Essery v. Department of Transp., Nat. Transp. Safety Bd.

Decision Date19 September 1988
Docket NumberNo. 86-7347,86-7347
Citation857 F.2d 1286
PartiesRichard ESSERY, Petitioner, v. DEPARTMENT OF TRANSPORTATION, NATIONAL TRANSPORTATION SAFETY BOARD; Federal Aviation Administration, Respondents.
CourtU.S. Court of Appeals — Ninth Circuit

John B. Sidell, Harmsen, Carpenter, Sidell & Olson, San Diego, Cal., for petitioner.

Vivian B. Weisner, Office of the Chief Counsel, F.A.A., Washington, D.C., for respondents.

Steffanie D. Parker, Alexandria, Va., Helicopter Ass'n Intern., for amicus.

On Petition for Review of an Order of the National Transportation Safety Board.

Before TANG, FLETCHER and PREGERSON, Circuit Judges.

TANG, Circuit Judge:

Essery petitions for review the revocation of his commercial pilot certificate by the National Transportation Safety Board (NTSB). The Federal Aviation Administration (FAA) revoked the certificate after finding that Essery violated FAA regulations in two incidents: (1) towing a banner over San Diego by plane and (2) delivering a Santa Claus to a downtown San Diego intersection by helicopter. Administrative Law Judge Davis held an evidentiary hearing, after which he agreed that Essery had violated FAA regulations, but found the revocation sanction too severe. He imposed a 120-day suspension sanction. On appeal the NTSB reinstated the revocation sanction. We affirm the determination that Essery violated FAA regulations in the two incidents, and reverse the revocation sanction and reinstate the 120-day suspension.

FACTUAL AND PROCEDURAL BACKGROUND

Essery is a professional pilot and the holder of a commercial pilot certificate. He has been a pilot for nearly twenty years and has logged nearly 7,000 hours of flight time in various types of aircraft. Prior to these proceedings his flying record was violation free. Essery derives his livelihood from his one-half interest in Volar Corporation, d/b/a Golden State Aviation, which sells fuel and pilot supplies, does aircraft repair work, conducts aerial advertising flights, and maintains FAA-approved ground and flight schools.

On August 2, 1983, Essery piloted a banner-towing airplane over the downtown San Diego area. He first received an FAA air traffic controller's conditional approval for the flight. The approval was granted on the condition that Essery maintain Visual Flight Rules (VFR) at or below 1,000 feet (which was the current cloud ceiling).

FAA Safety Inspector Roy Billings observed the flight from four different downtown locations. Billings testified that in his opinion Essery violated FAA regulations by flying at an altitude of 500 feet near and above 300-feet buildings. He also opined that Essery violated FAA regulations by flying at such a low altitude that a forced landing would have endangered individuals or property.

On December 20, 1983, Essery, piloting a Robinson R22 helicopter, landed in a cordoned-off intersection in downtown San Diego to deliver a passenger dressed as Santa Claus. Before the flight, Warren Scheidel, an employee of Golden State Aviation, contacted the FAA to obtain its permission. The FAA, through Inspectors William Gamble and Billings, did not approve the operation. At oral argument the NTSB admitted that the FAA will not, under any circumstances, give pre-flight approval for a helicopter landing operation. Gamble The exact circumstances of the landing were disputed. ALJ Davis found, however, that the intersection was barricaded and cordoned off with string. Police officers were at the drop point to assist in crowd control. Just prior to the drop, approximately one hundred people were in the immediate vicinity; other people were in the area adjacent to the drop site. Essery testified that he flew over the area prior to landing to be certain he had a clear approach and landing area. According to police officers, however, several people walked under the flight path of the helicopter as it approached the drop site.

and Billings informed Scheidel that the flight concerned them because there would be no place for the helicopter to land in an emergency. The intersection, which is surrounded by high-rise buildings, would be congested with pedestrians at the time of the flight. Moreover, Gamble was concerned because the type of helicopter Essery planned to use for the flight had shown a tendency to throw a blade. Scheidel relayed the FAA's concerns to Essery. Essery testified that he addressed those concerns before and during the flight. He also stated that, although earlier models of the helicopter could shed a blade, the problem had since been corrected by the manufacturer.

