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

The Federal Aviation Regulations (also know as FAR's). This is the Bible of aviation, the rules under which we operate. This is where you'll find everything you want to know about pilots and airplanes in the United States. Ask questions. Get answers.

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ussyorktown
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Postby ussyorktown » Thu Aug 30, 2012 2:30 pm

I am confident that if "cited" by the FAA for flying at 11,000 when there are mountain peaks of 9,000 feet within say 25 miles that I have a very good chance of making and prevailing on my logical interpretation of the law ONCE BEFORE A US DISTRICT COURT JUDGE.

I know that admin law is full of dictators, whores, power mongers, cruel little men and the worst that the law schools could supply. Our country has turned into a dictatorship where law sometimes doesn't matter.
But ya know, if everyone acted like a scared rabbit then we wouldn't have a country, now would we?

Let me pose this: true or false, the FAA could site you, attempt to fine you for doing something/or not doing something that you do/don't do EVERY FLIGHT.
Did you use that checklist, did you take the cowling off and look right at the engine today even though you might have done it yesterday? Did you ever dip below 1000 feet agl? Don't live in fear. My analysis is the safe thing to do and is logical.

ussyorktown
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Postby ussyorktown » Thu Aug 30, 2012 2:34 pm

McMorden:
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.


I think you should read elsewhere on this board as Congress passed and President Zero signed the Pilots' Bill of Rightshttp://sportpilottalk.com/viewtopic.php?t=2653
If the kangaroo administrative law hearing finds you guilty you appeal to the US District Court and all the laws of civil discovery and presumptions and burden of proof plus, the judge isn't an FAA employee. It is a new day.

rsteele
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Postby rsteele » Thu Aug 30, 2012 2:38 pm

I love the picture of Rumple. The best you've posted, Dan.

What I find interesting here are the possible changes in process required by PBOR. I was reading an AOPA forum the other day and and attorney there was saying the FAA better get used actually making cogent arguments based on reasonable interpretations of rules. No more rubber stamps. This guy was quite vociferous in his arguments.

Let's hope some reasonably may be interjected into the rules interpretations.

Ron

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FastEddieB
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Postby FastEddieB » Thu Aug 30, 2012 2:46 pm

ussyorktown wrote: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.


Dan,

I've had a lot of thoughts run through my mind about this thread and at least one of your others. But let me be as concise as possible, without going into excruciating detail or delving into legalese.

When I read some of your posts, I have a physical reaction. Literally. It's like butterflies in my stomach, and a general sense of unease.

Classify me as a village elder or a greybeard and I'm fine with that. I won't bore you with a resume' or expect you to bow to whatever experience I bring to this forum.

But there's something in your attitude that sets off alarms. I've brought up some of my concerns before, so again, I won't bore you.

I think your attitude towards aviation is dangerous. I pretty much know that my saying so will not prompt any realization or enlightenment on your part - the inherent adversarial nature you seem to carry over from your law career is probably far too entrenched.

And yet, if you ever do come to a sad end flying, I think I might feel guilty if I hadn't at least made some effort.

This is that effort.

Best of luck going forward.
Fast Eddie B.
Sky Arrow 600 E-LSA • N467SA
CFI, CFII, CFIME
FastEddieB@mac.com

ussyorktown
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Postby ussyorktown » Thu Aug 30, 2012 2:46 pm

http://sportpilottalk.com/viewtopic.php?t=2653

The law now allows a pilot to appeal to a US District Court. There the Federal Rules of Evidence (FRE) and the Federal Rules of Civil Procedure (FRCP) require a more exacting level of proof and the basis for accepting evidence are far more demanding. By setting the USDC as an appeal court, that means that federal judges may take evidence and will require that the FAA meet the strict rules of those courts.

This may not appear to be a significant change, but it is. The FAA lawyers will have to spend considerably more time preparing their cases to be ready for these more exacting requirements. They will demand that the FAA inspectors produce evidence that is subject to this higher level of scrutiny. This extra burden will begin to occur in preparation for an informal conference, for the NTSB ALJ hearing and the full NTSB review; because the new §2(a) requires that a case seeking denial, amendment, modification,suspension, or revocation of an airman certificate must comply with the FRE and the FRCP. Most importantly, the FAA lawyers know that there is the possibility of a full trial before a US District Court judge.

Another significant change in the balance of proof is found in §2(c). The statute, 49 USC 44709(d)(3), used to require that the NTSB was

“…bound by all validly adopted interpretations of laws and regulations the Administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law.”

That statutory language (prior to S.1335) meant, if the FAA Chief Counsel or the Associate Administrator, Aviation Safety issued written policy guidance on the Federal Aviation Regulation at issue, the NTSB had to accept that interpretation as law unless that opinion was arbitrary, capricious or otherwise not according to law, THAT IS, only in all but a very few instances, the FAA view controlled. That meant that the certificate holder had a very difficult time arguing that the position of the FAA was wrong. That due deference was stricken; so now an airman may assert that the FAA’s reading of its own rules is wrong. THAT’S a huge change in the rules.

ussyorktown
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Postby ussyorktown » Thu Aug 30, 2012 2:49 pm

Thanks for your concern FastEddie. I fly like an old lady. I drive my car like an even older lady. (That is what my wife say but she is chinese and therefore can be arrested at any time for DWO) I am a slave to logic and my own conscience and never have had to second guess myself.

