AircraftOwner Online

A QUEST FOR "SECRET" PLANS: A JOURNEY INTO THE LAND OF OZ
- Michael J. Pangia

The Fairchild F-45 is a 1930s era airplane manufactured by the long defunct Fairchild Aircraft Corporation. It is a four seat, low wing, partially fabric covered airplane powered by a Wright radial engine that is actually a contemporary of the Model A Ford, but unlike the Model A, the airplane achieved little or no financial success. Only twelve or so were built, the last in the year 1939. Of the five that remain today, two are in flying condition with a probable worth of between eighty and one hundred thousand dollars, and another is owned by Greg Herrick, a well known restorer and collector of many types of antique aircraft. Mr. Herrick was repairing the tail surfaces of his F-45 as part of his flying museum and decided that the most expedient way of approaching the project is to obtain the plans that were submitted to the Civil Aeronautics Agency (CAA), the predecessor of the Federal Aviation Administration (FAA), in the 1930s as part of the application for an aircraft type certification (TC). He sent a Freedom of Information Act (FOIA) request to the FAA in the Fall of 1997.

After over ten years of litigation in two federal district courts, two U.S. Circuit Courts of Appeal and the U.S. Supreme Court, and now on remand to the federal court for the District of Columbia, the plans for this antique airplane continue to remain in putative secrecy in the archives of the (FAA). The irony of this legal odyssey is that it could well have been avoided had the FAA simply given deference to its own regulations. Instead, the government spent untold hundreds of thousands of dollars and a public corporation spent in excess of a million dollars in legal fees and expenses defending (FOIA) lawsuits for plans that are essentially worthless.

An aircraft type certificate (TC) is issued by the FAA (formerly the CAA) if proposed plans submitted by a manufacturer are determined to meet minimum safety regulations. While submitted plans and specifications are regarded as trade secrets, in exchange for the FAA’s imprimatur, the TC holder is required to maintain maintenance discrepancy reports and other safety information to assist owners and operators with repair and maintenance. The FAA claims that the TC holder is obligated to “support” the product. However, there seems to be no consensus within the FAA on exactly what that means, and along with this uncertainty comes a lack of meaningful guidance or enforcement.

The original plans are still on file with the FAA in the New England Region, but they require a bit of work to retrieve and copy to comply with a FOIA request. Although Mr. Herrick agreed to pay for any necessary expense for retrieval and copying, the FAA’s response was that he must first obtain permission from the owner of the TC. That task is tantamount to requiring Dorothy in the Wizard of Oz to “first bring back the witch’s broom” because the FAA requires, by regulation, sales and transfers of TCs be recorded in writing, and there is simply no record indicating a sale or transfer of ownership to any entity that exists today. Probably with the hope that Herrick would just go away, the FAA insisted that he still had to get “permission” from someone. So, he researched the name “Fairchild” and discovered The Fairchild Corporation, incorporated in 1990. This new corporation, referred to in this article as simply “Fairchild,” does not build aircraft, but is engaged largely in real estate development.

Fairchild at first did not even seem to know what an F-45 is. It could have been a pistol for all they knew. However, for some inexplicable reason, seemingly provoked by Herrick’s explanation and request, someone in that company developed the notion that the plans for this antique must have significant commercial value and instructed the FAA to defend the FOIA request, claiming any such information to be its valuable “trade secret.” Despite the fact that the FAA records are devoid of any mention of this new Fairchild company as owning anything of an F-45 type certificate, the FAA sheepishly obeyed Fairchild’s wishes and refused the request under Exemption 4, the trade secret exemption of FOIA.

The FAA’s conscious disregard of its own TC transfer regulations and failure to insist on some proof of ownership in the new Fairchild’s name eventually caused untold expenses for all parties and the public. After unsuccessfully exhausting the required prerequisite administrative remedies within the FAA, Mr. Herrick filed his FOIA lawsuit in the U.S. District Court for the District of Wyoming, his place of his residence. During the discovery process in that case, the FAA produced a copy of the current Type Certificate showing the last recorded owner to be Fairchild Aircraft Division of the Fairchild Engine & Airplane Corporation that went out of business in the mid to late1950s. The FAA also produced a copy of a 1955 letter from that owner that relinquished any claimed trade secrecy by granting blanket permission to the CAA to loan out the plans and specifications to anyone needing them to repair airplanes. Nothing in the FAA files even remotely mentioned the new Fairchild as owning anything regarding this aircraft. In fact, “the FAA admits that it has not located, to date, such a document.” Likewise, nothing in the produced file contained any modification or retraction of the 1955 letter.

FOIA cases have an interesting legal process, usually resolved by motions and countermotions for summary judgment, with discovery seldom necessary or allowed. The burden does fall upon the requested agency to prove the application of a FOIA exemption, but the level of evidence needed to meet that burden could be very subjective. For example, in Herrick’s case, in its pleadings submitted to the court, the FAA proffered an affidavit from the new Fairchild counsel who swore that he was personally familiar with the TC materials for this aircraft, and that they contain pricing information, secret marketing strategies, subcontractor and vendor bidding information and the like (all from the mid-1930s) the disclosure of which would cause his new company great financial loss. No one ever offered an explanation why any modern day corporation would ever consider this information as a valuable trade secret. It is hardly conceivable that Fairchild, essentially a real estate conglomerate, is seriously thinking of revising the small airplane business by manufacturing this seventy year old relic any more than Ford would think about reviving the American auto industry by reintroducing the Model T, and starting off by spending nearly a million dollars just to secure the plans.

