FAA’s Involvement at Standing Rock Explained
1. Nothing in this blog is intended to take a position on the merits of Standing Rock pipeline protest in North Dakota. 2. The First Amendment rights of journalists to photograph the site using drones is not a subject of this blog; no claim to be an expert at Freedom of the Press is made here. 3. The behavior of the law enforcement authorities and of the protestors is subject to considerable debate. The intent is neither to support nor to endorse either side’s tactics.
That said, it is worth noting that in this situation, blame has been unfairly ascribed (suggested by innuendo) on an issue tangential to Standing Rock. Several authors have written articles suggesting that the current TFR issued to prohibit aircraft from flying over the site was an independent exercise of jurisdiction by the Federal Aviation Administration.
It is true that the FAA has exclusive jurisdiction to issue traffic restrictions on a temporary basis. It, indeed, used a NOTAM to prohibit aircraft from flying over this site. The FAA public affairs made it clear that a request from an LEO was the basis of this action:
The regulatory basis is 14 CFR §91.137, which states (as it has stated since its final promulgation in 1991):
§ 91.137 Temporary flight restrictions in the vicinity of disaster/hazard areas.
(a) The Administrator will issue a Notice to Airmen (NOTAM) designating an area within which temporary flight restrictions apply and specifying the hazard or condition requiring their imposition, whenever he determines it is necessary in order to—
(1) Protect persons and property on the surface or in the air from a hazard associated with an incident on the surface;
(2) Provide a safe environment for the operation of disaster relief aircraft; or
(3) Prevent an unsafe congestion of sightseeing and other aircraft above an incident or event which may generate a high degree of public interest.
The Notice to Airmen will specify the hazard or condition that requires the imposition of temporary flight restrictions.
(b) When a NOTAM has been issued under paragraph (a)(1) of this section, no person may operate an aircraft within the designated area unless that aircraft is participating in the hazard relief activities and is being operated under the direction of the official in charge of on scene emergency response activities.
(c) When a NOTAM has been issued under paragraph (a)(2) of this section, no person may operate an aircraft within the designated area unless at least one of the following conditions are met:
(1) The aircraft is participating in hazard relief activities and is being operated under the direction of the official in charge of on scene emergency response activities.
(2) The aircraft is carrying law enforcement officials.
(3) The aircraft is operating under the ATC approved IFR flight plan.
(4) The operation is conducted directly to or from an airport within the area, or is necessitated by the impracticability of VFR flight above or around the area due to weather, or terrain; notification is given to the Flight Service Station (FSS) or ATC facility specified in the NOTAM to receive advisories concerning disaster relief aircraft operations; and the operation does not hamper or endanger relief activities and is not conducted for the purpose of observing the disaster.
(5) The aircraft is carrying properly accredited news representatives, and, prior to entering the area, a flight plan is filed with the appropriate FAA or ATC facility specified in the Notice to Airmen and the operation is conducted above the altitude used by the disaster relief aircraft, unless otherwise authorized by the official in charge of on scene emergency response activities.
(d) When a NOTAM has been issued under paragraph (a)(3) of this section, no person may operate an aircraft within the designated area unless at least one of the following conditions is met:
(1) The operation is conducted directly to or from an airport within the area, or is necessitated by the impracticability of VFR flight above or around the area due to weather or terrain, and the operation is not conducted for the purpose of observing the incident or event.
(2) The aircraft is operating under an ATC approved IFR flight plan.
(3) The aircraft is carrying incident or event personnel, or law enforcement officials.
(4) The aircraft is carrying properly accredited news representatives and, prior to entering that area, a flight plan is filed with the appropriate FSS or ATC facility specified in the NOTAM.
AC No: 91-63D, issued in 2015 by AJV-1, entitled “TEMPORARY FLIGHT RESTRICTIONS (TFR) and Initiated Flight Limitations” further states who may request a TFR:
13. WHO CAN REQUEST A TFR?
TFRs may be requested by various entities, including: military commands; federal security/intelligence agencies; regional directors of the Office of Emergency Planning, Civil Defense State Directors; civil authorities directing or coordinating organized relief air operations (e.g., Office of Emergency Planning; law enforcement agencies; U.S. Forest Service; state aeronautical agencies); State Governors; FAA Flight Standards District Office, aviation event organizers, or sporting event officials.
6/1887 NOTAM followed standard FAA procedures.
Some might argue that the FAA’s issuance reflects its support for the federal government against the Standing Rock Sioux Tribe. That position asserts that the FAA should interpose its judgment as to whether the situation merits a TFR.
The source of the request for this TFR has not been publicly identified. However, it is clear that the Department of Justice, the Department of the Army (Corps of Engineers), the Department of the Interior, the State of North Dakota and North Dakota Tactical Operation Center are the parties adverse to the protestors. The DoJ is the ultimate authority within the Executive Branch on the exercise of agency powers, including the FAA. If Justice requested the TFR, the FAA practically was placed in a ministerial position.
This view, that the FAA can and may interpose its judgment on the issuance of the need for a TFR, joins a litany of opinions expressed by third parties that the FAA should exercise special legal judgments, that is, to make determinations well beyond its safety competence. Two examples are:
The proposition must be based on that the FAA has the knowledge to determine whether a specific situation does or does not merit issuance of a TFR. In essence that would require the safety agency to review whether the LEO is correct in its determination that such an airspace protection is needed FOR PROBLEMS ON THE GROUND. Even more fantastic is the suggestion that in deciding which party on the ground may have been the cause of the need for a TFR and then to decide in favor of the harmed party; really?
The initial premise of those castigating the FAA for intervention appears to lie with the incorrect assumption that the initiative for issuing comes from the FAA. The FARs, the AC and history demonstrates the fallacy of such a supposition. It is comparable to assuming that a finding of probable cause is the equivalent of a determination of liability. Both observations evidence a superficial understanding of the law.
The conflagration at Standing Rock is unfortunate; wherever fault may be found, the FAA should not be considered as part of that circle of shame.