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K. Simon, Esq.
1700 Decker School Lane
Malibu, CA 90265
(310) 5037286

David M. Shaby II, Esq.
R. Christopher Harshman, Esq.
11949 Jefferson Boulevard, Suite 104
Culver City, California 90230
(310) 8277171

Office of the Chief Counsel
Attention: FAA Part 16 Airport Proceedings Docket
Federal Aviation Administration
800 Independence Ave. S.W.
Washington D.C. 20591

September 21, 2016

Re: Motion for Cease and Desist Order

American Flyers, Inc. v. City of Santa Monica,

Dear Sir or Madam,

American Flyers, Inc. (American), the Complainant in the aboveentitled
action filed concurrently herewith pursuant to 14 C.F.R. 16.23, respectfully
requests that the Federal Aviation Administration (FAA) issue an emergency order
pursuant to 49 U.S.C. 47122(a), 46105(c), and 40113(a), and 14 C.F.R.
16.109(a) and 16.11, directing Respondent City of Santa Monica, California (the
City) to cease and desist from taking any action to evict, or otherwise interfering
with the tenancy of, American at Santa Monica Municipal Airport (Airport) during
the pendency of Americans Part 16 action against the City.


The requested order is necessary and appropriate because on September 15,
2016, the City served a 30Day Notice to Quit (Notice), effective October 15, 2016,
purporting to evict American from its Airport leasehold and requiring it to
surrender possession thereof to the City. As more fully described in the
concurrentlyfiled Complaint (Complaint), the Notice is a denial of access to, and
discriminates against, American, without cause, in violation of the Citys federal
obligations under both grant assurances and an Instrument of Transfer. If the Citys
actions are not prevented while Americans claims are under consideration by the
FAA, American itself, and potentially all Airport tenants and users operating piston
aircraft, will suffer immediate and irreparable injury, and the FAAs ability to ensure
the safe and efficient use of the national airspace and to enforce federal obligations
will be significantly compromised.

Grounds for the Motion

American is a longstanding tenant of the Airport, operating a flight school
along with hangar and tiedown rentals and a selfservice aviation gas facility. It is
only selfserve aviation gas facility at the Airport and the only aviation gas supplier
on the south side of the Airport.

The only other supplier of aviation gas at the Airport is Atlantic Aviation, on
the north side of the Airport, which provides its fuel by oncall truck, at a price of
approximately $2.00 per gallon more than American. Atlantic Aviation has also
received a 30Day Notice from the City.

The longstanding and continuing efforts of the City to close the Airport and
to restrict, or drive out, aeronautical operations, are detailed in the February 5,
2016 Part 16 Complaint filed in Mark Smith, Kim Davidson Aviation, Inc., Bills Air
Center, Inc., Justice Aviation, Inc., National Business Aviation Association, Inc. and
Aircraft Owners and Pilots Association, Inc. v. City of Santa Monica, No. 161602,
paragraphs 12 42 of which are incorporated by reference in the Complaint, and
likewise incorporated by reference into this motion.

Prior to service of the Notice, the Santa Monica City Council had unanimously
adopted the proposals of the Santa Monica Airport Commission to consider
terminating the leases of flight schools and prohibiting or restricting fuel sales
(Complaint par. 9); directed City staff to attempt to limit sales of aircraft fuels for
piston engines to unleaded fuels, to evaluate eliminating all fuel sales and to look at
limiting the fixed based operations (FBO) hours at the airport (Complaint par. 10);
adopted a Leasing and Licensing Policy purporting to delegate to the City Manager

unbridled discretion to remove or deny access to aeronautical tenants (Complaint

par 11); and adopted a resolution to close the Airport as soon as legally permitted
and directing the City Manager to implement a policy of removing specific Airport
tenants, specifically including American (Complaint par. 13).

In its August 29, 2016 letter to the City, the FAA, through its Director of
Airport Compliance and Management Analysis Kevin Willis, urged the City not to
engage in selfhelp as part of its efforts to close the Airport, but instead to submit
to FAA any plan for proprietary exclusive operation of FBOs (Complaint par. 16).
The Citys only direct response, a September 6, 2016 letter from Mayor Tony
Vasquez, rejected that course of action. This rejection was followed a week later by
the Citys eviction Notice.

