United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2010 Decided January 21, 2011
No. 09-1233
CITY OF SANTA MONICA,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
On Petition for Review of an Order
of the Federal Aviation Administration
W. Eric Pilsk argued the cause for petitioner. With him
on the briefs were Thomas R. Devine and Ivan O. Campbell.
Dana Kaersvang, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Mark B. Stern and Alisa B. Klein, Attorneys, Paul M. Geier,
Assistant General Counsel for Litigation, U.S. Department of
Transportation, and Paul Samuel Smith, Senior Trial
Attorney.
Kathleen A. Yodice, Frank J. Costello, and Jol A.
Silversmith were on the brief for amici curiae Aircraft Owners
and Pilots Association, et al., in support of respondent.
2
Before: SENTELLE, Chief Judge, HENDERSON and
ROGERS, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
SENTELLE, Chief Judge: The City of Santa Monica
(“Petitioner”) petitions this court for review of the Federal
Aviation Administration’s (“FAA’s”) final agency decision
and order concluding that Petitioner’s ordinance banning
certain categories of aircraft from operating at the Santa
Monica Municipal Airport (“SMO”) violates Petitioner’s
contractual obligations to the federal government. Petitioner
claims that it was arbitrary and capricious for the FAA to
conclude that Petitioner was failing to make SMO available
for use on “fair and reasonable terms and without unjust
discrimination, to all types, kinds, and classes of aeronautical
use.” For the reasons set forth below, we reject Petitioner’s
contentions and deny the petition for review.
I.
SMO is a single-runway, regional public airport located
in, owned, and operated by Petitioner. SMO has no scheduled
passenger service, but serves general aviation aircraft and
functions as a reliever airport for the Los Angeles
International Airport. SMO serves four categories of general
aviation aircraft: Category A and B aircraft (those with
approach speeds of less than 121 knots at maximum landing
weight) and Category C and D aircraft (those with approach
speeds of 121 knots or greater at maximum landing weight).
Category C and D aircraft, which make up approximately
seven percent of all operations at SMO, are almost
exclusively business and executive jets.
3
In 1981, the Santa Monica City Council enacted a
resolution to close SMO, triggering a flurry of litigation
between Petitioner, the FAA, and several private parties. In
1984, Petitioner and the FAA resolved their dispute by
entering into a contract (the “1984 Agreement”), in which
they agreed to the following principles:
(i) The Airport is to be open and available to and for
public use as an airport on fair and reasonable terms,
without unjust discrimination, and without granting
any exclusive rights prohibited by law.
(ii) Pursuant to the Federal Aviation Act of 1958, as
amended, exclusive authority is vested in the FAA
for the regulation of all aspects of air safety, the
management and control of the safe and efficient use
of the navigable airspace, and movement of aircraft
through that airspace.
Santa Monica Airport Agreement at 2-3 (Jan. 31, 1984)
(hereinafter “1984 Agreement”). The parties also agreed that:
(i) The Airport serves an important role in the regional
and national system of air transportation and air
commerce. It has a vital and critical role in its
function as a general aviation reliever for the primary
airports in the area. As a reliever facility the Airport
attracts and provides services to general aviation
thereby diverting aircraft away from the air carrier
airports and other heavily used airports in the Greater
Los Angeles Area. Study and analysis have
confirmed this congestion and that other similar
general aviation reliever airports in the area are
already heavily used and do not have the ability to
4
accept or absorb the service provided by Santa
Monica Airport.
Id. at 3-4. The 1984 Agreement specified that it would
remain effective until July 1, 2015, and that Petitioner would
operate and maintain SMO “as a viable functioning facility
without any derogation of its role as a general aviation
reliever” until that date. Id. at 9.
Between 1985 and 2003, Petitioner applied for and
received $10.2 million in federal funds through grant
agreements between Petitioner and the FAA under the FAA’s
Airport Improvement Program. The 1984 Agreement was
incorporated into those grant agreements, which further bound
Petitioner to certain grant assurances. Of particular relevance
to this case is grant assurance 22, which included the
following two restrictions:
(a) [The airport sponsor] will make its airport available
as an airport for public use on fair and reasonable
terms and without unjust discrimination, to all types,
kinds, and classes of aeronautical uses.
