Hill v. National Transp. Safety Bd.

• Citation: 886 F.2d 1275
• Decision Date: 03 October 1989
• Docket Number: No. 86-2825,86-2825
• Parties: Rolly Weldon HILL, Petitioner, v. The NATIONAL TRANSPORTATION SAFETY BOARD; and Donald D. Engen, Administrator, Federal Aviation Administration, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1275

886 F.2d 1275

Rolly Weldon HILL, Petitioner, v. The NATIONAL TRANSPORTATION SAFETY BOARD; and Donald D.

Engen, Administrator, Federal Aviation

Administration, Respondents.

No. 86-2825.

United States Court of Appeals, Tenth Circuit.

Oct. 3, 1989.

L.B. Ullstrom (Robert P. Smith, of Law Offices of L.B. Ullstrom, with him on the briefs), Denver, Colo., for petitioner.

Patricia A. McNall (Peter J. Lynch, Manager, Enforcement Proceedings Branch, AGC-250, Federal Aviation Admin., Washington, D.C., with her on the brief), for respondents.

Before LOGAN, McWILLIAMS and TACHA, Circuit Judges.

TACHA, Circuit Judge.

The petitioner, Rolly Weldon Hill, pursuant to 49 U.S.C.App. Sec. 1486(a), seeks review of a decision of the National Transportation Safety Board (Board) upholding a Federal Aviation Administration (FAA) order suspending his Airline Transport Pilot Certificate for a period of 180 days on account of violations of sections 91.79(d) and 91.9 of the Federal Aviation Regulations (FARs), 14 C.F.R. Secs. 91.79(d), 91.9 (1988). The Board found that the administrative law judge's decision affirming the FAA's suspension order was supported by the evidence, and that the FAA had both jurisdiction and authority to suspend Hill's pilot certificate. We affirm.

I.

The suspension order at issue here arose out of two separate incidents involving Hill's operation of a helicopter owned by Denver television station 9KUSA, "Channel 9." The FAA's complaints based upon each of the incidents were consolidated for trial in a single administrative proceeding. The administrative law judge (ALJ) found by a preponderance of the evidence that Hill's conduct in each incident violated FARs, and therefore affirmed the FAA's order imposing the sanction of suspending Hill's pilot certificate.

The first incident occurred on August 3, 1983, when Hill was piloting the Channel 9 helicopter on a return flight to Denver. Hill was accompanied by James Berger, a photographer whom he had taken to cover a news story about an accident in the mountains west of Denver. As they neared Denver, they saw a plume of black smoke that appeared to be a newsworthy event. Hill moved closer to investigate the source of the smoke, discovering a fire in a wheat field. Five fire units and approximately thirteen firefighters were engaged in putting out the fire, which had encompassed nearly one-third of the sixty-acre field by the time Hill's helicopter arrived on the scene.

Hill flew over the fire at altitudes that by his admission were as low as fifty feet, and by the accounts of witnesses on the ground ranged from thirty to seventy-five feet. While flying at such low altitudes, the rotorwash from Hill's helicopter apparently reignited the fire in some areas where it had previously been extinguished. According to the testimony of the firefighters, Hill's flying endangered the firefighters and their equipment and caused additional acres of wheat to be burned. In addition, one firefighter testified that he received minor burns as a consequence of the rotorwash reigniting burning embers that he was in the process of putting out.

The ALJ found that during this incident Hill violated FAR 91.79 ¹ by failing to maintain a safe minimum altitude, and FAR 91.9 ² by operating the aircraft in "a careless or reckless manner so as to endanger the life or property of another."

The second incident occurred on December 3, 1983, when Hill, accompanied by a news photographer and a sportswriter, piloted the Channel 9 helicopter on a flight from Denver to Brush, Colorado, for the purpose of covering a high school state championship football game. Although the weather in Denver was sunny and clear, Brush, approximately eighty miles northeast of Denver, was covered by a thick layer of fog. The dense fog bank prevented Hill from seeing the ground, so Hill flew above the fog bank to search for an opening. Hill made two unsuccessful attempts to penetrate the fog through small openings that he found, but each time the helicopter was quickly covered by fog and he lost visibility, causing him to ascend once again to a level above the fog bank.

Despite the poor visibility encountered on his previous two attempts, Hill attempted to penetrate the fog bank a third time. Hill entered an apparent opening in the fog that quickly closed over the helicopter. Although visibility ranged from zero to 300 feet, Hill decided to fly slowly through the fog. This portion of the flight lasted approximately ten minutes, at times taking Hill and his passengers below the height of telephone poles.

