12/09/201 1 10:10 FAX 202a935U 2 FAA - OMS giOOl/OOG 

BETTMAN N HOGU E & DiEDRICH, PROF. LLC 

FSAKKA. BETTMANN" 

TlN'AM. Hor.URMICHAEL G.DiEDmcH 

• ALI O AflMnTKn is MEnn ^i;!.-.! 

ATfOIiI^EYi> AT LAW 

1506 MOUNTAIN" VIEW ROAD. SUITE 101 

PAPID cm' , SOUTH DAKOTA 5770:-J5A9 TEL (6U5) 343-8662 

FAX (605; i4R-Pnft6 

v.-u'v. rcstiltliTw.com 

November 28, 2011 

RECEIVED 

DEC - 5 2011 

HEARING DOCKET 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-43 0 

Wilbur Wright Building - Suite 2W1000 

800 Independence Ave. SW 

Washington, DC 20591 

Re: Federal Aviation Admin, v. Rushmore Helicopters. Inc. 

FAA Docket No. CP10GL0002 

DMS No. FAA-2010-0023 

Our File No. 665.00 

Dear Hearing Docket Clerk: 

Enclosed please find the original and two copies of Appellant's Brief in the 

above-captioned case. 

Sincerely, 

BETTMANN HOGUE & DTEDRICH, 

Professional LLC 

Frank K. Bettmann 

: ^ :^. ~n 

c.r.< 

FAB/mks 

Enc. 

cc: John Stuart, Jr.' (w/enc.) 

Client (w/enc.) 

F.xyr.rifnc.e. • Integrity • Results 
12/09/201 1 10.10 FAX 2024935142 FAA - DMS 21002/008 

Served November 28, 2011 RECEIVED 

U.S. DEPARTMENT OF TRANSPORTATION „ 

OFHCE OF HEARINGS Utt ' 6 ZOff 

WASHINGTON,DC. HEARING DOCKET 

FE:PERAL AVIATION ADMINISTRATION, 

C ompl ainani/Appel lee, 

V. 

RUSHMORE HELICOPTERS, INC. 

Respondent/Appellant. 

FAADOCKETNO. CP10GL0002 

(Civil Penalty Action) 

DMS No. FAA-20in-0023 

APPELLANT'S BRIEF 

STAIEMENTOFCASE 

The Complaint of the Federal Aviation Administration ("Complainant," "FAA," or "the 

Agency"), as amended, asserts that Rushmore Helicopters, Inc. ("Respondent" or "Rushmore") 

violated Federal Aviation Regulations ("FARs") and sought a civil penalty of $25,000. 

Specifically, the Complaint asserts Rushmore violated the following FARs (both in 14 CFR): 

section 91.7(a), which prohibits the operation of a civil aircraft unless it is in an airworthy 

condition; and section 91.13(a), which prohibits a person from operating an au-craft in a careless 

maimer so as to endanger life and property. 

A hearing was held on April 27, 2011. Administrative Law Judge Richard C. Goodwin 

held the facts and circumstances of the case justify violations of each count and. allowing for 

mitigating and aggravating factors, warrant an assessment against Rushmore of $22,500. The 

Initial Decision of Administrative Law Judge Richard C. Goodwin was served on October 3, 
12/09/201 1 10:10 FAX 2024935142 FAA - DMS 0)003/00 8 

2011. Appellant filed notice of appeal on October 14, 2011. The Administrator of the Federal 

Aviation Administration has jurisdiction of this appeal pursuant to 14 C.F.R. § 13.233. 

FACTUAL BACKGROUND 

Rushmore is a Part 91 commercial air tour operator located in Keystone, South Dakota. 