***
(i) The sponsor may prohibit or limit any given type,
kind, or class of aeronautical use of the airport if
such action is necessary for the safe operation of the
airport or necessary to serve the civil aviation needs
of the public.
Grant Agreement, Santa Monica Airport at pt. V, pp. 7-8
(June 27, 1994) (hereinafter “Grant Agreement”). Under the
terms of the Airport Improvement Program grants, the
agreements between Petitioner and the FAA remain in effect
5
throughout the useful life of the facilities developed or
equipment purchased with the grant funds, but not to exceed
twenty years from the date of the acceptance of the funds. Id.
at pt. V, p. 1. Although the parties dispute whether the grant
assurances expire in 2015 or 2023, the parties agree that they
currently remain in effect.
In July 2002, the Santa Monica Airport Commission
voted to recommend to Petitioner a revised Aircraft
Conformance Program that would reserve SMO for the
exclusive use of Category A and B aircraft. This action
provoked a long series of meetings, discussions and
negotiations between Petitioner and the FAA that continued
until 2008. On March 25, 2008, Petitioner adopted an
ordinance adding section 10.04.06.220 to the City of Santa
Monica Municipal Code (“Ordinance”), which prohibits any
person from operating a Category C or D aircraft from
landing or departing SMO except in emergencies. See Santa
Monica, Cal., Municipal Code § 10.04.06.220 (2008).
Believing that the Ordinance violated Petitioner’s
obligations under the grant agreements to make SMO
available “for public use on fair and reasonable terms and
without unjust discrimination, to all types, kinds, and classes
of aeronautical use,” Grant Agreement at pt. V, p. 7, the FAA
took action to prevent its enforcement. On April 23, 2008, the
FAA issued a cease and desist order requiring Petitioner to
suspend enforcement of the Ordinance until the FAA issued a
final agency decision regarding the Ordinance’s legality. The
FAA also filed motions with the U.S. District Court for the
Central District of California requesting a temporary
restraining order and a preliminary injunction to prevent
Petitioner from enforcing the Ordinance. The district court
granted both motions.
6
After the district court issued the preliminary injunction,
Petitioner and the FAA proceeded through the agency’s
administrative review process. On May 27, 2008, the FAA
issued a director’s determination in which it concluded, inter
alia, that the Ordinance was inconsistent with Petitioner’s
contractual obligations under the grant agreements. In the
Matter of Compliance with Federal Obligations by the City of
Santa Monica, California, Director’s Determination at 66,
FAA Docket No. 16-02-08 (May 27, 2008). After the FAA
issued the director’s determination, Petitioner requested a
hearing, which was held before an FAA Hearing Officer in
March of 2009. On May 14, 2009, the Hearing Officer issued
an initial decision in which he also concluded that that the
Ordinance violated grant assurance 22. In the Matter of
Compliance with Federal Obligations by the City of Santa
Monica, California, Initial Decision of the Hearing Officer at
113, FAA Docket No. 16-02-08 (May 14, 2009). After both
parties appealed portions of the Hearing Officer’s initial
decision, the FAA issued a final agency decision and order on
July 8, 2009, which concluded that federal law preempts the
Ordinance and that the Ordinance violates grant assurance 22.
In the Matter of the City of Santa Monica, Final Agency
Decision and Order at 56, FAA Order No. 2009-1 (July 8,
2009), modified by Order Granting Motion for Clarification of
Final Agency Decision, FAA Order No. 2009-2 (Sept. 3,
2009) (hereinafter “Final Agency Decision”). Pursuant to 49
U.S.C. § 46110(a), Petitioner seeks review of the FAA’s final
decision and order.
II.
In its final agency decision, the FAA concluded that
Petitioner’s Ordinance was invalid for two reasons: because
Congress’s grant of exclusive authority to the FAA to regulate
aviation safety preempts the Ordinance and because the
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Ordinance violates Petitioner’s contractual obligations under
grant assurance 22. Final Agency Decision at 3-4.
