Kate Scott et al v. City Council for the City of Santa Monica et al

Filing 56

Order re: Order to Show Cause re Preliminary Injunction 6 ; Request for Reconsideration re Order on Motion for Reconsideration 45 ; Ex Parte Applications to File Amicus Briefs 47 , 48 by Judge Ronald S.W. Lew. Plaintiffs' Application 6 re preliminary injunction is DENIED, and the TRO is dissolved. Additionally, Plaintiffs' Request for Reconsideration 45 is DENIED. NBAA & AOPA's Application 48 is GRANTED in its entirety, and SMAA's Application 47 is GRANTED in part and DENIED in part, such that the Court considers the arguments within the Applications but does not delay ruling until SMAA files additional briefing. SEE ORDER FOR COMPLETE DETAILS. (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 KATE SCOTT, an individual;
and JAMES BABINSKI, an
12 individual,
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14

Plaintiffs,
v.

15 CITY COUNCIL FOR THE CITY
OF SANTA MONICA, the
16 governing body of the City
of Santa Monica which
17 operates the Santa Monica
Municipal Airport; and
18 DOES, 1 through 10,
inclusive,
19
Defendants.
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CV 17-07329 RSWL (FFMx)
Order re: Order to Show
Cause re Preliminary
Injunction [6]; Request
for Reconsideration re
Order on Motion for
Reconsideration [45]; Ex
Parte Applications to
File Amicus Briefs [47],
[48]

Currently before the Court is Plaintiffs Kate Scott

22 and James Babinski’s (collectively, “Plaintiffs”) Ex
23 Parte Application for Temporary Restraining Order and
24 Order to Show Cause re Preliminary Injunction [6].
25 Specifically, Plaintiffs seek to enjoin Defendant City
26 Council for the City of Santa Monica (“Defendant”) from
27 taking any action to shorten the runway of the Santa
28 Monica Municipal Airport (“Airport”).
1

Pls.’ Ex Parte

1 Appl. for TRO and Order to Show Cause re Prelim. Inj.
2 (“Appl.”) 1:21-26, ECF No. 6-1.

The Court, having

3 reviewed all papers and arguments submitted pertaining
4 to this Application, NOW FINDS AND RULES AS FOLLOWS:
5 the Court DENIES the request for preliminary injunction
6 [6] and terminates the operative temporary restraining
7 order.
8
9

I. BACKGROUND
On April 28, 2017, Plaintiffs filed a Verified

10 Petition for Writ of Mandate and Complaint for
11 Injunctive and Declaratory Relief (“Complaint”) [1-2]
12 in Los Angeles County Superior Court (“Superior
13 Court”).

In their Complaint, Plaintiffs allege that

14 Defendant violated California law, including the Brown
15 Act, by entering into a consent decree (“Consent
16 Decree”) with the United States of America and the
17 Federal Aviation Administration (“FAA”) in a closed
18 session.
19

After the Superior Court dismissed Plaintiffs’

20 Brown Act claims with prejudice, Plaintiffs filed their
21 Amended Complaint [1-19] on September 28, 2017.
22 Defendant then removed the Action to this Court on
23 October 5, 2017 based on federal question jurisdiction.
24 Notice of Removal, ECF No. 1.
25

On October 6, 2017, Plaintiffs filed their Ex Parte

26 Application for Temporary Restraining Order and Order
27 to Show Cause re Preliminary Injunction (“Application”)
28 ///
2

Defendant failed to file an opposition.1

1 [6].

On

2 October 8, 2017, this Court granted the Application and
3 enjoined Defendant from taking any action to shorten
4 the Airport runway.

Order re Pls.’ Ex Parte Appl. for

5 TRO (“Order re TRO”), ECF No. 12.

As discussed in

6 detail below, had Defendant opposed Plaintiffs’
7 Application with the information currently before the
8 Court, the Court would not have granted the temporary
9 restraining order (“TRO”).

