2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-5-2002

Ickes v. FAA

Precedential or Non-Precedential: Precedential

Docket No. 01-2897

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Recommended Citation

"Ickes v. FAA" (2002). 2002 Decisions. Paper 475.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/475
PRECEDENTIAL 

 Filed August 5, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 01-2897 

DON R. ICKES, 

 Petitioner 

v. 

FEDERAL AVIATION ADMINISTRATION, 

 Respondent 

On Petition for Review From the 

Federal Aviation Administration 

(Admin. No. 01-030026) 

Submitted Under Third Circuit LAR 34.1(a) 

May 7, 2002 

Before: SLOVITER, AMBRO and ROSENN, Circuit Ju dges 

(Filed August 5, 2002) 

OPINION OF THE COURT 

PER CURIAM. 

The petitioner, Don R. Ickes ("Ickes"), seeks review of an 

Emergency Cease and Desist Order (the "Emergency Order") 

issued by the respondent, the Federal Aviation 

Administration (the "FAA"). The FAA issued the Emergency 

Order to bring Ickes and his aircraft into compliance with 

federal regulations and to prevent the flight of aircraft 

 

during a weekend of fly-by demonstrations that Ickes 

planned to conduct on his property in Osterburg, 

Pennsylvania. Ickes claims that the FAA abused its 

authority in issuing the Emergency Order because he flies 

only ultralight vehicles, which, unlike aircraft, are not 

subject to federal certification and registration 

requirements. He also contends that the circumstances 

surrounding his air show did not give rise to an emergency 

so as to justify the issuance of a cease and desist order 

with immediate effect. We hold that the FAA did not err in 

subjecting Ickes and his aircraft to regulation or in 

determining that his air show posed an exigent danger 

warranting an immediate response. We will, therefore, 

affirm the Emergency Order. 

I. 

Ickes resides in Osterburg, where he owns a thirty-eight 
acre tract of land that he refers to as both "Ickes Airport" 

and "Ickes Recreational Park." Ickes claims to be an 

experienced aviator, and he has operated an airfield on the 

Osterburg property since at least 1987. According to Ickes, 

he uses the airfield solely for the recreational purpose of 

flying ultralight vehicles. An "ultralight vehicle" is defined in 

relevant part as one that 

 (a) Is used or intended to be used for manned 

 operation in the air by a single occupant; . . . and 

 (e) If powered: 

 (1) Weighs less than 254 pounds empty weight . . . ; 

 (2) Has a fuel capacity not exceeding 5 U.S. gallons; 

 [and] 

 (3) Is not capable of more than 55 knots calibrated 

 airspeed at full power in level flight. . . . 

14 C.F.R. S 103.1 (2002). Unlike "aircraft," which can be 

operated only if registered under 49 U.S.C. S 44103 (1997), 

see 49 U.S.C. S 44101; 14 C.F.R. S 47.3, vehicles that meet 

the definition of an ultralight presently are not required to 

be registered or to bear markings of any type, are not 

required to meet airworthiness certification standards, and 

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their operators are not required to meet any aeronautical 

knowledge, age, or experience requirements or to have 

airman or medical certificates. 14 C.F.R. S 103.7.1 Ickes’ 

particular contention in this proceeding is that a two-seat 

"Challenger II" airplane that he has flown from his property 

for many years qualifies as an ultralight vehicle. 

The FAA, however, has repeatedly cited Ickes for his 

failure to register the Challenger II as an aircraft and for 

other regulatory infractions. Specifically, on February 25, 

1992, the FAA’s Eastern Regional Counsel assessed Ickes a 

civil penalty of $3,000 after finding that he piloted the 

Challenger II to and from Altoona-Blair County Airport (a 

short distance from Ickes’ property) without an 

airworthiness certificate, registration, or pilot certificate. 

The FAA expressly found that the Challenger II must be 

registered as an aircraft. Notably, Ickes did not seek agency 

or judicial review of this order. 

On May 6, 1999, the FAA’s Eastern Regional Counsel 

then issued an emergency order to revoke Ickes’ Student 

Pilot Certificate. Among other things, the FAA found that 

Ickes operated the Challenger II on numerous occasions in 

the latter half of 1998 in a manner that endangered life and 

property on the ground, including flying too low and 

without proper training for solo flight. The FAA concluded 

that Ickes lacked the "degree of care, judgment, and 

responsibility required of the holder of a Student Pilot 

Certificate." Ickes again did not seek review of the FAA 
order. 

