Story ID: 
FAA Opens Investigation into SMO Eviction Notices
By: Kerry Lynch
Caption: NBAA, AOPA seek to join Appeal of case over fate of SMO as the FAA strongly recommended the city to vacate the eviction notices.
Word Count: 854
The FAA has subpoenaed the city of Santa Monica and issued a notice of investigation into the city’s efforts to evict the two main fuel providers at Santa Monica Airport. “These actions may be causing, and appear intended to cause, impairment of the airport, including but not limited to, a de facto closure of the airport in violation of applicable law,” the agency told the city in a September 26 notice of investigation (NOI).

The Santa Monica city council voted on August 23 to close SMO "as soon as it is legally permitted, with a goal of on or before July 1, 2018," and followed that vote with 30-day eviction notices that were delivered on September 15 to tenant FBOs Atlantic Aviation and American Flyers. The city took that step with the stated intention of providing city-run services.

Atlantic Aviation and American Flyers, which runs both fueling and flight training services, have urged the FAA to “issue an emergency order” that would force the city to stop the evictions.

The NOI gives Santa Monica officials 10 days to respond to its inquiry. The FAA noted the city would typically have 30 days, but the agency is shortening the time frame in light of the October 15 eviction deadline. The agency also subpoenaed city officials to testify before the FAA on the city's behalf on October 12 on its plans to establish its own FBO and provide flight instruction services in lieu of Atlantic Aviation and American Flyers.

“No extension of time will be granted unless the city withdraws its notices to vacate,” the FAA warned in the NOI. The agency further said it “strongly recommends that the city withdraw the notices to vacate until such time as this matter can be resolved.”

The FAA has issued a lengthy list of detailed demands to the city surrounding its plans to provide the aviation services, such as documentation on arrangements made with fuel providers; equipment planned to be used; storage capabilities; names and certification status of employees who will provide flight instruction; arrangements for flight training records; airworthiness certificate and registration for each aircraft used; written materials such as manuals and syllabi; arrangements for maintenance of equipment; type of facilities that will provide maintenance services; and maintenance manuals, among others.

In the NOI, the FAA also warned of the grant assurance agreement that the city must “make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.”

Santa Monica Mayor Tony Vazquez called the NOI “an overreach by the FAA” and said, “Our priority is putting the community first and exercising our rights as owner and operator of the airport. Now the FAA is clearly on a fishing expedition to protect Washington special interests who fear losing corporate profits.“

In an earlier communication, Nelson Hernandez, senior advisor to the city manager on airport affairs, defended the city’s eviction notices, saying, “Federal law clearly allows the city, as the airport’s proprietor, to establish and to operate its own FBO service. Moreover, the city believes that federal law does not give Atlantic Aviation any rights to remain at the airport.“

"While federal regulations may allow the city to operate its own FBO, Santa Monica is certainly not prepared to provide an equivalent level of service by October 15,” said NBAA Western regional representative Stacy Howard. “It is also unlikely the city would ever do so in a manner beneficial to the airport and its aviation users."

While the FAA moves forward in its own proceedings, NBAA and AOPA have sought to join a lawsuit before the U.S. Appeals Court for the Ninth Circuit over the city’s obligation to run the airport through 2023. The associations on September 26 jointly filed a motion to intervene in the case, clearing the way for them to participate as parties of the case. The city is appealing an FAA finding in an earlier Part 16 complaint that it remains under federal grant obligations until August 27, 2023, and must keep the airport operational, accordingly. That Part 16 complaint was originally filed by aviation industry groups, but the appeal surrounds the FAA’s decision.

The motion, said Jol Silversmith, who is representing NBAA in the case, would enable the associations to brief the court and provide perspective on the ramifications of the case to the aviation community. “By asking to intervene in this case, we’re really asking to continue to be involved in these issues as we have been from the beginning,” said Ken Mead, general counsel for AOPA.

This case, which is among several legal actions pending over the fate of SMO, likely would be heard before the Appeals Court next year. Also pending is a case before a U.S. district court covering the city’s obligations to run the airport in perpetuity, as well as a separate Part 16 complaint over potential misuse of funds surrounding the airport.