FAA jurisdiction over SEAPLANES — not preempt all that it SEES

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Demo Pilot Agrees To Stop Landing Amphib Near St. Louis Arch

Landings Are Legal, But Have Raised Concerns

Fire chief says ICON A5 landings in Mississippi pose public safety issues

Orders STOP and pilot agrees

does FAA preempt?

 

 

 

 

 

 

Rick Reif, the regional sales manager for Icon, like any safe pilot, but particularly someone taking the ICON A5 out for a demonstration flight, made all of the preflight checks required for the plane. Also, when he checked in with ATC, he told ATC of his intentions to land in the Mississippi near downtown St. Louis, in front of the Gateway Arch.

Reif also briefed himself on the various potential hazards around and in the water where he intended to land his amphibious aircraft. Its ability to take-off and land both on/from the water and on/from land was the intention for this demonstration operation.

 

Such landings are legal under Missouri law, which allows the water landings if the river is clear. But Missouri Revised Statutes, 305.030, also reads, in part: “…flight in aircraft over the lands and waters of this state is lawful, unless at such a low altitude as to interfere with the then existing use … Or unless so conducted as to be imminently dangerous to persons or property …”

St. Louis Fire Chief Dennis Jenkerson asserted that, based on his jurisdiction over “public safety”, the flights have to stop.

“People are caught off guard,” the Chief ordered. “They’re {drivers on roads and bridges] trying to text they think they saw a plane went down. It causes me great concern. My job is public safety. I think we’ve got an issue with him landing on the river…the Coast Guard didn’t know about this and they control the river traffic.”

Rief to conduct such landings away from downtown St. Louis, either north of the Chain of Rocks Bridge or south of the Jefferson Barracks Bridge.

The FAA is most zealously guards of preempted jurisdiction. Did Chief Jenkerson invade the FAA’s powers to regulate safety of seaplane aircraft operations  and to control air traffic?

At first blush, given the expansive nature of the FAA’s safety jurisdiction, one would assume YES. The agency has rules on siting of seaplane bases and water operating areas, the answer is more complicated. The best, most comprehensive, but not authoritative[1] analysis is found at the Seaplane Pilots Association’s FAQs page:

How do I determine where I can legally land a seaplane?

While most pilots assume the FAA has jurisdiction over landing areas, including water based landing areas, the truth is much more complex. Jurisdiction rests with the person or organization that “owns” the waterway. This may be a federal or state agency, a local government, a private corporation, an individual or any combination of these.

Determining who controls a waterway is the first step in determining whether it is legal to land on that body of water.

Another complication enters the picture with overriding jurisdictions, most commonly state-imposed seaplane base licensing requirements. In several states, notably Ohio, New Jersey and Indiana, seaplanes may not land unless the proposed landing area is certified as a seaplane base, regardless of whether the waterway owner provides permission or not. To determine whether this is an issue in your area, call your state aeronautics office (often a division of the state department of transportation), check the Water Landing Directory.

So the Chief appears to have exceeded his authority under Missouri law, but it would require the opinion of a great federal preemption scholar (see inter alia fn. 1) to determine whether the FAA has sufficiently occupied the field to preempt Jenkerson’s public safety powers. Mr. Reif’s accession to land at other points may have mooted the reason to get an erudite opinion.

 

 

 

 

 

 

 

[1] The opinions of the association are not binding; only the only sources of controlling answers are the FAA Chief Counsel, the DOT General Counsel and the DOJ Office of Legal Counsel.



 

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