Judge Says That PSA Must Get 4 Quiet Flights : Order Cuts AirCal Departures Quota at John Wayne Airport

Chiding Orange County supervisors for showing apparent unfairness and “abuse of discretion” in giving AirCal the lion’s share of a new category of super-quiet flights at John Wayne Airport, a federal judge on Tuesday ordered that four of those flights be taken away from AirCal and given to its archrival, PSA.

As a result, AirCal and PSA each will be allowed to fly 16 daily departures from John Wayne with their new British-built BAe-146 jets until July 1, when a new flight allocation plan is expected to be adopted. So far, no other airlines at the airport have aircraft that would qualify for the special allocation.

AirCal attorney Richard Sherman said that the Newport Beach-based airline already has sold 22,000 tickets for the 20 daily flights it expected to fly with the British-built jet. Some of those flights may have to be canceled, he added.

Sherman said it has not yet been decided if AirCal will appeal the ruling, but he acknowledged that there probably is not enough time for a court appeal. The loss of flights and possible return of tickets will work “an irreparable hardship on AirCal,” Sherman told the court.

Work on New Schedule

“We won our court challenge,” said PSA Spokeswoman Margie Craig. “Our legal people will meet with (Orange County) scheduling people (today) to effect the new schedule as soon as possible.” PSA, which had been operating 21 daily flights from John Wayne before Tuesday’s preliminary injunction, has not determined destinations for those flights. Craig said PSA will seek an even heftier share of the slots to be awarded under a permanent plan, which Orange County is expected to have in place by July 1.

U.S. District Court Judge Terry J. Hatter Jr.’s ruling came in response to a complaint from PSA that the Board of Supervisors showed favoritism to AirCal in deciding on Feb. 26 to give AirCal 20 new departures per day for the quiet aircraft that AirCal plans to operate at John Wayne. AirCal was to start adding the new flights Tuesday

The supervisors had refused to grant PSA more than the 12 daily departures it already was flying at the airport with the same quiet aircraft. PSA then asked the court for a preliminary injunction to halt the county’s temporary allocation plan.

“It would look on the face of it (that) there has been an abuse of discretion on the part of the county,” Hatter said of the flight allocation. He added that “there is not the appearance of fairness.” While stressing that he does not believe that all flights must be distributed equally among carriers in order to be fair, the judge said he would approve a 50-50 split proposed by PSA as a temporary alternative.

In defending its action, the county argued that it had encountered great difficulty in determining how to allocate departures of jets such as the BAe-146 that, unlike any previous commercial aircraft, flies so quietly that it is exempt from flight limitations the county enforces that are based on noise levels.

Nonetheless, the county said that the number of BAe-146 departures must be controlled so the county will not exceed a ceiling of 4.75 million passengers a year that it agreed to last December in a settlement of a lawsuit with Newport Beach.

Unable to decide how to allocate the so-called “exempt flights” for the long term, the county postponed adopting a formal plan of distribution but said it would have one drafted and adopted by July 1.

‘First Come, First Serve’

In the 91-day interim between April 1, when the county’s previous airport access plan expired, and July 1, county officials said that they decided to pass out additional departures on a “first-come, first-serve” basis. It was only after PSA learned that AirCal had requested additional flights during this period, the county said, that PSA began requesting more.

“The behavior of the two air carriers, once again, resembles nothing so much as two small children who can play together happily for hours with no thought of a desire for candy until one discovers the other has found some,” the county wrote in its brief to the court.

But PSA lawyer Terry Bingman said that the Board of Supervisors had “no reason for giving the lion’s share to AirCal other than their historic favoritism fo AirCal.”