HomeMy WebLinkAboutCOW 2003-04-14 Item 4F - Budget - $50,000 Additional Funding for Airport Communities CoalitionCOUNCIL AGENDA SYNOPSIS
ITEM INFORMATION
Original Agenda Date: 4/14/03
Agenda Item Title: Discussion of Budgeting $50,000 in additional ACC funding to see the agency
through a September decision by a US District Court Judge
Original Sponsor: Council x Admin.
Timeline: Funds needed as soon as possible
Sponsor's Summary: Jim Haggerton will summarize the summary judgement appeal submitted to the
Judge. ACC needs funding to continue the court case to its end in September. With
other cities' indecisions, funding for ACC has fallen.
CAS Number: 03-051
1 Meeting Date
1 4/14/03
Meeting Date
4/14/03
03 -061
Recommendations:
Sponsor: Discuss need for funding
Committee: N/A
Administration: Same as sponsor
Cost Impact (if $50,000
known).
Fund Source (if known) 000.20 Ending Fund Balance
Initials
Meetinq Date Prepared by [Mayor's review 1 Council review!
4/14/03 .I 1 AA-kb 1 ..b?c?. 1
1 I I
1 I I
1 I 1
RECORD OF COUNCIL ACTION
Action
APPENDICES
Attachments
Selected portions of motion for summary judement
ITEM No.
1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
AIRPORT COMMUNITIES COALITION,
Plaintiff,
v PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT
COLONEL RALPH H. GRAVES,
Commander and District Engineer of the
Seattle District, United States Army Corps of
Engineers; UNITED STATES ARMY CORPS
OF ENGINEERS, an agency of the United
States government; and PORT OF SEATTLE,
a municipal corporation,
Defendants.
The Honorable Barbara J. Rothstein
No. CV02 -2483R
I. RELIEF REOUESTED/INTRODUCTION
On Friday, December 13, 2002, four days after United Airlines declared bankruptcy 1
the biggest (so far) but by no means the only casualty of the airline industry's continuing
freefall the Army Corps of Engineers issued a Clean Water Act 404 Permit for the Port
of Seattle's Third Runway Project "3RW Project The Corps action was not a surprise to
the Airport Communities Coalition (ACC). Its constituent municipalities and school district
were well aware of the Corps' studied indifference to the data and expert analysis which they
had submitted regularly in opposition to issuance of a 404 approval. The ultimate Corps
decision included the fundamental errors which the Corps had already made clear would
characterize it: failure to conduct an independent public interest analysis, rejection of
alternatives to destruction of wetlands and watersheds, violation of Clean Water Act 401(d)
by not incorporating as federal conditions the requirements imposed by the Washington State
Pollution Control Hearings Board, and refusal to prepare a Supplemental EIS in the face of
significant new information inconsistent with the premises of earlier NEPA documents.
Beyond these specific flaws, the Corps decision was also unsettling due to the profound air of
unreality in which it came wrapped. It is only in the Corps ROD and gospel -like letters from
the Port and FAA that any public interest can be found in spending a billion dollars (or more)
to destroy wetlands and replumb watersheds for an 8,500 -foot strip of concrete to serve an
industry in a state of collapse. One might as well spend a billion dollars on a third stadium in
downtown Seattle.
ACC therefore respectfully requests that this Court closely review the Corps ROD and
the record and then grant summary judgment reversing, vacating and remanding the Clean
AR 053507.
2 AR 041515 -513; AR 052398 -396; AR 053410 -408; 053483 -482; 053486 -484; 053492 -488 (media reports
regarding decline in airline industry); Ex. A to Stock Decl., filed herewith (1/17/02 Aviation Daily article,
"Airline Industry Headed for Slow Growth, Recovery," submitted to the Corps by ACC on January 30, 2002, but
apparently not included in the Coips' Administrative Record). NOTE: Because the Corps Bates stamped all the
documents in the record it provided to the Court backward& this briefs AR number references to multiple -page
documents are backwards as well: e.g., pages 1 -5 of a given document are numbered in the record as AR 5 -1.
ACC will provide the Court with hard copies of all documents referenced in this brief.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 1
CV02 -2483R
Water Act 404 Permit issued by the Corps to the Port of Seattle "Port") for the 3RW
Project.
II. FACTUAL BACKGROUND
A. Impacts of the Third Runway Proiect on Area Wetlands and Streams
The Washington Pollution Control Hearings Board "PCHB captured the
unprecedented scale and environmental impacts of the proposed 3RW Project in its August
2002 findings on the project's Clean Water Act 401 certification:
"The Third Runway portion of the project is to be constructed in the Miller Creek, Walker
Creek and Des Moines Creek watersheds... Miller, Walker, and Des Moines Creeks are
all classified as Class AA water of the state, the highest and most protective category
established for state waters.