Although the FAA was well aware that materials submitted for TCs hardly contain such information, even back in the 1930s, and that it was highly unlikely that the affiant ever laid eyes on the documents (they are in the FAA archives in the North East Region), the FAA essentially vouched for this affidavit and submitted it to the court as its pivotal evidence in rejecting the FOIA request. Since it became readily apparent to Herrick that the FAA did not care about the veracity of the affidavit, he tried to subpoena the affiant for a deposition. Attempts failed. Herrick was repeatedly told that this corporate officer was “out of town” and “would not be back for several months.” It became rather obvious that this new corporation could not afford to subject this person to questions under oath about his affidavit and his purported personal familiarity, and the FAA went along in complicity.

Mr. Herrick had no choice but to present a counter affidavit. He related how he became a shareholder in this new corporation and brought up the subject of his request at a shareholder’s meeting. One of the corporate officers, whom he mentioned by name, said that after looking into the matter, they determined that the TC for this aircraft indeed remained with one of the old bankrupt predecessor companies and was never transferred to the new Fairchild. That certainly comported with the FAA records. When asked for the minutes of that meeting in the subsequent FOIA litigation, it was claimed that they no longer exist. The FAA ignored all this evidence (or lack thereof) and continued to defend the FOIA suit, conducting no inquiry on its own as to the efficacy or veracity of the new Fairchild’s claims of ownership. It never was fully explained why someone in the FAA would not look at this situation with a modicum of common sense, except for the existence of a law that makes it a potential crime for an agency employee to release FOIA protected information. Unfortunately, it is this fear that seems to have propelled FAA logic to fly around in tighter and tighter circles.

No one disputes the fact that plans and specifications submitted to the FAA to support applications for TCs are generally trade secrets that fall within Exemption 4 of the FOIA. Indeed, Boeing would not want to disclose to its competitors the plans for the B777 that are submitted to the FAA for the TC application. However, Herrick’s argument in the district court was twofold: (1) that trade secrecy regarding this material was abandoned long ago by the 1955 letter, and (2) that the FAA could not meet its burden to show that this new Fairchild owned the materials in the first place and, if it did, that it took steps to protect trade secrecy over the last half a century. Herrick further argued that FAA recordation of ownership required by regulation is evidence of not only standing, but also evidence of intent to preserve secrecy. Discouragingly, the district court gave deference to the FAA’s arguments, actually calling the ownership and recordation requirement of the regulations a “red herring,” and that the highly questioned affidavit of the Fairchild’s counsel essentially rescinded the 1955 letter and restored trade secrecy to the requested materials.

Mr. Herrick appealed the decision to the Appellate Court for the Tenth Circuit. During the argument and in its decision the Court made it quite clear that the ownership issue had become irrelevant because the 1955 letter did in fact end any trade secrecy of the requested materials for all purposes. Surprisingly, however, the Appellate Court found in favor of the FAA. While the Court held that trade secrecy or Exemption 4 status no longer existed, it reversed the burden of proof and went on to state that because Mr. Herrick failed to argue that it is impossible for secrecy of public documents to be re-established, it will be legally “assumed” that it is possible. Upon that “assumption,” it was further “assumed,” as the Court put it, that the lower court’s conclusion that trade secrecy was re-established should be affirmed. Ironically, the only evidence the lower court had about re-establishment of secrecy was the highly questionable affidavit of Fairchild’s counsel.

Within a matter of weeks, the Tenth Circuit decision appeared in several trade journals as a new twist in the law regarding trade secrets. It certainly became a controversial subject in the antique aviation community. A well known and respected member of that community, Mr. Brent Taylor of the Antique Airplane Association, had been working with the FAA for years addressing the issue of abandoned TCs or where existing owners are incapable or unwilling to support the product as the FAA says is required. When he learned of the Herrick decision, he thought it incredulous that one part of the FAA was working to resolve the question while another part of the FAA was exacerbating it by championing a disregard of the regulations. He became annoyed that the FAA seemed to be “speaking from both sides of its mouth,” on one hand trying to develop a procedure by which dormant TCs escheat to the public domain, particularly when there is no entity supporting the product, but on the other hand, wasting public money to vest ownership, without proof, in an entity that is technically unable to support the product. Taylor viewed these conflicting positions as potential precedent setting with many other dormant aircraft TCs that could not only adversely affect the preservation of antique aircraft generally, but also adversely affect their safety. Since the Tenth Circuit expressly limited its decision solely to Mr. Herrick, Taylor was as free as any other member of the public to litigate the same FOIA case on his own behalf and hired Herrick’s former counsel to represent him. 

After unsuccessfully exhausting his administrative remedies with the FAA, Taylor filed his FOIA case in the District Court for the District of Columbia, one of the permitted venues under FOIA. He attached the Herrick decision to his complaint, requesting the court to give deference to the Tenth Circuit’s holding that these documents no longer have Exemption 4 protection. Fairchild successfully moved to intervene as a co-defendant with the FAA.

The judge’s clerk held a telephone conference with the parties in order to set a briefing schedule. At that time, Taylor expressed the need to conduct first limited discovery on how the agency was intending to meet its burden of proof that this new Fairchild entity had any title or ownership to the TC and, if so, just how the 1955 letter was (or could be) rescinded. He certainly did not wish to be trapped by the same multiple factual and legal “assumptions” that defeated Mr. Herrick. If the FAA, working with this new Fairchild, was going to claim again that secrecy was re-established for these documents, Taylor wanted to know when, how and by what policy such a thing could be accomplished. The requested discovery, if answered truthfully, hopefully would resolve those issues in a most speedy and efficient manner without having to spend more resources. However, both defendants vehemently opposed proceeding that way, and the judge’s clerk, giving deference to the FAA, advised Mr. Taylor that he would have to make a specific motion to allow such discovery.

