a
(lljpJcli

Wallace ("Tad") Allan

O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, CA 90071
(213) 430-6000
tallan@omm.com

O'MELVENY

& MYERS LLP

CERTIFICATEOF SERVICE
I hereby certify that I have this day served the foregoing on the following persons at the
following addresses by first-class mail.
Rick Cole
City Manager
City of Santa Monica
1685 Main Street, Room 209
Santa Monica, CA 90401
manager @srngov.net

Marsha Moutrie, Esq.

City Attorney
City of Santa Monica
1685 Main Street, Room 310
Santa Monica, CA 9040 l
marsha.moutrie@smgov.net

Susan Cline
Acting Director of Public Works
City of Santa Monica
1685 Main Street, Room 116
Santa Monica, CA 90401
susan.cline@srngov.net

Stelios Makrides
Airport Manager
City of Santa Monica
Airport Administration Building
3223 Donald Douglas Loop South
Santa Monica, CA 90405
stel ios.makrides@smgov.net

Nelson Hernandez
Senior Advisor to the City Manager on Airport
Affairs
City of Santa Monica
1685 Main Street
Santa Monie, CA 9040 l
nelson.hernandez@smgov.net

Dated this 19th day of September, 2016

~ af!M1JatM

Wallace ("Tad") Allan

EXHIBIT 1

Office of the City Manager

1685 Main Street, Suite 209
PO Box 2200
Santa Monica, CA 90407-2200
City of

Santa

Monica~

September 15, 2016

Mr. Steve Hirschfeld
Vice President of Operations
Atlantic Aviation of Santa Monica, LP
2828 Donald Douglas Loop North
Santa Monica, CA 90405
Re:

30-Day Notice of Termination of Tenancy & Notice to Vacate the Premises pursuant to

California Civil Code 1946. (Santa Monica Airport Lease No. 4671}
Dear Mr. Hirschfeld,
Attached please find your NOTICE TO VACATE. Please note you have 30 days to vacate the
premises. Please coordinate your departure and pro-rated rent amount due with the Airport
Manager, Stelios Makrides. Mr. Makrides can be reached at 310.434.2693.
Should you have further questions please feel free to contact me directly at 310.434.2699.
Sincerely,

Nelson Hernandez
Senior Advisor to the City Manager

tel: (310)458-8301 fax:

(310)572-4495

Rick Cole
City Manager

Office of the City Manager

1685 Main Street
City of

Santa

Monica

PO Box2200
Santa Monica, CA 90407-2200

September 15, 2016

Mr. Steve Hirschfeld

Vice President of Operations
Atlantic Aviation of Santa Monica, LP
2828 Donald Douglas Loop North
Santa Monica, CA 90405
Re:

30-Day Notice of Termination of Tenancy & Notice to Quit and Vacate Premises
pursuant to California Civil Code 1946. (Santa Monica Airport Lease No. 4671)

Dear Mr. Hirschfeld,

Atlantic Aviation of Santa Monica, LP ("Atlantic") is currently in possession of premises
at 2828 Donald Douglas Loop North, Santa Monica, California, 90405 at the Santa Monica
Municipal Airport. Atlantic's predecessor in interest originally occupied the premises under a lease
with the City of Santa Monica , Santa Monica Airport Lease Agreement No. 4671 ("Lease"),
which, was entered into by Justice Aviation and City of Santa Monica on or around May 1, 1986
for a term of 29 years and 2 months. The Lease term was extended by the parties by way of
separately executed hold-over agreements on June 28, 2015, October 30, 2015, and November 25,
2015. The Lease ultimately expired by its own terms on December 31, 2015 and Atlantic has
remained in possession of the premises on a month-to-month basis. This Notice is intended as, and
shall be construed as, a 30-day notice terminating Atlantic's month-to-month tenancy with the
City.
PLEASE TAKE NOTICE that pursuant to California Civil Code 1946, Atlantic must
quit and vacate the premises and surrender possession City of Santa Monica within 30 days
after service of this notice. Atlantic's failure to quit and vacate th e premises within such 30 days
will give cause the City to initiate legal proceedings against Atlantic to recover possession of the
premises and to seek a money judgment for damages for each day of occupancy after the expiration
date of this notice. Such a judgment against Atlantic may include attorney fees and court costs as
allowed by law or contract. Current rental payments (including prorated rent for any partial month)
shall remain due and payable through and including the date oftermination of under this Notice.
Please take further notice that California law permits former tenants to reclaim abandoned
personal property left at the former address of the tenant, subject to certain conditions. Atlantic
may or may not be able to reclaim property without incurring additional costs, depending on the
cost of storing the property and the length of time before it is reclaimed. In general, these costs
will be lower the sooner Atlantic is able to contact the City after being notified that property

7;,

to it w~

ltickCo~
City Manager.

after Atlantic vacated the prenrises.

