litigation

On March 18, 2002 El Toro airport advocates filed a lawsuit to try to overturn Measure W, saying that state and federal law give county supervisors - not the voters - the right to decide how to use the shuttered base. The lawsuit was filed by Airport Working Group; its president, Tom Naughton; Citizens for Jobs and the Economy; Garden Grove; and [OCRAA], a coalition of pro-airport cities.

The suit is against the County. Motions to intervene by Irvine, ETRPA and the proponents' group were granted on April
25, by Commissioner Jane Myers.

The plaintiff's requested a change of venue to outside Orange County. On April 29, Judge Frederick Horn, the Orange County Presiding Judge passed the decision to the Judicial Council in San Francisco. That body sent the case to Los Angeles County and Judge Bascue, the Presiding Judge of the LA Court. It was then assigned to Judge Philip H. Hickok, in the Southeast District of Los Angeles County (Norwalk).

A motion by Frederic Woocher, lead attorney for the OCRAA and Newport Beach group, to shortcut the legal process was heard on September 18, 2002. Judge Hickok rejected the motion by the pro-airport groups, finding that the voters have the right to change the county general plan by initiative and that the measure was not deceptive regarding open space use. For more details see the website news reports of September 18-19, 2002.

The case number is Orange County number 02CC04400.

It was settled as part of the "global settlement" announced on February 26, 2004. The settlement is combined with a discharge of the substantial amounts owed by the Newport Beach plaintiffs as a result of their unsuccessful suit against the Measure W title and summary.

On June 19, 2002 airport supporters filed suit in the Federal District Court in the District of Columbia challenging the validity of the Department of the Navy's Environmental Impact Study for disposal of the El Toro property. The plaintiffs are the Airport Working Group, Orange County Regional Airport Authority (OCRAA), and the Bruce Nestande-led Citizens for Jobs and the Economy.

The defendants are the Department of Defense, the Department of the Navy, and their senior officials.

The case is Airport Working Group of Orange County, Inc. et al. v. Department of Defense et al., No. SA CV-02-1100 GLT/MLGX. It was transferred from the federal court in Washington and now is before U.S. District Judge Gary Taylor in Santa Ana.

The parties and court reached agreement on a settlement in November 2003. The terms are posted here.

In December 2004, the Airport Working Group raised objections to Department of Defense information regarding the status of the cleanup effort. They requested a further hearing on the matter. The Department of Defense wrote to the court on December 7 that "The defendants must respectfully but forcefully oppose this attempt by the plaintiffs [AWG] to reopen this litigation." The court agreed and Judge Taylor wrote on January 18, 2005 that "A further hearing on these questions as requested by the Airport Working Group will not be necessary."

Citizens for Jobs and the Economy, a group originally funded by airport promoter George Argyros, and its President, ex-Supervisor Bruce Nestande, sued the County of Orange. The lawsuit objected to the ballot Title and Summary - prepared by County Counsel - for the OC Central Park and Nature Preserve Initiative petitions.

Supervisors Smith, Silva and Coad refused to join the appeal, rejecting the recommendations of the County Counsel and CEO. County Counsel said that the ballot title prepared by his office is "true, accurate and impartial in compliance with the Elections code."

On July 31, 2001, Judge James Gray ruled that the County's title was invalid, after County lawyers mounted an unsuccessful defense of their work. The judge found no fault with the initiative itself.

The initiative proponents filed an appeal with the 4th District Court of Appeals in Santa Ana. Click for the full text of the appeal. The case (Number D 038503) was promptly moved to the Fourth Appellate District, Division 1 Court of Appeals in San Diego.

On August 24, the Court granted the stay of Judge Gray's ruling that initiative proponents had requested. This allowed the approximately 175,000 signatures gathered to be counted by the Registrar. On November 21, 2001 the Court of Appeals overturned Judge Gray's ruling, found in favor of the initiative proponents, and awarded them costs. Click for the Court decision.

Nestande and Citizens for Jobs and the Economy filed a petition for review which was rejected by the Supreme Court as untimely. On December 12, they filed a petition for writ of mandate and a request for a stay of the decision of the Court of Appeal. On December 19, the Supreme Court rejected the Nestande requests. The matter is closed.

Orange County Superior Court Judge William M. Monroe awarded the initiative proponents their court costs and on June 20, 2002 he ruled that they are the prevailing parties and are entitled to recover attorney's fees from Nestande and CJ&E. On September 9, 2002 the court ruled again.

