Badlands is one of 23 national parks that hope to have air tour management plans crafted by 2022/NPS file, Cathy Bell
Sprawling across across 244,000 acres of prairie, canyons, buttes, and wondrous multi-colored geologic formations, Badlands National Park in South Dakota can be hard to fully grasp and navigate if you're on foot or even in a vehicle. That's where taking a flight over the park can show one the majesty of the landscape.
Much the same can be said of Grand Canyon National Park in Arizona, Hawai'i Volcanoes National Park in Hawaii, and Great Smoky Mountains National Park in Tennessee and North Carolina, just to name a few of the units of the National Park System that have air tour operations.
But those overflights can be irritating to those on the ground.
"Wanted to let you know that helicopters are flying over the Badlands National Park in what seems like every 15 min! For myself, it really took away from the experience during my visit," a reader told Traveler in August. "I did see the helicopter company right outside the park. The ranger I spoke to told me that the rangers all pretty much do not like that this is going on. How do we stop this, or what can we do? I suppose I could write the politicians."
The issue of air tours and how they operate is not a new one. Earlier this year, staff at Montezuma Castle National Monument in Arizona spotted helicopters flying much too close to the cliff dwelling there, and in May a federal judge chastized the National Park Service and the Federal Aviation Administration for failing for nearly two decades to agree on air management tours over national parks.
It was 20 years ago that the National Park Air Tour Management Act of 2000 was implemented and required the FAA, in coordination with the NPS, to set limits on overflight numbers, timing, and routes to protect park resources and the visitor experience.
Badlands National Park is one of the parks impacted by the judge's ruling. It will, however, be a while before a plan is in place for any of the parks.
"Commercial helicopter tours over Badlands National Park are provided by a private company and originate outside of the park," said Superintendent Michael Pflaum when Traveler reached out for comment on the visitor's concerns. "The Federal Aviation Administration regulates helicopter flights over the park. A May 2020 federal court order was issued, requiring the National Park Service and FAA to complete air tour management plans within the next two years for several parks, including Badlands.
"The NPS is currently in the early stage of working on an Air Tour Management Plan for Badlands National Park, projected to be completed by late 2022. That plan will take into consideration current levels of service and noise impacts."
Public Employees for Environmental Responsibility, which has sued the two government agencies to come to terms on managing overflights, on Tuesday will announce what Pflaum already knew: that the FAA is implementing the judge's directive and has announced the schedule for developing air tour management plans for 23 national parks that are all to be finalized by May 1, 2022 (see attached).
“These air tours are noisy and usually low-flying, adversely affecting both wildlife and park visitors, as well as residents in gateway communities,” said PEER General Counsel Paula Dinerstein, who argued the litigation, in a statement obtained by the Traveler. “This lawsuit was needed to protect national parks from being loved to death by incessant overflights.”
According to PEER, through the past 20 years the FAA has "been issuing interim approvals that essentially have grandfathered-in existing flight levels. The FAA has also sought voluntary agreements with tour operators who had little reason to consent to reduced flights because they had no reason to fear mandatory restrictions, until now."
Dinerstein, noting that the court order requires FAA and the NPS to agree on management plans but does not speak to the quality of those plans, said that currently "national parks cannot limit overflights, no matter how damaging, without cooperation from the FAA, which has heretofore not been forthcoming, absent a court order.”
“We are happy the process for developing these park overflight plans has finally begun, but, if past is prologue, it will take a lot of work and public pressure to see them to a satisfactory conclusion,” she added.
The agreement filed with the court for approval Monday says the FAA and NPS will abandon efforts to reach voluntary management plans. It also notes that while unforeseen issues could cause individual parks to fall behind the desired schedule to complete management plans, "the agencies will work with project managers to ensure that a delay in completion of an air tour management plan for that park will not impact the schedule for other parks in the plan."
For the past three decades, Mike Jacob has been offering air tours over Badlands National Park and nearby Mount Rushmore National Memorial via his Black Hills Aerial Adventures company. At Badlands, the company offers five different helicopter air tours ranging from short, 6-mile flights to a 35-mile flight that takes in both Badlands and the Buffalo Gap National Grasslands that surrounds the national park.
While he's tried to come to terms with the FAA and NPS on voluntary agreements for those overflights, those deals have been elusive.
"We have been involved with the National Park Service and the FAA for over 20 years on this issue. We have been very close on several occasions to coming up with a voluntary agreement between the Park Service and myself, pertaining to operations in the Badlands," Jacob said Monday during a phone call. "The voluntary agreement that we had worked out between the park superintendent in the Badlands and the chief ranger for several years has been more than satisfactory with the parks. However, the powers to be keep rejecting it."
In trying to resolve the matter, Jacob brought regional Park Service and FAA representatives together for a roundtable discussion of the issues with hopes of finding an agreement that would address "what you do, and this is what you don’t do, and this is how you do it, and this is everybody’s expectations."
"When we had all the terms figured out, and were ready to sign a voluntary agreement, then somebody in their infinite wisdom decided that, well, the voluntary agreement is not suitable for this particular situation," he explained. "So they canceled the voluntary agreement process and said they were going back to working on an air management plan.”
Jacob said he wasn't entirely sure why the effort fizzled, but came away with the impression that FAA and NPS negotiators in Washington were seeking a "one-size-fits-all" solution to air tours.
“The issue, obviously, is trying to have two government agencies work together to try and figure out who’s going to basically call the shots on this. And, by the time you actually get things starting to progress, then there’s new players that come on board. And you start all over," he said. “I’ve been actively involved in this from its onset. This is my 30th year of doing this. To say the least, it’s extremely frustrating.”
