Submitted by Charlton Stanley, guest blogger
(Otteray Scribe)
This is my first post as a Guest Blogger. I am honored and humbled to be invited to post at one of the most respected legal opinion blogs on the ‘net. I will try to maintain the high standards already set by the heavy hitters already posting here. Thank you, Professor Turley, and all the other guest bloggers and regulars here. I have been posting here and on other blogs under the username Otteray Scribe. Otteray is the Cherokee name for the Blue Ridge Mountains where I live. When in the fourth grade, I learned about the scribes of old Europe. The idea of someone actually having a job writing things down for people who were illiterate fascinated me. My username combined two of my favorite words. Blue Ridge writer. That’s me.

Just a bit of background about me. I am a forensic psychologist with about 41 years of trying to get it right. I am passionate about my work, aviation, photography and my family. Other interests include law enforcement and corrections. In future stories, I plan to write about all those subjects. Hopefully, over the past four decades I learned a few things worth sharing.

For my first effort, I wanted to focus on how people who know little of aviation get a news story, and then mangle it into something that it is not. This is not new. There was a time not long ago when any kind of general aviation airplane crashed, it was described in the press as a, “Piper Cub.” Cubs are seldom seen these days, so that descriptor has evolved to a, “small Cessna.” Perhaps this story will set the record straight, and tamp down some of the ‘Hair-On-Fire’ hyperbole about flight restrictions over the oil spill in Arkansas. This environmental disaster is personal to me. At one time, I lived and worked only a few miles from Mayflower, and have flown in and out of the Conway airport many times.

Misinformation, hyperbole and conspiracy theories have been rampant about the flight restrictions around the oil spill at Mayflower, Arkansas. The problem started when local news media referred to Exxon-Mobil getting the FAA to establish a “no-fly” zone around the oil spill. To be clear, this is a completely different issue than what is happening on the ground. Links to some of those stories are at the end of this piece.

By way of background, Mayflower, Arkansas is a small town in the middle of the state, about halfway between Little Rock and Conway. It is just south of 6,700 acre Lake Conway. Some were claiming that local drinking water comes from the lake. It does not; this lake is not a reservoir for potable water. The Arkansas Game and Fish Commission built Lake Conway as a dedicated fishing and wildlife area in 1948. On March 29, the Exxon Pegasus pipeline ruptured at Mayflower, spilling thousands of gallons of oil into the south end of the lake and parts of Mayflower. The oil poses a major risk to wildlife and fish in and around the lake, as well as local residents. Not surprisingly, this became a major news story locally, and as the news spread, so did outrage. As the outrage grew, conspiracy theories grew almost exponentially.

Exxon-Mobil said they would take responsibility for the cleanup. That is normal practice. The state of Arkansas does not have the equipment, expertise or funds budgeted to tackle a major oil spill cleanup. The “Pottery Barn Rule” applies: You broke it, you buy it. As the cleanup crews arrived, the supervisor on the scene asked the Federal Aviation Administration (FAA) for a Temporary Flight Restriction (TFR) around the cleanup area. The situation in Mayflower warranted a TFR under the provisions of the law, so it was granted by the FAA.

That action fueled more conspiracy theory stories and blogs around the internet. How dare the FAA let Exxon-Mobil establish a “no-fly” zone over the spill so they could hide their misdeeds? Really? Part of the problem arose with the official FAA NOTAM (Notice to Airmen) shown below:

FDC 3/8699 ZME AR.. FLIGHT RESTRICTIONS MAYFLOWER, AR. EFFECTIVE IMMEDIATELY UNTIL FURTHER NOTICE. PURSUANT TO 14 CFR SECTION 91.137(A)(1) TEMPORARY FLIGHT RESTRICTIONS ARE IN EFFECT FOR OIL PIPELINE RUPTURE ONLY RELIEF AIRCRAFT OPERATIONS UNDER DIRECTION OF TOM SUHRHOFF ARE AUTHORIZED IN THE AIRSPACE AT AND BELOW 1000 FEET AGL WITHIN A 5 NAUTICAL MILE RADIUS OF 345855N/0922642W OR THE LITTLE ROCK /LIT/ VORTAC 319 DEGREE RADIAL AT 22.4 NAUTICAL MILES TOM SUHRHOFF TELEPHONE 713-299-2572 ISIN CHARGE OF ON SCENE EMERGENCY RESPONSE ACTIVITY. MEMPHIS /ZME/ ARTCC TELEPHONE 901-368-8234 IS THE FAA COORDINATION FACILITY.

Bloggers and reporters jumped on the fact that an Exxon-Mobil supervisor, Tom Suhrhoff, was placed in charge of operations and flights in and out of the TFR. None of the outraged bloggers and media seem to have bothered to look up the applicable FAA regulation under 14 CFR § 91.137:

 (b) When a NOTAM has been issued under paragraph (a)(1) of this section, no person may operate an aircraft within the designated area unless that aircraft is participating in the hazard relief activities and is being operated under the direction of the official in charge of on scene emergency response activities.

