AOPA Pilot Magazine - October 2016 - 22

PILOT COUNSEL

Landing on a closed runway

BY JOHN S. YODICE

The FAA should prove endangerment

JOHN S. YODICE

is the former
general counsel
for AOPA and a
longtime contributor to AOPA Pilot.

22 | AOPA PILOT October 2016

WE PILOTS have had to learn and apply the very comprehensive set of general operating and flight rules of the
federal aviation regulations. There is no rule that specifically prohibits landing an aircraft on a closed runway.
The only federal prosecutions for landing on a closed
runway that I have seen, over many years of experience, were under the very general FAR 91.13(a), which
provides that: "No person may operate an aircraft in a
careless or reckless manner so as to endanger the life
or property of another." At airports with federal control towers, air traffic control procedures are to inform
the pilot that landing on a closed runway is at the pilot's
own risk-not to prohibit it. No doubt the airport operator has the power to adopt such a prohibition.
FAR 91.13(a) was the charge in this case. A pilot
landed his Piper PA-24 Comanche on a runway that
had been closed because of construction taking place
on the adjacent taxiway. This was after the manager of
the airport had issued a notice to airmen (notam) indicating that the runway was closed, and the construction
crew had placed two large yellow Xs over the runway
numbers and had erected low-profile barricades on the
runway. The pilot acknowledged that he had received
the notam, saw the yellow Xs, and knew that the runway
was closed when he approached and landed.
A construction inspector on site saw the aircraft
make a low pass and circle around. This was consistent
with the pilot's testimony that he made the low pass
to signal his intention to land. And it worked. When
the construction inspector saw the airplane on final
approach for landing, he ordered his crew to evacuate
the runway. When the aircraft approached and landed,
the inspector and his crew were at least 1,100 feet away.
The manager of the airport reported the event to
the FAA. After an investigation, the FAA issued an
order suspending the pilot's commercial certificate for
60 days, alleging that the pilot violated FAR 91.13(a) by
knowingly landing on a closed runway.
The pilot appealed the order of suspension to the
National Transportation Safety Board. At a hearing
before an NTSB judge, the pilot-who represented
himself-argued that "operations can occur on closed
runways. All according to what the pilot thinks the risk
is." He also argued that "there was no operation of this
airplane contrary [to] a notam. I challenge the administrator to show me the notam where it says this notam,
says no landing on this runway. It does not say that at

all." He also argued that he did not violate FAR 91.13(a)
because the construction crew was in no danger as the
landing aircraft was never closer than 1,100 feet from
the crew.
The pilot introduced into evidence a summary of
his significant aviation qualifications and experience,
including his accomplishments as a U.S. Army aviator. Indeed, the law judge-himself retired from the
Army-expressed his appreciation for the pilot's commendable service to the country and thanked him for
it. Nevertheless, the pilot was not permitted to introduce documentary evidence demonstrating that his
landing on the closed runway complied with a landing procedure "taught in U.S. Army flight operations."
Such evidence was deemed to be irrelevant. The pilot
lost his case.
On further appeal, the full board sustained the law
judge's decision. In doing so, the NTSB looked to several
legal precedents holding that operating on a closed runway is careless or reckless in violation of FAR 91.13(a),
regardless of whether the landing was harmful to individuals or property.
I have often noted with dismay that the FAA and
NTSB, in interpreting FAR 91.13(a), have written out
of the regulation the requirement that FAA prove
"endanger[ment to] the life or property of another." This
case is unique because FAR 91.13(a) was the only rule
charged. In practice, the FAA charges violation of this
rule in every case charging violation of another operational rule, continuing to ignore the requirement for
proof of endangerment. This was illustrated in a 2012
case in which a pilot was found in violation of FAR
91.7(a), unairworthy condition, plus the inevitable FAR
91.13(a) because the aircraft he operated had damage
to louvered vents under the number one engine. After
a hearing, a law judge upheld the unairworthy violation but dismissed the FAR 91.13(a) charge because of
the minor nature of the damage and the uneventful
subsequent flight. The full board reversed, sustaining the pilot's suspension and ruling that "under our
jurisprudence, when the administrator has proven an
operational violation of the federal aviation regulations,
the administrator has also established a violation of
Section 91.13(a), because the action of violating an operational regulation is unequivocally careless or reckless."
I respectfully disagree. The FAA must also prove
endangerment.
AOPA

Table of Contents for the Digital Edition of AOPA Pilot Magazine - October 2016