THE CRIME COMES LAST OF ALL

Comment -- DeWitte T. Lawson, Jr., a key actor in this drama, in the mid-70s became regional counsel, Western-Pacific Region, a job he held for about 25 years until, thankfully, he retired. He learned nothing along the way. He used the emergency power like a bludgeon. I seriously doubt if there was ever any genuine emergency in any case where he used it. If you want to see how easily he (and other regional counsel) can abuse it, go to Summaries of Emergency Cases. If you have a special interest in the subject, or Lawson, go to Abuse of Power, one of his cases, where the claim of emergency was absolutely phony.

The idea for quotes from Alice's Adventures in Wonderland and Through the Looking Glass, was prompted by friends who came to see me in Ocean City, Maryland, where I holed up in the winter of 1968-69 with my files and typewriter. They brought the book as a gift. When I read it, I chuckled about the similarities to the cases I was writing about, and gleaned from it many apt quotes.

Interestingly, in the early 1960s, JFK's Administrator Najeeb Halaby, appointed a small committee to consider complaints about the program. The big complaint by AOPA and others was that the airman received his suspension order even before he'd been given a trial and found guilty. Their report used an apt quote from Alice, "Sentence First, Verdict Afterwards." The committee urged FAA to adopt an in-house hearing program to provide a trial first, so Halaby created one. FAA lawyers dumped it, however, in 1970. Not a great loss, but a fine example of what happens when an agency has authority to try the cases where it acts as police, prosecutor, judge and jury.

The chapter is lengthy, but I think it well worth your time. It will to provide insight into what is wrong with FAA enforcement and it's impact on the individual when a system of punitive administrative justice is used for which there is no lawful authority. Were it ever to go into a book, I'd have to edit it down quite a bit. But working with a manual typewriter (what I wouldn't have given for Word Perfect and a PC!), and a lot of information, I figured it would be easier in the long run to put into the chapter everything I thought might be relevant, and worry about editing it later. Be sure to check state laws before you land on any highways!

The metropolis of Tecopa, Calif. in the background. The alleged violator

landed his C-172 on the road angling off to the left from the main highway

("If we don't go after him we'll have pilots landing

all over Los Angeles." DeWitte T. Lawson Jr.)

T H E C R I M E C O M E S L A S T O F A L L

"It's a poor sort of memory that only works backward," the Queen remarked.

"What sort of things do you remember best?" Alice ventured to ask.

"Oh, things that happen the week after next," the Queen replied in a careless tone, "For instance, now," she went on . . . "there's the King's messenger. He's in prison now, being punished; and the trial doesn't even begin till next Wednesday; and, of course, the crime comes last of all." "Suppose he never commits the crime?" said Alice. "That would be all the better, wouldn't it" the Queen said . . . Alice felt there was no denying that. "Of course it would be all the better," she said, "but it wouldn't be all the better his being punished." "You're wrong there, at any rate," said the Queen. "Were you ever punished?" "Only for faults," said Alice."And you were all the better for it, I know!" the Queen said triumphantly. "Yes, but I had done the things I was punished for," said Alice. "That makes all the difference." "But if you hadn't done them," the Queen said, that would have been better still; better, and better, and better!" Her voice went higher with each "better" till it got quite to a squeak at last.

The dynamics of the FAA's regulatory enforcement program and the role of a civil servant in government bureaucracy dictate that the FAA lawyer play the part of a bloodhound rather than that of an independent-minded public prosecutor. Someone lets him sniff a scrap of the suspects' clothing, and he is off, baying, hot on the trail until he has the culprit cornered or treed. Like the bloodhound, although he can follow the scent, he frequently cannot discriminate between a criminal and an innocent person. He has only one thing on his mind, his duty to catch his quarry--for something.

When he has, many give up and are meekly led off to receive their punishment. Some suspects, however, aren't so docile, pick up a rock, tear off a limb, and whack the hound on the head in self-defense--often with startling success. Sometimes he learns by this to be wary on the next chase--sometimes he doesn't.

The manner in which FAA enforcement lawyers conduct themselves runs counter to our traditional concept of a public prosecutor. That concept is one of a man with strength of character and independence of thought; a man who wears on his broad shoulders the mantle of pride in his profession and its ethics, and possesses that unfettered judgment which is an absolute requisite of the mental make-up of one who holds such an office. Too, he maintains a strong sense of responsibility towards his public trust and a keen awareness of the awesome power at his command, and he uses it with judicious restraint. First and foremost his allegiance is to Truth, Law, and Equality of Justice for all.

Sound idealistic? Not really. It is something to strive for; exceptions do exist, but they don't last long. That's why county prosecutors, district attorneys, or state attorneys general are elected by and thus responsible to the people. They can be voted out if they don't measure up. For the same reason--responsibility to an electorate of thousands rather than a single superior--they are free to exercise independent judgment.

Abe Lincoln once said that time and advice are the lawyer's stock-in-trade. That's quite true. But the hallmark of his "trade" is his independence of judgment. When one seeks out a lawyer for counsel and guidance, he expects to get knowledge, experience and skill, but he must have a man whose mind is uncluttered by other than his concern for the best interests of his client. It is not without reason that states prohibit the practice of law by corporations. A man, at once employed by such an organization, yet expected to give his best to the interests of the client, 3/204 inherently has a divided allegiance that can in subtle ways shackle his judgment. His motives may be the best at first, but he may end up in the position of the heart surgeon who has one viable heart to transplant and three patients equally in desperate need of it.

The government lawyer is much like his counterpart in a corporation. He too has a divided

allegiance, divided between concern for furthering his career and concern for his professionalism. But for him it is more difficult to recognize the true source of his motivation in any given set of circumstances, than it is for the corporate lawyer. He tends to identify his actions as being in the public interest. After all, he thinks,"I'm a public servant, when I act it must be in the public interest, I wouldn't do it if it weren't."

The corporate lawyer need make no pretense about his role. His company makes widgets and he's there to help it make more widgets and make more money from making more widgets. Even so, the modern businessman recognizes that his corporate counsel's independence of judgment is one of his companies most important assets, and that they'd soon be in trouble (and the lawyer out of a job) if his advice were influenced by what he thought the boss wanted to hear rather than it represent his considered legal opinion. As a consequence, many companies will only hire a man who comes with several years of private practice under his belt, the principal arena where that approach to solving problems is best developed.

This is not to gainsay that independence of judgment is exercised in many government law jobs. But I'm writing about the typical government lawyer cast in the role of an FAA enforcement prosecutor. He does have a divided allegiance, and that fact is obscured to those outside the agency and even to himself by the emotional and subjective nature of the public interest he claims to serve: the crusade for air safety.

The utterance "safety in air commerce and the public interest" is a convenient shield to screen his lack of professionalism. If something did in fact go wrong during the flight of an aircraft, an accident or the apparent violation of a rule, and that is usually the case, it is a simple matter to contrive an argument to convince others, and himself, that the enforcement action he initiates on account of it is definitely in the interests of air safety. (It is even possible--though hard to believe--that Matthew Markotic really thought he was making a contribution to the attainment of that goal when he gave a student pilot 180 days for practicing a forced landing over a hayfield.)

The fact of the matter is that the FAA enforcement lawyer, and I include those at the highest levels, lacks professional independence of judgment. And by this I mean not only the knowledge and ability to make a competent judgment about an enforcement matter, but if that judgment runs counter to the opinions of his masters, to have the strength of character to make it stick.

This real and serious shortcoming is in large measure due to the fact that too many career lawyers come to government right out of law school and stay. They miss out on the professional development and learning process that private practice or work in a public prosecutor's office affords. Imbued at first with a textbook feel for professionalism and ethics, the young or recent law graduate, in the FAA at least, soon sees that in the pressure and competition for career advancement those are shrouded by his consecrated mission to promote air safety.

Then too, he can hardly be expected to develop real professional courtroom trial experience, when the administrative hearings he engages in are so loose that he is not forced to give serious thought to the validity of his case and the nature of the evidence he has to offer. Hearings that allow into evidence lengthy subjective reports written by the prosecution's own investigator, and that allow testimony from witnesses whose only contribution to the trial is that the accused was late to class the year before, are not the sort of battle ground on which future generals are made.