The graphic is part of an aerial navigation map called a Sectional. The FAA has marked the TFR onto the Sectional, represented by the red circle with an R in the center. That means “Restricted.” The yellow mass at the lower right of the map is the congested area of Little Rock. Conway is to the upper left.

Contrary to what the blogosphere and some in the media seem to think, a TFR request is common practice. It does not mean that somehow Exxon-Mobil has taken control of the FAA. Some have protested that the airways are “public.” Yes, and so are highways, but both airspace and highways are regulated. A pilot cannot just climb in an airplane and go anywhere at any time, any more than one can drive on the wrong side of the road. The FAA controls airspace and makes rules for its use. When a private organization requests a TFR, a coordinator at that location is required. Since Exxon-Mobil is doing the cleanup, they must provide someone to direct traffic inside the TFR zone. In this case, that supervisor is Tom Suhrhoff. Permitted air traffic is mostly survey aircraft and helicopters. It is not the FAA’s job to set up a control tower at Mayflower, Arkansas

The company manager on the ground has the responsibility to inform the FAA when they are finished with flight operations in the TSA. However, in the event of a situation such as described in 14 CFR Section 91.137(a)(3), the FAA may (and probably will) keep the TFR in place so there are not two dozen airplanes trying to occupy the small airspace at the same time. Aerial rubberneckers are just as much a hazard as those who ogle motor vehicle wrecks and don’t pay attention to where they are going. Here is what 14 CFR Section 91.137(a)(3) says:

3. Prevent an unsafe congestion of sightseeing aircraft above an incident or event which may generate a high degree of public interest (14 CFR Section 91.137(a)(3)).

Once the FAA determines it safe to do so, the TFR will be revoked.

This brings us to the second part of this story: The alleged “no-fly” zone. It is not a “no-fly” zone. Under the authority of Title 14 CFR § 91.137(a)(1), here is the TFR instruction to pilots:

NOTAM Number : FDC 3/8699
Issue Date : April 01, 2013 at 1412 UTC
Location : MAYFLOWER, Arkansas near LITTLE ROCK VORTAC (LIT)
Beginning Date and Time : Effective Immediately
Ending Date and Time : Until further notice
Reason for NOTAM : Temporary flight restrictions
Type : Hazards
Replaced NOTAM(s) : N/A
Pilots May Contact : MEMPHIS (ZME) Center, 901-368-8234
AIRSPACE DEFINITION:
Center: On the LITTLE ROCK VORTAC (LIT) 319 degree radial at 22.4 nautical miles.
(Latitude: 34º58’55″N, Longitude: 92º26’42″W)
Radius: 5 nautical miles
Altitude: From the surface up to and including 1000 feet AGL
Effective Date(s): From April 01, 2013 at 1412 UTC Until further notice
No pilots may operate an aircraft in the areas covered by this NOTAM (except as described).
AUTHORITY
ARTCC: ZME – Memphis Center
Title 14 CFR section 91.137(a)(1)

Under the heading “Airspace Definition,” the TFR is a ten nautical mile diameter circle (11.51 statute miles). Altitude restriction is from ground level up to and including 1,000 feet above ground level (AGL). The statement that no pilots may operate in the TFR “except as described,” refers to aircraft that have proper credentials and approval from the ground supervisor to enter the restricted airspace.

At the request of news media, the FAA is granting waivers for entering the TFR, provided they are credentialed, and coordinate their flights with the supervisor on the ground. That will keep congestion under control and maintain in-flight separation of aircraft, similar to that around any airport. Safety for everyone is paramount. No one wants to see a TV station aircraft have a mid-air collision with another media aircraft or helicopter full of cleanup workers.

Part of the clamor in the blogosphere has been the claim of keeping news media so far away they cannot see what is going on. No one but pilots appear to understand just how low a thousand feet is. A thousand foot clearance is just high enough to keep the helicopter operations zone clear of rubberneckers. If one wants to understand this so-called “no fly” zone’s 1,000-foot limit, go to your nearest general aviation airport and watch planes in the traffic pattern. The standard recommended pattern is 1,000 feet. A ground observer watching a plane go over at a thousand feet will swear they can count the rivets.

Any competent photographer knows that with a zoom lens, a view from even two thousand feet tells you all you need to know. Furthermore, images shot from a higher altitude give better wide shots, aiding understanding the extent of the spill. Images from too low an altitude do not give the bigger picture. If a worker has a bald spot on his head, that’s not newsworthy.

On a related note, I read several blog comments proposing sending camera-equipped radio control aircraft into the TFR to get surveillance pictures. This is a bad idea on many levels. A remote control model must not operate over 400’ altitude, stay line of sight with the operator, and not interfere with other aerial traffic. I plan a future story about scofflaws using radio control models illegally. They are jeopardizing a popular hobby.

Lest someone think I am giving Exxon-Mobil a pass, think again. The situation on the ground at Mayflower is ugly. The Faulkner County Sheriff’s Department and Exxon-Mobil Security have allegedly threatened reporters with arrest. Reporters doing interviews on private property, with permission, say they were threatened with arrest if they did not leave. Another report here. This is a developing story.