The Queen of Hearts Comes to Santa Monica — Feds Argue the City’s Airport Action Is Too Early (Unripe) and Too Late (Barred by Limitations)

The Santa Monica Airport has been a fruitful source of litigation for years and years. To give you an idea, your faithful servant argued one of those airport cases before the California Supreme Court way back in 1972, in Nestle v. Santa Monica, 6 Cal.3d 568 — that’s right, 40 years ago. It was an inverse taking case, involving aircraft overflight over residential areas surrounding the airport. In spite of the fact that the city was caught cheating on discovery, it won the taking claim. But we won the nuisance claim, so the case was remanded and later settled after the California Supreme Court reversed a judgment adverse to our clients on a nuisance theory. Its holding established the rule that cities had no immunity in nuisance actions. Since then there must have been at least a half dozen cases involving that airport. Now, along comes another one, which we noted at .

In a nutshell, the city wants to terminate airport operations, but the Feds don’t like that idea. The legal issue is who owns what. It’s one of those controversies that gladdens the heart of title examiners but often tends to put everyone to sleep. Still, these controversies can be a big deal because they determine land ownership. Here, Santa Monica claims unencumbered ownership of the airport, and argues that the feds’ interest terminated when war (that’s WW II) ended. The Feds disagree. You can find a concise summary of that controversy on the January 28th post in the Nossaman blog ( so we don’t need to repeat it here. Suffice it to say that the city is suing the feds in federal courts, and the feds have moved to dismiss the action — the Nossaman blog has a link to the federal moving papers if you want to see them.

As noted, we aren’t going there in this blog. But we must share with our readers the fact that in their motion to dismiss the Feds argue (a) that the city’s action is too late (barred by limitations) and also that it’s too early (not yet ripe). Which brings to mind the deathless observation of the Queen of Hearts in “Alice in Wonderland,” where she explained to Alice, “You could have had jam on your toast yesterday, and you can have it tomorrow. But never today.”

Which provides us with yet another reason why eminent domain law is an intellectual and moral snake pit.

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