Light Sport-fly12,000 if over 10,000 mountain in area

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ussyorktown
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Light Sport-fly12,000 if over 10,000 mountain in area

Postby ussyorktown » Mon Aug 27, 2012 10:04 pm

As a law professor but NOT as a lawyer, I have done the following legal analysis.
Issue: Can a sport pilot fly at 2,000 feet above the terrain within a 50 mile area even if causing pilot to fly at 11,000 feet. § 61.315 (11) At an altitude of more than 10,000 feet MSL or 2,000 feet AGL, whichever is higher.

Yes. The analysis turns on the word "area." If terrain in the moutain area is 9,700 feet then you are in the area of the 9,700 feet terrain. Therefore, if a pilot sees that in a chart square that sport pilot is flying in is adjacent to another chart square that has a 9,700 agl then the pilot may fly fly 11,700 (but of course needs oxygen).

Analysis. The CFR does not define what above "ground level" specifically in the rule which states LS pilot may fly 2,000 above terrain.
The CFR also does not specify nor define what range should be considered when stating "above terrain" nor does it define "average" and in what area shall be considered in the "average" conclusion. It is apparent that a pilot can best and safely fly as to not constantly raising and lowering his altitude in a mountainous region.

Analogy to this issue can be found elsewhere in the CFR:

(a) Congested Area. The congested nature of an area is defined by what exists on the surface, not the size of the area. While the presence of the nonparticipating public is the most important determination of congested, the area may also be congested with structures or objects. An area considered congested for airplane operations could be equally congested for helicopters. If an airplane flying over a congested area at less than 1,000 feet above ground level (AGL) is in violation of 14 CFR § 91.119(b), the area may also be a congested area for a helicopter conducting external-load operations. However, the most important word in this concept is over. Helicopters can operate over relatively small uncongested areas because of their maneuvering abilities.

Therefore, the CFR takes a reasonable approach to what is an "area" based on his on site opinion as to what is safe, considering weather conditions, turbulence, mountain waves, speed of aircraft and visability. Therefore, a light sport pilot may fly at, for example, 11,000 feet (use OX) if the terrain in the reasonable "area" is at 9,000 feet.

That is my analysis as a law professor and not a lawyer and I may very well be full of shit.Image

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Postby drseti » Mon Aug 27, 2012 10:18 pm

The 2010 revision to the original LSA rule that permitted this specific exemption from the 10,000 foot altitude restriction was modeled after a similar provision in the Recreational Pilot rules. It appears that the intent of the 2004 Sport Pilot rule was to permit such operation, but the exemption was omitted through oversight. Thus, we must look to the Recreational Pilot rule for clues as to what FAA intended.

I seem to recall, years back, an FAA Legal Dep't letter of interpretation on the Recreational Pilot altitude restriction. As I remember it, that interpretation stated that the Rec Pilot could exceed 10,000 MSL only if within 2,000 AGL. Check the Definition of AGL in FAR 1. I think you'll find it's measured vertically, directly to terrain immediately below the aircraft. This would seem counter to your interpretation. Perhaps somebody can find the original letter of interpretation, and shed some light on this.
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Postby ussyorktown » Mon Aug 27, 2012 10:38 pm

I couldn't find the definition of "ground level".
http://www.flightsimaviation.com/data/FARS/part_1-1.html
So a reasonable and safe interpretation should be employed. Nothing that defined "ground level" as dropping a plum line under your plane and measuring the rope.

We must look at the intent of the CFR. It is not to follow the black letters blindly but the intent and spirit is to keep pilots and others in the air and ground safe. Roller coasting over directly-below-you terrain would be unsafe at 120 knots with all the other problems of piloting a tiny plane that weights about as l/4 the weight of a automobile.

Of course, the FAA does not expect us to act like roller coasters staying just 2,000 feet above "ground level" with mountain waves, turbulence and limited 3 mile viability. The 2,000 above terrain has to be interpreted to mean a reasonable area. 50 miles would be reasonable but at speeds of 120 knots, anything less than within 50 miles is not safe and therefore not reasonable.
Last edited by ussyorktown on Mon Aug 27, 2012 10:47 pm, edited 1 time in total.