On January 25, 2001, the FAA’s Eastern Regional 

Counsel assessed Ickes another civil penalty, this time for 

$28,000, after finding that he operated the Challenger II 

from October through November, 1998, without a 

registration, proper markings, or an airworthiness 

certificate. Once again, the FAA determined that Ickes’ 

_________________________________________________________________ 

1. Ultralights are, nevertheless, subject to various operating restrictions. 

E.g., 14 C.F.R. S 103.9(a) ("No person may operate any ultralight vehicle 

in a manner that creates a hazard to other persons or property"); 14 

C.F.R. S 103.15 ("No person may operate an ultralight vehicle over any 

congested area of a city, town, or settlement, or over any open air 

assembly of persons."). 

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Challenger II -- which it found was capable of more than 

50 knots calibrated airspeed at full power in level flight, 

had an empty weight of 300 pounds, a 42-horsepower 

engine, and a fuel capacity in excess of 5 gallons-- was an 

aircraft. Ickes did not seek further review. 

Finally, between February and May, 2001, the FAA 

received reports, mainly from Ickes’ neighbors, that Ickes 

continued to fly the Challenger II. The FAA then learned 

that Ickes posted an advertisement on an Internet website 

in which he invited the public to attend a gathering on his 

property from June 29, 2001 through July 1, 2001. Ickes 

billed the event as an "EAA Ultralight Chapter Gathering at 

the Ickes Recreational Park." He promised fly-by 

demonstrations as well as a "candy drop for children," 

"horseback riding," and "dirtbike trails and 

demonstrations." 

Upon learning of Ickes’ proposed air show, and noting 

Ickes’ history of unlawful use of the Challenger II, the FAA 

issued the Emergency Order on June 28, 2001, to preempt 

Ickes’ use of aircraft during the event. In particular, the 

FAA required in the Emergency Order that Ickes 

immediately cease and desist from operating the Challenger 

II or any other aircraft until such time as he obtains 

airman, airworthiness, medical, and registration 

certificates; affixes appropriate identification markings to 

his aircraft; and submits the aircraft to an authorized 

person for appropriate maintenance inspection and 

approval for service prior to operation. 

Ickes timely filed a petition for review of the Emergency 

Order in this Court. We have jurisdiction pursuant to 49 

U.S.C. S 46110(a). 

II. 

Ickes presents three main arguments for our review. 

First, he maintains that the Commerce Clause does not give 

Congress the power to regulate his Challenger II because it 
never flies across state lines. Second, he asserts that his 

Challenger II is an ultralight vehicle and that the FAA has 

improperly treated it as an aircraft. Third, he claims that no 

exigent circumstances existed to justify the FAA’s issuance 

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of a preemptive cease and desist order. We review his 

constitutional claim first. 

A. 

Ickes argues that Congress lacked Commerce Clause 

authority to regulate his operation of the Challenger II, as 

he contends that his flights are purely an intrastate 

recreational activity and do not affect interstate air 

commerce or endanger air safety. The Supreme Court has 

identified three broad areas of activity subject to regulation 

under the Commerce Clause: (1) the use of the channels of 

interstate commerce; (2) protection of the instrumentalities 

of interstate commerce, or persons or things in interstate 

commerce, even though the threat may come only from 

intrastate activities; and (3) activities having a substantial 

relation to interstate commerce. United States v. Lopez, 514 

U.S. 549, 558-59 (1995); see also United States v. Morrison, 

529 U.S. 598, 608-09 (2000). It is beyond dispute that 

Congress’s power over interstate commerce includes the 

power to regulate use of the nation’s navigable airspace, 

which is a channel of interstate commerce. In addition, 

because airplanes constitute instrumentalities of interstate 

commerce, United States v. Bishop, 66 F.3d 569, 588 (3d 

Cir. 1995), any threat to them, such as the one posed by 

Ickes’ flights of his Challenger II, is properly subjected to 

regulation even if the threat comes from a purely intrastate 

activity. See id.; see also United States v. McHenry, 97 F.3d 

125, 127 (6th Cir. 1997). Ickes’ constitutional challenge, 

therefore, is without merit. 

Ickes next asserts that his Challenger II is an ultralight 

vehicle and that the FAA has improperly treated it as an 

aircraft. He also claims that no exigent circumstances 

existed to justify the FAA’s issuance of a preemptive cease 

and desist order. We will address each of these arguments 

in turn. 

B. 

