The U.S. Eighth Circuit Court of Appeals denied challenges from several air tour operators over federal flight zone regulations. The tour companies sued over a ban against commercial air tours over Mount Rushmore National Memorial and Badlands National Park.
The case is part of a quarter-century saga related to helicopter tours over some of South Dakota’s major attractions.
Badger Helicopters, Inc., Black Hills Aerial Adventures, Inc., and Rushmore Helicopters, Inc. petitioned that the Federal Aviation Administration and National Parks Service regulations be vacated because they were “arbitrary and capricious.” The federal agencies argued air tours can negatively impact visitors and wildlife. The issue has been evolving through 25 years of federal policy.
In 2000, Congress passed the National Parks Air Tour Management Act. It required
commercial vendors that operate over the National Park System and some tribal lands to obtain FAA authorization first. The FAA and National Parks Service then create air tour management plans that comply with the National Environment Policy Act.
These plans can put limitations on tours, like altitude, noise level and other restrictions, or prohibit air tours entirely based on environmental concerns.
Given the time it took to complete these plans, Congress allowed the agencies to enter into voluntary agreements instead of the air tour management plans, which often “required fewer administrative hurdles.” One tour operator declined to participate.
So, the federal agencies shifted to developing Air Tour Management plans for Mount Rushmore and the Badlands in 2023. They considered alternatives but ultimately prohibited commercial air tours within a half mile of the parks.
The NPS and FAA said the air tours negatively impact visitors, wildlife and tribal cultural experiences. In one example, the agencies pointed to the effects air tour noise could have on declining populations of bighorn sheep and peregrine falcons’ population.
The commercial air tour companies petitioned the ban was arbitrary, used outdated data and didn’t consider alternatives.
Ultimately, the Eighth Circuit Court ruled that the “agencies’ decisions were reasonable,” and the ban on commercial tour flights over Rushmore and the Badlands will hold.