Plaintiffs’ evidence

10 included with their Application alone compelled
11 injunctive relief.
12

Later on October 8, 2017, Defendant filed its Ex

13 Parte Application for Reconsideration re Order on
14 Motion for TRO [14].

This Court subsequently denied

15 reconsideration based on Defendant’s failure to satisfy
16 procedural requirements but granted expedited briefing
17 on the Order to Show Cause (“OSC”) re Preliminary
18 Injunction.
19 32.

Order re Def.’s Appl. for Recons., ECF No.

Defendant opposed issuance of a preliminary

20 injunction [33], and Plaintiffs replied [50].
21 ///
22
1

It is unclear whether Defendant is aware of ex parte

23 procedures regarding timing. In numerous filings before this
24 Court, Defendant complains about the Court granting the temporary
25
26
27
28

restraining order before Defendant filed an opposition. However,
Defendant’s Opposition was due on October 7, 2017 by 10:41 a.m.,
twenty-four hours after Plaintiffs filed their Application.
Defendant does not reveal when it intended to file an opposition,
but Defendant had not filed any response by 2:23 p.m. on October
8, 2017 when this Court issued the Order. In fact, Defendant
waited until 10:14 p.m. on October 8, 2017—almost thirty-six
hours after the opposition was due—to file anything.
3

1

II. DISCUSSION

2 A.

Legal Standard

3

1.

4

Ex parte applications are for extraordinary relief.

Ex Parte Relief

5 For ex parte relief to be granted, “the evidence must
6 show that the moving party’s cause will be irreparably
7 prejudiced if the underlying motion is heard according
8 to regular noticed motion procedures.”

Mission Power

9 Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492
10 (C.D. Cal. 1995).

The moving party also must be

11 without fault in creating the crisis that requires ex
12 parte relief, or the moving party must establish
13 excusable neglect caused the crisis.

Id.

14

2.

15

Injunctive relief is also an “extraordinary

16 remedy.”

Preliminary Injunction

Winter v. Nat. Res. Def. Council Inc., 555

17 U.S. 7, 22 (2008).

“A plaintiff seeking a preliminary

18 injunction must establish that he is likely to succeed
19 on the merits, that he is likely to suffer irreparable
20 harm in the absence of preliminary relief, that the
21 balance of equities tips in his favor, and that an
22 injunction is in the public interest.”
23

Id. at 20.

The Ninth Circuit employs a sliding scale when

24 considering a plaintiff’s showing as to the likelihood
25 of success on the merits and the likelihood of
26 irreparable harm.

Alliance for the Wild Rockies v.

27 Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
28 this approach, the elements of the preliminary
4

“Under

1 injunction test are balanced, so that a stronger
2 showing of one element may offset a weaker showing of
3 another.”

Id.

Therefore, “serious questions going to

4 the merits and a balance of hardships that tips sharply
5 towards the plaintiff can support issuance of a
6 preliminary injunction, so long as the plaintiff also
7 shows that there is a likelihood of irreparable injury
8 and that the injunction is in the public interest.”
9 Id. at 1135.
10 B.

Analysis

11

1.

12
13

Defendant’s Request for Judicial Notice Is
GRANTED

Defendant requests the Court take judicial notice

14 of twenty-one public and historical records.

Def.’s

15 Req. for Judicial Notice (“RJN”), ECF No. 33-3.
16 Plaintiffs did not oppose these requests.

Because

17 public and historical records are properly subject to
18 judicial notice pursuant to Federal Rule of Evidence
19 201, the Court GRANTS Defendant’s Request for Judicial
20 Notice in its entirety.

See Kottle v. Nw. Kidney

21 Ctrs., 146 F.3d 1056, 1064 n.7 (9th Cir. 1998)(taking
22 judicial notice of State Department of Health records);
23 Metro Publ’g, Ltd. v. San Jose Mercury News, 987 F.2d
24 637, 641 n.3 (9th Cir. 1993)(taking judicial notice of
25 trademark registrations); Demos v. City of
26 Indianapolis, 302 F.3d 698, 706 (7th Cir. 2002)(taking
27 judicial notice of city ordinances).
28 ///
5

1

2.

