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My local government bans drones from flying in any of the parks or open spaces (mountains). The wording they have on their website is:

"You may not launch, land or otherwise operate any unmanned motorized vehicle from or on any City of Boulder Open Space and Mountain Parks land."

I've previously read posts by ~lawyers saying that a local government cannot override the FAA—cannot prohibit flying a drone in the air over a local park—but that the local government is allowed to prohibit what's on their soil (hence the "launching" and "landing" wording). My question:

Is it legal for a local government to prohibit controlling a drone while standing in the park? "Sure, you can carry a drone controller in your backpack, and you can work the sticks with the power off if you want, but you cannot let it connect to and wirelessly control an aircraft. Also, no skipping on your left foot, unless you're wearing sandals." Can they legally prohibit me from taking off outside the airspace (no), flying the drone into the park (no) then walking into the park while controlling it?

I'm assuming that the answer is "Yes, they can tell you what to do if you want to be on 'their' lands" but I'm looking for any legal precedent or recent cases related to this.

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    Federal rule is going to preempt, but unless the federal rule assures permission for drone flying at all times except when prohibited (permissive ruling) then the locality may further restrict operations. – Nij Jul 8 '17 at 5:08
  • This is a great question but AFAIK there's no clear answer today. The FAA claims it has exclusive jurisdiction over all airspace and aircraft operations, including UAVs. But plenty of states have passed their own laws, and I don't think any cases have made it high enough in the court system yet to settle the question clearly. Asking on Law.SE is a good idea, they would understand the state vs. federal issue better. – Pondlife Jul 9 '17 at 1:29
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Yes. As long as a local or state ordinance is not in conflict with any section of federal statutes or federal authority as ordained my the US Constitution and current legal precedent in accordance with it, nor is unconstitutional, there is no reason a town cannot pass laws preventing this.

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Regarding local power to regulate drones, see City of Burbank v. Lockheed Air Terminal, 411 U.S. 624: they can, but the regulations are subject to strict scrutiny. That means that it has to be designed for a compelling government interest (such as safety), and has to be the least restrictive way to do that. If their "bottom line" statement is accurate with respect to the ordinance, this also means that you cannot operate radio-controlled toy car in those spaces, either. It may be that the Open Space land is analogous to a wildlife preserve, so their compelling interest would be avoiding "impact" on the park. The regulation does not appear to be generally about all parks. You could, I suppose, throw a drone from place to place inside the park on the reasonable presumption that that doesn't constitute "operating".

Since the purposed regulation prohibiting drones is not published where I can find it, it is hard to know what they claim to restrict. They would have the right to prohibit flying a drone over the Open Space zone, regardless of where you are standing. Supposing the wording were something like "it is prohibited to operate a drone in the park", there is an ambiguity: does that refer to the location of the operator or of the drone. Supposing you sued them because they ticketed you because your drone was over the part but you yourself were outside the part, I have a hard time imaging an appeals court saying that it's okay to fly over as long as the operator is outside. It would come down to some assertion about the "plain meaning" of the regulation, supported by testimony about why the made the regulation (it's about drones being in the part, not drone operators).

A regulation about skipping on your left foot, unless you're wearing sandals, would surely fail strict scrutiny.

There is a further possibility that US law does not allow non-federal regulation of space above the ground. For example, here they assert that there cannot be additional local registration requirements, and that is probably correct given existing federal law. This FAA document suggests (does not mandate) consulation with FAA over proposed rules which impose

restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example – a city ordinance banning anyone from operating UAS within the city limits, within the air space of the city, or within certain distances of landmarks.

This falls short of asserting a local lack of authority. Whether or not FAA can prohibit municipalities from declaring no-fly zones is a matter that will probably be decided once a city files a lawsuit.

  • Thanks. I've since discovered that (a) Parks and Rec (which is a department separate from Open Space and Mountain Parks) does not have restriction on flying in local parks, and (b) the City of Boulder is currently considering new regulations on drones, but has not yet put any in place. Re: standing outside and flying over, apparently the FAA is (currently) adamant that localities have no local authority to prevent what happens in the air over a space. If I'm standing on private property and abiding by federal law, I don't think the city can successfully prosecute me for flying elsewhere. – Phrogz Jul 26 '17 at 17:33

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