You Shall Not Pass

The matter can certainly be viewed from many lenses – air safety, property rights, freedom of flight, regulatory compliance, human factors, you name it.

I view it from a lawyer’s perspective, and in particular, Mr. Palmer’s lawyer – which I am.

That being said, I value freedom – mine and yours.   And I especially value your right to fly as you see fit, so long as it is consistent with the law and applicable regulations.  And while regulation of aircraft and airmen is certainly necessary, make no mistake, these regulations are drafted and adopted by folks who have appeared on no ballot and for whom none of us have cast a vote.

In a free society governed by the rule of law, those laws – or, if you wish, regulations – must be clear. They must tell us in advance which conduct is permitted and that which is prohibited.

Free societies default to freedom in the absence of specific prohibitions. That is the nature of being free. Savoring that freedom is our birthright as Americans.

When rules are unclear, or when they are drafted in a way which leaves them open to ad hoc interpretation by unelected and unaccountable officials, we revert back to a time when human beings were subject not to the rule of law, but to the whims of monarchs. The theory, as then practiced, was simple: the monarch served as God’s emissary on earth.  To question the monarch was to question God himself.  And to question God was high blasphemy, for the simple reason that God is never wrong. 

But the FAA is not God.  The FAA is people, just like you and me. The FAA is not the law, it is bound by it, just like you and me.

And when the FAA wishes to prohibit conduct, it must pass an applicable regulation in the manner required by the Administrative Procedure Act, an act of Congress passed by our elected representatives.  The FAA cannot simply condemn a particular operation after the fact and sanction an airman when that act is not specifically prohibited.  It simply does not work that way – or least it shouldn’t.  Indeed, the FAA’s own internal guidance document – FAA Order 8900.1, Volume 14, Chapter 2 – states that “unless a regulation says a person can’t, then a person can”!   Otherwise, “because I said so” reigns.

Our country fought a war over that manner of governance in 1776.

We all know the “500-foot rule” embodied in 14 C.F.R. § 91.119 (FAR 91.119).  Loosely stated, while flying over sparsely populated areas or open water we must stay 500 feet away from structures or persons on the ground “except as necessary for takeoff and landing.”

That is all the regulation says. It is neither complicated nor impenetrable.  But in a complex operational environment, its application can be tricky.   We can all agree, however, that virtually every takeoff and landing operation likely takes an aircraft within 500 feet of persons or structures on the ground … control towers, other aircraft, houses, cars … whatever.

This is why “buzzing” is prohibited; it is not “necessary” for takeoff or landing.  Mr. Palmer was not accused by the FAA of “buzzing,” or a low altitude fly-by without any relationship to an intended landing.   Its Complaint against him said no such thing.

Rather, it was undisputed that Mr. Palmer was conducting an inspection pass of a would-be landing site on a 10-acre parcel in a remote desert community a few miles from Reno-Stead Airport (KRST) … where the air races are run.  Nevada law permits aircraft to land upon private property with landowner permission, which Mr. Palmer had previously secured.

He was operating his Kitfox V – a very capable STOL aircraft that can take off and land in distances that would embarrass a helicopter – and was conducting his inspection pass in accordance with the FAA’s own “Off Airport Ops Guide,” found here, something the FAA never disputed.  The FAA even agreed that conducting an inspection pass on an off-airport landing site is “necessary.” How could they not?  Certainly, the FAA would not publish a guide on how to conduct an “unnecessary” operation.

And there is the rub.

Even though FAR 91.119 says not one whit about the matter, NTSB decisions teach that in order for any operation to be “necessary” relative to takeoff and landing, the landing site must be “appropriate.”  But what does that mean?  How is “appropriateness” measured?  The FARs do not define what is or is not an “appropriate” landing site.

Is it a function of the capabilities of the aircraft; the pilot; the terrain; land use regulations; neighbor complaints; the proximity of persons and property; or other things?

We are left to guess.

In FAA enforcement proceedings held before an NTSB administrative law judge (ALJ), the FAA often brings in an FAA employee who happens to be a pilot, slaps the label of “expert” upon him and has him testify to something that the FAA has already concluded – that the airman violated this FAR or that FAR. The ostensible “expert” is hardly an independent voice of experience opining on a given set of facts; he is there to hang the airman.  That is his job.  His bias is not only obvious, but also institutional and systemic.  In a normal judicial proceeding, this expert would likely be excluded from testifying at all and laughed out of court. In an FAA enforcement action, it is business as usual.

