[cashflyer]

Facilities such as the Robinson plant are addressed in an FDC notam issued following 9/11: “In the interest of national security and to the extent practicable, pilots are strongly advised to avoid the airspace above, or in proximity to such sites as power plants … . Pilots should not circle as to loiter in the vicinity over these types of facilities.” Because gliders routinely circle to gain altitude in thermals, the Soaring Society of America sought a clarification from the FAA, posting on its website on March 7, 2002, that the FAA did not consider this behavior loitering. “The key is to spend only as much time as needed to gain lift and move on beyond the facility,” the association wrote.

Fleming had made a single pass over the plant, and his circling had been mostly on the opposite side of the lake. The FAA looked into the overflight and later confirmed to AOPA that it found no violation of the federal aviation regulations—but Fleming was transported to the Darlington County Detention Center. The Federal Bureau of Investigation and Department of Homeland Security would interview him the next day, and Fleming said an officer read the arrest warrant to him around 3:30 p.m. July 27.


It’s unclear exactly how the concept of a no-fly zone was introduced, and a spokesman for the Darlington County Sheriff’s Office did not return phone messages requesting comment. Charles Ellison, site communications specialist at the nuclear plant, said that as he understands it, there is no no-fly zone around the facility. He said security staff had estimated that the glider flew about 400 feet above the plant, and so they contacted local law enforcement. “Any time an aircraft is flying that close, we consider it a perceived threat to security.”

Fleming said he understands the nuclear site’s initial concern, but thinks the ordeal could have stopped right there when security personnel who came to question him at the airport saw him in the police car and it became evident he wasn’t a threat. Ellison said it’s the plant’s policy to turn the matter over to local law enforcement. “Once we’ve neutralized the threat, we step back and we remove ourselves from the issue,” Ellison said.

How close was Fleming to the plant? His flight recorder, which logged his position every four seconds, gave the glider’s altitude when it passed over the site as 1,518 feet msl; the highest charted obstruction there is 577 feet msl. The incident report cited security staff as estimating it “within only a few hundred yards of critical structures.” Griffin said she heard security people saying Fleming had flown 100 feet over the dome.

“That just wasn’t true,” she said. “There’s just no way he ever did that.”


Freedom to fly

Fleming estimated he had been awake for almost 30 hours when he entered a room where a special agent from the FBI, an aviation security inspector from DHS, and a woman whose affiliation he can’t remember waited to question him July 27. He recalled that someone told him there was no intention to charge him with any federal offenses related to the incident, and that he was asked to explain the intent of his flight. He explained how he navigated by VFR charts, and that no restrictions were charted or published by notam in the area of the plant.
About 5:30 p.m., Fleming collected his pilot certificate and other belongings. Pilots from Bermuda High met him at the detention center and drove him to Hartsville to retrieve his glider.

The attorney Frank Reid had found represented Fleming for the breach of peace charge, but Fleming sought additional assistance from an attorney familiar with aviation through AOPA’s Legal Services Plan/Pilot Protection Services. John Hodge, an attorney and 17,000-hour pilot who has flown gliders, provided aviation-related information under the plan’s 20 hours allotted for local law enforcement issues. From the FAA’s perspective, Fleming’s flight was legal and legitimate: No restricted or prohibited areas were charted. Plus, local law enforcement does not have the authority to order an aircraft to land, Hodge said. And any argument that Fleming delayed in complying with the request to land must take into account the nature of a sailplane: Just like a sailboat, it can’t simply go directly from Point A to Point B.

A better knowledge of aviation issues among law enforcement officials may have produced a better result for Fleming. Griffin said she had to tell the officers on the scene to clear out the runway, and one officer talked about commandeering the airport. “He was running around, the one guy that was commandeering everything, saying, ‘We were going to shoot him down,’” she said.

On the other hand, Griffin said that pilots from the Chesterfield County Sheriff flew the department’s helicopter to the airport, but left when they found out what was going on. “They pulled out a chart and they said, ‘Look here, … nothing in this chart says you cannot fly over the nuclear plant,’” she said. “’Nothing.’”

Protecting pilots

Fleming waited outside the courtroom Aug. 21 as his case went before the judge. When his attorney returned and said the case would be dismissed if he agreed not to take any legal action against Darlington County law enforcement, he said, he reluctantly agreed. But he wouldn’t be satisfied until he could be sure a pilot can rely on the sectional for direction and not go through a similar ordeal.

In a post-9/11 environment, pilots must be sensitive to security concerns, but that doesn’t mean they must give up their freedom to fly. In its communication to members about the rules for flying near power plants and other infrastructure, the Soaring Society of America called on glider pilots to reach out to on-site security at local power plants and laboratories: “Open a dialogue and tell them who you are and when you may be in their area.” In addition, airports often encourage pilots to “fly friendly” in sensitive areas; the Hartsville airport has a right traffic pattern for Runway 3, keeping pilots on the far side of the airport as much as possible and minimizing overflight of the nuclear plant. But no law prohibits pilots from flying over it, and AOPA is working to ensure that law enforcement agencies and security at critical infrastructure understand how to respond appropriately when they have a concern about an aircraft.

AOPA routinely works with federal agencies on security issues, and the association reached out to staff at the TSA and National Protection and Programs Directorate to inform them of the issue. The association requested action formally in a letter to DHS, the organizations’ parent agency.

“This incident raises several disturbing issues that demand the immediate attention of the Department of Homeland Security to prevent unnecessarily detaining United States Citizens, or even worse, needlessly causing injuries or fatalities that would have resulted from a ‘shoot down’ of the aircraft,” wrote AOPA Senior Vice President Melissa Rudinger in the letter. She urged the department to “immediately conduct a thorough review of all security programs for similar types of facilities to ensure that it is clear on what constitutes a violation and what is the appropriate action to be taken.” She also requested that DHS make it clear that no one may shoot down an aircraft outside of the existing command structure.

The TSA responded in a letter that it takes these matters seriously—“Both in context of aircraft loitering in airspace around critical infrastructure as well as appropriateness of responses by various organizations at the Federal, State, and Local levels.” The agency said it would continue to work with organizations at all levels “by providing them with education on airspace matters via the local TSA Federal Security Directors and headquarters engagement. This will allow them to make informed and effective decisions on when and how best to execute a response based on their specific statutory and/or legal authorities.” AOPA continues to press the agency, along with the National Protection and Programs Directorate which deals with infrastructure protection, to explain what these education efforts entail; the association also has offered to assist in developing guidance and resources on general aviation-related issues.

AOPA General Counsel Ken Mead emphasized the importance of continued advocacy, explaining that it is “outrageous under these circumstances to be confined in jail without charges being filed for this length of time." He added, "We should be persistent in demanding corrective action as well as better educational efforts of law enforcement authorities. Although the breach of peace arrest warrant that was ultimately filed refers to a ‘No Fly Zone’ neither the federal nor local authorities could cite a federal violation because this was not a ‘No Fly Zone.’”