Attempts to rein in helicopter traffic are nothing new. To date, however, most have failed.
At the federal level, Congress has given the Federal Aviation Administration responsibility for making sure that aircraft operators fly safely. The FAA has tended to be rather jealous of this authority. Whenever any state or local government has considered adopting rules that might be more stringent than the FAA’s almost non-existing flight rules for helicopters, the FAA has asserted the preemptive authority of federal regulations and, what’s more, has threatened to cut off federal funds to states where any rules are adopted that might usurp FAA authority. Hawai’i has seen this first-hand.
A Grounded Helicopter Plan
Act 397 of the 1988 state Legislature called for the Department of Transportation to prepare a statewide helicopter master plan. Earlier, the DOT had asked the state Attorney General for a ruling on the limits of state authority with respect to federal regulations. That ruling, issued January 7, 1986, stated, according to the DOT, “That courts have repeatedly ruled that the areas of aircraft noise abatement and minimum flight levels have been preempted such that any state regulation affecting these areas was unconstitutional.”
The Attorney General concluded, “It is our opinion that the state may not enact any legislation that has the effect of restricting helicopter flight altitudes or routes.” The only exception to this, the ruling said, was the designation by the state of airport approach-and-departure routes and airport noise-abatement programs.
The Legislature took note of this in the drafting of Act 397. The act instructed the DOT to prepare helicopter master plans for each state airport, which would be used to guide future development of helicopter facilities. The act required the DOT to develop a permitting system for helicopters and other tour aircraft using airports under state control. It did not authorize the DOT to develop routes or set minimum altitudes. Additionally, it recognized federal authority by providing that “no rules, orders, or standards prescribed by the director [of transportation] shall be inconsistent with or contrary to any act of the Congress of the United States or any regulation promulgated or standard established pursuant thereto.”
The DOT final helicopter system plan emerged in April 1989. It included draft rules for helicopter operations out of state airports. Helicopters operating out of private helipads or heliports were exempt.
The document also included master plans for helicopter traffic at all state airports. Maps and narrative discussions in the report showed noise-sensitive areas (wilderness tracts, residential neighborhoods and the like) and suggested helicopters fly routes to avoid these areas. No prohibition on aircraft flights was included.
Nonetheless, Airports Director Owen Miyamoto has said that the FAA threatened to withhold federal airport funds for the state if the DOT implemented the plan. In addition, in 1990, the private Hawai’i Helicopter Operators Association sued the state in federal court to keep the state from carrying out the plan and enforcing the administrative rules that had been adopted in October 1989. Rather than battle it out in court, the state DOT, on advice of the Attorney General, abandoned the plan. (As a footnote, the HHOA sought $20,000 from the state, which it says is the cost it incurred in mounting the legal challenge to the plan. The 1993 Legislature approved payment.)
Reluctance to Regulate
One of the recommendations in the Hawai’i State Helicopter System Plan was that the governor petition the FAA to adopt a Special Federal Aviation Regulation – SFAR – for the state. “Provisions could include flight-free areas on each island, imposition of minimum altitudes, and establishment of traffic patterns, routes and altitudes in specific areas,” the plan stated. It continued:
“State and federal agencies will need to designate specific areas to be included in the SFAR: Federal wilderness areas, national parks, sites on the national historic register, state identified wildland areas, and noise sensitive areas such as wildlife and bird nesting habitats.”
To date, the FAA has received no petition for an SFAR from the governor or any other state agency in Hawai’i.
The FAA has adopted SFARs elsewhere – the Grand Canyon and, more recently, Niagara Falls. In the case of the former, Congress instructed the FAA to adopt an SFAR after a spate of accidents that killed more than 80 people between 1980 and 1987 and in light of “noise associated with aircraft overflights … causing a significant adverse effect on the natural quiet and experience of the park. ” The SFAR for Niagara Falls was not undertaken pursuant to an act of Congress, but was done for purposes of ensuring safety.
In Hawai’i, the FAA has perceived complaints over helicopter operations as having to do mainly with noise, as opposed to safety. FAA representatives have repeatedly stated that until safety is an issue, they are prohibited from acting under terms of their federal mandate. But in the wake of a number of helicopter accidents in the state – including one in January that took the lives of four Taiwanese tourists – the FAA is being pressed by members of the public to regard regulation of helicopter traffic here as necessary precisely to ensure safety.
Federal Action
When Congress, in 1987, instructed the FAA to adopt special flight rules for the Grand Canyon, it also required helicopters flying over Haleakala crater and certain other parts of Haleakala National Park to maintain an altitude of at least 9,500 feet above mean sea level. In addition, it required the secretary of the Interior to conduct a study to “identify any problems associated with overflight by aircraft” of Haleakala and Hawai’i Volcanoes National Park, among other units of the National Park system.
The study has been delayed by more than three years, but is now expected to be out in the fall of 1993.
U.S. Representative Patsy Mink is not waiting for that. On April 5, she introduced legislation intended to reduce tour aircraft traffic over Haleakala and Hawai’i Volcanoes national parks. According to a news release issued by her office, Mink “developed the legislation in response to numerous complaints from Hawai’i residents, particularly on the Big Island, about increased helicopter activity which has caused noise and safety problems in and around Hawai’i Volcanoes National Park. Also, several recent high-profile helicopter accidents have caused increased interest in tightening Federal Aviation Administration regulations governing tour helicopters and small planes.”
Mink’s legislation – H.R. 1696 – would require the National Park Service to provide the FAA with a map identifying noise-sensitive areas and to designate flight free areas in parks. The FAA would then notify aircraft operators in its bulletins and other publications. Minimum altitudes of 2,000 feet above ground level would have to be observed by pilots flying over any national park area in Hawai’i where such flights are allowed.
