LEGAL QUESTIONS ABOUT ROCKET LAUNCHES OVER CUMBERLAND ISLAND

 

Although the FAA has the authority to govern air commerce, it would appear that allowing rocket launches over Cumberland Island Wilderness Area will be in conflict with the Wilderness Act (16 U.S.C. 1131 et seq.) and the Cumberland Island National Seashore Act (16 U.S.C. § 459i) and therefore would need an Act of Congress to resolve.

 

It is clear that the purpose of the Wilderness Act and sections of the Cumberland Acts are to prohibit all activity “incompatible with the preservation of the unique flora and fauna or the physiographic conditions” of the Seashore and Wilderness Areas.

  

When the Wilderness Act was enacted in 1964, rocket launches over Cumberland Island could not have been anticipated. However, under, sections 3(c) and 3(d) irrefutable argument can be made that launches of rockets are specifically prohibited over Cumberland Island National Wilderness Area, and most likely over the entire property of Cumberland Island. It may also be construed that Little Cumberland Island qualifies as a protected area since under 16 U.S. Code § 459i–3(d)(2) the owners of Little Cumberland entered into an irrevocable Trust or agreement which “…assures the protection in a manner consistent with purpose for which the seashore is established,”.

 

(16 U.S.C. 1131 et seq.) 3(d) SPECIAL PROVISIONS

“The following special provisions are hereby made:

1. Within wilderness areas designated by this Act the use of aircraft or motorboats, where these uses have already become established, may be permitted to continue subject to such restrictions as the Secretary of Agriculture deems desirable.”

It is clear that Congress intends for airspace over areas defined as Wilderness to be used only if “already established.” It is also clear that though rockets can be loosely described as aircraft, if a rocket does not carry passengers, and does not have wings like all aircraft did over Cumberland in 1964, then rockets cannot use the airspace. In fact, neither lawmakers nor the general public commonly refer to vertically launched, wingless rockets as ‘aircraft.’  Therefore, unless previously established, rocket launches were not allowed upon establishment of the Wilderness Area and are prohibited.

 

(16 U.S.C. 1131 et seq.) 3(c) PROHIBITION OF CERTAIN USES

"Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area." Since airspace is a part of the Seashore and Wilderness Area, then commercial use for private rocket launches are not permitted. In fact, it required an act of Congress to allow van tours on a 25 foot wide unpaved roadway to Plum Orchard Mansion.  

 

Additionally, the Wilderness Act imposes certain responsibilities on the United States to protect the Wilderness from outside influences such as excessive noise, shock waves from sonic booms and falling debris. It is argued that the area designated as a down range evacuation zone for each rocket launch imposes a risk to the ‘flora, fauna or physiographic conditions’ (16 U.S. Code § 459i–5) of the zone and therefore is likewise prohibited over the Wilderness Area. In fact, it would be very difficult to defend in Federal Court the premise that the disturbance of a rocket launch overhead should be allowed while a rider on a bicycle is forbidden in the Cumberland Island Wilderness Area.

 

Therefore, although the FAA has the authority to govern air commerce, it would appear that allowing rocket launches over the Cumberland Island Wilderness Area would be in conflict with the Wilderness Act and therefore would need an Act of Congress to resolve. In lieu of such an Act of Congress, the approval for rocket launches over Cumberland Island does not appear to be allowed.