Generally, the major objection to discovery in most FOIA cases is that it often requires an invasive analysis of the protected materials. In such cases, there are ways the courts have to prevent that intrusion and still satisfy the rights of the requestor. Taylor filed his motion for discovery, pointing out to the court that such an invasion would not occur in this case because the FAA’s regulatory documents pertaining to ownership and registry of TCs, many of which were produced in the Herrick case, are public documents kept separately from the requested materials. Taylor argued that discovery of that information would force the defendants to prove, once and for all, what they claimed vested ownership in this new entity and what caused the re-establishment of secrecy.  However, the court ruled that the motion for discovery was premature, deferring it until after the filing of the summary judgment motions.

Fairchild filed its motion for summary judgment, and again avoided the main issue by requesting the court to dismiss Mr. Taylor’s case based on a little known or understood legal theory called “virtual [not quite real] representation.” It argued that because of a “close association” between Mr. Taylor and Mr. Herrick by the fact they both belonged to many of the various aviation associations and were both interested in antique aircraft, Mr. Taylor’s FOIA rights were already abrogated by the Herrick decision, essentially that he had no right to bring his own case. Giving the FAA some credit, they did not seem to agree and actually briefed to the court that res judicata (the finality of the Herrick decision) does not generally bar the same or similar FOIA requests by successive plaintiffs. However, in the same brief, the FAA went along with Fairchild’s idea of precluding Mr. Taylor’s action anyway. Unfortunately, the court again gave deference to the agency, avoided a ruling on Taylor’s motion for discovery and dismissed his case.

Importantly, the DC district court never ruled on the merits of the FOIA case. Taylor was thrown out by this little known “virtual representation” concept, denying him his day in court. To make it even more uncomfortable for Taylor and his counsel, the decision was accompanied by an order to show cause why Taylor and his attorney should not pay the legal fees and expenses incurred by the defendants. Fairchild alone submitted fees and expenses in excess of ninety thousand dollars for essentially two briefs. Now, the defendants were able to continue avoiding the FOIA issues, ownership of a TC and supporting documents would default to the new Fairchild and secrecy would be re-established, not by operation of law, but rather by fear of judicial punishment of anyone daring to raise a challenge. Fortunately, Taylor did not flinch. He saw this as a dangerous precedent and threat to freedom and decided to fight on. If the court ruled against him on the merits, so be it. He just felt that no one should be so intimidated when seeking his or her day in court.

Taylor appealed the dismissal of his action to the U.S. Court of Appeals for the District of Columbia and filed a response to the lower court’s order to show cause. Concerning the order to show cause, Taylor pointed out that he was unaware of the Herrick case until he heard of the final decision. He was not hiding anything. In fact, he attached the Tenth Circuit’s decision to his complaint, noting that it unequivocally held that any trade secrecy of the subject plans had been abandoned in1955. He had every reason to believe that he had the same right to bring his FOIA case as would any member of the public, a right that is not dependent on his affiliations or reason for the requested materials. His FOIA rights are likewise unaffected by the attorney he chooses, that hiring Herrick’s former attorney is not “collusion” as the court accused. In fact, a different attorney would be free to contact Herrick’s former counsel and have access to the same public information contained in the Herrick court files. Most importantly, he argued that, as any member of the public, he should be free to use the FOIA to seek the truth about the status of government documents, undaunted by the fear of financial punishment for trying. The court withdrew the order to show cause and the order of dismissal based on virtual representation proceeded on appeal.

Because the merits of the FOIA exception were never adjudicated by the lower court, the appeal to the Court of Appeals had to be based solely on this obscure “virtual representation” idea. The term supposedly means that one person or entity is bound by the finality of a prior similar lawsuit if that person can be said to have been closely related or had the same interests in the subject matter as the party in that prior case. The few courts around the country that dealt with this theory varied widely in their interpretations and approach. Some courts held that in order for the second litigant to be bound by the former suit, he or she would have to have been aware of the pendency of that suit and have had the opportunity to participate. Other courts required some form of notice that the pending suit was intended to bind others who were not appearing before them. The lower DC courts seemed to do a subjective analysis based upon a multitude of amorphous standards that were very confusing. After all, this concept potentially takes away a person’s right to his day in court by a proceeding of which he or she was never aware.

As an interesting aside, in the early stages of the American Revolution, the British Parliament rationalized the imposition of taxes on the unrepresented Colonies on the theory that they were “virtually represented.” William Pitt, a defender of Colonial rights, ridiculed the concept of virtual representation, calling it “the most contemptible idea that ever entered into the head of man; it does not deserve serious refutation.” Parliament rejected criticism from both sides of the Atlantic, and passed the Declaratory Act in 1766, asserting the right to legislate for the colonies, notwithstanding the absence of actual representation in Parliament.

The Aircraft Owners and Pilots Association (AOPA) and Public Citizen , an organization originally started by Ralph Nader, involved in many legal issues that affect the public at large, agreed to join the fight. The AOPA filed an amicus brief with the Court of Appeals asserting the importance of the recordation regulation upon which the aviation public has a right to rely, and that had the FAA adhered to it with the same sanguine energy with which it enforces regulations on everyone else, the case probably would have been resolved long ago. Public Citizen recognized broader implications of this case, that a court, by the subjective application of an amorphous legal doctrine, could deny a person his or her day in court by someone else’s case of which he or she knew nothing about, much the same way that the British Parliament did with the Colonies just prior to the American Revolution. Public Citizen also filed a brief with the Court and took part in the lengthy oral argument.

In June of 2007, the Court of Appeals for the DC Circuit published its decision, affirming the lower court that deprived Taylor of his day in court. Recognizing that that “other courts vary widely in their approach” to the doctrine of virtual representation, the Court constructed its own multiple part test to determine whether a party is bound by the result of another person’s lawsuit. The first part of the test is that the two parties must have the same interest. Of course, both Mr. Taylor and Mr. Herrick are interested in antique airplanes, so the Court held that requirement was met. Secondly, it must appear that Mr. Taylor was “adequately represented” by Mr. Herrick in the earlier action. The Court held that requirement was met also because Mr. Taylor had the benefit acquiring some helpful information from Mr. Herrick’s action by the use of the same attorney. Although the Court found no evidence of tactical maneuvering on Mr. Taylor’s part, the fact that he could possibly use the requested materials to repair Mr. Herrick’s airplane was enough of a “close relationship” between the two that would preclude Mr. Taylor of his FOIA rights, even though the Court recognized that he had never had the opportunity for participation in Mr. Herrick’s case.