Mink’s bill would ban all tour flights over the National Park units at Pu’u honua O Honaunau, Kaloko Honokohau, Pu’kohola heiau, and Kalaupapa national historic parks; over the crater and Kipahulu Valley in Haleakala National Park; and over the designated wilderness areas of Hawai’i Volcanoes National Park, as well as the summit of Kilauea and the coastal area between Ka’aha and Kamoamoa.
Finally H.R. 1696 attempts to address safety concerns by requiring sightseeing flights that begin and end at the same airport to adhere to stricter FAA flight standards. Under current FAA rules, some of those flights are exempt from regulations concerning flight operation, aircraft and equipment, crew qualifications, and weather conditions that apply to most other commercial aircraft operators.
A Draft Agreement
In the meantime, the FAA and the National Park Service have been trying to work out a memorandum of understanding concerning tour helicopter over flights of National Park units on the islands of Hawai’i, Maui, and Moloka’i. A draft of the agreement, dated March 16, 1993, was made available to Environment Hawai’i.
The draft appears to have been written by the National Park Service. In many parts, the language is identical to that contained in Patsy Mink’s legislation. It calls for bans on flights over Pu’uhonua O Honaunau, Kaloko Honokohau, Pu’u Kohola, and Kalaupapa. The draft departs from the legislation by noting that these are “resources considered sacred to Hawaiian people.” For this reason, all these sites “shall not be overflown by commercial tour aircraft…. Furthermore, inasmuch as these areas are small and are entirely primary visitor use areas, scenic tour aircraft shall maintain a two-mile stand-off distance.”
Haleakala National Park, the draft says, “is mandated to protect natural and cultural resources, and especially rare and endangered plant and animal species, magnificent scenery and tranquil and unique Wilderness.” For this reason, the draft states, all overflights of the Crater district and Kipahulu Valley are banned. Aircraft are to keep a two-mile stand-off distance from the overlook near the Sliding Sands trailhead.
Beefed-Up Ban
At Hawai’i Volcanoes National Park, the March 13 draft provided for a ban of flights over the designated wilderness area of the park – which includes Mauna Loa, Ola’a Forest, the East Rift, and Ka’u Desert. In addition, there are to be no flights over the summit of Kilauea and the coastal area between Ka’aha and Kamoamoa. A two-mile stand-off distance is to be observed by aircraft for the Kilauea summit, the Chain of Craters corridor, and the Kamoamoa village.
In mid-April, the draft was made even more restrictive by the National Park Service, in light of concerns raised at the April 10, 1993, meeting called by Mink to hear concerns over helicopter traffic. The more recent draft language calls for a complete ban on flights over all of the park except for two areas. One is a 1 1/2-mile-wide corridor across an isthmus of the park connecting the Mauna Lea district to the area around the Kilauea caldera. The second is a narrow, half-mile-wide strip along the park’s easternmost boundary extending from the vicinity of Pu’u O’o to the coast.
As Dan Taylor, natural resources chief for the Hawai’i Volcanoes National Park, explained, the helicopter routes that would be allowed under the tighter restrictions still provide tour aircraft a chance to see Pu’u O’o. The corridor along the eastern edge of the park meshes nicely with helicopter routes proposed by residents living to the east of the park boundary Taylor said.
The FAA will probably object to several of the provisions in the agreement. In any event, it is not certain that the agreement, whatever language it contains, will bring about significant reductions in helicopter traffic or noise. As the draft acknowledges, the agreement seeks to promote “cooperation” with the restrictions proposed by the park service.
Promises, Promises
As things stand now, helicopter operators are required to obtain certificates from the FAA under Part 135 of FAA regulations or the more relaxed Part 91 regulations. After that, if they want to operate out of state airports in Hawai’i, they must obtain a permit from the state Department of Transportation.
Just what is required to obtain a permit is unclear. DOT rules (Title 19, Subtitle 2, Chapter 34 of Hawai’i Administrative Rules) reflect the language in Act 397 (which amended Chapter 261-12 of Hawai’i Revised Statutes). Actual permit applications, however, do not contain all the conditions set forth in Chapter 261-12 or the administrative rules.
Some of the missing conditions were among those objected to by the Hawai’i Helicopter Operators Association in their lawsuit. (For example, the statute requires that the applicant be “in compliance with all state statutes.” No similar requirement appears in the permit application.)
But not all of the language found to be objectionable by the HHOA in the administrative rules has been deleted from permit requirements. For example, the state continues to require a certificate of general liability insurance coverage of at least $5 million.
Heliport Regulations
Another opportunity for regulation of helicopter traffic arises when operators seek to establish private heliports or helipads. On the island of Hawai’i alone, seven heliports for tour operations have received permits from the county Planning Commission since 1983, when the first one was approved at Waikoloa. Five of them are in active use.
In the last six months, the county Planning Department has received applications for two more private heliports one, proposed by Kenai Helicopters near the Hapuna golf course at Ouli, South Kohala, the other proposed by Kalapana Helicopters (formerly Kainoa) to be built at Kaimu (Kalapana).
Both applications have been met by substantial community opposition. The environmental assessment for the Kenai heliport has been rewritten and is awaiting county acceptance. Processing of the Kalapana application seems to be on indefinite hold.
Since the fatal downing of a Kainoa helicopter in January, Kalapana’s principal, Francis Akana, has not followed through on the work needed to carry the application forward.
Volume 3, Number 11 May 1993
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