08/2G/201 1 15:1 2 FAX 2024935142 KAft ^ DWS @|001/015 

^.1:'-^' 

- :•-;; f:^-, : Served August 18, 201 \ 

, .. U.S. DEPARTMENT OF TRANSPORTATION 

• 1^ OFFICE OF HEARINGS 

WASHINGTON. D.C. 

IN THE MAITER OF 

Rushmorc Helkopters* Inc. 

FAA DOCKET NO- CP10GL0002 

(Civil Penalty Action) 

DMS No. FAA-201(MM)23 

Rnshmore Helicoptere, Inc>*3 Brief on Issue of Law and Cloging Argumftnt 

Rushmore HelicoptCTs, Inc.» RcspoDdcnt,pro se, hereby submits this Brief on Issue of 

Law and Closing Argument for the hearing held on April 27, 2011, before Administrative Law 

Judge Richard Goodwin of the Department of Transportation in Rapid City, South Dakota. For 

the following reasons, Rushmorc Helicopters, Inc. respectfully requests an Initial Decision 

finding no violation of 14 CF.R. 91.7(a) and 14 C.F.R 91.13(a), or in the alternative, a 

significant reduction in the proposed civil penalty of $25,000. 

Pertinent Facts Of This Case 

It is undisputed that on August 6,2009, commercial pilot Robert Leroy Leffert ("Pilot 

Leffert'') discovered that the fuel cap on the Bell 206 helicopter that he was in command of and 

had operated that day had a missing fuel cap. Complaint; Answer. At his ovm initiative. Pilot 

Leffert placed duct tape over the fuel filler port and flew the helicopter from Keystone, South 

Dakota to a heliport near Custer, South Dakota, which is approximately a 10-mile trip. 

Complaint; Answer. 
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In the morning of the foUowuig day, August 7, 2009, as the pilot-in-command of the 

helicopter at issue. Pilot Leffert made the decision that the helicopter^ with duct tape temporarily 

over the fuel filler port, was airworthy in that slate based on infonnation from the manufacturer 

that the fuel cap was not a structural component of the helicopter and based on the low fuel 

levels maintained. HT, pp. 73-74. After making the determination that the helicopter was 

airworthy. Pilot Leffert proceeded to operate the helicopter. HT, pg.74. 

A. No Section 91.7(a) Violation 

Following the above described events, the FAA initiated an enforcement action against 

Pilot Lee Leffert's Commercial Fixed Wing, Single Engine Helicopter Certificate alleging 

violation of 14 C.F.R. 91.7(a) for operating an aircraft in an allegedly un-airworthy condition. 

HT, pg. 76. (It is believed that the FAA also had originally charged him with operating an 

aircraft in a careless manner (14 C.F.R 9L13(a)) but then later dropped the careless manner 

violation.) Pilot Leffert was originally given a 90 day license suspension which was reduced to 

30 days and then subsequently waived in exchange for submitting a report concerning the 

incident to the Aviation Safety Reporting Program prior to the penalty being imposed. 

1. Section 91.7(a) Violation is Not Applicable to Rushmorc Helicopters, Inc. 

The FAA is now also alleging Rushmore Helicopters, Inc. violated those same sections as 

they alleged against Pilot Leffert. They allege Rushmore Helicopters, Inc. violated 14 C.F.R. 

91.7(a) due to Pilot Leffert's above-described actions. Complaint. However, 14 C.F.R. 91.7(a) is 

not applicable to Rushmore Helicopters, Inc. 

Section 91.7(a) states in full: "No person may operate a civil aircraft unless it is in an 

airworthy condition." 

14 C.F.R. 91.7(a) {emphasis added). 
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Rushmore Helicopters, Inc. could not "operate" the helicopter at issue. According to 

Merriam Webster's Collegiate Dictionary, the term "operate", when used as a transitive verb, 

means "to cause to function: work." See Merriam Webster's Collegiate Dictionary, at 813 (10* 

cd. 2001). Black's Law Dictionary echoes this definition, defining ^'operational" as engaged in 

operation; able to function." See Black's Law Dictionary, at 1119 (7* ed. 1999). Pilot leffert 

caused the helicopter to fimction; therefore, it was Pilot Leffert, not Rushmore Helicopter, Inc. 

who operated the helicopter in an allegedly unairworthy condition in violation of Section 91.7(a). 

