Image: Yosemite National Park Facebook
Yosemite National Park raised a few eyebrows this weekend when park officials suggested—using some pretty dubious legal framework—that flying hobby drones in the park is illegal. But the park isn’t the first to try to make up the rules as it goes along: Nearly three years ago, a famous drone pilot was illegally fined and had his property confiscated for flying a drone over the Grand Canyon, in what has become an important free speech issue.
The incident underscores a larger national problem being played out between entrepreneurs, model aircraft enthusiasts, and state, local, and federal governments. People like flying drones, for both leisurely and commercial purposes, and often the most interesting places to fly them are in big cities or pristine nature.
The Federal Aviation Administration isn’t keen to allow drone operators unfettered access to the skies, but doesn’t have the proper legislation or regulations to stop drones from flying under guidance similar to model aircraft. Instead, the FAA tried to finagle existing aircraft regulations to apply to drones, even when they clearly don't.
It's a situation where technology and the hobbies of the people have far outpaced government rules, and, rather than actually legislate or go through the proper channels and procedures to ban or limit drone use, authorities confiscate and fine first, then attempt to apply regulation later.
Long before Raphael Pirker became the first person to be fined by (and to subsequently beat) the FAA, he ran into trouble with rangers at Grand Canyon National Park. In December 2011, the Swiss drone pilot, one of the most well-known in the world, was taking footage of the Grand Canyon using a small, Styrofoam drone.
Park rangers approached him, demanded he ground the drone and that he delete any footage he took. Pirker turned over his drone’s memory card, but only after rangers threatened to obtain a search warrant to seize it, according to a citation report. Pirker was fined $325 and issued a ticket for violating a federal code that prohibits “delivery 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.”
What's happened to that footage, which Pirker planned to blast out to his tens of thousands of YouTube subscribers, is anyone's guess. But it's clear from the citation report that US government officials wanted it deleted to make sure it never hit the internet, where it would "invite additional individuals to replicate these prohibited flight maneuvers within Grand Canyon National Park," according to the citation report.
In short, park management confiscated Pirker's footage, not because it was explicitly illegal, but because authorities were concerned that sharing the footage would inspire more people to fly drones.
An excerpt from the citation report suggests that US District Attorney Patrick Schneider was worried about aerial footage of the Grand Canyon hitting the internet.
Pirker took this footage on the day after his memory card was confiscated, except this time, he flew from a Native American reservation, standing off of Grand Canyon National Park grounds.
The problem with Pirker's incident, and the subsequent drone-prohibiting rule that Yosemite National Park has just announced, is that it's based on a bunch of nonsense, as law professor Greg McNeal explains over at Forbes.
For one, the National Park Service specifically defines “aircraft” as “a device that is used or intended to be used for human flight in the air, including powerless flight.” Then, there’s the “delivery” bit.
Yosemite argues that the drone is delivering the drone. Image: Facebook
“Did the drafters really intend to regulate delivery, where the thing being delivered is the delivery vehicle itself?” McNeal wrote.
But that’s how the park is arguing it: In a Facebook post, the national park wrote that “the drone itself is the object being delivered.” McNeal suggests the argument is “ridiculous.”
Charles Warren, an environmental law attorney at KramerLevin who has studied the statute, said the rule is almost certainly legally invalid.
“Certainly the park service wants to protect the park, but without additional regulation or law, it’s difficult to rely on this and not have it overturned when challenged,” Warren told me. “I don’t see a regulation like this being effective in prohibiting drones. There’s no apparent legal basis for it.”
That’s the sense Pirker got as well. The Swiss native fought the National Parks Service in a series of emails he shared with me after being initially being cited. Months after Pirker was initially ticketed, the Grand Canyon National Park changed its rules to expressly mention that “operated an unmanned aircraft, including radio controlled aircraft, model aircraft, and aircraft operated by first person video is prohibited in Grand Canyon National Park.”
The fact that the park rules were changed after Pirker’s incident, as well as the emails exchanged between Pirker and US District Attorney Patrick Schneider (who was assigned to Pirker's case and initially told the park ranger to seize the footage) suggest that the park knew that, at the time, Pirker violated no regulations.
The emails and initial citation also show a district attorney who admits that Pirker’s property was improperly held as “evidence of a crime,” but who shows reticence to return it because of the possibility that it would encourage others to fly in national parks—an implication that pretty clearly becomes a free speech issue.
After handing over the SD card and leaving the park, Pirker started emailing Phillips and Schneider in an attempt to get his memory card back. In one email, Schneider says that if Pirker returned to the United States to fight the $325 ticket, he would face a possible conviction subject to six months in jail, a $5,000 fine, and would also consider trying to charge Pirker with disorderly conduct and lying to a park ranger, who Schneider says warned him a day prior that he was not allowed to fly his drone. Pirker eventually agreed to pay the fine, after being told by a law enforcement specialist that doing so was not an admission of guilt.
Email from Patrick Schneider to Pirker in which the district attorney threatens to charge him with a criminal violation
Later in the exchange, a law enforcement specialist with the National Park tells Pirker that he can pay the fine without admitting guilt, which would have theoretically allowed him to get the memory card back. “In the District of Arizona, the payment of a collateral forfeiture amount is analogous to the payment of a civil penalty and is not an admission of guilt nor a conviction,” the specialist wrote. Later in the exchange, she says that the card would be returned to him within a week:
Pirker says that his card was not returned, an inferior, blank replacement was.
“The card was retained as evidence of a crime,” Schneider wrote. “A substitute was sent to you.”
Emails exchanged between Pirker and officials at the District Attorney's office and Grand Canyon National Park
That’s a sentiment that Schneider echoed to me when I spoke to him this morning. “He had a card sent back to him. His was evidence of a crime,” he said. Well, what was the crime then—what was he delivering with the drone? What legal authority did the park have, at the time, to ban drones? “There were plenty of charges, I’m not going to argue the case with you,” he said.
I asked him if he thought the regulation, as written, was sufficient to ban drones from national parks.
“It’s not about the laws, it’s about whether it’s legal to fly an unmanned aerial vehicle, it’s a question of whether it endangers the public depending on what else is around or if they’re harassing protected animals. There are tons of different potential violations. Is there a specific provision on hand that says it’s illegal to fly it? I don’t know,” he said. “You know how many millions of people visit the Grand Canyon each year? There’s thousands of tourists standing there at any one time. When you’re told you can’t do that and refuse to comply, there are any number of violations that may apply or may not.”
I asked a lawyer, who is familiar with the case but is not yet legally involved and so wished to stay anonymous, whether there was any basis to keep the confiscated card.
“If a person was cleared of a ‘crime,’ what basis is there to keep the property? They could make a copy if they need to maintain evidence for some future purpose, but they don’t,” he said. “Why keep the video footage and replace the SD card? To prevent other people from being inspired to do the same thing. Keeping the video seems to me to have absolutely nothing to do with the alleged violation. If someone flew an unauthorized manned flight over the Grand Canyon and a passenger took photos of it, would they seize the photos? Of course not. The alleged violation was the flying of the drone, not the taking of video.”
And that is the problem with drone legislation at the moment. There are few rules, and they are fuzzy, overly broad, and not based on actual existing regulation or law. Flying a drone in a national park, when done recklessly or without common sense, may be stupid. It may be unsafe. It may be annoying. But it’s not illegal, not without the proper legislation or regulatory rule making.
If the Department of the Interior wants to ban drones in the parks, they can do so—after going through proper regulatory channels; namely, by making a proposed rule and allowing the public to comment on it. Until they do that, these rules and these citations are evidence of government overreach, plain and simple.