8th Circuit Court Won't Stay Parks' Air Tour Bans For Helicopter Industry

With a one-sentence ruling the 8th U.S. Circuit Court of Appeals has refused to stay, pending appeal, commercial air tour bans approved by the National Park Service for Badlands National Park and Mount Rushmore National Memorial in South Dakota.

Last fall the Park Service announced that the tours would be banned at the two parks and within one-half mile outside their boundaries to protect park resources, including natural and cultural resources, tribal sacred sites and ceremonial areas, wilderness character, and visitor experience. The bans took effect May 13.

The helicopter industry in South Dakota had gone to the 8th Circuit to appeal the bans, which were approved by the Park Service and the Federal Aviation Administration, saying they were arbitrary and capricious and not supported by evidence meriting the bans.

"No facts of real complaint from the park visitors or residents about the alleged disturbance are shown, and the alleged disturbance only 'may' have disturbed wildlife and Native American cultural sites," the industry argued in seeking a stay while they appealed the bans.

The 8th Circuit was not swayed, though.

"The motion for stay pending appeal is denied," the court said Friday.

The legal battle over airspace over national parks has been ongoing since 2000, when Congress passed the National Parks Air Tour Management Act and ordered the Park Service and FAA to get together and come up with air tour management plans for parks. The process has been slow, criticized, and targeted by lawsuits.

As parks across the National Park System released their draft plans, they revealed that there seemed to be no central goal for parks to follow. While Glacier National Park's plan calls for all commercial air tours to be phased out by the end of 2029 because "[T]he preservation of natural sounds, protection of natural and cultural resources, wilderness character, and preserving visitor experience by addressing noise issues are priority NPS management objectives for the Park," at Bryce Canyon National Park in Utah officials told the National Parks Traveler they never considered a ban as they worked on a draft air tour management plan. 

Staff at Bryce Canyon, and many other parks, claimed there were no significant impacts from the air tours to require more extensive environmental studies as the National Environmental Policy Act requires, and so applied "categorical exclusions" that allowed them to avoid those studies. 

At Badlands, however, Superintendent Eric Veach said in November when the overflight ban was approved for his park that "[P]rohibiting commercial air tours protects the cultural and spiritual significance of these lands to tribes, and is reflective of the experience desired by visitors."

Mount Rushmore Superintendent Michelle Wheatley said much the same.