If you’re going to argue the law, you should know the law. So Mayor Travis Schaunaman learned at last night’s Aberdeen City Council meeting.
Mayor Schaunaman cloaks his latest spasm of Republican anarcho-deregulation urge in something like a federalism argument, saying that Aberdeen can’t pass ordinances restricting drones because only the Federal Aviation Administration has authority over aircraft. Here Schaunaman apes the Trumpist ploy of claiming states can’t add additional regulations to clean water beyond what the industry/yahoo-captured EPA requires. (Expect Schaunaman to change his tune the moment Democrats retake the Executive Branch and put the FAA, EPA, FEC, and other federal agencies back in the hands of responsible public servants committed to doing their jobs.)
Mayor Schaunaman trotted into the council meeting with an FAA “issuance.” He didn’t bother to submit that document for the agenda; he only handed it out at the dais, so I can only guess what paper he may have been waving around. But here’s what he said about it:
“I’ve handed everyone an issuance that the (Federal Aviation Administration) put out toward local municipalities that clearly states in real world, common English parlance, that state and local governments are not permitted to regulate any type of aircraft operation, such as flight path, altitude, or navigable air space,” he said. “There’s four spaces within our existing ordinance which do that.”
Those areas include regulations that prohibit operating a drone over anyone without consent; over traffic; over property that the operator does not own without consent; and within 500 feet of any electric generating facility without consent.
“This is simply a matter of principle for me,” Schaunaman said. “I don’t believe we have the authority to do that. They are very clear about that” [Erin Ballard, “Aberdeen City Council: Legality of Drone Usage Ordinance Debated {paywall},” Aberdeen American News, 2019.12.17].
Just like a Fox News viewer, showing up to a legal fight with a press release.
Ballard reports Schaunaman’s amateur lawyering received a chilly reception from our local lawmakers:
“Some of us like the legalese, because then we can reference it back,” Councilman Clint Rux said.
“We’re dealing with many opinions here. You don’t even have the law, you have the press release that makes reference to a law,” City Manager Lynn Lander said [Ballard {paywall}, 2019.12.17].
…and from City Attorney Ron Wager:
“We’re not legislating in an area that we don’t have the right to. As a home rule (city), we’re in within our lawful authority to drop this,” Wager said. “The press release that they would have given is helpful, but it’s by no means something they’ll defend in court.”
“The idea that we’re clearly in violation of federal law, I disagree with that,” he added.
Wager noted that there is nothing from the Federal Aviation Administration that says its regulations overrule any made on the state and city levels. In fact, it’s not clear whether any of the rules it lists are legally binding and forceable by law, he said.
“The summary of this is that the FAA is hopefully going to get there, but they’re not there yet, and in the meantime, I see our ordinance as being a lawful and proper role for our city to perform at this time,” he said [Ballard {paywall}, 2019.12.17].
The most prominent result I get from the FAA on state and local regulation of drones is this December 17, 2015 fact sheet from the FAA Office of the Chief Counsel (also a lawyer). The law laid out there is mixed: the FAA “recommends” that states and locals consult with the FAA if regulating drone flight altitude, flight paths, and other operations or requiring certain equipment or training. However, the FAA says states and locals retain police power to control use of drones in “land use, zoning, privacy, trespass, and law enforcement operations.” I would say that if the city wants to prevent individuals from flying objects that can spy on neighbors and fall on their heads if the batteries fail, the city doesn’t need to check with Uncle Sam.
Wager said he’ll check on Chicago’s drone ordinance, on which Aberdeen’s is based and which, Councilman Dave Bunsness pointed out, appears not to have been challenged by the FAA yet. In the meantime, we’ll have to wonder what put this particular drone bee in the Mayor’s bonnet and why a good conservative is so eager to advocate that federal law trump local control.
Gee, it couldn’t be that drone footage makes for good marketing materials, and that Schaunaman’s marketing business wants to be able to produce and sell drone footage to its customers, could it? Nah, a mayor wouldn’t use his office to promote his business interests, would he?