I have indulged in this rough, but hopefully comprehensible essay in order to prepare you for what's to come--in this chapter and those that follow. There has to be some rational explanation for the real and serious lack of professional judgment, and worse, the instances of grossly unprofessional and unethical conduct, that you're going to read about. I say there has to be a rational explanation for the problem, because it is so all pervasive in the FAA's enforcement program. It cannot be attributed to the individual personality problems of a few. [When I wrote this in 1969 I had no idea of how prophetic it was, and that what I saw then was just the tip of the iceberg.]

The exercise of competent independent professional judgment is by far a rarity rather than the rule in the handling of enforcement cases. Yet with few exceptions no reason exists to believe that these same people, had they gone into private practice or public prosecutor (or defender) work, would not have developed a professional outlook and devotion to legal ethics on a par with those of their classmates who did. It is not any manifest lack of individual ability that is the cause, but something inherent in the system, something inherent in the way the lawyer's role is cast in a bureaucracy.

I don't seek to persuade that my view is the correct or the complete answer. It is my opinion and nothing more. I do, however, want to stimulate the reader to think about the matter as we proceed, if not to fully comprehend the underlying reasons for such conduct, which is difficult to do in any event as they are most complex, at least to see that lack of professionalism constitutes a serious problem that must be dealt with. We've already had a glimpse or two at the problem; and I've tried to provide a base for insight into the impact the lawyer's ignorance of aviation has on the processing of an enforcement case and the unfairness it brings about. That ignorance, by the way, is pretty much of an ever present factor, and indeed a significant part of the cause of the problem.

The psychology of the FAA enforcement lawyer does in a sense resemble that of a bloodhound. He knows he's on the track of someone, but he can't be sure who, or whether he's guilty of violating a regulation. He is put on the trail and told to follow 7/208 [reference numbers to the original draft] the suspect to the bitter end. The more potent the scent, the more excited he gets about the chase. Usually it is another element within the FAA, Flight Standards or ATC, for instance, that put him on the chase. Often, however, the first sniff of that scrap of clothing comes as a complaint initiated by a private citizen or local law officer. Which leads us to another addendum to Larry's Law of Sizeable Suspension Sanctions.

First, though, let's quickly review that law. Stated in its short form, LLSSS is: The more stupid the FAA thinks you are, and the less culpable you are in committing the act, the harder it will hit you.

The addenda, paraphrased, are:

(1) Although you didn't mean it to be, if it was really a bad scene and you bashed in, you "get it in spades;

(2) The better you've behaved yourself as a pilot the more you need to be punished for your first infraction.

(Let me inject here, that sizeable sanction doesn't necessarily connote substantial length or a great sum of money. For the purposes of LLSSS, even though the suspension is short or the civil penalty is small, the sanction is too big, regardless, if no penalty whatsoever was deserved in the first place.)

Comes now addendum No. 3:

The FAA is prompted to pursue the prosecution of the private or professional pilot with much greater than usual dogged determination and perseverance, when the case originates on the basis of a complaint lodged by a member of the public or a police officer.

For instance, the Fravel Fable: Recall that he made a simulated forced landing over a hayfield, and "poured the coal on 'er." The farm owners, who lived at the corner of the field, complained to the FAA, or their son did. Were they complaining about the interruption to the peace and quiet of a lazy Sunday afternoon in August, or because he really came within 500 feet of the house? Did the fact of that complaint from the public account for the inane FAA sanction of 180 days? We don't really know. But it's a possibility.

Admin'r v. Pendleton, SE-949 (ID, 2-26-68)

Pendleton is a great name in woolens. It's the name of a great rodeo too. Eight hundred miles south of Oregon, where both the Pendleton Woolen Mills and the Pendleton Roundup hold forth, in the dusty little Mojave Desert town of Barstow, California, lives a 56-year-old chiropractor by the same name.

Glenn Edwin Pendleton may not be famous (and one gathers that he doesn't mind), but he has lent his name to one of the important enforcement cases contained in the records of the NTSB. And it wouldn't be thus but for his refusal to be led off meekly by the FAA Western Region to receive a thirty-day suspension of his private pilot license or pay a $50 civil penalty for a crime he didn't commit. His case is not so important for the legal principle involved--someone beat him to that by about eighteen years - but because it provides a window through which we can peer into the minds of FAA lawyers and watch the enforcement wheels and mechanisms turn and churn.

First, though, let's find out about Dr. Glenn Pendleton, D.C., of the Chiropractic Arts Building, 624 East Main Street, in Barstow. Born in Pomona, California, he's a lifetime resident of Barstow and has been practicing the healing arts of chiropractic since 1952. A widower, and father of two children, both married and in their 30's, he lives at home with his mother.

Back in 1945 he got the itch to learn to fly, and did. J-3 Piper Cubs were the speed then (for all of us). He earned his private the same year. He's accumulated 1200 hours since, and belongs to a local flying club. It's a pretty healthy one apparently, and owns three Cessna 150's, two Piper Cherokees, a Cessna 172 Skyhawk and, until a couple of weeks before we talked, a Beech Bonanza which, unfortunately, got wiped out. He flies "a good 60-80 hours a year," most of it for pleasure, but he does make business trips now and then to visit a patient, take another somewhere for treatment, and flies friends occasionally as a favor.

It was a warm desert day in October of 1966, the 8th to be exact, that he took the club 172 and, together with a patient, headed for Tecopa, California, eighty air miles to the northeast. His patient, a 39-year-old woman, who was visiting her parents in Barstow, had a severe and persistent case of bronchitis. His regular treatment had been of no avail, so he decided to take her to bathe and soak in Tecopa's hot springs, "considered one of the best waters in the world," he told me, and a general part of his treatment, if indicated.

If indeed the springs there are some of the best, they haven't brought much fame to Tecopa, a small settlement with a year round population of 100 or so hardy souls, located in the north end of the Mojave Desert just eight parched miles east of the south end of Death Valley National Monument. Barstow is 120 miles by car; Las Vegas, sixty air miles to the east, is eighty-nine road miles away.

In the accompanying photograph, you can see Tecopa, standing out in all its splendor, surrounded by jackrabbits, rattlesnakes, centipedes, mesquite and sand. But to visualize the surrounding terrain for a hundred miles in any direction (and several hundred in some), picture yourself standing on the surface of the moon. But for its distance from Houston, it would have made a first rate moon-landing practice area.

One hundred and seventy air miles from downtown Los Angeles, Tecopa is about as far off the beaten path and out of it as you can get. It has the one attraction--hot springs. Hundreds of elderly people move into the houses, the hotel, and trailer park, during the winter season (November l to April 15) to enjoy them and the delightful dry warmth of the desert sun.

Dr. Pendleton, who had made the trip by car many times, had flown up there for the first time just weeks before. On that trip he had landed on a small airstrip scraped off the desert up at Shoshone to the north. But Greyhound never heard of Shoshone, and the 100 people there expect a taxi-cab company or transit system about the year 3000. So he and the couple with him had to hitchhike the ten miles back to Tecopa.

This was time consuming, neither convenient nor reliable, and on the 8th, with his bronchitis patient, he decided to land on the paved Shoshone-Tecopa county road just outside the settlement, then park and walk to the public bathing facilities maintained by Kern County. He came in and circled the area northwest of Tecopa at an altitude of 200-250 feet in order to check the road for condition and traffic. The road looked OK, it was clear, and he landed. During the quarter-mile he taxied towards the settlement he encountered a pickup truck on its way out. Both did an Alphonse and Gaston act, then went their way. He parked on a five-acre plot of scrub desert across the road from the lone gas station, and headed for the springs.

Two hours later he and his patient returned to find half a dozen curious on-lookers "just admiring the airplane." One of them turned out to be a deputy sheriff.

"I made a remark to him at the time," Dr. Pendleton related, "I hope you're not mad at me for what I've done."

He says, "I'm not mad, but you're going to have to answer to the FAA for this."

I says, "well, that's all right. What information do you want?" So he asked for my license, and, ah, got the number on that, and then he got the license on the airplane, and the ownership and so on and so forth on that. He didn't even have me sign it, or anything; he just took it down on a piece of plain paper. It wasn't a citation form."

"He must have been the one who called the FAA about the landing," I deducted (brilliantly).

"Evidently. He even agreed to go on down the roadway and stop any traffic."

