'Except when necessary'

Palmer’s three-year battle with the FAA hinges on seven of the 210 words (including its title) that comprise FAR 91.119, “Minimum safe altitudes: General.”

His certificate suspended following the November 2019 inspection pass, Palmer’s first recourse was to the NTSB, which hears appeals of FAA enforcement actions against pilots under a process established by the Pilot's Bill of Rights. While Palmer raised a number of issues, the case hinged on the first seven words of the regulation: “Except when necessary for takeoff and landing…” Palmer contends these seven words should have rendered the remaining 199 words of the regulation moot, because inspecting an off-airport landing area before landing on it is essential to safety, and therefore “necessary.”

The FAA interpretation presented to the NTSB limits the exception to the 500-foot minimum distance away from “any person, vessel, vehicle, or structure” more strictly to actual takeoffs or landings. The agency argued before an NTSB administrative law judge that the regulation in question establishes a 500-foot “bubble” around every aircraft, and no pilot may ever legally allow that bubble around the aircraft to include any “person, vessel, vehicle, or structure” except when actually landing, or taking off—a low approach to visually assess the suitability of a landing area that pierces the bubble is not allowed.

The case, closely watched by AOPA attorneys, appears likely to wind up in a federal appeals court; the U.S. Supreme Court could ultimately decide to hear the case, and rule on whether Palmer is correct, though the Supreme Court has discretion on which appeals it hears, and declines more appeals than it agrees to take up. Regardless of where the appeal ends up, the ultimate decision has significant implications for all pilots, as it stands to be among the first to test a recent reinterpretation of how much power federal agencies can bring to bear enforcing and interpreting any of their regulations.

‘Make a pass…’

Palmer is the creator of a popular YouTube channel with more than 450,000 followers whom he entertains with a steady stream of videos featuring his backcountry adventures in his Kitfox (among other machines), and he has never disputed that he made that low approach with permission to land at his friend’s house, located in a neighborhood 7 nautical miles north of Reno/Stead Airport.

A neighbor’s complaint to local police and the FAA triggered an investigation that culminated in the pilot certificate suspension that Palmer appealed, triggering a series of proceedings now likely to extend years longer.

While there is no dispute that Palmer flew low (as low as 30 feet) over his friend’s property, and other private property—and well within 500 feet of structures—during the approach, AOPA Pilot Protection Services Plan panel attorney Robert Schulte, who represents Palmer, cited the FAA’s Off Airport Ops Guide in Palmer’s defense, noting that it advises pilots to make at least one low-level pass over a potential off-airport landing area before attempting to land:

“Make a pass to check for cuts in gravel, rocks, dips, bumps, etc., that can’t be seen from directly above,” advises the FAA publication created by the Alaska FAA Safety Team (which the FAA argued is advisory, and has no effect on the regulation in question). “It is important to be at an angle to the runway, not above it. Certain light conditions can make a bad site seem good. Check and double check any area not used before, or locations that have had high water since the last landing. Make another pass and roll one tire for a few feet to get a feel for the landing surface.”

Palmer never got that far into the process: One pass was enough for him to decide against landing, which he testified before the NTSB administrative law judge:

“I was uncomfortable or unsatisfied with my ability to appropriately locate the touchdown point, as well as the intended center line of the runway. And without having that, I didn’t feel a safe landing could be conducted without more passes,” Palmer testified during a 2022 hearing. “And at that point I didn’t feel it was necessary to do that. For lack of a better word, I just decided to carry on.”

He returned to land at the nearby airport. A neighborhood resident’s complaint, and video captured by a security camera, triggered the investigation that Palmer would soon hear about.

Palmer had appealed the FAA suspension and was awaiting his hearing before the NTSB when he participated, among a small group of high-profile, safety minded pilots, in an AOPA Air Safety Institute summit on backcountry safety in 2020.

Palmer is not the only YouTube star to wind up in hot water with the FAA. Schulte said it’s not clear whether or exactly how Palmer’s YouTube following influenced the FAA’s enforcement decision.

“The short answer is, I don’t know,” Schulte said. “Certainly, Trent’s public presence has caught the attention of the FAA. Do I think they were trying to make an example out of him? Yes, I do.”

‘There was no argument’

The FAA suspended Palmer’s certificate for violating FAR 91.119(a) and (c), which establish minimum safe altitudes and distances from structures, “Except when necessary for takeoff or landing,” along with the more subjective FAR 91.13(a) prohibition against “careless or reckless operation,” which, Schulte noted, is rarely charged alone.

Schulte argued that Palmer’s survey of a potential off-airport landing site is no different, in terms of the risk posed to people, homes, and other structures nearby, than operating at an airport situated in close proximity to homes, and nothing in the applicable regulation defines what renders any given backyard or neighborhood “suitable” for landing, or not.

“There was no argument by the FAA that the landing site itself was inappropriate,” Schulte said in a telephone interview. “I am not sure that 91.13 even comes into this.”

FAA Technical Specialist Roy J. Speeg Jr. testified to the contrary during a hearing of Palmer’s initial appeal of the suspension, according to a transcript included in the NTSB’s March 30 decision upholding Palmer’s suspension, and reversing the judge’s prior reduction of its duration from 120 days to 60 days.