Preemption—the basis for the FAA’s first conclusion—is a
constitutional doctrine, derived from the supremacy clause in
Article VI of the Constitution. Gade v. Nat’l Solid Wastes
Mgmt. Ass’n, 505 U.S. 88, 108 (1992). “Before reaching a
constitutional question, a federal court should . . . consider
whether there is a nonconstitutional ground for deciding the
case, and if there is, dispose of the case on that ground.”
Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir. 2000). For this
reason, judicial restraint requires us to begin our analysis by
examining the FAA’s second conclusion regarding
Petitioner’s contractual obligations.
A.
Petitioner argues that the FAA acted arbitrarily and
capriciously when it concluded that the Ordinance violates
grant assurance 22 because the FAA ignored evidence in the
record, acted inconsistently with the its own policies and prior
decisions, and failed to state a rational connection between the
evidence and its conclusion. For the reasons set forth below,
we disagree.
This court reviews the “decisions of federal agencies,
including the FAA, under the standards set forth by the
Administrative Procedure Act.” D&F Afonso Realty Trust v.
Garvey, 216 F.3d 1191, 1194 (D.C. Cir. 2000). The FAA’s
factual determinations are conclusive if they are supported by
substantial evidence. 49 U.S.C. § 46110(c). “We may
overturn nonfactual aspects of the FAA’s decision only if they
are ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’” Boca Airport, Inc. v. F.A.A.,
389 F.3d 185, 189 (D.C. Cir. 2004) (quoting 5 U.S.C.
§ 706(2)(A)). “The scope of review under the ‘arbitrary and
8
capricious’ standard is narrow and a court is not to substitute
its judgment for that of the agency. Nevertheless, the agency
must examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection
between the facts found and the choice made.” Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto., 463
U.S. 29, 43 (1983) (quotation omitted).
There is no dispute that when Petitioner accepted federal
funds under the FAA’s Airport Improvement Program,
Petitioner agreed to the terms of the grant assurances
incorporated into the grant agreements. Nor is there any
dispute that grant assurance 22 currently requires Petitioner to
make SMO “available as an airport for public use on fair and
reasonable terms and without unjust discrimination, to all
types, kinds, and classes of aeronautical uses” with the
exception that Petitioner may prohibit certain types of aircraft
if “such action is necessary for the safe operation of the
airport.” Grant Assurance at pt. V, pp. 7-8. The parties
disagree, however, on whether the Ordinance is unjustly
discriminatory and whether it is necessary for safety.
In its final decision, the FAA concluded that “the
discriminatory restriction against operators of Categories C
and D aircraft is unjust and not necessary for the safe
operation of [SMO].” Final Agency Decision at 4. The FAA
based this conclusion on four intermediate findings: (1)
Category C and D aircraft can operate safely at SMO despite
the lack of runway safety areas; (2) Category C and D aircraft
are less likely to be involved in an overrun than Category A
and B aircraft; (3) in the unlikely event of an overrun by a
Category C or D aircraft, it is very unlikely that the aircraft
would reach the neighborhoods beyond the SMO runway; and
(4) the risks associated with overruns and undershoots at
SMO by Category C and D aircraft can be mitigated without
9
implementing a total ban and without reducing the utility of
the runway. Id. at 35-46. Under the applicable standard of
review, if each of these conclusions was rationally based on
facts for which there was substantial evidence in the record,
and if together they satisfactorily explain the agency’s final
determination, then the petition for review must be denied.
See Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43 (“[T]he
agency must examine the relevant data and articulate a
satisfactory explanation for its action including a rational
connection between the facts found and the choice made.”);
49 U.S.C. § 46110(c) (“Findings of fact by the Secretary,
Under Secretary, or Administrator, if supported by substantial
evidence, are conclusive.”). First, we consider whether the
FAA’s four conclusions were rationally based on substantial
evidence in the record.
1.