It is well established that under FOIA that the status of the requester or reason for the request is of no import as long as the request does not fall within one or more of the listed exceptions in the Act. Unfortunately, the Court of Appeals decision made pertinent the status of the requester and reason for the request, conflicting with well established FOIA law. The long avoided adjudication of the FOIA issues and the FAA’s strange protection of the Fairchild’s putative claim were now resulting in more legal anomalies. According to the decision, Taylor or anyone in his class is precluded from litigating for these materials, while a person disinterested in antique aircraft and unfamiliar with Taylor or Herrick would not be. Taylor and Public Citizen agreed that this was making bad law and filed a petition for certiorari to the U.S. Supreme Court. On January 11, 2008, the petition was granted. Unfortunately, the Supreme Court review was restricted to the virtual representation issue because there was no ruling from the courts below on the FOIA issues.

Public Citizen took up the laboring oar with the brief and the argument. It became obvious that this case had major implications regarding an individual’s access to the courts, not only in FOIA cases, but also for many other types of cases as well. For that reason, The American Dental Association, Reporters’ Committee for Freedom of the Press, The National Whistleblower Center, Openthegovernment.Org, The Electronic Frontier Foundation, the National Security Archive and Professors of ten major law schools throughout the country joined in and filed amicus briefs in support of Taylor.

The argument was heard on April 16, 2008. The Justices acknowledged that a FOIA request may be made by anyone, without having to explain the reasons for the request. If a FOIA request does not fall within one of the exceptions, the government must produce the requested items. On June 12, 2008 a unanimous Court held for Mr. Taylor and rejected the virtual representation theory entirely, laying out very specific, limited occasions when the result of a lawsuit will preclude litigation by someone who was not a party to that lawsuit. The Court recognized that the underlying cherished principle is that every person has a right to his or her day in court. The Court pointed out that preclusion would be appropriate only where, for example, a person had agreed to be bound by the result of another’s action, in class actions when proper notice is given to potentially affected parties, where there is a agency or guardian relationship or where the subsequent litigator is acting as an agent for the first one. In other words, if the government could prove that Mr. Taylor was acting as an agent for Mr. Herrick, perhaps Mr. Taylor would be bound by the decision in Herrick’s case. The case was remanded to the district court for a determination of that question before proceeding on the merits.

Now, another anomaly presented itself, which the Supreme Court never addressed in the remand. While it is undisputed that the status of requestor and reasons for the request are irrelevant in a FOIA case, the remand required a perversion of that fundamental FOIA concept. In any event, Fairchild filed bankruptcy and its attorneys withdrew from the case. The FAA, recognizing that Mr. Taylor and Mr. Herrick were indeed acting independently, decided to abandon the agency issue and to proceed finally on the merits of the case.

The Taylor case is now back in the district court. The motions and briefs are filed, and hopefully the court will finally hold the FAA to its burden of proof as required by FOIA. However, the FAA’s arguments have not changed. In fact, the FAA continues to vouch for and submit as pivotal evidence of its defense the same affidavit of Fairchild’s counsel in which he swears that he is personally familiar with the requested information and that it contains such things as 1930s pricing, marketing strategies and subcontractor bidding information of significant trade secret and competitive value to his company. Even more disingenuous is a novel concept that only the FAA could invent - that a type certificate is regarded by the FAA as separate from the submitted plans and specifications that support it. In other words, the FAA suggests that one can abandon or sell a type certificate, but still independently own the supporting data, and vice-versa. Notwithstanding the lack of evidence that either the plans or the TC is owned by Fairchild, anyone familiar with the type certificate concept, the obligations of a type certificate holder and the underlying regulations would wince at such an absurdity. It seems that government agencies sometimes flounder in their own convoluted rhetoric, abandoning responsibility by forgetting that courts will often give deference to their statements, even if absurd or unsupported, because of their supposed expertise.

Shortly after the remand, the counsel and trustee of the Fairchild bankruptcy, the same person who submitted the FAA’s pivotal evidence, the above-mentioned affidavit, swearing personal familiarity with the plans for the F-45, contacted Taylor offering for sale for several hundred thousand dollars its ownership to any old type certificate it has, including the one for the F-45. Mr. Taylor responded with a request to see first copies of the type certificates or other proof of ownership of whatever it is that is being offered for sale. Apparently not able to comply, Mr. Taylor was told that “Fairchild’s records are in storage units in several locations across the country,” Fairchild’s counsel further told Taylor that he “may have to do some ‘mining’ and that “[i]f he discovers that ‘there is gold in them thar’ hills’ more power to him.” So much for Fairchild’s sworn affidavit claiming personal familiarity with the requested documents for which the FAA vouches, defends and bases its entire case spending untold amounts of public resources in the process.

In view of the past proceedings, it is difficult to predict what the court may now do with this FOIA case and what appeals may follow. It has been nearly thirteen years since the first FOIA request to view FAA documents for the F-45. Over that time, the issue evolved from a mere request to view the plans for this ancient plane into an issue of basic legal rights threatened by ineptness and avoidance of accountability of government employees afraid of doing something wrong. There is hardly a creature that evokes fear more than a government that acts in fear.Whatever the outcome of the FOIA case may be, Mr. Taylor will accept it only if it based on the facts and law afforded him by FOIA. Fortunately, there are people like Herrick and Taylor who are willing, often at great personal risk and expense, to take up the cause, especially when the cherished American right to a day in court is threatened.