"The site of the proposed Third Runway is currently a wooded canyon encompassing
Miller Creek, the bottom of which lies approximately 150 feet below the level of the
Airport's existing runways. To provide the site for the Third Runway, the Port proposes
to fill the canyon with over twenty (20) million cubic yards of fill. Under the fill the Port
would construct a drainfield to capture and transport groundwater."
"The Port proposes an elaborate system of embankments and retaining structures to keep
the 20 million cubic yards of fill in place. One element of this would be a 135- foot -high
mechanically stabilized earth (MSE) wall with a 20 -foot high sloped embankment above
the wall. This section of the wall runs for approximately 1,500 feet. The proposed
construction footprint for the MSE wall comes within approximately 50 feet of Miller
Creek."
"The project would fill all or portions of 50 wetlands. The project would also require
filling and reconstruction of portions of Miller Creek and portions of drainage channels in
the Miller and Des Moines Creek basins." 4
The FSEIS for the project states that 23.64 million cubic yards of fill would be
required for the 3RW Project (of which the third runway is the principal feature). The amount
needed for the runway footprint alone is 17.25 million cubic yards. 5 The Washington
Department of Ecology "Ecology") attempted to capture the unimaginable vastness of this
quantity of fill by explaining that 17 million cubic yards is the equivalent of 34 football fields
3 Miller, Walker and Des Moines Creek are all fish- bearing streams. AR 043677, 043674, 043673.
4 PCHB Decision at pp. 11 -13 (AR 052376 -74). The PCHB Decision, unlike most of the PCHB record, is
indexed and paginated separately within the Corps record.
5 FSEIS at p. 5 -7 -7 (AR 062241), p. 5 -4 -3 (AR 062374).
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 2
CV02 -2483R
C. The Corns 8 404 Permit.
Concurrently with its application for State 401 certification, the Port applied to the
Corps for a Clean Water Act 404 permit which is required before, for example, the Port can
discharge or deposit any fill into Miller, Des Moines, or Walker Creeks or their adjacent
wetlands. 33 U.S.C. 1344. The Corps did not issue a decision on the Port's 404 permit
application permit until December 13, 2002, four months after the PCHB issued its Final
Order on the 401 certification.
The Corps permit excludes at least nine of the 16 conditions for protection of aquatic
resources imposed by the PCHB on the 401 certification. Among those omitted are all of
the key PCHB conditions regarding wetlands mitigation, enhanced low flow mitigation for
Des Moines Creek, tightened protections against deposit of (cheap) polluted fill, and certain
monitoring requirements.
III. ARGUMENT
A. Standard of Review
This Court may reverse a final decision of an administrative agency where the final
action is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with
law." 5 U.S.C. §706(2)(A). The APA's requirement that courts consider the "whole record"
in determining whether administrative findings have the required evidentiary support (5 USC
706) means that a court must take into account whatever in the record fairly detracts from
the weight of the evidence supporting the administrative decision. Indiana Harbor Belt R.
Co. v. General American Transp. Corp., 577 F.2d 394 (7th Cir. 1978). The court subjects the
final agency action to a "thorough, probing, in -depth review," Seattle Audubon Soc'y. v.
Moseley, 798 F. Supp. 1473, 1476 (W.D. Wash. 1992) (quoting Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), to ensure the agency decision "is based on
2° 404 Permit at Cover Letter (AR 054236), signature page (AR 054229).
21 404 Permit at p. 2, Special Conditions b -e (AR 054234).
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 6
CV02 -2483R
relevant factors" and "that the agency has taken a hard look at the environmental
consequences of its proposed action." Blue Mountains Biodiversity Project v. Blackwood,
161 F.3d 1208, 1211 (9 Cir. 1998).
B. The Corns Was Required to Adopt the PCHB Conditions as 404 Permit
Conditions.
Clean Water Act 401(d) mandates that state certification requirements "shall become
a condition of anv federal license or permit subject to the provisions of this section." 33
U.S.C. 1341(d) (emphasis added). The Corps decision nevertheless argues that it may
disregard the PCHB certification conditions on the basis of CWA 401(a)(1) which states, in
part, "If the State fails or refuses to act on a request for certification within a reasonable
period of time (which shall not exceed one year) after receipt of such request, the certification
requirements of this subsection shall be waived 33 U.S.C. §1341(a)(1). The Corps
contends that the PCHB conditions, although issued a full four months before the Corps
decision, need not be incorporated because they were issued more than a year after the Port
applied for 401 certification, resulting in a waiver. This Corps interpretation is contrary to
law. The state here did not `fail' or `refuse' to act on the Port's application within one year.
