Update on the (Slowly) Developing Preemption Landscape Sep20

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Update on the (Slowly) Developing Preemption Landscape

As we have discussed in previous posts (Local Drone Regulations and Possible Federal Preemption and Federal Case Declared Local Ordinance Illegal), the law is unclear as to the line which local government may not cross in regulating drone use before being preempted by federal authority. The legal landscape of preemption issues related to local drone regulations continues to slowly expand with a new unreported case from California’s First District Court of Appeal, Foletta v. Ellis

This case arises from a dispute between neighbors and only briefly touches on the issue of preemption. After Foletta reported Ellis to county authorities for engaging in unlicensed commercial activity, it is alleged that Ellis began a series of harassing behaviors including, playing loud music on a daily basis, lurking around the edges of his neighbor’s property, firing an orchard cannon, and flying a drone at Foletta approximately 6-10 feet over his head. Foletta obtained a restraining order against Ellis which, in part, prohibited Ellis from flying drones over Foletta’s property. 

Ellis challenged the order, arguing that it was “invalid to the extent it prohibits him from flying drones . . . over the Foletta property because airspace use is governed by the FAA.”  The court evaluated “whether the federal government’s regulation of airspace generally is intended to preempt the authority of states to regulate harassment that involves airspace” and found that it did not. 

While Foletta v. Ellis is an unreported case and certainly not the end of the preemption question, it is the second case that aligns with FAA guidance that state and local actions related to police power generally are not preempted by federal regulations. 

We will continue to watch this issue as more state and local governments adopt drone regulations, and those regulations are challenged.