Just a reminder that we support sharing information about aviation events with everyone -- and we need your assistance!

Some time ago I started a Web site called Fly-ins.com (see: www.Fly-ins.com) which is available free of charge to event organizers and attendees.  On the site, you can post any aviation event happening any time in the coming year.  Just go to www.Fly-ins.com and click on "Post An Event".

After we have a chance to review you posting we will make the event "live".  At that point anyone can find it with a search. In addition, people in the State where the event is being held will be receiving an e-mail notification of the event posting. A reminder of the event will also be sent a few days before it occurs.

Thousands of people use the site and have signed up for e-mail notifications. So, please take advantage of this opportunity to share your local airport's aviation activities with the public.  As a note, check first to be sure the event is not already posted because thousands are during the course of the year.

Post your local event(s) now and be sure to sign up for the e-mail notifications!

 

There are things that are simply nice to have in the cockpit and then there are things that can save your life. At some point, we all make a decision as to whether or not we believe the cost is worth the risk. In this case I am thinking specifically about electronic traffic avoidance equipment.  

When GPS first came out for GA aircraft it was very expensive and not that many people purchased it, at least not for VFR navigation. Now, as prices have declined significantly most pilots consider it an indispensible element for navigation. Sure we keep maps with us. In fact, I not only keep maps but plot my location on the map as I fly along with the GPS.  Traffic avoidance systems are following the same price/performance trajectory and we should all take note. It could save your life.  

This came to my attention again as I was reading copy of Plane & Pilot magazine and noticed an ad for a new AvMap traffic avoidance product. There was an image of a portable device and bullet points outlining impressive capabilities. However, when I went to their Web site, I could not find anything about it.  

I called the company and they said they ran the ad because of the upcoming LSA show in Sebring, Florida. They also said they had the device on display at the AOPA Expo. I am embarrassed to admit that I missed it. Unfortunately they have not officially announced it and could tell me little more – other than it will be affordable.  That’s what I really wanted to hear!  

These devices are great to have. Many of the new ones will interface with portable displays, showing traffic around you with varying degrees of distance and accuracy. I have flown with several of these units and consider them an important component of cockpit resource management. Don’t get me wrong; traffic avoidance devices supplement your personal eyeball vigilance for which there is no substitute. But they can save your life.   

I am so pleased to see more manufactures joining the market and I am happy that prices are coming down. Hopefully, like the GPS, traffic avoidance hardware will become as common in the cockpits of GA aircraft as GPS is now.  While most of us have few problems when we are flying, of all the things that can go wrong, a mid-air collision is seldom survivable.  

This year, take a good look at traffic avoidance options and see if they are yet in your risk/reward zone.

I just returned from Washington DC where I attended a planning session for GA groups who will be involved in the General Aviation Caucus for the new Congress.  We GA folks as a group must get as many legislators to join the General Aviation Caucus as possible.

This was, we all agreed, the first time some many GA groups had come together at one table.   The meeting was a testament to the importance those representing GA interests are placing on legislative issues.  I am glad to see it.

When we think of legislation we tend to think of laws being passed. However, we also need to remember that political influence can help us with non-legislative issues as well. In fact, non-legislative understanding of GA is just as important.  When elected representatives start to question the wisdom of specific rules or trends in rule making that are harmful to GA it is very helpful.

As a result we ALL need to contact our elected representatives and urge them to join the General Aviation Caucus;  the last Congress had more than one hundred members. The goal this year is to attract even more.   Members of Congress will naturally be interested if they are pilots or have GA industries in their home states.  However any legislator can join – YOU just need to suggest it to them.

So, what we all need to do is contact our representatives asking that they join the GA Caucus.   Even if they are not pilots being Caucus members will help educate the members about issues of concern to you and I as pilots.  In addition, there is simply strength in numbers – particularly when we talk about large groups of representatives.

You will be hearing more about efforts to get pilots and others interested in the wellbeing of GA to get their representatives to join.  YOU can do this today. Simply send a note to your Members of Congress, and ask them to join the General Aviation Caucus.  It’s a good thing for all of General Aviation – including you!  

Although I'm based in the Phoenix, AZ area, I spend an unusual of time at Lake Powell doing aerial photo flights for amateur and professional photographers. In September of this year, I flew a total of 20 hours over the lake with at least 20 different photographers on board. I usually get as far uplake as the San Juan River confluence, which is halfway to Monument Valley. But due to the difficulty and expense of getting aerial photo permits for Monument Valley, I rarely fly there.

The one thing that does get me to Monument Valley is Flying M Air's Southwest Circle Helicopter Adventure. That's a 6-day excursion by helicopter that starts in Phoenix and spends a night at Sedona, Grand Canyon, Lake Powell (at Page), Monument Valley, and Flagstaff before returning to Phoenix. I don't do this trip often -- frankly, it's quite costly and there aren't many folks who want to spring for it -- but I happened to do one in October 2010. In fact, as I'm typing this on my laptop, I'm looking of the window of my room at Goulding's Lodge at the first light striking the famous monuments of Monument Valley.

On this particular trip, I rigged up a GoPro Hero camera on my helicopter's nose. Although I used this "nosecam" to shoot video on the first day of the trip, the mount introduced too much vibration to make the video usable. For the remaining days of the trip, I switched over to still photos. The camera automatically shoots a high resolution image every 5 seconds as I fly. With 720 photos per hour, I usually get a few good shots on each leg of the trip.

Wednesday was one of the most scenic legs of the trip. We flew from Page Airport (PGA) up Lake Powell to the San Juan confluence and then east to the airstrip at Goulding's Lodge in Monument Valley (UT25). On board with me were my two excursion guests and all of our luggage for the 6-day trip. I pack the luggage on and under the seat behind me and sit my guests in the two right seats (front and back) so they get the same view. I then fly to put the best views on their side of the aircraft.

