Supervisors Held in Contempt by Judge : Orange County Officials Violated Airport Injunction, Jurist Says

Superior Court Judge Philip E. Schwab ruled Tuesday that Orange County officials violated a three-year-old court order limiting jet flights at John Wayne Airport when they adopted a new master plan for the airport and expanded jet service to 55 flights.

The ruling, which Newport Beach officials said was a major victory in their attempts to limit jet noise from the airport, found the Board of Supervisors in contempt of a 1982 injunction that established a 41-flight-per-day ceiling on jet flights because the supervisors failed to submit the new master plan to the court for approval.

Schwab scheduled a court session for Friday morning to explain his judgment and to declare whether he will impose sanctions against the county as a result of the contempt ruling.

The decision could have an important impact on the county’s attempts to expand jet service at John Wayne for several reasons. At the least, city officials said, it will allow Newport Beach to challenge the new airport master plan in state court, under state environmental laws--a forum that the city believes will allow it to present a stronger case against expansion of the airport.

Moreover, while city officials said they do not plan to ask the court to set aside the April 1 expansion that increased flights from 41 to 55 a day--a move that could have profound impacts on the 2,000 passengers a day already booked on the additional flights--other parties in the case say a rollback to 41 flights is possible.

“On the one hand, Newport Beach said they don’t care about 55, but on the other hand, the only order we have in hand is the one that says don’t go above 41. So I don’t know what’s going to happen,” said Michael Gatzke, the county’s special airport counsel.

Moreover, while Newport Beach has agreed not to challenge 55 daily flights--leveling its heaviest charges at the proposed 1990 expansion to 73 flights--an organization of environmentalists and homeowners that also sought the contempt ruling has made no such commitment.

“A rollback (to 41 flights) would be justified in view of the injunction, and it would be justified for either the judge to ask for it, or any of the parties to ask for it,” said Jean Watt, president of the group, Stop Polluting Our Newport.

“We have never been on record as feeling that 55 was protective of our rights because clearly it isn’t,” Watt added. “But as for what one asks for at this point, I can’t tell you what it’s going to be.”

Rollback Doubtful

Most city and county officials discounted the chances of an order rolling back flights to 41, however. Although the 14 additional flights have only been in place since April 1, many of them are booked over the next six months with up to 2,000 passengers a day. Moreover, the additional flights made way for three new airlines at John Wayne--America West, Continental and Jet America--which have already spent large sums of money gearing up for service to Orange County.

The judge’s decision marked the second time in a little more than a month that Orange County officials have been found in contempt of court orders in administering county facilities. On March 18, a federal court judge ruled that the county was in contempt of an earlier court order because adequate space was not provided for inmates at the Orange County Jail.

Members of the Board of Supervisors could not be reached for comment on Schwab’s ruling, although they are scheduled to discuss it in closed session this morning. Gatzke, the county’s attorney, said he had not had an opportunity to adequately review the order.

Clarification Awaited

“Frankly, I’m not sure I completely understand the order,” he said. “Judge Schwab somehow ruled in our favor on every issue that we raised, and still he found us in contempt. I’m assuming he’ll clarify that on Friday.”

Indeed, Schwab did reject Newport Beach’s arguments that a new state law requires the county to submit any new environmental impact report prepared for airport expansion to the court for review, and he refused to grant the city’s request to amend the 1982 court order to specifically require resubmission of the environmental report.

Nonetheless, the contempt ruling appears to accomplish the same end, though by a more complicated route.

Former Superior Court Judge Bruce Sumner’s ruling in 1982 actually applied to the environmental impact report that was prepared for an earlier expansion plan. County officials had argued that since they have prepared an entirely new expansion plan and environmental report, the court’s concurrence is not needed. Schwab disagreed.

A key issue in the debate is what court will ultimately decide on the plan.

Preliminary Victory

County officials have filed a case in federal court, attempting to bring together in a single forum, before a single judge, the many parties that have a legal interest in airport expansion. They succeeded last month in persuading U.S. District Judge Terry Hatter Jr. to issue a preliminary injunction barring Newport Beach and Stop Polluting Our Newport from filing a new suit in Superior Court over the new master plan, a move that county officials believed might foreclose their options in federal court.

Schwab’s ruling Tuesday appears to say that the new master plan must be considered as part of the old court case--a decision which, if Hatter concurs, would allow Newport Beach to argue its case against airport expansion in state court.

The difference is critical. State laws, specifically the California Environmental Quality Act, require local governments to make much greater allowances for such things as traffic congestion and air and noise pollution that might be the fallout of airport expansion.

Federal laws, on the other hand, while they contain environmental protection requirements, also require airport operators to provide access for airlines and passengers seeking to make use of the nation’s air transportation system.

Federal Ruling Sought

Airline attorneys involved in the case say that it is important for a federal judge to make a decision, for example, on whether California’s environmental laws interfere with federal requirements for airline deregulation and free interstate commerce. That cannot be accomplished unless the master plan is heard in federal court, they say.

Robert Burnham, Newport Beach city attorney, said of Schwab’s ruling: “I think the major advantage insofar as the city is concerned is the likelihood that the CEQA (environmental) issues will be resolved in state court. I think that the issues may be more familiar to a state court judge, and I think it’s less likely that certain federal issues will be injected into the lawsuit.”

City Councilwoman Evelyn Hart added, “The massive expansion of the terminal and the traffic it would generate, that is what they’re going to have to address now.”

In a prepared statement, the city said it did not plan to seek sanctions against the county, either in the form of fines or a rollback in flights. “This (being) on the assumption that the county will comply with its duty to seek review and approval of the environmental documentation prepared in conjunction with the proposed expansion of John Wayne Airport,” the statement said.