State UAS Review

• Author: Timothy M. Ravich
• Profession: Lawyer
• Pages: 259-333

259

C 10

State UAS Review

Local and state governments regul ate many aspects of general, commercial, and public

aviation— for example, land use and zoning. However, aviation law is largely a matter

of federal law. is is not necessarily the case for drone operations as a patchwork of stat-

utes, ordinances, laws, and policies has emerged a round the nation at every level of govern-

ment and the world (see the illustration below1 and Chapter 11 infra). In fact, the federal

government— with complete s overeignty over the nation’s navigable airspace (see Chapter 4

supra)— only finalize d rules for small commercial drones in August 2016. Consequently, a

variety of rules for UAVs have developed beneath federally regulated altitudes at the state

and local levels (though the precise altitude beneath wh ich the federal government intends

1 N’ C   S L , T  O: S U  A  S P (),

http://www.ncsl.org/research/transportation/taking- off- state- unmanned- aircraft- systems- policies.aspx.

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to assert its regulatory authority itself may be in flux). is chapter identifies and surveys

these emerging rules.

In the background is a December 17, 2015, document prepared by the Federal Avia-

tion Administration (FAA) chief counsel and the director of the FAA’s UAS Integration

Office— a Fact She et on State and Local Regulation of Unmanned Aircraft Systems (UAS)2—

designed to address issues of federa lism (e.g., the relationship between state a nd federal law

in the context of drones), available at https://www.faa.gov/uas/resources/uas_regulations _

policy/media/uas_fact_sheet_final.pdf. e Fact Sheet does the following:

t Summarizes well- established legal principles as to the federal responsibility for

regulating the operation or flight of aircraft, which includes, as a matter of law,

unmanned aircra ft systems (UAS)

t Summarizes the federal responsibility for ensuring the safety of flight as well as the

safety of people and property on the ground as a result of the operation of aircraf t

t Provides examples of state and local laws a ffecting UAS for which consultation with

the FAA is recommended and those that are likely to fall within state and local

government authority3

Laws traditionally related to state a nd local police power— including land use, zoning,

privacy, trespass, and law enforcement operations— generally a re not subject to federal reg-

ulation, according to the FAA in the Fact Sheet.4 However, where conflicts arise between

state and federal law, or where federal law may preempt state law, the FAA has taken the

position that preemption issues involving small UAS necessitate a case- specific analysis

that is not appropriate in a rule of general applicability.5 Hence, the final rules for small

commercial drones under 14 C.F.R. Part 107 (see Chapter 9, supra) contain no preemption

provisions.

Alabama

Drone operations are not alien to Alabama . In April 2015, Auburn University received the

nation’s first FA A authorizat ion to operate a new unman ned aircra ft systems flight school

as par t of its aviation c enter.6 And the Gadsden Alabama Police Depart ment has used the

Wasp III drone in multiagency efforts for narcotics enforcement (Etowah County Drug

2 Operation and Cer tification of Smal l Unmanned Aircra ft Systems, 81 Fed. Reg. 42 ,064, 42,194 (June 28, 2016) (to be

codified at 14 C.F.R. pt . 107).

3 Id. For example, cons ultation with FAA i s recommended when state or lo cal governments ena ct operational UAS re stric-

tions on flight a ltitude, flight paths, op erational bans, or any r egulation of the navig able airspace. Id.

4 Id.

5 Id.

6 Charles Mart in, Auburn Univers ity Receives Nation’s Fir st FAA Authoriz ation to Operate Unm anned Aircraf t Systems Flight

School, Apr. 10, 2015, http://ocm.aub urn.edu/newsroom /news_art icles/2015/04/auburn- univers ity- receives- nations- first-

f a a - a u t h o r i z a t i o n - t o - o p e r a t e - u n m a n n e d - a i r c r a f t - s y s t e m s - fl i g h t - s c h o o l . h t m .

