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EOJ JAEDR7QJREFI\JE ITED STATES COURT O APPEA{JSTHE DISTRICT O COLUMBIA ii i LRK

TEXAS EQUUSEARCH MOUNTED SEARCH AND RECOVERY TEAM, RPSEARCH SERVICES INC., and EUGENE ROBINSON, Case No

Petitioners v

FEDERAL AVIATION ADMINISTRATION,

Respondent PETITION FOR REVIEW

Pursuant to Rule 15a of the Federal Rules Appellate Procedure and 49U.S.C. 46110, Texas EquuSearch Mounted Search and Recovery Team TexasEquuSearch, RPSearch Services Inc and Eugene Robinson, hereby respectftilly

petition this Court for review of an order issued to them on February 2 2014, bythe Federal Aviation Administration FAA . A copy of the order is attached sExhibit the Order .

The FAAs Order commands Petitioners to cease all use of radio-controlmodel aircraft in connection with their volunteer, unpaid search-and-rescue effortson behalf of the families of missing persons. The Order declares in no uncertain

USCA Case #14-1061 Document #1489196 Filed: 04/21/2014 Page 1 of 21

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terms that such operations are illegal and demands that Petitioners stop

immediately.Since its founding Texas EquuSearch has coordinated volunteer searchers

in over 1 4 searches in 42 states and eight foreign countries and has found over3 missing people al ive In other less fortunate cases the organizations effortshave recovered remains helping families to end the agony of not knowing theirloved ones fate permitting closure and enabling the human dignity of funeral.When a disappearance is the result a crime early discovery of the victimsremains benefits the countrys justice system by preventing deterioration offorensic evidence.

Texas EquuSearch and the other Petitioners have been using on e specific

technological innovation in its searches since 2005: model aircraft. A modelaircraft equipped with camera is perhaps the single most powerful search and

rescue tool in the crucial early hours and beyond. Indeed to date photographs

taken by Texas EquuSearch volunteers using model aircraft have directlypinpointed the location of remains of eleven deceased missing people. The modelshave also helped direct volunteer resources in countless other searches to help

volunteers avoid hazards on the ground to facilitate resource allocation to areas of

greatest interest and to save time during the crucial early hours of the search


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Petitioners have standing to apply for review of the Order because of their

substantial interest in th agencys declaration that their conduct is illegal andmust be halted. See 49 U.S.C. 461 10a . Since the date of the Order Petitionershave not operated model aircraft for purposes of searchandrescue activitiesdespite several instances in which the technology would have been of assistance intheir searches for missing persons. The Order has had and continues to have animmediate and significant impact on Petitioners day today operations.

As reflected in various FAA public statements concerning model aircraftoperation the Order represents the agencys definitive position on the us ofmodel aircraft and asserts the status of law with an expectation of immediatecompliance. Additionally although there is no agency process permitting furtherreview of the Order counsel for Petitioners wrote to th FAAs Chief Counsel onMarch 17 demanding that the Order be rescinded and providing 30 days time fora response. A copy of that letter is attached as Exhibit 2 The FAA did notrespond at al l, thus confirming that the Order represents the agencys position.

Immediate review of the Order would confirm that there is no legal basis forthe FAA to prohibit the operation of a model aircraft for volunteer search andrescue activities. As will be elaborated in the briefing that will be filed in this

proceeding the FAA h s never issued a regulation concerning model aircraft


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operation. On the contrary, over three decades ago it confirmed that these devices

were not subject to any regulation, when it issued voluntary guidance on ModelAircraft Operating Standards in Advisory Circular AC 91-57 June 9 1921. AC9 1-57 makes no distinction between model aircraft flown for hobby purposes andmodel aircraft flown fo r any other purpose. Nor is there an indication in AC 9 1 57that any regulations, such as those relating to pilot certification or airworthiness,are applicable to radio-control model aircraft.

In 2007, the FAA declared fo r the very first time, in a policy memorandum,that model aircraft may not be operated by persons or companies for businesspurposes. See Unmanned Aircraft Operations in the National Airspace System,Docket No. FAA-2006-257l4; Notice No 07-01, 72 Fed Reg. 29 at 6689 Fe b13 2007 the 2007 Notice. This statement, issued as a policy statement andnot pursuant to the Section 553 notice-and-comment rulemaking process under theAdministrative Procedures Act, is not legally binding upon the public.

Even if the FAAs 2007 policy were somehow binding, which it is no t theoperations conducted by the Petitioners fall outside of any restrictions articulatedby the FAA in that policy. Texas EquuSearch, a Texas non-profit corporationregistered as an I.R.C. Section 501 c 3 non-profit pubic charity, does not use the

model aircraft for a commercial purpose. The purpose is purely humanitarian: to4


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save a life when possible, and to e se the suffering of families by bringing closure

when that life can no longer be s ve d Families are never charged for searches,whether they involve the model aircraft or not The model aircraft operator is anunpaid volunteer. The distinction that the FAA now draws between TexasEquuSearchs use of this technology, and that of a hobbyist, is entirely arbitraryand capricious, in violation of the Administrative Procedures Act and due processprinciples. There is no basis whatsoever, in law or policy, to prohibit theoperation of a model aircraft for humanitarian search and rescue activities.

