Susan A. Ehrlich, Leonard Schaitman, Attys., App. Staff, Civ. Div., Dept. of Justice, Washington, D.C., for defendant-appellant-appellee.

Joseph J. Boswell, Mobile, Ala., for plaintiffs-appellee.

Appeals from the United States District Court for the Southern District of Alabama.

Before KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges, and ALLGOOD[fn*], District Judge.

PER CURIAM:

The decision appealed from is AFFIRMED on the basis of the Opinion and Order of District Judge Virgil Pittman, filed on September 28, 1978, and attached hereto as an Appendix.

AFFIRMED.

[fn*] District Judge of the Northern District of Alabama, sitting by designation.

[fn1] Minimum Descent Altitude is "the lowest altitude, expressed in feet above mean sea level, to which descent is authorized on final approach or during circle-to-land maneuvering in execution of a standard instrument approach procedure where no electronic glide slope is provided." Pilot/Controller Glossary, FAA, p. 24 (attached to defendant's trial brief) (hereinafter Glossary).

[fn2] Instrument Flight Rules are "[r]ules governing the procedures for conducting instrument flight [and] a term used by pilots and controllers to indicate type of flight plan." Glossary, p. 21.

[fn3] 14 C.F.R. § 61.57(e) provides:

"(e) Instrument - (1) Recent IFR experience. No pilot may act as pilot in command under IFR, nor in weather conditions less than the minimums prescribed for VFR, unless he has, within the past 6 months -

  (i) In the case of an aircraft other than a glider, logged at least 6 hours of instrument time under actual or simulated IFR conditions, at least 3 of which were in flight in the category of aircraft involved, including at least six instrument approaches, or passed an instrument competency check in the category of aircraft involved."

(Emphasis supplied.)

[fn4] FAA Advisory Circular 61-65 provides at page 8:

"The person conducting the check should indorse the pilot's logbook upon the satisfactory accomplishment of an instrument competency check. That endorsement should read substantively as follows:

MR./MS.___________ HOLDER OF PILOT CERTIFICATE NO. 0000001 HAS SATISFACTORILY COMPLETED AN INSTRUMENT COMPETENCY CHECK ON 11/20/73

s/s J. J. JONES 652372 CFI Exp. 11/30/73"

[fn5] Visual flight rules are "[r]ules that govern procedures for conducting flight under visual conditions. The term `VFR' is also used in the United States to indicate weather conditions that are equal to or greater than minimum VFR requirements. In addition, it is used by pilots and controllers to indicate type of flight plan." Glossary, p. 43.

[fn6] SIGMET/SIGNIFICANT METEOROLOGICAL INFORMATION is "[a] weather advisory issued concerning weather significant to the safety of all aircraft. SIGMET advisories cover tornadoes, lines of thunderstorms, embedded thunderstorms, large hail, severe and extreme turbulence, severe icing, and widespread dust or sandstorms that reduce visibility to less than 3 miles." Glossary, p. 36.

[fn7] AIRMET/AIRMAN'S METEOROLOGICAL INFORMATION consists of "[i]n-flight weather advisories which cover moderate icing, moderate turbulence, sustained winds of 30 knots or more within 2,000 feet of the surface and the initial onset of phenomena producing extensive areas of visibilities below 3 miles or ceilings less than 1,000 feet. It concerns weather phenomena which are of operational interest to all aircraft and potentially hazardous to aircraft having limited capability because of lack of equipment, instrumentation or pilot qualifications. It concerns weather of less severity than SIGMETs." Glossary, pp. 3-4.

[fn8] Instrument Landing System/ILS is a "precision instrument approach system consisting of the following electronic components and visual aids:

[fn9] Ross had a copy of the approach plate for Bates Field onboard the aircraft. (Plaintiffs' Exhibit # 6). Printed on the Bates Field approach plate in his possession were both the Minimum Descent Altitude (MDA) and the Decision Height (DH) for Bates Field.

[fn10] The outer marker at Bates Field is 4.6 nautical miles from Runway 14. An Outer Marker is a "marker beacon at or near the glide slope intercept altitude of an ILS approach. It is keyed to transmit two dashes per second on a 400 Hz tons which is received aurally and visually by compatible airborne equipment." Glossary, p. 29. In other words, the outer marker emits an electronic signal that is received and heard in the cockpit when the plane passes over the outside marker.

[fn11] Decision Height - "[w]ith respect to the operation of aircraft means, the height at which a decision must be made during an ILS or PAR instrument approach, to either continue the approach or execute a missed approach." Glossary, p. 14.

[fn12] The power lines were surveyed and platted and determined to be strung at a height of + 267.75 MSL. (Plaintiffs' Exhibit # 24). Bates Field is at + 218 feet MSL.

[fn13] 14 C.F.R. § 91.117(b) provides:

"Descent below MDA or DH.

No person may operate an aircraft below the prescribed minimum descent altitude or continue on approach below the decision height unless -

  (1) The aircraft is in a position from which a normal approach to the runway of intended landing can be made; and

  (2) The approach threshold of that runway, or approach lights or other markings identifiable with the approach end of the runway, are clearly visible to the pilot.

If upon arrival at the missed approach point or decision height, or at any time thereafter, any of the above requirements are not met, the pilot shall immediately execute the appropriate missed approach procedure."

[fn14] A wind shear is a "change in wind speed and/or wind direction in a short distance, resulting in a tearing or shearing effect. It can exist in a horizontal or vertical direction and occasionally in both." Glossary, p. 44.