Court silences copter arguments, upholds ban

“It was completely expected.”

This from Mark Schlaefli, Black Hills Aerial Adventures, in response to the Court of Appeals for the Eighth Circuit ruling on helicopter flights over Mount Rushmore National Memorial and Badlands National Park.

Badger Helicopters Inc., along with Black Hills Aerial Adventures and Rushmore Helicopters, asked the court to overturn the suspension of the federal ban to fly over Mount Rushmore National Memorial and the Badlands National Park set forth in the Air Tour Management Plan (ATMP) stating the ban would cause “irreparable harm in the form of unrecoverable economic loss that threatens their existence.”

Schlaefli said his company can no longer offer what was previously offered and that this restriction has “devalued our company significantly.”

 The ban does not eliminate flights entirely, but does create restrictions with regard to the proximity of of flights near these parks.

“It’s just part of our rights to us under the ATMP. It has provided us with the opportunity to seek judicial review and this is part of the process,” Schlaefli said.  He admits, however, that “it won’t be successful” but that “it’s important to stand up.” 

The  ATMP comes out of a lawsuit  originally filed in February 2019 on behalf of Public Employees for Environmental Responsibility and the Hawaii Coalition Malama Pono.  On May 1, 2020, the court granted the petition and ordered that the  Federal Aviation Administration (FAA) and the National Park Service (NPS) create a schedule for bringing 23 parks in compliance, finding a means to essentially regulate commercial sightseeing flights over national parks.

The management plans must go through public notice and comment period  and comply with the National Environmental Policy Act (NEPA). Management plans may prohibit air tours entirely or place certain conditions on them such as mitigating noise impacts, placing restrictions on when helicopters can fly or at what altitudes they can fly.

In the case of Mount Rushmore, the ATMP requires air tour operators to now conduct their sightseeing operations from beyond one-half mile from the park boundary or stay at least 5,000 feet above ground level when over the park.

Schlaefli sees this as a harm to private businesses and says that the data used to back up the NPS/FAA claims was “incredibly old.”

The ATMP plan cited several reasons for the restrictions including eliminating or reducing noise within the park boundary as well as concerns from tribes who stated flights “unreasonably interfere with their connections to the sacred landscape of the Black Hills,” according to NPS documents. Those same documents note prior to the restrictions “approximately 23 percent of the park currently experiences audible air-tour noise for between 360 and 480 minutes per day (non-contiguous), and 100 percent of the area within the park experiences audible air-tour noise for at least 210 minutes a day.”

In 2019 45,013 tours occurred in 54 parks, with 92 percent of activity occurring in just 10 parks.  Mount Rushmore saw 4,204 of those air tours.

As a means of comparison, during the same time frame, Yosemite National Park saw only 22 and Zion National Park saw 21.  Badlands National Park saw 1,349. 

The National Parks Air Tour Management Act makes an exemption for parks with  50 or fewer commercial air-tour operations each year, although some parks who have few flights, like Rainier, still have an ATMP in place.

Others, like those in New York harbor, have voluntary agreements in place.

Schlaefli said Vertical Aviation International (VAI) is involved in the South Dakota lawsuit as a means of a legal defense fund. He is not certain how or if the suit will proceed after this ruling but reiterates, “it’s important somebody stands up.”

Black Hills Aerial Adventures still offers sightseeing tours, including ones that offer views of Mt Rushmore. But  Schlaefli  says those tours do not “remotely resemble what our previous product was. You can see Mount Rushmore in the distance.”

He says the ATMP only applied to air tours, tours that he adds have little impact on the parks themselves. 

“I touch nothing,” Schlaefli said. They do not restrict, for example, an aerial photography business. “I can hover over the parking garage and they can’t do anything about it.”

Nor does the ATMP apply to life.

In a press release issued after the federal court ruling Public Employees for Environmental Responsibility Litigation and Policy attorney Colleen Teubner, who participated in the litigation said,  “one key element to winning a stay is the ability to show a likelihood of prevailing on the merits, and the court found that these companies failed to meet that burden, adding that “we have every reason to be optimistic about our chances of success in defending the air tour management plans.”