The FAA’s first conclusion was a direct rebuttal to
Petitioner’s primary justification for banning Category C and
D aircraft from operating at SMO. Although Petitioner
argued that Category C and D aircraft could not safely operate
at SMO because the airport lacks “runway safety areas,” the
FAA disagreed. A runway safety area is a “defined surface
surrounding the runway prepared or suitable for reducing the
risk of damage to airplanes in the event of an undershoot,
overshoot, or excursion from the runway.” FAA Advisory
Circular No. 150/5300-13 at 3 (Sept. 29, 1989). Current FAA
airport design standards call for runway safety areas to extend
300 feet beyond each end of a runway serving Category A and
B, Type II aircraft and 1,000 feet beyond each end of a
runway serving Category C and D, Type II aircraft. Id. at 25,
26-1. In its current configuration, SMO has no runway safety
areas extending beyond either end of its single runway and
has scant room to add them. The airport, which sits atop a
10
plateau, is surrounded by residential neighborhoods.
Immediately after the SMO runway ends in either direction, a
steep incline leads down to public roads and private homes.
Petitioner argued that the lack of runway safety areas makes
the likelihood of a runway overshoot by a Category C or D
aircraft, which have higher landing speeds than Category A
and B aircraft, unreasonably high at SMO.
The FAA disagreed, concluding that Category C and D
aircraft can operate safely at SMO despite the absence of
runway safety areas. The FAA noted that for every landing at
SMO, the pilot of the aircraft is required to determine whether
his aircraft is capable of landing on SMO’s runway, and that
the presence or absence of a runway safety area does not
factor into the pilot’s calculus. Final Agency Decision at 35-
36. The FAA also noted that almost half of the Category C
and D operations are subject to additional safety precautions
either because they are part of fractional ownership programs
or because the aircraft are governed by FAA Rule 135, and
that other factors—such as improved stopping performance,
better trained and more experienced pilots, and more stringent
aircraft certification standards—make Category C and D
aircraft safer than Category A and B aircraft. Id. at 35 & n.53.
The FAA also recognized that the 1000-foot runway safety
area requirement applies only to new runway construction and
that older airports are only required to comply “to the extent
possible” considering factors such as feasibility, cost, and
impact on operations. Id. at 37. The FAA further noted that
the runway safety area standards are not operational
requirements and that hundreds of airports across the country
operate safely without standard runway safety areas, including
major airports such as Los Angeles International, Boston
Logan, and Midway Chicago. Id. Based on these facts, the
FAA concluded that Category C and D aircraft could operate
safely at SMO in its current configuration.
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2.
Next, the FAA considered whether Category C and D
aircraft are more or less likely to be involved in an overrun
than Category A and B aircraft. The FAA examined evidence
pertaining to the frequency of overruns and undershoots and
made the following observations. First, that in general,
Category C and D aircraft are involved in fewer overruns than
Category A and B aircraft. Id. at 38. And second, that
specifically at SMO, Category A or B aircraft were involved
in seven overruns and one undershoot between 1981 and
2008, but Category C and D aircraft were not involved in any
overruns or undershoots. Id. The FAA also noted that an
FAA air safety investigator testified that his office receives
reports of Category A and B aircraft overruns daily, but that
Category C and D overruns are “incredibly rare.” Id. at 38-
39.
Looking at more general safety information, the FAA
noted that National Transportation Safety Board data show
that jets (Category C or D aircraft) have an accident rate 8
times lower than single-engine piston aircraft (mostly
Category A or B aircraft), 5.75 times lower than twin-engine
piston aircraft (mostly Category A or B aircraft), and 4.6
times lower than twin-engine turboprops (mostly Category A
or B aircraft). Id. at 39. The FAA also credited the testimony
of two FAA officials regarding the relative safety of Category
C and D aircraft. The manager of the FAA’s Part 135
(commuter and on-demand aircraft operations) Air Carrier
Operations Branch testified that Category C and D aircraft
have a lower probability of suffering the type of defect that
would cause a runway excursion or overrun. Id. at 40. An
FAA air safety investigator testified that Category C and D
aircraft are safer than Category A and B aircraft because they
have more power, are more technically sophisticated, and
12
have more highly trained pilots. Id. at 38 n.55. Based on this
evidence, the FAA concluded that Category C and D aircraft
are less likely to be involved in an overrun or an undershoot
than Category A and B aircraft. Id. at 40.
