A law enacted in 2000 that was, until recently, never fully implemented is coming back to haunt U.S. air tour operators and could force many out of business. The law is imposing significant restrictions on air tours and could deny helicopters access to airspace that is supposed to be available to all users, a unique feature of the U.S. aviation infrastructure.
The National Park Air Tour Management Act of 2000 was signed into law on April 5, 2000. The act was eventually codified into FAA regulations with the publication of Part 136 in 2007. This set of rules applies to any commercial air tour operation flying over a unit of the national park system, tribal lands (as defined in this regulation), and any area within a half mile outside the boundary of the national park. A specific requirement of the act was that operators must apply to the FAA for authority to conduct tours in those areas, and the FAA and National Park Service (NPS) work together to establish air tour management plans (ATMPs) for those operations.
According to the FAA, “The objective of any air tour management plan is to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.”
The act specifically exempted Alaska's land and waters, the Grand Canyon (which has its own special flight rules), and overflights of Lake Mead to get to the Grand Canyon. In 2012, the act was amended by the 2012 FAA Modernization and Reform Act to permit voluntary agreements between the FAA and air tour companies instead of ATMPs, plus it exempted national parks with 50 or fewer air tours per year.
The problem with the ATMP process, according to the rotorcraft industry association Vertical Aviation International (VAI), is that it is supposed to reflect input from all stakeholders. “Development of current plans excluded industry, raising significant concerns,” VAI explained. “The industry is critically concerned with the transparency of the ATMP drafting process, operational safety, economic impacts, and public access restrictions imposed by the ATMPs.”
While the act established the National Parks Overflight Advisory Group (NPOAG), that group and its tour operator members weren’t invited to participate in the ATMP development process. According to VAI, “Excluding the NPOAG resulted in plans for the initial parks that contain clear safety concerns; the plans severely curtail the economic viability of air tour operators and the industry by limiting or completely eliminating flight allocations; [and] ATMPs are discriminatory against visitors who choose to experience the national parks by aerial sightseeing.”
While development of the Grand Canyon rules followed the enactment of the 2000 act fairly quickly, it turned out that the appetite for ATMPs waned and none were subsequently completed. But in 2019, two Hawaiian environmental groups sued the NPS and FAA to force the agencies to implement ATMPs. “This put the FAA and NPS on an accelerated course to do so,” said Mark Schlaefli, owner and director of operations of Rushmore Helicopters in Keystone, South Dakota, and other affiliated operations.
In the case of Mount Rushmore and Badlands National Park, Schlaefli’s Rushmore Helicopters and Black Hills Aerial Adventures would normally fly 9,000 times a year over both parks, but the ATMP reduced that to zero as of May 13. “It is quite a dramatic shift in the plan,” he told AIN. “The result is, in my view, the federal government has now condemned my company…through what feels like an eminent domain situation, [they have] taken my ability to operate.”
‘Lazy Science’
Schlaefli doesn’t have a problem complying with the regulations and going through the proper ATMP process, but in his case, he feels the process was misguided. He received no communication from the FAA, even though the FAA and NPS are supposed to work together. The required environmental assessment was “riddled with faults and lazy science that I believe can easily be challenged.”
One example of the “lazy science” is that the models used for the assessment were based on data from 2003, “which is outdated,” he said. “The National Park Service has guidance that they are to use contemporary relevant data in their analysis, and it just did not happen.”
The tribal lands restriction of the Part 136 rules raises other issues. Schlaefli’s companies operate under a clearly spelled out fly neighborly program, published online, and it covers situations where, if a tribal event is being held in the park, the air tours will avoid that area. “We’re fine with that,” he said. In any case, he added, “We do not fly close to any tribal land.”
Schlaefli has filed for judicial review with the Eighth Circuit Court of Appeals, but if the court didn’t issue a stay, on May 13 the FAA was set to rescind the operations specifications for both companies to fly in the two parks. His only option would be offering tours half a mile outside the park boundaries.
Ultimately, it would benefit the parks and companies that fly air tours and the people affected by noise if the NPS and FAA had invited the operators to participate in the ATMP process, Schlaefli explained. “We are not anti-ATMP; I am 100 percent supportive of responsible operation in all areas.”
What he saw during the ATMP process was that the safety experts at the FAA, including personnel at his local Flight Standards District Office, were not involved. “It was all from the office of the environment,” he said. One of the issues with the ATMP, not just where Schlaefli’s companies operate, is that the restrictions imposed will force air tour aircraft into much smaller slices of airspace. And the lack of FAA input from a safety perspective means added risk for operators and their customers. “I believe the FAA dropped the ball from the safety side.”
Beyond how this affects Schlaefli’s and others’ air tour operations, he worries about the fundamental issue where a powerful government agency chips away at citizens’ rights. The control of airspace, which is supposed to be strictly under the FAA’s purview, falls under this debate. “It’s a slippery slope when you allow other agencies to dictate airspace,” he said. “Once they’ve done it this way and know [the NPS] can be effective in controlling things, I predict they will take up other parks not on this list and target them for the same treatment we have received.”
Jake Harmon, chief pilot at Maverick Helicopters Hawaii in Kahului, is also facing ATMP restrictions, although they aren’t as bad as those in South Dakota. Starting July 7, Maverick will be limited to 170 operations per year, down from the more than 2,900 it currently flies. “Everybody’s allocations for flying over national parks got completely gutted,” he said. Further, the tours are restricted to 11 a.m. to 2 p.m., perfect timing for when clouds tend to build, so, he added, “it’s impossible to do that tour.” (Operators such as Maverick that fly quieter Airbus EC130s will be able to fly until 4 p.m.)
While the ATMP will eliminate Maverick’s Haleakala flight, “We are lucky enough on Maui to be able to offer other tours.” However, “It’s another blow for our industry. A lot of people want to enjoy the national parks in that way. It’s almost an affront to people’s rights to enjoy their national parks because they no longer can do so by air.”
Like Schlaefli, Harmon feels like operators and even the public’s input was ignored during the ATMP process. “There were a great number of comments and none of those were taken into account in any changes to the ATMPs as published.”
Hawaiian operators are considering filing a lawsuit but, he said, “It’s such an uphill battle for operators that we’re not even sure it’s worth filing a suit. We’re still waiting to see if we want to move forward.”
For the VAI and its operator members, the cuts in air tours generated by the ATMP process will have significant negative effects. The lack of business opportunities means that helicopter operators will move aircraft and their pilots, mechanics, and other support personnel to other markets, thus eliminating the benefits of providing support for local disasters and emergencies. Many operators do so voluntarily and without charge, and without the air tours to support them, these resources will not be available.
“When disasters happen, it’s the tour companies that have traditionally offered up their services for free,” said Harmon. Maverick Helicopters was the first operator on the scene after the devastating Lahaina fire in August 2023, flying supplies, medicine, baby formula, and food to the burned city’s residents. “The only way we pay for the fleet to be here is by flying tours. If the tour industry goes away, so do the helicopters.”
The VAI is concerned about limiting access to national parks. “Air tours reduce ground traffic and put America’s natural beauty within reach of all—including seniors, the very young, and people with disabilities.”
There is also the issue of the jobs that helicopter operators create and the benefits of training people and preparing them to move into other aviation careers. The tour operators “provide a vital piece of the pipeline for pilot development and mechanics for the rest of the industry,” Schlaefli testified at a congressional hearing on December 5, 2023.