City Park Ban in Oregon, is it legal?

[DavidGlennPDX]

I was flying over Oswego Lake in the town of Lake Oswego Oregon yesterday when a park worker informed me that LO had banned drones in city parks. I landed, thanked him for the info and went home to check on the ban. I am not a big trust guy as far as Lake Oswego and law goes, with that city fighting Kayaking on the lake despite having no ownership of a navigable waterway. (They now admit they cannot own the waterway but simply outlaw launching from any public space)
Indeed LO passed such as law, but can they?
Oregon law on the matter states they cannot by my reading, I post the text of the law below.
Any legal minded folk wanna weigh in on this?


837.385 Preemption of local laws regulating unmanned aircraft systems.
Except as expressly authorized by state statute, the authority to regulate the ownership or operation of unmanned aircraft systems is vested solely in the Legislative Assembly. Except as expressly authorized by state statute, a local government, as defined ORS 174.116, may not enact an ordinance or resolution that regulates the ownership or operation of unmanned aircraft systems or otherwise engage in the regulation of the ownership or operation of unmanned aircraft systems.

 

[microlinux]

They can prevent you from taking off or landing on park property.

Technically (and this is a sticky-wicket to some degree) they cannot prevent you from flying in the park's airspace were you to launch/land off park property.

At the end of the day, the government can do anything they want until a private citizen(s) ponies up the money to fight them in court.

 

[Hollow Dog]

Your right.
Tell the next tyrant to site the law. Pretty sure you will just get a blank stare back.
And remember policy is not law.
Carry a copy of 837.385 with you.

 

[Lapeer20m]

I was flying over Oswego Lake in the town of Lake Oswego Oregon yesterday when a park worker informed me that LO had banned drones in city parks. I landed, thanked him for the info and went home to check on the ban. I am not a big trust guy as far as Lake Oswego and law goes, with that city fighting Kayaking on the lake despite having no ownership of a navigable waterway. (They now admit they cannot own the waterway but simply outlaw launching from any public space)
Indeed LO passed such as law, but can they?
Oregon law on the matter states they cannot by my reading, I post the text of the law below.
Any legal minded folk wanna weigh in on this?


837.385 Preemption of local laws regulating unmanned aircraft systems.
Except as expressly authorized by state statute, the authority to regulate the ownership or operation of unmanned aircraft systems is vested solely in the Legislative Assembly. Except as expressly authorized by state statute, a local government, as defined ORS 174.116, may not enact an ordinance or resolution that regulates the ownership or operation of unmanned aircraft systems or otherwise engage in the regulation of the ownership or operation of unmanned aircraft systems.

This is most excellent! Michigan has a similiar law. Unless the park can find a law that expressly allows them to regulate drones, I would
Say that you are good to go.

If I lived near there, I would even help with this project.

I was an activist in my younger years. Here is how the process should work, assuming the park has an unlawful/unenforceable regulation.

Reach out to the director or board of directors by email and or phone.

If that doesn't work, send a certified letter asking them to amend their regulation.

When that doesn't work, go to their public meeting and address your concern during public comment time.

When that doesn't work, go
Fly your drone in the park, maybe even have a picnic and invite all your friends to fly too. This forces their hand and will almost always end up with them changing the regulation to comply with state law.

 

[DavidGlennPDX]

They can prevent you from taking off or landing on park property.

Technically (and this is a sticky-wicket to some degree) they cannot prevent you from flying in the park's airspace were you to launch/land off park property.

At the end of the day, the government can do anything they want until a private citizen(s) ponies up the money to fight them in court.

You may be right, but it feels like even that would violate the statute as I read it. That seems like the definition of regulation which the state law forbids

 

[Qoncussion]

You may be right, but it feels like even that would violate the statute as I read it. That seems like the definition of regulation which the state law forbids

While I didn't read the statute, it has been well established that *only* the FAA can regulate air space. Many cities and towns keep attempting to ban drones *over* certain lands ~but it really comes down to what the FAA has to say about it. So, no matter how well they worded their statute ~if they are not the FAA, then keep the drone above 85ft, don't piss anyone off and enjoy your flight.

 

[ac0j]

OR, you could just NOT fly in the parks. There has to be 100 fold more places around you where can fly without pissing anyone off, than there are banned places. Unless you just enjoy conflict, like the law quoter types. Just dont fly there.

 

[microlinux]

You may be right, but it feels like even that would violate the statute as I read it. That seems like the definition of regulation which the state law forbids

They can definitely prevent you from using the park grounds for take off and landing - the government owns that property. Being in command of an UAS doesn't entitle you to land and take-off without prejudice.

You could take off outside the park and fly over it. As I understand it, the FAA has absolute control of airspace - so long as you're not flying somewhere with other restrictions, you should technically be in the clear.

 

[DavidGlennPDX]

They can definitely prevent you from using the park grounds for take off and landing - the government owns that property. Being in command of an UAS doesn't entitle you to land and take-off without prejudice.

You could take off outside the park and fly over it. As I understand it, the FAA has absolute control of airspace - so long as you're not flying somewhere with other restrictions, you should technically be in the clear.

