County Files Suit to Merge All Litigation Against John Wayne

The county Board of Supervisors filed suit Wednesday against Newport Beach, two citizens organizations, 13 airlines and the federal government in an attempt to persuade the federal courts to resolve the legal quagmire that stands in the way of expanding John Wayne Airport.

Later in the day, U.S. District Judge Terry J. Hatter Jr., in a hearing he likened to “a Hollywood production,” issued a temporary restraining order barring Newport Beach and two anti-airport activist groups from filing suit in the state courts against the county’s $150-million airport expansion plan.

New County Strategy

The order, issued at Orange County’s request, is the first step in an aggressive new legal strategy adopted by the county, which for years has been the target of lawsuits from Newport Beach, the airlines and the Federal Aviation Administration over efforts to expand John Wayne Airport and at the same time restrict access to new air carriers.

The new lawsuit, filed shortly after the Board of Supervisors authorized it during a closed session Wednesday morning, seeks to bring all those who are likely to sue over the current expansion plan into a single case, under the jurisdiction of a single federal judge.

County officials said they hope to prevent the kind of inconsistent legal rulings that in the past have stymied efforts to manage the controversial airport.

Invalidated Expansion Plan

For example, former Superior Court Judge Bruce Sumner in 1982 invalidated an earlier expansion plan for the airport and imposed a limit of 41 flights per day on jet operations in response to a lawsuit from Newport Beach. But at about the same time, Judge Hatter, in a federal court suit brought by airlines clamoring for access to John Wayne, ordered the board to admit new carriers.

“The county’s been in two forums, and had two judges, and it’s generated probably unnecessary legal fees,” said Deputy County Counsel Dan Didier. The new suit “allows all related claims to be litigated together, and thereby you prevent inconsistent rulings because you have one judge, one courtroom, and everybody’s there,” he added.

Didier also acknowledged that the county hoped to avert delays in implementing the expansion plan caused by numerous lawsuits making their way through the court system.

“I’m not going to say those tactics would be used by other parties,” he said, “but I think delay and obstruction is something that the legal system is sometimes used for, as a tool to gain those ends, and the purpose of this is to have timely adjudication.”

Newport Beach officials say that state courts can better resolve airport environmental issues.

But Newport Beach officials, who under Hatter’s order cannot file their own lawsuit in Superior Court for at least 10 days, called it an attempt to infringe on their access to the courts and said it could impair their ability to raise environmental challenges against the airport master plan, since many of those challenges are based on state laws.

“The City of Newport Beach is disturbed and dismayed that the county has filed a lawsuit,” said Mayor Phillip Maurer in a prepared statement, noting that the city had not even decided whether to sue the county over the expansion plan and referring to the city’s efforts to negotiate a settlement with the county over the airport.

City Atty. Robert Burnham said the state courts are more appropriate for resolving the city’s environmental concerns over airport expansion. “Environmental issues are state law, and I’d be more comfortable if a state court were resolving the state questions . . . . I don’t know whether the federal court will be as sensitive to environmental issues as will the state court,” he observed.

Burnham added that the attempt to consolidate all legal issues over the airport into a single case “tends to make litigation of specific issues more difficult, more time consuming and more costly.”

Barbara Lichman, executive director of the Airport Working Group--one of two citizens groups also barred from filing suit under Hatter’s order--said: “It looks to me, at first glance, like a possible attempt by the county to take away our right to sue by enjoining us from suing in state court until the statute of limitations in state court is up. If that is their motive, then it is a clear-cut case of attempting to take away our legal rights to sue in the courts.”

County attorneys in their complaint argued that if a temporary restraining order was in effect, it would stop the clock on the statute of limitations, and Newport Beach would be permitted to sue, if necessary, after the federal case is resolved. But Lichman said she was concerned about asking the federal courts to take jurisdiction nonetheless.

Spokesmen for Stop Polluting Our Newport (SPON), the other organization named in the temporary restraining order, could not be reached for comment.

So far, SPON and the Airport Working Group are the only parties which have formally announced plans to sue against the expansion plan, which calls for increasing daily jet flights to 55 on April 1 and to 73 once a $150-million improvement plan is completed.

Newport Beach, however, has hinted at possible litigation. So have a number of airlines, including United, Trans World, Muse Air and Alaska, which were not among the three new carriers scheduled to begin service at John Wayne with the expanded flights next month. Those airlines and the six carriers already serving the airport also were named in the county’s suit.

Another defendant is McDonnell Douglas, manufacturer of the MD 80, the jet predominantly in use at John Wayne. County attorneys said McDonnell Douglas and at least two airlines which fly MD 80s are expected to challenge a provision of the county’s airline access plan which provides incentive flights for planes quieter than the MD 80, such as the Boeing 737/300 and the Bae-146.

The Federal Aviation Administration comes into the picture as a defendant because that agency challenged in court the county’s previous airline access plan--which limited the number of carriers at John Wayne to five--claiming it was discriminatory and in violation of airline deregulation provisions.

Attorneys for many of the 18 defendants were in Hatter’s courtroom Wednesday, prompting the judge to liken the half-hour hearing to “a Hollywood production.”

Hatter declined to rule out the possibility of the city acting on its earlier lawsuit. He set a hearing for March 18 at 4 p.m. to determine whether a preliminary injunction should be issued to restrain Newport Beach and the two citizens groups from future legal actions.

“This has been a long, difficult and controversial process,” said Board of Supervisors Chairman Thomas F. Riley in a statement issued after the board’s closed session. “The inevitability of litigation leaves this as the one remaining step which must be taken to complete this process in a manner which best serves the interests of the people of Orange County. We have now faced these controversial issues and made the difficult decisions. As elected officials, that’s our responsibility.” He added:

“We have attempted in every way, and at every step, to proceed in full respect of our legal obligations. We are confident that the court will agree, and that the people of this county will be able to proceed promptly with this critically important project.”

Board members said they would have no further comment on the matter.

In its suit, the county is not asking money from any of the parties but is seeking a legal device known as “declaratory relief,” in which a judge would rule on whether the county acted legally in adopting the expansion plan, Environmental Impact Report and airline access plan.

Parties who feel some aspects of the plans are illegal can present arguments. If some parties named as defendants have no argument with the plan, they would not need to actively participate in the litigation, Didier said.