NPS and FAA receive a well-deserved UNSAT for their lack of progress [22 years] on National Parks Air Traffic Plans

National Parks under the the National Park Air Tour Management Act of 2000National Parks under the the National Park Air Tour Management Act of 2000
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Congress in 2000 mandated that NPS and FAA design plan with parks and planes coexisting

Not an easy task with Aviation safety/Air Traffic, Environment, Tribal Interests, Incumbent Operators, Hikers, etc.

Public Interest group (PEER) has convinced a US Court of Appeals that their efforts are FAILING

The United States Court of Appeals for the District of Columbia Circuit issued a terse order requiring that two agencies explain how they have delayed completing statutory mandates imposed in 2000. What is surprising is that the tone of the Court’s action was not more vituperative. Important American resources have not been protected; judges are supposed to be tempered in their word selections.

Twenty-two years ago, Congress passed the National Park Air Tour Management Act of 2000 (actually a Part of the Wendell H. Ford Aviation Reform and Investment Act for the 21st Century) (NPATMA). It mandated that the Federal Aviation Administration and the National Park Service design a plan that balanced the environment of the Parks while allowing the air tours which had burgeoned by the demand of visitors to appreciate the natural treasures.

In 2017  Public Employees for Environmental Responsibility (PEER) and Hawai’i Island Coalition Malama Pono (HICoP) petitioned the US District Court (DC) for a writ of mandamus against the FAA for its failure to meet NPATMA’s mandate. The request was denied on jurisdictional grounds. In 2019 and another two years without a plan, the same petitioners went to the US Court of Appeals for the District of Columbia. The basis for jurisdiction was the failure of the two agencies to issue air traffic management plans (ATMP) for any of the relevant parks[1].

The Court after further pleadings and argument ordered the FAA and NPS to submit plans to bring twenty-three specific parks into compliance with “NPATMA”):

Court opinion

The order further directed the agencies to file a progress update on November 30, 2020, and to file subsequent updates at 90-day intervals thereafter.

 

  1. Initial Plan

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  1. 1st update

 

 

 

  • .2nd Update

1st update on plan

  • 3.3rd Update

 

2nd update

 

 

 

 

 

 

 

 

The lack of active verbs, the headings indicating closed status with 100% open items, among other reasons may have moved the petitioners as well as the Court to take further action.

  1. 4th Update

update 3rd

 

 

 

 

 

 

 

 

Some progress

  1. 5TH Update

 

4th update

 7. 6th Update

6th Update

 

 

 

 

 

 

 

 

NPS’ and FAA’s admission that CatEx was being prepared precipitated the PEER refiling of a request for Court action and the order issued by the Court.

 

No doubt that both agencies are busy and the complexity of these 23 cases are reasons for delays—1 or 2 years might be justified, but 22 years are  unreasonable. The substance of noise metrics, the infinite options of operational safety concerns, the noise incursion of the flights on hikers and the tribes, the conundrum of reducing existing sightseeing carriers (many are small businesses carrying statutory federal limitations), conflicting stakeholders (tribes, aviation companies, Park Service allies, ground tours, hikers and their associations) pose challenges bordering the Riemann Hypothesis[2].

That said, the 22  years of consideration must have produced more than the tables filed with the court.

Flight over Hale akala

 


 

National Park Service, FAA Ordered To Explain Delays With Air Tour Plans

National Park Service, FAA Ordered To Explain Delays With Air Tour Plans

By Kurt Repanshek – June 28th, 2022

Court Order

 

 

 

A federal appellate court has given the National Park Service and Federal Aviation Administration until late July to explain why they are so behind in crafting air-tour management plans for many units of the National Park System.

The one-paragraph order handed down Tuesday by the U.S. Court of Appeals for the District of Columbia directs the two agencies to “(1) explain why the agencies were unaware that they were behind schedule as of their November 24, 2021 status report; (2) propose firm compliance dates for each park; and (3) provide the legal basis for any anticipated categorical exclusion and the date by which the agencies will make that determination.”

The issue of air-tour management plans for the National Park System has been hanging over the NPS and FAA for more than two decades. Back inPEER March, almost two years after a federal judge ordered the agencies to get the job done by this summer, they said the air-tour plans for eight national parks would not be completed on schedule.

