Aberdeen, S.D., City Council Debates Legality of Drone Usage

Aberdeen City Council held a recent debate on drone usage regulations, discussing rules that prohibit operating a drone flying over anyone without consent, over traffic and over property that the operator does not own.

by Erin Ballard, American News / December 18, 2019
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(TNS) — The authority of the Aberdeen City Council to regulate certain drone usage was questioned during Monday night’s meeting.

Aberdeen’s drone ordinance was enacted in 2016 and borrowed heavily from a similar one passed by the city of Chicago in 2015.

Mayor Travis Schaunaman said that while he believes the ordinance was created with good intentions, there are items in it that should not be within the council’s power to regulate.

“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.”

Schaunaman said he had provided the news release because it was easier to understand than technical law language.

“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.

Councilman David Bunsness said the information was confusing when up against what City Attorney Ron Wager had provided. He questioned why Chicago’s ordinance was still intact if it was at odds with the Federal Aviation Administration, as Schaunaman claimed.

“One place they say this, the other place they say something different. To me, there is no clear direction here,” Bunsness said. “Why wouldn’t FAA take on the city of Chicago? If that ordinance is still standing today and the argument is that the ordinance, because it’s the same ordinance as ours, is in violation of FAA, why hasn’t anything been done?”

Schaunaman said that even though it had been stated during the meeting, he wasn’t certain Chicago’s ordinance was still in effect.

Wager said it was.

“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.

The FAA would, however, like assistance in issues related to drone issues, Wager said. It wants local law enforcement to do much, if not all of the leg work, including identifying witnesses and operators, viewing and recording events, and collecting all the evidence. From there, the FAA would decide whether or not to take any action in the matter.

“It realizes it needs to co-regulate with state and local authorities and it wants to do so on a case-by-case basis,” Wager said. “The FAA has not pronounced itself definitively as the authority in these issues. ... If anyone tells you that it’s clear that the FAA has spoken and is occupying this entire area, it’s absolutely not true.”

Wager agreed to contact law teams in Chicago to provide more information to the council in a future session. But he said he doesn’t anticipate having any clearer an answer in regard to what is legal.

©2019 the American News (Aberdeen, S.D.) Distributed by Tribune Content Agency, LLC.

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