Judge Denies Irvine Bid to Join Lawsuit Over Airport Future

U.S. District Judge Terry Hatter Jr. on Monday denied the City of Irvine’s request to join 16 other parties warring over the future of John Wayne Airport.

Hatter said that allowing Irvine to join the legal fracas over expansion of Orange County’s only commercial airport would be “tantamount to disaster” for any hope of settling the litigation.

The decision was a setback for Irvine, which had hoped to challenge a proposed settlement that would limit the airport to 8.4 million passengers a year through the next 20 years--an agreement that Irvine city officials fear will bring new emphasis to discussions of a proposed civilian airport on their eastern border at the El Toro Marine Corps Air Station.

John McDermott, special airport counsel for Irvine, said he will meet with the City Council tonight to decide whether to appeal the ruling or file a separate lawsuit in state court against the John Wayne Airport expansion plan.

While Irvine has not previously challenged the county’s efforts to expand John Wayne--leaving that to Newport Beach, which lies under the path of departing jets--city officials became concerned over a proposed settlement between Newport Beach and the county. The settlement would allow limited expansion of the airport combined with a search for a site for an additional commercial airport.

While the county will not participate directly in the site search, the Board of Supervisors as part of the settlement rescinded earlier resolutions in opposition to civilian use of El Toro, effectively leaving the county neutral on an issue of drastic concern to Irvine, which borders the Marine base.

Irvine officials believe that failure of the airport expansion plan to meet passenger demand approaching 20 million a year will bring new pressure for conversion of El Toro to commercial use.

“You have to realize the interrelationship of El Toro and John Wayne Airport,” McDermott said. “If El Toro is going to be considered as an airport site while at the same time John Wayne is excluded from consideration of any further expansion during a 20-year period in which that reconsideration of El Toro is taking place, that isn’t something we can live with, and it alters our entire view of issues relating to John Wayne Airport.”

But Hatter ruled against the city’s motion to intervene in the case, citing the months of negotiations that have gone into producing the settlement between the county and Newport Beach and Irvine’s failure to join the suit earlier when those negotiations were in process.

“There’s little doubt in my mind that the possibility of this settlement to unravel (if Irvine participates) is so prejudicial (to the county and other parties) that to allow the City of Irvine to intervene would be tantamount to disaster,” Hatter said.

McDermott said the city is still free to appeal the ruling and continue to seek to intervene in the case--which also involves 13 airlines, two citizens’ groups, an aircraft manufacturer and the Federal Aviation Administration--or bring a lawsuit of its own in Superior Court on more limited grounds.

“The denial of the motion to intervene was procedural . . . . It has nothing to do with the validity of any of our claims,” McDermott said. “I’m not sure if I were the county if I would know whether I had won or lost today. That just means they’re going to be facing more lawsuits in different courtrooms, rather than resolving this thing in a single courtroom as they had hoped to.”

Setback for Irvine

Michael Gatzke, the county’s special airport counsel, said the ruling was a setback for Irvine “to the extent that their motivation was an attempt to play an active role in Hatter’s review and consideration of the settlement with Newport Beach, then those hopes have been dashed.”

Gatzke also rejected Irvine’s assertions that the settlement will place greater emphasis on commercial use of El Toro, a use historically opposed by members of the Board of Supervisors and the Department of Defense, among others.

“Any discussion that could actually lead to use of El Toro for any other purpose is so far away and so speculative and depends on so many decisions from so many people and so much money that isn’t in hand yet that to even talk about it is very, very speculative,” he said. “I understand politically their concern; I understand it’s an important issue to their citizens, but legally and factually it isn’t an issue right now.”

Meanwhile, Irvine and Newport Beach council members are privately discussing a settlement of their own that would resolve Irvine’s concerns with the airport settlement.

Though precise terms of Irvine’s proposals have not been disclosed, sources close to the negotiations said the city is seeking a guarantee that any use of El Toro would be “consistent with the intent of the Marine Corps and the City Council of Irvine.”

To that end, Irvine Mayor David Baker earlier this month submitted a request to the Marine Corps to consider annexation of the El Toro base, currently located in an unincorporated area next to Irvine. The Defense Department has not yet responded to the city’s letter, and local base officials are taking a neutral stand.

Annexation Goal

Baker said the city’s main thrust will be to “concentrate on annexation of the Marine base” following the court’s decision.

“I support the resolution of the long-term dispute at John Wayne Airport,” Baker said. “We just don’t want that to open the door to joint use of El Toro. We’re already surrounded by three airports, we already bear more than our fair share of air traffic in Orange County.”

Newport Beach Mayor Philip Maurer said the City Council will consider Irvine’s proposals in closed session Oct. 28.

“The City of Newport Beach is still in a mood for negotiations with Irvine. Knowing their problems and knowing their position, we feel that more talks are needed between the two cities. We wish to remain friends and will do all we can to give them a better comfort level,” Maurer said.

“We’re not going to crow about it,” he said of the court’s decision on Monday. Attorneys for Newport Beach had argued, along with several airlines, against allowing Irvine to intervene in the case. The county was officially neutral.

If Irvine were allowed to intervene in the case, it could have a major impact on the duration and complexity of the proceedings. While the city has said it is primarily concerned with civilian use of El Toro, it raised, in court papers, the possibility of environmental challenges to the entire expansion plan for John Wayne Airport.

While the city had not previously raised such arguments, McDermott said, Irvine did not do so because Newport Beach was already mounting similar challenges. If that city settles, Irvine would nonetheless have environmental concerns over increased air traffic at John Wayne, which passes over parts of Irvine, he said.

McDermott said the city would challenge the county’s rescission of the resolutions on El Toro, arguing that the rescission was illegal because the county’s General Plan guarantees military, not civilian, use of the facility--an allegation that Gatzke said is “utterly without merit.”