To the contrary, Ecology acted by issuing a certification within a year of the Port's third
application for certification, and the PCHB diligently considered ACC's appeal of that
certification in accordance with state law and procedure. Section 401(a)(1) does not require
that all action on a certification, including quasi-judicial appeal proceedings, be completed in
one year, but only requires the state to act. "Waiver" is defined as "the act of waiving or
intentionally relinquishing or abandoning a known right, claim or privilege.i Here,
Washington took action to nreserve its certification authority, including issuance by the
PCHB of a stay specifically to ensure that a 404 permit would not issue in reliance on
Ecology's potentially superceded certification pending completion of PCHB review of ACC's
22 ROD at 8 (AR 054088).
23 Webster's Third New International Dictionary (1993) (emphasis added).
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 7
CV02 -2483R
appeal
The 401(a)(1) language cited by the Corps as dictating a determination of waiver
here was originally enacted as part of 21(b) of the Water and Environmental Quality
Improvement Act of 1970 to ensure that states would not defeat applications through "sheer
inactivity. ?26 There was no "sheer inactivity" and no waiver here, where the State
obviously and actively processed an application, up to and through the PCHB, a specialized
body established for that very purpose.
The Corps' interpretation disrupts the careful balancing of state and federal interests
crafted by Congress. The 401 waiver provision was only intended to balance the plenary
authority granted to the states under 401 by ensuring that states could not `pocket veto'
applications through "sheer inactivity" even while a federal decision was ready to go. It was
not intended to negate the mandated state certification where, as here, the federal agency itself
delayed issuance of its permit for reasons unrelated to the completion of state review. States
have their own procedures for processing 401 applications, including, of course, integral
procedures for administrative or judicial review. 27 Construing 401(a)(1) to require that a
24 PCHB Decision at pp. 18 -19 (AR 052269 -68).
25 ROD at 8 (AR 054088).
26 The Conference Report accompanying the 1970 Act explained:
In order to insure that sheer inactivity by the State will not frustrate the Federal application, a
requirement similar to that contained in the House bill is contained in the conference substitute that if
within a reasonable period, which cannot exceed one year, after it has received a request to certify, the
State fails or refuses to act on the request for certification, then the certification requirement is
waived.
27 The PCHB is a specialized quasi-judicial body which functions as the "trial court" with exclusive jurisdiction
to hear such appeals. RCW 43.21B.110(1)(c). The Washington legislature created the PCHB specifically to
ensure expert review of complex environmental decisions. See, e.g., Dioxin/Organochlorine Center v.
Department of Ecology, 119 Wn.2d 761, 775 -76, 837 P.2d 1007 (1992); RCW 43.21B.020.
The applicable statute provides that, "The purpose of the Pollution Control Hearings Board is to provide
for a more expeditious and efficient disposition of appeals with respect to decisions and orders of the Department
RCW 43.21B.010. The PCHB is by statutory mandate made up of "members qualified by experience or
training in pertinent matters pertaining to the environment RCW 43.218.020. The PCHB has the same
power as a court to review decisions, take evidence, issue findings of fact and conclusions of law, and grant
relief (including stays) within the scope of its jurisdiction, and generally conducts its proceedings in accordance
with state rules of civil procedure and evidence. See RCW Ch. 43.21B; WAC 371 -08 -300. The PCHB decision
in this case explicitly reaffirmed its statutory role in implementing the Clean Water Act in Washington:
Pursuant to RCW 43.218.110, this Board has jurisdiction to decide appeals of §401 certifications issued
by the Department of Ecology. This appeal nrocess is an integral part of the State of Washington water
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 8
CV02 -2483R
domain analysis by industry media (placed before the Corps by ACC), amply demonstrated
that the 3RW is not needed in light of: 1) the dramatic and sustained drop in flights and
delays at Sea -Tac Airport which commenced prior to September 11, 2001; 2) fundamental,
long -term changes in the airline industry; and 3) a less environmentally harmful alternative
that will more than satisfy the public need "for an efficient regional air transportation system
to meet anticipated future demand." ROD at 3 (AR 054093). Further, a new FAA forecast
released March 18, 2003, directly contradicts the prior FAA press release claim relied upon
by the Corps (AR 051731 -730) that the FAA's projections would show the project was in the
public interest.
a. Independent Analysis Demonstrates the 3RW Is Not Needed.
