Legal Meeting Highlights w/ former FAA atty Steven Taber
The meeting on Nov. 29 with former FAA attorney Steven M. Taber went very well! Here are the highlights:
(1) The FAA views their customers as the airports, the airlines, and, to a lesser extent, the flying public. They generally view those objecting to jet noise as NIMBYs. Legal action greatly increases the probability of the FAA taking substantive permanent action to mitigate aircraft noise. But dialog with the FAA is also important. The combination of the two tends to be the most effective.
(2) We should seek ways to put pressure on the airlines to request the FAA to let them use the still extant Big Sur Two (BSR) route.
(3) Between continuing nuisance, permanent nuisance, inverse condemnation, and trespass, suits for continuing nuisance are the least challenging to prove with respect to jet noise. Only claims and suits for permanent nuisance or inverse condemnation can potentially provide compensation for diminution of property value for jet noise; once someone sues for compensation for diminution of property value, they can no longer sue for continuing nuisance. On the other hand, doing continuing nuisance suits does not preclude a later suit for diminution of property value. When a court finds jet noise to be a nuisance in a particular case, they almost always find it to be a continuing nuisance rather than a permanent nuisance. Inverse condemnation (for the taking or damaging of property and the resultant reduction of value) would be very difficult to prove given our distance from the airports. [Below I focus on continuing nuisance claims.]
(4) Waves of small claims suits for continuing nuisance against the 10 or so relevant airlines and the relevant airport(s) would likely cause these defendants to put pressure on the FAA. This was done effectively by 183 residents near SFO in the early 1980’s, and Steve doesn’t know why it isn’t done more often. To fend off another wave of those suits that had begun, SFO, the airlines, the FAA, and aircraft manufacturers made substantial noise mitigation measures.
(5) Suits for continuing nuisance can be done repeatedly by the same person, each time covering a different time period. Those in the audience seemed enthusiastic about this idea. Since the Statue of Limitations for continuing nuisance is 6 months, the most efficient way would be to go in 6 month cycles. Each claim would be for the 6 months of nuisance immediately preceding the date the lawsuit was filed. The 6-month statute of limitations is renewed every day you wake up and the planes are still noisy.
(6) If you sue for a reasonable dollar amount (rather than an unreasonably high amount) the judge is more likely to rule in your favor.
(7) On slides Steve gave an example of how to fill out the small claims court forms and gave examples of evidence to use in court. Also demand letters to the airlines would need to be sent by plaintiffs; besides asking for compensation they could specifically ask the airlines to ask the FAA to allow them to fly the still-extant Big Sur Two flight path.
(8) Within one single small claims case, one can sue the 10 or so airlines that are flying overhead along with the airport. All must show up in court for the hearing.
(9) To support the cases, one can point out some of the things the defendants could do to help but have not done. E.g. the airport could implement a voluntary curfew, use different runways, offer to pay those impacted for installation of triple pane windows, or use their influence with the FAA during the Environmental Assessment to insist that they keep Big Sur as the primary SFO arrival path from the south. And the airlines could more often fly quiet idle-descents at slower speeds and without using speed brakes
(10) At a small claims hearing, if one’s case gets selected to be at the end of the list, one may have to wait, along with the defendants, for a half a day at the courthouse for the hearing to happen.
(11) The FAA cannot be sued in small claims court. A suit for nuisance against the FAA under the Federal Tort Claims Act (FTCA) would be far more costly than small claims suits; none has been tried for jet noise. The Statute of Limitations is 2 years.
(12) Given the FAA’s inaction so far in response to the evidence of Class B excursions, Steve recommends a letter with evidence be sent to the Dept. of Transportation’s Office of the Inspector General rather than the NTSB. The NTSB’s purpose is to investigate transportation accidents.