Defendant’s Evidentiary Objections

2

a.

3
4

Defendant’s Objections to the Declaration
of Christopher Harshman Are OVERRULED

Defendant objects to the Declaration of R.

5 Christopher Harshman (“Harshman Declaration”) [6-1]
6 filed in support of Plaintiffs’ Application.
7 Specifically, Defendant contends that the Harshman
8 Declaration is improper expert opinion, irrelevant,
9 lacking in foundation, and not helpful to the trier of
10 fact.

Def.’s Objs. to Decl. of R. Christopher Harshman

11 (“Objs.”) 2:8-9, ECF No. 33-1.

Additionally, Defendant

12 claims that “given that [Harshman] is a counsel of
13 record in this case, any testimony he provides is
14 especially inappropriate.”

Id. at 5:2-3 (citing Cal.

15 R. Prof. Conduct 5-210).
16

The Harshman Declaration is relevant and helpful to

17 the trier of fact in that it provides information about
18 the effects of shortening the runway.
19 Harshman Decl. ¶¶ 3-4, 6.

See, e.g.,

Moreover, it does not lack

20 foundation because Harshman explains his assertions
21 come from “personal observations and calculations.”
22 Id. ¶ 3.

Further, this Court is not bound by the

23 California Rules of Professional Conduct, which are not
24 even evidentiary rules to begin with, so Harshman may
25 testify.
26

Finally, Harshman may properly provide expert

27 testimony as he is “a certificated pilot with an
28 instrument rating, and fl[ies] airplanes from and to
6

1 the [Airport] regularly.”

Id. ¶ 2; see 14 C.F.R.

2 § 61.65 (instrument rating requirements, including
3 hours of simulated and actual flight).

In fact, in the

4 past two years, at least ninety-nine times, Harshman
5 has departed from or landed on the runway to be
6 shortened by the Consent Decree.

Harshman Decl. ¶ 2.

7 This experience allows him to testify in this case.
8 See Fed. R. Evid. 702; Daubert v. Merrell Dow Pharms.,
9 Inc., 509 U.S. 579, 589 (1993).
10

As such, Defendant’s objections to the Harshman

11 Declaration are OVERRULED.
12

b.

Defendant’s Objections to Plaintiffs’

13

Evidence in Support of Reply Are OVERRULED

14

as Moot

15

Defendant also objects to the Declarations of

16 Plaintiff James Babinski [22], Plaintiff Kate Scott
17 [24], and Howard Israel [23], which Plaintiffs mention
18 in their Reply.

See Pls.’ Reply in Supp. of Appl.

19 (“Reply”) 8:22-26, ECF No. 50.

Because the Court does

20 not consider this evidence, the objections are
21 OVERRULED as moot.
22

3.

Plaintiffs’ Request for Reconsideration re

23

Order on Motion for Reconsideration Is DENIED

24

On October 13, 2017, the Court denied Plaintiffs’

25 Ex Parte Application for Reconsideration of Superior
26 Court Decisions Regarding Interpretation of the Brown
27 Act (“Order re Reconsideration”).

Order re Pls.’ Ex

28 Parte Appl. for Recons., ECF No. 43.
7

Plaintiffs were

1 not entitled to the extraordinary remedy of ex parte
2 relief since Plaintiffs failed to establish they were
3 not at fault for, or that only excusable neglect
4 caused, the urgency.

Id.

Plaintiffs immediately filed

5 their Request for Reconsideration re Order on Motion
6 for Reconsideration (“Request for Reconsideration”),
7 claiming the Court improperly relied on the ten-day
8 deadline for motions for reconsideration in California.
9 Pls.’ Req. for Recons. re Order on Mot. for Recons.
10 (“Req. for Recons.”) 1:17-27, ECF No. 45.

However,

11 Plaintiffs misconstrue the Order re Reconsideration.
12

The Court did not rule on the merits of Plaintiffs’

13 Request for Reconsideration, including whether
14 Plaintiffs could have successfully brought a motion for
15 reconsideration in the Superior Court.