The "need" to spend over a billion dollars on a 1 stretch of concrete is founded
on an outdated demand forecast generated by computerized models rather than actual demand
figures5' And, although the FAA professes to have "reevaluated" its demand forecast in an
August 2001 ROD, the FAA concluded that a new set of forecasts would not produce
substantially different numbers, even though the update considered only the first five
months of 2001 actual data and that data was clearly establishing a downward trend.
In a June 15, 2001, letter to the Corps, ACC aviation expert Dr. Hockaday wrote "the
number of aircraft using Sea -Tac is now going down," with aircraft operations at Sea -Tac
declining a full 6% from April 2000 to April 2001. AR 033509. Yet, the average number of
passengers per aircraft increased by 7% during this period, reflecting a recognition by the
industry, even prior to September 11, that its prior business model of proliferating flight
operations was unsustainable AR 033515. As Dr. Hockaday observed at the time, "This
air traffic demand analysis, airport planning and aviation safety. His curriculum vitae can be found at AR
029893.
51 ROD at 104 (AR 053992).
52 Alt 036665 036476.
53 ROD at 104 (AR 053992); FAA ROD at App. A, p. 10 (AR 036648).
54 FAA ROD at App. A, p. 6 (AR 036652).
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 17
CV02 -2483R
trend of increasing numbers of passengers per aircraft allows passenger traffic to grow while
the number of aircraft operations does not grow." Id.
This downward trend was compounded by a significant decline in both passenger
demand and aircraft operations starting immediately after September 11, 2001, which had a
significant negative effect on the whole aviation industry, including Sea -Tac and the airlines
that serve it. "These new impacts have changed the aviation industry fundamentally, have
completely out -dated and invalidated old assumptions and strategies, and require that any
previously planned investments be critically reexamined to determine their suitability in the
new situation." Id.
Coincidentally, one day prior to the Corps' December 13 issuance of its 404 decision,
Dr. Hockaday advised the Corps (for at least the tenth time) that the downward trend in air
traffic he had identified two years earlier was continuing yet again in the latest monthly
statistics: "Traffic peaked at Sea -Tac two years ago with 446,066 aircraft operations taking
place in 2000. Since then traffic has declined continuously, and is now nearly 20% less in late
2002, with a total of approximately 363,000 aircraft operations expected for 2002. "Delays
in 2000 were low, according to FAA, with 99% of aircraft operations not being delayed.
Delays in 2002 are even less than in 2000, and are expected to remain low for the foreseeable
future." Id. With the lower traffic levels, Sea -Tac now has significant additional excess
capacity; and "any suggestion that a third runway is needed is clearly misplaced.i
The sweeping changes in the airline industry which commenced prior to September 11
and the consequent continuing downward trend in aircraft operations render the forecast
55 See also AR 033664 -661; AR 046678 -676; AR 051578 industry media reports regarding decline in air
traffic prior to September 11, 2001).
se Decl. of Dr. Hockaday for PCHB at AR 041238, AR 041240.
5' See also AR 041515 -513; AR 051578; AR 052398 -396; AR 053410 -408; 053483 -482; 053486 -484; 053492-
488 (media reports regarding decline in airline industry); Stock Decl., A (1/17/02 Aviation Daily article, "Airline
Industry Headed for Slow Growth, Recovery," submitted to the Corps by ACC on January 30, 2002, but
apparently not included in the Corps' Administrative Record).
s AR 053612 (emphasis added).
sv Decl. of Dr. Hockaday for PCHB, at AR 041237.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 18
CV02 -2483R
contained in the FSEIS, and upon which the FAA/Port justify continued pursuit of the project,
outdated and invalid. The graph attached hereto for the Court's convenience as Appendix 1
(AR 053540) shows historical air traffic (in dark blue) and the FSEIS forecasts (in pink). The
graph vividly illustrates that there were approximately 364,000 aircraft operations in 2002
about the same as 1992, when the economic bubble began inflating and the industry embarked
on the business plan that has now proven to be unsustainable. AR 053541. The current
airport has an annual maximum capacity of 460,000 aircraft operations. If the Corps had
revised the FAA/Corps forecast taking into consideration the ongoing drop in operations, the
revised forecast would have shown that traffic would not return to year 2000 levels and the
current airport would be able to handle forecasted demand until 2020 and beyond even
assuming an immediate "recovery" at the unrealistically high growth rates forecast in the
original FSEIS forecast (Instant Recovery Forecast shown on chart in red). AR 053541 -40.