We lifted off from Page at about 2:30 PM. The ASOS reported wind at about 8 knots out of the north, but it sure didn't feel that strong. I made my radio call and then departed right across the runway, heading uplake. A Citation jet called a downwind a few moments later; we caught sight of him high above us as we crossed the airport fence.

Our shadow as we crossed the runway at Page Municipal Airport.

It was a beautiful day, with high, thin clouds tracing lazy lines across a clear blue sky. The October afternoon sun bathed the landscape with a soft light that illuminated the red rock cliffs and buttes, cast shadows in the canyons, and accentuated the blue of the water. Sure, the light was too harsh for the aerial photographers I usually take around there, but for my passengers and me, it was great for taking snapshots of our surroundings.

The first canyon we crossed was Antelope Canyon, which is just east of the airport. Normally, I just buzz across it, but the tour boat was inside the canyon, so I made a turn to the left so my passengers could get a photo of it. I didn't circle, though. I'm extremely conservative with fuel on the fourth and fifth days of the excursion, since there's no fuel between Page, Monument Valley, and Flagstaff (or, in this case, Winslow). I need every drop of fuel I have on board to get to my Day 5 destination on Thursday with required reserves on board.

Most people see Antelope Canyon from the inside, where it's a masterpiece of sandstone swirls carved by wind and water. But this is the view I see most often.

We continued uplake, passing Antelope Point Marina and the mouth of Navajo Canyon. I made a position call a mile north of iconic Tower Butte and changed from the Page airport frequency to the uplake frequency (122.75). I repeated the call on that frequency and got into a discussion with the returning tour pilots. They'd be coming my way at 5,000 feet; I'd stay out of their way by flying at 4,500 feet.

The tour traffic is a major concern for anyone flying at Lake Powell. It's a very good idea to learn the tour routes, altitudes, and reporting points they use before exploring in your own aircraft. There's nothing scarier than flying the lake and seeing a plane flying where you don't expect it, especially if it's not on frequency or doesn't know where it is in relation to the usual reporting points. Ten minutes with a tour pilot and a chart at Page Airport is enough to get the basics.

We slipped between Dominguez and Boundary Buttes at the south end of Padre Bay and continued uplake. Winding canyons opened up on our right. I pointed out a cluster of kayaks near a powerboat in a canyon with water as smooth as glass. In the main channel, you could clearly see the wind on the water. Not enough to make whitecaps, but gusty enough to see round patterns of movement appear and disappear across the water surface.

My usual uplake route takes me between Dominguez and Boundary Buttes. In the far left of this photo, you can see Padre Butte, referred to by local pilots as "submarine." Navajo Mountain looms in the distance.

We passed the south side of Gregory Butte and Last Chance Bay as two tour planes flew by overhead. Last Chance is a long, wide canyon with steep sandstone walls. It's a long boat ride to the end where there are a few sandy spots suitable for houseboat parking. Distance to parking and the cost of fuel are part of what keeps the canyon free of traffic, even during busy summer months. On this October day, however, the whole lake was quiet; I don't think we saw more than 20 or 30 boats.

We flew over the main channel of the lake as the canyon narrowed. One of my passengers pointed out Dangling Rope Marina and asked me about it. I told her what I knew: it was a marina only accessible by water. There were no roads in or out. I then told her a story about our stop there 20 years before on a houseboating trip. How I miss cruising the lake in a houseboat!

Over the main channel of Lake Powell just uplake from Last Chance Bay. The canyon walls rise about 800-1,000 feet off the water's surface here.

We were nearing the mouth of the canyon that would take us to Rainbow Bridge. As I flew, I'd been listening to the radio and knew there was a female pilot in the area. I also knew there was another tour plane behind me, on its way to "the bridge." It's a tight squeeze in the canyon and my challenge is always to stay as low as possible to ensure my photography clients can get the shots they need. Over the years, I've perfected my approach.

The female pilot was just leaving the area when I reached the mouth of the canyon and turned in. I flew up the canyon at 5000 feet, telling my passengers what to look for as we flew: the dock, the trail, the giant stone arch of Rainbow Bridge. I was busy keeping an eye on the mesa to the right of the helicopter. On a day like that one, with occasional gusts of wind, I wouldn't get any closer than 200 feet from it's edge. I verbally pointed out Rainbow Bridge when I saw it, keeping both hands on the controls. We flew past and they snapped photos. I circled around the back, assuring the pilot behind me that I'd stay at or below 5000 feet until I was clear of the area. Then, when abeam the bridge a second time, I broke off to the left and climbed out toward the San Juan Confluence.

This wide-angle shot gives you an idea of how tricky the area around Rainbow Bridge is. I get very close to that mesa top. Can you see the bridge in the photo?

The trickiest bit of flying I'd have to do on the entire trip was behind me.

I climbed to 6500 feet to give my passengers a good view of the twists and turns of the San Juan River just upstream from the confluence. Then I punched in my user waypoint for Goulding's Lodge, adjusted course, and headed east over the eroded desert terrain south of the San Juan River.

The San Juan River twists and turns dramatically before meeting the Colorado.

We were east of Navajo Mountain now and the area was riddled with water-carved canyons, windswept rocks, and stunted trees. Below us, here and there, were two-track roads leading back toward the river. One of the roads looked very well maintained, although there was no sign of any homesteads or other reason to use it.

We flew over the top of No Man Mesa, where two or three ranches are scattered. A pickup truck drove slowly along a two-track toward one of the ranches. We saw a herd of horses and a flock of sheep tended by a dog before crossing over the top of the mesa and beginning our descent toward Monument Valley. The famous monuments started coming into view as we rounded the edge of a cliff face.

A wide canyon cuts across the desert just past No Man Mesa. While not as beautiful as the Grand Canyon, it offers a glimpse of what the Grand Canyon may have looked like before it became grand.