The Court awarded attorneys' fees against Petitioners Nestande and CJ&E in the amount of $179,987.50. The Court also ruled that proponents were entitled to a multiplier of 1.5 and recovery of extraordinary and expert costs totaling $6,626.27. The total attorneys' fees awarded was $276,607.52.

County and OCRAA:
OC Superior Court Case No. 01CC06483: The County of Orange, by a 3-2 vote, with Supervisors Smith, Silva and Coad in favor, granted $5 million of public funds to the Orange County Regional Airport Authority, OCRAA and $3 million for its own pro-airport campaign.

On December 7 the Superior Court in San Diego - case number GIC776645 - granted ETRPA's request for a preliminary injunction, baring county spending on the "Just the Facts" PR campaign. The Court issued a telephonic ruling that, "The Court after considering the evidence and balancing the Parties' equities hereby grants Petitioner/Plaintiff Paul D. Eckles' Motion for the Issuance of a Preliminary Injunction enjoining the Orange County Defendants from expending public funds in connection with opposing the 'Orange County Central Park and Nature Preserve Initiative'".

On December 21, the Court finalized its dramatic ruling on the injunction, saying "The Orange County Defendants shall neither promote nor discourage the use of El Toro for commercial aviation purposes and shall provide open and even handed information devoting equal time and space to all issues both pro and con pertaining to the proposed airport at El Toro. Pending further Order of this Court, the Orange County Defendants are enjoined from expending any further funds until the issue raised in oral argument concerning work performed pre December 7, 2001 has been fully adjudicated."

The County then abandoned its "Just the Facts " public information program, ETRPA closed its website until well after the election, and public spending ceased. The various parties have agreed to stay the several lawsuits related to this issue.

On July 27, 2001, ETRPA, and Peter Zeughauser, a Newport Beach resident, filed suit against the City of Newport Beach and the AWG for violation of California law. The California Supreme Court ruled, in Stanson vs. Mott, that public funds may not be used to advocate for or against an initiative. Click here for the filing.

The matter was settled in an agreement between Newport Beach, AWG and ETRPA announced on January 24, and terminated further city spending on the March 5, 2002 election.

OC Superior Court Case No. 01CC14915: ETRPA CHALLENGES ENVIRONMENTAL REPORT FOR PROPOSED EL TORO AIRPORT Inevitable flights over densely populated cities not disclosed in EIR

On November 20, 2001 the El Toro Reuse Planning Authority (ETRPA) filed suit in Orange County Superior Court against the County of Orange and the Board of Supervisors seeking to invalidate the Environmental Impact Report (EIR) for the proposed El Toro airport. Click here for the filing document. Chief among ETRPA's concerns is the failure of the EIR to disclose or analyze the environmental impact of take offs and departures to the west over Irvine, Newport Coast, Tustin, Orange and Santa Ana - some of the most densely populated communities in California.

According to ETRPA's attorney Richard C. Jacobs, "The suit contains three main causes of action: First, the EIR is woefully inadequate and does not fully disclose the significant environmental impacts. Second, the county has turned the review process upside down, and used the EIR to justify a predetermined outcome, rather than as a tool in the deliberative process to determine what the use ought to be. Finally the county failed to submit the airport proposal to the Airport Land Use Commission before taking action, therefore the county's certification is illegal."

ETRPA 's petition for a Writ of Mandate asks that the EIR be declared invalid, and cites violations to the California Environmental Quality Act (CEQA) due to the report's numerous deficiencies in its analysis of the Airport System Master Plan. "The County has made a mockery of the environmental review process," said ETRPA Chairman Allan Songstad. "The Supervisors decided to pick and choose what information to share with the public. They systematically ignored any data that cast a negative light on the airport plan. The result is an EIR that defies common sense."

California law requires that the full environmental effects of a project be studied before approval is considered. However, by launching pro-airport public relations campaign months before the final environmental study was released, ETRPA believes the County violated CEQA.

"An environmental impact report is intended to be just that - an examination of environmental impacts. It is meant to take an objective look into whether or not a project is a good idea based on the findings," ETRPA Executive Director Paul D. Eckles said. "Rather than conduct the EIR under its intended purpose, the County decided to build an airport, then built the EIR around its decision as a means of justification. That is a clear violation of the spirit and text of the law."

The lawsuit states that EIR 573, approved by Board of Supervisors on October 23, contains serious flaws, such as excluding data and ignoring questions that emerged from public input. ETRPA also challenges the EIR for underreporting and misrepresenting the negative environmental effects an airport at El Toro would have on the surrounding communities.