3.
Although the FAA concluded that an overrun by a
Category C or D aircraft would be rare, it acknowledged that
an overrun was still possible. To address Petitioner’s
concerns about the potential damage to private homes located
beyond the ends of the SMO runway, the FAA considered
how far beyond the runway a Category C or D aircraft could
be expected to travel in the event of an overrun. The FAA
credited the testimony of Rick Marinelli, the manager of the
FAA Airport Engineering Division and a licensed engineer,
who stated that an aircraft overrunning the end of SMO’s
runway would not reach the homes located beyond the
runway. Id. at 40-41. Marinelli came to this conclusion by
modeling the trajectory of an aircraft overrunning the SMO
runway at seventy knots—a velocity equal to or above those
at which ninety percent of overruns occur. Id. Marinelli
calculated that the overrunning aircraft would run off the edge
of the plateau, travel through the air down the steep incline,
and impact the ground on the SMO property, about twenty
feet short of the airport’s property line. Id. at 41. In his
calculation, Marinelli modeled the overrunning aircraft’s
trajectory as a ballistic arc; an action that necessarily includes
an assumption that in a seventy-knot overrun situation the
aircraft’s wings would not be generating any lift. Id.
Petitioner attacked Marinelli’s testimony as not supported
by substantial evidence and questioned several aspects of his
calculations. Specifically, Petitioner criticized Marinelli’s use
of a ballistic trajectory, his assumption that an overshooting
13
aircraft would exit the runway at seventy knots when ten
percent of aircraft overruns occur at higher speeds, and the
FAA’s failure to enter Marinelli’s calculations into the record.
To rebut Marinelli’s testimony, Petitioner offered the
testimony of two witnesses, James Hall, a former chairman of
the National Transportation Safety Board, and Robert
Trimborn, the acting SMO airport director. Id. at 41-42. Hall
testified that the Ordinance was reasonable and Trimborn
testified that it was possible for an overrunning aircraft to
reach the surrounding neighborhoods. Id.
The FAA accorded little weight to either Hall or to
Trimborn’s testimony. The FAA noted that Hall was not even
aware of Marinelli’s calculations and that he had performed
no engineering analysis of his own. Id. at 41. Similarly, the
FAA observed that Trimborn’s testimony was not based upon
any engineering studies or scientific calculations. Id. at 41-
42. Finding Hall’s and Trimborn’s testimony to be vague, not
specific to SMO, and not grounded upon scientific or
engineering analysis, the FAA concluded that the
preponderance of the substantial evidence supported
Marinelli’s conclusion that an overrunning aircraft was
unlikely to reach the private homes beyond the ends of the
SMO runways. Id. at 40, 42-44.
4.
Finally, the FAA considered whether there were viable
alternatives to banning Category C and D aircraft that would
address Petitioner’s safety concerns. The FAA focused
primarily on the installation of an Engineered Materials
Arresting System (“EMAS”) at SMO. An EMAS is “a bed of
jet-blast resistant cellular cement blocks placed at the end of a
runway to decelerate an overrunning aircraft in an
emergency . . . that will reliably and predictably crush under
14
the weight of an aircraft.” Id. at 13. Citing FAA Advisory
Circular 150/5220-22A, Engineered Materials Arresting
Systems, the FAA noted that “[i]nstallation of an EMAS is an
option for enhancing safety when [runway safety area] design
standards cannot be met without causing an operational
impact at the airport.” Final Agency Decision at 13. The
FAA also noted that “‘[a] standard EMAS provides a level of
safety that is generally equivalent to a full [runway safety
area] built to the dimensional standards in [FAA Advisory
Circular] 150/5300-13, Airport Design.’” Id. (quoting FAA
Advisory Circular 150/5220-22A at ¶ 4).
