No ruling yet on proposed drone ban
October 21, 2013
Neither side got the ruling they argued for in a Nevada County courtroom Friday, as Superior Court Judge Sean Dowling declined to issue one on whether the county government has the authority to regulate the use of drone aircraft.
"I think a written ruling is called for in this case," said Dowling, noting he has not yet concluded his research. "The record needs to be clear (on) what is the basis for my decision."
Attorney Lorraine Reich's proposal to ban drones below 1,200 feet in Nevada County was submitted to the county Aug. 23. The county, in turn, was required to prepare an election ballot title and summary within 15 days. But Dowling paused that requirement in early September until he could rule on whether the county has the authority to regulate the airspace in the first place.
"It is clear, crystal clear, that the federal government has exclusive sovereignty in regard to this kind of regulation," said county counsel Scott McLeran. "That is what we are talking about here — is the right to regulate airspace here at the local level."
In February 2012, Congress passed the Federal Aviation Administration Modernization and Reform Act of 2012, which called on the agency to integrate unmanned aircraft by 2015, according to the Associated Press. The airspace agency in turn mandated that states integrate drones into their airspace by that year, according to Reich. Until then, the FAA governs airspace down to 500 feet above the ground over densely populated areas and 1,000 feet over less-dense areas — like most of Nevada County, Dowling pointed out.
Reich argues that unregulated drone use poses a potential for invasion of privacy, an affront to property rights, and that drones could be used maliciously for criminal purposes. She indicated a willingness Friday to amend her proposed ordinance in several areas, including allowing for commercial and hobbyist use of unmanned aircraft and changing the proposed heights of regulation so as not to overlap with FAA jurisdiction.
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"While it appears Ms. Reich is considering ways to perhaps improve the initiative down the road, we are dealing what is before the court, a broad initiative that does not define drone aircraft beyond unmanned aircraft," McLeran said.
Dowling made comments Friday that indicated he was leaning toward issuing a ruling that the county does not have the authority over the airspace that Reich proposes in her ordinance. At one point, he told Reich it doesn't make sense for him to approve an ordinance that could later be contested and force her to restart her effort from the beginning.
"If facially this is a problematic ordinance, I am not doing anybody any favors of letting it go to ballot," he said. "My concern is trying to get it right the first time."
However, Dowling also sympathized with the impetus behind Reich's proposed ordinance.
"The government, I don't think, has done a very good job of allaying the concerns of its citizens about the kind of technology that is available that can be used to surveil individual properties," he said. "I believe those concerns are legitimate."
Dowling could not be reached by phone Friday to specify when he expects to issue his written ruling. He did, however, indicate that he had no intention of waiting for the state government to weigh in on the issue. "I'm not going to wait for state law," he said.
To contact Staff Writer Christopher Rosacker, email email@example.com or call 530-477-4236.
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