Inaccurate Analysis of Flight Paths
The County has stated that pilots flying out of El Toro will never use the western runway 25 for takeoffs, which would send planes directly over thousands of homes in Irvine, Tustin, Orange, Santa Ana and Newport Coast. However, pilots may request the use of any runway for safety reasons. Pilots' organizations, airlines, air traffic controllers and the FAA have all stated that the use of Runway 25 is inevitable. The EIR fails to acknowledge this possibility and did not include an examination of the environmental impacts resulting from the use of Runway 25. Similarly, the EIR does not examine arrivals on Runway 8 (the eastern runway opposite runway 25), which would bring planes at a low altitude across central Orange County.

Traffic, Noise and Pollution
The County further violated CEQA in its traffic analysis. The County is required to evaluate traffic impacts based on existing infrastructure. Instead, it relies on unfunded and unapproved future road improvements. The EIR also fails to include adequate noise, air pollution and toxic air contaminant analyses -- all violations of CEQA. The air pollution analysis in EIR 573 also differs from the analysis in the earlier EIR 563, without giving an adequate explanation for the difference in the numbers. Because EIR 573 is described as a "second-tier" EIR, it must use the same baseline data used for its predecessor.

Failure to Respond to Comments
The draft EIR was released December 23, 1999 and the final issued in August 2001. Over the 20 months the county had to complete the analysis, only a fraction of the comments and questions generated by the report were adequately answered. According to state law, prior to approving an EIR, the County is required to respond to comments and questions raised by the EIR's findings. However, the County dismissed or ignored numerous valid questions on the underlying assumptions, analysis and results put forth in the EIR. ETRPA 's suit states that by ignoring questions and in light of the FAA's recent conclusions that the airport would be inefficient, the County abused its authority. The County also provided inadequate and inconsistent responses to many other questions, including health impacts, noise, and the ability of other airports in the region to satisfy demand.

Inconsistent Economic Data
County Supervisors stated that the economic benefits of a 28.8 million-passenger-per-year airport would outweigh the negative environmental effects. However, in approving an ASMP that would serve only 18 million passengers per year, and John Wayne would serve less than 4 million passengers (it currently serves about 7 million) the County did not consider whether the economic benefits would still be strong enough to outweigh the noise and air pollution caused by the airport for relatively modest net gain in airport capacity. There is no cost/benefit analysis provided to support their decision. The Board of Supervisors also concluded that the airport would not cost tax dollars assuming that the airport would receive large amounts of federal grants and funds. However, the FAA Airspace Determination concluded that the proposed ASMP would cause significant delays, meaning that the airport would be prohibited by federal law from receiving federal funds.

Public Utilities Code Violation
The County also violated the Public Utilities Code, which requires that counties submit plans for airports to a local Airport Land Use Commission prior to acting on any proposal, which the County failed to do. The County should have obtained approval from the ALUC both for considering building an airport at El Toro and also for changing the general plan of John Wayne Airport.

With the passage of Measure W, ETRPA and the county negotiated a stay of the litigation. ETRPA and the County have agreed to settle the suit with the rescinding of the EIR on November 23, 2004

Case No. 710121: 4th Civil No. D030810: On December 16, 1996, the Board of Supervisors certified environmental Impact Report 563, for the El Toro airport project. The El Toro Reuse Planning Authority (ETRPA) and Taxpayers for Responsible Planning (TRP) filed legal challenges in January 1997. The City of Newport Beach joined as an intervener in the case with the County.

On October 28, 1997, San Diego Superior Court Judge Judith McConnell ruled against the County. In a major victory for airport opponents, the judge found that the County “abused its discretion” by failing to comply with the California Environmental Quality Act (CEQA) when it approved the airport project.

She subsequently required Orange County to prepare supplemental environmental analyses on regional air quality impacts, traffic impacts, noise mitigation, impacts on threatened and endangered species, and mitigation for loss of prime agricultural land.

The County appealed and a three judge panel in San Diego granted relief on some but not all points. The County was required to complete a Supplemental EIR.

On September 18, 1998, Judge McConnell awarded ETRPA and TRP $410,756.74 for all attorneys’ fees related to their suit against the Environmental Impact Report since their actions “resulted in the enforcement of an important public right affecting the public interest. The action conferred a benefit on the public at large and, more directly, on a large number of Orange county residents.”