Rather, the

16 Court found Plaintiffs did not meet the standard for ex
17 parte relief due to their delay in seeking relief.
18 California Civil Procedure Code section 1008(a) is one
19 example of how Plaintiffs could—and should—have sought
20 relief sooner.

Plaintiffs themselves suggest the

21 alternative avenue of seeking a writ from the
22 California Court of Appeal.
23

Req. for Recons. 1:26-27.

The problem with Plaintiffs’ original Ex Parte

24 Application for Reconsideration of Superior Court
25 Decisions Regarding Interpretation of the Brown Act is
26 that Plaintiffs did nothing until October 12, 2017—two
27 months after the Superior Court’s decision—despite
28 believing that construction was set to begin October 9,
8

1 2017.

At this late stage, Plaintiffs can only blame

2 themselves for the urgency necessitating ex parte
3 relief, as opposed to other relief, including on a
4 regularly noticed motion.

Thus, Plaintiffs’ Request

5 for Reconsideration [45] is DENIED.2
6

4.

7
8

Ex Parte Applications to File Amicus Briefs Are
GRANTED in part and DENIED in part

National Business Aviation Association and Aircraft

9 Owners and Pilots Association (“NBAA & AOPA”) and Santa
10 Monica Airport Association (“SMAA”) filed two Ex Parte
11 Applications to File Amicus Briefs [47, 48] in
12 conjunction with Plaintiffs’ Application.

Each

13 applicant maintains that ex parte relief is warranted
14 based on the expedited briefing schedule for the OSC re
15 Preliminary Injunction.

SMAA’s Ex Parte Appl. to File

16 Amicus Br. (“SMAA’s Appl.”) 5:19-23, ECF No. 47; NBAA &
17 AOPA’s Ex Parte Appl. to File Amicus Br. (“NBAA &
18 AOPA’s Appl.”) I:7-10, ECF No. 48.
19

These Applications cannot be heard on regular

20 motions because the preliminary injunction will be
21 decided before any motion can be heard.

Moreover,

22
2

The Order re Reconsideration does not preclude Plaintiffs

23 from seeking reconsideration on a regularly noticed motion. With
24 respect to Plaintiffs’ request for the Court to waive Local Rule
25
26
27
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7-3 requirements, Req. for Recons. 2:3-6, the Court reserves its
ruling until Defendant’s Motion for Relief from Local Rule 7-3
[42] is decided. Because the Superior Court’s dismissal of the
Brown Act claims remains intact, the Court does not reach the
merits of such claims. Consistent with the Superior Court’s
decision, this Court considers only the narrow issue of whether
Defendant violated California Public Utilities Code regarding
shortening the runway. See RJN, Ex. 20 at 488.
9

1 neither applicant is at fault for this urgency.

Thus,

2 the Court GRANTS NBAA & AOPA’s Ex Parte Application to
3 File Amicus Brief (“NBAA & AOPA’s Application”) [48],
4 GRANTS in part SMAA’s Ex Parte Application to File
5 Amicus Brief (“SMAA’s Application”) [47], and considers
6 the arguments therein.

See Mission Power Eng’g, 883 F.

7 Supp. at 492; see also Hoptowit v. Ray, 682 F.2d 1237,
8 1260 (9th Cir. 1982)(“The district court has broad
9 discretion to appoint amici curiae.”), abrogated on
10 other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
11

While the Court permits SMAA to appear as amicus

12 curiae, the Court declines to permit SMAA to file
13 additional briefing in connection with the Court’s OSC
14 re Preliminary Injunction, which would delay the
15 Court’s decision.

See SMAA’s Appl. 1:17-20, 5:19-20.

16 The expedited briefing schedule has been in place since
17 October 10, 2017.
18 Recons.

Order re Def.’s Ex Parte Appl. for

And SMAA clearly knew about this expedited

19 briefing schedule as it prompted SMAA’s Application on
20 October 13, 2017.

See SMAA’s Appl. 5:19-23.

