PEER and HICoP file lawsuit to compel FAA to comply with National Air Tour Management Plan for National Parks (2000)

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PICTURES FROM A RECENT PUBLIC MEETING ON THE BIG ISLAND

‘We have 40 years of complaints’: Group files lawsuit against FAA

National Parks Air Tour Management Act

Federal Aviation Administration and National Park Service

Plan due 2004- lawsuit to order Plan within 24 months

I-Legal Background

In 2000 the Congress enacted National Parks Air Tour Management Act (Public Law 106-181, 49 U.S. Code § 40128)(NPATMA). This legislation was passed in response to public outcries about noise from aircraft being operated over National Parks. NPATMA required the FAA to issue an Air Tour Management Plan (ATMP) when whenever a person applies for authority to conduct a commercial air tour operation over the park[1] where such a plan is not in effect.” NPATMA instructs the FAA to issue said plan, or voluntary agreement, WITHIN 24 MONTHS.

Currently the FAA has only done the following:

Voluntary Agreements

Currently, voluntary agreements are being pursued at the following national park units:

Badlands National Park

Glen Canyon National Recreation Area

Voluntary agreements have been completed at the following national park units:

Big Cypress National Preserve

Biscayne National Park

The FAA provides a link to the full universe of National Parks subject to the National Parks Air Tour Management Act and the link takes you to the NPS site listing all of its parks (all have 50+ flights)

The FAA Air Tour Management Plan site begins with the following ironic sentence:

The FAA is working diligently in cooperation with the National Park Service (NPS) to implement the National Park Air Tour Management Act of 2000, which was signed into law on April 5, 2000.

The FAA issued 14 CFR Part 136 “Commercial Air Tours and National Parks Air Tour Management in 2002 (the docket shows an ANPRM, 2 public meetings and 9 years from the initial document to the final. NOTE: some of that may be attributable to the 2000 enactment).

The ATMP page includes the following updates:

What’s New With the Air Tour Management Plan (ATMP) Program
September 5, 2018

In an August 13, 2018 Federal Register notice, the FAA and NPS provided a notice of an upcoming meeting of the National Parks Overflight Advisory Group (NPOAG). The meeting will be held at the Hilton Garden Inn in Henderson, NV on September 18. More details on the meeting are provided in the notice.

….

In an April 10, 2018 Federal Register notice, the FAA and NPS published the list of exempt parks for 2016. This list identifies parks which had 50 or few annual air tour operations and therefore, are exempt from the requirements of needing to prepare an air tour management plan or a voluntary agreement.

The FAA and the NPS announce the availability of draft commercial air tour voluntary agreements for Glen Canyon National Recreation Area and Rainbow Bridge National Monument. These agreements will guide how the FAA and NPS manage commercial air tours flown over these two park units. They are available for an approximate 45-day public review beginning December 13, 2017, and ending January 26, 2018. Copies of the draft agreements are available at https://parkplanning.nps.gov/AirTourAgreement. Those wishing to comment may submit comments online or by mail to Superintendent, Glen Canyon National Recreation Area, P.O. Box 1507, Page Arizona 86040….

In 2008 the FAA FSDO in Honolulu issued a Hawai’i Air Tours Common Procedures Manual. The document includes the following mandatory[2] language before it lists the requisite training, route knowledge, night tour limitation and several pages of instructions

All commercial air tour operators, authorized to conduct operations below 1,500’ above ground level (AGL) within the state of Hawaii, must comply with the requirements and limitations set forth in this manual.

The manual has appendices with maps (color coded and photographs which spell out appropriate procedures for the 7 Hawaiian Islands

The FAA published the names of the existing operators who have applied for and received Interim Operating Authorities for national parks and/or tribal lands over which they fly, and the number of operations authorized for each park and/or tribal land. Operators and locations include hundreds of IOAs.

 

At which comments were requested on a draft ATMP for the Park- 20 pages of maps and alternatives, but a search found no subsequent action.

 

 

 

 

 

 

 

 

 

 

 


II-The Litigation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A lawsuit has been filed in the USDC (DC) by the Public Employees for Environmental Responsibility (PEER) and the Hawaiian Island Coalition Malama Pona (HICoP), two public interest groups (National and Hawaiian in scope respectively) against the FAA

for injunctive and declaratory relief to require the Defendant, the Federal Aviation Administration (“FAA”), to develop an Air Tour Management Plan (“ATMP”) or voluntary agreements as directed by statute for

  • Hawaii Volcanoes National Park,
  • Haleakalā National Park,
  • Lake Mead National Recreation Area,
  • Muir Woods National Monument,
  • Glacier National Park,
  • Great Smoky Mountains National Park, and
  • Bryce Canyon National Park (hereinafter “parks impaired by overflights” (“PIO”)) within two years.

The papers assert that the FAA has violated the Administrative Procedure Act, the NPATM and NEPA for failing to issue the required plans.

It will be interesting to see how the FAA answers; the well written complaint appears to be very strong. Seeking injunctive and declaratory relief against a federal agency, but this cause of action may reach such relief.

 

 

 



 

 

 

 

 

 

[1] Applies only to parks with more than 50 flights per year.

[2] The document does not reference any APA or Federal Register steps necessary for the document to be “mandatory.

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