When the agencies reported that situation to the court in MarchPublic Employees for Environmental Responsibility asked the court to suspend all overflights across those parks that haven’t finished their plans by August. The parks involved are Lake Mead National Recreation AreaCanyon de Chelly National MonumentGlen Canyon National Recreation AreaRainbow Bridge National MonumentMount Rushmore National MemorialBadlands National ParkHawaiˈi Volcanoes National Park, and Haleakalā National Park.

In Tuesday’s order, the court declined to limit air tours at parks that haven’t finalized their air-tour plans, but left open the possibility that that issue could be revisited.

 

 National Park Air Tour Management Act of 2000

It was 20 years ago that the National Park Air Tour Management Act of 2000 was implemented and required the FAA, in coordination with the NPS, to set limits on overflight numbers, timing, and routes to protect park resources and the visitor experience from noise and disruption in any park with more than 50 overflights a year. After what some saw as intransigence, in May 2020 a federal judge ordered the Park Service and FAA to complete air-tour management plans by the end of this August for several parks.

For more than a year, the FAA and NPS filed quarterly progress reports with the court. In their latest filing, in late February, the agencies said they would be unable to complete plans for the eight parks with some of the highest levels of air traffic within that deadline. At the time, the agencies said that:

  • Lake Mead and Canyon de Chelly would take at least another year;
  • Glen Canyon and Rainbow Bridge would take at least another 18 months; and
  • Mount Rushmore, Badlands, Hawaiˈi Volcanoes, and Haleakalā national parks would take at least an additional year but “have the potential to delay completion” even longer.

In explaining the delays, the two agencies cited participation by tribal governments (Canyon de Chelly, Glen Canyon, Rainbow Bridge, Mount Rushmore, Badlands), commercial jet traffic and flights to Grand Canyon National Park that are exempt from the 2000 act (Lake Mead), and the high number of current air tours and stakeholders (Hawai’i Volcanoes, Haleakalā).

PEER, which also has taken issue with the agencies’ decision to forgo environmental reviews under the National Environmental Policy Act, said the NPS and FAA have dragged on the work too long. PEER Dinerstein

“The basis of our lawsuit was unreasonable delay in adopting air tour management plans and the court is signaling that it will not tolerate further unreasonable delays,” said PEER General Counsel Paula Dinerstein, noting the agencies have no plausible “legal basis” for avoiding NEPA review.  “The whole point of the management plans is to ensure that overflights are not too noisy and disruptive, which requires the type of analysis these agencies continue to avoid.”

CatEx explanation

According to PEER, the agencies are claiming “categorical exclusions” (“CatEx”) — claims that air tours won’t have a significant impact on either the visitor experience or natural and cultural resources of a park –– for deciding not to follow the entire NEPA process in crafting air tour plans for 15 parks. This, said PEER, despite receiving more than 21,000 public comments for those parks’ plans. Instead of doing noise surveys or any environmental analysis, PEER said the agencies will simply grandfather in, on a permanent basis, the current air traffic levels previously accepted without any review on an “interim” basis in the following park units:

Grandfather

What the court’s order didn’t indicate was what would happen if the FAA and NPS fail to meet the August 31 deadline. 

“Our aim is to curb abuse, we are not trying to ground all overflights in every park,” said Dinerstein, pointing to a park like Hawai’i Volcanoes that suffers a noisy helicopter tour every 8 minutes from dawn to dusk.  “Overcoming the entrenched recalcitrance of these two agencies may require a swift legal kick in the rear, however.”

[1] Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984)(“TRAC”)(“Because the statutory obligation of a Court of Appeals to review on the merits may be defeated by an agency that fails to resolve disputes, a Circuit Court may resolve claims of unreasonable delay in order to protect its future jurisdiction”); George Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421(11th Cir. 1993)(review of FAA failure to act lies in the court of appeals); see also 28 U.S.C. § 1651(a) (All Writs Act); and 5 U.S.C. § 706 (1) (“The reviewing court shall compel agency action unlawfully withheld or unreasonably delayed”).

[2]  The Riemann hypothesis is a deep mathematical conjecture which states that the nontrivial Riemann zeta function zeros.

FAA NPS parks

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