Park Service Gets it Wrong on Drone Law
When I worked as a canoe guide in the Boundary Waters Canoe Area Wilderness (BWCAW) about 20 years ago, I came to realize that the concept of “wilderness” was a subjective one. Everyone experiences wilderness and wildness in different ways, and their perspective of what constitutes wilderness is often connected to noise level. For example, certain border lakes in the BWCAW allow for the operation of 25 hp or less motors (while almost all of the 2,000 or so lakes prohibit any motorized craft). For some people, even that was too much; but for others, 25hp or less meant no jet skis would be disturbing the serenity of a wilderness experience that involved fishing for walleye using a small trolling motor.
So I understand the desire to not have noise disturb the wilderness experience. But there is a right way to regulate that, and a wrong way.
On May 2, 2014, the National Park Service chose the wrong way in Yosemite National Park. We have all seen the increased use of drones to capture images from unique perspectives. I know of at least one professional nature photographer that has been increasingly using it in his landscape work. In response to such increased uses in one of its most-visited parks, the National Park Service issued a directive that any use of drones in Yosemite National Park was illegal. In doing so, the NPS cited to 36 C.F.R. §2.17(a)(3), which prohibits the use of aircraft in national parks for “Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit.”
Subsequent to Yosemite’s decision, the Director of the National Park Service issued a directive on June 20, 2014 in the form of a policy memorandum, which is not available publicly, that “directs superintendents nationwide to prohibit launching, landing, or operating unmanned aircraft on lands and waters administered by the National Park Service.” That includes all national parks, monuments, wild and scenic rivers, national seashores, national lakeshores, national historic sites, and others, for a total of 85 million acres and 401 units of Federal public land. In addition to the Yosemite reasons for banning the use of unmanned aircraft, the new system-wide prohibition cited “noise and nuisance complaints from park visitors, an incident in which park wildlife were harassed, and park visitor safety concerns.” The news release about the new policy cautions that this is a temporary measure until the Park Service can adopt regulations through a formal rule making process that addresses the use of drones in parks.
There are just a few problems with the National Park Service’s rationale to currently prohibit the use of drones. Anyone who knows how drones are used commonly knows that they are not used to deliver a person or an object, as cited in the Yosemite example. You may have someone do a backcountry drop of food supplies for you using a parachute, but you sure as heck wouldn’t using a drone. And if all a drone is doing is flying around or taking pictures, it is not delivering anything unless you can stretch the imagination to suggest that it is “delivering” photos to a compact flash card. But no, the NPS has stretched the imagination even further, claiming it is the “drone itself” that is the object being delivered. Apparently, the NPS thinks the egg can exist without the chicken. If the drone itself is the object being carried, then what is the aircraft carrying it? Perhaps it’s Wonder Woman’s invisible jet?
The agency that actually regulates drones – the Federal Aviation Administration – is split on the use of drones. The FAA lumps all types of unmanned aerial vehicles together under the term “Unmanned Aircraft” or UA (this includes Unmanned Aircraft (UA), a Remotely Operated Aircraft (ROA), a Remotely Piloted Vehicle (RPV), and an Unmanned Aerial Vehicle). The FAA has also issued a series of directives and policies governing the use of drones or UAs, as they do not obviously fit into standard aircraft regulations. Current FAA regulations indicate that only two UA models (the Scan Eagle and Aerovironment’s Puma) have been certified for commercial use, and they are only authorized to fly in the Arctic. That means most professional photographers using drones for aerial imagery are breaking the law.
But the FAA does allow for the recreational use of airspace by hobbyists with small, radio-controlled, model aircraft for personal use so long as flights are below 400 feet above the ground and away from airports and air traffic. Thus, if you are a professional photographer, you may not take pictures using a drone under FAA rules, but there is no prohibition to a hobbyist photographer doing the same. Thus, the FAA does not consider UAs and “aircraft” to be synonymous and subject to the same regulation, further undermining the NPS treatment of them as the same under their regulations. But you don’t have to look to FAA regulations to see that drones and “aircraft” are not the same. All you have to do is look at the Park Service’s own regulations, which define “aircraft” as “a device that is used or intended to be used for human flight in the air, including powerless flight.” See 36 C.F.R. §1.4(a).
