River landing leads to proposed suspension

The case adds to AOPA's concerns about how the FAA interprets and enforces FAR 91.119—the central issue in the Palmer case was whether an inspection pass is permissible if the aircraft does not actually land.

If the seaplane pilot's suspension is ultimately upheld by an administrative law judge and the NTSB, as it was in Palmer's case, it could effectively render illegal virtually any seaplane operation on a river outside of remote areas. AOPA is also concerned about potential misinterpretation or misuse of ADS-B data by FAA investigators.

The pilot in question is also an FAA employee and asked AOPA to withhold his name pending further proceedings based on ongoing concern about adverse employment consequences.

As with the Palmer case, the seaplane pilot has appealed his proposed suspension. Similarly to Palmer, the Connecticut River pilot has not disputed that his float-equipped Taylorcraft was flown over the river on May 28, conducting multiple takeoffs and landings with an instructor, at locations including on a stretch of the river next to Northampton Airport. The runway at Northampton is about 1,800 feet away from the Calvin Coolidge Bridge near Hadley, Massachusetts, and 4 nautical miles north of a charted seaplane base on the river.

There are no charted or otherwise published restrictions on seaplane operations in that area. Yet the FAA, in a December 11 proposed suspension order, accused the pilot of operating "at an altitude of less than 500 feet over the Calvin Coolidge Bridge," and determined violations of FAR 91.119(a) and 91.119(c), as well as 91.13(a), the general prohibition against "careless or reckless" operation.

The FAA does not cite any specific evidence of the violation in the suspension order, or explain how it came to the conclusion that the operations at an altitude of less than 500 feet over the bridge and "several houses in the vicinity of the Connecticut River" constitute a violation of the cited regulations.

"You thereby, when not necessary for takeoff or landing, operated …. over open water or sparsely populated areas, closer than 500 feet to any person, vessel, vehicle, or structure," the FAA asserted, ignoring the fact that the operations in question did, in fact, begin or end with multiple takeoffs and landings on the river, each consistent with longstanding local practice of using this stretch of river for the purpose.

The same seven words—"except when necessary for takeoff or landing"—formed the basis of Palmer's ultimately unsuccessful attempt to overturn his own certificate suspension that was imposed after he flew low over private property in Reno, Nevada, to assess whether or not to land in a friend's backyard. Palmer's suspension was upheld by an NTSB administrative law judge, the full board, and later by federal courts. AOPA filed a brief in Palmer's appeal before the U.S. Court of Appeals for the District of Columbia Circuit in 2023, arguing on behalf of various aviation groups that the NTSB and FAA have not consistently followed federal law—specifically, the Pilot's Bill of Rights—when adjudicating appeals of FAA enforcement actions.

One important difference between Palmer's case and the present case of the seaplane pilot is that Palmer did not actually land, or take off from, the private property in question. The D.C. Circuit court concurred with the NTSB administrative law judge's determination in Palmer's case:

"As the Board explained, the ALJ did not broadly hold that low flights are never necessary for off-airport landings but rather found based on the evidence that Palmer did not prove his defense that this particular low flight was necessary for landing," the court wrote in its June 4 decision. "The Board reviewed the decision and concluded that the ALJ reasonably found that the low inspection pass was not necessary under these circumstances because Palmer had safer alternatives to inspect the landing site. We agree."

In the present case, AOPA looks forward to an opportunity to examine the evidence that the FAA used to base its conclusion that specific flights on May 28 violated regulations, evidence that the FAA should be required to produce as the appeal unfolds.

"This has potential to be a groundbreaking case of first impression in multiple ways, including off-airport operations and agency use of ADS-B data," said AOPA General Counsel Justine Harrison. "We're watching closely."

The seaplane pilot is being represented by a former FAA enforcement attorney who is now an AOPA Pilot Protection Services panel attorney, and who filed an appeal of the FAA's proposed suspension order that will be heard by an NTSB administrative law judge.

As the case proceeds, AOPA expects to learn what role ADS-B data played in the FAA investigation. Section 829 of the FAA Reauthorization Act of 2024 prohibits the FAA from using ADS-B data transmitted by aircraft as the sole basis to initiate an investigation, excluding criminal investigations, though it allows the FAA to use ADS-B data against a pilot "if such investigation was initiated as a result of a report or complaint submitted to the Administrator."

It is not clear from the December 11 suspension order what precipitated the investigation in the Connecticut River case. Nor is it clear whether the FAA conducted a rigorous analysis of the ADS-B data that would likely be the basis of any evidence provided by the agency that the aircraft in question operated within 500 feet of the Calvin Coolidge Bridge.

It is possible that the raw ADS-B data available to the FAA was misleading, or incomplete. It is common for aircraft operating at Northampton Airport not to register on ADS-B traffic displays at low altitude, where ADS-B Out signals may be blocked by terrain. ADS-B transmissions from an aircraft landing on the river may not have been picked up by the network, which could mean that the takeoffs and landings that made approaching within 500 feet of structures or vessels necessary were not readily visible to the FAA.

While ADS-B location information (latitude and longitude) is generally accurate and precise, altitude data can be subject to significant error until it is carefully analyzed. ADS-B data available publicly through websites including FlightAware and ADS-B Exchange displays altitude information that requires correction of errors that can amount to hundreds of feet to accurately determine the height of an aircraft above the ground, or above mean sea level, or above structures.