"Evidently" was right. Four months later he received a NOPCA from the Salt Lake City Area office charging him with violating Section 91.79, the regulation that governs minimum altitudes or, in the case of sparsely populated areas, distance from a person, vessel, vehicle, or structure. He was charged both with flying over a congested area at less than a 1000 feet, etc., 91.79(b); and operating closer than 500 feet to any person, etc., 91.79(c).

By letter of February 13, 1967, Dr. Pendleton responded with an explanation of the event. This was partially successful, because (with amazing speed and diligence) on May 5, FAA lawyer Robert L. Bergstrom, Salt Lake City Area Counsel, sent him a letter stating:

We find it necessary to conclude that you passed over the residences of two witnesses to your flight at an altitude of less than 500 feet above the surface. Your own estimate of the altitude is approximately 200 to 250 feet. As you may know, even a very few occupied residences or a small settlement has been considered a congested area in decisions of the Civil Aeronautics Board. However, inasmuch as it does not appear from the information which we presently have available that you passed over the trailer park or the settlement of Tecopa, we conclude you violated only Section 91.79(c) . . . [If he didn't have the information, why did he charge him with 91.79(b) in the first place?]

We would be willing to accept $50.00 as an offer in compromise. . .

We won't dwell on that civil penalty except to say that we can see that some FAA lawyers do have a heart and aren't reluctant to take the initiative to suggest that practical alternative to a suspension. It is also an interesting commentary on the value of the claimed violation.

Mr. Bergstrom's May 5 letter was followed by an amended NOPCA on the 22nd. Its purpose evidently, as his earlier letter indicated he would do, was to show the abandonment of the 91.79(b) "congested area" charge. His secretary must have goofed, however, and he didn't do a good job of proofreading, because both sections were again charged.

Bear in mind as we proceed that there is a very significant fact about the original and the amended NOPCA's: neither contained any allegation that Pendleton had violated Section 91.9, for being "careless or reckless." Subsequently, however, the case was transferred to the Los Angeles Area office to handle, and that oversight, if indeed it was an oversight, was corrected. A Second Amended NOPCA was issued on September 8. [Which dropped the $50 and asked for a 30-day suspension.] It was to serve as the FAA's complaint in the FAA hearing that he had requested, and scheduled by then for three weeks later on the 29th. The congested area charge was dropped, as promised, but 91.9 was added.

Let's stop for a moment and ponder that. Theretofore he hadn't been charged with being "careless or reckless," an entirely separate and distinct regulation and charge, only with a simple violation of 91.79(c). Section 609 of the Act of '58, as we saw earlier, provides that the pilot have "an opportunity to answer any charges." Moreover, the FAA has always maintained that the informal conference and/or the pilot's letter constitute that statutory "opportunity." The formal hearing, added in 1963, on the advice of a consulting law firm, has never been considered by the FAA to be required by 609. In fact, Section 609 is not even cited as statutory authority for any of Part 13, where the FAA hearing rules are set forth.

Section 91.9 constituted a new charge for which Dr. Pendleton should have been offered the "opportunity to answer." Not that this would have been of any practical benefit to the Doctor. Although his earlier "answer" did succeed in eliminating the more serious of the two 91.79 charges, we know he would have wasted his breath trying to wangle his way out of a "careless" charge. (He wasn't charged with "reckless"). Since no new opportunity to answer that charge was granted to him, however, slipping 91.9 into that Second Amended NOPCA shortly before the hearing was scheduled was a bit of dirty procedural pool, which violated Section 609 and the FAA's own regulations. (Remember what I said about lifting up stones in these cases?) Los Angeles must have felt they needed it for backup in case the other charge fell through. "Perhaps," they thought, "it will catch something." It did.

Meanwhile back at Barstow, on September 29, one year less a few days after the Tecopa incident, FAA Hearing Officer Fred L. Woodlock trudged up the steps of City Hall, where arrangements had been made for a hearing room, in order to give Justice its due. It's not clear that selection of that hearing site was strictly for the convenience of Dr. Pendleton, because also in the entourage were a Mr. and Mrs. Robertson and another couple, who had driven the 120 miles down from Tecopa. Appearing for the FAA and Los Angeles Area Counsel was Dewitte T. Lawson Jr.

"The moment I walked in the door up there at the City Hall, where the hearing was held," Dr. Pendleton commented to me, "why, ah, this fella Robertson spoke up to me and says, 'we're not here against you at all,' he says, 'we're here because this man wanted us to appear. We didn't want to come clear in here.'"

These two couples owned the residences over which it was alleged that Pendleton flew. The Robertsons also owned the plot on which he parked the airplane. Oddly, the deputy sheriff was not there, but then, he only saw the takeoff.

One hour and twenty minutes after the hearing began, Dr. Pendleton was back at the Chiropractic Arts Building. We know little of the witnesses testimony since the FAA does not routinely request the attending court reporter to prepare a transcript. In all but the most serious cases that would be a waste. If it does, it is used to impeach the testimony of a witness at a later NTSB hearing or, in a complicated case, to give the Hearing Officer's memory an assist.

Pendleton did tell me, however, that he saw no reason to cross-examine the witnesses and that Mrs. Robertson, who testified about the flight path of the aircraft, appeared quite confused. Our lack of information about the testimony is no loss to us, in any event. Our interest lies in Mr. Woodlock's six-page "Decision and Order"

It starts off by reciting dates, the procedural context of the case, and outlining the general allegations made against the Doctor:

[Dr. Pendleton, while carrying a passenger, landed on the Shoshone-Tecopa road and taxied the aircraft into a city, town or settlement; that incident to the flight he operated the aircraft closer than 500 feet to persons and structures on the surface; and that at the time of the flight an airstrip known to respondent to be suitable for landing, was located near the town of Shoshone, California, approximately ten miles from his place of landing.

Woodlock continues; after a few more lines:

Respondent testified that his purpose in landing on the highway was to avoid the inconvenience of landing at Shoshone, where there were few facilities for surface transportation to the area he wished to visit . . .

His pass over the area was preliminary to his landing and was made for purpose of ascertaining that no traffic was occupying the highway . . . According to respondent he made only one pass . . . but two witnesses testified that he passed over the settlement twice at 250 feet . . .

After landing he taxied some distance down the highway to the area he wished to visit, and during this time he came upon a truck which was required to pull off the main road in order to pass. One witness . . . testified that there were two vehicles forced off the highway by the aircraft, although there was no indication that these vehicles were unaware of the presence of the aircraftt in sufficient time to avoid it without the necessity of sudden or violent maneuvering.

While in my opinion the use of a public highway as a landing area for aircraft is one which was neither intended by the State nor one which should be encouraged, no matter what precautions the pilot takes to assure himself that surface traffic would not be endangered by a landing, in this case respondent did take steps to assure himself that the highway was not otherwise occupied when he landed . . . it cannot be said on the state of the record that any persons, property or vehicles were endangered by the landing itself. If the State authorities believe that this type of operation should be prohibited, it is within their authority to do so by statute. This apparently has not been done in California . . .

What Woodlock was implying here is that it is not the FAA's function to prohibit aircraft from using highways. And to this point you see that he has made it quite clear that there was no "carelessness" involved in the circling or the landing itself. He continues:

It should be apparent that the general use by pilots of highways for such a purpose would increase the hazards of motorists beyond all reasonable bounds. Respondent's further activities, including taxiing along the highway and into a residential, congested area, did bring with them the possibility of endangerment to lives or property of others. Based on the testimony of one of the witnesses, the presence of an aircraft was so unusual that she noticed very little other than the aircraft itself coming up the highway. Potential danger to surface vehicles was present during the passage along the highway and to local residents not familiar with the operation of aircraft within the ambit of Section 91.9.

It is clear at this point~that Woodlock, although no one had testified to any acts of carelessness, nor if there were that they endangered "the life or property of another" (a finding required by the regulation), that Woodlock was holding that in itself the event of taxiing on the highway was careless, not that it had been accomplished in a careless manner. His statements make this abundantly clear, "possibility of endangerment" and "potential danger." He cites no testimony to support this other than his own vague notions that landing on a highway is a bad deal. He never does explain in his six pages of verbal legerdemain the logic of finding that the event of landing on the highway was not careless (or takeoff), but that the event of taxiing somehow was.

