As wildfire season heats up in the Western United States, drone (also known as “unmanned aircraft systems” or “UAS”) operations near wildfires have spurred technological advances and prompted a series of state and federal statutory and regulatory changes. From a practical perspective, these new laws can impose harsh penalties for violations—including having drones shot out of the sky. From a legal perspective, these new laws reveal the tension between state and federal regulation of UAS operations and important questions about federal preemption.
UAS operations near wildfires create the potential for collisions with manned firefighting aircraft, such as air tankers and helicopters, because these aircraft fly at significantly lower altitudes than typical manned aircraft operations. Federal Aviation Administration (“FAA”) rules permit UAS operations up to an altitude of 400 feet in most places, but firefighting aircraft often operate at an altitude of 200 feet—creating a dangerous airspace overlap. In 2015, the U.S. Department of the Interior (“DOI”) documented 25 instances of unauthorized UAS operations over or near wildfires in five western states. This summer, nearby UAS operations have grounded firefighting aircraft at wildfires in Arizona’s Tonto National Forest, in Southern Utah and many other states. According to officials in Utah, grounding aircraft slows firefighting efforts and vastly increases the costs.
In response, the federal government has initiated a public information campaign, boosted fines for operations near fires, and worked with UAS manufacturers to prevent UAS around wildfire areas. The DOI initiated its “If You Fly, We Can’t” informational campaign including advertisements and YouTube videos to educate UAS operators about the dangers to firefighters. The FAA funding extension bill signed into law last month raised federal civil penalties to $20,000 for private UAS operators who interfere with wildfire suppression. These penalties are in addition to other FAA criminal and civil penalties that may apply. The federal government is also developing geofencing technology in conjunction with DJI, a large UAS manufacturer. This geofencing technology, which is still in the developmental stage, creates a warning system that can be updated in real time to identify hazardous areas and can automatically prevent UAS entrance into those areas.
States are going even further to prevent UAS operations near wildfires although potential conflicts with federal law could lead to challenges. Utah lawmakers recently passed a bill permitting law enforcement officers to shoot UAS out of the sky or jam their signals if operating near wildfires. Additionally, the Utah law also authorizes criminal penalties of up to 15 years in prison and a $15,000 fine if a UAS causes a crash of a firefighting aircraft. Many other Western states have passed similar laws criminalizing UAS operations near wildfires, but Utah appears to be the first state to authorize disabling UAS in such situations.
Laws like these, which authorize disabling UAS, raise significant questions about federal preemption of state laws in the areas of aviation and communication and appear to conflict with the FAA and Federal Communications Commission’s (“FCC”) authority to regulate in these areas. For example, the Utah law appears to be in conflict with 18 U.S.C. § 32, a federal criminal statute which authorizes fines and imprisonment for whoever willfully “damages, destroys, disables or wrecks” any civil aircraft. Similarly, the Utah law is inconsistent with section 302(b) of the Communications Act of 1934 and FCC rules prohibiting the manufacture, sale or operation of jamming devices in the United States—even by state governments.
As the federal preemption issues get ironed out, in the meantime, UAS operators need to be aware of their surroundings to ensure the safety of firefighters. Federal and state governments are getting serious about preventing UAS operations near wildfires, and unsafe operators in these areas could get burned by steep fines and possible criminal penalties.