In sum, using the plain meaning of the language Ln the .<rtatute, Rushmore Helicopter, Inc. did not 

violate Section 9L7(a) because it did not "operate^' a civil aircraft in an imairworthy condition. 

Further, when Section 91.7(a) is read in conjunction with Section 9L7(b) and Section 

91-3, it is clear that the responsibility for making the decision as to whether an aircraft is 

airworthy lies with the pilot in command. Section 91.7(b) provides in full: 

The pilot in command of a civil aircraft is responsible for determining whether 

that aircraft is in condition for safe flight. The pilot in command shall discontinue 

the flight when unairworthy mechanical, electrical, or structural conditions occur. 

14 C.F.R. 91(b). Section 91.3 provides in fiiU: 

The pilot in command of an aircraft is directly responsible for, and is the final 

authority as to, the operation of that aircraft. 

Id. (Emphasis added.) 

Pilot Leffert was the pilot in command of the helicopter. It was Pilot Leffert and only 

Pilot Leffert who could "operate" the aircraft imder the clear reading of these provisions and not 

Rushmore Helicopters, Inc. It was Pilot Leffert who had the legal responsibility of determining 

the airworthiness of the helicopter and allegedly made an incorrect determination that the 

helicopter was airworthy and safe for flight, and therefore, it could only have been Pilot Leffert 
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who would be able to then operate any allegedly unairworthly helicopter. HT, pp. 73-74. As Pilot 

Leffert testified on cross examination: 

Q: At any time that you' ve been employed by Black Hills Aerial Adventures or 

Rushmore Helicopters, have you ever been ordered to fly an aircraft against your 

will, for threat of termination or any other threat? 

A 

Q 

A 

Q 

T have not. 

Have you always been allowed the latitude to ~ flying aircraft? 

Yes, T have. 

Are you familiar ~ or, I'm sorry, do you recall a telephone conversation that 

we discussed on the morning of August 7thv prior to you departing Black Hills 

Aerial Adventures? 

A: No, I was rK>t privy to a conversation. It was just a conversation about a 

conversation. 

Q: During which we discussed the conversation that we had had with the Bell 

Helicopter tech representative that morning? 

A Yes. 

Q; Do you recall any of the details that were expressed to you regarding this 

conversation? 

A: The basic gist of the conversation was that the Bell tech had been contacted, 

and the fuel cap was not considered to be a structural component of the helicopter, 

and though not reconunended, based upon the fuel loads that we were doing, and 

the new fuel cap being ordered, that though not recommended it was not a 

violation of regulations that I flew without a fuel cap. And, based upon that 

information that 1 had at the time, and conversing with some of the other pilots 

informally that were in the bay, we decided that putting duct tape over the port 

was not considered to be a safety hazard or a non-airworthy condition, and I flew. 

HT, pp. 81-82. 

2, The FAA Failed to Meets its Burden in Proving the Helicopter at Issue was Not 

Airworthy. 

Even if there could be any finding that Rushmore Helicopters, Inc. could be the person 

who "operated'* the aircraft, it must still be properly proven that it was not airworthy and that did 

not happen. 

The definition of "airworthy" is based on Section 603(c) of the Federal Aviation Act of 

1958 and imposes a two-prong requirement: 1) that the aircraft conforms to the type design 

approved under its type certificate, and 2) that it is in condition for safe operation. Copsey v. 
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National Transp. Safety Bd, 993 F.2d 736, 738 n.l (10th Cir. 1993). The burden of proof by a 

preponderance of the evidence rests with the FAA. Administrator v. Foster, 2004 WL 1795341, 

5 (June 29, 2004). The FAA must therefore show that the two-prong test could not be met and it 

failed to meet this burden. 

First, the *1ypc design" for the helicopter at issue was not introduced into evidence. 

Further, there was no evidence introduced to show that the experts called by the FAA had 

reviewed the type design for this particular helicopter to determine if the fuel c ^ was part of the 

type design. Rushmore Helicopters, Inc. established that ii had consulted with Daniel Bias, a 

design engineer at Bell Tech, who stated the fuel cap was not considered a structural component 

of the helicopter. HT. pg. 82. This was not countered but more importantly, the FAA's feilure to 

establish whether the fuel cap was part of the type design means that it simply cannot then prove 

a fiailurc to meet the two-prong requirement. 