The FAA Office of Air Safety and Standards has twice
proposed solutions to Petitioner that would have used EMAS
to stop or substantially slow aircraft that overrun the SMO
runway. Id. at 45-46. The first solution would have added a
70-knot EMAS to only one end of the runway, the direction
used in ninety-five percent of SMO takeoffs and landings.
That system would have been capable of stopping a 57,000
pound Gulfstream-IV exiting the runway at 70 knots. Id. The
second solution would have added shorter 40-knot EMAS
systems to both ends of the SMO runway. That system would
have been capable of stopping a Gulfstream-IV exiting the
runway at 40 knots. Id. at 45-46. In addition to adding
EMAS, the FAA also noted that Petitioner always retained the
option of acquiring the land beyond the SMO runways. Id. at
46. Based on the availability of these alternatives, the FAA
concluded that the risks associated with overruns and
undershoots at SMO by Category C and D aircraft could be
mitigated without implementing a total ban and without
reducing the utility of the runway. Id. at 45.
***
15
As the foregoing review of the FAA’s intermediate
conclusions demonstrates, each conclusion was rationally
based on substantial evidence in the agency record. Although
Petitioner disputes some of the FAA’s conclusions, there is no
evidence that the FAA based its conclusions on irrelevant
factors or that the FAA made a clear error in judgment. See
Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. The FAA
examined the relevant testimony and data and articulated an
explanation that established a rational connection between the
facts found and the FAA’s decision. Certainly, none of the
FAA’s conclusions run counter to the evidence before the
agency or are “so implausible that [they] could not be
ascribed to a difference in view or the product of agency
expertise.” Id.
Having concluded that the FAA’s intermediate
conclusions were rationally based on substantial evidence in
the agency record, the only question that remains is whether
those conclusions support the FAA’s ultimate conclusion that
the Ordinance violates grant assurance 22. As discussed
above, grant assurance 22 requires Petitioner to make SMO
“available as an airport for public use on fair and reasonable
terms and without unjust discrimination, to all types, kinds,
and classes of aeronautical uses” with the exception that
Petitioner may prohibit certain types of aircraft if “such action
is necessary for the safe operation of the airport.” Grant
Agreement at pt. V, pp. 7-8. The FAA concluded that the
Ordinance was both unjustly discriminatory and unnecessary
for safety. Final Agency Decision at 4, 34-35, 46.
The Ordinance, which bans all Category C and D aircraft
from SMO but permits Category A and B aircraft to continue
to operate, is facially discriminatory. Petitioner argues that
the FAA failed to consider whether the Ordinance is unjustly
discriminatory, but this is not the case. The FAA relied on its
16
first three intermediate conclusions to determine that the
Ordinance was unjust. After finding that Category C and D
aircraft could operate safely at SMO despite the lack of
runway safety areas, the FAA concluded that the Ordinance
was unjust because it was unreasonably justified by reference
to the FAA’s runway-safety-area airport design standards. Id.
at 33-34. Likewise, after determining that Category A and B
aircraft have a greater risk of overrunning or undershooting a
runway than Category C or D aircraft, the FAA stated that this
contributed to its conclusion that the Ordinance is unjust. Id.
at 40. Finally, after determining that the possibility of a
Category C or D aircraft crashing into the surrounding
neighborhoods due to an overshoot was extremely small and
after noting that the same concern exists for Category A and B
aircraft, the FAA concluded that Petitioner’s concern about
this type of accident could not reasonably justify the
discriminatory ban. Id. at 44. These statements articulate a
rational explanation for the FAA’s conclusion that the
Ordinance is unjustly discriminatory that is logically derived
from findings supported by substantial evidence in the
administrative record. The FAA did not, therefore, act
arbitrarily or capriciously when it concluded that the
Ordinance was contrary to Petitioner’s obligation under grant
assurance 22 to make SMO “available as an airport for public
use on fair and reasonable terms and without unjust
discrimination, to all types, kinds, and classes of aeronautical
uses.” Grant Agreement at pt. V, p. 7.
