- Jun 25, 2002
- Total Time
No airspace restrictions were printed on sectional charts; no notam marked the area off-limits. When a woman at Hartsville Regional Airport relayed over the Unicom that law enforcement wanted him to land, he had flown to that airport and landed, greeted by a swarm of law enforcement vehicles.
Nonetheless, Fleming spent the night awake in a cell with 11 other inmates. The next afternoon, still in custody, he discovered the details of the charges: “flying very close to the nuclear plant dome in a ‘no fly zone,’” “escalated a multi-jurisdictional call out to a homeland security situation,” “ordered several times to land,” “causing the disturbance throughout the community.”
He finally left the detention center 24 hours after his arrest, exhausted and eager to clear his name. The charges were dropped the next month, but now Fleming wants to make sure no other pilots are subjected to a similar ordeal.
At the airport, Griffin said the officers on the scene told her to demand the glider land at Hartsville, but that an FAA official on the phone said the FAA was not demanding he land. So, she said, she gave Fleming a choice: “Police officers here are asking you to land, but the FAA says you do not have to land. I’m leaving this up to you.” Fleming said to tell the officers he’d be there in a minute, she recalled.
The arrest report, however, paints a different picture, alleging that Fleming “had to be ordered several times to land” before he complied. Griffin strongly contests this version of events: “I was the only one on the unicom with him,” she said. “I never demanded him to land.”
The arrest warrant referred to a “no fly zone.” The incident report said that “a glider or drone had infiltrated the restricted airspace over the H.B. Robinson Nuclear Power Plant.” But Fleming knew nothing on the FAA sectional charts prohibited him from flying there.
From flying competitions in the area, he knew that the Savannah River Site, a 310-square-mile Department of Energy industrial complex that handles nuclear materials in support of national defense, is marked on sectionals with a notice requesting—not requiring—that pilots avoid flight at and below 2,000 feet msl in the area. If a nuclear site as large as Savannah River didn’t prohibit overflight, how could the area around the Robinson plant be restricted—especially if nothing said so on the charts?
Facilities such as the Robinson plant are addressed in an FDC notam issued following 9/11: “In the interest of national security and to the extent practicable, pilots are strongly advised to avoid the airspace above, or in proximity to such sites as power plants … . Pilots should not circle as to loiter in the vicinity over these types of facilities.” Because gliders routinely circle to gain altitude in thermals, the Soaring Society of America sought a clarification from the FAA, posting on its website on March 7, 2002, that the FAA did not consider this behavior loitering. “The key is to spend only as much time as needed to gain lift and move on beyond the facility,” the association wrote.
Fleming had made a single pass over the plant, and his circling had been mostly on the opposite side of the lake. The FAA looked into the overflight and later confirmed to AOPA that it found no violation of the federal aviation regulations—but Fleming was transported to the Darlington County Detention Center. The Federal Bureau of Investigation and Department of Homeland Security would interview him the next day, and Fleming said an officer read the arrest warrant to him around 3:30 p.m. July 27.
It’s unclear exactly how the concept of a no-fly zone was introduced, and a spokesman for the Darlington County Sheriff’s Office did not return phone messages requesting comment.
The attorney Frank Reid had found represented Fleming for the breach of peace charge, but Fleming sought additional assistance from an attorney familiar with aviation through AOPA’s Legal Services Plan/Pilot Protection Services. John Hodge, an attorney and 17,000-hour pilot who has flown gliders, provided aviation-related information under the plan’s 20 hours allotted for local law enforcement issues. From the FAA’s perspective, Fleming’s flight was legal and legitimate: No restricted or prohibited areas were charted. Plus, local law enforcement does not have the authority to order an aircraft to land, Hodge said. And any argument that Fleming delayed in complying with the request to land must take into account the nature of a sailplane: Just like a sailboat, it can’t simply go directly from Point A to Point B.
A better knowledge of aviation issues among law enforcement officials may have produced a better result for Fleming. Griffin said she had to tell the officers on the scene to clear out the runway, and one officer talked about commandeering the airport. “He was running around, the one guy that was commandeering everything, saying, ‘We were going to shoot him down,’” she said.
On the other hand, Griffin said that pilots from the Chesterfield County Sheriff flew the department’s helicopter to the airport, but left when they found out what was going on. “They pulled out a chart and they said, ‘Look here, … nothing in this chart says you cannot fly over the nuclear plant,’” she said. “’Nothing.’”
Fleming waited outside the courtroom Aug. 21 as his case went before the judge. When his attorney returned and said the case would be dismissed if he agreed not to take any legal action against Darlington County law enforcement, he said, he reluctantly agreed. But he wouldn’t be satisfied until he could be sure a pilot can rely on the sectional for direction and not go through a similar ordeal.