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The Honolulu Advertiser
Posted on: Tuesday, April 23, 2002

Families can sue FAA for 1999 air crash

By Hugh Clark
Advertiser Big Island Bureau

A federal judge has cleared the way for the families of three victims of a 1999 Big Island air tour crash to seek damages from the Federal Aviation Administration for allegedly failing to enforce minimum altitude flight rules.

Ten people died when an air tour plane crashed on the slopes of Mauna Loa in 1999. The victims' families want to sue the Federal Aviation Administration.

Advertiser library photo • Sept. 27, 1999

Ten people, including the pilot, were killed Sept. 25, 1999, when a Big Island Air twin-engine sightseeing plane from Kona crashed at 10,100 feet on the northeast slope of Mauna Loa. The National Transportation Safety Board blamed pilot Dennis O'Leary, saying he had relied on visual flight rules despite cloud-covered mountainous terrain that called for instrument-guided flight.

Among the dead were David Bailey Sr., 55; David Bailey Jr., 27; and his wife Dana Stout Bailey, 26, all of San Jose, Calif. The Bailey and Stout families are suing the FAA, Big Island Air and Activity World, through which the victims booked the sightseeing flight.

The families' attorneys at O'Reilly, Collins & Danko Yamane of California announced Friday that U.S. District Judge Susan Oki Mollway had issued a ruling last month that allows them to pursue their claim that the FAA failed to enforce flight rules and that air tour operators were warned when federal inspectors would be coming.

At issue is the minimum altitude rule, which requires pilots to fly 1,500 feet above ground level.

"Local FAA administrators failed to report violations of the required altitude and to make records of alleged infractions," said lead attorney Niall Yamane. He said there were at least 1,000 complaints about violations of the rule between 1996 and 2001.

"The rules didn't do any good because they weren't obeyed ... because local FAA personnel were conniving with local tour operators to help them get away with violating the law," he said yesterday.

"Everyone has been wondering why minimum altitude requirements established eight years ago have not improved either safety or the noise level. Now we know why."

Steve Dahlen, acting manager of the FAA in Honolulu, acknowledged yesterday that the agency receives many complaints about low-flying aircraft, but said the reports are difficult to confirm.

Dahlen called "preposterous" Yamane's assertions that air tour operators are tipped off about FAA inspections. He said the inspections are not announced, but there may be problems keeping the visits secret. He said the inspectors ride in the cockpit of interisland carriers and conduct inspections en route.

"The crew knows who they are, and they are listed on the manifest. Anyone could tip off the (tour) operators," he said.

Dahlen said the FAA also has dispatched undercover inspectors who have issued citations for assorted violations. "Obviously, the operators were not tipped," he said.

In her written opinion, Mollway said there was enough merit in the plaintiffs' allegations to allow the court action against the FAA to proceed.

No one from Big Island Air was available to comment yesterday. Roy Mann, operations manager at the time of the crash, is no longer with the firm, said a woman who answered the phone yesterday. She referred calls to Jeff Appel, chief pilot, who did not return phone calls seeking comment.

Reach Hugh Clark at (808) 935-4322 or at hclark@honoluluadvertiser.com.