The California Pilots Association believes the proposed final language of §4351 (a) and §4351 (a)(1) creating the regulation “no flying of aircraft lower than 2,000 feet above the ground” above Cultural Preserves and Natural Preserves to be inconsistent with Federal regulations. Read the open letter…..
California Pilots Association
Alexandra Stehl, Statewide Trails Program Manager
California Department of Parks and Recreation
P.O. Box 942896, Sacramento, CA 94296
RE: AMENDMENTS TO TITLE 14, DIVISION 3, CHAPTER 2, CALIFORNIA CODE OF REGULA TIONS
Dear Ms. Stehl:
The California Pilots Association believes the proposed final language of §4351 (a) and §4351 (a)(1) creating the regulation “no flying of aircraft lower than 2,000 feet above the ground” above Cultural Preserves and Natural Preserves to be inconsistent with Federal regulations.
Title 49 United States Code §40103 establishes “the United States Government has exclusive sovereignty of airspace of the United States.” This gives the Federal Aviation Administration statutory responsibility to manage the use of navigable airspace to assure safety and efficiency No other entity is given authority to establish limits on aeronautical activity within the nation’s skies and the State’s declaration of a minimum altitude restriction and penalties for violation attempts to do exactly that.
In accordance with Government Code section 11346.5, subdivision (a)(13), the DPR must determine that no reasonable alternative it considered or that has otherwise been identified and brought to the attention of the agency would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affect private persons than the proposed action or would be more cost-effective to affected private persons and equally effective in implementing the statutory policy or other provision of law. We believe reasonable alternatives do exist as demonstrated by current Federal policies.
The aviation community has a long, effective relationship with agencies that manage National Parks, Wilderness Areas, and other environmentally or culturally sensitive regions. In most every situation simply establishing a minimum recommended, not mandated, flight altitude above the affected area is sufficient to achieve protection from aerial intrusions.
If legal enforcement of the rule is truly intended, the location of State Cultural Areas and Natural Areas must be precisely identified on navigation charts used by aircraft operators throughout the world. Simply distributing this information to “local” pilots ignores the mobility of aircraft and the vast distances from which those operating in California’s airspace may have traveled.
Fortunately, many of the regions included in the proposed rule are already depicted on Federal Aeronautical Charts. For example, the Anza Borrego Desert State Park that contains many of California’s designated cultural preserves is charted and thus the creation of a state-level rule for this area is duplicative and unneeded if the implementation of “recommended” altitudes is adopted.
Furthermore, the proposed DPR rule contains no provision for the legal operation of aircraft from the surface to 2,000 feet above the ground when operating to or from airports located near the designated areas. By virtue of this inflexibility, reasonable compliance is impossible. The only options for pilots traveling to or from these airports are the possibility of penalty or foregoing their business activity at these localities altogether, neither of which is a desirable outcome. Similarly, by attempting to establish a situation in which significant financial punishments or even prison sentences may be imposed, the Department is creating a situation in which recurring legal defense is the logical outcome. This certainly is not a “reasonable cost” for the State to incur when non-regulatory alternatives are available.
Lastly, as exists with this same minimum altitude rule in Public Resources Code §5093.36 there are no reasonable methods available through by which violations of the rule can be precisely determined and transgressors identified. It is virtually impossible for even trained individuals to assess the precise altitude of an aircraft flying at 2000 feet (legal) or 1999 feet (illegal). The rule is simply unenforceable as written. It is not logical to create such a rule.
Of great concern to California’s aviation community is the lack of coordination between state agencies with rule making authority. PRC §5093.36 took effect January 1, 2009 yet personnel in the California Department of Transportation’s Division of Aeronautics were unaware of its inclusion of airspace regulation. Similarly, in an informal poll of California pilots, few even recalled anything about state areas having over flight limits. Clearly, it is senseless to enact rules then fail to inform those whose cooperation for compliance is essential.
The California Pilots Association fully supports the efforts of the Department of Parks and Recreation to manage state resources for the use of California’s citizens. We enjoy the outdoors ourselves – it is where we fly – and we encourage our members to avoid direct over flight of noise sensitive areas as a component of the “fly friendly” initiative. However, it appears that the DPR has greatly exceeded its authority with this reach into the national airspace system.
The California Pilots Association requests that all references to the regulation of airspace, specifically the imposition of a prohibition of aircraft flights below 2000 above ground level, be removed from the final text of this rule.
Corl W. Leach, VP Region 1
For the Board of Directors
California Pilots Association PO Box 6868
San Carlos, CA 94070-6868