Even if the first prong had been established by the FAA, it still failed to prove the second 

prong. On the contrary, the evidence showed that the helicopter was indeed airworthy. Pilot 

Leffert, a pilot with extensive experience graduating firom military flight school in 1968, serving 

as a combat pilot in Vietnam, and thereafter serving in the National Guard for over 20 years as a 

medical evacuation pilot and an instructor pilot, determined the helicopter was in a condition 

safe for operation. HT, pp. 80-81. He testified on cross-examination: 

Q: Would you ever consider operating an aircraft, especially a hehcopter, if you 

felt it was unsafe or unairworthy? 

A: I would not. That was one of the things that, especially being in the medical 

evacuation, safety was drilled into our heads. 

Id. 

In addition, on August 7, 2010, the FAA inspectors (Gary F. Kwasniewski and 

Barry Dunmire) were aware the complaint received was for a red helicopter. The 
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Company only had one red helicopter. The inspectors approached Pilot Leffert minutes 

before he piloted a passenger-carrying flight in that red helicopter at issue. HT, pgs. 19 -

24. Pilot Leffert was not stopped by the inspectors even after the helicopter was 

repositioned and inspectors reali2ed» even while passengers were still boarding, that it 

was the helicopter at issue, HT, pg. 25. The inspectors^ despite seeing this red helicopter, 

still allowed Pilot Leffert to proceed with the passenger-carrying flight without directly 

asking whether the helicopter he was piloting had duct lape over the fiiel filler port. HT, 

pgs. 19 - 24. They also did not ask him if this was in fact the helicopter they received the 

complaint about but that is understandable as it would have been the only one there. The 

inspectors' absolute lack of concern about the fact that Pilot Leffert was about to take off, 

their lack of concern about stopping him, theii lack of concern about whether duct tape 

existed or not and their obvious permission for him to take off all lead to a reasonable 

inference that the inspectors did not believe the situation warranted an immediate 

determination and that they felt the flight was safe to continue. 

The facts of this case therefore clearly distinguish this situation from those contained in 

the oases cited by the FAA in support of its argument that the helicopter was un-airworthy. In 

the Matter of American West Airlines,'? Ah Ordtr^io.^-^, 13 (Feb. 13, 1996), involved an 

aircraft that was damaged, i.e. there was an actual delamination or hole in the aircraft. Id. The 

hole was repaired using speed tape which was not in compliance with the Structural Repair 

Manual. Id. There was no damage to the Rushmore Helicopters, Inc. aircraft. Rushmore 

HeUcopters, Inc. was not attempting to cover a hole in the helicopter that was made after the 

manufacturing of the aircraft. The second case cited by the FAA» Administrator v, Foster, 2004 

WL 1795341 (June 29, 2004), unlike the case at hand, involved multiple deliberate violations 
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and an extensive modification including modification of the left wing, a hole punched through 

the fuselage of the aircraft, and some sort of tubing running up to the vcm system, unshielded 

wiring, modification to the fuel capacity, and placement of the fuel tank in the passenger 

compartment, no flight plan and no authority to penetrate the aid-ez, and the aircraft was flown at 

night without lights or a transponder or radio. Id. at 3-4. 

The cases cited by the FAA simply do not apply to the facts in this case. The facts of this 

case support Pilot Leffert's determination. He was and remains a highly qualified pilot with 

extensive experience and certainly qualified to determine airworthiness under this situation given 

the facts he was presented. 

In short, 91.7(a) does not ^ply to Rushmore Helicopters^ Inc. Even if it did, the FAA 

failed to meet its burden of pn>ving that the aircraft did not conform to the type design approved 

under its type certificate. Even if it did, it also failed to prove that the aircraft was not airworthy. 

Therefore, there was no showing of a violation of 91 -7(a) by Rushmorc Helicopters, Inc. 

B. No Section 91.13(a) Violation 

The FAA has failed to meet its burden of proving by a preponderance of the evidence that 

Rushmore Helicopters, Inc., violated 14 C.F.R. 91.13(a). Section 91.13(a) provides in full: 

No person may operate an aircraft in a careless or reckless manner so as to 

endanger the life or property of another. 