But if you look at the full rationale behind Yosemite’s drone prohibition, and the new system-wide directive issued on June 20, you get back to the concept of spoiling the wilderness experience. You also possibly find a legal basis for the NPS to exclude the use of drones within any national park: The park has experienced an increase in visitors using drones within park boundaries over the last few years. Drones have been witnessed filming climbers ascending climbing routes, filming views above tree-tops, and filming aerial footage of the park. Drones can be extremely noisy, and can impact the natural soundscape. Drones can also impact the wilderness experience for other visitors creating an environment that is not conducive to wilderness travel… Additionally, drones can have negative impacts on wildlife nearby the area of use, especially sensitive nesting peregrine falcons on cliff walls.
There are regulations in place already that address a noise nuisance impairing the use and enjoyment of the park by visitors. Under 36 C.F.R. §2.12, the Park Service presently prohibits “[o]perating motorized equipment or machinery” that “exceeds a noise level of 60 decibels measured on the A-weighted scale of 50 feet” or, if lower than that, “makes noise which is unreasonable, considering the nature and purpose of the actor’s conduct, location, time of day or night, purpose for which the area was established, impact on park users, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.” Drones are reputed to be loud, so either provision could prohibit their use around other people. But if the goal is to prohibit the use of drones so that it does not disturb the wilderness experience of other visitors, then someone could still use a drone so long as they are in a location where no other people are present under this regulation. This provision could not serve as the basis for an absolute prohibition. It also shows that there are currently regulations on the books that address the use of drones, so the current excuse to have a temporary ban in order to have time to craft new regulations is erroneous.
Yet relying on the provision that actually legally applies creates more work for the NPS. I can easily tell you that they probably looked at Section 2.12 and concluded not to push that provision to manage use of drones because it would be difficult to enforce. For the same reason that I stated that the concept of a wilderness experience is subjective, so too is what constitutes “unreasonable” noise “under the circumstances.” One little mosquito of a drone dwarfs in comparison to the white noise of background traffic for the 3.7 million visitors that Yosemite received in 2013. Mount Rushmore, which is cited in the June 20 news release for the new system-wide policy, enjoyed over 2 million visitors in 2012 and sits next to the major roadway through that portion of the Black Hills. Certainly that much traffic noise would be unreasonable to a person’s park experience. Or how about that annoying gaggle of children yelling and screaming at the top of their lungs for the entire length of a hike – certainly that would be unreasonable to some person’s enjoyment of the park. If the park really wanted to reduce the impact on the park experience by noise, it would cut down on vehicular traffic. But, obviously it lacks the fortitude to do that so it goes for the easier picking – drones.
The June 20 news release also cites as justification for the absolute ban a single incident of wildlife harassment due to drone activity. The incident involved a drone in Zion National Park that allegedly caused some youth to separate from adult Bighorn Sheep in the spring. According to local reporting, a Park Service volunteer confronted the drone operator and warned them of the potential consequences for harassment, but there was no mention in the article of a citation issued. Under 36 C.F.R. §2.2(a)(2), it is prohibited to engage in the “feeding, touching, teasing, frightening or intentional disturbing of wildlife nesting, breeding or other activities.” This is a very broad prohibition, and covers any activity that would lead to frightening or disturbing wildlife. If someone frightens or disturbs wildlife using a drone, the Park Service currently has the tools in regulation to engage in an enforcement action. There is no need to develop new regulations.
So, Yosemite’s claim that drones somehow fit into regulations related to “delivering or retrieving a person or object” is completely baseless. The broader National Park Service concerns about drones causing noise disturbances is covered by existing regulations related to noise caused by mechanized objects. Concerns over drones harassing wildlife are covered by existing regulations. There is nothing that drones do that is not already covered by regulations. There is nothing in those regulations that would prevent a person from using a drone in a park if (1) they operated nowhere near anyone else to cause a noise disturbance or (2) nowhere near wildlife to cause any harassment. The Park Service simply has realized that applying those existing regulations to drones creates enforcement challenges that they don’t want to face. Saying “no” to drones is an easy bright line and easy to enforce. But it’s not an honest interpretation or application of existing regulations, and it’s not a good excuse to take a “time out” to create new regulations that are not needed.
For some of my photographs taken on the ground in national parks or from legally-operated manned aircraft, check out my National Parks collection.