Speeg testified that Palmer’s flight path violated FAR 91.119(c), as noted in the decision by Administrative Law Judge Darrell L. Fun:

“Specialist Speeg testified that a pilot has to stay 500 feet away from any person, vessel, vehicle, or structure in a sparsely populated area unless landing or taking off. Subsection (c) creates a 500-foot bubble around an aircraft, and no person, vehicle, vessel, or structure can enter that bubble if it is not necessary for takeoff or landing,” Fun said. “Given the Respondent’s flight path coupled with being 100 feet or less above ground level during his low level pass, demonstrates that he operated closer than 500 feet to any person, vessel, vehicle or structure.”

Schulte noted that many runways are found in aviation communities, with runways much closer than 500 feet from the homes and other structures.

He further illustrated his point with a hypothetical: Imagine two airplanes approaching a gravel bar to land, one following the other. The first makes its low pass and then lands. If the second airplane proceeds to make its own low pass over the gravel bar, but does not actually land, it has committed essentially the same violation that the FAA alleged against Palmer: flying below the altitude limits of FAR 91.119, within 500 feet of a vehicle (the first airplane that landed), without intent to actually land.

“According to this decision, once that first aircraft lands, the second aircraft can’t make an inspection pass,” Schulte said. “That’s what this ruling means. This gotcha nonsense has just got to stop.”

Schulte said Palmer is not his only client in hot water over similar interpretations of federal aviation regulations by the FAA, though he did not specify how many.

“What’s the big deal? The big deal is that this is corrosive to the rule of law,” Schulte said. His client “felt like he followed the rules…and they still jammed him up for it.”

‘No reason to overturn’

The NTSB heard dual (dueling) appeals of Fun’s April 2022 ruling that upheld the FAA suspension, though cut its duration in half. The FAA appealed the reduction from 120 days to 60 days, while Palmer argued that the matter should have been dismissed. The board reviewed transcribed testimony from the hearing before Fun, held March 29 to April 1, 2022, along with legal briefs filed subsequently by the appealing parties.

The NTSB sided with the FAA on all points at issue, including its consideration of whether a given location is “suitable” for landing when enforcing FAR 91.119, even though “suitable” is not among the 210 words that comprise the regulation in question. The board noted its own prior rulings that suitability of the landing area was found relevant in similar previous cases:

“Further, we have explained that ‘[r]espondent could not simply choose any takeoff route or time and call it necessary. He must make a reasonable, appropriate choice, or the regulation has no meaning.’ Moreover, we have rebuffed allegations of a due process violation in considering a landing site’s suitability when assessing a § 91.119 violation. Thus, the law judge properly considered the appropriateness of respondent’s intended landing site to determine whether the operation was necessary for landing under § 91.119's prefatory clause. Respondent has not addressed whether consideration of the landing site’s suitability caused him prejudice.”

The board continued:

“Additionally, we have no reason to overturn the law judge’s finding that the intended landing site was unsuitable. The law judge made the determination based on the credible testimony of the witnesses and the evidence before him, and respondent offers no support for his claim that the site was suitable. Rather, respondent merely asserts that he and his aircraft were capable of landing on the runway.”

‘The deck is stacked against airmen’

One aspect of the NTSB decision raised particular concern among AOPA attorneys who have followed Palmer’s case closely: The NTSB cited a recent ruling by the nation’s second highest court in Pham v. Nat’l Transp. Safety Bd., a case involving another FAA enforcement action, in its decision to restore the 120-day suspension that the FAA originally imposed:

“The [FAA] Administrator argues that the law judge erred in reducing respondent's sanction from a 120-day suspension to a 60-day suspension. We agree,” the NTSB wrote. “As discussed, supra, the law judge assessed the Administrator’s choice of sanction using the standard set forth in Martin v. Occupational Safety and Health Review Commission and after weighing the mitigating factors, including the Administrator’s failure to preserve the native security video. However, since the law judge’s decision, the United States Court of Appeals for the District of Columbia Circuit has clarified the deference we must afford the Administrator’s sanction selection. The Circuit Court held that the Board should only overturn the Administrator’s sanction if it is ‘unwarranted in law or without justification in fact.’”

The ensuing application of that “unwarranted in law or without justification in fact” standard stands to affect how any federal regulation is enforced, by setting a higher bar for overruling a federal agency’s enforcement decision. This has potential to undermine the protections Congress sought to create with the Pilot’s Bill of Rights.

Schulte’s concern centers on similar lines, that federal government agencies are being empowered to unilaterally reinterpret their own rules when convenient.

“I’m more concerned about the standards of review that are applicable in these types of decision,” Schulte said. “Right now, the deck is stacked against airmen.”

Schulte said the FAA could follow procedure and amend FAR 91.119 to clarify that a low approach to an off-airport landing site is not “necessary,” and the agency should do that if it wants to take similar enforcement action in the future.

“Tell me what the rules are,” Schulte said. “That's where I’m coming from.”

Schulte said he does not expect the NTSB to agree to reconsider its decision, and “our next recourse is to the United States Court of Appeals.” He said that would not be filed in the same District of Columbia Circuit that issued the Pham ruling, and where the NTSB and FAA headquarters are located, but instead Palmer has the option to seek relief before the appeals court with jurisdiction over Nevada, which is the U.S. Court of Appeals for the Ninth Circuit.