Had the Corps performed or required a recovery forecast taking into consideration current
realities and a more realistic "recovery" rate (Normal Recovery Forecast in green), it would
have recognized that air traffic demand in 2020 will be 20% less than the capacity that FAA
has acknowledged for the existing two runways. AR 053539.
ACC's aviation experts have not been alone in pointing out the lack of need for the
3RW. In 1997, the airlines themselves, which must be ginger in their dealings with the Port
(because it controls gate assignments and other vital airport functions), raised serious
questions when faced with funding the project:
America West Airlines: "questions the amount of time delay currently experienced at
SEA [SeaTac] and if a 3` runway is needed to produce the time savings. Or is the delay
the result of factors beyond our control such as weather or inefficient utilization of
gate /aircraft operations AR 009593.
Delta: is "not convinced that the delay analysis used in justification of the project is
valid. The potential delay reductions being attributed to construction of the runway may
not materialize because the delays appear to be caused by factors other than runway
60 Letter from Dr. Hockaday to Corps dated December 5, 2002, at p. 3 (AR 053541).
61 August 8, 2001, FAA ROD at App. A, p. 8 (AR 036650).
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 19
CV02 -2483R
capacity such as en route weather or weather at downline hubs." AR 009588.
TWA: "remains unconvinced that the benefits of the third runway outweigh the projected
costs" even assuming the runway will produce some delay costs savings not attributable
to other external factors. AR 009582.
United Airlines: calculates that "future passenger and operations growth are currently
significantly below the level necessary to justify a new runway for the foreseeable
future." AR 009571. "The airlines do not dispute the amount of delay at the airport, but
believe that almost none of that delay is attributable to the lack of a third runway.
Indeed, the causes of delays at SEA include the following: inbound flights weather
delays in Chicago, San Francisco and other cities; strong head winds for planes heading
into Seattle; mechanical delays such as a broken catering cart in Dallas; ill crew
members; and irregular passenger boarding processes. Based on an airline review of
delay data, less than 30 seconds of delay is attributable to the lack of a third runway."
AR 009571.
The FAA's own May 2001 Benchmark Report confirms that any delay attributable to
Sea -Tac does not justify the expense of a third runway, and there is and will remain excess
capacity at Sea -Tac for the foreseeable future. Sea -Tac was not among the eight airports the
FAA identified as experiencing significant passenger delays. AR 033051. To the contrary,
the FAA found that "only about 1% of all flights at Seattle are delayed more than 15 minutes
from their estimated flight plan arrival time," and that "some amount of congestion is not
inconsistent with efficient and affordable air transportation.s The Report showed that 19 of
the top 20 airports around the country have delays greater than Sea- Tac.
Not surprisingly, neither the FAA nor the Port submitted the FAA Benchmark Report
to the Corps. Instead, Dr. Hockaday brought the report to the Corps' attention (AR 033083),
pointing out that the Report establishes that "only in rare cases in poor weather conditions are
there limited periods of excess demand" at Sea -Tac (AR 033081), and that "no valid
justification exists for the construction of the new runway in the light of the FAA's
Benchmark Study" (AR 033075).
Despite Dr. Hockaday's studied analysis of the actual delay data in the FAA Report,
62 See FAA Airport Capacity Benchmark Report 2001 "FAA Benchmark Report") at AR 033054 and analyzed
by Dr. Hockaday at AR 033081.
63 AR 033047 and 033053.
64 AR 033076 and 033040.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 20
CV02 -2483R
the Corps failed to conduct any independent assessment of the data, and instead accepted
uncritically the flawed computer simulation data models relied upon the FAA/ Port project
sponsors to forecast delay. It did so even though the Corps confessed the following in an
email to the FAA and Port after Dr. Hockaday brought the FAA Report to the Corps'
attention:
Below is our thought process for trying to get our arms around the questions of delay...
The Port and FAA identified poor weather delay as the major justification for the
construction of the 3r runway.
The Port and FAA have predicted that delays during poor weather will result in an
unacceptable level of delay in the planning future.
We (the Corps) originally assumed that it would be relatively easy to demonstrate that the
model trends were consistent with real conditions recorded at the airport. What we now
understand. however. is that it may be difficult to demonstrate how poor weather currently
results in operational delay with the existing data.
The Bottom Line: We understand that a 3 runway will improve efficiency at Sea -Tac
and we understand that this would be a desirable condition for the Port. However we have
not yet independently arrived at the conclusion that a 3 runway is necessary.
A little more than a month to the day after the Corps Project Manager questioned the
need for a 3rd runway, Mohammed Atta flew American Airlines Flight 11 into the North
Tower.
b. The FAA Has Now Discarded the Forecast the Corps Relied Uoon.