I switched to the Monument Valley frequency and heard several tour planes making calls. I leveled off at 5500 feet and flew directly over the first paved road we'd seen since leaving the airport. Ahead of us, at the airport, I could see three tour planes launch, one after the other. One crossed overhead in front of me, the others climbed out beside me and likely crossed behind me. All of them were returning to Page the quick way. They'd be back within 30 minutes; we'd taken 60.

Before landing at Gouldings, I always make a quick loop around the western part of the Monument Valley Tribal Park. That day was no different. I climbed to 6000 feet and followed the road into the park. Once I reached the visitor center area, I banked left toward the Mitten buttes. I flew between them, on a route the tour pilots refer to as "splitting the mittens." Then I banked left again and headed back toward Goulding's.

The two Mitten Buttes (East and West) are iconic Monument Valley images.

I restrict my quick loop around Monument Valley to the west side of the park to minimize noise impact on the ground.

As we came in for a landing, a small herd of horses, spooked by the sound of my helicopter, galloped across the desert east of the airport, kicking up fine red dust.

Monument Valley Airport has just one way in and out. Not the kind of airport where you want to overshoot the runway.

It had been a good flight with few bumps or unexpected challenges. Later, in my hotel room at Goulding's Lodge, I was pleased with the quality of the images my Hero camera had captured. What a great way to document a flight.

Note to Pilots: If you do plan a trip to Goulding's Lodge, remember that the airport there is private and for use by Goulding's guests and tour clients only. Go to Goulding's Web site at www.Gouldings.com to learn more about restrictions regarding airport use.

I believe that aviation events, including fly-ins, Airshows and other aviation gatherings are extremely important to General Aviaiton.  They are enjoyable, educational and, perhaps most importantly, promotional for non-GA people.  

That’s why we promote gatherings of all sorts on AircraftOwner.com. As well, we have a sister site called www.Fly-ins.com which features the most comprehensive listing of aviation events on the Web.  Fly-ins.com is free to everyone for posting, tracking and promoting aviation events.  Each year literally thousands of gatherings can be found there.  

In addition, you can sign up to receive reminder e-mails for events of interest to you. This includes the ability to specify reminders by event type, such as fly-ins, as well as by the state they are being held in.  

When you sign up to receive these reminders you will receive two for each event: one when the event is first listed and another about five days before the event will be held. At any time you can go to the site and search for any event being held anywhere at any time.  

If your group or organization is holding an event, you can list if free of charge on the Web site. All you have to do is go to www.Fly-ins.com and select “Post an Event” then enter the information.  After it is reviewed (which can take a few days) it is posted live to the site. At that point anyone who has signed up for the e-mail alerts will also receive the first e-mail notification of your event.  

We urge everyone to post any General Aviation event they are promoting on the site. Please check to be sure the event is not already posted as sometimes someone else has already listed it.  

Using www.Fly-ins.com in 2011 will help you enjoy flying all the more and help promote GA fly-ins and shows to everyone.  Give it a try!

  

The FAA may be improving your health and extending your life without either of you knowing it!

    John Abramson MD, in his book Overdosed America, makes compelling and referenced arguments about how the pharmaceutical industry is pushing as many drugs as possible on the American public—whether they do nothing, hurt, or even kill people. Fortunately, the FAA does not allow many of these medications for use by pilots so we may be inadvertently helping ourselves by avoiding medications.

    Antidepressant medications are an example. Many studies show that for mild depression, common antidepressant drugs do not do anything more than placebo. In addition, many of these medications have serious side effects.

    Unfortunately, the FAA does not prevent all medications which have potential harmful effects. Cholesterol lowering medications are a classic. In spite of all the pharmaceutical company advertising, both direct to consumers and physicians, the studies of cholesterol lowering medications effect on heart disease in people without documented coronary artery disease already is absent. Thus, we are poisoning a lot of people’s livers without helping their hearts.

    Claritin, the antihistamine drug approved by the FAA because it is not sedating, is an example of a drug which does not work because it is under dosed. The effective dose of Claritin is four times the standard tablet dose but the manufacturer did not want to test that dose because it is sedating at the higher, actual working level. Thus, they made a fortune on a drug (now non prescription with generics available) that was non-sedating and did not work very well. You might as well be taking M&Ms every morning.

    A place where a lot of people (and many pilots) get into trouble is with prescription pain medications. Many of the new medications such as Oxycotin do not work any better than generic narcotics, but because of their formulation, are much more addicting. It really breaks my heart when a professional pilot loses his medical due to narcotic abuse that was precipitated by a physician prescribing these new, expensive, and highly addictive narcotics. A truly despicable example is Tramadol which is a semi synthetic narcotic which was promoted as non addiction by its manufacturer. Unfortunately, after the drug was introduced, independent studies showed Tramadol was more addicting than non synthetic narcotics!

    The Center for Medical Consumers ( http://medicalconsumers.org/ ) and Evidence
Based Drug Therapy ( http://www.ti.ubc.ca/ ) are good sites for unbiased information about drugs. Unfortunately, the FDA ( fda.gov), is hard to navigate and the most important data is very, very hard (or impossible) to find. That important information is the results of 18 months and/or 10,000 patient uses of drugs and the summary of adverse drug events reported by consumers and physicians (which is under reported).

    What about “ask your doctor” which is promoted by the direct to consumer (DTC) advertisements that you are bombarded with on TV, magazines, and newspapers? (I enjoy seeing these advertisements and thinking “I am doctor and I do not have a clue what that medicine is indicated for or what its’ side effects are!” Do not ask me, I do not know!) The first problem is the DTC advertisements have miss information and omissions that the FDA has monitored at levels as high 65% of the time. The second problem is that most physicians get their new drug information from drug representatives (actually, they are salesman) which drop sample off at their office. These folks are there to sell drugs, not to provide totally impartial information.