I should point out right now that the FAA has absolutely no regulation that deals with where general aviation aircraft may or may not land or take off--period. Also that Section 91.79 begins with this preamble: "Except when necessary for takeoff or landing, no ~person may operate an aircraft below the following altitudes:" This clause merely sanctifies the obvious: when they go up, they gotta come down. No regulation purports to spell out exactly how departures and approaches should be made, and a great deal of latitude is left to the common sense of the pilot.

Despite all this, nowhere in the FARs is there any word or language that states, implies, or otherwise infers, a limitation of any kind on the application of the "except when necessary" clause. Woodlock again:

Respondent's argument that the low pass over structures on the surface was incident to a landing and thus permissible under the provisions of Section 91.79 is wide of the mark. The exception contained therein was not in my opinion, intended to cover low flight incident to a landing at other than a recognized landing area, absent an emergency.

Lack of surface transportation, even if it were the case at the time of this flight, is an insufficient excuse for ignoring reasonable standards of safety. The evidence fails to show that arrangements could not have been made to obtain such transportation.

For some reason, Woodlock was preoccupied with the fact of the existence of an airstrip ten miles away, and gave it special significance. Besides finding that Dr. Pendleton had flown within 500 feet of residences, he also found:

5. At the time of the above operations, respondent knew that there was at Shoshone, California, an airstrip suitable for landing, such airstrip being approximately ten miles from the place of landing.

And this was the basis of upholding the proposed thirty-day suspension; he concluded "that respondent violated Sections 91.79(c) and 91.9 . . . "

Due to the age of the Pendleton case, the first document related to it that passed across my desk was Woodlock's adroit and contrived piece of sheet music issued November 13, 1967. I say "sheet music" because he had accepted the task of writing the lyrics and score for the hymn the Los Angeles contingent of the Hallelujah hindsight Chorus had chosen to sing.

When I first took his decision from my distribution and mail slot and read it, I was stunned. I was floored. I read it over again. I reread it. I reread it again. "What sort of unmitigated nonsense is this?" I thought to myself. He goes out of his way to explain how careful Pendleton was about the whole thing, yet finds him guilty of violating 91.9. Then there's that remarkable statement that one of the witnesses testified "the presence of an aircraft was so unusual that she noticed very little other than the aircraft itself coming up the highway." So what? Did she burn her hand on a skillet? Was she driving up the road and ran off into the ditch? Just what in the devil was the problem?" Woodlock doesn't say, because he himself admits there wasn't any.

In playing "The-Great-I-Wouldn't-Have-Done-It-If-I-Were-Him Second Guessing Game," Woodlock was agreeing with Los Angeles' uneasy feeling that Dr. Pendleton shouldn't, somehow or other, have landed on that highway. This, in spite of the fact that Woodlock was saying that at the same time that he did, Pendleton, conspicuous out on that county road as a whore in church, had circled, landed, and taxied with the same care the parishioner, fifteen minutes late to church, uses to slide into a back pew.

Moreover, I asked myself, What on God's green earth has the reason he chose to land on the road got to do with it? Either it was legal to land on that road or it wasn't. What would Woodlock want him to do if the Shoshone strip were fifteen miles away? Thirty? There's no rational, logical, or legal connection.

But the part in his sheet music that hit me the hardest was the remark: "Respondent's argument that the low pass over structures on the surface was incident to a landing and thus permissible under the provisions of Section 91.79 is wide of the mark." Wide of whose mark? .What language in the FARs says so? What regulation states that you can't land on the Shoshone-Tecopa road? Or any road?

When I first read that piece of legalistic nonsense, I immediately thought of flight I'd made a year and a half before with a friend in his C-50 Twin-Bonanza. We'd landed on old Route 66 near Oatman, Arizona, in order to inspect some of his real estate. We had flown down the canyon and over top of Oatman, a colorful old mining town, at less than 500 feet while inspecting the highway for traffic and to attract the attention of the people who were to drive down and pick us up. We had only 1200 feet of straight road available to use and landed uphill, with takeoff downhill. Thirteen miles away at Bullhead City was the nearest airstrip.

I harkened back to my early days of flying in 1946, when as a student, and later as a private pilot, I made landings on our farm in Orange County, Virginia, and passed within 500 feet of persons or vehicles in so doing. I especially remembered the first time when I'd flown down from the old Hybla Valley Airport near Alexandria in a J-3 Cub, and I was afraid to shut down the engine for fear I couldn't hand prop it to start again (I was paying eight bucks an hour for it and couldn't risk the delay, and wasn't about to tell the flying school what I'd done), so I rolled it into a small hole to "chock" it. And how proud I was, at all of seventeen years, when my father, who had taken ten hours of flying lessons in the early 1930's but had to quit because it was too expensive, rode down from the house on his horse to say hello.

That nostalgia soon passed and my mind returned to the present and the fact that you can pick up almost any issue of an aviation magazine and in it see an advertisement proclaiming how useful aircraft are to the construction business (which they are), together with a picture of one parked near heavy earth-moving equipment, obviously having landed on the road that was being constructed.

Talk about perspective, if Woodlock was concerned about flying within 250 feet of two residences at Tecopa, what did he think the first time he went into Chicago's Midway on an airliner? Every time I've been in there, in airliner or Lear Jet, I've looked for tire tracks on the roof tops of the buildings across the street from the end of the runway. Surely, as a resident of the Washington, D.C., area, he has driven out by Bailey's Crossroads and the ancient and small Washington and Virginia Airport, which has some of the hairiest approaches and departures of any private airport in the country? At one end of the "long" runway is a deep wooded ravine, at the other stands various warehouse and commercial buildings. If you use the shorter runway, and take off towards the highway, right across it and in your flight path is a large drive-in movie screen. One gasp of the old engine and the patrons there get an extra added short subject.

Dr. Pendleton could just have well been circling to check an airstrip in the same spot there on the desert just outside Tecopa, but located parallel to and 75 feet from the highway, which is exactly the way Pendleton tells me that the short, oiled, l2OO-foot strip at Shoshone is laid out.

It was unbelievable to me then, and it still is, that a man trained as a lawyer, and who has made a career of the CAA-FAA, could possibly be serious that the presence of an airstrip ten miles away had any rational or legal connection with the event of 1anding on a highway, and the event of taxiing on it. Use of the highway by aircraft, as Woodlock pointed out, was a matter for the State of California, not the FAA. As a matter of fact, in 1967, the California legislature passed a law prohibiting such use, except for forced landings, or by prior permission from a local law enforcement agency.

It is quite clear from the decision that the Hindsight Chorus was really prosecuting Pendleton, not for flying within 500 feet of a house, but because he landed on the highway and they didn't think he should have. Just as with John Bernard Moorhouse, who was flying "in and out" of the edge of the overcast, but whom the Chorus thought should never have taken off from Lafayette against the advice of the airline pilot, the Los Angeles Chorale was using the 500-foot charge as a wedge to prove a non-violation, landing on a highway.

"Incident to landing at other than a recognized landing area," wrote Woodlock. When I read that I wanted to exclaim, "But we're lawyers, professionals; any fourth grader can see that that regulation (nor any other) makes no qualification of the except when necessary clause, whatsoever, no how."

"The exception contained therein was not in my opinion, intended to cover. . ." I wanted to ask Fred Woodlock if it was his belief that a pilot should conduct himself based on what a hearing officer surmised the regulation to be rather than on the meaning of it as written in plain English. How in the name of Clyde Cessna, could Pendleton know in advance what Woodlock's "opinion" was going to be? Or why in the name of Walter Beech should he be expected to conduct himself in accordance with it?

I didn't ask him these questions (since I was still employed by the FAA), but I did go down to see him about the case quite a bit later. First, I had discussed it with my branch chief Norman Plummer. Naturally, he couldn't get excited. Nor did he think we could do anything about it. I, of course, wanted to see the case thrown out, instanter. Anyway, I filed an extra copy of the decision in my desk. It kept nagging me. So one day I ventured forth down to the third floor, from the ninth, to the Hearing Officer's offices.

I had not met Fred Woodlock, and a nicer, more cordial or friendly guy you could never meet. I was cautious and circumspect, but I nudged him about Pendleton and the "except when necessary" clause, and holding the doctor "careless" simply for the event of having taxied along the highway. He was quite candid, acted chagrined about the decision, and conceded in a quiet voice that perhaps he'd crowded that one a little too closely. It was a pleasant talk, I'd had a pleasant walk.

