Controller responding Negative to canceling radar services?

[N801BH]

In the end, that's the long and short of it. PIC inadequately assessed their ability to maintain terrain and obstacle clearance.

The FAA settled it because they did have proportional liability in the matter and this is how the liability system 'spreads the risk' internally, through the use of proportional liability. Rarely is the 1-100% liable party found in these things. Things could have been handled differently on both ends, but ultimately, the majority of the liability, and ultimate cost, falls on the PIC.

I am still very confused on what SERCO / the tower controller did wrong..

 

[MarkZ]

When the pilot said he could maintain terrain and obstacle clearance he was taking responsibility for it himself.

Correct, but the NTSB report (which raises more questions than it answers) points out disconnects in the local and enroute controller's working of the accident aircraft.

What the NTSB report DOES NOT include is the fact that ZLC was one of the first of the Z's to install ERAM. They were a test facility, and in 2010 our facility heard all sorts of horror stories out of that place. Dropped data blocks. Ghost targets. Tracks that didn't coincide with the route of flight. Since then, all those issues have been worked out, and in my old facility ERAM was a great system. It helped make the job a bit easier, though it still remains light years behind the enroute system EuroControl and NATS uses across the pond.

I'm wondering if the ERAM debacle at the time may have played a role as well.

 

[Geico266]

The controller should be transferring the aircraft "at a sufficient distance from the airport to permit the pilot to change to the appropriate frequency for traffic and airport information." If the OP was bearing down on the airport 10 miles out with no termination, I'd call that sufficient distance, especially since the AIM says you should be on the freq 10 miles out.

I agree with above. Controller was in a bad mood and trying to flex his muscle in a situation where he really had no authority. Not even sure why he'd want to hold onto an aircraft that close anyway. Unless he has last minute traffic "N12345, before you go, traffic..." OP requests termination. Get rid of him.

I had to go to war with our local ATC because the airport I base at is 15 miles from Lincoln class C . Controllers would routinely "kick loose" traffic 3 miles from the airport. When the traffic made their position call they were already in the pattern! They seem to be doing a better job now after I complained to the local FSDO Safety Officer.

 

[Everskyward]

Correct, but the NTSB report (which raises more questions than it answers) points out disconnects in the local and enroute controller's working of the accident aircraft.

What the NTSB report DOES NOT include is the fact that ZLC was one of the first of the Z's to install ERAM. They were a test facility, and in 2010 our facility heard all sorts of horror stories out of that place. Dropped data blocks. Ghost targets. Tracks that didn't coincide with the route of flight. Since then, all those issues have been worked out, and in my old facility ERAM was a great system. It helped make the job a bit easier, though it still remains light years behind the enroute system EuroControl and NATS uses across the pond.

I'm wondering if the ERAM debacle at the time may have played a role as well.

Maybe, but it started with the pilot's faulty decision to take off in the first place, from Jackson Hole, in the snow, in a non-deiced Mooney, with the intention of climbing over some pretty big mountains. Then it got worse from there.

 

[MarkZ]

I am still very confused on what SERCO / the tower controller did wrong..

If the tower controller amended the flight plan to include portions of flight into uncontrolled airspace, and did so without pilot request...that's where the problem starts.

Also, amending the RAL from 16,000 to 14,000 (below the MEA for the segment).

 

[vintage cessna]

I am still very confused on what SERCO / the tower controller did wrong..

The NTSB says that by amending the route and altitude to 14,000 it placed an IFR flight into Class G, which is prohibited by the 7110.65 unless the pilot requested it.

Since there is no ATC transcript with the report it is not clear whether the pilot was actually ever cleared to 16,000 or not by the en-route controller. The tower amended the filed altitude of 14,000 to 16,000, so I would assume the controller knew about the higher MSA required for the flight, but amended the altitude back to 14,000.

It also sounds like there was some flight plan processing problems since the data block went into auto handoff to the wrong sector.

The whole report is murky in some areas but it leads you to believe there were several ATC problems with this flight.

 

[MarkZ]

Maybe, but it started with the pilot's faulty decision to take off in the first place, from Jackson Hole, in the snow, in a non-deiced Mooney, with the intention of climbing over some pretty big mountains. Then it got worse from there.

I agree. So many ADM errors.