The Corps ROD glosses over the dramatic and continuing downward slide in air travel
nationally and at Sea -Tac, concluding that "recent forecasts predict continued increases in
aircraft operations and continued worsening of aircraft delay during poor weather
conditions.s The sole "data" support for this conclusion is a bare claim in an August 7,
2002, letter from the local FAA manager for airports that "operational levels nationwide are
65 AR 043835 -30 and AR 052487.
66 ROD at 104 (AR 053992).
67 AR 036475 (italics in original; underlining added).
68 ROD at 3 (AR 054093).
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 21
CV02 -2483R
460,000 annual aircraft operations will not be exceeded until at least 2013 three years
beyond the end of the FEIS planning period (Year 2010). Ex. E to Stock Decl. and AR
062519 -518.
c. Airline Industry Changes Demonstrate the 3RW Is Not in the Public
Interest.
Six months before the Corps issued its permit, airline chief executives were warning
that the industry will have to shrink by a third before profitability returns. AR 051579. "It's a
simple issue of supply and demand, but it's one that airlines have failed to address for 50
years." AR 051578. "The airline industry's profit margin averaged just 3% from 1947 to
2000, even before the September 11 attacks cut air travel by a third and led to losses that were
greater than all the profit ever generated by airlines in the history of flying." Id.
Four months prior to the Corps' issuing its decision, U.S. Airways filed for
bankruptcy. AR 053510. A month prior to the Corps' decision, National Airlines ceased
operations and all of its flights in and out of Sea -Tac were cancelled. AR 052653. Eleven
days prior to the Corps decision, the CEO of Continental Airlines said he thought that a 15%
cut in flights across the nation's air system would be needed for airlines to become profitable.
AR 053510. And, four days prior, United Airlines filed for bankruptcy, the sixth largest ever
filed. AR 053507. In addition, American Airlines, Delta and almost all the other large
carriers continue to lose money and are on the brink of bankruptcy. AR 053510 and 052653.
The Corps ROD confirms that it turned a deaf ear, despite ACC's repeated calls for it
to independently analyze industry issues as part of its public interest review of the Port/FAA
claims of need for a 3RW. Nor does the FAA in its August 2001 ROD or its August 7,
2002, letter to the Corps, upon which the Corps relied in issuing the permit, address the
impact of the devastated, financially bankrupt industry on 3RW need claims.
"See AR 009593, 009588, 009582, 009571, 033162, 041237 -36, 041203, 04I201, 041197, 043816, 047056 -52,
050609, 051288, 051579, 051692, 051991, 052091, 052483, 052578, 052653, 053472, and 053512; see also AR
041515 -513; AR 052398 -396; AR 053410-408; 053483-482; 053486-484; 053492-488.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 23
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Proposed Stay out of areas of
racing ordinance (SOAR)
Chief Keith Haines
Tukwila Police Department
Proposed SOAR Ordinance
Rationale
Racing has developed into a significant problem for
Tukwila and our region. Racers gather in large
numbers and race on public and private streets.
They drive recklessly, disobey traffic laws and risk
their lives and the lives of others. The racing we
have experienced in Tukwila is usually in our
commercial business district and has lessened with
temporary closure of S. 180th Street. We believe that
the racers will return once South 180th reopens. We
are putting forth this ordinance as a preventive
measure to keep racing from strongly returning to our
city.
Proposed SOAR Ordinance
Background
Our City Attorney Bob Noe has drafted the
ordinance with input from our police
department on designated "No Racing Zones."
The ordinance is based on an
ordinance that has been in effect in Kent for
more than a year. The Kent City Attorney's
Office believes that this ordinance has been a successful tool for them.
Proposed SOAR Ordinance
Highlights
Reduces hazards associated with illegal
racing on roadways and on private
property
Reduces criminal trespass problems
associated with racing at local businesses
in the effected areas
Proposed SOAR Ordinance
Highlights
Why not cite using RCW 46.61.530
RCW 46.61.530 racing of vehicles on highways
(reckless driving is limited in
scope to "highways")
TMC 8.73.040 designates "no racing
zones" which includes private roadways
sidewalks parking areas and adjoining
properties which provides us with a better
tool in dealing with the racing in our
industrial complex
Proposed SOAR Ordinance
What is it?
Prohibits unlawful race attendance in designated zones
A SOAR order prohibits persons charged
with the above, including reckless driving
associated with race activity or trespass
associated with race activity from engaging
in unlawful race attendance within a no
racing zone
Proposed SOAR ordinance
What is it?