For now, Blackhills Aerial Adventures continues operations under a letter of agreement with the FAA and NPS that dictates tour routes and altitudes the whirlybirds must fly at.
“It’s not that Mike Pflaum and myself are at odds at trying to get something done," Jacob stressed. "We’ve already established what would be a working relationship between us and the Badlands. So we don’t have any issues. It’s just waiting for somebody else to come up and try to determine what works best for the Badlands National Park when they sit in their office in Washington or wherever and try to make a one-size-fits-all.”
Traveler footnote: National parks that are to have air tour management plans finalized by May 2022 are Hawai'i Volcanoes, National Parks of New York Harbor Management Unit, Lake Mead National Recreation Area, Haleakalā, Glen Canyon National Recreation Area, Mount Rushmore National Memorial, Golden Gate National Recreation Area, Badlands, Rainbow Bridge National Monument, San Francisco Maritime National Historical Park, Great Smoky Mountains, Bryce Canyn, Canyonlands, Glacier, Arches, Point Reyes National Seashore, Bandelier National Monument, Olympic, Natural Bridges National Monument, Everglades, Canyon de Chelly National Monument, Mount Rainier, and Death Valley.
Comments
As usual, Humph, you are wrong, I am talking about owners, pilots, mechanics, airport operators and cleaning crews, among many others. Hardly folks that would fit in the catagory of "wealthy" other than the personal wealth they develop from working for an honest living.
You got that, Hump? It sounded exactly like an ex cathedra pronouncement of your wrongness.
ec--
I don't see how banning sightseeing flights (<10K feet above ground) over parks could be a taking. The scenic flight companies are not concessionaires, they have no contracts with NPS. What do you think is their property right to the National Parks, or to the airspace above the parks? Do you assert a property right to a business plan? If so, any business plan, or just those that involve making profit from public goods or lands? Do scenic flight companies have property rights to Monument Valley or other tribal lands? Do scenic flight companies have property rights to scenery in the Wind Rivers or the Dragoons, that would be actionable against the government permitting large mines that mar the scenery? Do gateway commuinities have a property right to nearby National Parks attracting visitors, not restricting visitors to meet the "unimpaired for the enjoyment of future generations" legal mandate? If so, does that property right extent to food and lodging and equipment rentals, or also gocarts, mini-golf, and t-shirts? Do you have a property right to fly a drone over a National Park, and would selling imagery from such flights matter for that right? And if you are really talking about the pilots, mechanics, and cleaning crews, does that invoke a property right to continued employment by a company, that is somehow enforceable against NPS but not against the company, who can fire them at will? If your answers to some of those questions are yes and others no, please explain the logic and distinctions you use. I don't think any of the above approach being a legal property right.
That said, I'd be happy with phasing out rather than abruptly stopping overflights. Phasing out is routine for polluting facilities, and simply treats the people employed decently, I believe our government should treat people decently, even if limited liability corporations don't.
My understanding of the law has nothing to do with property rights, but rather the FAA's interpretation of what airspace can and cannot be restricted to aviation, and what rules can be established for commercial aviation. Commercial flight can be and is restricted to specific flightpaths and elevations. Clearly airspace above cities, military bases, and in controlled commercial flight paths can be and is closed to general aviation by the FAA. And, it is rather routine for airspace over large sporting and political events to be temporarily closed. To a large extent the problem is that NPS considers resource protection (including soundscapes) to be mandated under their laws, while FAA interprets their laws as pushing for as much airspace as possible remain open to aviation, and minimizing restrictions to commercial aviation. The normal way to resolve such conflicts in unrelated laws would be Congressional legeslation definitively opening such airspace to all aviation, giving NPS jusrisdiction above their parks up to some ceiling, or establishing criteria for something in between. In theory Congress represents you and represents me. Empirically, a few scenic flight operators are highly impacted while the millions of visitors are annoyed or impacted for a day or 2 each, and the flight operators so far have been able to win the sympathy of their Congressional delegations. Thus, the NPATMA law passed 20 years ago was vague on criteria, and was amended in 2012 to allow voluntary agreements with tour operators.
Those operators had no need to compromise anything, and could simply stall and drag out the process and contunue their business. Eventually, PEER and other outside parties sued NPS & FAA, and obtained a court order. This agreement in response to that court orders appears to be that the FAA & NPS will knock heads, using NEPA criteria and impacts based on current numbers of flights (not larger potential numbers of flights) as the baseline, to iron out air management plans that will establish corridors, altitudes, times, and numbers of flights for commercial flights over and near these 23 parks, prohibiting commercial air traffic outside of those parameters. That baseline will require solid evidence of substantial current harm in order to reduce or eliminate the current numbers of flights, or solid evidence of no harm to allow increased numbers of flights.
It will be interesting to see whether NPS & FAA can compromise on what amounts to allowable levels of resource and visitor enjoyment impairment. Even if they do, I suspect any agreement will be challenged in court by air tour operators, PEER and other conservation organizations, or both.
Excellent analyis and well explained, tomp2, I hope it isn't lost on your audience. Managing a civilized society entails setting priorities and limits that allow everyone a decent chance to follow some reasonable portion of their own idea of life, liberty, and the pursuit of happiness. It's a balancing act that needs to consider both the present and the future, both the rich and the poor, both the big and the little, both the dominant and the meek. From those to whom much has been given, much is expected. Some understand the concept; some do not.