Sunshine Helicopters Photo
Flawed process raises deep concerns for aerial tour sector.
Commercial air tours over US federal lands under the jurisdiction of the National Park Service (NPS) are threatened, now more than ever.
A 2020 order by the US Court of Appeals for the District of Columbia has resulted in considerable air tour restrictions over 23 NPS areas. The lawsuit resulted from the NPS and FAA’s failure to produce air tour management plans (ATMPs) as directed by the National Parks Air Tour Management Act of 2000 (NPATMA). Since that court ruling, five NPS areas now have restrictive ATMPs in place and draft ATMPs have been published for 12 more.
Air tour operators with permission to operate in these NPS areas are scrambling to protect their operations. Meanwhile, they report a broken process where decisions critical to aviation safety are made without industry consultation and where the elimination of air tours over NPS lands appears to be the goal.
A Historic Battle
Since the mid-1980s, the NPS has stated that by limiting air tours over the federal lands that it administers, it is protecting the environment and visitor experience, even though by some measures, air tours are less damaging to the environment than ground-based tours while also providing many with improved opportunities for access. By the late 1990s, regulations restricting air tours were well established in Grand Canyon National Park and NPS lands in Hawaii. Then came the NPATMA, passed in April 2000.
The act required commercial air tour operators providing tours over NPS or tribal lands to apply for authority to conduct those tours. The application would then trigger a process where the FAA and the NPS would collaboratively develop an ATMP for the NPS area (the FAA’s involvement stems from its responsibility to protect airspace and aircraft operations, while the NPS is charged with managing and protecting the federal lands and parks under its jurisdiction). The resulting ATMP would outline “acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.”
To ensure all interested voices were heard in ATMP processes, the act required the formation of a National Parks Overflights Advisory Group (NPOAG), consisting of representatives of general aviation, commercial air tour operators, environmental groups, and Native American tribes. FAA and NPS representatives serve as ex officio members and cochairs. Formed in 2001, the group was an active participant in providing input on NPS and FAA actions related to the NPATMA until the 2020 court order derailed the ATMP process. HAI President and CEO James Viola represents commercial air tour operators on the NPOAG, as did his predecessor, Matt Zuccaro.
The NPATMA also allowed the FAA to provide interim operating authority (IOA) for existing operators over park and tribal lands pending issuance of the ATMP, but those IOAs were subject to requirements and limitations. Operators were issued annual flight allocations and were limited in altitudes, routes, hours, and more.
In an effort to simplify the process, the NPATMA was later amended to allow, in lieu of an ATMP, a voluntary agreement between all tour operators at a location, the FAA, and the NPS if all parties agreed. Additionally, ATMPs or voluntary agreements were now only required if more than 50 commercial air tours took place or were allocated over a park annually.
The FAA and NPS were successful in securing voluntary agreements for two parks by 2016. However, no ATMPs were in place in 2019 when a coalition of Hawaii residents and the group Public Employees for Environmental Responsibility, representing current and former public employees, sued the FAA and NPS for failure to complete the ATMP process. In legal documents and press releases, coalition members cited excessive noise from aircraft overflights as negatively affecting visitor experience, quality of life, park flora and fauna, and public health.
On May 1, 2020, the US Court of Appeals for the District of Columbia ordered the FAA and NPS to adopt ATMPs or voluntary agreements for 23 named NPS areas. It gave the agencies 24 months to comply. Extensions have been granted to the agencies, provided they continue to report progress to the court.
A Rushed Process
In responses to the court during the lawsuit process, the FAA and NPS cited frequent impasses between all parties as a reason for the delay of ATMP implementation. After the 2020 court order, the agencies have moved forward without consulting either air tour operators or the NPOAG. The agencies developed their plans and then held online public meetings where they outlined the draft ATMP and invited the air tour industry to ask questions in those forums.
“These meetings were one-way presentations of their plans,” says Jake Tomlin, president of Papillon Grand Canyon Helicopters and Grand Canyon Scenic Airways. “You had to submit your questions in a forum and maybe they get to them. When we do get to [voice our concerns]? They say, ‘That’s great, thanks. We’ll look into it.’ And we don’t hear back from them.”
