AOPA Pilot Magazine - July 2022 - 28

FOR THE RECORD
Is that really
necessary?
The unwritten requirement for
minimum safe altitudes
FAR 91.119 AND the FAA's application of the minimum safe altitude
rule have been the focus of much scrutiny as of late-and for
good reason after a certain well-known backcountry pilot was
put through the wringer when the FAA alleged that he violated
this rule. So, how can a seemingly simple premise, that minimum
safe altitudes do not apply when necessary for takeoff or landing,
cause such a stir?
First, we should review the regulation. FAR 91.119 generally
requires pilots to maintain certain minimum altitudes above " congested
areas, " " open air assemblies of persons, " and " other than
congested areas. " Over " open water " and " sparsely populated
areas, " the regulation imposes a distance requirement rather than
a minimum altitude. While there are some exceptions to these
rules for helicopters, powered parachutes, and weight-shift-control
aircraft, all aircraft must be operated at a sufficient altitude to
allow for an emergency landing in the event of a power unit failure
without undue hazard to persons or property on the surface.
The meat of the matter is the explicit exception in the regulation's
prefatory clause stating that these general rules do not apply when
necessary for takeoff or landing.
Unfortunately, it is not enough for pilots merely to be attempting
a takeoff or landing to avoid the general minimum safe altitude
requirements-the takeoff or landing site, itself, must be suitable
for the operation being conducted. You will notice that the regulation
does not contain any language to that effect; however, the
NTSB has long interpreted the regulation to include this additional
requirement and federal courts have upheld this interpretation
since at least 1977.
In a 1977 case, two pilots were alleged to have violated FAR
91.79 (the substantively identical precursor to FAR 91.119) by flying
within 10 to 60 feet of persons, vehicles, and structures on
the surface when they each landed an aircraft on a taxiway at
Twentynine Palms Airport. The NTSB upheld the administrative
law judge's initial decision, and the pilots appealed the NTSB
opinion to the U.S. Court of Appeals for the Ninth Circuit. There
the court held that because there was no need to use the taxiway
given the availability of two existing runways, the low flight was
not " necessary " for landing and the pilots violated FAR 91.79. In
essence, the taxiway was not a suitable landing site given the readily
available alternatives.
28
AOPA PILOT / July 2022
BY IAN ARENDT
In a 1988 case, the Ninth Circuit court again upheld an FAR
91.79 violation for a pilot who landed a helicopter at a cordoned-off
intersection in downtown San Diego because the landing site was
not suitable, even though the pilot flew the optimum approach for
the selected site and additional safeguards had been implemented.
The court agreed with the NTSB's determination that the pilot
could not have made a non-hazardous emergency landing due to
the presence of approximately 100 onlookers surrounding the barricaded
area which created an unsafe condition. Perhaps more
importantly, the pilot in this case argued that his due process rights
were violated because the requirement that the takeoff or landing
site be suitable for the operation does not appear in the text
of the regulation. Unfortunately, the court reasoned that the pilot
was provided with fair notice of the suitability requirement, and
that no due process violation existed, because previous decisions
reasonably interpreted the regulation to include this requirement.
However, the court was quick to note its concern over the lack of
clear standards to guide and provide notice to pilots.
In a 1993 NTSB opinion, Administrator v. McCollough, where a
pilot performed a practice landing approach over a gravel runway in
a Learjet which was not equipped to land on gravel, the NTSB again
upheld the notion that the takeoff or landing site must be suitable
for the operation conducted to take advantage of the necessary for
takeoff or landing exception to FAR 91.119. There, the NTSB clarified
that selecting a designated landing site (i.e., the gravel runway)
was not, by itself, enough to overcome an alleged violation of FAR
91.119. Instead, the NTSB inferred that simulated landing maneuvers
are treated as landings for the purposes of determining whether the
exception applies to a particular flight. In other words, even practice
approaches must be conducted over suitable landing sites.
Given this judicially imposed requirement, all pilots must
be sure to consider the suitability of their selected takeoff
and landing sites, whether it be a designated runway, a
city street, or a backcountry gravel bar. If there are people,
vessels, vehicles, or structures nearby, you might inadvertently
violate FAR 91.119 if the FAA determines the site was
not suitable for the operation
conducted.
ian.arendt@aopa.org
aopa.org/pps
IAN ARENDT is an in-house
attorney with the AOPA
Legal Services Plan.
http://www.aopa.org/pps
AOPA Pilot Magazine - July 2022

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