<< Back 8/7/02 Jackson helicopter still stirring discontent By Don Hendershot Cherokee Helicopters, a sightseeing business located in the Qualla community of Jackson County, is still stirring winds of discontent. County commissioners told residents last week that the state attorney general’s office says there appears to be little the county can do to stop the business as long as it is adhering to federal regulations. Qualla residents, however, believe civil action may be their best hope for a remedy. Community residents have complained to Jackson County commissioners since the business opened in 1999. In November 2001 commissioners passed an ordinance seeking to regulate helicopter sightseeing operations in the county. James Garst, manager of Cherokee Helicopters, defied the ordinance and continued to fly. He was cited by the county. Garst won the ensuing court case in December when District Court Judge Steve Bryant ruled the ordinance was unconstitutional because it violated the Equal Protection Clause of the U.S. Constitution and sections 1 and 19 of Article 1 of the North Carolina Constitution. Earl Davis, a 25-year resident of Jackson County and owner of Moonshadow Learning Center in Whittier, asked commissioners that they not let the helicopter issue “slide off your radar screen.” “I don’t think the helicopter is in line with what anyone wants for Jackson County,” Davis said. He noted that instructors at his outdoor learning center have to stop teaching each time the helicopter passes over the school. He said that was sometimes as often as 16 times in an eight-hour period. Commissioner Stacy Buchanan, responding to Davis’ comments, gave him a copy of a report the county received July 15 from the North Carolina Department of Justice. The report, an advisory opinion from the N.C Attorney General’s office regarding the regulation of sightseeing helicopters in Jackson County, was in response to a February inquiry from the county’s attorney seeking advice on what options the county might have regarding the helicopter. The opinion says, in part, that: “The North Carolina Supreme Court has observed that Chapter 63 of the North Carolina General Statutes, which deals with aviation matter, contemplates full cooperation and compliance with federal law governing aviation ... In other words, it is likely that compliance with federal altitude and route requirements would equate with compliance with the altitude provisions of N.C. Gen. Stat. 63-18.” The opinion states, in regards to a Haywood County ordinance banning sightseeing helicopters: “It is likely a court would invalidate the Haywood County Ordinance.” In response to a question regarding the modification of the Jackson County ordinance, the opinion states: “In conclusion, we are of the opinion that Jackson County may not use the ordinance to regulate helicopter sightseeing operations based on the facts presented.” As to what other options might be available to the county, the opinion states, “We note that the proprietor of the service has expressed some willingness to agree to be bound by restrictions in excess of those mandated by federal law. Negotiations along these lines would appear to be the best course of action available to the County.” Jackson County Board Chairman Jay Denton said the helicopter was a dead issue unless one of the commissioners brought it back up. “It is a legitimate business,” Denton said. Davis said two things came to mind when he read the opinion. One was that this was a legal opinion and that another judge or attorney general might have a different opinion. Secondly, he felt the opinion left an avenue open for a civil challenge. Davis said a grassroots group, including members of the Qualla Community Development Association, had met once and were planning a second meeting for Aug. 6. “We’re leaning towards some kind of class action,” Davis said. Regarding civil action, the opinion states: “A helicopter sightseeing business does not constitute a nuisance per se because it is an otherwise lawful enterprise. County attorney Raymond Large said the attorney general’s opinion was nothing new. “The best avenue is for people affected directly to take action as opposed to the county. For the county to become involved it would have to be a nuisance countywide and it’s not, neither in my opinion, nor the attorney general’s opinion, nor the court’s opinion.” Davis noted that 600 residents had signed a petition seeking relief from the helicopter business. “I’ve thought about the situation and I believe this is an opportunity for this community to directly influence its environment. If it can’t happen legally, perhaps it can happen (through a civil suit),” Davis said. Davis said the group wants to take its message to the tourist. “They are the ones going up. It’s not the residents.” Davis said the group intends to monitor the business to be sure it adheres to FAA regulations and that it is considering picketing. “We plan to make our feelings known visibly and vocally,” Davis said.