During the course of his testimony in the Palmer matter, the FAA pilot “expert” opined – without citation to any legal or other authority – that the appropriateness of a landing site is a function of, among other things, the capabilities of the pilot and the involved aircraft.  When asked to describe Mr. Palmer’s piloting abilities or the capability of his Kitfox V aircraft, the FAA “expert” was without the knowledge to do so.  Indeed, during the course of the FAA’s investigation (which the ALJ described as “sloppy, careless if not reckless”) the “expert” made no efforts to inform himself in that regard.  And yet, he effortlessly stated that Mr. Palmer’s intended landing site was “inappropriate” – a landing site to which the expert never came within one thousand miles.

In legal jargon, that means his opinion lacked a factual basis.  In more common parlance, he was speaking from parts unmentionable.     

Still, this FAA pilot “expert” boasted in his resume that when he does a “good job” for the FAA, he receives “accolades, time off and cash awards” from his FAA master.   Yes, this is how these proceedings work.  

And it’s appalling.

For his part, the “impartial” ALJ concluded – despite any argument from the FAA or its “expert” pilot – that Mr. Palmer’s intended landing site was inappropriate because “there was no evidence of any runway markings, lights, navigation aids, or glide slope indicators, or even a windsock … the [] runway was made of dirt … and was unsuitable for landing under normal conditions or absent an emergency,” and not because either Mr. Palmer or his aircraft was incapable of landing there, which, of course, they most decidedly were.

Those observations, whatever their merits might be, have nothing to do with FAR 91.119. Moreover, if any would-be landing site is “inappropriate” because it lacks “runway markings, lights, navigation aids, or glide slope indicators” and is otherwise “made of dirt,” then off-airport landings are now impermissible or, at the very least, “inappropriate.”

But no FAR prohibits off-airport landings, and yet here we are wondering whether in fact we can land off-airport and fly the “back-country” with others or land in a neighbor’s “back 40,” which can otherwise handily accommodate a light aircraft.  Or do we risk the Sword of Damocles falling upon our necks if we do?

Perhaps Mr. Palmer should not have attempted to land on his friend’s property due to the sensitivity of nearby property owners. Perhaps you or I may disagree with his decision to do so.  But he never disputed that he came within 500 feet or persons and structures on the ground, and the FAA never disputed that an inspection pass is “necessary” to attempt an off-airport landing.  That should have ended the matter right there because that is all FAR 91.119 requires … a showing of necessity before the 500-foot limitation falls away. 

Any other consideration – whether a neighbor found it objectionable because of the noise or otherwise, whether Mr. Palmer could have flown his inspection pass in another fashion, whether you and I would have made a different decision – has nothing to with the only legal question in play: whether Mr. Palmer ran afoul of FAR 91.119. And if an inspection pass is necessary to conduct an off-airport landing – and it is – and no FAR prohibits off airport landings – and none do – then Mr. Palmer did not violate the rule.

That certain folks may not have cared for his operation or did not understand it matters not as far as the FARs are concerned.  The FAA’s mandate is not to vindicate perceived property rights or local land use regulations.

In his famous dissent in Morrison v. Olson, Antonin Scalia noted that “[f]requently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” Morrison, 487 U.S. at 698.  So does this one.

The Palmer matter is neither about air safety nor even a regulatory violation; it is about power – the power of an agency and unelected officials to declare what and when the law is and to decide post hoc that they do not like something and then punish it.

This is not the rule of law; it is tyranny.  And even if cloaked in the garb of “air safety," tyranny’s wardrobe does not change that which lies beneath.

A civil war general once quipped that “the battle is never won and the field never quite ours.”  Indeed.

Mr. Palmer’s case is a reminder that rule of law is quite fragile.  And it should be treated as such.

Simply because the FAA and others may have found Mr. Palmer’s inspection pass objectionable – objections largely born of ignorance – it does not license the Agency to punish that conduct unless it is expressly prohibited by regulation properly adopted under the Administrative Procedure Act and is written in a way that makes it perfectly clear that conduct which is prohibited.

And why? Because WE the people say so.

 Robert D. Schulte / Gretta Thorwarth
Mr. Schulte is an attorney in Easton, Maryland, who focuses his practice upon aviation law and related matters.  He has represented various aviation interests worldwide, continues to do so, and is an experienced pilot in his own right.

He is ably assisted by his Paralegal Gretta Thorwarth who too is an experienced pilot and an aficionado of antique pre-war aircraft. Among other things, she participated in the reconstruction of Charles Lindbergh’s wife’s 1930 Bird aircraft.  Ms. Thorwarth is in her second year of law school and plans to practice aviation law upon her graduation.