Senate Bill Provides Parity: Tribal Government Regulation of UAS on Tribal Lands

by Holland & Knight LLP
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HIGHLIGHTS:

  • The Drone Federalism Act of 2017, introduced in the U.S. Senate on May 25, 2017, would allow any state, local or tribal government to protect its citizens and private property rights with respect to overflights by unmanned aircraft systems (UAS), or drones.
  • The legislation would provide parity for tribal governments with state and local governments to regulate the use of UAS by hobbyists and civil operators in instances where UAS flights may pose safety and public nuisance issues.
  • If passed, the bill would allow local governments to regulate drones to ensure that they are flown safely in low altitude airspace – under 200 feet – at levels where the Federal Aviation Administration (FAA) does not customarily involve itself.

Sens. Dianne Feinstein (D-Calif.), Mike Lee (R-Utah), Richard Blumenthal (D-Conn.) and Tom Cotton (R-Ark.) on May 25, 2017, introduced the Drone Federalism Act of 2017 to allow any state, local or tribal government to protect its citizens and private property rights with respect to overflights by unmanned aircraft systems (UAS), or drones. The intent of the legislation is to allow local governments to regulate drones to ensure that they are flown safely in low altitude airspace – under 200 feet – at levels where the Federal Aviation Administration (FAA) does not customarily involve itself. Reasonable restrictions on UAS operations sought by the bill include speed limits; control of UAS flights over schools, parks, roadways, or other public or private property, and during certain times of day, night and special occasions; and operation of UAS while under the influence of drugs or alcohol.

Tribal Government Parity

The Drone Federalism Act of 2017 provides parity for tribal governments with state and local governments to regulate the use of UAS by hobbyists and civil operators in instances where UAS flights may pose safety and public nuisance issues. For example, if a tribe holds a traditional ceremony, an annual community gathering, a sports contest or an outdoor concert at a tribal casino, the tribal government could issue its own UAS operation regulations under 200 feet to ensure public safety and privacy.

Looking Ahead

With a must-pass date of Sept. 30, 2017, for FAA reauthorization, it is expected that the Drone Federalism Act of 2017 will be considered in conjunction with the FAA reauthorization legislation, which may be marked up by the Senate Commerce Committee later this month.

Section-by-Section Overview

Sec. 1. Short Title

"Drone Federalism Act of 2017"

Sec. 2. Preservation of State and Local Authorities

  • Clarifies that state, tribal and local governments have the authority to issue reasonable restrictions on the time, manner and location of civil unmanned aircraft operations within 200 feet of the ground or a structure
  • Reaffirms that state, tribal and local governments may also set and enforce requirements that are equivalent or substantially similar to federal requirements for unmanned aircraft systems
  • Confirms that the FAA has pre-emptive authority under existing statutes to ensure the safety and efficiency of the national airspace, and requires the FAA to define the scope of the pre-emptive effect of new regulations through the rulemaking process
  • Directs the FAA to preserve state and local interests to the greatest extent practicable when exercising pre-emption

Sec. 3. Preservation of Property Rights

  • Codifies that property rights extend to the immediate reaches of the airspace above a property, including at least 200 feet above the ground or a structure
  • Prevents the FAA from authorizing the operation of an unmanned aircraft in the immediate reaches of the airspace above a property without permission of the property owner
  • Clarifies that hobbyist operation of an unmanned aircraft is not authorized in the immediate reaches of the airspace above a property without permission of the property owner

Sec. 4. Pilot Program on Federal Partnerships

  • Directs the FAA to partner with up to 10 state, tribal or local governments to provide technical assistance in regulating unmanned aircraft operations and to coordinate enforcement
  • Provides an opportunity for state, tribal and local partners to provide input in the development of unmanned aircraft systems traffic management system
  • Requires a report on best practices in state, tribal and local regulation of unmanned aircraft after two years

Sec. 5. Rule of Construction

  • Provides that nothing in the Act will diminish or expand the pre-emptive effect of the authority of the FAA
  • Provides that nothing in the Act will affect the civil or criminal jurisdiction of any tribe relative to any state or local government, or to any state or local government relative to any tribe

Sec. 6. Definitions

  • Administrator
  • Civil
  • Local Government
  • State
  • Tribal Government
  • Unmanned Aircraft; Unmanned Aircraft System

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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