The last consideration is whether, despite being unjustly
discriminatory, the Ordinance is still consistent with grant
assurance 22 because a ban of Category C and D aircraft is
“necessary for the safe operation of the airport.” Id. at pt. V,
p. 8. Petitioner and the FAA disagree regarding the proper
definition of “necessary,” a term which is not defined in the
grant assurance. Petitioner argues that necessary, as used in
17
grant assurance 22, means that any aircraft ban must be
“reasonable and justified.” Final Brief of Petitioner at 56,
City of Santa Monica v. F.A.A., No. 09-1233 (D.C. Cir. Aug.
31, 2010). Even under this definition of “necessary,”
Petitioner might not prevail, considering that the FAA
concluded that the Category C and D ban was unjust and not
sufficiently justified. However, whether Petitioner could have
prevailed under that definition is not relevant, because the
FAA applied a different analysis.
Referring to the possibility of installing EMAS at SMO,
the FAA concluded that the “[r]isk associated with overruns
and undershoots at SMO by airplanes in Categories C and D
can be mitigated—although not eliminated
completely—without implementing a total ban and without
affecting the utility of the runway.” Final Agency Decision at
45. Without expressly defining the term, the FAA’s final
decision implies that the Ordinance is not necessary because
whatever safety benefits the Ordinance might provide can be
obtained through alternative measures that will have no
impact on the utility of the airport. The FAA’s preference for
a risk mitigation strategy that has no impact on utility over
one that reduces SMO’s utility is both logically sound and
consistent with the agreements between Petitioner and the
FAA. The 1984 Agreement requires Petitioner to operate and
maintain SMO “as a viable functioning facility without any
derogation of its role as a general aviation reliever.” 1984
Agreement at 9. In the same agreement, Petitioner and the
FAA also agreed that SMO plays “a vital and critical role in
its function as a general aviation reliever” and that “other
similar general aviation airports in the area are already
heavily used and do not have the ability to accept or absorb
the service provided by [SMO].” Id. at 3-4.
18
Applying the Administrative Procedure Act’s highly
deferential standard of review, see Int'l Fabricare Inst. v. U.S.
E.P.A., 972 F.2d 384, 389 (D.C. Cir. 1992) (holding that
under the Administrative Procedure Act this court presumes
agency action to be valid), we conclude that the FAA did not
act arbitrarily or capriciously when it concluded that “the
discriminatory restriction against operators of Categories C
and D aircraft is unjust and not necessary for the safe
operation of [SMO].” Final Agency Decision at 4. The FAA
offered reasoned explanations both for its conclusion that the
Ordinance is contrary to grant assurance 22’s requirement that
Petitioner make SMO available “without unjust
discrimination, to all types, kinds, and classes of aeronautical
uses” and also for its conclusion that the Ordinance was not
“necessary for the safe operation of the airport.” Although the
FAA’s final agency decision did not provide an explicit
explanation for why the Ordinance was not necessary for
safety, the decision as a whole provides the explanation, and
we may “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.” Bowman
Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974). We agree with the FAA that the Ordinance is
inconsistent with Petitioner’s obligations under grant
assurance 22 and therefore violates the 1994 Grant
Agreement.
B.
Having held that the FAA did not act arbitrarily or
capriciously when it concluded that the Ordinance was
inconsistent with Petitioner’s contractual obligations under
grant assurance 22, we decline to consider the preemption
issue. “It is the settled practice of the federal courts not to
decide constitutional questions where a case may be decided
19
on other grounds.” Am. Postal Workers Union, AFL-CIO v.
U.S. Postal Serv., 764 F.2d 858, 861-62 (D.C. Cir. 1985).
III.
The FAA’s final agency decision, which concluded that
Petitioner’s ban of Category C and D aircraft from SMO was
inconsistent with Petitioner’s contractual obligations to the
federal government to make SMO available for use on “fair
and reasonable terms and without unjust discrimination, to all
types, kinds, and classes of aeronautical uses,” was not
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law. The petition for review is denied.