Hoverlaw Returns—Update from Marin County
It has been over a year since we posted to this blog. We are still here, hovering above quite a bit of legal action in the drone-space. We are re-engaging in our blogging activities and plan on posting updates in the coming days on legal issues concerning drone use in California, particularly at the local level.
We inaugurate our return with an interesting story from the town of Tiburon, just north of San Francisco. In July of this year, the Tiburon City Council adopted an ordinance regulating the operation of drones. The ordinance included a number of non-controversial provisions, and also prohibited drone operation (1) directly above or on the grounds of local public schools without permission, (2) within 400 feet of any “publicly permitted event,” and (3) in a manner that interferes with emergency response activity, in particular within 400 feet of any emergency vehicle that is operating with lights and/or sirens. A few days later, the National Press Photographers Association threatened a lawsuit, claiming that the ordinance’s restrictions concerning publicly permitted events and emergency response activities could not be enforced under principles of federal preemption because only the Federal Aviation Administration (FAA) may regulate the drone airspace. In response, the City has amended the ordinance to remove the prohibition against operating near permitted events, emergency vehicles in operation, or in a manner that interferes with emergency response. In the staff report accompanying the amended ordinance, the City asserted that the original ordinance would not have implicated any preemption issues, but amended the ordinance anyway in order to reduce the likelihood of legal challenge.
The story of Tiburon raises interesting legal issues concerning preemption:
First, a local agency with police power, like a city, almost assuredly is not preempted when it enacts drone restrictions that implicate areas within its police powers—like zoning, land-use, privacy, and law enforcement operations. Tiburon’s prohibition of drone use that interfered with emergency response almost certainly was within its police powers, and therefore should raise little risk of preemption.
Second, prohibitions on drone flight that lie outside traditional police powers may be subject to a preemption challenge. Until there is a larger body of appellate decisions clarifying the preemptive effect of FAA regulations, a city seeking to adopt drone regulations should be prepared for legal challenges. Interestingly, the city did not seek to amend the prohibition on flight over schools—no one threatened litigation. Like the prohibition on flight over permitted events, this prohibition could have been subject to a preemption challenge as being outside a city’s power. It seems likely that the school district did not issue the restriction itself precisely because it thought the city might have regulatory powers that it (a school district does not have police powers) did not possess—why else would it have asked the city to enact the ordinance instead of doing so itself? The City could perhaps have established a basis for its regulations by issuing findings that drone flight interfered with the privacy of its residents—in particular students and teachers. Such a finding would have bolstered the theory that the City was acting within its local powers, not preempted by federal regulations, when it prohibited drone flight over permitted events or schools.
Third, a local agency that does not have police powers faces potential difficulties in enforcing any drone restrictions. This is particularly concerning for special districts in California, which do not have police powers but have responsibilities to protect critical infrastructure like water towers, waste processing facilities, and bridges, the safety and security of all of which are threatened by unfettered drone use.