Jeez. Aberdeen got a winner 🙄🙄🙄 in this guy.
When Schaunaman says he’s doing something on principle, look deeper for the real motive… which either has dollar signs or “GOP” in front of it.
As I read the news account of the meeting, I was struck by the fact that the mayor was severely rebuked by members of the council, the city manager, and the city attorney. The bumbling incompetence of the mayor was on full display, as was the competence of people who know their jobs.
In general the FAA reserves all rights to regulate aircraft (including drones) operations in US airspace. They do not permit others to do that regulating. Just because they haven’t yet taken enforcement action on cities does not mean they will not.
Funny, Bruce, that the City Attorney, the only lawyer in this conversation so far, does not seem to share your concern.
I’m not concerned. Just passing on information I know as a person who worked on FAA and airport projects for 17 years.
Here is the relevant press release sent by the FAA to legal offices:
July 18, 2018
https://www.faa.gov/news/press_releases/news_story.cfm?newsId=22938
Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things. State and local governments are not permitted to regulate any type of aircraft operations, such as flight paths or altitudes, or the navigable airspace.
…
In the context of Unmanned Aircraft Systems (UAS) – popularly called “drones”— the Department of Transportation’s UAS Integration Pilot Program (IPP), directed by the President, will provide the FAA with insight on how to best involve local jurisdictions in the integration of UAS into the airspace (PDF) in a way that also alleviates their concerns. On May 9, the Secretary of Transportation announced the selection of 10 state, local, and tribal governments as participants in the pilot program. These entities will partner with private sector participants to safely explore the further integration of drone operations. We’re looking forward to working with the IPP participants as we look to the future.
Thanks Anne – you said it better than I did – I have been out of the aviation world for a few years now and wasn’t aware of the pilot program announced in May. It makes sense for the FAA to try to address local concerns via a process the FAA controls.
I can see a time, in the near future, where wingnuts will strip FAA of power to reguklate drones so drumpf’s red neck buddies can use them to harass and intimidate Democratic pols in speeches and outdoor venues.
Anne, is that the one Mayor Schaunaman brought to the meeting?
Here’s the part Anne ellipsed out:
Mayor Schaunaman could be fighting a pyrrhic battle. He may challenge restrictions on flying drones only to see the ordinance amended to clearly address regulating where drones can land or where their operators may stand while operating them.
Perhaps I’ll get a drone, attach a really good camera and microphone, and fly it into Travis’s backyard so I can hear what great deregulatory scheme he plans next.
I am surprised that the FAA would treat hobby drones with the regulatory rigor as aircraft carrying people and cargo.
The FAA’s interest in regulating the airways appears to lie in preventing conflicts that could harm aircraft and passengers. That interest lies in making sure locals don’t deregulate their airspace and permit uses that would obstruct regular air traffic. We don’t want the properly licensed commercial aircraft and air ambulances that buzz in and out of Aberdeen all the time to crash into drones up taking marketing footage for Travis’s next big ad campaign. I speculate the FAA is far less concerned about local jurisdictions that restrict drones than it would be about Trumpistani outposts that try to lift all regulations and pose a risk of having drone-nuts interfering with larger aircraft.
Cory,
I don’t know if it is the same press release. I retired from my job in court administration, but do vacation relief and the like. I recalled coming across this one a few summers ago when a number of communities were beset with the intrusions of drones, largely involving crafts with cameras scoping out places where women were sun-bathing and engaging in other like activities. Legislators and their counsels were extremely frustrated because the FAA seemed unable to understand how privacy rights might be involved in the regulation of where aircraft can fly.
Good point, Anne. You underscore how drones are really different beasts from the big aircraft the FAA was created to regulate. Drones pose privacy risks that commercial aircraft, focused on carrying goods and people from Point A to Point B, do not.
And again, given that Congress created the FAA to stop aircraft from crashing into each other and killing people, it would be out of keeping with its mission to go after cities that are helping keep the skies clear of obstructive hobby craft.