But when someone augers it in, the lawyers will find a way to spread the pain. The pilot's estate won't be satisfied unless there is a way to blame something else.

 

[vintage cessna]

I agree. So many ADM errors.

But when someone augers it in, the lawyers will find a way to spread the pain. The pilot's estate won't be satisfied unless there is a way to blame something else.

I would agree that the pilot made some very bad decisions. However , there was still time for ATC to keep the aircraft in an area at a safe altitude as it is their duty.

There was a blatant violation of the 7110.65 when the controller told an IFR pilot to maintain his own terrain and obstacle clnc. The flight hadn't reached the peak yet and could have been turned around.

 

[MarkZ]

I would agree that the pilot made some very bad decisions. However , there was still time for ATC to keep the aircraft in an area at a safe altitude as it is their duty.



There was a blatant violation of the 7110.65 when the controller told an IFR pilot to maintain his own terrain and obstacle clnc. The flight hadn't reached the peak yet and could have been turned around.

Didn't the report say the controller did not have radar identification of the aircraft, or that it was spotty?

How can a controller turn an aircraft around if he doesn't know where the aircraft is? That could make matters worse and also be against procedure, as the turn would happen below the MIA and in uncontrolled airspace.

The controller told the NTSB he knew his instruction wasn't approved procedure. I'm wondering if the pilot said he could maintain his own terrain and obstruction clearance.

 

[vintage cessna]

Didn't the report say the controller did not have radar identification of the aircraft, or that it was spotty?

Sketchy at first, but radar contact the last 6 minutes of the flight. Apparently, the data block went to auto handoff to the sector controller who would have worked the flight had the route not been amended. That sector controller said he would work the flight but the controller retracted the handoff and the aircraft then turned towards higher terrain.

The enroute controller stated he did not know the pilots route had been amended from the filed FP. If he had perhaps he would have cleared the pilot to proceed on the route he originally wanted over lower terrain.

 

[vintage cessna]

Didn't the report say the controller did not have radar identification of the aircraft, or that it was spotty?

How can a controller turn an aircraft around if he doesn't know where the aircraft is? That could make matters worse and also be against procedure, as the turn would happen below the MIA and in uncontrolled airspace.

The controller told the NTSB he knew his instruction wasn't approved procedure. I'm wondering if the pilot said he could maintain his own terrain and obstruction clearance.

The flight was in radar contact . The pilot , when asked by the controller if he could maintain terrain clnc said he could.


You don't break the rules just because you have pilot concurrence. You NEVER let an IFR flight proceed on a route when MSA can not be reached.

 

[MarkZ]

The flight was in radar contact before the eastbound turn, and after the aircraft flew into the higher MIA. The pilot , when asked by the controller if he could maintain terrain clnc said he could.


You don't break the rules just because you have pilot concurrence. You NEVER let an IFR flight proceed on a route when MSA can not be reached.

Fixed that for you.

We don't know if the ZLC controller issued 14,000 feet or 16,000 feet. We do know that the NTSB report hadn't mentioned the altitude clearance, so it stands to reason that the controller didn't issue an altitude below the MIA. How is the controller supposed to know the accident aircraft cannot reach the MIA? Magic? Telepathy?

When the controller reacquired the radar target, he initiated a track. The MSAW alert activated immediately afterward. The controller issued the alert, and the pilot said he couldn't climb. It was too late for the controller to issue a turn - THAT would be dangerous. In this circumstance, with an aircraft already under the MIA and unable to climb, there isn't a book rule the controller can reference.

I'm not sure why you're so quick to crucify the controller.

 

[vintage cessna]

Fixed that for you.

We don't know if the ZLC controller issued 14,000 feet or 16,000 feet. We do know that the NTSB report hadn't mentioned the altitude clearance, so it stands to reason that the controller didn't issue an altitude below the MIA. How is the controller supposed to know the accident aircraft cannot reach the MIA? Magic? Telepathy?

When the controller reacquired the radar target, he initiated a track. The MSAW alert activated immediately afterward. The controller issued the alert, and the pilot said he couldn't climb. It was too late for the controller to issue a turn - THAT would be dangerous. In this circumstance, with an aircraft already under the MIA and unable to climb, there isn't a book rule the controller can reference.

