Michigan state court rules out local drone ordinances in favor of federal and state legislation

The Court of Appeals for the State of has decided in support of the use of unmanned aerial systems (UAS), such as remote-controlled aircraft, helicopters, and drones. The decision upholds federal and state laws over local drone ordinances.

The state's drone preemption law (MCL 259.305) was put to the test in a lawsuit, and it was decided that no local governments (political subdivisions) in Michigan can make or enforce their own drone laws.

Michigan was one of the first states in the country to establish this statewide standard. The Michigan Coalition of Drone Operators filed the lawsuit to protect the rights of drone operators across the state.

According to industry analysts, this decision goes a long way toward adopting the FAA's concept of not having a patchwork quilt of local restrictions, which would make the National Airspace (NAS) less safe rather than safer.

Therefore, plaintiffs averred, they were entitled to a declaratory judgment under MCR 2.605 that defendants are prohibited by state law from enacting or enforcing their Park Rule and ordinances regulating and banning UAS on county property, and plaintiffs were entitled to injunctive relief preventing such enforcement.

Defendants answered that plaintiffs lacked standing because they neither sought nor were denied permission to operate a drone in Ottawa County. Defendants also denied that MCL 259.305(1) prohibits the use of their statutorily delegated authority to issues rules and ordinances that protect the security of its property and operations, as well as protect persons using county property from harassment or undue surveillance by UAS. Further, defendants averred, MCL 46.364(1) granted the right to make rules regarding county parks, MCL 750.539a-j prohibits surveillance or eavesdropping, and MCL 46.11(j) grants a county the right to enact ordinances that protect its security and privacy interests in its properties. Thus, defendants urged the trial court to dismiss the complaint with prejudice.

In supplemental briefing requested by the trial court, defendants argued that by enacting MCL 259.305 the Legislature did not intend to occupy the entire field of law or preempt local regulation of UAS because it included the phrase, “Except as expressly authorized by statute,” and other statutes grant counties regulatory authority. Further, defendants noted, the Legislature did not enact any laws regarding the rights of property owners to restrict drones over their curtilage. In other words, there was no way to ensure jail or courthouse security if a county could not regulate the operation of UAS. Defendants argued that they could exercise control over their own property, including the immediate reaches of the air space, at least 85 feet above the tallest tree or building. Defendants claimed that if they were prohibited from controlling drones on county property, an unconstitutional taking without just compensation would occur. Defendants seemed to concede that the county's powers were preempted at least in part by federal law, but they nevertheless urged the court that severe limits on regulations of drone usage could amount to an unconstitutional taking of affected lands without compensation.

Thereafter, the trial court issued its opinion and order granting a declaratory judgment in favor of plaintiffs and a permanent injunction. First, the court concluded that plaintiffs had standing to seek a declaratory judgment under MCR 2.605 because plaintiffs' claim “is one of facial preemption, which challenges the mere existence and threatened enforcement of the rule and ordinance.” Further, an actual controversy existed because “[w]hether defendants' park rule and ordinance may be harmonized with the UASA, or are preempted, constitutes a present controversy that requires adjudication of the parties' rights before it ripens into plaintiffs' violation of the law or defendants' deprivation of a right.” Second, the court noted that there are three forms of state preemption: express, field, and conflict preemption. The court concluded that the challenged Park Rule and ordinances were neither expressly nor field preempted by the UASA. However, the court concluded that the Park Rule and ordinances do directly conflict with the UASA and could not be harmonized.

In particular, the court noted, Park Rule 16.1c impermissibly regulates the flying of drones by limiting the times, conditions, and places for which defendants grant permission. In that aspect, the Park Rule directly conflicted “with FAA sovereignty that permits drones in the airspace, and with the UASA's § 305(1) prohibition on local regulation of drone operation absent express statutory authorization.” The county's enabling statutes, MCL 46.11 and MCL 46.364, granting the county authority to manage and control its property do not expressly authorize drone regulation; thus, the county “must cede to the UASA's specific prohibition on local regulation of drone operation.” Because the Park Rule and the UASA cannot both be applied to the subject matter of drone operation or use, they conflict and the provisions of the UASA prevail. Likewise, the court held that Ordinances 400.5.2.1 and 400.5.2.2 directly conflicted with § 305(1) and § 305(3). And Ordinance 400.5.2.1 was impermissible because the FAA has exclusive authority to determine the airspace in which a person may operate a drone. The trial court rejected defendants' argument that property owners have rights in the airspace up to 500 feet above their property because no statute expressly provides such rights to landowners. In summary, the trial court concluded that Park Rule 16.1c was conflict-preempted by the UASA to the extent it included drones, and the entirety of Ordinance 400.5 was conflict-preempted by the UASA. Accordingly, a declaratory judgment was entered in favor of plaintiffs and a permanent injunction was granted consistent with the court's decision.

Defendants filed a motion for rehearing arguing, in relevant part, that although the trial
court stated that only Ordinance Subsections 400.5.2.1 and 400.5.2.2 were at issue, it ruled that defendants were enjoined from enforcing the entire ordinance. The trial court granted the motion for rehearing to limit the scope of the injunction holding that only Ordinance Subsections 400.5.2.1 and 400.5.2.2 are enjoined and the remaining provisions of Ordinance 400.5 remained valid “to the extent that pursuant to them the county does not regulate the ownership, operation or use of unmanned aircraft in violation of MCL 259.305(1) and (3).” Defendants now appeal.

But defendants admit that they are not challenging on appeal the trial court's actual ruling
regarding conflict preemption under MCL 259.305. Rather, defendants state on appeal that
“Ottawa County limits its challenge to the injunction on the basis that the Drone Act, specifically MCL 259.320(1), recognizes that a property owner such as the County has the right to establish rules against drone usage on its property enforceable through criminal trespass, being MCL 750.552.” But this case did not involve a criminal trespass. And the provisions of MCL 259.320(1) were not at issue in this case. Plaintiff brought this civil action seeking a declaratory judgment and permanent injunction on the ground that defendants Park Rule and specific ordinances were conflict-preempted by the UASA, specifically, MCL 259.305. And that is the basis of the trial court's ruling. The Court of Appeals is an error-correcting court, Wolfenbarger v Wright, 336 Mich App 1, 27; 969 NW2d 518 (2021), but defendants are requesting this Court to address, in the first instance, whether defendant Ottawa County—as a property owner and not as a political subdivision—can “prohibit drone usage on pain of a criminal trespass.” Defendants are actually seeking a gratuitous opinion on a matter of their own interest—not the correction of an alleged error by the trial court. We conclude that it would be inappropriate for us to address this issue that was not raised, argued, considered, and decided in the trial court and we decline to do so. See Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (citations omitted).

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Haye Kesteloo
Haye Kesteloo

Haye Kesteloo is the Editor in Chief and Founder of DroneXL.co, where he covers all drone-related news, DJI rumors and writes drone reviews, and EVXL.co, for all news related to electric vehicles. He is also a co-host of the PiXL Drone Show on YouTube and other podcast platforms. Haye can be reached at haye @ dronexl.co or @hayekesteloo.

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