=
tel: 310 458-8301 fax: 310 917-6640

Rick Cole
City Manager

Office of the City Manager

City of

Santa

Monica

1685 Main Street

PO Box2200
Santa Monica, CA 90407-2200

September 15, 2016

Atlantic Aviation of Santa Monica, LP
2828 Donald Douglas Loop North
Santa Monica, CA 90405
Attention: Gregory Wain, General Manager

Re: Notice of Termination of Services .A.greement

Provision of Fueling Services
Dear Mr. Wain:
Reference is made to that certain Agreement to Provide Services Contract dated as of February 29, 2015
(the "Services Agreement"), between the City of Santa Monica ("Owner"), and Aviation Contract
Services, Inc. ("ACS"), a California corporation.
Pursuant to Section 1 of the Services Agreement, Owner hereby gives notice of its election to terminate
the Services Agreement, and that such termination shall be effective thirty (30) days from the date of this
notice. For the avoidance of doubt, such termination shall be effective as of October 15, 2016.
In accordance with Section 21 of the Services Agreement, any provision of the Services Agreement, which
by its nature must be exercised after termination of the Services Agreement, will survive termination and
remain effective for a reasonable time. Any obligation that accrued prior to termination of the Services
Agreement will survive termination of the Agreement.

This notice does not, and shall not be construed to, waive or release any claims or rights that Owner has
under the Services Agreement, at law or otherwise, or to relieve ACS of any obligations that it has under
the Services Agreement, at law or otherwise.
CITYO~NTAMONICA,
By:

~7;'!
J'

Date:

tel: 310 458-8301 fax: 310 917-6640

j~
RIC COLE
City Manager

c/// (j/ / b

t . I

EXHIBIT 2

U.S. Department
of Transportation

Office of Airport Compliance

and Management Analysis

800 Independence Ave., SW.

Washington, DC 20591

Federal Aviation
Administration

August 29, 2016

Tony Vazquez
Mayor, City of Santa Monica
1685 Main Street, Room 209
Santa Monica, CA 90401
Dear Mr. Vazquez:
I am writing to express concerns about certain actions the City of Santa Monica is taking at
Santa Monica Municipal Airport (SMO). These actions include, in part:

A City Council agenda item expressing the Council's intention to close the airport to
aviation use "as soon as it is legally permitted with a goal of June 30, 2018";

The new Airport Leasing policy and the issuance of leases for several nonaeronautical users, but a practice of not issuing leases to aeronautical users;

Your plan to implement a proprietary exclusive fixed base operation;

A Staff Recommendation that the City Manager takes action to eliminate leaded fuel.

In 2003, the City accepted a grant offer of federal funds. This offer was in the form of an
amendment to a prior grant. Accordingly, the FAA has determined through a Part 16
adjudication that the grant assurances apply through 2023. National Business Aircraft
Association et al. v City of Santa Monica, Final Agency Decision dated August 15, 2016,
Docket No. 16-14-04. Under the grant assurances, the City must make the airport available
as an airport for public use on fair and reasonable terms and without unjust discrimination.
There are similar requirements under deeds issued by the FAA under the Surplus Property
Act, which are at issue in federal court. The Airport Noise and Capacity Act also establishes
a national program for review of airport access restrictions that requires FAA to approve
restrictions on operations by Stage 3 aircraft.
We are, of course, aware that the City has the right to appeal the Final Agency Decision in
federal appellate court. It is our position that pending judicial review, the City is required to
continue to operate the airport for public use on reasonable terms and without unjust

discrimination. Under federal law, the FAA holds plenary authority over matters concerning
air navigation facilities. 49 U.S.C. 40103(b), 44502, 44721, 47107, 4711 l(f). The
Secretary of Transportation, and through delegation the FAA, is authorized to issue orders
enforcing federal aviation laws. 49 U.S.C. 40113(a) , 46105, 47122(a). The FAA may
issue orders and take such other actions as are necessary to fulfill the purposes of 14 C.F.R.
part 16, which governs the process for investigations and administrative adjudications of
certain violations of the federal aviation laws. 14 C.F.R. 16.1 l(b). Such an order "remains
in effect under its own terms," 49 U.S.C. 46105(a), and all affected persons are required to
comply with such order.
The FAA may ask the court to enjoin the City from acts in the nature of self-help . See, US.
v. City of Santa Monica, No. CV 08-2695, p.3 (C.D. Cal. May 16, 2008) (order granting
preliminary injunction). See also; United States v City of New Haven, 447 F.2d 972 (2d Cir.
1971)(order granting preliminary injunction to restrain enforcement of state court's order
purporting to regulate flight of aircraft and close portion of runway).
We understand that the City Council has firm views regarding its rights in this matter.
However, we strongly urge the City Council to abide by its federal grant assurance
obligations and to forbear from taking actions in furtherance of its announced intent to close
SMO pending further rulings by the federal courts . The FAA is prepared to pursue all legal
remedies at its disposal if the City Council takes concrete actions to restrict leases or
operations without complying with applicable federal law or otherwise seeks to undermine
the Final Agency Decision dated August 15, 2016.
Prior to implementation, we request that the City prepare and submit its plan for proprietary
exclusive fixed based operations to the FAA for review The City should also submit the
current leasing policy for review .
This is not a final agency decision or order of the Administrator under 49 USC 46110.
Sincerely,