I'm not sure why you're so quick to crucify the controller.

We know the tower controller issued an altitude that was below MIA, we don't know if the enroute controller ever verified the pilots assigned altitude.

If what you say is true, it was too late for the controller to issue a turn, why didn't the controller declare an emergency? If the aircraft is being worked non radar was the pilot told to reach 160 before a specific point and to report reaching? ATC is supposed to guarantee IFR separation and terrain clnc. If the environment is non radar there are rules to cover that.

Not trying to crucify anyone , but initially this was made to sound as if there was no culpability on ATC's part, only the pilot.

 

[Henning]

We know the tower controller issued an altitude that was below MIA, we don't know if the enroute controller ever verified the pilots assigned altitude.

If what you say is true, it was too late for the controller to issue a turn, why didn't the controller declare an emergency? If the aircraft is being worked non radar was the pilot told to reach 160 before a specific point and to report reaching? ATC is supposed to guarantee IFR separation and terrain clnc. If the environment is non radar there are rules to cover that.

Not trying to crucify anyone , but initially this was made to sound as if there was no culpability on ATC's part, only the pilot.

Yes, the controller could have handled it better, that does nothing to absolve the pilot though. Even under positive control, it's up to you to maintain situational awareness with regards to the restrictions of the route you are flying.

 

[vintage cessna]

Yes, the controller could have handled it better, that does nothing to absolve the pilot though. Even under positive control, it's up to you to maintain situational awareness with regards to the restrictions of the route you are flying.

I hear that, after all it is the pilot and passengers who will die.

That being said, if I'm a family member of the pilot, I'm going to want to know why the FAA didn't follow their own rules and procedures, which could have prevented the tragedy, and I am going to be ****ed about it.

Doesn't appear to me that the settlement with the estate was unwarranted .

 

[vintage cessna]

Fixed that for you.

We don't know if the ZLC controller issued 14,000 feet or 16,000 feet. We do know that the NTSB report hadn't mentioned the altitude clearance, so it stands to reason that the controller didn't issue an altitude below the MIA. How is the controller supposed to know the accident aircraft cannot reach the MIA? Magic? Telepathy?

When the controller reacquired the radar target, he initiated a track. The MSAW alert activated immediately afterward. The controller issued the alert, and the pilot said he couldn't climb. It was too late for the controller to issue a turn - THAT would be dangerous. In this circumstance, with an aircraft already under the MIA and unable to climb, there isn't a book rule the controller can reference.

I'm not sure why you're so quick to crucify the controller.

The acft departed at 1306, was on radar from 1309-1336, last observed altitude of 140. The acft then goes non radar for 10 minutes.

If an aircraft goes non radar and is below MIA for an area ahead on the route, what do you do?

At 1340, four minutes after he was last observed on radar the pilot makes a report to FSS that he is at 140.

I'm thinking some details have been left out of this report for a reason. When the flight comes back on radar at 1346, 10 minutes later ,he still is at 140. Starting to think there was a mis coordination on what altitude the pilot was given. Either way, it seems non radar procedures should have been used.

 

[Everskyward]

There was a blatant violation of the 7110.65 when the controller told an IFR pilot to maintain his own terrain and obstacle clnc. The flight hadn't reached the peak yet and could have been turned around.

The controller can't (and didn't) "tell" the pilot maintain his own terrain and obstacle clearance. The controller asked and the pilot said he could. If the pilot had said "negative" I'm almost sure the controller would have turned him around. At least that would have been the proper thing to do.

 

[N801BH]

The controller can't (and didn't) "tell" the pilot maintain his own terrain and obstacle clearance. The controller asked and the pilot said he could. If the pilot had said "negative" I'm almost sure the controller would have turned him around. At least that would have been the proper thing to do.

That is correct....

Which makes me question why ATC got sued....

Regardless of any mistakes previously made by controllers up to that point. The pilot saw the mountains of the Wind River Range, was headed straight for the tallest peak ( Gannett) and in my opinion..

1- was carrying ice
2- had a large tailwind and assumed he would clear them faster.
3- and most important.... Got into the lee side /rotor winds and lost control, resulting in a straight down crash...
4- He had NO idea how to fly around mountains.
5- Paid dearly for his ignorance....\\

When you tell a controller you can avoid terrain,,, and you end up hitting it.