While the City has referenced the proprietary exclusion to Grant Assurance
23 as part of its plan to evict American, it has made no plans, hired no personnel, nor
taken any of the steps necessary to enable it to provide aviation fuel through City
personnel or equipment. Nor has the City even considered how it could replace
American as a flight school under the proprietary exclusion, and has not given
eviction notices to any other Airport flight schools. Accordingly, as alleged in the
Complaint (par. 35), the Notice is nothing more than a naked power play by the City
to rid the Airport of an aeronautical tenant providing flight school and fueling
services two of the priority targets of the City Council. It is a blatant, and
unabashed, violation of federal obligations to which the City and Mayor Vasquez
have made it clear the City does not feel bound to adhere.

The very short time window afforded by the 30Day Notice imposes
extraordinary burdens on American, which, absent the requested relief from FAA,
must prepare to seek judicial intervention while at the same time attempting to
address the needs of its flight instructors, staff, and students and the Airport tenants
and users who rely on the availability of selfservice aviation gas.

Because the City has prepared no plans for the exercise of a proprietary
operation of either the flight school or selfservice fueling functions of American
having instead lumped American into the generic category of FBO it is impossible
to predict what will occur should its eviction efforts succeed, but it is clear that the
City will not provide flight school services; that it is not prepared to provide aviation
gas fueling services; that it may, as it has promised, attempt to restrict any future
aviation gas sales to socalled environmentally sound fuel, which currently cannot
be utilized by much of the general aviation fleet; that it may end all aviation gas

sales, or the selfservice fueling of American; and that it may limit or end the use of
hangars or tiedown spaces at the American leasehold.

The impacts of the Citys eviction efforts are thus widespread and
irreparable: eviction threatens not only the livelihoods of Americans employees,
and its substantial investment in its Airport facilities, but: the ability of its numerous
students to continue to obtain flight training; the availability of fueling services
utilized by many of the tenants and transient users of the Airport; and the operation
of related aeronautical businesses dependent on Americans services. If allowed to
continue, there is little likelihood that the damage could be undone Americans
instructors and students will have scattered, many Airport tenants and users will be
obliged to operate elsewhere, and the eventual likely success of its Part 16 action
will essentially be moot. Once evicted, American cannot simply return and rebuild
and the harm to the Airport and the aviation community cannot be undone. This is
precisely the kind of widespread, irreparable injury to an airport that the FAA
should intervene to avoid.

10. The elimination of Americans services at the Airport also will have direct,
negative effects on other airports and air traffic throughout the greater Los Angeles
region; aeronautical users at the Airport will either add to traffic at other airports, in
order to obtain the fuel no longer available in Santa Monica, or relocate altogether
exactly what the City hopes to accomplish. But effectively forcing them to use other
airports affects Federal air traffic and airspace management in the greater Los
Angeles region. Several other airports in the region, Los Angeles International
Airport (LAX), Van Nuys, and Burbank are already at capacity. Diverting general
aviation operations to LAX is inconsistent with SMOs reliever status obligation. In
re Compliance with Federal Obligations by the City of Santa Monica, California, FAA
Docket No. 160208, Interim Cease and Desist Order, at 9 (April 23, 2008).

11. Additionally, where an airport sponsor has received from the FAA, and
chosen to ignore, a warning about the possibility that its conduct will violate the
sponsors federal obligations, and where, as in the case of the City, the sponsor has
repeatedly challenged, or disregarded, those federal obligations, the failure of the
FAA to pursue further measures, as requested by American, will seriously diminish
the ability of affected Airport tenants and users, and indeed, aviation nationally, to
rely on the FAA to establish clear standards of conduct for airport sponsors and to
respond effectively when there is a lack of compliance. Inaction in this instance is
thus harmful to a wide range of aviation interests beyond those immediately at
stake at the Airport. Allowing one City to violat[e] its Federal obligations will
encourage other local governments to follow suit thus creating a patchwork of local

laws affecting aviation which is the province of the Federal government. Santa
Monica, FAA Docket No. 160208, Interim Cease and Desist Order, at 9.