As time passed, I was learning more of the ropes around the office. It had become apparent that our branch would do nothing to criticize a case in the field unless we had the merits of the issue so squarely on our side that any chance of suffering from regional backlash was eliminated. So I drafted an intra-office memorandum to the Rules Division (GC-20) of the Office of General Counsel requesting an official interpretation of the "except when necessary" clause. Not that I ever felt the issue was in doubt.

On January 29, l968, I showed a draft of the memo to Plummer, my branch chief. He told me that even if we got a ruling from GC-20 adverse to the L.A. prosecution he didn't think it would be proper to ask them to drop the case. But he made some revisions, approved it, and sent it to our division chief, who then signed off on it.

The clock had been ticking away, however. Pendleton had appealed to the NTSB on November 16, probably the same day he received Woodlock's decision of the 13th in the mail. His motives were not unlike mine. He wrote: "I wish to appeal this case or order to your department for further clarification."

A few weeks later, in response to a letter from Examiner Russell A. Potter, he added: "I am appealing this case because I feel the penalty far outweighs the crime, if they are considering this to be a crime."

It turned out that when I wrote that memo to GC-20, he'd already had his NTSB hearing with Potter. It now became a suspenseful waiting game to see who would come up with what answer to the same question.

Prior to the NTSB hearing, DeWitte Lawson, the Los Angeles FAA lawyer, had filed a motion with the NTSB for Judgment on the Pleadings, the same as a motion to dismiss in practical effect. He argued:

That the public interest will not be served by proceeding to an evidentiary hearing when there are no material issues of fact presented by the pleadings or remaining to be proved to establish the violations alleged.

Dr. Pendleton had admitted the facts in his answer to the FAA's formal complaint filed with the NTSB, but he'd denied that he had violated any rule.

It apparently didn't occur to Lawson that the NTSB might not apply these same facts to the same rules in the manner that the FAA had. I thought the motion a rather curious legal maneuver 27/231 for an FAA lawyer to pull since the NTSB hearing was a trial de novo, a brand new ball game. So I called him about it. I suggested to him that the motion was not proper because Pendleton had a clear statutory right to have his case heard by the NTSB under any circumstances. I urged further that it was a distinct possibility that the Examiner might not agree with his and Woodlock's legal conclusions. I don't know how impressed he was with my points, but we have a clue, he never withdrew the motion.

The grave implication of this episode was the fact that here was an FAA lawyer, one who handled enforcement cases, who himself didn't comprehend Section 609, the statutory heart of the system. An "appeal" to the NTSB is a matter of absolute right. It can be dismissed only for procedural defects, such as, not filing your notice on time or failing to file an answer to the FAA's complaint. Moreover, it may not be dismissed, if for no other reason, because the pilot has the right to have the NTSB make its own determination of the size of penalty warranted by the violation. The Board can reduce it, and has in a few cases found the pilot to be guilty of the violation but on account of mitigating factors held that safety in air commerce and the public interest did not require any suspension. All this is so basic, that I was shocked that he couldn't see it.

Actually, the ramifications of this incident were doubly serious. Lawson was low man on the totem pole, an Indian, not a Chief. Everything he prepared in the area office went out under the Area Counsel's name. It can be fairly presumed that Joseph Standell, who held that job, knew about the motion or had a hand in it. If FAA lawyers who process more than a hundred enforcement cases annually lack an elementary understanding of section 609, how does the FAA expect the layman-pilot to know what's going on? Or his local attorney?

After discussing the motion with Lawson, I moved the conversation to what I was really curious about. I asked why Los Angeles was pressing so hard when the incident had occurred in such a Godforsaken place with no harm or risk to anyone.

His reply is one for the annals of aviation history: "If we don't go after him we'll have pilots landing all over Los Angeles."

I about choked. I suppressed a horselaugh. Then I told him that while I didn't claim to be an expert, I had spent the better part of 1966 flying professionally out of Van Nuys in all sorts of airplanes and that the pilots I knew there weren't suicide prone. And I suggested that it wasn't a very real or practical problem to be concerned about. Additionally, I told him that I doubted if a dozen Los Angeles pilots would ever even know about the case. But Lawson was dead serious.

Lawson revealed another factor in the background of the case that was most interesting. He said that he and his boss, Standell, had wanted to drop it, but were overruled and were only pressing it because Western Regional Counsel Ned Zartman had insisted that they do so. All in all it was a fascinating telephone conversation.

That Federal Aviation Administration lawyers could really believe prosecuting a man for landing on a county road in a remote corner of the Mojave Desert would influence the actions of thousands of pilots flying in the Los Angeles area was astounding to me. That they really thought a threat existed of pilots deliberately and recklessly landing on streets and highways "all over Los Angeles" left me flabbergasted.

On January 10, 1968, less than two months after he had requested the hearing, Dr. Pendleton, Lawson and Examiner Potter assembled at the San Bernardino County Courthouse, seventy-five miles south of Barstow at the east end of the Los Angeles basin.

The first order of business was Lawson's motion for judgment on the pleadings. Potter promptly denied it. Lawson had also sought to have a split hearing, that is, part in San Bernardino, and part in Tecopa. It seems that the Robertsons and the other couple had begged off from making the 400-mile roundtrip on account of "ill health," and Lawson wanted to take the hearing to them instead.

Potter denied that motion too. He then proceeded on the basis that since Pendleton had admitted to the facts in his answer to the complaint, but disagreed with the conclusions regarding the application of the rules to those facts, they could go ahead without the Tecopa witnesses. He should have dismissed the 91.9 charge because, without live testimony from people who saw the airplane, the FAA had no way to carry its burden of proof on the "careless" charge. This was more than a mere technical flaw, but we need not concern ourselves with it.

Lawson then outlined his case, and the hearing kicked off in typical FAA fashion:

Potter: I take it that the Administrator rests on the admissions that have been made by the respondent, is that correct?

Lawson: That is correct.

Potter: Very well then, Dr. Pendleton, it's up to you to proceed.

He did, stating briefly what had occurred, and he wound up:

Pendleton: I haven't any kind of accidents in the 23 years that I have flown, since 1945. I have had no citations, and I've had nothing that was--I was never brought up on charges or on the carpet or ever talked about, and I have flown under many and many an instructor, so I am not one that is going out, trying to endanger the lives or property of anybody. I have my own, and I certainly don't want it endangered.

Lawson took advantage of the fact that Pendleton was testifying on his own behalf, and cross-examined him in an attempt to prove a case that he couldn't hope to prove without any prosecution witnesses. The FAA never had had any evidence that he passed over the settlement itself, the trailer park or hotel, and that is why way back in May, Bergstrom, in Salt Lake City, had dropped the charge about flying over a congested area. But Lawson proceeded to question Pendleton about whether he had passed over the resort hotel or trailer park even though that was not a legal issue under the charges in the case. Pendleton steadfastly denied ever having done so.

It was quite evident that Dr. Pendleton genuinely had no idea of what it was that he had done on that flight that was against the rules. During the cross-examination by Lawson, he said:

Pendleton: And I parked the plane on this, I believe it was Robertsons' property, and I'm not sure.

Lawson: That's correct. Robertsons' property.

Pendleton: I didn't ask permission' incidentally, and this is apparently where I did wrong, I don't know.

This is reminiscent of the character in Franz Kafka's surrealistic novel, The Trial, who endures a trial, without ever knowing what crime he has been charged with committing.

Lawson kept boring in on Pendleton, trying to make points. He met with a singular lack of success, although he did succeed in provoking Pendleton to put the needle to him:

Lawson: Let me ask what you mean when you say that you did a skillful job of piloting?

Pendleton: Anytime you can take an airplane off and land it, you're pretty skillful, otherwise you'd just crack up. Are you a pilot?

Lawson: I think I'm propounding the questions to you, if you don't mind.

That was an embarrassing question. Another of Lawson's was a lulu. He asked about the appearance of the people who gathered at the parked aircraft, five or six of them:

Lawson: Weren't they upset or alarmed?

Pendleton: No.

In the name of the Quiet Birdmen, what did Lawson think those people thought about who was going to return to the airplane, sitting there on that vacant patch of desert? Little green men with antennae sticking out of their heads?