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drseti
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moving thread

Postby drseti » Thu Aug 30, 2012 3:58 pm

Since this is essentially a legal discussion, I am moving it to the FARs forum.
The opinions posted are those of one CFI, and do not necessarily represent the FAA or its lawyers.
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CharlieTango
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Postby CharlieTango » Thu Aug 30, 2012 4:11 pm

ussyorktown wrote:I am confident that if "cited" by the FAA for flying at 11,000 when there are mountain peaks of 9,000 feet within say 25 miles that I have a very good chance of making and prevailing on my logical interpretation of the law ONCE BEFORE A US DISTRICT COURT JUDGE.


You can hope this judge is not a pilot.

Dan, how do you explain the discrepancy between horizontal and vertical separation? The vertical is spelled out in the rule at no more than 2,000' or bit more than 1/3 of a mile. 1/3 of a mile vertically plus 25 miles horizontally. I'm not sure the 25 miles follows.

Here at Mammoth Yosemite Airport we have 13,000' terrain within 3 miles of the runway. Your interpretation would give me thousands of square miles where I could fly above 15,000' I"m not sure your correct that this would comply with the spirit of the rule.

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drseti
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Postby drseti » Thu Aug 30, 2012 4:21 pm

I think the VFR cloud separation rule makes for a useful analogy. Pilots operating under VFR must maintain a clearance of not less than 500' below, 1000' above, and 2000' horizontal from any clouds. It doesn't say 500' below any cloud within 2000' horizontal distance, or 2000' horizontal separation from any cloud within 1000' above us, or any other blending of vertical and horizontal. Vertical is vertical clearance, horizontal is horizontal, and never the twain shall meet. I can't imagine why the terrain clearance rules would be any different.
The opinions posted are those of one CFI, and do not necessarily represent the FAA or its lawyers.
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Jim Stewart
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Postby Jim Stewart » Thu Aug 30, 2012 5:55 pm

Jim Stewart wrote:
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.


I did mean this respectfully. I made the comment because a whole string of actors going from repairmen up to FAA officials in the LSA department thought that they knew exactly how LSA maintenance FARS worked. FAA counsel gave a totally opposite opinion.

I have no doubt that you have the experience and resources to fight the good fight with the FAA. The rest of us may not. I really appreciate your opinions, especially your analysis of the Pilot's Bill of Rights, something that the AOPA, with all it's legal horsepower has not been bothered to do.

Please stick around.
PP-ASEL, Flight Design CTSW owner.

ussyorktown
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Postby ussyorktown » Thu Aug 30, 2012 5:56 pm

I can't imagine why the terrain clearance rules would be any different.

So you don't have to fly up and down to match the terrain and put yourself into dangerous situations with turbulence, mountain waves, clouds clinging to mountains and into valleys.

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dstclair
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Postby dstclair » Thu Aug 30, 2012 6:05 pm

I'm going to be in the minority here but I add a dose of judgement to the FARs in this case and agree directionally with Dan.

Let's walk through a flight going across the rockies from Springer, NM (S42) via Angel Fire (AXX) to Taos (SKX). Terrain is around 6K for the first 15-20nm so 8.5K works just fine. The terrain rises rapidly at this point, maybe 4K in 6nm. Let's assume you're only going 90kts so you'll cover this 6nm in 4mins. Climb is probably only 300fpm for most LSA's at this altitude. Best you could hope for is 1200' more altitude. Definitely not going to make it. Yes, you could circle but doing that near a mountain peak isn't always the best idea. The better idea would have been to have gotten to 12.5K earlier which would be about 12 nm from the 10.5K peak.

To carry this further there is a 5nm wide valley that drops to around 8.3K. Strict interpretation of the FARs says I come down from 12.5K to 10.3K. Problem is, the plane won't be able to climb over the next peak.

And, yes, you could certainly take a different route, cross at some saddles, go up the valley, spiral over a lake to catch a thermal, go through in another valley, etc. Doable but may not be prudent.

I might run afoul of the FAA but I'd probably go up to 12.5K no later than 4nm from the first peak then hold the altitude till I got on the backside of the mountain range going into Taos.
dave

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drseti
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Postby drseti » Thu Aug 30, 2012 6:31 pm

dstclair wrote:I'd probably go up to 12.5K no later than 4nm from the first peak then hold the altitude


I'd probably do the same, Dave. But I'd fully expect the FAA to hold my feet to the fire if they found out, and I'd probably lose. Dan is obviously more optimistic (or daring) than I.
The opinions posted are those of one CFI, and do not necessarily represent the FAA or its lawyers.
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MrMorden
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Postby MrMorden » Thu Aug 30, 2012 10:13 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."


I don't think they have to make any statement at all about the intent of the rules. They can just say "our interpretation is that you violated the letter of the regulation, and the sanction is..."

I think you are mistaken if you think federal bureaucrats feel they in any manner, shape, or form owe you an explanation for anything they do.
Andy Walker
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ussyorktown
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Postby ussyorktown » Thu Aug 30, 2012 11:15 pm

https://pilot-protection-services.aopa.org/lib/pdf/AOPA-PPS-Brochure.pdf
I recommend that you get the AOPA legal representation protection. (I have it because adjudicators don't have any respect for lawyers who advocate for themselves).
For $39 you get unlimited hours of consultation and 100 hours of legal representation. A bargain-just like house insurance. Very unlikely your house will burn but sure wonderful if it does.

(and that is m final word)


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