The ATMP process seems designed to drastically reduce the number of aerial tour flights. For example, all draft and final ATMPs eliminate the flight allocations assigned in the IOAs. Instead, the agencies calculate the average number of tour flights conducted between 2017 and 2019 by the tour operators holding IOAs for a particular NPS area. That number then becomes the total number of permitted annual commercial tour flights; the flights are distributed among operators based on each operator’s average number of flights. This reduces the allowable flights from the potential maximum of the entire IOA allocation to the average of 2017–19 actual flights. In addition, if an operator previously held allotments but made no flights between 2017 and 2019, that operator would no longer be permitted to fly any tours.
For instance, before the ATMP, Death Valley National Park had IOAs authorizing 37 flights among four air tour operators. The average annual number of tour operations during the 2017–19 reporting period was one flight from a helicopter operator and one from a fixed-wing operator. The final ATMP now allows each operator to fly one flight a year. Similarly, one fixed-wing operator flying over Mt. Rainier National Park had its flights reduced from an IOA annual allotment of 34 flights to an ATMP that allows one flight a year.
The new system has raised concerns about economic sustainability of the air tour industry. Tour operators argue that the IOA allocations were essential for their companies to be positioned for a changing marketplace.
“Papillon has allocations in Glen Canyon and throughout Utah, and it is a perfect example of how the markets shift to different parks,” says Tomlin. “People change where they want to go, especially with social media. They see something cool, and they want to go there. When the Grand Canyon slowed down, we saw an uptick in Glen Canyon and the national parks in Utah. Suddenly, a lot of our unused IOA allotments became highly used. It was good to have that leeway to meet the demands of a shifting marketplace.”
In addition to dictating the number of annual flights permitted by each operator, the ATMPs provide detailed directions on how operators can conduct those flights. They assign routes and altitudes, outline the hours a tour can be operated, and sometimes cap the number of tours allowed per day. For some operators, hours are reduced, some days are designated as “no fly days,” and daily tours are limited. For instance, the draft ATMP for Hawai‘i Volcanoes National Park proposes alternatives that ban flights on Sundays and another that suggests daily caps. When daily caps are enforced, operators may not reschedule canceled flights, further reducing the number of permitted annual flights.
Glacier National Park’s final ATMP is clear in its intended effect on air tour economic viability. It states 144 annual commercial air tours are allowed “until such tours are phased out through attrition or until 11:59 pm local time on Dec. 31, 2029, when all operating authority for the park will be terminated.”
Safety Concerns Go Unaddressed
The ATMP process as set forth in the NPATMA includes consultation with the aerial tour industry through the NPOAG. However, air tour operators believe that the ATMP process as practiced since the 2020 court order has silenced their ability to meaningfully contribute, creating unsafe conditions for tour flight operations over the parks.
“We do have safety concerns with how the court mandate to complete the ATMPs has led to a rushed and non-comprehensive creation and implementation process,” Blue Hawaiian shared in a statement.
In some cases, airplanes and helicopters share assigned routes with only 500-ft. separations, creating safety concerns. Glacier National Park’s final ATMP assigns one route for both aircraft types, assigning a 500-ft. separation as the route ascends into mountainous terrain. In the draft ATMP for Hawai‘i Volcanoes National Park, one alternative calls for pushing all flights offshore while another offers routes and altitudes that would often put aircraft in the clouds and over congested visitor areas. Neither option allows safe deviations.
“Since it is known that fast-changing weather is a major hazard in Hawaii and that FAA-issued altitude deviations provide a good mitigation, we will fully support the FAA in stepping in to insist upon these deviations being added to the proposed ATMP to ensure the safety of our crews and passengers.… There are also potential noise issues that do not appear to be considered by the National Parks and the FAA,” Blue Hawaiian’s statement added.