Ickes insists that his Challenger II is an ultralight vehicle 

notwithstanding the FAA’s repeated findings that it is 

eligible for registration as an aircraft. He claims that the 

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vehicle qualifies as an "ultralight trainer" and that he is 

authorized to use it for instructional purposes. He contends 

that the plane was properly registered with Aero Sports 

Connection ("ASC"), a nonprofit organization that supports 

ultralight flying activities. The FAA granted ASC an 
exemption from regulation in 1995 so that it could train 

and then authorize individuals to give basic flight 

instruction using two-seat aircraft (like the Challenger II) 

that would otherwise exceed the weight and speed 

specifications for ultralights. Ickes received instructor 

certification under the ASC program, and the ASC issued 

him an exemption to operate a two-seat aircraft for 

instructional purposes. Thus, Ickes contends, the FAA 

improperly determined that his Challenger II is an aircraft. 

Our review of this purely factual question is limited. We 

must accept the FAA’s finding as conclusive "if it is 

supported by substantial evidence." 49 U.S.C.S 46110(c). 

"Substantial evidence is such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion . . . taking into account whatever in the record 

fairly detracts from its weight." Van Dyke v. NTSB, 286 F.3d 

594, 597 (D.C. Cir. 2002) (quotation marks and citations 

omitted); see also Penobscot Air Services v. FAA , 164 F.3d 

713, 717-18 (1st Cir. 1999) (discussing the substantial 

evidence standard). 

It is undisputed that the Challenger II has two seats, and 

that fact alone removes it from the ultralight category 

because it is not "used or intended to be used for manned 

operation in the air by a single occupant." 14 C.F.R. 

S 103.1(a). Furthermore, Ickes does not dispute the FAA’s 

finding (nor did he ever appeal or petition for review of the 

findings in the earlier FAA proceedings) that his plane has 

an empty weight of 300 pounds, a fuel capacity in excess of 

5 gallons, and a potential cruise speed of approximately 56- 

69 knots. See 14 C.F.R. S 103.1(e). Thus, based on its 

physical characteristics, Ickes’ Challenger II is not an 

ultralight. 

As to the ASC exemption, the record reflects that Ickes’ 

authorization to conduct ultralight training using his 

Challenger II expired on June 30, 2000, almost one year 

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before the FAA issued the Emergency Order.2 Ickes has 

failed to show that he can claim a valid exemption 

extending through the time when the Emergency Order was 

issued. The only evidence Ickes cites from the relevant 

period in 2001 are two letters, dated January 14, 2001 and 

April 16, 2001, from Bob Enos, a basic flight instructor 

certified by the United States Ultralight Association. The 

Enos letters reflect that Ickes completed a written 

examination demonstrating aeronautical knowledge for 

flight in a "Challenger II Trainer." Enos also offered an 

endorsement of Ickes’ ability to make safe solo flights in a 

Challenger II for a period of 90 days from issuance of the 

letters. Ickes seems to suggest that, because Enos 

authorized him to make solo flights in a "Challenger II 

Trainer," the vehicle qualified as an ultralight. Reply Br. at 

14. 

We find nothing in the Enos letters, however, that even 
arguably exempts the Challenger II from regulation as an 

aircraft. Although the letters referred to Ickes’ plane as a 

"Challenger II Trainer," it is undisputed that the plane’s 

physical and operational characteristics placed it outside 

the ultralight category. Moreover, Ickes has produced no 

evidence to show that he could claim the benefit of the ASC 

exemption, or any other exemption from regulation, during 

2001. As such, the record fails to support his assertion that 

the Challenger II qualified as an ultralight trainer during 

that time. 

In sum, while Ickes has shown that his Challenger II 

might have been properly deemed an ultralight trainer 

when his ASC exemption was in effect, we find substantial 

evidence to support the FAA’s determination that the 

vehicle qualified as an aircraft when the FAA issued the 

Emergency Order on June 28, 2001. 

_________________________________________________________________ 

2. In fact, Ickes’ ASC exemption may have expired or been withdrawn as 

early as October 5, 1998. Supplemental Appendix at 5. We will assume 

June 30, 2000, was the expiration date for purposes of our analysis 

here. 

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C. 

Ickes next contends that his air show presented no 

exigent circumstances, that the FAA’s treatment of the 

situation as an emergency was an error in judgment, and 

that the FAA abused its authority by issuing a cease and 

desist order without providing him with notice and an 

opportunity to be heard. According to Ickes, "[t]he 

grievances feeding this controversy have been primarily 

non-safety in nature and had accumulated [over] a one or 

two[-]year period." Appellant’s Br. at 7. Ickes thus contends 

that the FAA’s treatment of the situation as an emergency 

was an error in judgment. We reject this contention. 