Direc or of Airport Compliance

anagement Analysis
cc:

Stelios Makrides
Airport Manager
3223 Donald Douglas Loop South
Santa Monica, CA 90405
stelios.makrides@smgov.net

3
Rick Cole
City Manager
1685 Main Street, Room 209
Santa Monica , CA 90401
rick.cole@smgov .net
Marsha Moutrie, Esq.
City Attorney
1685 Main Street, Room 310
Santa Monica, CA 90401
attorney@smgov.net

EXHIBIT 3

Tony Vazquez
Mayor

City of

Santa

Monica

City Council
1685 Main Street
Room 209
Santa Monica
CA 90401

September 6, 2016

Kevin C. Willis
Director of Airport Compliance and Management Analysis
U.S. Department of Transportation
Federa l Aviation Administration
Office of Airport Compliance and Management Analysis
800 Independence A venue , SW
Washington DC 20591

Dear Mr. Willis:

This responds to your letter of August 30 1\ expressing concerns about certain actions recently
taken by the City in its capacity as proprietor and operator of the Santa Monica Airport ("the
Airport "). The Federa l Aviation Administration's (FAA) concerns include the City Council:
adopting a resolution declaring Council's intent to close the Airport to aviation uses as soon as
legally permitted, with the goal of doing so by July 1, 2018; adopting a policy to establish
exclusive public proprietary fixed base operations (FBO) at the Airpo11; adopting a policy
supporting leas es compatible with SUITotm
ding uses ; and directing the City Manager to take
appro priate and lawful actions to eliminate the sale of leaded fuel at the Airport.
Your letter reiterates your agency's views of its authority and threatens legal action if the City
fails to abide by contractual grant conditions , which your agency contends remain in effect-a
contention that the City disputes , and is now challenging in the Ninth Circuit. Finally , your letter
" requests " that the City submit both its plan for proprietary fixed base operations at the Airport
and its leasing policy for FAA review.
Your letter ' s content and tone strike us as alarmist and heavy-handed . The City is committed to
acting in accordance with the law. So, for example , the Council's resolution expressly states that
it will close its airport " as soon as ... legally permitted. " (Emphasis added.) Likewise , the
City ' s leasing policy specifically state s that the City will allow uses "required by law." As to the
establishment of a proprietary exclusive fixed base operation , federal law indisputably allows
airport proprietors to operate exclusive fixed base operations. Finally , concerning the City
Council ' s intention to eliminate leaded fuel , the federal government itself has declared a policy
of eliminating lead from aircraft fuel by 2018. Indeed , given the clearly recognized damage that
leaded fuel causes to human health and the environment, it is shocking that the federal
government has resisted so long eliminating lead from aircraft fuel- which was banned from
automobile fuel decades ago.

tel: 310 458-8201 fax: 310458-1621

e-mail: tony.vazquez@smgov.net

Page 2

In respect to your request that the City submit plans for providing proprietary FBO services and a
leasing policy , we are unaware of any legal requirement mandating such submissions . The City
intends to consult cooperatively with FAA personnel , as City staff has, routinely, for years.
Your letter underlines the tension between the FAA ' s dual missions of protecting aviation safety
but also promoting air commerce . The City has a single mission, which the law clearly
recognizes- protecting the health , safety and welfare of its residents and the environment-and
legal authority to fulfill that mission. Your letter acknowledges the City' s "firm views"
regarding our rights. To clarify, we have more than "views" . As proprietor and operator, we
have legal responsibility for the Airport and its impacts; and, we have legal rights, as proprietor ,
to protect the health, safety and welfare of our residents and the environment. The federal
regulation s administered by your agency do not trump those rights. Nor do any contractual
agreements that may remain in effect between the City and the FAA nullify those rights. That is
because, among other things , the City "actions" that you question are expression of policies that
are reasonable , nondiscriminatory and well within our proprietary and other legal rights.
Very truly yours,

cc:

City Council
Rick Cole, City Manager