A SOAR order may be issued as a
condition of pre-trial release sentence or
deferred sentence to any person charged
with unlawful race attendance
Unlawful race attendance is a misdemeanor
A SOAR violation is a gross misdemeanor
Designated "no racing zones" as depicted
on page 4 in the draft
Proposed SOAR ordinance
Kent adopts like Ordinance 5 June 1st
Measured effectiveness since
enactment (per Kent city Prosecutor
Michelle Walker)
30 citations per violation at each emphasis
Significant reduced racing activity within the city
Partnerships between PD Prosecutor's Office
and business
MEMORANDUM
City of Tukwila
Police Department Keith E. Haines, Chief of Police
An Accredited Agency
TO: Mayor Steve Mullet
City Administrator John c and
FROM: Chief Keith Haines
DATE: September 23, 2002
SUBJECT: Proposed Unlawful- Racing Ordinance
Racing has developed into a significant problem for Tukwila and our region. Racers
gather in large numbers and race on public and private streets. They drive recklessly,
disobey traffic laws and risk their lives and the lives of others. The racing we have
experienced in Tukwila is usually in our commercial business district and has lessened
with the temporary closure of South 180` Street. We believe that the racers will return
once South 180` reopens. We are putting forth this ordinance as a preventive measure to
keep racing from strongly returning to our city.
Our City Attorney, Bob Noe, has drafted the ordinance with input from our police
department on designated "No Racing Zones The ordinance is based on an ordinance
that has been in effect in Kent for more than a year. The Kent City Attorney's Office
believes that this ordinance has been a successful tool for them.
We have video of racing and officers who have witnessed the racing here and in our
neighboring cities. Please let me know if you would like to see the video or hear the
officer accounts. They may be useful if you choose to have me take the ordinance on to
the Finance and Safety Committee.
Please let me know if you have any questions.
cc: City Attorney Bob Noe
Sgt. Bruce Linton t/
Sgt. Larry Richardson
File
Steven M. Mullet, Mayor
6200 SouthcenterBlvd. Tukwila, WA 98188 Phone: 206-433-1808 Admin. Fax 206-244-6181; Invest. Fax 206 431 -3688
AN ORDINANCE OF THE CITY OF TUKWILA,
WASHINGTON, CREATING A NEW CHAPTER OF THE
TMC, CHAPTER 8.XX, RELATING TO UNLAWFUL RACE
ATTENDANCE; CREATING A NEW CHAPTER OF THE
TMC, CHAPTER 8.XX, RELATING TO "STAY OUT OF
AREAS OF RACING ORDERS; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE
DATE
WHEREAS, in the interest of public health, safety, and welfare, the City Council desires to
make it unlawful for individuals to engage in racing or to attend unlawful races within designated
no racing zones;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1 1 Jnlawfiil R ace Attrndann A new chapter of the Tukwila Municipal Code,
Chapter 8.XX, entitled "Unlawful Race Attendance," is hereby established to read as follows:
Chapter 8.XX UNLAWFUL RACE ATTENDANCE
Sections:
8.XX.010 Definitions.
8.XX 020 Unlawful race attendance Prohibited.
8.XX.010 Definitions.
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CITY OF TUKWILA
WASHINGTON
ORDINANCE NO. 0
Unless the context clearly requires otherwise, the definitions in this section shall apply throughout
this chapter.
A. Public place means an area, whether publicly or privately owned, generally open to the
public and includes, without limitation, the doorways and entrances to buildings or dwellings and
the grounds enclosing them, streets, sidewalks, bridges, alleys, playas, parks, driveways, and
parking lots.
B. Unlawful race event means an event wherein persons willfully compare or contest
relative speeds by operation of one or more motor vehicles.
1-
8.XX.020 Unlawful race attendance Prohibited.
Any person (1) who has actual or constructive knowledge that they are in a designated SOAR area
between the hours of 10:00 p.m. and 4.00 a.m., and (2) who has actual or constructive knowledge
that an unlawful race event is occurring, has occurred, or is about to occur, and (3) intends to
observe or support or encourage the unlawful race event, is guilty of a misdemeanor.
Section 7 Stay Out of Area of Racing SOAR A new chapter of the Tukwila Municipal
Code, Chapter 8.XX, entitled "Stay Out of Areas of Racing SOAR," is hereby established to read
as follows:
CHAPTER 8.XX STAY OUT OF AREAS OF RACING SOAR
Sections:
8.XX.010 Stay Out of Areas of Racing Abbreviation.
S.XX.020 SOAR orders.
8.XX.030 SOAR orders Issuance.
8.XX.040 SOAR orders Designated "No Racing Zones."
