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Court Again Bars City's Airport Suit

March 30, 1985|KIM MURPHY | Times Staff Writer

In an old drama with new roles, parties to the protracted legal battle over expansion of John Wayne Airport met Friday in a federal courtroom in Los Angeles, where U.S. District Judge Terry J. Hatter Jr. issued a preliminary injunction barring Newport Beach from filing a new lawsuit over the expansion plan.

The order itself was not surprising--it extends a temporary ban issued earlier this month--but the hearing marked an unusual opportunity for the entire cast of characters battling over the airport during the past five years to meet in a single courtroom.

'Lot of New Players'

"My goodness, it must be spring training time. We've got a lot of new players coming in," Hatter remarked.

The courtroom was nearly filled with a dark-suited, briefcase-bearing crew of attorneys, who in past years have done cut-throat battle against each other over jet service to the lucrative Orange County market.

But a surprising new set of alliances has begun to emerge from this most recent legal go-round, which now encompasses every airline serving John Wayne, every airline about to serve the airport, every airline that hopes to serve the airport, a major aircraft manufacturer, the Federal Aviation Adminstration, the county, the City of Newport Beach and two homeowners associations battling airport noise.

This time, most of the airlines--which for years have battled the county and each other for permission to serve the airport--have filed briefs in support of the county and its new expansion plan.

And Hatter, who repeatedly over the years has issued rulings against the county--demanding access for new carriers to the airport--sided with Orange County officials Friday in their bid to prevent Newport Beach from bringing a separate lawsuit in Superior Court to block the expansion plan on environmental grounds.

Face a Long Road

Still, county officials admit they face a long road in their attempt to win a federal court endorsement for the expansion plan, with the number of conflicting claims still raised by city officials concerned about the level of expansion and airlines that have still not won permission to fly from John Wayne.

"What we hope is that this will be a single battlefield in which the war can finally be decided," special airport counsel Michael Gatzke said of the county's decision to bring all interested parties into a single lawsuit.

"That reminds me of the definition of an appellate court," Hatter replied, "in which the appellate court judges sit and wait until the battle is over, and then they shoot the wounded."

The only issue up for a decision Friday was whether Hatter should extend his order prohibiting Newport Beach from challenging the new environmental impact report for the expansion plan in Superior Court under state environmental laws. Newport Beach successfully challenged an earlier expansion plan on similar grounds in 1982 and won an injunction from former Superior Court Judge Bruce Sumner limiting jet service to 41 flights.

Freedom to Sue Sought

On Friday, attorneys for the city asked Hatter to dismiss Newport Beach's involvement in the county's federal court action--freeing the city to file its own lawsuit--or at least refrain from deciding on environmental issues, which city officials believe is more appropriately within the jurisdiction of the state courts.

Hatter refused on both counts, but he indicated he might be willing to review the decision once Orange County Superior Court Judge Philip Schwab Jr. rules on a related legal issue raised by the city earlier this week.

On Thursday, Schwab granted Newport Beach's request for a hearing to determine whether the county is in contempt of Sumner's earlier ruling--which limited jet flights to 41--by adopting a new expansion plan and failing to refer it back to the court for concurrence. That hearing is scheduled for April 19.

Though Hatter's ruling prevents Newport Beach from filing a new lawsuit, at least for the present, the judge made it clear that he is allowing Schwab to decide whether the city can challenge the new expansion plan by way of its old lawsuit.

"The city's immediate goal is to ensure that the adequacy of the (environmental impact report) is litigated in state court. (Friday's) ruling by Judge Hatter essentially put the ball back in state court," said Newport Beach airport counsel Pierce O'Donnell. "We believe that we will be able to demonstrate to Judge Schwab that the county has violated the existing judgment."

On the other hand, Hatter refused to say he would not hold the city in contempt of the preliminary injunction he is issuing if the city carries through with plans to file a motion in Superior Court next week to amend Sumner's ruling, effectively making it mandatory for the county to submit the new expansion plan to the state court.

Lawsuit of Their Own

And city officials did not rule out the possibility of filing a lawsuit of their own in federal court, to ensure that the statute of limitations over such suits does not expire before they have a chance to challenge the expansion plan--in whatever court is available.

All in all, the case has become so complicated that an attorney for AirCal at one point jokingly suggested offering cards to attorneys in the audience to hold up, indicate which side of an argument they favored.

Hatter also set a hearing for May 20 to make a final decision on how much jurisdiction the federal courts will take in the airport case.

In the meantime, the airport expansion is scheduled to get under way Monday, with admission of three new carriers flying a total of 55 jet departures. The plan allows for eventual expansion to 73 daily flights.

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