OST-97-2329
Home | OST Filings by
Docket | OST Filings by
Carrier | OST
Filings by Proceeding | OST Filings by Day
Office of Intl Aviation Filings by Carrier | Office of Intl Filings by Day
OST-97-2329
Los Angeles International Airport Rates Proceeding | Second Los Angeles International Airport Rates Proceeding
OST-97-2329 (50176) | OST-95-474 | May 27, 1997
ACI-NA’s Reply Brief on Remand
In any case, the Airlines mischaracterize the Congressional intent reflected in these statutes. Congress has never manifested any intent to require the use of only one method to establish "reasonable" airport rates and charges. Rather, by allowing airport owners to calculate fees using "either a compensatory or residual fee methodology or any combination thereof" and by forbidding the Secretary from setting "the level of the fee," 49 U.S.C. §§ 47129(a)(2) & (a)(3), Congress has expressed its intent to allow substantial flexibility in airport rate-setting. The "financial windfall" language selectively quoted by the Airlines from the legislative history of the Anti-Head Tax Act was an explanation for why Congress chose to ban head taxes and had nothing to do with explaining what Congress meant by the broad and flexible term "reasonable" which it used to describe the airport user fees that are permitted by the AHTA.
Counsel: Plamer Dodge, Scott Lewis, 617-573-0162
Reply Brief of the Original Complainant Airlines
As we explained in our opening brief, and as DOT has recognized, Congress did not intend for airports to use their landing fees as a means of accumulating surpluses that are not needed to cover actual capital costs or operating expenses or to meet contingency or reserve requirements. See 61 Fed. Reg. 32010. Further, airports that are allowed to recover all these cost requirements should be deemed fully "self-sustaining" within the meaning of the statute.
Counsel: Hogan Hartson, Allen Snyder, 202-637-5741
Respondent's Reply Brief on Remand - Cover
and Table of Authorities | Glossary | Brief
In their Opening Brief, the Airlines repeatedly take issue with the D.C. Circuit's decision in this case, attempting to reargue matters that the Court of Appeals has already decided. They argue that the policies embodied in the governing statutes require the use of historical cost valuation—notwithstanding the fact that the LAX I decision expressly held that nothing in existing law requires the use of historical costs. They also continue to advocate an accounting conception of costs, contrary to the direction of the Court of Appeals. In the process, they ignore basic, unassailable principles of economics.
Counsel: Morrison Foerster, Steven Rosenthal
OST-97-2329 (50176) | 95-474 | June 5, 1997
Motion for
Leave to File an Unauthorized Document
In a belated attempt to resurrect a dead argument, apparently so that it might be raised in a later petition to the Court of Appeals, the City has included in its Reply Brief on Remand a new issue that was not raised in its opening brief: whether its fee methodology is entitled to "deference and a presumption of lawfulness." See City Reply Br. at 11-12. As explained below, that argument is beyond the scope of this remand proceeding because although the City argued to the Secretary in LAXI that it was entitled to special deference, the Secretary rejected the argument both in that decision and in the Policy, and the City did not appeal that determination. In addition, even if the City's "special deference" argument were still available to it, the City chose not to include the contention in its opening brief and cannot raise it for the first time in a reply. And even if the Secretary were to allow the City to re-raise this rejected argument in its reply brief, the Secretary should reject it for all the same reasons set forth in the Policy and in the prior rulings in this case. Finally, and in any event, if the Secretary entertains this new argument, he should make clear that the City's land rental charges would be unreasonable even if they were entitled to the presumption the City seeks.
Counsel: Hogan Hartson, Allen Snyder, 202-637-5741
OST-97-2329 (50176) and 95-474 | June 12, 1997
Motion for
Leave to File an Unauthorized Document by LADOA
Respondents
Surreply Brief on Remand
In an attempt to limit the scope of this remand proceeding, the Airlines seek to bar LADOA from raising the "new" and "dead" argument that LADOA's fees are entitled to a presumption of reasonableness or deference. Contrary to the Airlines' belated suggestion, raised in a sur-reply brief that is itself beyond the scope of this proceeding, this argument is neither "new" nor "dead." As discussed below, it was both addressed in LADOA's opening brief on remand and is responsive to the Airlines' opening brief. DOT cannot rule on the reasonableness of FMV without first assessing the presumption or deference which attaches to LADOA's FMV methodology and resulting rates. This inquiry is inextricably linked to what the Airlines refer to as "burden of proof," and must be resolved at this time.
Counsel: Morrison Foerster, Steven Rosenthal, 202-887-1500
OST-97-2329 (50176), OST-95-474 | June 23, 1997
To support the attempted circumvention, the City contends that it actually raised its "presumption of validity" argument in its reply brief because the parties had addressed the Airlines' burden of proof in their opening briefs. See City's Sur-Reply Br. at 1-2. But the City's new "special deference" and "presumption of validity" arguments go far beyond the question of which party has the burden of proof; indeed, the Secretary rejected those arguments in the earlier proceeding while still holding that the Airlines bore the ultimate burden of proof. Accordingly, even if the City were entitled to raise these arguments on remand at all—which it is not—it should have raised them in its opening brief, not its reply, and it clearly is not entitled to address the issues belatedly in a sur-reply brief that is precluded by the Secretary's order. The City's motion for leave to file that brief should be denied.
Counsel: Hogan Hartson, Allen Snyder, 202-637-5741
Los Angeles International Airport Rates Proceeding
OST-97-2329 | OST-95-474
Re: Motion to Withdraw as Counsel
Morrison & Foerster LLP respectfully moves this Court for leave to withdraw as co-counsel to Petitioner City of Los Angeles ("City"). Wilson & Becks, which is also counsel of record for the City in this appeal, will continue to represent the City. The City, through the City Attorney's Office, has consented to this motion as indicated below.
Counsel: Morrison Foerster, Steven Rosenthal
Order 97-12-31 | OST-97-2329 | OST-95-474 | Issued and Served December 23, 1997
After considering the briefs and the record in light of the Court's decision, we have determined that the airport's charge for the land's fair market value is unreasonable, as explained in detail below. In summary, the issue is whether the City may include in the landing fee a rental charge for the airfield land based on the land's estimated fair market value, that is, whether the charge represents a cost that may reasonably be imposed on the airlines using the airfield. In concluding that this charge is unreasonable, we rely on several factors. Among other things, the charge cannot be justified as compensation for the airport's opportunity costs in using its land for airport facilities, since the City made a commitment to continue using LAX as an airport and the airport's overall revenues compensate the City for using the land as an airport. There is no economic policy reason for allowing the use of fair market value, because the City needs no additional incentive to use its property at LAX as an airport, for the airport provides significant economic benefits to the Los Angeles area. There is also no evidence that the fair market value charge is needed to deter excessive use of LAX. Finally, the use by every other U.S. airport of historic cost, not fair market value, in valuing its airfield assets for landing fee calculations further supports our decision.
By: Patrick Murphy
Home | OST Filings by
Docket | OST Filings by
Carrier | OST
Filings by Proceeding | OST Filings by Day
Office of Intl Aviation Filings by Carrier | Office of Intl Filings by Day