The FAA Order should be set aside because it is unlawful, arbitrary,

capricious, an abuse of discretion, and not otherwise in accordance with law

Date: April 8 2014 KRAMER LEVIN NAFTALIS FRANKEL LLP

Brendan M Schulman

1177 Avenue of the AmericasNew York, NY 10036Tel: 212 715-9100Fax: 212 715-8220Email: B S chulman@KramerLevin. cornAttorneys r Petitioners


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CERTIFICATE OF SERVICE

I hereby certify that on April 8 2014, I caused a true and correct copy of

the foregoing Petition for Review to be served by overnight delivery FederalExpress upon the following persons:

Michael P Huerta Jerry M MellodyAdministrator Chief Counsel ActingFederal Aviation Administration Federal Aviation Administration800 Independence Avenue SW Office of the Chief CounselWashington, DC 20591 800 Independence Avenue SWWashington, DC 2 59

Date: April 8 2014KRAMER LEVIN NAFTALIS FRANKEL LLP

Brendan M Schulman1177 Avenue of the AmericasNewYork,NY 10036Te l: 212 715-9100Fax : 212 715-8220Email: B Schulman@KramerLevin. cornAttorneys r Petitioners


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IX


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From: A1vin.A.Brunnerfaa.govDate: feb 21 , 2014 3:30 :54 PMSub jec t: Re: UA SAR activitiesTo: Gene Robinson

Gene,Tim Miller? Our Tim Miller? I wouldn t think so; probably someone from Hays CoEM S I guess? Also permissions from who? Land owners?At any rate , latest word I have is the sUAS Rule is due out for public comment beforeyears end . As you said, such predictions have failed befo reLastly, som e changes have occurred but nothing regarding sUAS flight operations in thelower 48. As I have told you befo re UAS operations that are not authorized vio late part9 1 and some others) and hence are illegal . You, through NIST have a COA to operatethat particular UAS in the prescribed airspace, and thats it. SAR operations ou tside theCOA airspace that meet the Emergency COA ECOA) criter ia can be requested andapproved in short orde r, even on the weekends holidays. I have not heard of yourequesting and ECO A or anyone having trouble getting an ECOA within a day or so.Have you had troubles applying for and getting one? If so , I can help fix that. On theother side of the fence , if you are operating outside of the COA provisions, stopimmediately. That is an illegal operation regardless if it is below 400ft AGL, VLO ordoing volunteer SARI understand the pressure to get sUAS integrated in to the NAS is mounting, bu t it mustnot be at the sacrifice ofwhat is right or safe.Best wishesA1B.Alvin BrunnerAviation Safety InspectorNextGen Branch, UAS AWOPM817-222-5246alvin.a.brunnerfaa.govAny comments you may have on se rvices provided are apprec iated Please email feedback to:http ://www.faa.gov/about/office_org/headquarters_offices/avs/stakeholder_feedback/afs/regional/


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From : Gene Robinson ASW-220,Nextgen BranchTo: Alvin A Bmnner/ASW/FAA@FAA,Date: 02/21/2014 01:45 PMSub ject: UA SAR activities

AlI am still flying volunteer search and rescueSAR missions with Texas Equusearch usingmy companys RC planes with cameras for still imaging I know it has been some timesince we spoke about thisWe still operate under 400 AGL and VLOS just as befo re I am also actively trainingothe r groups to do the same kind of operations in a safe and effective fashion I wouldlike to know whether the FAA has changed its position on the use of this assetI often ge t requests from Tim Miller on very short notice and it is difficult to wait onindividual permissions without jeopardizing the mission, especially on the weekends andholidays when office s are clo sed The new rules promised years ago have not materialized. The new promised da tes arestill years off while the demand for this activity remains high Under the circumstances,I am just going to continue these operations unless you give me a legal reason not toThanks for your attention to this matterGene RobinsonRPSearch Serviceswww.rpsearchservices.org


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KRMR LVIN N FT LIS FRNKL P

BRENDAN M. SCHULMANSPECIAL COUNSELPHONE 212-715-9247FAx [email protected]

March 17, 2014Via Certified Mail and Federal ExpressMarc L. Warren, ChiefCounsel ActingOffice of the Chief CounselFederal Aviation Administration 00 Independence Avenue, SWWashington, DC 20591

Re: FAA Order Prohibiting Texas EquuSearch Use ofModel Aircraft F or Volunteer Search and Rescue ActivitiesDear Mr. Warren:

We represent Texas Equu earchMounted Search and Recovery RPSearch Services Inc.and Mr. Eugene Robinson collectively the Texas EquuSearch Team or the

Team, and writein response to an inconceivable order issued to them by an FAA official. That order directs theTeam to cease all use of radio-control model aircraft in its life-saving volunteer search-and-rescue efforts. The FAA official has decreed in no uncertain tenns that such operations areillegal and has demanded that the Texas EquuSearch Team stop immediately.

