A federal appellate court has given the National Park Service and Federal Aviation Administration until late July to explain why they are so behind in crafting air-tour management plans for many units of the National Park System.

The one-paragraph order handed down Tuesday by the U.S. Court of Appeals for the District of Columbia directs the two agencies to "(1) explain why the agencies were unaware that they were behind schedule as of their November 24, 2021 status report; (2) propose firm compliance dates for each park; and (3) provide the legal basis for any anticipated categorical exclusion and the date by which the agencies will make that determination."

The issue of air-tour management plans for the National Park System has been hanging over the NPS and FAA for more than two decades. Back in March, almost two years after a federal judge ordered the agencies to get the job done by this summer, they said the air-tour plans for eight national parks would not be completed on schedule.

When the agencies reported that situation to the court in March, Public Employees for Environmental Responsibility asked the court to suspend all overflights across those parks that haven't finished their plans by August. The parks involved are Lake Mead National Recreation Area, Canyon de Chelly National Monument, Glen Canyon National Recreation Area, Rainbow Bridge National Monument, Mount Rushmore National Memorial, Badlands National Park, Hawaiˈi Volcanoes National Park, and Haleakalā National Park.

In Tuesday's order, the court declined to limit air tours at parks that haven't finalized their air-tour plans, but left open the possibility that that issue could be revisited.

It was 20 years ago that the National Park Air Tour Management Act of 2000 was implemented and required the FAA, in coordination with the NPS, to set limits on overflight numbers, timing, and routes to protect park resources and the visitor experience from noise and disruption in any park with more than 50 overflights a year. After what some saw as intransigence, in May 2020 a federal judge ordered the Park Service and FAA to complete air-tour management plans by the end of this August for several parks. 

For more than a year, the FAA and NPS filed quarterly progress reports with the court. In their latest filing, in late February, the agencies said they would be unable to complete plans for the eight parks with some of the highest levels of air traffic within that deadline. At the time, the agencies said that:

• Lake Mead and Canyon de Chelly would take at least another year;
• Glen Canyon and Rainbow Bridge would take at least another 18 months; and
• Mount Rushmore, Badlands, Hawaiˈi Volcanoes, and Haleakalā national parks would take at least an additional year but “have the potential to delay completion” even longer.

In explaining the delays, the two agencies cited participation by tribal governments (Canyon de Chelly, Glen Canyon, Rainbow Bridge, Mount Rushmore, Badlands), commercial jet traffic and flights to Grand Canyon National Park that are exempt from the 2000 act (Lake Mead), and the high number of current air tours and stakeholders (Hawai'i Volcanoes, Haleakalā).

PEER, which also has taken issue with the agencies' decision to forgo environmental reviews under the National Environmental Policy Act, said the NPS and FAA have dragged on the work too long. 

“The basis of our lawsuit was unreasonable delay in adopting air tour management plans and the court is signaling that it will not tolerate further unreasonable delays,” said PEER General Counsel Paula Dinerstein, noting the agencies have no plausible “legal basis” for avoiding NEPA review.  “The whole point of the management plans is to ensure that overflights are not too noisy and disruptive, which requires the type of analysis these agencies continue to avoid.”

According to PEER, the agencies are claiming "categorical exclusions" -- claims that air tours won't have a significant impact on either the visitor experience or natural and cultural resources of a park -- for deciding not to follow the entire NEPA process in crafting air tour plans for 15 parks. This, said PEER, despite receiving more than 21,000 public comments for those parks' plans. Instead of doing noise surveys or any environmental analysis, PEER said the agencies will simply grandfather in, on a permanent basis, the current air traffic levels previously accepted without any review on an “interim” basis in the following park units:

• Glacier National Park
• Death Valley National Park
• Golden Gate National Recreation Area
• Muir Woods National Monument
• Point Reyes National Seashore
• Olympic National Park
• Everglades National Park
• Mount Rainier National Park
• Arches National Park
• Canyonlands National Park
• Natural Bridges National Monument
• Bryce Canyon National Park
• Bandelier National Monument
• Great Smoky Mountains National Park
• San Francisco Maritime National Historical Park

What the court's order didn't indicate was what would happen if the FAA and NPS fail to meet the August 31 deadline. 

“Our aim is to curb abuse, we are not trying to ground all overflights in every park,” said Dinerstein, pointing to a park like Hawai’i Volcanoes that suffers a noisy helicopter tour every 8 minutes from dawn to dusk.  “Overcoming the entrenched recalcitrance of these two agencies may require a swift legal kick in the rear, however.”