Federal authorizations, legal challenges may have complicated state’s enforcement of cease-and-desist against skydive company

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Always Investigating exclusively revealed Monday that the state had told Oahu Parachute Center, months before its deadly crash, to stop operating. So how did the plane continue to fly despite the state’s order? KHON2 found out federal versus state regulations can complicate enforcement.

If the state Department of Transportation had its way, the fatal June 21 flight would never have taken off in the first place because D.O.T. issued the company a cease-and-desist notice in April over business and aircraft registration issues, with a deadline of May 15. Making the order is one thing; enforcing it is quite another.

“The federal government issues authorization for aircraft to operate,” explains pilot Adam Townley-Wren, “and they had done that, from my understanding, at least twice that we know about for this aircraft and this operator. The state doesn’t have anything to do with it. It’s not their kuleana to tell an operator of a federally registered aircraft where and when and how they can operate.”

Always Investigating asked: So you can still use a state runway even if the D.O.T. doesn’t want you to?

“That runway is owned by the U.S. Army, that is a federally owned airport,” Townley-Wren said, “and all of our airports within the state of Hawaii receive federal funding. There are federal grant assurances that guaranty the operator of an aircraft the right to operate that aircraft from a runway.”

The state is, however, the operating landlord at Dillingham under a lease from the Army, and they manage the site including areas where flight companies house their offices and park their planes. The state collects fees like landing, parking, and rent through leases or revocable permits with terms and rules on operations.

“It is accurate that the federal government is responsible for the actual regulation of the operations, that’s not a state role,” U.S. Rep. Ed Case said, “but the state government can certainly enforce their conditions as to occupancy because almost all these operations operate off of state airports.”

What happens when an operator is at odds with the state D.O.T.?

“Clearly an operator can always contest the state’s assertion of regulation and drag it out in courts,” Case said. “I don’t know the details in this particular case, but it’s not like you can just snap your fingers one day and somebody gets kicked off the next day. You have to go through a process, and obviously that process was a real problem in this case for the state.”

Oahu Parachute Center owner George Rivera has so far declined to comment on the cease-and-desist order from the spring, and on a notice-to-vacate the D.O.T. issued yesterday. But tenants who have fought the state over similar notices explain what others have gone through.

“Absolutely he could have been challenging it,” Townley-Wren said of the cease-and-desist notice. “If the various administrators decide they don’t want you there, they just write you citations and tell you to leave and do all these other things. You can ask any general aviation operator within the state of Hawaii they have been told to leave at one point or another.”

Case wants to see more teeth for the state in its role of airport oversight and has already been in touch with the state D.O.T. after always investigating’s story on the enforcement issues.

“They’re certainly working through at the state level what particular conditions are in their conditions of occupancy, their leases, their permits,” Case said. “I think that they are certainly reviewing very hard how they can actually toughen their enforcement provisions.”

“I would strongly hope that they beef up their staffing because many of these tour operators are operating on a shoestring,” Case said. “That’s certainly the case with this particular tragic situation, and they’re cutting corners. If they’re cutting corners on their lease with the state, they’re probably cutting corners on safety with their airplanes, too.”

Case is meeting with senior FAA leadership within weeks while at the same time drafting legislation to better regulate tour helicopters, skydiving and other small aircraft that right now aren’t beholden to the rules commercial and charter operators have to follow.

“You get the feeling that anybody on the ground, anybody up in those aircraft is just playing Russian roulette with their own lives,” Case said. “I’m hoping that they’ll realize the issue and get on the same page to tighten their regulation so that we don’t have such a significant safety risk and widespread community destruction.”

Case says he’s also concerned with the labor issues Always Investigating revealed in which Oahu Parachute Center did not have filings for unemployment insurance, workers comp, prepaid health care or TDI on file with the state — all indicators they may be classifying staff as independent contractors which could jeopardize families rights to collect death benefits for the staff who died in the crash.

“I don’t want to sit here and paint every single operator with the same brush because there’s some good operators out there,” Case said. “But there are way too many that don’t fall into this category, and too many of them in my experience feel that it is simply their right to go out and fly wherever they want whenever they want, and the heck with the impact on the ground, and if passengers are at risk, heck, we’ve got to fly one more flight today to make our profit for the day.”

As for some of the details in the NTSB preliminary report released Tuesday, the last minute add-on of 2 passengers on the taxiway still did not put the plane over its headcount capacity, and Townley-Wren said it likely didn’t cause a weight and balance issue.

“Being heavier in the event of an engine failure, if that’s indeed what happened, is actually advantageous because the physics of it says things happen slower,” he explained.

The NTSB report also pointed out how planes that take off at Dillingham having to make a quick turn. Townley-Wren says it’s not a risky maneuver.

It’s the way the airfield has evolved over the years,” he said. “There are a lot of people that live right there against the water. We always try as pilots to fly neighborly. Being that there are some public areas what we try to do is make that initial left turn early, earlier than you normally would at an airport like Honolulu. There’s nothing unsafe about that in and of itself, it’s absolutely the norm.”


Editor’s Note: DOT provided these documents on July 10, after KHON2’s stories aired July 8 and 9.

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