John S. Yodice is the owner of a Cessna 310 and a Piper Cub.
The National Transportation Safety Board has again passed up an opportunity to clarify and reasonably interpret FAR 91.119, the flight rule on minimum safe altitudes. And, again, it did so in a ruling with the obvious purpose of assuring that pilots are found guilty in FAA enforcement cases, seemingly without regard to the muddled law it leaves behind for law-abiding pilots.
FAR 91.119 is the flight rule that tells pilots the minimum altitudes at which they may legally operate their aircraft. Among other things, the regulation provides that “over any congested area of a city, town, or settlement, or over an open-air assembly of persons, [a pilot must operate the aircraft at least] 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.” To provide some context to this part of the rule, the regulation also provides that over “other than congested areas,” an aircraft must be operated at least 500 feet above the surface, unless it is over open water or sparsely populated areas, in which case the aircraft must stay at least 500 feet away from any person, vessel, vehicle, or structure.
Surprisingly, the term congested area is not defined in the regulations. Nor does the FAA provide any other meaningful guidance for this term, or for the term other than congested areas. For pilots, these meanings must be gleaned from FAA enforcement cases as interpreted by the NTSB.
In April of this year ( “Pilot Counsel: What Is a ‘Congested Area’?”) we reported a case in which a pilot wound up with a 150-day suspension of his ATP for a low flying violation. In order to sustain the violation, the board necessarily had to determine whether a beach is a congested area. Instead of providing a reasoned explanation, the board perfunctorily held that any number of persons on the beach made it a congested area as an “open air assembly of persons.” It did so without providing any guidance as to how many persons and how closely assembled the persons need to be to constitute a congested area. The board offered no guidance as to whether a beach could be an “other than congested area” or a “sparsely populated area” as those terms are used in the regulation. The board also had to decide whether an airport is a congested area. Based on the testimony of an FAA inspector, the board found that the pass down the runway endangered the “individuals in the vicinity of the airport.” Without any discussion or guidance, the board implicitly held that the airfield was a congested area.
In this more current example, the NTSB sustained the 90-day suspension of the commercial certificates of two agricultural pilots for low flying. According to the FAA, each flew a Grumman G-164S at less than 300 feet above ground level over the same residential area in violation of FAR 91.119. The allegations included related charges from FAR Part 137 (that gives agricultural operators a special dispensation to fly at altitudes below the minimums specified in FAR 91.119), but the significant issue was whether these operations were conducted over a congested area as that term applies to all Part 91 operations.
Both pilots were frank that they had flown over this rural area at altitudes below 500 feet, which, according to their interpretation, is allowed under Part 137. They denied flying over any congested area, or over houses.
The issue was whether the pilots should have submitted to the FAA a congested area plan because the area, according to the FAA principal operations inspector, “could” be considered a congested area. The FAA inspector would not make a determination in advance, or offer a definition of the term. He did say that there were cases in which small groups of houses—as few as two or three—were determined to comprise a congested area. The pilots believed the area over which they flew was not congested. The FAA inspector testified that during his investigation of complaints, after the fact, he determined that the neighborhood was a congested area. That issue aside, the question pilots would like answered is what constitutes a congested area.
Here is what the board said: “A review of the history of the term congested area, and case law interpreting it, makes clear that small, sparsely settled residential areas are settlements for purposes of determining whether an area is congested within the context of Part 91 or, for that matter, Part 137. The term congested area will continue to be adjudicated on a case-by-case basis before this board. The determination must take into consideration all circumstances, not only the size of an area and the number of homes or structures, but, for example, whether the buildings are occupied or people are otherwise present, such as on roads.” The board went on to say: “In the instant case, the law judge found there were ‘upwards of 30 homes, buildings, and structures within the area...and this renders it a congested area. It isn’t just the number of homes. [It] can be anywhere from three homes to 30 or 50 or 100. It depends on the locale and where they are, and so forth.’ We concur with this reasoning and finding.”
Until we get better guidance, pilots should be mindful of the history that any low flying allegations will ultimately be decided by the NTSB in favor of the FAA, after the fact, and on a case-by-case basis. To the extent practical, stay high.