Beijing Air seeks to stop flight suspension

The company that operates Beijing Airlines wants the federal court to stop the Commonwealth Ports Authority from preventing it from landing at the Francisco C. Ada-Saipan International Airport.

Beijing Capital Beijing Co. Ltd. is suing CPA and its executive director, Christopher S. Tenorio, from preventing the company from accessing the Saipan airport based upon a resolution by the CPA board.

Beijing Air, through counsel Daniel T. Guidotti, is suing Tenorio and CPA for alleged violation of the supremacy clause, and for alleged violations of procedural due process and equal protection against Tenorio.

Beijing Air asked the U.S. District Court for the NMI to issue an injunction that would stop CPA and Tenorio from enforcing CPA board resolution 2017-03—the 60-day suspension of new international flights into the CNMI.

Beijing Air asked the court to declare the resolution void and unenforceable as it is preempted by federal law and deprives Beijing Air of due process and of equal protection of the laws.

Beijing Air is asking for court costs.

U.S. District of Guam Chief Judge Frances Tydingco-Gatewood will handle the case. U.S. District Court for the NMI Chief Judge Ramona V. Manglona recused herself yesterday due to conflict.

Manglona’s brother, Thomas P. Villagomez, is a CPA board vice chairman.

Guidotti said that, on June 14, 2017, the CPA board adopted a resolution in which CPA declared that it was banning “all new international airline service” for 60 days.

Although the U.S. Department of Transportation has yet to approve the resolution, Guidotti said that Tenorio and CPA have nevertheless enforced the resolution against Beijing Air.

Guidotti said that last June 16, CPA, through Tenorio, informed Beijing Air that it would not sign an airline use agreement with Beijing Air after the 60-day ban is lifted.

Since CPA regulations require Beijing Air to enter into an airline use agreement with CPA before Beijing Air can use the airport, its refusal to sign an airline use agreement excludes Beijing Air from the airport, Guidotti said.

He said that federal law preempts CPA’s attempt to deny Beijing Air access to the airport. He cited 49 U.S.C. Section 41713(b), which provides that “no state, or any political subdivision of a state (including the Commonwealth) can enact or enforce a law, regulation, or anything similar to a law or regulation that affects the price, route, or service of an air carrier.”

Guidotti asserted that Tenorio’s attempts to force the CPA board’s resolution violates both the Supremacy Clause and the 14th Amendment of the U.S. Constitution.

He pointed out that USDOT granted Beijing Air’s application to expand its international flight service to Saipan last Jan. 17 and issued it a foreign air carrier permit.

Guidotti said that permit authorizes Beijing Air to fly between Hangzhou, China, and Saipan.

From late 2016 through 2017, Beijing Air began negotiating with CPA about arrival times for flights from Hangzhou to Saipan. Last May 3, after discussion and consultation with Customs and Border Protection, CPA gave Beijing Air two weekly flight times. In that May 3 letter, CPA reportedly authorized Beijing Air to begin bringing flights to Saipan on June 22, 2017.

During the time that Beijing Air and CPA were negotiating Beijing Air’s flight schedule, Beijing Air and CPA discussed entering into an airline use agreement.

After May 3, Beijing Air informed CPA that it would begin flights to Saipan starting June 29, 2017.

Upon receiving the May 3 letter from CPA, Beijing Air began promoting its new Hangzhou-China route and began selling tickets in China.

Guidotti said Beijing Air sold more than 2,000 tickets for its Saipan flights, including all flights in July. The majority of these tickets have been prepaid.

Beijing Air reserved hotel rooms for these 2,000 travelers via cash deposits made to local resorts, amounting to more than $600,000.

Last June 6, Guidotti said, Beijing Air received a cryptic email from CPA executive deputy director Edward Mendiola, in which Mendiola informed Beijing Air that CPA was going to implement a temporary ban on “all new airline flights” arriving at the airport and that the ban would be effective June 14, 2017.

Guidotti said Mendiola did not explain why CPA was imposing the 60-day ban.

On June 9, 2017, CPA supplied Beijing Air with a letter, signed by Gov. Ralph DLG Torres, in which Torres asked CPA for “a formal resolution from the CPA board…to suspend any new airline flights into the CNMI for the next 60 days (or until further notice).”

Torres’ letter does not explain why he was requesting CPA to issue a 60-day bar on new airline flights.

Last June 13, Beijing Air sought clarification from Tenorio regarding the implementation of the 60-day ban.

On June 14, Guidotti said, the CPA board met at a special meeting and adopted a resolution that CPA was banning all “all new international airline service” for a period of 60 days.

The resolution also directed CPA management to seek approval of the 60-day flight ban from the USDOT.

Guidotti said that consistent with the CPA resolution, CPA sent a letter to USDOT requesting the latter’s “concurrence” in the 60-day ban on new international flight service.

In CPA’s response letter on June 16 to Beijing Air’s June 13 letter, Tenorio stated that suspension of new airline service into the CNMI included Beijing Air.

Guidotti said Tenorio further stated that CPA would not execute an airline use agreement with Beijing Air or permit Beijing Air access to the airport until the 60-day ban was lifted.

Guidotti said CPA’s refusal to enter into an airline use agreement with Beijing Air functionally excludes Beijing Air from the airport.

Guidotti said CPA has never communicated to Beijing Air the reason for the 60-day new airline ban.

The lawyer said CPA has, to date, failed to provide Beijing Air with a hearing or other procedural process regarding the suspension of new international flights to Saipan, including Beijing Air’s scheduled June 29 flights.

Guidotti said CPA has acknowledged that Beijing Air is the only carrier affected by the CPA’s 60-day new flight ban.

Guidotti said CPA has permitted other air international air carriers to increase the number of flights to and from Saipan.

The lawyer said if the court does not grant a TRO or a preliminary injunction against Tenorio and CPA, Beijing Air will suffer irreparable injuries, including substantial losses of reputation and goodwill in China because the company will have to refund 2,000 tickets, and on Saipan, because the company will have to seek refunds of the more than $600,000 in room deposits that the company has already paid.