Unpublished Disposition, 902 F.2d 1579 (9th Cir. 1990)

No. 89-70125.

United States Court of Appeals, Ninth Circuit.

Before HUG and SCHROEDER, Circuit Judges, and JAMES A. VON DER HEYDT,^**  District Judge.

MEMORANDUM^* 

Thomas Ramar petitions for review of the decision of the National Transportation Safety Board (NTSB) which affirmed the administrative law judge's decision that Ramar's commercial pilot certificate be suspended for 60 days for flying an aircraft within a terminal control area (TCA) without appropriate authorization in violation of 14 C.F.R. Sec. 91.901(a) (1) (i) and for endangering the person or property of another in violation of 14 C.F.R. Sec. 91.9.

"The NTSB's factual findings are conclusive when supported by substantial evidence in the record." Essery v. Dept. of Transp., Nat. Transp. Safety Bd., 857 F.2d 1286, 1288 (9th Cir. 1988); see also 5 U.S.C. § 706(2) (a). Controller Mullin's testimony and his diagram of Ramar's flight path substantially support the NTSB's conclusion that Ramar flew within the TCA and that this incursion was more than de minimis.

Substantial evidence also supports the NTSB's finding that the Jeppensen chart's inaccurate placement of Moffett Field did not cause Ramar's incursion. The error in the Jeppensen chart is only about one mile in magnitude. More importantly, the one mile error is in a general north/south direction which, as the NTSB concluded, should not have caused Ramar to fly two miles west, through the TCA. Because the error in the Jeppesen chart did not cause Ramar's incursion we need not determine whether Ramar reasonably relied on the Jeppensen chart for visual navigation.

We further find that the Administrator's counsel's misdescription of the TCA's outer boundary did not prejudice Ramar. The misrepresentation involved a couple of hundred feet at most, while Ramar penetrated the TCA by a couple of miles.

Finally, substantial evidence supports the NTSB's conclusion that Ramar endangered the life or property of others in violation of 14 C.F.R. Sec. 91.9. Ramar claims that no such endangerment occurred because the control tower monitored him at all times; the B-747 saw him; and his actions did not necessitate evasive maneuvers. This court has held that potential endangerment to life or property is sufficient to establish a Sec. 91.9 violation, even though a pilot's action did not cause actual injury. Ferguson v. Nat. Transp. Safety Bd., 678 F.2d 821, 829 (9th Cir. 1982); Cobb v. Nat. Transp. Safety Bd., 572 F.2d 202, 203 n. 3 (9th Cir. 1977); see, e.g., Hill v. Nat. Transp. Safety Bd., 886 F.2d 1275, 1280 (10th Cir. 1989); Haines v. Dept. of Transp., 449 F.2d 1073, 1076 (D.C. Cir. 1971). Here, Ramar flew his plane on a convergent course with a B-747. The two aircraft came within one mile horizontally and 200 feet vertically of each other. Such conduct substantially endangered the occupants of both aircraft and the control tower's fortuitous aversion of a potential accident does not exculpate Ramar.

Petition for review is DENIED.