July 19, 2021
Dear Hawaii Air Noise and Safety Task Force Members,
Would you please address the following issues concerning aviation noise in all of Hawaii at your July 20, 2021 meeting?
The most important thing is to note that the last legislature passed House Concurrent Resolution 81 asking many of the participants of this meeting to work together to find solutions to the well-documented air tour nuisance problem. I certainly hope that the members of this task force recognize the urgency and intensity of this problem and take this resolution to heart.
Other recent legislation concerning the air tour nuisance problem included Senate Bill 1403, which would have required helicopter owners and operators retain and make available records containing basic flight information. Although this bill sailed through committee meetings, beyond the last minute Department of Transportation Director Jade Butay submitted testimony stating that this bill would be a violation of Federal Grant Assurances No. 22. However, I have been unable to find any information in this document that backs up that statement. What specific section was Director Butay referring to?
Concerning the same bill, Attorney General Claire Connors sent in late testimony discouraging legislators from passing this bill because of the possibility it would be subject to a legal challenge. While that is true of all bills, this testimony cited Skysign International Inc. v. Honolulu, 276 F.3d (9th Cir. 2007) when stating “that when it comes to the regulation of airspace there is a ‘history of significant federal presence.'” However, this case was decided in favor of the City and County of Honolulu, which does, indeed, have the right to restrict some types of aviation activities. In fact — as the Attorney General was made aware of months before this testimony was submitted — the First District U.S. Court of Appeals ruled unanimously in City of Naples Airport Authority v. F.A.A., 409 F.3d 431 (1st Cir. 2005) that local municipalities do, indeed, have a right to control aviation nuisance in their airspace. The Attorney General’s testimony concludes that this bill would be subject to a preemptive challenge. While this is certainly correct, why is that a concern since the challenge would be summarily dismissed? Is it moral and ethical for the Attorney General to provide such misleading testimony to our legislators when it was too late to be rebutted?
Also at the state government level, there have been very workable proposals for amending the Hawaii Administrative Rules delivered to Directors of both the Department of Transportation and Department of Health describing simple alterations to the existing rules governing aircraft that could easily be enacted. Why have these proposals been ignored? Would the members of this committee be willing to assist in getting these logical solutions to this huge problem underway?
Although it has been over twenty years since the United States Congress ordered the creation of an Air Tour Management Program for Hawai`i Volcanoes National Park, it took a First Circuit Court of Appeals order to get our rangers to act. The court-ordered schedule requires public hearings on draft ATMP Environmental Impacts Statements for some parks be held by August 31, 2021. Will HVNP, which has always been considered the flagship of the ATMP program, be one of these? If not, when will we get to see what is being proposed for the future of our island? Also — as has been pointed out many times before — since HVNP is collecting fees from pilots utilizing park airspace, it is also responsible for all the pollution this activity produces [40 C.F.R. Section 1508.8]. Will the newest version of the HVNP ATMP address the massive damage the indirect effects of your program does to our island’s environment and the lives of the people whose ancestors have lived here since long before the park was established?
Lastly, I was very surprised by the comments made by Hawaii Helicopter Association representative Mr. Casey Riemer at the April 20, 2021 meeting of HANSTF: “And to only single out aviation noise, …. I have a little bit of difficulty with that because there’s other noises, other sounds in (Mr. Ernst’s) area that are as loud or louder, but I don’t know if anybody’s worried about those noises and why is aviation the only thing being singled out?” There are currently local laws and regulations that place audio limitations on heavy equipment, all vehicles, industrial activity, bars, arenas, boom boxes, police sirens, fireworks, barking dogs, and roosters. Hawaii Island actually has a county ordinance still on the books that restricts the noise made by dancehalls! Do other pilots also feel they are being singled out for persecution?