On June 15, 1984, the FAA Administrator (the Administrator) revoked Essery's commercial pilot certificate because of the two incidents. Essery appealed the order. An evidentiary hearing was held before ALJ Davis on October 24, 25 and 26, 1984. ALJ Davis found that Essery could not have made a non-hazardous emergency landing in either incident. He also found with regard to the helicopter flight that the people around the barricaded area created an unsafe condition. With respect to the tow flight he noted that Essery had conceded that he flew within 1,000 feet of the tops of high rise buildings, a violation of FAA regulations; moreover, he found that the action was not excused by the air traffic controller's clearance since such clearance does not allow a pilot to deviate from a federal aviation regulation. However, ALJ Davis modified the Administrator's sanction and ordered that Essery's certificate be suspended for 120 days, sixty days for each incident, rather than revoked. The modification was based on ALJ Davis' review of sanction orders in other cases and the circumstances of this case.

ALJ Davis' decision was appealed by both parties to the full NTSB. Because two incidents involving hazardous low flights in violation of FAA regulations were established, the NTSB reinstated the revocation sanction. Essery subsequently filed this petition for review. We have jurisdiction pursuant to 49 U.S.C. Sec. 1486 (1982).

STANDARD OF REVIEW

The scope of review of administrative agency decisions is narrow; we will uphold such decisions unless they are "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1982). The NTSB's factual findings are conclusive when supported by substantial evidence in the record. Meik v. NTSB, 710 F.2d 584, 586 (9th Cir.1983). Purely legal questions are reviewed de novo. Go Leasing, Inc. v. NTSB, 800 F.2d 1514, 1517 (9th Cir.1986).

DISCUSSION
I.

Essery argues that the NTSB erroneously applied Federal Aviation Regulation [FAR] Sec. 91.79 to the helicopter drop. 1 Section 91.79 provides in pertinent part:

Except when necessary for take off or landing, no person may operate an aircraft below the following altitudes:

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

(c) Over other than congested areas. An altitude of 500 feet above the surface except over open water or sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

(d) Helicopters. Helicopters may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the Administrator.

14 C.F.R. Sec. 91.79 (emphasis added).

Essery argues that the regulation's prefatory clause exempts low altitude maneuvers when those maneuvers are "necessary for takeoff or landing." Therefore, according to Essery, because he was taking off and landing during the helicopter operation, his low altitude maneuvers are exempt from the strictures of FAR Sec. 91.79. The NTSB rejected that argument, finding that in order to show that a low altitude was "necessary for takeoff or landing" Essery must show that the landing site was appropriate. The cordoned-off intersection, in the middle of a congested area, was not, the NTSB asserts, an appropriate landing site.

In Cobb v. NTSB, 572 F.2d 202 (9th Cir.1977), this court upheld the NTSB's determination that Cobb and O'Connor violated FAR Sec. 91.79(c). Id. at 203. They flew an airplane within ten to sixty feet of people, vehicles, and structures and landed on a taxiway, although two runways were available. Like Essery, they argued that the prefatory clause exempted them from the minimum altitude limitation because flying within 500 feet of people, vehicles and structures was necessary to land the aircraft. We stated:

Because no need to use the taxiway as a runway was shown, we are in agreement with the NTSB that this low flight was not "necessary" as the term is used in section 91.79(c). Therefore we conclude there was substantial evidence supporting the violation of 91.79(c).

Id.

Essery attempts to distinguish Cobb on the ground that it has not been alleged that he used anything other than optimum approach or departure routes or that he engaged in any unnecessary maneuvers during landing or takeoff. He notes that a helicopter glides, and is capable of landing safely in a clear area of appropriate size even without power. With power, a landing can be aborted at the last minute.

We recognize that helicopters have unique characteristics and capabilities. We are unconvinced, however, that a take-off or landing conducted without unnecessary maneuvers is immune from the strictures of FAR Sec. 91.79 even if the landing site was not unduly hazardous. The NTSB's reading of the...

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