By: Barbara Lichman, Ph.D.

Predictably, Judge John Walter of the Los Angeles Federal District Court summarily dismissed a lawsuit brought by the City of Santa Monica (“Santa Monica”) aimed at closing the Santa Monica Airport, based on, among other things, unconstitutional taking of property without just compensation.  The court’s decision was made on the procedural grounds that, among other things, the lawsuit was brought too late and in the wrong court.

First, the court found that Santa Monica had brought the suit after the applicable 12 year statute of limitations had expired.  28 U.S.C. § 2409(a)(g).  The court’s rationale was that Santa Monica knew as long ago as 1948 that the Federal Aviation Administration (“FAA”) had a residual claim to the property arising from the Deed of Transfer of the federal government’s lease back to the City of Santa Monica.  That residual claim, therefore, required that Santa Monica’s suit be brought no later than the early 1960s.

In addition, the court found that, even if a claim for unconstitutional taking could be sustained under the applicable statute of limitations, it was improperly brought in the District Court, as the Tucker Act, 28 U.S.C. § 1491(a)(1) vests exclusive subject matter jurisdiction over monetary claims against the federal government exceeding $10,000 with the Court of Federal Claims.  Santa Monica does not, of course, dispute that the value of the airport property that it wishes to recover and use for other purposes exceeds $10,000.

Although the court chose the procedural route in making its decision, there appear to be relevant substantive grounds as well.

First, the parties continue to debate the factual issue of whether Santa Monica’s contractual relationship with the federal government extends only to the year 2015, or as far out as 2023.  The FAA’s reliance on the latter date arises from the fact that Santa Monica took its final federal grant in 2003, and its contract with the federal government is presumed to extend for the “useful life” of the facilities purchased with the most recent grant, or 20 years.  See, e.g., FAA Order 5190.6B, Chapter 4, §§ 4.6.h(1) and (2).  There is also the issue of real property purchased for the airport with federal funds.  In the case of Santa Monica Airport, the then existing Works Progress Administration (“WPA”) and Civil Aeronautics Authority (“CAA”) used eminent domain to acquire additional land in order to replace two runways with a modern 5,000 foot long runway.  As that section was purchased with federal funds, the obligation to keep that portion of the property, at least, in aviation use arguably remains in perpetuity.  Id. at § 4.6.h(2).

Finally, there is the legal issue of whether the 5th Amendment’s “takings” clause applies to make whole a City like Santa Monica.  The 5th Amendment specifically states: “. . . nor shall private property be taken for public use, without just compensation.”  [Emphasis added.]

Therefore, there may be a strong argument that the 5th Amendment does not apply where one public entity is alleged to have “taken” the property of another public entity without paying for it.

For all those reasons, and others, not the least of which is the preemptive authority of the Interstate Commerce Clause of the United States Constitution which militates against the closure of aviation resources, especially where options are as severely constrained as they are in the Los Angeles region, it is doubtful that Santa Monica will prevail in closing its airport.  A more fruitful approach might be an application to the FAA under 14 C.F.R. Part 161 for mitigation measures that can relieve the surrounding population to some extent of the impacts of noise and pollution which were so instrumental in precipitating the lawsuit requesting closure in the first instance.

From Aviation and Airport Development Law News Blog