Id. 

Pursuant to FAA Order 2150.3B, if a person operates an aircraft that violates another 

FAA regulation other than Section 91.13 (a), the elements of careless and reckless found in 

Section 91.13(a) are deemed automatically satisfied, and Section 91.13(a) will be deemed 

violated if the misconduct actually or potentially endangers the lives or property of others. Id. If 
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the operator of an aircraft has not violated another FAA regulation, the FAA must prove the 

operator's actions were careless and reckless in order to show Section 91.13(a) was violated. Id. 

FAA Order 2150.3B defines '^carelessness*' as "conduct that falls below the standard of care or 

prudence expected of a reasonable person, or holder of the relevant certificate, acting under the 

same or similar circumstances,*" and defines "recklessness" as "conduct that demonstrates a 

gross, or even callous or flagrant, disregard for safety." Id. 

The FAA has alleged Section 91.13(a) was technically violated by Rushmore 

Helicopters, Inc. because the elements of reckless and careless are salisfled due to an alleged 

violation of Section 91.7(a), and because its actions potentially endangered the lives or property 

of another. FAA Closing Argument, pg. 10. The FAA fiirther alleges that even without the 

violation of 91.7(a), Rushmore Helicopters, Inc. independently violated Section 91.13(a) because 

its actions were "not safe." Id. 

As stated in Section A of this Brief, Section 91,7(a) is not applicable to Rushmore 

Helicopters, Inc. because it was not the "operator" of the helicopter. Further that even if it could 

have been regarded as the operator, there was still no violation for the reasons explained above. 

Thus it is clear that ihe FAA must prove Rushmore Helicopters, Inc.'s actions were careless or 

reckless (not merely that its actions were "not safe") in order to show an independent violation of 

Section 91.13 (a). The FAA has failed to meet this burden. 

First, the FAA failed to allege the actions of Rushmore Helicopters, Inc. were "careless 

or reckless."* Second, the FAA did not introduce any evidence at the hearing to .^how Rushmore 

Helicopters, Inc's actions were "careless or reckless." No evidence was presented at the hearing 

regarding the standard of care of a reasonable person or the prudence expected of a reasonable 

person acting under similar circumstances, or that Rushmore Helicopters, Inc. fell below that 
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Standard. Nor was any evidence presented to show that the actions of Rushmore Helicopters, Inc, 

were a gross, callous or flagrant disregard for safety. On the contrary, evidence was presented 

that Rushmore Helicopters contracted with pilots with extensive experience who relied on that 

experience and the opinion of Daniel Bias, a design engineer at Bell Tech, when the pilot in 

command, the person legally responsible for doing so, determined whether the helicopter was 

airworthy. HT. pg. 80-82. Lastly, as stated in Section A of this Brief, Rushmore Helicopters did 

not "operate" the aircraft as required for a violation of Sections 91.7(a) and 91.13(a) and 

therefore, could not be in violation of either section. 

C- The FFA' S Proposed Sanction is Not Appropriate. 

As shown above, Rushmore Hehcopters, Inc. has not violated either Sections 91.7(a) or 

91.13(a). and therefore, no monetary sanction is appropriate. However, if a finding is made that it 

did violate either of such sections, various factors must be considered when determining the 

appropriate monetary sanction. For instance, when calculating the amount of sanction based on 

Section 91.13(a), a distinction is drawn between instances where Section 91.13 is an independent 

violation ftnd those where it is residual to another violation. When a 14 CF.R. § 91 13 violation 

is residual only, a higher sanction generally is not warranted unless the conduct is also reckless. 

FAA Order 2150.3B. Whether the violation was deliberate is also considered. Id. A nondeliberate act lacks the deliberation found in intentional misconduct. Id. 

In the case at hand, the FAA is seeking a civil penalty of $2,500 for each of the alleged 

ten passenger-canying flights and therefore seeks S25,000. However, the FAA has not met its 

burden of proving that ID passenger-carrying flights took place on August 7, 2009. As evidence 

of the passenger-carrying flights, the FAA introduced a flight log. HT, pp. 35-36; Agency 

Exhibit 4. However, the flight log introduced by the FAA is dated August 6, 2009, not August 7, 

2009. HT. pp 36-37. The FAA contends the flight log was incortectly dated and was for August 
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7, 2009. The log was given to the inspector by Rushmore Helicopters, Inc. employee Ms. Weller. 