How the hell is that the controllers fault??

 

[vintage cessna]

The controller can't (and didn't) "tell" the pilot maintain his own terrain and obstacle clearance. The controller asked and the pilot said he could. If the pilot had said "negative" I'm almost sure the controller would have turned him around. At least that would have been the proper thing to do.

Assuming it could have been safely done, the "proper" thing to have done would be to turn the aircraft around, regardless of what the pilot says.

There was a radar outage that day, so the acft was non radar for 10 minutes in an area that normally would have been covered. An off the routine situation, but one that needs to be adapted to.

Not trying to pin the blame here, can't really, becusae the NTSB report is missing too many details and has no ATC transcript.

But from the available info in the report, I have been trying ascertain why an acft that was non radar for an extended period and last observed below MIA for an area ahead did not have more positive control measures applied .

But based on what is in the report, I don't think this is a case where the govt just rolled over to settle a claim.

 

[vintage cessna]

That is correct....

Which makes me question why ATC got sued....

Regardless of any mistakes previously made by controllers up to that point. The pilot saw the mountains of the Wind River Range, was headed straight for the tallest peak ( Gannett) and in my opinion..

1- was carrying ice
2- had a large tailwind and assumed he would clear them faster.
3- and most important.... Got into the lee side /rotor winds and lost control, resulting in a straight down crash...
4- He had NO idea how to fly around mountains.
5- Paid dearly for his ignorance....\\

When you tell a controller you can avoid terrain,,, and you end up hitting it.

How the hell is that the controllers fault??

How is it the controllers fault? Assuming there was still a chance to turn the acft around, the controller is duty bound not to let an IFR flight proceed lower than the MIA.

As I said earlier, a controller can not break the rules just because he has pilot concurrence to do so.

 

[Everskyward]

Assuming it could have been safely done, the "proper" thing to have done would be to turn the aircraft around, regardless of what the pilot says.

I'm going to disagree because there are countless other instances in which a pilot will say they can maintain their own terrain separation and they do it successfully. It gives the pilot and ATC more flexibility when they are on an IFR flight plan in VMC. ATC can't see what you are seeing and has no idea if you are being untruthful or just over-optimistic about whether or not you can maintain terrain and obstacle clearance. Once the pilot says they can it is their responsibility.

 

[vintage cessna]

I'm going to disagree because there are countless other instances in which a pilot will say they can maintain their own terrain separation and they do it successfully. It gives the pilot and ATC more flexibility when they are on an IFR flight plan in VMC. ATC can't see what you are seeing and has no idea if you are being untruthful or just over-optimistic about whether or not you can maintain terrain and obstacle clearance. Once the pilot says they can it is their responsibility.

Look, a controller doing his job, doesn't take that "flexibility", it is not allowed. If you can't make MIA you are moved.

This looks like a case where the pilot let himself and his passengers down, and the system performance may have, and I say may, let the pilots family down.

 

[Everskyward]

Look, a controller doing his job, doesn't take that "flexibility", it is not allowed. If you can't make MIA you are moved.

Yes, it's allowed. I have done it as a pilot quite a few times and I have heard other pilots on the frequency do it. You can be below the MIA on an IFR flight plan if you can maintain your own terrain separation.

 

[N801BH]

How is it the controllers fault? Assuming there was still a chance to turn the acft around, the controller is duty bound not to let an IFR flight proceed lower than the MIA.

As I said earlier, a controller can not break the rules just because he has pilot concurrence to do so.

What you might not realize is...

Mountain ranges are NOT the same height across the entire range.. There are peaks and valleys... I live here and fly in that area weekly....


MIA are numbers calculated based on highest terrain.. This guy claimed he clearly saw the terrain and stated to the controller " I can maintain terrain separation". What was the controller gonna do, argue with a pilot who has said he can miss the terrain...

The flight was actually passing to the south of Gannett peak, through a "notch" ( valley) which would have given him legal terrain clearance...

What bit his ass was he then proceeded to fly into the lee side of Gannett and the rotors literally threw him out of control... I would not try it in my 400 HP plane,, He didn't stand a snowballs chance in hell of making it through that area in a 200 HP Mooney at close to max gross weight with those upper wind velocities.....