HT, pp 18-19. In the late afternoon of August 6, 2009, commercial pilot Robert Leroy Leffert 

("Pilot Leffen") discovered that the fuel cap on a Bell 206 helicopter that he was in command of 

and had operated that day had a missing fuel cap. Complaint; Answer. The helicopter is owned 

by Rushmore. Complaint; Answer. At his own initiative, Pilot Leffert placed duct tape over the 

fuel filler port and flew the helicopter from Keystone, South Dakota to near Custer^ South 

Dakota, which is approximately a 10-mile trip. Complaint; Answer. 

On the morning of the following 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 state based on information from the manufacturer 

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

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. 

Following the incident, the FAA initiated an enforcement action against Pilot Leffert's 

Commercial Fixed Wing, Single Engine Helicopter Certificate alleging violation of 14 C.F.R. 

91.7(a). HT, pg. 76. The FAA is also alleging Rushmore violated 14 C.F.R. 91.7(a) and 91.13(a) 

due to Pilot Leffert's above-described actions. Complaint. 

ISSUES PRESENTED 

1. Whether the Administrative i.aw Judge's finding and conclusion that 

Respondent had operated ten flights was supported by appropriate and sufflcicnt 

evidence. Appellant states that it was not. 
12/09/201 1 10-10 FAX 2024935U 2 FAA ^ DMS 0004/00 3 

206 helicopter... had operated ten flights...". Initial Decision, p. 5. That is not the case. 

Rushmore President Michael Jacob was the only witness called by Rushmore. HT. The FAA 

never questioned Michael Jacob about whether the log at issue was for August 7, 2011. The 

pilot, called by Complainant, said he didn't remember doing that many flights. Therefore, no 

Rushmore witnesses acknowledged the Bell 206 helicopter operated ten flights on August 7, 

2009. The only evidence presented by the FAA in regard to whether it had to correct flight log 

was the hearsay obtained by the FAA investigator who said he talked to Ms. Weller and she was 

the one who told him the log showing ten flights had an incorrect date. 

Pilot Leffen, called by the FAA, testified on direct examination that he did not recall 

piloting ten flights on August 7, 2009. 

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

over the fuel port? 

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

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

HT, pp. 76-77. When Pilot Leffen said "according to the records^', was he merely 

operating on what he was told by the FAA investigator concerning the ''record"? There 

was no testimony that he had charge of them, or knew an>thing about them. More 

notable, he immediately said I did not recall doing that many. Mr. Jacob was the only 

witness for Rushmore and he wasn't asked about the records. Therefore, this very 

significant point boiled down to this: There is only one document that supports the 

allegation often flights. That document doe.-? not bear the same date as the date of the 

complaint. There could be only three wimesses who could prove if that document was 

right or wrong. Those would be the Rushmore employee in charge of the document 

(either Ms. Weller, Mr. Jacob or both) and the pilot himself The pilot said he didn't 

recall doing that many that day. Mr. Jacob was not asked any questions about it and Ms. 
12/09/2011 10:10 FAX 2024935142 FAA - DMS 21005/008 

Weller was not called. Certainly the use of hearsay to support this very important fact 

should not be allowed to sustain the Complainant's burden of proof m these cases when 

there is doubt in the record from direct evidence and the FAA could have simply 

produced Ms. Weller so she could have testified and been open to cross examination. 

This level of proof does not rise to the level of proving these important facts "by a 

preponderance of reliable, probative, and substantial evidence" as the law requires. 

The only actual proof entered into evidence in regard to the number of flights on 

August 7, 2009, was the single flight wimessed by the inspectors. Because the FAA did 

not prove ten flights by a preponderance of reliable, probative, and substantial evidence, 

the civil penalty must be reduced to be commensurate with the namre and extent of only 

one proven violation. 

2. The Administrative Ldw Judge's conclu<:ion in regard to the civil penalty amount 

was not made in accordance with applicable law, precedent, and public policy due to 

failing to consider all of the required factors when determining the civil penalty. 

An appropriate civil penalty must reflect the totality of the circumstances. See. e.g.. 