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Postby drseti » Mon Aug 27, 2012 10:46 pm

From FAR 1.2:

"AGL means avove ground level."

Pretty simple. Above means above, not adjacent to or within 50 miles of. If FAA had intended something different, don't you think they would have said so? Any other interpretation may be arguable, but is probably just wishful thinking. I for one don't plan to push the interpretation of FARs just to become a test case.
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Postby ussyorktown » Mon Aug 27, 2012 10:51 pm

As a lawyer I've made a 25 year living out of such ambiguities.
(Aaron Burr, quite handy with a dueling pistol said it best, "The Law is what is boldly asserted and plausibly maintained."
The rules are there to protect us NOT to Rule us.
Safe means 2,000 above terrain within a reasonable (for safety) area.
Unsafe means roller coastering around the mountains whilst also wondering when the last lift has a brother dump that will plunge you into the mountain side.
Others may like to spend money losing and then gaining altitude to follow a strict interpretation of the CFR drafted in a government office thousands of miles and thousands of feet away.
I'll confidently fly at 10,500 over the mountains going west and 9,500 going east, with a boot on each flight.
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Postby langj » Mon Aug 27, 2012 11:37 pm

Do you ever nottice you like to ask a lot of questions but never want to hear the answer. Everyone knows your a lawyer you don't have to tell them. We can tell by the way you just love to hear your own voice. Perhaps if you spent more time listening then talking you might just learn something new.

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Postby ct4me » Mon Aug 27, 2012 11:57 pm

I thought Oxygen was 12.5+...?
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Postby ussyorktown » Thu Aug 30, 2012 12:20 pm

I wasn't asking a question. In this case with my expertise I am the authority.

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Postby Jim Stewart » Thu Aug 30, 2012 1:40 pm

ussyorktown wrote:I wasn't asking a question. In this case with my expertise I am the authority.


I respectfully submit that nobody is an authority until FAA counsel writes an opinion on the issue.
PP-ASEL, Flight Design CTSW owner.

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Postby MrMorden » Thu Aug 30, 2012 1:48 pm

ussyorktown wrote:As a lawyer I've made a 25 year living out of such ambiguities.
(Aaron Burr, quite handy with a dueling pistol said it best, "The Law is what is boldly asserted and plausibly maintained."
The rules are there to protect us NOT to Rule us.


That's a great concept in jury trial in a civil or criminal court, where you can attempt to persuade a jury of your peers. It is not going to fly in an administrative law proceeding against the FAA, where the only people you can attempt to persuade are FAA counsel and administrators. You'll get your ass handed to you, probably in direct proportion to how "boldly" you assert.
Last edited by MrMorden on Thu Aug 30, 2012 1:50 pm, edited 1 time in total.
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Postby drseti » Thu Aug 30, 2012 1:49 pm

ussyorktown wrote:I wasn't asking a question. In this case with my expertise I am the authority.


Nobody here is questioning your legal expertise, Dan. But, bear in mind that the FAA is a world unto itself, lives by its own rules, and does not have to abide by due process. In this case, it would behoove you to ask lots of questions, and carefully weigh all the disparate answers posted to this forum.
The opinions posted are those of one CFI, and do not necessarily represent the FAA or its lawyers.
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Postby ussyorktown » Thu Aug 30, 2012 1:55 pm

I don't think I like the attitude around here. If anybody does something that the village elders don't like then suddenly they are ordered to sit in the corner.
Lawyers aren't judge and jury. Lawyers advocate. Lawyers take the facts, look at the law. When there is no law directly "on point" then they look to analogy. Thats the way it has been done since 1066.
I sit at the feet of experienced pilots and learn. For a change, fall silent and listen and learn from a man with a doctor of jurisprudence degree and 25 years experience in civil law and administrative law.

The issue: Light Sport pilots can fly 2,000 above terrain even when that means they will fly at 12,000 feet. Does that mean terrain directly below the airplane (causing roller coasting into mountain waves) or does terrain mean a reasonable distance so as to retain the best and safest altitude for the general area.
The rules are there for our safety. They are based on logic. My analysis is correct.

