Citing federal preemption, the U.S. District Court for Hawaii this week struck down a state requirement for air tour operators to provide detailed reports of their operations. At dispute was a section of Hawaii Act 311, signed into law in July 2022, calling for the state to adopt rules to regulate air tour operations through permits with detailed monthly reporting requirements.
Permitted operators would have been required to submit monthly written reports of each tour, including the date and time of takeoff and landing, the number of individuals on the aircraft, the flight path, and whether deviations to that flight path occurred.
The state legislature said the act was intended to enable the state to monitor compliance with federal regulations and formally establish an air noise and safety task force. State committees and task forces had expressed concern about “excessive noise and safety hazards posed by tour helicopters and small aircraft.”
Vertical Aviation International (VAI) joined Safari Aviation (dba Safari Helicopters) in challenging the law, saying federal law preempted the reporting requirements, noting provisions of the Airline Deregulation Act of 1978 and Airport Noise and Capacity Act of 1990, among others. They asked the court to issue a permanent injunction barring enforcement of the reporting requirements.
In the July 22 decision, the court agreed with VAI and Safari, granting the permanent injunction. The court found that “Congress intended federal law to occupy the field of aviation safety” and cited a previous court decision that the FAA administrator “must balance considerations of safety, efficiency, technological progress, common defense, and environmental protection in the process of formulating rules and regulations with respect to the use of the nation’s airspace."
Further, the court noted prior findings that “Congress has vested the [FAA] with the responsibility and concomitant authority to resolve the proper balance among the multiple purposes.” This is because state and local governments “might conceivably be overprotective of one of the multiple values and upset the delicate balance struck by the FAA under the aegis of federal law.”
These were among several of the statements the court included in its ruling siding with the VAI/Safari lawsuit. The state has 30 days to appeal the ruling. VAI praised the decision. “VAI and the air tour industry are committed to working with the communities where we live, work, and operate to elevate safety and community compatibility,” said Cade Clark, chief government affairs officer for VAI. “However, having a single regulator—the FAA—manage the National Airspace System ensures that our airspace remains free from conflicting rules.”
As safety and noise remain in the spotlight in Hawaii, VAI has planned an Air Tour Safety Conference from September 23 to 24 at the Hawaii Convention Center on Oahu, bringing together air tour operators and state and local officials to discuss key issues surrounding operations.