That makes in truth, no sense whatsoever if you consider it.
The FAA has control of airspace. So, no regulations can be enacted by anyone save the FAA. Ok, good so far.
The parks are city property BUT other laws and regulations may trump city law, such as county, state and federal law.
State law in general trumps city.
The state law in this case directs that the cities may NOT regulate drones.
The State here represents my interests.

 

[DavidGlennPDX]

OR, you could just NOT fly in the parks. There has to be 100 fold more places around you where can fly without pissing anyone off, than there are banned places. Unless you just enjoy conflict, like the law quoter types. Just dont fly there.

I do not at all care for conflicts but sometimes life happens.
So, my state regulates drones in state parks and state lands but specifically bands local government from enacting any regulations as they reserve that for the state reps.
So, your position is I should avoid flying over this lake or area from the parks that are the most safe to, because a city is violating state law and I should just sit down and shut up?
Ya, not feeling it.
What I do want to do is talk to the city, the state, ect. Hell, it could be the city knows it is an old reg and the park guy was just not up on the change, could be the state reg is old and the city one now is in effect. I have no idea. But just cause someone in authority tells me a thing, it does not make it law, or real. It is worth asking.

 

[microlinux]

The state law in this case directs that the cities may NOT regulate drones.

They aren't regulating drones, the cities are dictating what is and is not permissible on the physical property they own. At its core, landing/taking off is a property rights issue, not a drone ownership or operation issue.

I don't think 837.385 is giving you carte blanche to do whatever you want in the absence of a state level regulation saying otherwise.

 

[Lapeer20m]

They aren't regulating drones, the cities are dictating what is and is not permissible on the physical property they own. At its core, landing/taking off is a property rights issue, not a drone ownership or operation issue.

I don't think 837.385 is giving you carte blanche to do whatever you want in the absence of a state level regulation saying otherwise.

But the law quoted specifically forbids the city from enacting or enforcing any regulation related to the operation or ownership of unmanned aircraft.

 

[Chip]

The Lake Oswego Park Ordinance prohibits operation of "motorized models, planes or drones" in city parks without the approval of the Parks Director. It sure sounds inconsistent with Oregon state law which probably means its invalid. In order to make the proper record and establish standing to challenge ordinance in court, however, you would have to start by writing very nice letter to the Director of Parks and requesting permission to fly in the park during normal hours. Until you are told no, you have no standing and have not exhausted administrative remedies. Of course, in the letter, stress that any operation will be conducted in strict accordance with FAA Hobbyist Guidelines and humbly point out your concern that the blanket ban on all operations is inconsistent with Oregon state as well as federal law, likely making it invalid and unenforceable. Whether its worth the trouble may depend on how nice that park is and whether you have any reasonable alternative.

 

[DavidGlennPDX]

But the law quoted specifically forbids the city from enacting or enforcing any regulation related to the operation or ownership of unmanned aircraft.

Exactly. I mean, if the state law specifically said lets say that cities and counties may not regulate alcohol

The Lake Oswego Park Ordinance prohibits operation of "motorized models, planes or drones" in city parks without the approval of the Parks Director. It sure sounds inconsistent with Oregon state law which probably means its invalid. In order to make the proper record and establish standing to challenge ordinance in court, however, you would have to start by writing very nice letter to the Director of Parks and requesting permission to fly in the park during normal hours. Until you are told no, you have no standing and have not exhausted administrative remedies. Of course, in the letter, stress that any operation will be conducted in strict accordance with FAA Hobbyist Guidelines and humbly point out your concern that the blanket ban on all operations is inconsistent with Oregon state as well as federal law, likely making it invalid and unenforceable. Whether its worth the trouble may depend on how nice that park is and whether you have any reasonable alternative.

I have written the parks director so I can get his response recorded. It is possible LO knows about the state law, which I think is pretty recent and simply has not updated their online information and let parks personal know. I think this is actually a pretty decent chance. Police and even lawyers are often unaware of changes in the law until they run across it in a real world situation.
After that I will see if I can check with the state, make sure the law is still valid and if so I'll pay a lawyer to craft a legal citation I can carry with me. That is the hope anyways.

Lake Oswego is a very snobbish city with a history of fighting with the state on similar matters such as the Kayak issue.

To say that the Oregon legislature did not intend for a city to be unable to ban drones in their parks is just silly to me.
The State has no regulatory power of the airspace so the bill had to 100% be talking about the land. The statute bans a local government, as defined ORS 174.116, ORS 174.116 - "Local government" and "local service district" defined - 2015 Oregon Revised Statutes
That statute SPECIFICALLY lists "A park and recreation district organized under ORS chapter 266." among many others.
So, the Oregon law says clearly that a city or a parks and rec part of the city along with pretty much any authority except the state CANNOT regulate drones.
Saying I cannot bring one and launch it from a public city park is regulation. I think one would fail a basic understanding of the word regulation to deny that.
To me, there is no question if both laws are current that I can fly my drone in any city or county park in the state unless the legislature has granted them an exception of some sort.

