Air tour ‘lovefest’ follows latest Canyon court ruling

 - May 7, 2008, 9:56 AM

In light of the comity that almost turned a Senate Commerce Committee hearing on national parks overflights into a “lovefest” early last month, it is difficult to fathom why it has taken more than 15 years to reach agreement on rules for air tours over such noise-sensitive recreational areas.

Although Congress passed the National Parks Overflight Act in 1987 to regulate air tours over the Grand Canyon National Park, and followed that with the National Parks Air Tour Management Act of 2000 to regulate air tours over the rest of the National Park System, the FAA has yet to act on a provision in the latter law to foster quiet-technology aircraft.

Sen. John McCain (R-Ariz.), who signaled at the confirmation hearing for new FAA Administrator Marion Blakey in September that he is running out of patience, reminded that the Air Tour Management Act ordered the FAA to designate “reasonably achievable requirements” for use of quiet technology in the Grand Canyon within one year of passage.

After the FAA failed to meet the deadline, he said, it then promised Congress that the rule would be out at the beginning of this year. “We are now late in the year and there is still no sight of a quiet-technology rule,” the ranking Republican member of the committee declared. “I frankly don’t care who is responsible. What I do care about is that we haven’t reached our goal 15 years after it was established as law.”

Peggy Gilligan, FAA deputy associate administrator for regulations and certification, assured the Senate panel that Blakey “is very aware of your interest” and is “very troubled” at the delays, which McCain characterized as “seemingly neverending.”

The National Park Overflights Act of 1987 directed the National Park Service (NPS) to define the term “substantial restoration of natural quiet” and submit recommendations to the FAA that would achieve that goal.

“Never before had the FAA been directed to accomplish such a goal–restoring natural quiet to a sizable land area where aviation tour operations were frequent and extensive,” Gilligan testified. “This task has proven more controversial and challenging than anyone thought it would be at the time it was passed.”

In outlining the history of the national parks air-tour debates, she defended the FAA, insisting that it had been investing “substantial time and resources” on the issue even before the act was passed. And throughout the lengthy process the FAA has been sued by the Air Tour Coalition and the Grand Canyon Trust.

As recently as May 2000 the FAA was sued over the validity of its “limitations rule,” which imposed a cap on the total number of commercial air tours that may be operated in the park. The air-tour operators said it was unlawful for several reasons, including its reliance on what they believed was an improper change in the definition of natural quiet, and argued that the acoustic methodology was scientifically flawed.

The Grand Canyon Trust charged that the rule was unlawful because the FAA improperly altered the NPS definition of natural quiet by using an average day–rather than an any-given-day standard–in the agency’s noise methodology and because it failed to consider aircraft noise that came from aircraft other than those used by air-tour operators. The U.S. Court of Appeals dismissed the coalition’s challenge but upheld that of the trust, and remanded the case back to the FAA for modification. That ruling was issued on August 16.

“The court came across with a ruling that sent us all back to the drawing board,” said Alan Stephen, v-p of Grand Canyon Airlines and CEO of Twin Otter International, which modifies de Havilland Twin Otter twin turboprops into quiet-technology Vistaliners. “I would like to sit down and hear the views
of everybody, including government, and I would hope they all want to hear our views.”

That may yet happen. Paul Hoffman, deputy assistant secretary for fish and wildlife and parks at the Interior Department, said that the use of an alternative dispute resolution (ADR) process is currently under consideration as a method for reaching agreement on the best way to restore natural quiet and to retain the opportunity for the public to enjoy the park via air tours.

ADR is a tool used by some federal agencies that eschews court litigation in favor of having opposing parties sit down with an independent facilitator to reach an agreement. Since the NPS is the lead agency in the national park overflight imbroglio, its ADR process of dispute resolution would be used instead of the FAA’s.

McCain expressed hope that all of the parties would be willing to “sit down and discuss each and every issue, recognizing fully that nobody is going to be able to reach an agreement that is in violation of judicial process.”

Said McCain, “Since we’ve been waiting 15 years, at least it can’t hurt to sit down and have a conversation involving all of the interested parties without saying ‘we are not going to talk about this, we are not going to talk about that.’”

Hoffman’s suggestion of an ADR seemed to meet with the approval of Stephens, as well as Tom Robinson, director of government affairs for the Grand Canyon Trust, and Steven Bosak, an associate director of the National Parks Conservation Association.

Robinson, who praised Stephen’s Vistaliners as “probably the quietest airplanes in the air,” told the Senate committee that “we would be interested in the alternative dispute-resolution process.” He added, “I do believe we need to finish this quiet-technology rulemaking sooner rather than later,” while providing incentives for those tour operators who use it. “Why should Alan receive the same cap restrictions that others have?” he asked.

Declaring that the National Parks Conservation Association is not opposed to ADR, Bosak said, “We are supportive of quiet technology. We are open to that.”