Federal court creates new burden for backcountry pilots
Be prepared to defend your inspection pass decisions
The takeaway for pilots from a June 4 ruling by the U.S. Court of Appeals for the District of Columbia Circuit: Be prepared to prove that a low-altitude runway inspection pass was "necessary," though a new federal law may limit the FAA from pursuing similar cases.
Barring a successful petition for rehearing or appeal to the U.S. Supreme Court, pilot and YouTube personality Trent Palmer has lost his battle with the FAA over a pilot certificate suspension imposed after neighbors complained to the FAA about a low-altitude inspection pass that Palmer flew over a friend's backyard in Reno, Nevada, on November 24, 2019.
Palmer cited the FAA's own (not legally binding) guidance to pilots regarding off-airport operations, which advises pilots to conduct inspection passes (three, in fact, at progressively lower altitude) before attempting an off-airport landing.
Palmer appealed the FAA decision, first to an NTSB administrative law judge, who reduced his certificate suspension to 60 days but otherwise upheld the FAA decision. Palmer then appealed that decision to the NTSB itself, which overruled the administrative law judge's reduction of the suspension duration and restored the original 120-day suspension. Palmer then appealed to the federal courts. A federal appellate court heard the case in March. AOPA filed a "friend of the court" brief joined by the Alaska Airmen's Association and the Experimental Aircraft Association. The aeronautical associations argued that the NTSB had failed to uphold the requirements of the Pilot's Bill of Rights—and rules of evidence and procedure that apply in federal court cases—in rendering its decision.
The aviation groups also asked the D.C. Circuit Court to reconsider a previous ruling that appears to conflict with the PBR. This previous ruling held that the NTSB should defer to the FAA's judgment when imposing sanctions against a pilot. The D.C. Circuit declined the request, writing, "Palmer and amici have not identified any legal error in the Pham opinion that would warrant en banc review."
Backcountry pilots have closely watched the decision and what it could mean for off-airport operations. AOPA Pilot Protection Services attorney Ian Arendt, among several AOPA attorneys who have worked on the case, said pilots should not interpret the various rulings against Palmer to mean that low-altitude inspection of off-airport landing sites is generally prohibited.
"Longstanding NTSB precedent holds that maneuvers that do not result in a landing (including go-arounds and simulated/practice approaches) are within the scope of the 'except when necessary for takeoff or landing' language of FAR 91.119. There is no reason to think that an inspection pass would be treated any differently," Arendt wrote in an email. "It’s my view that pilots should not hesitate to conduct an inspection pass if circumstances warrant one. However, the burden may now fall on the pilot to prove, as an affirmative defense, that the low-level flight was necessary. This means pilots need to use appropriate judgment and choose a safe path for the inspection pass and be prepared to defend that decision—if necessary—in front of a judge."
The recently enacted FAA reauthorization law includes a provision intended to prevent future cases such as Trent Palmer has encountered: "The [FAA] Administrator shall not apply [FAR 91.119] … in any manner that requires a pilot to continue a landing that is unsafe.” It remains to be seen how this will affect future FAA enforcement decisions.