 

[vintage cessna]

It doesn't matter what the pilot says. The 7110.65 is crystal clear on the matter. If an IFR flight is on the airway the assigned altitude is no lower than MEA (or possibly MOCA), if off airway then it is no lower than the MIA.

There are no exceptions, no arguments, you just do what you are required to do.

 

[N801BH]

It doesn't matter what the pilot says. The 7110.65 is crystal clear on the matter. If an IFR flight is on the airway the assigned altitude is no lower than MEA (or possibly MOCA), if off airway then it is no lower than the MIA.

There are no exceptions, no arguments, you just do what you are required to do.

I respectfully disagree.......

The guy told the controller he could miss the terrain... He *ucked up and he and three kids died....

Game over...

 

[vintage cessna]

I respectfully disagree.......

The guy told the controller he could miss the terrain... He *ucked up and he and three kids died....

Game over...

Yes, he messed up. But the system is designed to give the public the confidence that there are rules and regulations in place to protect their safety, and those rules and regulations will be adhered to.

And those rules and regulations are for the passengers of that Mooney also.

 

[N801BH]

Yes, he messed up. But the system is designed to give the public the confidence that there are rules and regulations in place to protect their safety, and those rules and regulations will be adhered to.

And those rules and regulations are for the passengers of that Mooney also.

Once again.. I respectfully disagree.. Mari has flown around the Rocky mountains for alot of her life.. She knows full well what she is talking about.. Telling ATC that you can avoid hitting rocks is a permissable exception of the rules... Happens 100's of times each day out here....

 

[Henning]

It doesn't matter what the pilot says. The 7110.65 is crystal clear on the matter. If an IFR flight is on the airway the assigned altitude is no lower than MEA (or possibly MOCA), if off airway then it is no lower than the MIA.

There are no exceptions, no arguments, you just do what you are required to do.

Of course there are exceptions when the pilot is in VMC. The MEA altitude may only physically apply for a very small percentage of the sector, and I can laterally displace myself 1/4 mile and have 4000' under me. Once I accept terrain avoidance, it's mine, and the controller can only assume I am capable of it. From the sounds of it though, the controller didn't handle it the way I am used to it happening. Typically I am advised of rising terrain and what the minimum required IRF altitude ahead of me is. Unless I tell them, "Yeah, I have the pass well in the clear" they keep bugging me. It appears from what is reported, that someone dropped the ball on bugging him about it. Whether that would have changed the outcome is another subject one can argue, but liability wise, the fault exists.

 

[vintage cessna]

Once again.. I respectfully disagree.. Mari has flown around the Rocky mountains for alot of her life.. She knows full well what she is talking about.. Telling ATC that you can avoid hitting rocks is a permissable exception of the rules... Happens 100's of times each day out here....

Ok, I don't know what the "practices" are out there in the Rockies. I can only tell you, there are no exceptions to the IFR altitude rules. So, if they are doing that, what can I say?

If there is a permissible exception to the IFR altitude assignment rule that I am ignorant of,I would like to see it.

I spoke earlier of "cultures" developing in certain FAA facilities, where some rules are ignored or violated. Not a good situation.

 

[N801BH]

Ok, I don't know what the "practices" are out there in the Rockies. I can only tell you, there are no exceptions to the IFR altitude rules. So, if they are doing that, what can I say?

If there is a permissible exception to the IFR altitude assignment rule that I am ignorant of,I would like to see it.

I spoke earlier of "cultures" developing in certain FAA facilities, where some rules are ignored or violated. Not a good situation.

It is a workable situation if the pilot is not lying.... If he does lie,, he will probably die..

Not the controllers fault....

 

[vintage cessna]

It is a workable situation if the pilot is not lying.... If he does lie,, he will probably die..

Not the controllers fault....

Ok, went back to the 7110.65 to see if I could find this "exception" you all are talking about. Couldn't find it.

The only thing that is remotely close is for VFR aircraft that are below the MIA and are requesting IFR clnc. In that case, the controller ask the pilot if he can maintain terrain/obstacle clearance until reaching the MIA.

That rule doesn't apply in this case.

 

[N801BH]

Ok, went back to the 7110.65 to see if I could find this "exception" you all are talking about. Couldn't find it.

