Making Rules
Editor: I am writing in response to Christine Kalakuka’s article Who’s
Making the Rules? in the February issue. I would like to correct something she
said and comment on something else.
She writes: "The NTSB....is considered the final court of appeal for a balloon pilot accused by the FAA of violating FARs." This isn’t true. When a pilot or maintenance person requests a hearing from the FAA following a finding of violation, the hearing is held by an administrative law judge. If the person is unhappy with the judge’s ruling, an appeal is made to the NTSB board. Judicial review is permitted if the person doesn’t like the board’s ruling. That means it goes to the appropriate court of appeals. And, if the person so chooses, the appellate court’s decision can be appealed to the U.S. Supreme Court.
Ms. Kalakuka also comments that "As it is now, you can have your certificate revoked based on a report written by a policeman who didn’t see the landing, and on a report written by an FAA inspector who wasn’t on the scene" That puts balloon pilots in the same boat as almost anyone else. Police officers write reports on car accidents, burglaries and murders which they didn’t see. They are trained to take down pertinent details and use the information available to them to determine what happened and who done it.
Judges sit in judgment of all sorts of people whose profession they don’t understand. Judges for the registrar of contractors likely never swung a hammer in their lives. Judges in small claims court hear cases about dry cleaning, flower arranging and virtually every other occupation. They don’t have experience in all those jobs, they just do their best to sort the wheat from the chaff.
If Ms. Kalakuka is recommending that balloon pilots sit in judgment of other pilots, she is wasting her breath. Unless there are pilots who are ambitious enough to get their law degrees then work in the system until they become judges, it isn’t going to happen.
What balloonists can do is not roll over when a judge makes what they believe is an unreasonable decision. It isn’t cheap, even if you decide to represent yourself. It takes years and lots of aggravation but that is the only way that judges are going to become aware of our situation and the trend of citing balloonists for perfectly safe landings will change.
Mary Woodhouse
Prescott, AZ
Editor: I was reading the Freeflight column by Christine Kalakuka, Who’s Making the Rules? with some interest. It seems that balloons continue to be subjected to a set of rules made up for fixed wing aircraft.
While I agree with most of what Ms. Kalakuka had to say, I was struck by her comments about how balloons are different from other aircraft. She said "These arguments," (about how balloons are different) "while having some merit, disregard two important components of federal regulation and airspace usage which are (1) that all aircraft use the same airspace and should, consequently, be subject to the same rules, and (2) that the primary purpose of FARs is to protect people and property on the ground." Her second point is well taken, and we should remind ourselves of that whenever we fly.
The first part of her comment that we all use the same airspace and are therefore subject to the same rules is obviously false for one major type of aircraft: helicopters. How is it that FAR 91.119(d) makes an exception of minimum altitudes to helicopters? My wild guess is because helicopters are capable of going straight up and down at will, can hover, and do not need airports to land safely. (Sounds a lot like what hot air balloons are capable of too!)
FAR 91.119(d) basically says that helicopters can fly as low as they want as long as there is no hazard to people and property on the ground.
My question to Ms. Kalakuka and everyone else is why don’t the FARs group balloons with helicopters with regard to minimum safe altitudes, and why don’t we, as a group of pilots of aircraft with unique capabilities, try to change the FARs on these grounds? I have never heard anyone use this rationale for changing FAR 91.119 before.
It seems that someone at the FAA noticed at one time that helicopters do, in fact fly differently than planes, and therefore should have some different rules respecting their minimum safe altitudes. I hope some FAA official who knows how balloons fly will step up and say, "You know, balloons do fly differently than planes, in fact they can do many of the maneuvers a helicopter can do. Let’s have them conform to FAR 91.119(d) too!"
Tony Colburn
Weed, California
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