Accomplishing nothing by his cross-examination, because there was never any real question of fact at issue anyway, as he himself had already agreed to, Lawson finally got down to the guts of the case in his argument to Potter, and in one sentence made his only sensible statement of the day (but a massive understatement if there ever was one):

Lawson: I think that this case is perhaps clearer on the facts than it is on the question of the applicable law.

Before we move on to the next sentence of his argument, an argument the purpose of which was to persuade Examiner Potter to sustain the FAA sanction of thirty days, I want to comment on what you are about to read. As you well know, when you watch any of the television shows centered on lawyers, Perry Mason, Judd For The Defense, and the like, they are working from a tightly written script tailored to a carefully worked out story plot. Perhaps at some time, though, you have wondered how a lawyer would sound who was arguing a case he didn't firmly believe in, about a subject he obviously had little comprehension of, involving laws or rules which he didn't fully understand, and who had little or no experience in trial work in courts of law. If you have, I suggest to you that this is what he'd sound like:

Lawson [continuing]: I think that Sections 91.9 and 91.79(c) are applicable to the facts as we know them. Section 91.79(c) prohibits anyone from operating an aircraft closer than 500 feet to any person, vessel, vehicle' or structure--

Potter: That's not exactly right, is it?

Lawson: -- except for --

Potter: That s not exactly correct.

Lawson: --other than congested areas, except when--except when necessary to take off or land. Now the next step to evaluate is the fact that the exception to the violation of this is--

Potter: Takeoff?

Lawson: Except when necessary to take-off or land. Now, I think the language "when necessary to take-off or land," in order to have any meaning, in order to have any effect, must relate to a landing, as landings are ordinarily usually made. Now, I tend to think that in this case, Dr. Pendleton did operate the aircraft closer than 500 feet in circling over the area to inspect it prior to landing, but I think this was not "necessary" as the regulation uses the language, but rather incident to his landing. I think in order for the regulation to have any meaning, and to have any applicability in situations where there's perhaps a need for a flight to be governed, we nave to read "when necessary for take-off and landing," as applying to a place of landing where landings are normally and ordinarily made. I think his landing, or his low altitude at least, was incident to his landing, but I don't think it was "necessary" in the sense that is imported by the regulations.

Potter: Any cases on that, Mr. Lawson?

Lawson: Sir?

Potter: Are there any cases?

Lawson; I have discovered absolutely no cases, which tend to interpret the meaning of the language to make it applicable to--

Potter: You consider it standard practice not to inspect the field before you land on it? A farmer landing on a potato patch, good operating practice was to fly over the landing area, 50 feet or so, look at it, and circle and land.

Lawson. I agree Sir, however--

Potter: You say it's not applicable here?

Lawson: I'm saying this, that this would not be applicable to the facts in the situation where there is landing on the highway, because in trying to analyze exactly what this situation means, I conclude that if we take "necessary" to mean if the pilot is in the process of making a landing, he cannot violate any of the prohibitions in this regulation. I think it means that he can take any place he chooses to land and he would not, while in flight, violate any of the prohibitions against flying over congested areas or closer than 500 feet, if this is not a congested area. In other words, if you take "necessary" to mean it's OK if the pilot's in the process of making a landing, this means that the pilot could land right in New York City, as long as he was intending to land the aircraft, and he could not be held in violation of any of the minimum altitude restrictions.

Potter: What about the potato patch?

Lawson: As to the potato patch--

Potter: Potato patch.

Lawson: If it s his own--

Potter: What if it's his neighbor's? What you are telling me, Mr. Lawson, is that by virtue of 91.79, an airman can land only at a prepared landing site.

Lawson: Except for emergency situations. Not as far as the landing itself is concerned, but as far as his required distance from vessels, persons, objects is concerned. That's the only prohibition . . . . "necessary to landing" means a place suitable for landing when necessary, not just based on the whim or caprice of the pilot to set the plane down somewhere, and thereafter say, "Well, this was excepted. I was in the process of landing, so when I did what I did, I did not come too close to the buildings or obstacles." Is it less than the exercise of ordinary care and prudence, for a pilot to elect to land on a road and taxi into a station--excuse me, into a settlement, though it be a small settlement, and park the aircraft on property.

Is this less than ordinary care which should be exercised by a pilot. I tend to think that it is, and it is also indicia of careless operation by the election of the pilot to land on this particular road for mere convenience when there's known to be a suitable facility elsewhere. There was nothing imperative about having to land here. This was not a situation that required Dr. Pendleton to put this aircraft on the ground. He just saw the area and elected to land in the area, and I tend to think that it's careless. In other words, the exercise of less than ordinary care for a pilot to just decide, "I will land on this road for convenience, although there might be residences and a service station, and I might have to pass over at low altitude in order to make sure that the road is safe, there are no holes, and things of this nature, and make sure there are no vehicles on it, and make sure that it's wide enough, to check the power lines. I will have to pass over the houses or the service station, power lines, at less than the recommended safe altitude, because I want to land here. I know there's an airfield somewhere else, but it's convenient for me to do this, so I will land here."

I tend to think that this landing--the performance of such a landing is a careless operation in several senses . . . I think that landing on this particular road was in and of itself, a careless operation in view of the total circumstances of a highway not being desired for, or considered, a proper place for aircraft to land; in view of the fact that there was an appropriate facility for aircraft to land at a reasonable distance away and known to the pilot of the aircraft; the taxiing of the aircraft along this highway into the town itself, constituted another careless operation, and I think careless as defined in Part One is all of that operation of the aircraft until it completes its intended flight, so therefore, I tend to think that the taxiing into the settlement and parking it near residences was also a careless act.

Pendleton: Well, I don't have much to say on this. I'm admitting to everything that I have done, excepting the careless and dangerous factor in this whole procedure . . .

Potter: I don't think the rules apply. Do you want a written decision, Mr. Lawson?

Lawson: Yes.

I really don't know how to say it, other than, pitiable, unbelievable. I feel the same way every time I read it. The muscular strength which that argument gave to Lawson's jaw should last him the rest of his life. When a lawyer has nothing to say, he ought to say nothing. I read the transcript of Pendleton in amazement and disbelief. I wasn't shocked, however, as he was simply making the same arguments, obviously, that persuaded Hearing Officer Fred Woodlock to inscribe his own piece of nonsense. I might add, that when I read Lawson's argument, I thought to myself, "This has to be straight out of Alice in Wonderland." (Which was well before I decided on the title of this book and to use quotations from that masterpiece of nonsense.)

I mean no personal disparagement of Lawson--I've never met him, and when we talked on the phone he sounded to be a most sincere and pleasant chap--but his words are a matter of public record, there to be read by anyone who cares to take the time. Too, we can ameliorate our attitude towards him, and judgment of his remarks, by keeping in mind his position: he had been ordered to go ahead and prosecute the case by the man ultimately responsible for his promotions, Regional Counsel Ned Zartman.

Moreover, Pendleton was reviewed by no less than four lawyers in the Western Region: Bergstrom, Standell, Lawson, and Zartman. It was Zartman's baby. Without question the case was discussed and reviewed before prosecuting it, and if all those other lawyers couldn't give Mr. DeWitte T. Lawson, Jr. an intelligible position to support in the case, then those above him should share equally, if not more so, in the disapprobation deserved by any who were responsible for the atrocity that Pendleton stands for.

There's no point in belaboring what it means in the context of a regulatory system to have one of its lawyers seek to convict a pilot of a violation with the constant use of the phrase, "I tend to think" and so forth. You see that. (Lawson, remember, wrote in regard to the commercial pilot who ran out of gas, "your act approximates careless operation.") But let s just review briefly what he was trying to say, and could have said in a few words.

First, it was clear above all else that the Los Angeles Hindsight Chorus did not approve of Pendleton's use of the county road. It can be truly said that they were preoccupied with that fact. But the fact that he admitted to flying closer than 500 feet to two residences, which would have been a violation but for the landing and "except when necessary" clause gave them, they thought, the sword edge to make an argument with. And that was simply this: It's OK to fly closer than 500 feet to, etc., on an approach to or a departure from a regular airstrip or airport, but if you are not going to use an "approved or recognized landing site" then you must be sure to stay 500 feet or more away from persons, vessels, vehicles and structures, while you do.