Chapter10: State UAS Review

261

Enforcement Unit) and tactical operations (Joint Special Operations Group).7 Notwith-

standing these operations, A labama has not enacted any substantive drone laws,8 though

state lawmakers adopted a resolution and created a task force to study drone systems in

2015.9

Most recently, in 2016, the Alabama Senate and House of Representatives introduced

Senate Bill 378 and House Bill 471, respectively, to create the Alabama Unmanned Air-

craft Systems Act.10 e proposed law refreshed the legislative efforts of 2014 and 2015 to

prohibit the use of a drone to aid or assist in fishing or hunting or to intentionally harass

a person who is hunting or fishing. e proposed laws also sought to disallow a variet y of

intentional misconduct with drones. For example, the laws would have prohibited drone

users from operating in particular places (e.g., public streets) in a way that interfered

with motorists, over prisons, and near and over a “designated facility,” which included

petroleum refineries, chemical and rubber manufacturing facilities, rail yard facilities,

commercial ports and harbors, and drinking water treatment facilities.

Alaska

In December 2013, U.S. Transportation Secretary Anthony Foxx announced that the

FAA had selected Al aska as one of six congressionally mandated te st sites to guide research

programs designed to assist regulators’ efforts to safely integrate drones into the national

airspace.11 Several months later, in May 2014, the FAA announced that the University

of Alaska’s unmanned aircraft system test site had become the second of six to become

operational. e FAA also granted the University of Alaska Fairbanks a 2- year certificate

of waiver or authorization (COA) authorizing flights by an Aeryon Scout small UAS for

7 See generally Electronic Frontier Fou ndation, Gadsden, Alab ama Police Department Dro ne Records, www.eff.org /doc-

ument/gadsden- alabama- police- dept; Chris Matysz czyk, Wh y Does a Two-Bi t Alabama Town Have Two Spy Drones?

, M ay 2, 2012, www.cnet.com /news/why- does- a- t wo- bit- alabam a- town- have- two- spy- drones/; Chris Schlag, e

New Privacy Bat tle: How the Expandin g Use of Drones Continues t o Erode Our Concept of Pr ivacy and Privacy R ights, 13 U.

P J. T. L .  P’ 1, 10 (2013); Aerial Metric s, Gadsden, Alabama Police Department, http://uavairsupport.org/uav-

deployment/gadsden- alabama- police- department.

8 See generally Michael O der, Drones in Alabama Skies, July 22, 2015, WIAT.com, http://wiat.com/2015/07/22/

special- report- drones- in- alabama- sk ies/.

9 Alabam a Unmanned Aerial System s (UAS), www.alabama uastaskforce.org /. See also Brian Lyman, P roposed Limits on

Drone Use Tabled, M  A , 2015 WLNR 2467487 (Jan. 26 2015). See also Tim Lockette, Few Rec-

ommendation s from Alabama Drone Task Force, A S, Jan. 8, 2015, at 2015 WLNR 694896 (the “group was

tasked wit h coming up with suggest ions to regulate the indus try by Jan. 15 [2015] . . . the group approved a dra ft letter

to Bentley with on ly two suggest ions: that authority over d rones be given to the Ala bama Department of Tran sportation,

and that the ta sk force continue meeting to advis e ALDOT”). See also Letter from Gov. Bently to d ated July 18, 2014,

www.ala bamauast askforce.org /uploads/4/3/7/9/4379169/requirments_for_st ates_use.pdf. See also Mike Cason, Tas k

Force Recomme nds DOT Review Use of Drones, H  T , Jan. 11, 2015, at 10A. Executiv e Order Number 1,

http://governor.alabama.gov/newsro om/2015/01/executive- order- number-1-2/.

10 In HB 256— a n appropriations bill— t he Alaska Leg islature asked the s tate’s Department of Fish & Game t o evaluate

the use of unma nned aircraf t for aerial sur vey work and report find ings in regard to sa fety and cost- savings in compari son

with the use of ma nned aircraft. See www.legis.state.ak.us/PDF/29/Bills/HB0256Z.PDF, at 17.

11 F. A  A., FAA Announces Alaska Test Site Begins Research Flights, ww w.faa.gov/news/press_rele ases/

news_stor y.cfm?newsId=16194. See also Chapter 5, supra.