8.XX.050 SOAR orders Violation.
8.XX.010 Stay Out of Areas of Racing Abbreviation.
As used in this title, the acronym "SOAR" represents "Stay Out of Areas of Racing."
8.XX.020 SOAR orders.
A SOAR order prohibits persons from engaging in racing or unlawful race attendance within a no
racing zone, as set forth in TMC 8.XX.040, between the hours of 10:00 p.m. and 4.00 a.m.
8.XX.030 SOAR orders Issuance.
A. The municipal court may issue a SOAR order to any person charged with racing,
unlawful race attendance, reckless driving associated with race activity, or trespass associated with
race activity as a condition of pre -trial release, sentence, or deferred sentence.
13. A person is deemed to have notice of the SOAR order when:
1. The signature of either the person named in the order or that of his or her attorney
is affixed to the bottom of the order, which signature shall signify the person named in the order has
read the order and has knowledge of the contents of the order; or
2. The order recites that the person named in the order, or his or her attorney, has
appeared in person before the court at the time of issuance of the order.
C. The written SOAR order shall contain the court's directives and shall bear the statement:
"Violation of this order is a criminal offense under TMC 8.XX.030 and will subject the violator to
CKTEMP\SOAR-DOC /3/09/23/02
2
arrest."
8.XX.040 SOAR orders Designated "No Racing Zones."
A. The SOAR order may apply to any of the following "No Racing Zones" between the
hours of 10:00 p.m. and 4.00 a.m.:
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1. Seagale Business Park, including:
a. Andover Park West from Tukwila Parkway to Segale Drive C;
b. Segale Drive A;
c. Seagale Drive B;
d. Segale Drive C;
e. Segale Drive D;
2. Southcenter South Business Park, including:
a. Todd Boulevard;
b. Olympic Avenue South;
c. Riverside Drive;
d. Glacier Street;
3. Andover Park East from Tukwila Parkway to South 180th Street;
4. Corporate Drive North;
5. Corporate Drive South;
6. Midland Drive;
7. Minkler Boulevard from Southcenter Parkway to 600 Industry Drive;
8. Strander Boulevard from Southcenter Parkway to West Valley Highway;
9. Triland Drive;
10. Upland Drive;
11. West Marginal Place from the 10000 block to the 11000 block; and
12. West Valley Highway from Southcenter Boulevard to South 190th Street.
B. These "No Racing Zones" include any highway, as that term is defined in RCW
46.04.197, together with adjoining property areas (such as sidewalks, entryways, landscaped areas,
and parking areas) if those adjoining areas are being used for racing or unlawful race attendance.
These "No Racing Zones" shall be designated by the placement of clear and conspicuous signs at
all highway entrances to the no racing zone. At a minimum, these signs must include the following
statements: No Racing Zone; Race Attendance Prohibited; TMC 8.XX.020. [SITE TO SECTION
-3-
1, .020 PROVISION]
8.XX.050 SOAR orders Violation.
A. In the event a police officer has probable cause to believe that a person has been issued a
SOAR order as a condition of pre -trial release or a sentence imposed by the court and, in the
officer's presence, the person is seen violating or failing to comply with any requirement or
restriction imposed upon that person by the court as a condition of his or her pre -trial release or
condition of sentence, the officer may arrest the violator without warrant for violation of the SOAR
order and shall bring that person before the court that issued the order.
B. When a SOAR order is issued pursuant to this chapter and the person so named in the
order has notice of the order, a violation of any of the provisions of the SOAR order is a gross
misdemeanor and shall be punishable by a fine not to exceed five thousand dollars ($5,000) or
imprisonment not to exceed more than one (1) year, or both.
Section 1 Severahility. Should any section, paragraph, sentence, clause or phrase of this
Ordinance, or its application to any person or circumstance, be declared unconstitutional or
otherwise invalid for any reason, or should any portion of this Ordinance be pre empted by state or
federal law or regulation, such decision or pre emption shall not affect the validity of the remaining
portions of this Ordinance or its application to other persons or circumstances.
Section 4 Effective Date This Ordinance shall be published in the official newspaper of
the City, and shall take effect and be in full force five (5) days after the date of publication.
ADOPTED BY THE CITY COUNCIL AT A REGULAR MEETING THEREOF ON
THE DAY OF 2002.
ATTEST /AUTHENTICATED:
Jane Cantu, City Clerk
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4
CITY OF TUKWILA
Mayor Steven M. Mullet
Approved as to form:
Robert F. Noe, City Attorney
Filed with the City Clerk:
Passed by the City Council:
Date of Publication:
Effective Date:
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