Court: FAA, National Park Service failed to comply with air tour law

  • Tribune-Herald file photo Bob Ernst of Hawaii Island Coalition Malama Pono, center, and other members of HICoP sign wave against tour helicopter noise in 2017 at the entrance road of Hilo International Airport.

The U.S. Court of Appeals for Washington, D.C., on Friday ordered the Federal Aviation Administration and National Park Service to produce a schedule for bringing 23 national parks, including those in Hawaii, into compliance with the Air Tour Management Act of 2000.

The federal legislation requires vendors conducting commercial air tours over national parks and certain tribal lands to first obtain a permit from the FAA, and mandated that the FAA and NPS establish an air tour management plan that may prohibit or place conditions on air tours.

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The Hawaii Island Coalition Malama Pono, or HICoP, and the Public Employees for Environmental Responsibility had filed suit seeking an injunction after the FAA and NPS failed to implement air tour management plans for Hawaii Volcanoes National Park and Haleakala National Park.

Hawaii Volcanoes National Park and Haleakala National Park had, respectively, the most and fourth-most reported number of commercial air tours in the nation in 2018, according to a 2018 report from the NPS.

“This case arises out of the underwhelming — and ultimately unsuccessful — efforts of the (FAA)and National Park Service to regulate commercial sightseeing flights over national parks,” Circuit Judge Thomas Griffith wrote in his opinion.

While the agencies argued that the legislation’s timeline is “aspirational,” Griffith wrote that a lack of a hard deadline doesn’t mean government officials can ignore legal obligations.

“Although the act does not impose a rigid schedule, it provides a ruler against which the agencies’ progress must be measured,” he wrote. “And that progress simply doesn’t measure up.”

And while the federal agencies argued, too, that the task of creating air tour management plans is complicated and time-intensive, Griffith wrote that the failure to meet the timeline in this instance is largely attributed to “interagency conflict.”

“Mandamus relief can’t make money grow on trees, but it can end an interagency turf war,” he said.

“Left to their own devices, the agencies have failed to comply with their statutory mandate for the past 19 years,” he further wrote. “… We fully expect that the agencies will make every effort to produce a plan that will enable them to complete the task within two years, as Congress directed. If the agencies anticipate that it will take them more than two years, they must offer specific, concrete reasons for why that is so in their proposal.”

“Well, it’s been a long time coming, and I guess we kept thinking it was the only ruling they could make,” Bob Ernst, a founding board member of HICoP, said Friday.

The group had first filed suit in 2018, but that case was dismissed because only the FAA was listed as a respondent.

While he was happy to see the ruling, Ernst, however, said, “(this) never should have taken a little nonprofit to get this done. Our congressional delegation should have done it. Our governor should have done it. Our mayor should have done it.”

U.S. Rep. Ed Case praised the ruling.

“The D.C. Circuit’s ruling recognizes correctly that the Federal Aviation Administration and National Park Service have simply not complied with the law for decades,” Case said in a news release Friday.

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“In that period, the destruction of our national parks from virtually unregulated air tours has worsened exponentially. I expect the FAA and NPS to fully comply with the court’s order and will do all I can to assist.”

Email Stephanie Salmons at ssalmons@hawaiitribune-herald.com.

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