united-states drones
Is a local regulation preventing the operation of a UAV legal?
<p>My <a href="https://bouldercolorado.gov/airport/drone-regulations" rel="nofollow noreferrer">local government bans drones</a> from flying in any of the parks or open spaces (mountains). The wording they have on their website is:</p>

<blockquote>
  <p><em>"You may not <strong>launch</strong>, <strong>land</strong> or <strong>otherwise operate</strong> any unmanned motorized vehicle from or on any City of Boulder Open Space and Mountain Parks land."</em></p>
</blockquote>

<p>I've previously read posts by ~lawyers saying that a local government cannot override the FAA—cannot prohibit <em>flying</em> 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 <em>"launching"</em> and <em>"landing"</em> wording). My question:</p>

<p>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?</p>

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

<p>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.</p>

<p>Regarding local power to regulate drones, see <a href="https://supreme.justia.com/cases/federal/us/411/624/" rel="nofollow noreferrer">City of Burbank v. Lockheed Air Terminal</a>, 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".</p>

<p>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).</p>

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

<p>There is a further possibility that US law does not allow non-federal regulation of space above the ground. For example, <a href="https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf" rel="nofollow noreferrer">here</a> they assert that there cannot be additional local registration requirements, and that is probably correct given existing federal law. <a href="https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf" rel="nofollow noreferrer">This FAA document</a> suggests (does not mandate) consulation with FAA over proposed rules which impose</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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. </p>