Had Lawson put the argument this clearly, and that was what he was really trying to say, it would have put him in a great big box. Because it would then follow that had Dr. Pendleton not circled over the two residences, but made his approach to landing on the highway so that he did not come within 500 feet of any of the prohibited objects, his operation would have been perfectly legal, by Lawson's own argument.

To put it another way: It was OK for him to land, anywhere, so long as it was out in the open and the 500-foot rule could be observed. But Lawson was trying to cut it both ways, have his cake and eat it too. If he implied that landing would have otherwise been all right, then he would have had to explain why taxiing on the road was not. The two positions are, of course, inconsistent. Just as in Moorhouse, the real charge, the violation of a non-regulation, illegally landing on a highway, could not be reconciled with the paper or technical violation, the 500-foot rule, the wedge, so to speak.

In ruling against the FAA and for Dr. Pendleton, Examiner Potter wrote:

The Administrator contends that the exception, "except when necessary for takeoff or landing" has application only to landing at prepared landing areas, or areas that are customarily used for landing of aircraft. The examiner does not agree for it is not so stated in the regulation. If section 91.79(c) is intended by the Administrator to prohibit aircraft from landing on roads, then the regulation is so lacking in specificity in this particular as to be unenforceable. (See Pike v. C.A.B., 303 F.2d 353.) But, there is no legislative history or other evidence in the record to indicate that the Administrator did so intend at the time the regulation was promulgated.

But Potter's decision was not to be the end of this fiasco. Los Angeles just wouldn't give up. They filed a notice of Appeal to the full Board. Ordinarily the appellant has ten days in which to file his brief. Standell and Lawson, however, requested an extension of time on grounds "that unexpected matters of an immediate and emergency nature have developed." No explanation was given of what these "matters" were. Fritz L. Puls, NTSB General Counsel replied, routinely: "We find that the reasons given in support of your request constitute good cause for granting the requested extension.

The "emergency" was a phone call from my division chief, Jennings Roberts, on March 8, 1968, telling Zartman to "knock this stupid nonsense off!" (My words, not his.) Zartman didn't want to do it, and said he'd think about it. The responsibility for the entire case from start to finish, clearly, was his. I could comment on Zartman's zeal to appeal no better than Dr. Pendleton, who wrote to Examiner Potter after receiving notice of the appeal:

As expected, the Federal Aviation Administration has filed an appeal to your decision. Would you advise me as to the best procedure or course for me to follow in this case. I want to get this thing cleared and settled, must something like this be carried out to all proportions of erroneous accusations, as Mr. Lawson is so doing.

I can't afford to hire a lawyer for such an insignificant incident to front for me, so if you will enlighten me what to do or say, to get this case cleared up I will be very thankful.

Examiner Potter replied reassuring Dr. Pendleton that since there was no factual question, but merely one of interpretation, that he needn't worry about submitting a brief.

"Must something like this be carried out to all proportions?" How in the name of Blackstone does Zartman think he is going to improve a regulatory system, a system of written, codified rules, by appealing a decision adverse to the FAA in a case involving a chiropractor-private pilot living in a small town in the Mojave Desert--or anywhere? How many pilots does he really believe would know about the decision?

Moreover, if the NTSB Examiner couldn't see Zartman's pet interpretation of the rule, why should a layman-pilot be able to? Isn't the solution to change the regulation, if it's not clear? Wasn't Zartman's quarrel with FAA Washington rather than with Glenn Edwin Pendleton? It is amazing to me that men trained to be lawyers would think that such a procedure, appealing to the full Board on a vague regulation,~would make a contribution to a system of written rules.

What's the explanation for this sort of thinking--or non-thinking? It isn't that Zartman is stupid. He didn't get to be Western Regional Counsel through a lack of brains--hard headed maybe, but not stupid.

I think the explanation has to be this: Zartman is a career government lawyer. He has never practiced law privately. It is in that arena that the lawyer, whose shingle says he is an Attorney-at-Law, learns to view legal problems from differing perspectives. If he thinks a case should be abandoned, no matter how unhappy the client may be, he'll recommend it--that's what he's being paid to do. He has no grade promotions to worry about. His practice will grow as his reputation for independence and integrity develops. When he takes a case he has to put himself in his client's shoes. Then he has to put himself in the shoes of both the man suing his client and his lawyer. From that he can begin to make a balanced judgment about the case and how best to proceed.

But FAA lawyers are blinded by their passion to prosecute in the holy name of air safety. Most of them don't have the background which develops the ability to analyze and evaluate cases from all perspectives. Because they are out of touch with the public they serve and ignorant of the activity they regulate, they can't picture the view from the cockpit--through the plexiglas. Another problem lawyers like Zartman have is that the their law school training hasn't been leavened by the realities of law practice and seeing first hand how much trouble people have in understanding the written rules of a complex society. Their experience in government is gained in a semi-vacuum, removed from reality, so their legal education isn't properly tempered. In law school they come to think of law in terms of lawsuits taken to the highest court for an erudite opinion from some 1earned judge about what the law is. So they keep on thinking in those terms, judge-made law, rather than the need for regulations the public can understand simply by reading them.

By coincidence, Zartman happened to be in Washington when GC-20 finalized their response to my request for an interpretation of 91.79 and the "except when necessary" clause. By further coincidence he was talking to the chief of GC-20, Tony Lalle, when I walked next door to ask for a copy of their reply. When Lalle told him that it was adverse to his position, Zartman said, with a facetious grin, "There we go persecuting private pilots again."

I left without joining the conversation.

Zartman's comment stands out so vividly in my mind because it was the second such remark I'd heard that day. Earlier, I'd been in the office of my division chief discussing with him a proposed memorandum concerning an enforcement action taken by another region against a pilot. The lawyers there, my division chief, Jennings Roberts, agreed, had misstated the regulation they were charging so that its meaning was reversed. I asked Roberts if we didn't have an obligation to the airman to state clearly and succinctly the nature of the regulation he had violated. He responded; "I don't care about the airman, I'm only concerned about our lawyers in the regions fouling up." So when Zartman made his facetious crack, it became firmly etched in my mind, as more of the same, only Roberts hadn't been facetious.

Here's the FAA's official interpretation of Section 91.79 [the questions in brackets were those from my memo requesting it]:

In reply to the specific questions stated in your memorandum, we submit the following comments:

[Is the "Except when necessary for takeoff and landing" clause under Section 91.79 intended to apply only when such an operation is being conducted at a "recognized" landing area, or does it apply to any landing or takeoff?]

1. The "Except when necessary for takeoff and landing" clause of Section 91.79 applies to any landing or takeoff, irrespective of the location.

[Do the Federal Aviation Regulations purport to regulate, recognize, restrict, or otherwise approve the place where a general aviation aircraft may or may not land or take off? (Other than the use of common sense and good judgment in complying with Section 91.9, or operating in accordance with the aircraft's operating limitations.)]

2. The Federa1 Aviation Regulations do not purport to regulate, restrict, or otherwise approve the place where a general aviation aircraft may or may not land or take off. There are, however, certain restrictions such as Section 91.9 which you mention.

[Was the regulation designed to leave to the pilot an area of judgment as to what is "necessary" for landing or taking off?]

3. The pilot is left a certain area of discretion or judgment as to what is "necessary" for landing or taking off under the regulations. It is a question of fact in each case whether discretion or judgment was lacking.

In view of the foregoing answers we, of course do not agree with the decision of the FAA Hearing Officer in the Pendleton Case. . . . we agree with the decision rendered by Examiner Potter . . .

That memo then cites a case, CAA v. Douglas, CAB Order No. S-329--1950, as being

squarely in point with the current issue since the respondent Douglas flew low over public and private property in the vicinity of Grandfalls, Texas, landed on a highway leading into that town and taxied his aircraft onto and along a public street . . . A hearing Examiner and the CAB both found . . . no violation . . . [Douglas] should be considered as the controlling precedent for the acts stated in the present case, and should have been cited and followed by both the area counsel and the Hearing Officer in charging the violations to Dr. Pendleton, and the disposition of those charges.

/s/ A.W. Lalle, GC-20

This is the memo that my division chief, Roberts, quoted to Zartman on March 8, and in the face of which Zartman still wanted to appeal. During a second phone call on March 19, although he staunchly disagreed with the memo, Zartman acceded to abandoning the appeal. On April 30, 1968, the Board ordered the appeal dismissed.