Contrary to Ickes’ suggestion that "[t]he grievances 

feeding this controversy have been primarily non-safety in 

nature," Appellant’s Br. at 7, the FAA’s concerns were 

almost exclusively safety-related. Ickes’ decision to conduct 

a public air show at which he intended to fly his Challenger 

II -- an aircraft that had not been properly registered or 

inspected in compliance with federal law -- raised an 

indisputable safety concern for the people who would 

attend the show, for anyone or anything on the ground 

within the potential flight range of that aircraft, and for any 

aircraft that might pass through the airspace surrounding 

Ickes’ property. The record reveals that a low-level federal 

airway, identified as V469, passes immediately north of 

Osterburg, and a number of additional airways are within 

several miles of Osterburg, as are Altoona-Blair County 

Airport and Johnstown-Cambria County Airport, both of 

which receive commercial air traffic. 

Moreover, Ickes had a history of endangering life and 
property on the ground, as evidenced by the FAA’s finding 

in 1999 that he operated the Challenger II in a reckless 

manner on numerous occasions. Ickes never sought review 

of that agency finding, and in fact he never formally 

challenged any of the numerous infractions cited in the 

FAA’s prior orders against him. Given this record, safety 

was undoubtedly the FAA’s predominant concern in 

treating the situation here as an emergency. 

As to the FAA’s authority to respond to an emergency, 

Congress has conferred broad power upon the FAA 

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Administrator to conduct investigations and to issue orders 

that the Administrator "considers necessary" to carry out 

the FAA’s mandate. 49 U.S.C. S 40113(a). Moreover, the 

Administrator has the express power to act quickly and 

decisively in response to perceived air safety emergencies: 

 When the Administrator is of the opinion that an 

 emergency exists related to safety in air commerce and 

 requires immediate action, the Administrator, on the 

 initiative of the Administrator or on complaint, may 

 prescribe regulations and issue orders immediately to 

 meet the emergency, with or without notice and 

 without regard to this part and subchapter II of 

 chapter 5 of title 5. The Administrator shall begin a 

 proceeding immediately about an emergency under this 

 subsection and give preference, when practicable, to 

 the proceeding. 

49 U.S.C. S 46105(c). As the language of S 46105(c) 

suggests, the Administrator holds "broad discretion to 

decide when public safety concerns warrant emergency 

action on his [or her] part." Blackman v. Busey, 938 F.2d 

659, 663 (6th Cir. 1991). 

In view of this broad discretion, our standard of review 

when assessing an FAA response to a perceived emergency 

is appropriately deferential: we ask only whether the finding 

of an emergency " ‘was a "clear error of judgment" lacking 

any rational basis in fact.’ " Id. (quoting Nevada Airlines, 

Inc. v. Bond, 622 F.2d 1017, 1021 (9th Cir. 1980)). The 

present record reveals no clear error of judgment. The FAA 

duly noted the inherent public danger posed by those who 

operate aircraft unlawfully in this country. Ickes, moreover, 

had a verified history of unlawful operation of the 

Challenger II, the FAA had received reports in early 2001 

that he continued making such flights, and Ickes’ 

advertisement over the Internet invited the public to gather 

on his property for a weekend of fly-by demonstrations. It 

is undisputed that the demonstrations were to include the 

Challenger II, an aircraft that Ickes failed to have certified 

as airworthy or inspected by an authorized mechanic. 

Ickes also did not hold a valid pilot certificate or airman 

medical certificate. The FAA thus had concrete information 
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as to specific dates on which Ickes planned to conduct 

unlawful flights of an aircraft, and it had a limited time in 

which to stop those flights so as to protect the safety of the 

people and property that could be harmed by Ickes’ 

malfeasance. We conclude that Ickes’ air show posed an 

undeniable exigent danger. We see no clear error of 

judgment in the FAA’s invocation of its broad powers under 

S 46105(c) in an attempt to stop his unlawful flights. 

Ickes complains that he was deprived of notice and an 

opportunity for a hearing before the FAA issued the 

Emergency Order. While FAA regulations ordinarily 

contemplate prior notice before the agency will issue a 

cease and desist order, an exception is understandably 

provided in the case of an emergency. See 14 C.F.R. 

S 13.20(b) ("Unless the Administrator determines that an 

emergency exists and safety in air commerce requires the 

immediate issuance of an order under this section, the 

person subject to the order shall be provided with notice 

prior to issuance."). Given that the FAA committed no error 

in deeming Ickes’ air show an emergency that required an 

immediate response, the agency certainly did not err in 

foregoing prior notice pursuant to 14 C.F.R. S 13.20(b). 

III. 

For these reasons, we will affirm the FAA’s June 28, 

2001, Emergency Cease and Desist Order. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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