SMAA

21 could have filed its brief in conjunction with SMAA’s
22 Application [47], as NBAA & AOPA did with theirs [48].
23 See NBAA & AOPA’s Appl. I:18-23 (including amicus
24 brief, which was “not intended to delay or interfere
25 with the promptness of the proceedings required in this
26 matter”).

Because SMAA cannot establish its failure to

27 file its Amicus Brief was not SMAA’s fault or the
28 product of excusable neglect, ex parte relief is
10

1 unwarranted as to providing SMAA additional time to
2 file its Amicus Brief.

Thus, SMAA’s Application [47]

3 is DENIED in part as to that request.

See Mission

4 Power Eng’g, 883 F. Supp. at 492.
5
6
7

5.

Plaintiffs’ Application for Preliminary
Injunction Is DENIED

Plaintiffs fail to satisfy the Winter test to

8 enjoin Defendant from shortening the Airport runway.
9
10

a.

Success on the Merits

Plaintiffs claim that Defendant violated California

11 Public Utilities Code by not holding public hearings
12 and securing permits before it “acquire[d] runway
13 protection zones” and “extend[ed] or realign[ed] an
14 existing runway” under the Consent Decree.
15 8:2; see also Reply 6:24-7:1.

Appl. 7:24-

Additionally, Plaintiffs

16 maintain a public hearing was required for “[t]he
17 nightly closing, and entire Airport closing for 10 days
18 in December.”
19
20

Appl. 8:7-8.

i.

Defendant Did Not Need a Permit

Under California Public Utilities Code section

21 21664.5, an amended airport permit is required for
22 every airport expansion, including “acquisition of
23 runway protection zones” and “realignment of an
24 existing runway.”

This statute is inapplicable to this

25 Action because Defendant is not expanding the Airport
26 under either of the foregoing definitions.
27

Based on evidence finally before the Court, it is

28 apparent Defendant did not acquire runway protection
11

1 zones.

See Decl. of Stelios Makrides (“Makrides

2 Decl.”) ¶ 9, ECF No. 37.

Rather, the Consent Decree

3 refers to runway safety areas, which are distinct from
4 runway protection zones.

RJN, Ex. 18 at 468; see also

5 Decl. of Susan Cline (“Cline Decl.”), Ex. G at 263, ECF
6 No. 34 (Figure A showing runway safety area and runway
7 protection zone).
8

Moreover, it is now clear that Defendant did not

9 need an airport permit or public hearing for
10 “realignment of an existing runway.”

The California

11 Department of Transportation, Division of Aeronautics,
12 (“DOT”) is the agency charged with reviewing and
13 approving airport permits under California Public
14 Utilities Code.

Def.’s Resp. to Order to Show Cause

15 (“Resp.”) 13:6-7, ECF No. 33.

The DOT informed

16 Defendant that the runway shortening at issue is not a
17 realignment or extension, so Defendant did not need a
18 permit.
19

Makrides Decl., Ex. 1.
ii. Defendant Did Not Need a Public

20
21

Hearing
As discussed in the Court’s Order granting the TRO,

22 California Public Utilities Code section 21605 did not
23 require Defendant to hold a public hearing because
24 under that statute, a public hearing “may,” not must,
25 be conducted.

Order re TRO 5 n.2; see also Resp.

26 14:20-28 (noting this statute does not apply to
27 temporary runway closings for construction).
28

Additionally, under California Public Utilities
12

1 Code section 21661.6, prior to acquisition of land or
2 an interest in land therein with plans to expand or
3 enlarge an existing airport, a political subdivision
4 must conduct a public hearing on the plan.

However,

5 this statute is inapplicable for two reasons.

First,

6 Defendant did not acquire any interest in land.

The

7 construction concerns the Airport land Defendant
8 already owned.

Makrides Decl. ¶ 5.

Second, Defendant

9 is not expanding or enlarging the Airport; instead,
10 Defendant is reducing the length of an existing runway
11 from 4,973 feet to 3,500 feet.
12 18 at 465, 468.