12. Moreover a cease and desist order is also necessary to preserve Airport
operations indeed the Airport itself while the Citys pending federal court actions
(C.D.Cal. no. 138046 and Ninth Circuit no. 1672827), by which it claims to be free
to close the Airport, proceed to decision. Absent such an order, the City will
incrementally effectively achieve the same outcome by continuing to empty the
Airport of aeronautical users and services such as American and Atlantic Aviation
and their customer bases. Unless stopped, the City will achieve its illegal ends by
selfhelp, no matter what the courts may determine. There is no basis here for the
City to alter the status quo, deprive operators of their right to use SMO and subject
other airports and the air navigation system to the disruption that will ensue while
the City tests its various arguments. Santa Monica, FAA Docket No. 160208,
Interim Cease and Desist Order, at 10. [A]n airport sponsors federal obligations
are not altered or suspended based on its intent and desire to close the airport. Jim
De Vries v. City of St. Clair, Missouri, FAA Docket No. 161207, Directors
Determination, at 26 (May 20, 2014).


13. In a prior proceeding in which Santa Monica also refused to comply with its
federal obligations despite warnings from the FAA, the FAA made clear that it has
the authority to issue interim cease and desist orders. Santa Monica, FAA Docket
No. 160208, Supplemental Interim Cease and Desist Order, at 14 (May 12, 2008),
affd 330 Fed. Appx. 124, 125 (9th Cir. 2009) ([t]he FAA is likely to prevail on the
merits given Santa Monicas contractual obligation to make its airport (SMO)
available for public use on fair and reasonable terms and without unjust
discrimination). See also ProFlight Aviation, Inc. v. City of Renton, FAA Docket No.
161503, Order, at 2 (September 1, 2015) ([t]he FAA previously has exercised its
authority to issue a cease and desist order as an interim measure to maintain the
status quo).1

14. Moreover, an interim cease and desist order should issue where a Part 16
respondent is likely in violation of its federal obligations and the failure to issue

1 In ProFlight, the FAA declined to issue a cease and desist order because the complainant had been

offered alternate property to that from which it was to be evicted, and thus the FAA concluded that
irreparable harm had not been shown. In contrast, in this case no alternatives have been offered by
Santa Monica and the eviction of American would inflict irreparable harm not just on American but
other Airport users and the Airport itself.

such an order will result in irreparable harm. See Santa Monica, FAA Docket No. 16
0208, Interim Cease and Desist Order, at 8 (April 23, 2008) ([p]ermitting the City
to [violate federal requirements] during the pendency of Part 16 administrative
proceedings will detract from the FAAs statutory role to enforce airport grant
assurances and other Federal obligations); 330 Fed. Appx. 124, 125 (9th Cir. 2009)
(a large disruption to air traffic is avoided and Santa Monica is required to preserve
the status quo only while FAA proceedings conclude); ProFlight, FAA Docket No.
161503, at 2.

15. And Santa Monica is well aware that what it has done not only flouts FAA
requirements but poses a direct challenge to the agencys authority. In the 2008
Part 16 proceeding cited above, the FAA concluded that illegal restrictions which
would affect approximately 9,000 annual operations (7% of operations at that time)
at the Airport justified the issuance of a cease and desist order. Now, the City by the
eviction of American (and Atlantic) would affect approximately 85,000 operations
per year i.e., 100% of flights at the Airport (of which about 75% are pistons, the
vast majority of which are fueled by American). It is difficult to conceive of a
scenario in which the harm to an airport would be more widespread and
irreparable. Certainly, FAA action to preserve the status quo is required.


For all of the foregoing reasons, American respectfully urges that the FAA issue an
interim order directing the City to cease and desist from any actions to evict
American during the pendency of its Part 16 action.

Respectfully submitted,

1700 Decker School Lane

Malibu, CA 90265

Certificate of Service
I hereby certify that I have this day caused the foregoing complaint to be
served on the following persons by firstclass mail with a courtesy copy by
electronic mail:
Rick Cole
City Manager
City of Santa Monica
1685 Main Street, Room 209
Santa Monica, CA 90401

Marsha Moutrie, Esq.

City Attorney
City of Santa Monica
1685 Main Street, Room 310
Santa Monica, CA 90401

Susan Cline
Acting Director of Public Works
City of Santa Monica
1685 Main Street, Room 116
Santa Monica, CA 90401

Stelios Makrides
Airport Manager
City of Santa Monica
Airport Administration Building
3223 Donald Douglas Loop South
Santa Monica, CA 90405

Nelson Hernandez
City of Santa Monica
1685 Main Street
Santa Monica, CA 90401

Dated this 21st day of September, 2016.

1700 Decker School Lane

Malibu, CA 90265