In part one of this article, I discussed our February trip to Texas where we landed at an airport that was closed after our arrival due to a couple of winter storms that hit the area. In this Part, I will discuss a couple of FAA enforcement actions taken against pilots dealing with similar situations.
In Searight v. NTSB, 218 F.2d 637 (10th Cir. 1987), the FAA started an enforcement action against a commercial pilot for taking off from an airport when the airport was closed for purposes of snow removal.
The day before the incident, the pilot, with two passengers, landed at a general aviation (GA) airport near Salt Lake City. They stayed in Salt Lake City overnight. It snowed about 6 inches during the night.
The pilot and his passengers arrived at the airport around 8:00 a.m. the next day. They were told that the airport was closed for snow removal operations. Around noon, they got in the aircraft and took off. The airport was closed when they departed – it did not reopen until around 1:30 p.m.
The FAA accused the pilot of careless and reckless operation of his aircraft in violation of 14 C.F.R. §91.9 (now codified at 91.13). The penalty sought by the FAA was a 45-day suspension of his pilot’s certificate. In his defense, the pilot testified that someone at the airport told him that the airport was reopened before his departure.
The FAA and the pilot presented their evidence at a hearing conducted by an NTSB Administrative Law Judge (ALJ). The hearing included multiple witnesses and documents. At the end of the hearing, the ALJ concluded that: (1) the pilot took off when he knew, or should have known, the airport was closed, and (2) the pilot’s conduct was reckless and dangerous. The ALJ rejected as “inherently incredible” the pilot’s testimony that someone told him the airport had been reopened. The evidence offered by the FAA proved that the NOTAM closing the airport had not been lifted at the time the pilot took off. The ALJ ordered the suspension of his pilot’s certificate for 45 days.
The pilot appealed the ALJ’s decision to the full National Transportation Safety Board (NTSB). The Board upheld the ALJ’s decision. Next, the pilot appealed the NTSB’s decision to the United States Federal Court of Appeals for the Tenth Circuit. The appellate court affirmed the NTSB’s order. The court concluded:
Without belaboring the matter, it is quite evident that the ALJ’s finding, later upheld by the Board, that Searight was guilty of operating his aircraft in a reckless or careless manner, endangered the life or property of another is supported by substantial evidence. Indeed, the act of taking off from a closed airport is itself reckless conduct, endangering the lives of his passengers, at the least.
Searight v. NTSB, 812 F.2d at 639. Regarding the “endangering” idea, it is important to understand that many NTSB cases make it clear that no more than some potential endangerment is required to find a violation of FAR 91.13.
A similar result is reported in FAA v. Braesch, 2011 NTSB ALJ LEXIS 512 (October 18, 2011). In that case, the FAA issued an order suspending a pilot’s certificate for departing the Omaha Millard airport (KMLE) while it was closed pursuant to a NOTAM.
At the hearing before the ALJ, the airport manager testified he issued a NOTAM closing the airport before the aircraft’s departure because of snowfall in the area. The pilot took off at approximately 6:30 a.m. The takeoff was uneventful and safe. However, the airport was closed when the aircraft took off. It wasn’t reopened until about 8:30 a.m.
At the hearing, the pilot testified that he did not know a NOTAM had been issued closing the airport. He also testified that he drove up and down the runway and satisfied himself that the runway was clear and safe for taking off.
The pilot also testified that he filed an instrument flight plan before his departure and received an IFR clearance before he took off. In fact, the air traffic controller who gave the pilot his clearance never notified the pilot that the airport was closed. (The air traffic controller was subsequently disciplined by the FAA for committing an “operational error” – and his ATC certificate was suspended for 90 days).
After hearing all of the evidence, the ALJ concluded that the pilot’s takeoff constituted a careless and/or reckless act in violation of FAR 91.13(a). In his decision, the ALJ discussed the air traffic controller’s failure to advise the pilot that the airport was closed. The court said: “Two wrongs don’t make a right.” The pilot’s certificate was suspended for 45 days.
The lesson from this case is important. Even if a pilot receives an IFR clearance for a departure from a closed airport – due to ATC negligence – the pilot will likely face allegations of violating FAA regulations and will probably be penalized with a certificate suspension or revocation.
It is also important to recognize that most enforcement actions involving NOTAM violations will be found to be “intentional”; and therefore not covered by a NASA Report. However, if there is any possibility that the violation was unintentional and it stems from a mistake or misunderstanding, it is possible the FAA may resolve the matter through the Compliance Program. In any event, the pilot should file a NASA report.
Besides dealing with the FAA, here is something else for pilots to think about if they are considering taking off from a closed runway or airport. Suppose a pilot does attempt a takeoff from a runway covered with some snow and/or ice – and it results in property damage or personal injuries. Will the insurance purchased by the pilot cover this operation? Maybe not.
The opinions expressed in this article are those of the author.
Russ Klingaman is a partner at Hinshaw & Culbertson LLP. He also teaches Aviation Law at Marquette Law School, and is a past-President of the Lawyer Pilots Bar Association. His practice includes aviation law and intellectual property.
As a pilot and aircraft owner, Russ has developed unique insights into aviation-related legal matters, including those involving the fast-changing legal landscape concerning unmanned aircraft systems (UAS or drones). Throughout his career, Russ has helped many clients deal with claims triggered by tragic/fatal aviation accidents. He also advises clients dealing with aviation-related transactions, regulatory compliance, and/or FAA enforcement actions.
Russ also assists businesses and individuals with protecting their intellectual property — including trade secrets, copyrights, trademarks, and patents. The IP transactional work encompasses projects such as licensing, assignments, or nondisclosure agreements. The IP litigation involves prosecuting or defending claims for misappropriation, infringement, breach of contract, unfair competition, etc.
Russ focuses on effectively leveraging opportunities, resolving disputes, and reducing risks; while finding practical and effective solutions to clients’ legal challenges. He has handled a wide variety of high-profile cases involving multi-million dollar claims for personal injuries, property damage, and/or business losses. He has also handled numerous appeals and has made oral arguments to the U.S. Courts of Appeals for the Seventh and Ninth Circuits, and the Wisconsin Supreme Court.