- Jeremy Schwartz American-Statesman Staff
Alfred “Skip” Nichols, the chief pilot and owner of the Heart of Texas Balloon Rides, shouldn’t have been flying on the morning of July 30, 2016, when he crashed and died along with 15 passengers.
Two years earlier, the Federal Aviation Administration had learned of his lengthy criminal record of alcohol-related driving offenses. Nichols had violated FAA rules by not voluntarily disclosing any of the five incidents, any one of which could have led to the loss of his license. But, in a move that aviation attorneys and experts say is highly unusual, the FAA investigators chose to take no action. Instead of suspending or revoking his pilot’s license, they sent him a warning letter.
Despite the troubling revelations, the FAA didn’t keep Nichols on its radar. The agency studiously monitors the health of airplane and helicopter pilots, requiring medical checks every six months for most commercial pilots, and maintains a lengthy list of prohibited medicines, ranging from Xanax to allergy medicine.
But the FAA allows balloon pilots to fly without a medical certificate, which is designed to unearth such information. That exception stands in stark contrast to such countries as Canada, England and Australia where authorities require medical checks of their balloonists.
As a result, the FAA didn’t know that Nichols had been prescribed a cocktail of prohibited drugs, ranging from Valium and Ritalin to oxycodone, and he suffered from at least three medical conditions that could have grounded him.
The deadliest balloon crash in modern American history has laid bare wide gaps in the federal government’s oversight of balloon pilots and the growing commercial ballooning industry.
The FAA has so far rejected calls from its sister agency, the National Transportation Safety Board, and from members of Congress, to strengthen regulations on commercial hot air balloon operations.
It is instead pushing for industry-led reforms, which while comprehensive, wouldn’t reach every balloon pilot. Nichols for example, was one of thousands of licensed balloon pilots who aren’t members of the Balloon Federation of America, the group developing the safety plan.
The safety board is expected to issue its final ruling on the crash in coming weeks or months and will likely make a new series of safety recommendations. It’s unclear if the safety board will recommend that the health of balloon operators, especially those who fly paying customers, be monitored like airplane and helicopter pilots.
In rejecting the safety recommendations, the FAA has said it has found no evidence that drugs or prohibited medications have caused fatal crashes.
Yet a review of safety board crash reports indicates that, of the seven fatal balloon crashes in recent years in which investigators released toxicology results, in four cases pilots had prohibited medications in their bloodstream.
U.S. Rep. Lloyd Doggett, the Austin Democrat who represents the Lockhart area, said it is now clear to him that the FAA’s refusal to adopt more oversight of balloon pilots — including medical evaluations — played a major role in the crash.
“I have urged the FAA to reconsider its rejection of NTSB safety recommendations,” Doggett said. “Sadly, this has only been met with more delay. I now believe that had these safety measures, including medical evaluations, been adopted and enforced, this tragedy would never have occurred.”
Whether FAA officials decide to overhaul how they license and oversee balloon pilots could depend on how they ultimately choose to view the Lockhart crash: Did Nichols’ prescription drugs or his medical condition contribute to his ill-fated decision to fly, or to his ability to handle the nine-story tall balloon as it approached power lines? Or was he simply an experienced pilot who made a tragic mistake?
‘None of us chose to fly’
Before dawn on July 30, David Smuck woke up, checked the weather forecast and, after a brief huddle with his pilots, canceled all four hot air balloon flights his company, Austin Aeronauts, was scheduled to fly that morning.
Joseph Reynolds, another Austin hot air balloon pilot, did the same after he ran a special ballooning weather model that he passed along to local balloonists.
“We all have personal wind speed forecast limits, numbers that cause us to sleep in,” he would tell investigators. “None of us chose to fly.”
Amid all those cancellations, Nichols decided to lift off.
Nichols was off the grid to some extent. He wasn’t on Reynold’s email group, and local pilots couldn’t remember ever seeing Nichols at one of the group’s safety seminars, according to investigative documents.
On the morning of the crash, Nichols woke up at about 3:30 a.m., got some coffee and started checking weather websites, his roommate, who also served as his ground crew chief, would tell investigators two days after the crash.
According to Alan “Bubba” Lirette, who had worked with Nichols for about three years, Nichols usually made an initial decision to fly the night before: After checking the weather, he would call his mother, who took care of payments and scheduling from her home in Melbourne, Fla. She would then call passengers and get them ready for the morning’s flight.
But when Nichols called the Lockheed Martin Flight Service for a hyperlocal weather briefing that morning, he received an ominous forecast. Low hanging clouds were expected to start forming in the area at the time of the planned dawn flight.
“Those clouds might be a problem for you,” the weather service briefer told Nichols, according to a transcript of the call. “I don’t know how low you want to stay, but…”
“Well we just fly in between them,” Nichols responded. “We find a hole and we go.”