“We have been working with Hawai‘i Volcanoes National Park and Haleakalā National Park since the inception of our agreements in the ’80s, and the park superintendents at the time understood shared access and we worked together to reduce impact to ground visitors,” says Paul Morris, director of operations at Sunshine Helicopters. “Now the NPS is seeking to reduce flights and mandate specific routes that do not consider the changing weather conditions we face in Hawaii. As a result, this restricts the pilot’s ability to deviate, which could reduce the level of safety we currently have in the Hawaii Air Tour Common Procedures Manual. That’s a major concern for the operators and the flying public.”
According to multiple operators, the FAA local flight standards district offices (FSDOs) are not being consulted as the NPS and FAA plan the ATMPs. The NPOAG has not been consulted in the design process, only notified about NPS and FAA decisions in NPOAG meetings. Questions and concerns posed by tour operators and HAI to the NPS and the FAA have gone unanswered, including numerous requests for insight into what led to decisions on issues such as routes, altitudes, and hours.
“This is a bad-faith effort on the part of the NPS,” says Black Hills Aerial Adventures co-owner Mark Schlaefli. “The National Park Service has taken the lead in this rushed process over the FAA and is engineering the desired outcomes in a data vacuum. The elimination of aerial tourism, the single least impactful form of visitation, is their stated goal. The information being presented to the public is purposefully misleading. The operators [and] state and local interests have been completely shut out of the process, contrary to the requirements of NPATMA. The actions proposed significantly increase the risks and impact safety. The local FAA FSDO, who has the expertise to help mitigate these issues, has not been consulted.”
In preparing this article, ROTOR submitted the following questions to the NPS:
- Why has the NPOAG been excluded from the ATMP process?
- Why do ATMPs assign unsafe routes and routes over visitors on the ground?
- Why were two parks with less than 50 annual flights given ATMPs when the NPATMA excludes them due to their flight volumes?
- Why is the full process to establish ATMPs not followed?
The NPS did not address these questions. Also unaddressed were questions submitted to the FAA about the agency’s level of participation in the ATMP process or its input on safety.
In response, both the FAA and the NPS independently sent the same statement: “The NPS and FAA are collaboratively developing air tour management plans (ATMPs) or voluntary agreements, as required by the National Park Air Tour Management Act of 2000, for 23 national parks. ATMPs are in place for four of those parks already. As part of this process, the agencies have released, and will continue to release, draft ATMPs for public comment. We consider the comments received while we prepare the final ATMPs. As the ATMPs or voluntary agreements are developed, the FAA thoroughly reviews all proposed routes to ensure they are safe.”
A Coordinated Response
As a result of the 2020 court order, the FAA and NPS have focused on completing ATMPs as quickly as possible, skipping vital stakeholder participation used in past years, explains HAI Vice President of Government Affairs Cade Clark. “I call it ‘rulemaking light,’ ” he says. “Typically, in these kinds of projects, agencies gather information from all stakeholders before preparing a draft. It really doesn’t feel like that is taking place, and HAI believes that both economic and safety issues are going unaddressed as a result.”
However, Clark and his colleagues in the HAI Government Affairs Department are working to raise awareness about the failure of the ATMP process. Typically, once a draft ATMP is announced, there is a comment period that lasts from 30 to 60 days. Groups supporting ATMPs have a significant advantage, sending form letters to their members to send in supporting the ATMPs.
HAI regularly provides updates on the issue via social media, e-blasts, and its daily and weekly e-newsletters, ROTOR Daily and The VTOL Advocate, asking members and allies to provide comments on each draft ATMP as the comment windows open. It also encourages them to reach out to Congress about their concerns. In fact, HAI has created materials for operators that educate air tour customers about the issue and make it easier for them to share their thoughts with their congressional representatives.
“One place that people who support the air tour industry can submit their comments to at any time is Congress,” says Clark. “While the ATMP situation came about from a court order, as the branch of government responsible for funding federal agencies, Congress has considerable sway with those agencies. If enough congressional representatives hear about it, they can investigate how the ATMP process is being derailed and put pressure on the NPS and the FAA to include the NPOAG and operators in the ATMP planning process.
“With each new draft ATMP, there is more awareness of what is happening. More people are commenting,” Clark says. “Having our voices heard relies on everyone and every operator working to get their concerns heard and the benefits of air tours in national parks understood.”