4th Circuit Court Of Appeals Affirms NTSB’s “Congested Area” Determination

In my article, Identification Of A “Congested Area” Under FAR § 91.119: Hindsight Is 20/20, I discussed an NTSB decision, Administrator v. Folk, in which the primary issue was whether the airmen’s low-level flights occurred over a “congested area” as referenced in FAR § 91.119. In a recent unpublished decision, Folk v. Sturgell, the United States Court of Appeals, Fourth Circuit has affirmed the NTSB’s determination that the area in question was in fact a “congested area.”

The Case

In the Folk case, the FAA alleged that the airmen had both engaged in agricultural aircraft operations in violation of 14 C.F.R. §§ 137.51(b)(1) through (3)2 ( agricultural operations over congested areas); 91.119 (minimum safe altitudes); and 91.13(a) (careless and reckless). One of the main disputes in the case was whether the area over which the airmen had flown was a “congested area.” At the hearing, the FAA argued that its case-by-case analysis of the facts and circumstances supported the conclusion that the area was indeed a “congested area.” One of the airmen’s arguments in response to the FAA’s position was that the logical extension of the FAA’s position that congested area determinations are made on a case-by-case basis is that nobody can know whether or not an area is congested until after their case has been decided.

During the hearing, the FAA inspector who investigated the allegations regarding the airmen testified that “if an operator conducts an application in an area the FAA might later determine to be a congested area, the operator ignores that potentiality at his or her peril.” The inspector went on to say that he had warned the airmen that the area around their farm could be considered a congested area. When the airmen requested a definition of “congested area,” the inspector told them there was no definition, and referred the airmen to FAA guidance, including an inspectors’ handbook. After studying the regulations and, apparently, finding no examples in the handbook that applied to their operations, the airmen then decided the area around their farm was not congested.

Unfortunately for the airmen, the ALJ agreed with the FAA. He concluded that the area over which the airmen had flown contained upwards of 30 homes, buildings, and structures and, as a result, was a “congested area.” The ALJ also rejected a number of other defenses raised by the airmen and held that the airmen violated the regulations as alleged.

On appeal, the airmen renewed their argument that the area over which they had flown was not a “congested area.” Initially, the Board observed that the FAA “has not pronounced a precise definition that includes the factors of the density of the population in an area; whether there is surface traffic in the vicinity; or the numbers and proximity of residences, buildings, or structures.” It went on to note that “it is clear that the intent of the regulations is to protect persons and property on the ground and to fairly apply the rules to operators of aircraft, and, in the case of Part 137, to operators of agricultural aircraft.” The Board then affirmed the ALJ’s determination that the area over which the airmen had operated was a “congested area.”

The Fourth Circuit’s Decision

In their appeal of the NTSB’s decision to the Fourth Circuit, the airmen argued that “the term ‘congested area’ violates the vagueness doctrine under the Due Process Clause (an argument the airmen were not able to make to the NTSB because the Board lacks jurisdiction to consider constitutional challenges), and that substantial evidence does not support the determination that they flew over a congested area.”

With respect to the due process argument, the Court initially noted that a “statute is impermissibly vague if it either (1) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits or (2) authorizes or even encourages arbitrary and discriminatory enforcement.” The Court then held that the airmen failed to show that they lacked a reasonable opportunity to understand what conduct FAR 137.51 prohibits. Rather, the Court found that the inspector’s warnings put the airmen on notice that the area could be considered congested and the airmen could have resolved any doubt by filing a congested area plan and waited for the inspector’s response. Additionally, the Court determined that the airmen had not shown that FAR 137.51 “authorizes or even encourages arbitrary and discriminatory enforcement,” or that the enforcement action against them was arbitrary. As a result, the Court concluded that FAR 137.51 was not unconstitutionally vague under the Due Process Clause.

Next, the Court reviewed the record to determine whether substantial evidence supported the NTSB’s determination that the area was congested. The Court observed that approximately thirty houses are located in the general vicinity of the area and that the airmen’s flights passed over corner sections of that area. Based upon that review, the Court concluded “that the area over which [the airmen] flew could reasonably be considered congested based on substantial evidence in the record.”

Conclusion

Unfortunately, the Court’s decision doesn’t shed much light on the “congested area” issue nor does it provide any meaningful clarification. Because this type of case is decided on a “case by case” basis, I think the Court’s decision relied heavily on the ALJ’s and NTSB’s factual findings. As a result, we still do not have a clear definition of what constitutes a “congested area.”

The due process argument was an interesting defense. If the airmen hadn’t been warned by the inspector or if the airmen had submitted a congested area plan but received not response from the FAA, perhaps then the Court may have been more sympathetic. On a positive note, it appears this argument could still be successful given the right set of facts.

In the meantime, make sure you are familiar with area over which you fly if you want to push the limits of 91.119 and remember that the FAA, NTSB and the Court will judge your flight using 20/20 hindsight.

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