 

[Mr. Salty]

That makes in truth, no sense whatsoever if you consider it.
The FAA has control of airspace. So, no regulations can be enacted by anyone save the FAA. Ok, good so far.
The parks are city property BUT other laws and regulations may trump city law, such as county, state and federal law.
State law in general trumps city.
The state law in this case directs that the cities may NOT regulate drones.
The State here represents my interests.

I can fly my drone over your house as much as I want because the FAA controls the air space, not you, the homeowner.

But that doesn't mean I can enter your backyard, set up a chair on your deck and start flying from there without your permission.

 

[Chip]

I can fly my drone over your house as much as I want because the FAA controls the air space, not you, the homeowner.

Actually, you cannot in Oregon without risking a civil lawsuit under Oregon's very tough drone trespass law:

837.380 Owners of real property; Attorney General.

(1) Except as provided in subsections (2) and (3) of this section, a person who owns or lawfully occupies real property in this state may bring an action against any person or public body that operates an unmanned aircraft system that is flown over the property if:

(a) The operator of the unmanned aircraft system has flown the unmanned aircraft system over the property on at least one previous occasion; and

(b) The person notified the owner or operator of the unmanned aircraft system that the person did not want the unmanned aircraft system flown over the property.

(2) A person may not bring an action under this section if:

(a) The unmanned aircraft system is lawfully in the flight path for landing at an airport, airfield or runway; and

(b) The unmanned aircraft system is in the process of taking off or landing.

(3) A person may not bring an action under this section if the unmanned aircraft system is operated for commercial purposes in compliance with authorization granted by the Federal Aviation Administration. This subsection does not preclude a person from bringing another civil action, including but not limited to an action for invasion of privacy or an action for invasion of personal privacy under ORS 30.865.

(4) A prevailing plaintiff may recover treble damages for any injury to the person or the property by reason of a trespass by an unmanned aircraft system as described in this section, and may be awarded injunctive relief in the action.

(5) A prevailing plaintiff may recover attorney fees under ORS 20.080 if the amount pleaded in an action under this section is $10,000 or less.

(6) The Attorney General, on behalf of the State of Oregon, may bring an action or claim for relief alleging nuisance or trespass arising from the operation of an unmanned aircraft system in the airspace over this state. A court shall award reasonable attorney fees to the Attorney General if the Attorney General prevails in an action under this section.

 

[Mr. Salty]

Actually, you cannot in Oregon without risking a civil lawsuit under Oregon's very tough drone trespass law:

If that's ever challenged it will likely be struck down.

 

[Chip]

If that's ever challenged it will likely be struck down.

I would not be so sure. The states have the right to enact and enforce laws to protect the use and enjoyment of private property. Its classic exercise of state police power.

 

[microlinux]

Saying I cannot bring one and launch it from a public city park is regulation. I think one would fail a basic understanding of the word regulation to deny that.

You're confusing drone operation with property rights. The city owns the property. The property has nothing to do with airspace, where a drone operates. The state statute does not address property rights, it addresses drone ownership and operation.

Technically, the city cannot say you can't operate within the airspace of the park - the FAA controls airspace. They can tell you that you are not allowed to stand on their private property and launch your drone.

 

[DavidGlennPDX]

Actually, you cannot in Oregon without risking a civil lawsuit under Oregon's very tough drone trespass law:

837.380 Owners of real property; Attorney General.

(1) Except as provided in subsections (2) and (3) of this section, a person who owns or lawfully occupies real property in this state may bring an action against any person or public body that operates an unmanned aircraft system that is flown over the property if:

(a) The operator of the unmanned aircraft system has flown the unmanned aircraft system over the property on at least one previous occasion; and

(b) The person notified the owner or operator of the unmanned aircraft system that the person did not want the unmanned aircraft system flown over the property.

(2) A person may not bring an action under this section if:

(a) The unmanned aircraft system is lawfully in the flight path for landing at an airport, airfield or runway; and

(b) The unmanned aircraft system is in the process of taking off or landing.

(3) A person may not bring an action under this section if the unmanned aircraft system is operated for commercial purposes in compliance with authorization granted by the Federal Aviation Administration. This subsection does not preclude a person from bringing another civil action, including but not limited to an action for invasion of privacy or an action for invasion of personal privacy under ORS 30.865.

(4) A prevailing plaintiff may recover treble damages for any injury to the person or the property by reason of a trespass by an unmanned aircraft system as described in this section, and may be awarded injunctive relief in the action.

(5) A prevailing plaintiff may recover attorney fees under ORS 20.080 if the amount pleaded in an action under this section is $10,000 or less.

(6) The Attorney General, on behalf of the State of Oregon, may bring an action or claim for relief alleging nuisance or trespass arising from the operation of an unmanned aircraft system in the airspace over this state. A court shall award reasonable attorney fees to the Attorney General if the Attorney General prevails in an action under this section.

You will note the requirement that they notify you they do not want the craft over their property. I agree with Salty it would likely be struck down, but until I get a property owner notifying me of a desire, which in truth I would comply with anyways