The only thing that is remotely close is for VFR aircraft that are below the MIA and are requesting IFR clnc. In that case, the controller ask the pilot if he can maintain terrain/obstacle clearance until reaching the MIA.

That rule doesn't apply in this case.

Carry on soldier, I am outta here......

 

[Everskyward]

Ok, I don't know what the "practices" are out there in the Rockies. I can only tell you, there are no exceptions to the IFR altitude rules. So, if they are doing that, what can I say?



If there is a permissible exception to the IFR altitude assignment rule that I am ignorant of,I would like to see it.



I spoke earlier of "cultures" developing in certain FAA facilities, where some rules are ignored or violated. Not a good situation.

I'm not going to dive into the ATC handbook trying to prove you wrong. I only know what I have done and heard. But you haven't produced a rule either, just written about it. It's also possible that different controllers have different interpretations.

 

[Palmpilot]

If there is a permissible exception to the IFR altitude assignment rule that I am ignorant of,I would like to see it.

You wish is my command. See 4-2-8d in the controllers' manual (7110.65V, CHG 3):

d. When VFR aircraft operating below the
minimum altitude for IFR operations requests an IFR
clearance and the pilot informs you, or you are aware,
that they are unable to climb in VFR conditions to the
minimum IFR altitude:

1. Before issuing a clearance, ask if the pilot is
able to maintain terrain and obstruction clearance
during a climb to the minimum IFR altitude.

PHRASEOLOGY−
(Aircraft call sign), ARE YOU ABLE TO MAINTAIN
YOUR OWN TERRAIN AND OBSTRUCTION
CLEARANCE UNTIL REACHING (appropriate
MVA/MIA/MEA/OROCA)

NOTE−
Pilots of pop−up aircraft are responsible for terrain and
obstacle clearance until reaching minimum instrument
altitude (MIA) or minimum en route altitude (MEA). Pilot
compliance with an approved FAA procedure or an ATC
instruction transfers that responsibility to the FAA;
therefore, do not assign (or imply) specific course guidance
that will (or could) be in effect below the MIA or MEA.

EXAMPLE−
"November Eight Seven Six, are you able to provide your
own terrain and obstruction clearance between your
present altitude and six thousand feet?"

2. If the pilot is able to maintain their own
terrain and obstruction clearance, issue the appropriate
IFR clearance as prescribed in Para 4−2−1,
Clearance Items, and Para 4−5−6, Minimum En
Route Altitudes.

3. If the pilot states that they are unable to
maintain terrain and obstruction clearance, instruct
the pilot to maintain VFR and to state intentions.

4. If appropriate, apply the provisions of
Para 10−2−7, VFR Aircraft In Weather Difficulty, or
Para 10−2−9, Radar Assistance Techniques, as
necessary.​

http://www.faa.gov/documentLibrary/media/Order/ATC_7110.65V_chg_3.pdf

(See page 4-2-3.)

The practice was as you have stated it for a while in the 1990s (I think it was), but the alphabet organizations threw a fit, and got the FAA to back down, resulting in approximately the language quoted above. (The changes last month provided clarification, but similar language has existed for years.)

Note that in the above procedure, the aircraft is not even required to be in VFR conditions. Obviously if it is not, the pilot had better have a sound plan for avoiding terrain and obstructions. (The few times I've done it, I've always told ATC how I was planning to avoid the obstacles, so they would have some assurance that I wasn't going to splatter myself on their shift.)

 

[Palmpilot]

I'm not going to dive into the ATC handbook trying to prove you wrong.

I couldn't resist.

However, one problem I see (which N801BH has already alluded to) is that the handbook section involved is talking about pop-ups, and what is supposed to happen before an IFR clearance is issued. In this case, the initial IFR clearance was issued on the ground, and the "own terrain and obstruction clearance" conversation happened after the plane was already operating IFR. I'm not sure whether that affected the liability issues or not.

 

[vintage cessna]

You wish is my command. See 4-2-8d in the controllers' manual (7110.65V, CHG 3):

d. When VFR aircraft operating below the
minimum altitude for IFR operations requests an IFR
clearance and the pilot informs you, or you are aware,
that they are unable to climb in VFR conditions to the
minimum IFR altitude:

1. Before issuing a clearance, ask if the pilot is
able to maintain terrain and obstruction clearance
during a climb to the minimum IFR altitude.