    The next source of information for your doctor is from continuing medical education (CME) courses. Unfortunately, CME courses have been hijacked by the pharmaceutical industry by providing physician speakers who are paid handsomely for their promotion of the industry’s drugs. (If you want to see if your physician is a pharma hired gun, check them out at ProPublica
( http://projects.propublica.org/docdollars/ ).

    I frequently tell patients “Stay away from doctors, they just make you sick.” There is truth in jest, especially when drugs and profit are involved. Maybe the FAA is smarter than we thought!

Can you imagine being alone with the Wright Flyer for a few hours? Or the Spirit of St. Louis? Or the Bell X-1? Or the Apollo 11 Command Module? A "significant" donation to the Smithsonian Air and Space Museum made on behalf of the National Transportation Safety Board Bar Association allowed us to have just such an evening recently. As the Gala Finale to an Evening Devoted to Air Safety, the Bar Association awarded its presigious Annual Joseph T. Nall Aviation Safety Award to Herb Kelleher, the founder and long-time CEO of Southwest Airlines, during a black-tie evening at the Smithsonian National Air and Space Museum.

Mr. Kelleher might not seem, at first glance, to have been an obvious choice for a "safety" award. But, when you hear about the Billions of passenger miles, in Millions and Millions of revenue flights, over more than three decades, without a single passenger fatality, and then realize that over the same period of time, Southwest Airlines remained profitable, while other airlines drowned in a sea of red ink, the point is made.

Mr. Kelleher and his airline are living proof that an airline can be profitable without sacrificing a committment to safety.

There was perhaps no more-fitting place at which to honor Mr. Kelleher than the Air and Space Museum, as he has for many years, sat on its Board of Directors. He was welcomed to the IMAX Theater stage by the Director of the Air and Space Museum, Lt. Gen. John R. Dailey (USMC, Ret.), the current Director of the Museum. After an emotional speach, during which he credited all of the accomplishments of the airline to its employees, a trademark of his management style -- a mutual love-fest between labor and management -- we were feted to a lovely catered dinner in the "America By Air" section of the museum, wedged between the forward fuselage of a Boeing 747 and a Ford Tri-Motor, under a DC-3 and a Curtis Jenny, while overlooking the monuments of Washington, DC through the floor to ceiling glass walls of the museum.

A private event at the Smithsonian National Air and Space Museum is almost like a dream. I hope that all of you can one day attend such an event.

A few weeks ago, I had one of the best experiences of my aviation life. As part of the annual conference of the National Transportation Safety Board Bar Association in Washington, DC, we got private tours of the NTSB laboratories. We were given access to the room where the only people to listen to the actual cockpit voice recordings after a fatal accident actually sit around and listen and create the transcript that is made public. We were shown the lab where Flight Data Recorder information is extracted from the black boxes recovered from accident scenes (they also take data from panel-mounted and handheld GPS receivers, engine monitors, and other electronics). We got to explore the structures laboratory where they examine large and small pieces of aircraft (and other modalities) for signs of what caused them to fail. We were taken to the animation labs, where the NTSB specialists design and create animations to demonstrate, for the Board and for the public, the last few minutes of a crash, and all of the relevant information from multiple sources, in an audio-visual presentation which is easy to understand.

The next day, we were taken by bus to the NTSB's accident investigation academy near Dulles Airport, where investigators from the US and from around the world are trained in the fine arts of accident investigation. This academy was built after the families of the victims of TWA flight 800 recognized the expertise of the investigators who worked tirelessly for years to determine the manner in which that aircraft came apart in a blaze over Long Island Sound. Thousands of pieces of the wreckage were recovered from the water and from the bottom of the Sound and were painstakingly reconstructed in a hangar at one of the old Grumman Aircraft plants. This reconstruction was then taken apart, moved to the academy, and carefully reconstructed there as a teaching aid for future investigators. The families approached Congress and asked for money to be allocated to develope an academy dedicated to this work so that others could learn from their tragedy. Out of respect for the victims and their families, the families control access to the reconstruction, and no photographs are allowed. We were very fortunate to have been able to get access to the reconstruction.

Words are simply inadequate to convey the sensations one experiences when the double doors open from a building hallway, and you come face-to-face with some 40% of a B-747 showing obvious signs of an explosion and of ripping apart, literally, at the seams. A climb up a tall staircase allows you to look into the fuselage from an area just behind the cockpit, each seat, in the condition in which it was found, placed exactly in the location it occupied right up until the aircraft came apart under those unfortunate passengers. It is like looking into a tomb, only without the bodies. To me at least there was an overwhelming feeling that this was where over 200 people died.

On the floor, dwarfed by the wreckage of the 747, are other aircraft fuselages, including a Cessna that suffered an in-flight fire. Although the instructor who showed us around took pains to show us the way that the smoke trails from the rivet holes indicated the initial point of origin of the fire, the chared interior of an aircraft type in which I had many hours of flying time was quite sobering. Engines, props, control cables, spinners, and other debris from numerous fatal accidents were on shelves around the room. For the professionals, they serve as instructional aids. For me, they served as a stark reminder of the consequences of mistakes.

Having now spent quite a bit of time with NTSB personnel, both in the field and at their offices and the academy, I am more than ever impressed with this small, independent government agency. No one that I met reminded me of a "typical government bureaucraft." Everyone with whom we came in contact was not only an expert in his or her field, but was clearly keenly aware of the seriousness of the mission of the agency. The entire NTSB -- Board Members, Judges, staff, investigators, and others -- numbers only about 400 people spread around the country, and ready at a moment's notice to assist other countries around the globe. They do more with less than just about any other government agency I can think of. As Americans, we can be proud that we have this agency to lead the world in pursuing safety in transportation. As passengers and pilots, we can and should also be thankful that we have this agency to search for causes, and to make safety recommendations in an effort to keep us all as safe as we can be.