HT, pg. 37. However, the FAA did not call Ms. Weller as a witness to establish that the log was 

in fact incorrectiy dated in order to prove chat it was the log for August 7, 2009. Nor did the FAA 

question the President of Rushmore Helicopters, Inc., Michael Jacob, about whether the log was 

for August 7,2011. The only evidence presented by the FAA in regard to the flight log being 

incorrectly dated was hearsay testimony from a FAA investigator stating what Ms. Weller told 

him about the log having an incorrect date. Notably, Pilot Leffert testified on direct examination 

that he did not recall piloting 10 passenger-carrying flights on August 7,2009. 

Q: Do you know how many flights you took on August 7th of '09 with duct tape 

over the fiiel port? 

A: According to the records, there was about ten flights. I don't remember doing 

that many, but that was, apparently, the case. 

HT, pp. 76-77. The only admitable proof entered into evidence in regard to the number of 

passenger-carrying flights on August 7, 2009, was the one flight witnessed by the 

inspectors. Thus, if there is indeed a finding of a violation, then this should be the only 

evidence considered in detenniaing the number of flights and in considering whether any 

penalty at all should be imposed, even if a violation could be found as against Rushmore 

Helicopters, Inc., it is critical to consider, in trying to determine the level to which 

conduct may be viewed as intentional or reckless, that the inspectors, despite seeing this 

red helicopter, still allowed Pilot Leffert to proceed with the passenger-carrying flight 

and showed a clear lack of concern about whether duct tape ewsted or not and their 

obvious permission for him to take off with passengers. This certainly allows one to 

reasonably conclude that the inspectors did not believe the situation warranted any 

10 
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immediacy and shows no intentional misconduct or recklessness on the part of Rushmore 

Helicopters, Inc. Therefore, no penalty should be imposed, 

CONCLUSION 

In this case, no penalty is appropriate because 14 C.F.R. 91.7(a) and 14 C.F.R. 

91.13(a) were not violated by Rushmore Helicopters, Inc. since it did not operate the 

helicopter and no evidence was presented to show that any actions taken were reckless 

and careless. 

Further, the FAA has failed to meet its burden of proving that the helicopter at 

issue was imairworthy. To prove an aircraft is unairworthy, the FAA must show the 

helicopter did not conform to its specific type design. However, the type design for the 

helicopter was not introduced into evidence by the FAA, nor did the FAA's witnesses 

review the specific type design of the helicopter when determining whether the helicopter 

was airworthy. On the contrary. Pilot Leffert made the determination the helicopter was 

in a condition for safe operation based on his extensive experience and the Bell Tech 

engineer opinion and this was not refuted by the evidence from the FAA. 

Even in the event the above sections or either of them were to be deemed violated, 

the proposed civil penalty is not appropriate because the evidence presented by the FAA 

proves only one passenger-carrying trip and not ten passenger-carrying trips as alleged. 

Further, the proposed $2,500 for this one passenger-canying trip should be reduced due 

to the action by Pilot Leffert not being in deliberate violation of the C.F.R., and due to the 

fact that Rushmore Helicopters, Inc. reasonably relied on the opinions of Pilot leffert and 

Bell Tech design engineer Daniel Bias. 

11 
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For the above stated reasons, Rushmore Helicopters, Inc. res-pectfuUy requests the 

Administrative Law Judge issue an Initial Decision finding no violation of 14 C.F.R. 

91.7(a) and 14 C.F.R. 91.13(a), and in the event there may be such a finding, then a 

significant reduction in the proposed civil penalty (nominal only ) would clearly be 

warranted in this case. 

Dated this , 

RespcctfiiUiJ'^utpnitted, 

IS case. 

lis l o day oir^^yS r , 2011. 