That flying philosophy violated federal safety rules, which require at least one mile of visibility and call for balloon pilots to remain clear of clouds.
But flying through or above low hanging clouds was something Nichols appears to have done on more than one occasion, according to the safety board’s investigation into the crash.
A former partner of Nichols, Michael McGrath, said Nichols often pressured him to fly on mornings with low cloud cover, a common feature of Central Texas summer weather.
McGrath said business was slower than what Nichols, who relocated to Central Texas from Missouri in 2013, had been expecting. Nichols, he said, had been forced to downsize to a smaller house and have Lirette move in with him to pay bills. McGrath, who said he rarely flew in the cloudy conditions, ultimately left Nichols’ operation after just a few months because of the slow pace of business.
Lirette, who died in a motorcycle crash on Dec. 27, described a more cautious pilot than McGrath. Nichols would “cancel in a heartbeat if required,” he said.
It’s unclear if Nichols felt financial pressure to make the July 30 flight, but despite the bad forecast, he and Lirette drove to the San Marcos WalMart to meet their 15 customers.
In the parking lot, Nichols set off a trial balloon to test winds and made the decision to launch from the Fentress Air Park near Martindale, home to a skydive school.
As they drove to the launch site, Lirette noticed a surface layer of fog, but said by the time they got to the air park “it was crystal clear.” The pair used a distant pole at the air park to gauge visibility. That morning, he remembered, they could see it with no problem.
Balloon pilots not screened
During a December investigatory hearing into the Lockhart crash, FAA officials were unable to explain why balloon pilots are exempt from the agency’s strict medical oversight of airplane and helicopter pilots. The exemption, they pointed out, had originated nearly a century ago.
“In my 13 years at the FAA, we have not looked at that,” said Dr. James Fraser, the FAA’s former federal air surgeon, during the hearing. “What happened … in the 1930s, I cannot speak to.”
That answer baffled NTSB investigator David Lawrence. Given “the physical nature of ballooning — it’s a much more physical process than actually flying an airplane — shouldn’t balloon pilots in general be required to have some sort of medical evaluation prior to flight?” he asked.
Fraser responded: “We would expect this pilot to self-report if you were fit to fly.”
But Nichols failed to disclose his arrests, medical conditions and prescribed medications for more than two decades.
Nichols racked up so many DWI charges in the years after he got his pilots license in 1993, he was charged as both a “persistent” and “aggravated” DWI offender. His Missouri driver’s license was revoked until 2020 and he served 18 months in prison. He never informed the FAA of the offenses and continued to operate a Missouri-based balloon tour company even as he racked up arrests and convictions.
Nichols moved to Central Texas after his 2012 release from a Missouri prison, telling friends he was sober, though sources interviewed by FAA investigators gave differing answers on the length of his sobriety. He flew paying customers in Texas, but wasn’t elegible for a Texas driver’s license because of his Missouri revocation.
Shortly after Nichols arrived, local balloon operators caught wind of his criminal history and reported their concerns to the FAA around December 2012 (Nichols’ mother told investigators that local balloonists weren’t happy when he moved to the area “since it increased competition for local business.”)
The agency’s security office conducted an investigation, turning up five separate alcohol-related driving convictions and license actions between 1985 and 2010. The failure to disclose even one of the offenses was grounds for loss of license.
Several aviation attorneys said they would expect a similar case against an airplane pilot to result in a suspension, or total loss of license. “(Failing to disclose DWI arrests) is treated very, very seriously,” said Mark Pierce, an Austin aviation attorney. “It’s my experience that the FAA would come down very hard.”
But FAA security officers based in Oklahoma only issued Nichols a letter: “We have decided not to take legal enforcement action. Instead, we are issuing this letter to inform you that future violations…could result in suspension and/or revocation of your airman certificate.”
Investigators, who apparently did not understand that balloon pilots aren’t required to get medical certificates, urged Nichols to more honestly answer FAA questions about arrests, substance abuse or loss of driving privileges on his next one.
A questionable investigation
Under questioning from NTSB investigators, FAA officials said they chose not to go after Nichols’ pilot license because of something called the “stale complaint rule.”
The rule is designed to force the FAA to take quick action when they investigate an airman, to “fish or cut bait,” according to Craig Weller, aviation attorney with the Aerlex Law Group. FAA investigators have six months to take action after learning of a potential violation, according to FAA spokesman Lynn Lunsford.
According to documents from the investigation, the FAA was alerted to Nichols’ arrests around the end of 2012; they decided against enforcement action just about six months later in July of 2013.
The case had grown stale because investigators had not handled it with “appropriate diligence” and agency officials feared that any action taken against Nichols would not hold up in court, said FAA Flight Service Director John Duncan during the December hearing.
But it appears that the FAA could have pursued the case even if they feared an NTSB administrative law judge would declare it stale because of their enfeebled investigation.