FAA starts out with administrative hearing and then must prove their position now before a US federal judge (new Pilot Bill of Rights). Show some nuggets here, eh? No reason to be a scared rabbit when your life is at risk. http://farm3.static.flickr.com/2713/4143201044_e4f1ac9a04.jpg
In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant. See McNally v. United States, 483 U.S. 350 (1987); string of citations
Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute's original intent, courts first look to the words of the statute and apply their usual and ordinary meanings.

If after looking at the language of the statute the meaning of the statute remains unclear, courts attempt to ascertain the intent of the legislature by looking at legislative history and other sources. (intent of statute is to have ls pilots fly safely)

Courts generally steer clear of any interpretation that would create an absurd result which the Legislature did not intend. (roller coasting into moutain waves, thermals, migratory birds)

Other rules of statutory interpretation include, but are not limited to:

Statutes should be internally consistent. A particular section of the statute should not be inconsistent with the rest of the statute.
When the legislature enumerates an exception to a rule, one can infer that there are no other exceptions.
When the legislature includes limiting language in an earlier version of a statute, but deletes it prior to enactment of the statute, it can be presumed that the limitation was not intended by the legislature.
The legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.
Where legislation and case law conflict, courts generally presume that legislation takes precedence over case law.
The Rule of Lenity: in construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.
A court may also look at: the common usage of a word, case law, dictionaries, parallel reasoning, punctuation
Statutes are sometimes ambiguous enough to support more than one interpretation. In these cases, courts are free to interpret statutes themselves. Once a court interprets the statute, other courts usually will not go through the exercise again, but rather will enforce the statute as interpreted by the other court.

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Postby drseti » Thu Aug 30, 2012 2:12 pm

ussyorktown wrote:The rules are there for our safety. They are based on logic. My analysis is correct.


Aha, I think I see wherein lies the problem! The rules should be there for our safety. They're not. They're there to cover somebody's ass. Your analysis is based on logic. The rules are not. Therefore, isn't it just possible that, in this case, your analysis may be incorrect?

Y'see, we're not talking statutes here, so statutory law may not apply. We're talking administrative rules, which are a whole 'nother thing. I'm afraid your interpretation can lead you into trouble. Just trying to cover your ass here, Dan.
The opinions posted are those of one CFI, and do not necessarily represent the FAA or its lawyers.
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Postby ussyorktown » Thu Aug 30, 2012 2:17 pm

I don't think the FAA lawyers will say "These rules are here to cover our ass." They will say "it is for pilot safety and those people on the ground."
No flaw to my reasoning but of course, any good lawyer can find flaws and just as convincingly argue against my analysis.
Logicially-fly at 2000 feet or at your discretion above what YOU CONSIDER in your law given authority as PILOT IN COMMAND over what you consider to be (a reasonable area) of ground level.
If I fly down the Willamette Valley in Oregon where it is nearly sea level but the Cascade Mountains are off to my port side but 50 miles away I can't REASONABLY say that I can fly at 12,000 feet because somewhere in the the Cascades moutains is a peak at 10,000 feet-not logical.
BUT, if I fly within 20-30-40-50 miles (depending on speed and visability and weather problems) flying at 12,000 through Cascades at 50 miles from highest peak is REASONABLE.
Last edited by ussyorktown on Thu Aug 30, 2012 2:36 pm, edited 2 times in total.

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Postby drseti » Thu Aug 30, 2012 2:23 pm

ussyorktown wrote:I don't think the FAA lawyers will say "These rules are here to cover our ass." They will say "it is for pilot safety and those people on the ground."


Of course that's what they'll say. And we all know that government employees (especially attorneys) are always 100% truthful and honest, right?

Right?
The opinions posted are those of one CFI, and do not necessarily represent the FAA or its lawyers.
Prof H Paul Shuch
PhD CFII DPE LSRM-A/GL/WS/PPC iRMT
AvSport LLC, KLHV
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AvSport.org
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