See id. ¶ 3; RJN, Ex.

Thus, Defendant did not need to hold a

13 public hearing under this statute.3
14
15

b.

Irreparable Harm

Plaintiffs contend a shortened runway “creates a

16 risk of physical harm for anyone piloting or being
17 transported in an airplane departing from the Airport,
18 including [Plaintiffs]” and “those living below the
19 departure path of the Airport.”

Appl. 5:20-22.

But

20 according to Defendant’s aviation safety expert, a
21 shortened runway will provide safety benefits, such as
22 by introducing 300-foot safety areas, preventing larger
23
24
25
26
27
28

3

Even assuming a public hearing was required, Defendant
held several public hearings concerning the runway shortening,
which would have cured the alleged defect. Resp. 13:22-14:13.
Plaintiffs’ argument—that such public meetings “regarding the
implementation” of the Consent Decree were insufficient—fails
because Defendant was not “acquiring rights in property . . . or
agreeing to realign the Airport’s existing runway.” See Reply
6:21-7:1.
13

1 and faster aircraft from using the Airport, and
2 reducing the overall frequency of take-offs and
3 landings.

Decl. of Tommy McFall (“McFall Decl.”)

4 ¶¶ 20-32, ECF No. 38.
5

Plaintiffs proffer evidence that “pilots who

6 experience engine or other mechanical failure [should]
7 not even attempt to turn back to land on a departure
8 runway below at least 400 [feet],” and pilots will now
9 depart at approximately 300 feet above ground level due
10 to the shortened runway.

Decl. of R. Christopher

11 Harshman (“Harshman Decl.”) ¶¶ 3, 6, ECF No. 6-1.
12 However, according to the FAA, this turn is the “worst
13 possible action” at the Airport regardless of runway
14 length, thus discounting Plaintiffs’ argument.

McFall

15 Decl. ¶¶ 13-19.
16

Plaintiffs are also incorrect in arguing a

17 shortened runway will negatively impact the
18 environment.

See Harshman Decl. ¶¶ 3-5.

Per

19 Resolution 11044, the runway shortening project is
20 categorically exempt under the California Environmental
21 Quality Act (“CEQA”), meaning the determinations of
22 environmental benefits are final.4
23 §§ 12-15.

Cline Decl., Ex. E

Further, through that Resolution, Defendant

24 determined that a shortened runway will reduce “jet
25 traffic, noise impacts and air emissions.”

Id. § 4.

26
27
28

4

Plaintiffs failed to challenge Defendant’s compliance with
CEQA within the applicable limitations period. Resp. 22:27-23:4
(citing Cal. Pub. Res. Code § 21167).
14

1 Studies also found that the centered option, which
2 Defendant will use to shorten the runway, will “reduce
3 the impact of aircraft exhaust and fumes on surrounding
4 residential neighborhoods.”
5

Id. § 8.

Nor is Defendant depriving Plaintiffs access to

6 real property.

Plaintiffs still will be able to use

7 the runway in the same condition as everyone else, and
8 Plaintiffs have not shown they have a protectable
9 property interest in the current length of the runway.
10 Resp. 23:10-13.

Plaintiffs’ cases cited for a contrary

11 proposition are distinguishable.

See Reply 9:4-16.

12 For instance, in Peterson v. District of Columbia
13 Lottery & Charitable Games Control Board, No. 94-1643
14 (JHG), 1994 WL 413357, at *4 (D.C. July 28, 1994), the
15 court found irreparable harm in the foreclosure of the
16 plaintiff’s home.

In contrast, here, Plaintiffs will

17 still have use of the runway and Airport.
18

In sum, Plaintiffs are not likely to suffer

19 irreparable harm if construction goes forward.
20
21

c.

Balance of Equities

The balance of equities tips in Defendant’s favor.

22 After years of litigation and debate over the Airport’s
23 future, Defendant entered into the Consent Decree and
24 began the process to shorten the runway almost
25 immediately thereafter.

Resp. 23:21-24:5.