According to the NTSB’s medical report on the crash, Nichols failed to disclose both a 1985 alcohol-related offense and two drug possession arrests in 1987 on his initial 1996 medical screening, which Nichols obtained despite the exemption for balloonists, but never renewed. Failing to check that box is considered “intentional falsification,” attorneys say, and the FAA can pursue such a case even if it is stale.
“That gets (your license) revoked as fast as you would want,” Weller said. “That’s one of the cardinal sins in aviation. In many cases it’s also criminal.”
Was the FAA’s decision not to take action a symptom of its low level of concern for ballooning danger? “It certainly raises the question within the FAA of why they didn’t treat this more seriously,” Pierce said. “They should be embarassed by this.”
The medication link
In 2014, the safety board recommended that balloon pilots be required to get an FAA letter of authorization before a commercial ride. Airplane and helicopter tour operators must get such letters, which the safety board noted can trigger FAA inspections and drug testing of pilots. The change however would stop short of requiring balloon operators to get regular medical checks.
The FAA rejected the recommendation. FAA safety inspector James Malecha, who analyzed the recommendation for the FAA, said he found that in the previous four fatal commercial balloon flights, neither alcohol nor drugs were found to have caused the crash. Instead Malecha said his analysis found that crashes cited by the NTSB in its recommendation were caused by pilot error.
But a close look at NTSB reports shows that it’s not uncommon for pilots involved in fatal crashes to have taken prohibited medication.
Because toxicology tests aren’t provided for every pilot involved in a fatal crash, it’s impossible to tell how many balloon operators had taken prohibited medication. But in the seven investigations since 2003 in which investigators listed names of drugs found in toxicology reports, in four cases medications appeared that are prohibited by the FAA. In the other three, pilots had taken medications only allowed on a case by case basis after consultation with a doctor.
In a 2014 Pennsylvania incident, a pilot died after losing his balance and falling out of a basket. Investigators couldn’t definitively say whether the fall was due to his medical conditions, which included diabetes, but a toxicology report for the pilot found at least three drugs prohibited by the FAA: clonazapem, an anti-anxiety drug, Wellbutrin, an anti-depressant and an antihistemine, which the FAA warns can cause sedation.
Few toxicology reports can match that of Nichols’, which contained half a dozen prohibited medications.
His toxicology report doesn’t conclude whether Nichols was under the influence of any of the drugs at the time of his flight, a difficult determination to make given his longtime use of many of the pharmaceuticals. But FAA doctors say the combination of drugs, and possibility that he may have been experiencing withdrawal symptoms, could have conspired to alter his decision-making skills.
“When combined it’s clear the effects can be additive,” said Dr. Philip Kemp, a forensic toxicologist with the FAA during the Dec. 9 hearing. “The person will be even more impaired due to the combination of these medications.”
‘Rip and pray’
About ten minutes after the balloon launched, Bubba Lirette watched it disappear into the clouds. Nichols, he figured, would try to climb the massive balloon above the cloud deck. He was flying a Kubicek brand balloon, capable of fitting 18 passengers into 4 compartments. The balloon was among the biggest on the market: at nearly ten stories tall, it was harder to manuever than smaller orbs, but faster once it got up a head of steam.
Lirette kept in touch with Nichols through an app called Glympse, trading messages as he tailed the balloon through gaps in the clouds. The chase team watched as the balloon passed over them on a dirt road near Dickerson and rose back above the cloud deck. He got Nichols’ final Glympse message at 7:26 a.m.
At 7:38 a.m. a passenger snapped a photo of the balloon floating serenely above white clouds. At 7:40 another passenger texted a photo of the clouds, writing: “You see our shadow.” Along with the balloon’s shadow against the clouds, the photo showed a hole in the cloud layer with a power line tower in the distance.
Power lines represent the greatest danger for balloon pilots. More than half of deadly balloon accidents in the nation — 40 — involved striking power lines, resulting in fire, electrocution and fuel tank explosions, according to a 2016 Statesman analysis.
With reason then, pilots are trained to avoid areas with power lines and especially power lines that might be obstructed. “If you’re flying along and there’s a row of trees and a gap in the trees, you’re taught never to fly through that gap in the trees because there could be power lines on the other side,” said Andy Baird, a secretary with the Balloon Federation of American.
In the event of an imminent power line strike, pilots are taught to “rip and pray” — pull a cord that releases air out of the balloon causing a sudden drop. Hitting power lines with the nylon balloon, or envelope, is considered the safest bet: the balloon will get hung up in the lines, but passengers may survive.
That appears to be what Nichols attempted, but the balloon did not fall fast enough. The cables connecting the basket to the balloon envelope struck the power lines and likely were severed, causing the basket to plummet to the ground below.
A witness said she saw the balloon explode after it hit the ground.