Parks Agency Gets the Stick for Giving Tour Companies Free Rein

by Medan Minero, Court House News, May 1, 2020

WASHINGTON (CN) — From the Great Smoky Mountains to Hawaii volcanoes, the D.C. Circuit is clamping down on helicopter tours over national parks, ordering federal agencies to enforce regulations ignored for nearly two decades. 

“Left to their own devices, the agencies have failed to comply with their statutory mandate for the past nineteen years,” Friday’s decision from the federal appeals court states. 

Writing for a three-judge panel, U.S. Circuit Judge Thomas Griffith slammed the Federal Aviation Authority and the National Park Service for allowing infighting to hamper the objectives of Congress in passing the Air Tour Management Act in 2000. 

“A national park isn’t an amusement center,” said Bob Ernst, founding board member of Hawaii Island Coalition Malama Pono, which joined Public Employees for Environmental Responsibility in calling for the D.C. Circuit to act.

“If you look at the advertisements for any of the operators — flying with the doors off, feel the heat of the volcano — I mean it was a Disneyland ride,” Ernst added. “And that’s not what the national parks are for.”

Friday’s ruling says the agencies must bring 23 national parks into compliance with commercial air tour regulations — going above and beyond the seven advocated by the petitioners.

Citing years of failed oversight, Griffith said the court will retain jurisdiction to monitor progress and approve the plan the government puts forward.

Paula Dinerstein, a lawyer at Public Employees for Environmental Responsibility praised the decision, explaining that Congress intended for the agencies to regulate the number of tours per day, as well as their scheduled times and flight paths, to protect park wildlife and safeguard the visitor experience.

“In probably most parks some air tours will be allowed. But they have to be carefully regulated to preserve park resources,” Dinerstein said. 

Hawaii’s airports are ideally located to fly tours outside the national park borders, Ernst added. 

“The most beautiful views of the island are probably along the shorelines,” he said. “They’re the most beautiful shorelines in the world.”

In place of management plans for flight operators, the FAA and National Park Service have by and large reached voluntary agreements — a more flexible regulatory action that does not require public notice-and-comment periods.

“But the statutory fix was no magic bullet,” explained Griffith, a George W. Bush appointee. “Getting air tour operators to sign on to voluntary agreements without the credible threat of a management plan proved difficult.”

Though the D.C. Circuit rejected a nascent challenge by the same challengers in 2018 for only seeking relief from the FAA, Griffith said Friday that the groups’ latest petition met the threshold and properly included the National Park Service along with the FAA as a respondent.

“Mandamus relief can’t make money grow on trees, but it can end an interagency turf war,” Griffith wrote, unconvinced by claims that failures to meet deadlines arose from financial or personnel shortages. 

After fighting to protect the Hawaii Volcanoes National Park and the Haleakala National Park for decades, the petitioners are celebrating Friday’s win.

“We have never asked them to reduce operations,” Ernst said. “We just asked them to operate in a manner where you do not impact the occupied properties.”

Along with the Hawaiian parks, the petitioners had looked to the courts to compel regulation of tours over Bryce Canyon National Park, Glacier National Park, Great Smoky Mountains National Park and the Lake Mead National Recreation Area. The petition originally included Muir Woods, a national monument now exempt because it sees fewer than 50 overflights per year. 

The Federal Aviation Authority responded to a request for comment on the ruling and said the agency was “carefully reviewing the decision.” The National Park Service did not respond.

Judge Griffith was joined on the appeals panel by U.S. Circuit Judges Karen Henderson, a George H.W. Bush appointee, and David Tatel, a Clinton appointee.

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

SA: Court orders limits for noisy flights over Haleakala and Hawaii Volcanoes national parks