Defendant

26 consulted the community in numerous public hearings and
27 the FAA in developing the plans to shorten the runway.
28 Cline Decl., Exs. E-G.

Furthermore, Defendant will
15

1 suffer significant financial penalties for delay.
2 Decl. of Rick Valte, P.E. ¶¶ 5-6, Ex. 1, ECF No. 36.
3

On the other hand, as discussed, Plaintiffs will

4 not suffer irreparable harm.

And Plaintiffs should

5 have involved themselves sooner in the planning process
6 to voice their concerns about the project, instead of
7 allowing Defendant to make this much progress before
8 trying to stop it.

See Opp’n 8:24-27 (Plaintiffs sent

9 demand letter eighty days after Defendant voted to
10 approve the Consent Decree).
11

Accordingly, the balance of equities does not tip

12 in Plaintiffs’ favor.
13
14

d.

Public Interest

When the district court issued the Consent Decree

15 at issue here, it found the Consent Decree was “fair,
16 reasonable and adequate to all concerned.”
17 6.

RJN, Ex. 5-

This finding is persuasive “based on the court’s

18 extensive oversight of the decree from the commencement
19 of the litigation.”

Labor/Cmty. Strategy Ctr. v. L.A.

20 Cty. Metro. Transp. Auth., 263 F.3d 1041, 1048 (9th
21 Cir. 2001)(citations omitted); see also United States
22 v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir.
23 1990)(“Because approval of a consent decree is
24 committed to the trial court’s informed discretion, the
25 court of appeals should be reluctant to disturb a
26 reasoned exercise of that discretion.” (internal
27 citations omitted)).
28

Likewise, the FAA deemed the Consent Decree “a fair
16

1 resolution for all concerned.”

RJN, Ex. 7; see S.E.C.

2 v. Randolph, 736 F.2d 525, 529 (9th Cir.
3 1984)(“[C]ourts should pay deference to the judgment of
4 the government agency which has negotiated and
5 submitted the proposed judgment.”).

Plaintiffs assert

6 the FAA “flip-flop[ped]” by departing from “decades of
7 FAA precedent.”

Reply 9:17-20, 10:4-10.

But in the

8 case upon which Plaintiffs rely, United States v. Santa
9 Monica, 330 F. App’x 124, 125-26 (9th Cir. 2009), the
10 Ninth Circuit upheld the injunction, preventing
11 Defendant’s prohibition of certain classes of aircraft
12 at the Airport, in part on “the FAA’s role in ensuring
13 aviation safety.”

Here, the FAA reviewed Defendant’s

14 plan to shorten the runway and made an educated
15 conclusion that the plan does not “appear to impede
16 reasonably continuous and stable operations” at the
17 Airport.
18

RJN, Ex. 21 at 490.

Notably, Santa Monica residents passed Measure LC,

19 placing governance of the Airport in Defendant’s hands.
20 Decl. of Denise Anderson-Warren ¶¶ 7-8, Exs. G, I, ECF
21 No. 35.

These residents rejected Measure D, which

22 would have mandated voter approval before change in the
23 use of Airport land to non-aviation purposes.
24 ¶¶ 7-8, Exs. H, I.

Id.

Therefore, the public, including

25 these voting residents, has an interest in this Court
26 upholding the Consent Decree, the one that their
27 representatives approved.
28

All in all, granting a preliminary injunction would
17

1 not further the public interest.
III. CONCLUSION

2
3

Accordingly, Plaintiffs’ Application [6] re

4 preliminary injunction is DENIED, and the TRO is
5 dissolved.

Additionally, Plaintiffs’ Request for

6 Reconsideration [45] is DENIED.

NBAA & AOPA’s

7 Application[48] is GRANTED in its entirety, and SMAA’s
8 Application [47] is GRANTED in part and DENIED in part,
9 such that the Court considers the arguments within the
10 Applications but does not delay ruling until SMAA files
11 additional briefing.
12 IT IS SO ORDERED.
13
14 DATED: October 16,2017

s/ RONALD S.W. LEW

15

HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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