Folsom 's Air Ser\'\ce. Inc.. FAA Order No. 2008-11 (November 6, 2008). To assess the totality 

of the circumstances, the following factors must be considered when determining the civil 

penalty amount: (1) the nature and circumstances of the violation; (2) the extent and gravity of 

the violation; (3) the respondent's degree of culpability; (4) the respondent's history of prior 

violations, if any; (5) the respondent's ability to pay the civil penalty; (6) the effect on the 

entity's ability to stay in business; and (7) other matters as justice may require. M. The Agency 

bears the burden of justifying the amount of the civil penalty it seeks. Phyllis Jones Luxemburg, 

FAA Order No. 1994-18 (June 22. 1994), p. 6. 
12/09/2011 101 1 FAX 202«35M 2 FM . 0«S ^006/00 , 

Ihis size of an assessment would indeed present a financial hardship. In fact, the hardship has 

only increased on the business in the months following the hearing. See Affidavit of Mike Jacob 

attached. 

As an aside, and to the extent that some of the financial hardship evidence pertains to 

matters that have arisen or developed further after the date of hearing in this matter (April 27. 

2011), it is noted that the law provides that any party may petition the FAA Decisionmaker to 

recon.5ider or modify a final decision and order is.sued by the FAA. 14 C.F.R. § 13.234(a). While 

it would also be noted that § 13.234(c} seems to not be technically applicable yet because there 

has been no petition to reconsider a Final Decision of the FAA Decisionmaker, it has been held 

that it is reasonable to apply the same standard to aQ requests to submit new evidence that are 

presented after the close of the hearing. See In the Matter of Blue Ridge Airlines, FAA Order 

No. 99-15 at 7-8 (December 22, 1999) (citations omined). 

The new evidence or testimony that Respondent would like to present is noted in the 

attached affidavits of Mr. Jacob and Shelley Dykstra. Respondent states that, if remanded, it is 

believed that the outcome of this case would be different due to the financial hardship facing 

Rushmore. 

CONCLUSION 

The imposed civil penalty is not appropriate because the evidence presented by 

the FAA proves only one flight on August 7, 2009, and not ten flights; the FAA failed to 

prove a separate independent violation of § 91.13(a); and, the Initial Decision failed to 

consider financial hardship which may constimtc grounds for reduction in an otherwise 

appropriate civil penalty. 
12/09/2011 101 1 FAX 202«35U 2 FAA - 0«S 0007/003 

For the above stated reasons. Rushmore Helicopters, Inc. respectfully requests 

that the Initial Decision be reversed as to its findings and conclusions that ten flights 

occuired on August 7, 2009, and that the Initial Decision be remanded to allow evidence 

to be introduced regarding Rushmore's financial hardship. 

Dated this Q^ _ day of /v»v<^^^[20II. 

BETTMANN HOGUE & DIEDRICV^, 

Professional LLC 

Frank A. Bettmann 

Attorneys for Plaintiff 

1506 Mountain view Road, Suite 101 

Rapid City% SI) 57702-4349 

(605)348-8662 

CERTIFICATE OF SERVICE 

I hereby certify that I have, this date, served the forgoing Appellant's Brief by 

mailing copies to the following addresses as follows: 

Original and Two Copies (Regular Mail) 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, SD 20591 

Attention; Hearing Docket Clerk, AGC-430 

Wilber Wright Building, Suite 2W1000 

Fax:202-493-5141 
2/09/2011 10:11 FAX 2024935142 FAA ^ DMS [^008/008 

One Copy 

Mr. John C. Stuart, Jr. 

Enforcement Div., AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington. DC 20591 

Ms. Briana Martino 

Great Lakes Region, AGL-7 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

Dated this J-K day of A^^V^< ^ 2011. 

BhTTMANN HOGUE & DIEDRICH, 

Professional LLC 

Frank A.,6etnnaiin 

Attorneys for Plaintiff 

1506 Mountain View Road, Suite 101 

Rapid City, SD 57702-4349 

(605) 348-8662