This was the sort of adverse decision that in spite of which my branch chief didn't think it would be proper to ask the Western Region to drop the case. None of these lawyers gave a damn about Glenn Pendleton. They could think only of their bureaucratic prerogatives or not muddying the internal waters of the agency with a contest between Washington and Zartman's suzerainty. Zartman, who spent a lot of time working there, and as we're learning, would rather fight and argue with Washington than switch.

Back in November, Hearing Officer Fred L. Woodlock in his Decision and Order, which suspended Pendleton's ticket for thirty days, had written, rather sanctimoniously:

Respondent does not appear to be too familiar with the Federal Aviation Regulations and it is hoped that this action against his certificate will encourage him to remedy this situation.

The real question here is what remedy is there that will encourage Woodlock and the rest of the L.A. Hallelujah Hindsight Chorus to correct their own attitudes and deficiencies? Suspend their law degrees? Not a bad idea. At the least they should be required to answer this one simple question: What language, that a reasonably intelligent person could read and understand, is contained in the FARs that would tell him that he can neither land or taxi on the Shoshone-Tecopa road out there in the Mojave Desert? Then they should have to copy the answer 1,000 times on the blackboard.

Absolutely and unequivocally no basis ever existed for charging Dr. Pendleton with a violation of Section 91.79, nor, for that matter, Section 91.9, which Los Angeles slipped into the case at the last minute.

During our interview at Barstow, I asked Glenn Pendleton, "Did you think about getting a lawyer?"

"No, not at all, because I didn't feel that the depth of this crime would begin to warrant my spending that kind of money. What I knew about the situation, why, I felt that I could represent myself adequately."

"What crime at that time did you think you might have committed, if any? What was it about the transaction at Tecopa, at that point that you thought you'd done something wrong? "

"What I would say--I was in the fog--I didn't figure that I had committed any crime, really."

"Had you landed on a highway in other locations?"

"Oh, yes, my goodness, yes, on country roads, such as that. I was trained by bush pilots from Alaska. I can set a plane down on a dime and give you a nickel change."

He also told me: "I made a cross-country in the year of 1967 to Denver from here, and my omni wasn't working right and I got pulled off of course, and I landed at a place not too far from Window Rock, Arizona. I landed on the highway there because they'd just had a terrific rainstorm that'd gone through there, and I went over the strip, and it was a mud strip, and it was covered with water, and I didn't want to take a chance setting down on that. I wanted to find out my bearings, where the dickens I was. So I landed on the highway there and taxied into . . . well, it was a lone house out there that I got the information from. So I was violating the law there too, I guess, I don't know."

I suggested to him that might be considered an emergency. He agreed, and continued.

"If they get to pressing too many laws on the airman they're going to choke private flying right out of the picture entirely. 0f course, I'm not in favor of promiscuous landings on highways, and such as that, but in these forlorn places I can see nothing wrong with it, truthfully."

He didn't know about the later l967 California law prohibiting the use of highways, except for a forced landing or with prior approval. I also told him that I had commented to Lawson that there wouldn't be a dozen pilots who'd know about his case. He allowed as how that was a fair estimate. I asked who knew about it in Barstow?

"No one," he replied.

I was quite surprised by this and asked if he hadn't at least mentioned his FAA case to other pilots in his flying club.

He said that he had not. "Why should I. This is what gets people into trouble--lingual diarrhea."

Pendleton once again confirms the lesson we've already learned: The FAA's total absence of a realistic effort to provide the pilot with an explanation of what the system is about, and where he stands.

"Why did you opt for the FAA Hearing? One of the options you had on the back of that Notice of Proposed Certificate Action was to have an informal conference.

"Yeh, this is what I chose to do. I wanted to find out why, ah, they were forcing this thing in the first place. Secondly, why I would be given a choice of three different things here."

"So you weren't sure exactly what all those options meant?"

"No."

"But you did select the FAA hearing?"

"Yes."

"Now, when you did that were you thinking you were selecting the informal conference, or what?"

"I thought I was selecting the informal conference. I wanted them to hear my side of the story. As it was before, it was through correspondence only that we were bickering back and forth."

His confusion between the informal conference and the formal hearing isn't too important to us. He said that he understood that whatever he was going to it would be his opportunity to present his side of the case. My concern, in talking with him, was to find out why he had gone through two completely separate hearings, FAA and NTSB. So I asked him, in connection with the notice given in Woodlock's decision that he had a right to appeal to the NTSB:

"Was this the first time you realized that you could have a second hearing?"

"Yes, in fact I was determined, after I could see the fallacy of the whole thing that, if I'd had to, I'd gone on to a Congressional hearing."

We chatted about the waste of time and effort that two hearings entailed.

"You might also add, a tremendous waste of taxpayer's money, because the money that they spent on this insignificant case--what would they do on a, a more serious case?"

Dr. Pendleton, never quite certain whether he had done anything wrong or not, can be proud of standing up for his, and the rights of all of us, and proud of his refusal to knuckle under to those FAA lawyers who know only that once they have a sniff of that scrap of clothing they must catch their man--for something. One pilot, in particular, owes Glenn Edwin Pendleton a debt of gratitude for not having to go through the same ordeal, an ordeal that only ended after one year and seven months from the date of the alleged infraction.

From: WE-7

Subject: JAMES A. BAKER--Case No. DEN-68-OG-54: Landing in Vacant Field Within the City of Powell, Wyoming

To: Chief, Flight Standards Branch, DEN 200

Based upon our review of the above case, we believe our hereinafter described disposition to be required by the known facts and current General Counsel interpretations of the FAR's sought to be applied.

The file establishes that airman Baker . . . landed his Citabria aircraft in a vacant lot situated within the city limits of Powell, Wyoming, and four blocks from its downtown area . . . he made approximately three circling passes over congested areas . . . at altitudes estimated at 200 feet . . . After landing, he attended an auction that was conveniently being held about two blocks from his landing site. Baker was almost immediately arrested and fined $54 in Powell Municipal Court for violating an ordinance which prohibits aircraft landing within the city . . . Upon payment of the fine, the police blocked off the street and Baker took off successfully.

We believe a National Transportation Safety Board Hearing Examiner's initial decision in the case of Administrator v. Pendleton establishes the unenforceability of FAR's 91.79 and 91.9 in the foregoing factual situation.

Although the locality of Powell, Wyoming, successfully enforced its safety standards prohibiting aircraft landings in a congested area, we feel required by the Pendleton decision to close this case without action. In accordance therewith, the case is hereby closed, subject to being promptly reopened in the event evidence of endangerment to lives or property is discovered.

NED K. ZARTMAN

Regional Counsel

By: /s/ Dewitte T. Lawson, Jr.

"Although the locality of Powell, Wyoming, successfully enforced its safety standards." Translated: "We sure hate to see them to be the only ones to punish this guy, but we have no choice."

"Subject to being promptly reopened." Translated: "You bring us another scrap of clothing, and we'll be off and baying to get him for something."

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This is Tecopa, it's at the line of trees in the background, all 150 of its citizens. The road that angles off from the highway in the foreground is where Dr. Pendleton landed his aircraft. As Lawson put it, "If we don't go after him we'll have pilots landing all over Los Angeles."! Took the photo in 1970 with my Rolleiflex from a C-206 that John Seibold, founder of Scenic Airlines in Las Vegas, for whom I was doing some work, kindly had fly me over there.

Note: One faltering step has been taken to help the pilot keep out of the trap of two hearings. By amendment of December 12, 1968, the FAA lawyer's enforcement handbook provides an additional option for the airman: "I request that the Order be issued so that I may appeal directly to the National Transportation Safety Board." This was the direct result of an idea I had. After attending an informal conference, I scrutinized the options we were required to give the airman; I realized that by not mentioning the possibility of going directly to an NTSB hearing, which the list of option didn't point out, we were inadvertently drawing the pilot into the FAA hearing, since that was the only option mentioned--if the pilot wanted to fight the charges--that would appear to him to be the place to have his trial to do it in. So I suggested to my branch chief that we include such an option, and tell the pilot, in effect, that he could bypass the FAA hearing. That's something FAA lawyers are always happy to see happen. He thought that was a good idea and the amendment is the result. The wisest thing, however, would be to abolish the FAA hearing entirely. [Remember, this was all written in 1969.]

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