Mich^en«ob, President 

Rushmore Helicopters, Inc 

24564 Highway 16/385 

Custer, SD 57730 

605-673-2163 (office) 

605-673-2163 (fax) 

micheaIjj@goldenwest.net 

CERTIFICATE OF SERVICE 

I hereby certify that I have, this date, served the forgoing Respondent's Brief on Issue of 

Law and Closing Argument by mailing copies to the following addresses as follows: 

Original and One Copy (Facsimile and Regular Mail) 

Federal Aviation Administration 

800 Independence Avenue, S,W. 

Washington, SD 20591 

Attention: Hearing Docket Clerk, AGC'430 

WUbcr Wright Building, Suite 2W1000 

Fax: 202^93-5141 

One Copy 

Briana Martino 

Attorney, Federal Aviation Administration 

Office of the Regional Counsel 

Great Lakes Region 

2300 East Devon Avenue 

DesPlaines,IL 60018 

(Regular and Certified Mail) 

12 
08/26/2011 15:14 FAX 2024935142 FAA + DMS 01013/015 

The Honorable Richard C. Goodwin (Facsimile and Regular Mail) 

Administrative Law Judge 

Office of Hearing, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

RoomE12-320 

Washington, DC 20590 

FAX: 202-366-7536 

Dated this lo * day oi JTUC^^TT, 2011. 

Michel Jape^, President 

Rushmore Helicopters, Inc 

24564 Highway 16/385 

Custer, SD 57730 

13 
08/2G/20n 15:14 FAX 2024935142 FAA + DMS 014/015 

Served August 18, 2011 

V S . DEPARTMENT OF TRANSPORTATION 

OFnCE OF HEARINGS 

WASHINGTON, D*c. 

INTHEMATIBROF 

Rnftkmort Helicopfert, Inc. 

FAA DOCKET NO. CP10GL0002 

(Crril Vtmskty Action) 

DMS No. FAA-201O-0023 

RiMli^^ptH*JicoBttrg. Inc's Brief on la—e of Law and Clo«taf Ar|pMm<«t 

Rushmore Helicf^Aets, Inc., Respondent^^o ^e,. hcRihy svteuts this Brief on Issue of 

Low and Closing Ar;gtunent for the bearing held oa April 27,201U before Administrative Law 

Judge Richard Goodwin of the Deparoment of Transportation in Rapid City, South Dakota. For 

the following reasons, Rtishntorc Hdicopceis, Inc. leqtcctfiiUy requests an InitiBl Decision 

fmdnig no violation of 14 C J.R. 9L7(a) and 14 CF.R 91.13(a), ot in ftie alternative^ a 

Ki^ificani reduction in the nroDoscd civil penalty of $25,000. 

08/18/201 1 12:0 5 6056732163 BHAA P.00 1 

* » * ERROR T I REPORT »** 

JOB NO. 

0266 

MODE 

TI G3 

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001 

DESTINATION TEL/ID 

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STAkT TIME 

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PAGE 

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RKSULT 

NO ANSWER 00 00 

D OTT: Air ^-fe^Sk^ ^ ^ P< ^ 

L^t:>SHcC'^ ^ A/ 
08/2G/2011 15:14 FAK 2024935142 FAA •^ DMS 121015/015 

Served August 18, ^011 

VS. DH^ARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

Rashioore Hellcopten, Ine. 

FAA DOCKET NO. CP10GLOOO(2 

(Ovfl PeaaUy Action) 

DMS No. FAA-2010-0023 

Rnakmapa HdHcopteK, IBC.*« Brief ott Jssmt of Law and flft«ftff A^y^y^^t 

Rushmore Helicopters, Inc., Respondent,/in> se, hereby submits this Brief on Issue of 

Law and Closing Argument for the hearing held on April 27» 2011, before Administratrve Law 

Jijd$c Richard Goodwin of the Depaitment of Tiansportation in R^ d City, South Dakota, For 

the following reasons, Rushmoie Helicopteis, Inc. req»ectfUUy requests an Initial Decisioa 

finding no violaiion of 14 C J.R, 91.7(a) and 14 CF.R 91.13(a). or in the altemativc, a 

frienificant reduction in the 

08/18/201 1 11:5 9 8056732163 

wooosed civil penalty of S25.000. 

BHAA P.00 1 

*«« ERROR TX REPORT **» 

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JOB NO. 

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NO. 

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RESULT 

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