On October 24, 2000 the Board of Supervisors certified the latest court ordered revision to the supplemental air quality impacts section of EIR 563. It admits that a proposed commercial airport at the former base could cause ‘significant’ air pollution that ‘cannot be mitigated.’

The EIR was returned to Judge McConnell’s court, and was accepted on January 19, 2001. An ETRPA appeal to the State Supreme Court is in progress. However, after the passage of Measure W, the ETRPA and the county negotiated a stay of further EIR litigation.

ETRPA and the County have agreed to settle the suit with the rescinding of the EIR on November 23, 2004

OC Superior Court Case No. 01CC06129: In May 2001, ETRPA filed suit against the SCAG EIR and transportation plan which includes a forecast of 30 million annual passengers of demand from Orange County in the year 2020.

ETRPA seeks to have the SCAG Regional Transportation Plan and the EIR upon which it is based thrown out as invalid by the court. ETRPA cites numerous technical violations of the CEQA law, particularly as to the proper choice of "baseline" conditions against which the environmental impacts are measured. ETRPA also challenges SCAG's methods for determining "significance" of the impacts.

Based on information gathered by the editor of this website, ETRPA also states, "As a result of SCAG's error and misrepresentation, its EIR and Update were improperly based on a significant overstatement of Orange County's demand for air passenger services by 33%."

On December 5, 2002, SCAG accepted an ETRPA proposal for staying the litigation and removing El Toro from the SCAG 2004 Regional Transportation Plan.

OC Superior Court Case No. 00CC03205: The voters passed measure F on March 7, 2000. Several days later, two lawsuits were filed against the measure.

A lawsuit to invalidate the entire initiative was filed by Citizens for Jobs and the Economy, Bruce Nestande, David Ellis, the City of Newport Beach and the Airport Working Group – against the County of Orange as defendant.

The County of Orange, as plaintiff, filed a second suit to stay implementation of the spending limits imposed by the initiative. The County suit was against Jeffrey Metzger, “official proponent”, by virtue of his having filed official documents at the Registrar of Voters on behalf of the campaign committee, Citizens for Safe and Healthy Communities.

The parties agreed to combine and move the cases out of Orange County and they were assigned to Los Angeles Superior Court Judge S. James Otero. ETRPA and Citizens for Safe and Healthy Communities (CSHC) sought to intervene for the defense, noting that the County was unlikely to mount a defense against the first suit. Eventually CSHC stepped aside in favor of ETRPA, which undertook the entire legal defense of both cases.

On May 4, Judge Otero temporarily allowed the County, which had stopped most El Toro related spending, to resume work pending his final ruling, stating that, “I am not permitting an airport to be built by my very limited and narrow ruling.”

Judge Otero Judge Otero delayed final ruling several times. On September 11, 2000, he held a public hearing and announced that his decision would be released within 90 days.

On December 1, 2000 the judge issued his ruling overturning the initiative. He noted that repeal of Measure A was a legal remedy for the people of Orange County. "Should the citizens of the County of Orange not wish to proceed with the building of an airport at the El Toro facility, they can seemingly accomplish this in a variety of ways including the passage of an initiative repealing Measure A."

Entry of the judge's official order was delayed for almost two months. The Newport Beach plaintiffs argued to recover their costs from the El Toro Reuse Planning authority and from Jeffrey Metzger, neither of whom had brought the suits. Arguments over this issue continued until Judge Otero finally ended the delaying move. He ordered that entitlement to costs and the amount, if any, will be determined at a a post-trial issue. Signing of the judges order then allowed ETRPA to file an appeal on January 26, 2001, with the Court of Appeal, Fourth Appellate District, Division Three, in Santa Ana.

On March 8, the appeal was moved by the Orange County court to the San Diego 4th District Division 1 Court of Appeals. The Docket number is D037543. ETRPA lawyers requested an expedited ruling by September 2001 but were denied.

On March 29, 2001 attorneys for ETRPA asked the Appeals Court to stay any county spending in violation of Measure F, including the $5 million that the pro-airport supervisors voted to give to the Orange County Regional Airport Authority (OCRAA). The court denied the stay request.

On November 1, 2001, attorneys for the initiative asked the Appeals Court to stay the effectiveness of the Board of Supervisors' October 23 vote to approve an Airport System Master Plan. The Court denied the stay request.

A hearing on Measure F was held on December 14. On January 4, 2002, the Court of Appeals upheld the adverse ruling of the Superior Court.

Review of the case was denied by the California Supreme Court and the matter is closed.

Litigation