PHRASEOLOGY−
(Aircraft call sign), ARE YOU ABLE TO MAINTAIN
YOUR OWN TERRAIN AND OBSTRUCTION
CLEARANCE UNTIL REACHING (appropriate
MVA/MIA/MEA/OROCA)

NOTE−
Pilots of pop−up aircraft are responsible for terrain and
obstacle clearance until reaching minimum instrument
altitude (MIA) or minimum en route altitude (MEA). Pilot
compliance with an approved FAA procedure or an ATC
instruction transfers that responsibility to the FAA;
therefore, do not assign (or imply) specific course guidance
that will (or could) be in effect below the MIA or MEA.

EXAMPLE−
"November Eight Seven Six, are you able to provide your
own terrain and obstruction clearance between your
present altitude and six thousand feet?"

2. If the pilot is able to maintain their own
terrain and obstruction clearance, issue the appropriate
IFR clearance as prescribed in Para 4−2−1,
Clearance Items, and Para 4−5−6, Minimum En
Route Altitudes.

3. If the pilot states that they are unable to
maintain terrain and obstruction clearance, instruct
the pilot to maintain VFR and to state intentions.

4. If appropriate, apply the provisions of
Para 10−2−7, VFR Aircraft In Weather Difficulty, or
Para 10−2−9, Radar Assistance Techniques, as
necessary.​

http://www.faa.gov/documentLibrary/media/Order/ATC_7110.65V_chg_3.pdf

(See page 4-2-3.)

The practice was as you have stated it for a while in the 1990s (I think it was), but the alphabet organizations threw a fit, and got the FAA to back down, resulting in approximately the language quoted above. (The changes last month provided clarification, but similar language has existed for years.)

Note that in the above procedure, the aircraft is not even required to be in VFR conditions. Obviously if it is not, the pilot had better have a sound plan for avoiding terrain and obstructions. (The few times I've done it, I've always told ATC how I was planning to avoid the obstacles, so they would have some assurance that I wasn't going to splatter myself on their shift.)

I already cited this rule and said it does not apply to the case we are discussing. In the case at hand, the flight was never VFR, this rule applies to pop ups, VFR acft requesting IFR clnc that are below MIA.

In the 90's, if you had a VFR pop up below MIA you weren't required to ask any questions about the pilots ability to safely reach MIA, you just assigned a safe altitude to maintain. How the pilot got to that altitude was his business . I suspect this change came about from misconceptions on the pilots part thinking they were good altitude wise once they received clnc.

The flight we are discussing was IFR from the ground, so this para has nothing to do with it.

 

[Everskyward]

I couldn't resist.

However, one problem I see (which N801BH has already alluded to) is that the handbook section involved is talking about pop-ups, and what is supposed to happen before an IFR clearance is issued. In this case, the initial IFR clearance was issued on the ground, and the "own terrain and obstruction clearance" conversation happened after the plane was already operating IFR. I'm not sure whether that affected the liability issues or not.

It was a long time in the past but I know that I would sometimes take off from an airport on the Front Range, IFR from the ground, then get vectored back and forth when going westbound because the airplane didn't have the climb capability to get right to the MIA. To avoid this zig-zagging I would ask for a VFR climb maintaining my own terrain separation. I can't remember being denied.

 

[vintage cessna]

I'm not going to dive into the ATC handbook trying to prove you wrong. I only know what I have done and heard. But you haven't produced a rule either, just written about it. It's also possible that different controllers have different interpretations.

The rule I'm referring to is the same rule from the 7110.65 that the NTSB cites in the report. The report quotes the rule verbatim and cites chapter and paragraph. What else do you want?

It is not the type of rule that is open to interpretation .

 

[vintage cessna]

It was a long time in the past but I know that I would sometimes take off from an airport on the Front Range, IFR from the ground, then get vectored back and forth when going westbound because the airplane didn't have the climb capability to get right to the MIA. To avoid this zig-zagging I would ask for a VFR climb maintaining my own terrain separation. I can't remember being denied.

Why would you be denied? If the intent was to go from an IFR flight to a VFR flight then you alone would be responsible.