Finally, as the helicopter hovered in the fog over loose, powdery snow, a "white-out" condition occurred, causing Hill to lose visual reference with the surface. As a consequence of this visual impairment, Hill's attempt to land the helicopter resulted in the helicopter rolling over on the ground. In addition to considerable damage to the helicopter, both of Hill's passengers were injured. The crash site was estimated by various witnesses as between 100 and 300 feet from the side of "Road P," which apparently is a county road.

The ALJ found with regard to this incident that Hill recklessly conducted his flight operation, endangering the lives and property of others in violation of FAR 91.9.

On the basis of the FAR violations in both incidents, the ALJ concluded that the sanction which the FAA sought to impose--suspension of Hill's pilot certificate for 180 days--was "justified and required both to act as a deterrent to [Hill], to others who may be similarly disposed[,] and in the public interest of air safety." In reviewing the ALJ's ruling, the Board adopted the ALJ's findings, with slight modification, as its own. ³ On the basis of those findings, the Board determined that "safety in air commerce (or air transportation) and the public interest require that the [FAA] order be affirmed." (footnote omitted). ⁴

Hill contends that the Board should have dismissed the action because the FAA lacked jurisdiction to impose sanctions upon his conduct and lacked authority to suspend his pilot certificate instead of imposing civil penalties or re-examining his competence as a pilot. Hill also contends that he was denied his seventh amendment right to a jury trial. Finally, Hill claims that the Board erred in adopting the ALJ's evidentiary rulings and findings of credibility.

II.

The Board's findings of fact, "if supported by substantial evidence, shall be conclusive." 49 U.S.C.App. Sec. 1486(e). Here, furthermore, the Administrative Procedure Act provides an identical standard. See 5 U.S.C. Sec. 706(2)(E). "Our function is not to weigh the evidence or to evaluate the witnesses' credibility." Sorenson v. National Transp. Safety Bd., 684 F.2d 683, 685 (10th Cir.1982).

The Board's interpretation of constitutional or statutory provisions, however, are reviewed de novo. Go Leasing, Inc. v. National Transp. Safety Bd., 800 F.2d 1514, 1517 (9th Cir.1986); see 5 U.S.C. Sec. 706(2)(B), (C). We accord deference to an administrative agency's interpretation of a statute or regulation if such interpretation is not clearly contrary to the "plain and sensible meaning" of the statute or regulation, Hart v. McLucas, 535 F.2d 516, 520 (9th Cir.1976); see Pangburn v. Civil Aeronautics Bd., 311 F.2d 349, 355 (1st Cir.1962), and such interpretation involves an area within the particular expertise of the agency, see Walker Operating Corp. v. FERC, 874 F.2d 1320, 1332 (10th Cir.1989). "Generally, then, when a court reviews an agency's careful and studied conclusions of law pertaining to a matter clearly within the agency's expertise, the court will affirm those conclusions if they are reasonable, although an agency's 'order may not stand if the agency has misconceived the law.' " Id. (citations omitted) (quoting SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943)).

A.

Hills' first claim--that the Board erred in failing to dismiss the FAA's order of suspension against him because the FAA lacked jurisdiction over the acts that he committed--rests upon an interpretation of the relevant statutes governing the regulation of air transportation. We therefore begin with an analysis of these statutes.

Section 307 of the Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 731, codified as amended at 49 U.S.C.App. Sec. 1348, grants authority to the Administrator of the FAA ⁵ to develop rules and regulations relating to air transportation. Section 307(a), 49 U.S.C.App. Sec. 1348(a), provides authority to regulate the use of "navigable airspace":

The Secretary of Transportation is authorized and directed to develop plans for and formulate policy with respect to the use of the navigable airspace; and assign by rule, regulation, or order the use of the navigable airspace under such terms, conditions, and limitations as he may deem necessary in order to insure the safety of aircraft and the efficient utilization of such airspace. He may modify or revoke such assignment when required in the public interest.

49 U.S.C.App. Sec. 1348(a). "Navigable airspace" is defined as "airspace above the minimum altitudes of flight prescribed by regulations ... and shall include airspace needed to insure safety in take-off and landing of aircraft." Id. Sec. 1301(29).

Section 307(c), id. Sec. 1348(c), provides additional authority to prescribe regulations governing air traffic rules:

The Secretary of Transportation is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection, and identification of aircraft, for the protection of persons and property on the ground, and for the efficient utilization of navigable airspace, including rules as to safe altitudes of flight and rules for the prevention of collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.

Id. Sec. 1348(c). In...