FAA Has Sole Jurisdiction over US Airspace
First, the establishment and regulation of airspace for the entire United States to include its territories, and dependencies rests with one agency, the Federal Aviation Administration (FAA). The FAA’s power to regulate airspace emanates from the Federal Aviation Act of 1958 section 307. Under the legal doctrine of pre-emption, State and local governments are prohibited from making laws that conflict with the FAA’s regulation of airspace under this Act.
In the incident that took place in South Carolina, the County Sheriff overstepped his authority. Only the FAA has the authority to establish airspace restrictions and to enforce those rules. If the glider pilot did indeed violate an airspace restriction, then the pilot would have been subject to a formal enforcement proceeding. In a suspected airspace violation, the FAA conducts an investigation and determines whether or not there is enough evidence to proceed with a formal enforcement action. If enough evidence exists and the severity of the infraction warrants it, then the FAA issues a Notice of Revocation/Suspension of the pilot’s license. There are established rules and procedures in place for the appropriate government agency to address airspace violations. Only the FAA is empowered to take such action against Airmen.
Interestingly, in this case, the Sheriff’s Office altered the formal charge against the pilot to one of “breaching the peace.” The FAA is in charge of regulating airspace to avoid meritless criminal charges being lobbied against pilots from around the country. Quite simply a local or State agency cannot seek to impose local laws on pilots in flight with respect to navigating through airspace. Those rules fall squarely within the FAA’s area of responsibility.
Designation of Prohibited or Restricted Airspace Is Governed by 14 C.F.R. Section 73
In the incident that took place in South Carolina, the County Sheriff overstepped his authority. Only the FAA has the authority to establish airspace restrictions and to enforce those rules. If the glider pilot did indeed violate an airspace restriction, then the pilot would have been subject to a formal enforcement proceeding. In a suspected airspace violation, the FAA conducts an investigation and determines whether or not there is enough evidence to proceed with a formal enforcement action. If enough evidence exists and the severity of the infraction warrants it, then the FAA issues a Notice of Revocation/Suspension of the pilot’s license. There are established rules and procedures in place for the appropriate government agency to address airspace violations. Only the FAA is empowered to take such action against Airmen.
Interestingly, in this case, the Sheriff’s Office altered the formal charge against the pilot to one of “breaching the peace.” The FAA is in charge of regulating airspace to avoid meritless criminal charges being lobbied against pilots from around the country. Quite simply a local or State agency cannot seek to impose local laws on pilots in flight with respect to navigating through airspace. Those rules fall squarely within the FAA’s area of responsibility.
Designation of Prohibited or Restricted Airspace Is Governed by 14 C.F.R. Section 73
Granted, there are airspace locations throughout the United States that warrant special protection from the transit of pilots without specific permission. A great example is the airspace surrounding a military installation, like an Air Force base. In Northern California, Travis Air Force Base, located in the San Francisco Bay Area, merits and receives such protection. The airspace south of the Air Force Base up to 3,000’; and the airspace north of the Air Force Base up to 6,000’, is designated as an Alert area. Without question, everyone would agree that transiting into the airspace surrounding Travis Air Force Base, as depicted on the chart, raises serious National Security concerns. Herein lies the difference. The chart clearly depicts the Alert Area, the pilot has notice of its existence; the applicable times of operation; and only needs to spend 60 seconds to determine whether to circumvent the airspace. The nuclear plant involved in this incident, like almost all of the other nuclear facilities, was not depicted on charts released by the FAA. Legally, as a matter of due process, in order to advance a claim of an airspace infraction, the FAA must prove that the pilot has notice of the restrictions accompanying airspace. Without a reference on the chart, how is a pilot to know which areas to avoid? Short answer, they can’t.
There exists a procedure available to other Federal agencies, State agencies, and local government agencies to impress upon the FAA the need to alter airspace. Pursuant to 14 C.F.R. section 73, if an agency determines that a change in airspace is necessary, then that agency must submit a written request to the FAA for consideration. In the glider pilot’s case, the nuclear facility had not submitted a request to the FAA for alterations of the airspace above its facility. To be fair, the bad actor in this situation is not the nuclear facility but is instead the Sheriff’s Office.
The glider pilot was eventually released from custody after waiving his right to sue the Sheriff’s Office in a civil action. By no means, should you interpret this blog article as an attack on the glider pilot’s decision not to pursue civil litigation against the Sheriff’s Office for overstepping its bounds. Civil litigation is expensive in both money and time. However, the best procedure for clearly establishing the limits of local authority and prevent future, similar encroachments on the FAA’s authority, would be to bring suit against the local authority for overstepping its authority. If a similar situation happens to you or a friend, then the wrongfully accused pilot should consider bringing a claim with the goal of establishing a written precedent in the case law against such egregious conduct. Until a local law enforcement agency oversteps its bounds, the issue won’t be ripe for a court to decide the issue. In the interim, the best offense is a good defense. Know your rights and the limits to the local government’s exercise of authority.
There exists a procedure available to other Federal agencies, State agencies, and local government agencies to impress upon the FAA the need to alter airspace. Pursuant to 14 C.F.R. section 73, if an agency determines that a change in airspace is necessary, then that agency must submit a written request to the FAA for consideration. In the glider pilot’s case, the nuclear facility had not submitted a request to the FAA for alterations of the airspace above its facility. To be fair, the bad actor in this situation is not the nuclear facility but is instead the Sheriff’s Office.
The glider pilot was eventually released from custody after waiving his right to sue the Sheriff’s Office in a civil action. By no means, should you interpret this blog article as an attack on the glider pilot’s decision not to pursue civil litigation against the Sheriff’s Office for overstepping its bounds. Civil litigation is expensive in both money and time. However, the best procedure for clearly establishing the limits of local authority and prevent future, similar encroachments on the FAA’s authority, would be to bring suit against the local authority for overstepping its authority. If a similar situation happens to you or a friend, then the wrongfully accused pilot should consider bringing a claim with the goal of establishing a written precedent in the case law against such egregious conduct. Until a local law enforcement agency oversteps its bounds, the issue won’t be ripe for a court to decide the issue. In the interim, the best offense is a good defense. Know your rights and the limits to the local government’s exercise of authority.
If you want further information or you believe that a local government agency exceeded its authority in relation to your airmanship, then contact Ronnie Gipson at 415.692.6520 or by email at gipson@higagipsonllp.com.