We are aware of no administrative process affording further review of this order.However, we write in the hope that you will agree that the FAAs order is groundless andoverturn it or direct that the Administrator rescind it immediately. Our review of the relevantstatutes and regulations finds that the civilian use of a model aircraft for purposes of a volunteersearch-and-rescue effort is lawful and violates no existing aviation

regulations. The FAAannounced a purported ban on business use ofmodel aircraft popularly called drones or bythe technical term UAS in 2007 but that ban is not binding on the public because it is only apolicy not a regulation. Moreover, the use ofmodel aircraft by Texas EquuSearch for voluntee rhumanitarian purposes falls outside of that ban. It is incomprehensible that the FAA would fordecades raise no issue with respect to recreational operation of these devices but prohib it anddeem illegal the exact same use for the purpose of saving the lives ofmissing children.

Because of the urgent nature of the humanitarian work performed by the TexasEquuSearch Team, in which the lives ofmissing persons are at stake virtually every day, werespectfully urge you to reverse or rescind this unlawful directi

ve within 30 days received byApril 16) so that we may avoid resorting to legal remedies in the courts.

177 viui ofj NEwYoIu NY 10036-2714 u 212.715.9100 x 212.715.8000990 Msii Mxriio P iuc CA 94025-1949 Prio 650.752.1700 fAX 650.752.1800

KL 9676 Avim o 75008 PIUs fc Priot 33-1 44 09 46 00 FX 3 31) 44 09 4601


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USCA Case #14 1061 Document #1489196 Filed: 04/21/2014 Page 19 of 21

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KRMR LVIN N FT LIS FR NKL Marc L Warren sqMarch 17 2014Page 9

capricious and in violation of the Administrative Procedures Act and due process principlesThere is no basis whatsoever in law in policy or in connnon sense to prohibit the operation ofa model aircraft for volunteer search nd rescue activitiesRequest for Relief

The FAAs Mission Statement nd Core Values featured on its website read in prt

Integrity is our touchstone We perform our duties honestly with moralsoundness and with the highest level of ethicsInnovation is our signature We foster creativity and vision to provide solutionsbeyond todays boundaries4We do the right thing even if no one is looking5We hope that you will do the right thing now We urge you to overturn the FAAs

February 21st order or direct that the Administrator expressly rescind it within 3 days of thedate hereof Otherwise we intend to pursue ll available legal remedies In order to stop furtherharassment by telephone we also ask your office to confirm in a written Legal Interpretation thatmodel aircraft operations for volunteer search and rescue purposes are not currently prohibitedby any federal aviation regulation

Very truly yoursWVI

Brendan M Schulman

BMS:rlEnclosures

http://www.faa.gov/about/mission5 http: //www.faa .gov/aboutinitiatives/sms/specificsby_aviation_industiyjype/the jegulator/


WL Tfl iATES COURT OF PPE LSUSCA Case #14-1061 Document #1489196 Filed: 04/21/2014 Page 20 of 21

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.ff jT OF COLUMBI CIRCUIT UK IJFWPEALSd COLUMBI CIRCUIT PR 21RE E i\IE UNITED STATES COURT OF APPETHE DISTRICT OF COLUMBIA C R UIT RK

TEXAS EQUUSEARCH MOUNTED )SEARCH ANI) RECOVERY TEAM, )RPSEARCH SERVICES INC., and )EUGENE ROBINSON, ) i i ) Case NoPetitioners v

FEDERAL AVIATION ADMINISTRATION, Respondent

RULE 26 1 CORPORATE DISCLOSURE STATEMENTSTexas EquuSearch Mounted Search and Recovery Team Texas

EquuSearch) is a Texas Corporation, formed as a non-profit corporation the TexasNon-Profit Corporation Act and registered with the Internal Revenue Service as aSection 501 c) 3) public charity. Texas EquuSearch has no parent company and isnot publicly traded.

RPSearch Services Inc is a Texas Corporation, formed as a non-profitcorporation under the Texas Non-Profit Corporation Act and registered with theInternal Revenue Service as a Section 501 c) 3) public charity. RPSearch

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Services Inc has parent company and is not publicly traded.

Date: April 18,2014 KRAMER LEVIN NAFTALIS FRANKEL LLP

Brendan M Schulman1177 Avenue of the AmericasNew York, NY 10036Tel: 212 715-9100Fax: 212 715-8220Email: B [email protected] for Petitioners

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