Southampton Town Board Resolution No. 2018-552

By Joanna L. Steidle

I am an FAA Part 107 certified remote pilot who recently started a small business, Drone X Images. My drone has become an entity in herself, named “Spacecat”. I want her to be an asset to the community, locals are just starting to get to know her, asking where she will be, and waving up to her. I always err on the side of caution. Without physical impediments, visual obstacles or posted warnings, there are still times I won’t fly based on my gut instinct.

Recently, the USGA 2018 US Golf Open was held at Shinnecock Hills Golf Club in Southampton, New York June 11th-17th. Earlier in the Spring the USGA proposed that the Southampton Town impose a local no fly drone ordinance.  

On May 22nd the Southampton Town Board passed Resolution No. 2018-552 which prohibits the use of unmanned aircraft systems within a two mile radius of all town permitted special events (not just the US Open) without consent of the Chief of Police or his designees. Town Supervisor Jay Schneiderman expressed concern at the meeting that the ordinance would be unenforceable.

He was quoted in Newsday:

We’re out of time,” Schneiderman said. “It would be better to hold a hearing and make amendments after.”

This is the ordinance

 

 

This ordinance is now being used as a prime example of exactly what local governments should NOT do in regards to drone restricta ions.

This is clear case of local government illegally preempting the Federal government’s jurisdiction over airspace.  

49 US Code 40103(a) says,

(a)Sovereignty and Public Right of Transit.—

(1) The United States Government has exclusive sovereignty of airspace of the United States.

(2) A citizen of the United States has a public right of transit through the navigable airspace.

Jonathan Rupprecht, Esq responded to the ordinance by stating:

A non federal entity attempting to regulate directly or indirectly airspace needs to realize they are playing with fire. Aviation case law has long held that the field of aviation is field preempted and also in some instances conflict preempted. See City of Burbank v. Lockheed Terminal; see also Singer v. City of Newton. Additionally, non-federal laws like this substantially frustrate the integration of drones into the national airspace which is what Congress wanted; thus, these lawmakers open their governments up to lawsuits from plaintiffs alleging conflict preemption because of substantial frustration in implementation.

The Town Board knew this (there is clause about it being invalid if deemed unconstitutional), and passed it anyway.

On June 7th I was flying my sUAS nearby the golf course when I was approached by Shinnecock Hills security and told I was on private property and I could not fly there (I was not launching, manning controls or landing on property own by Shinnecock Hills).  I explained I was not flying even close to what could be considered their private airspace (I was not technically above their property) and at that point there was no Federal restrictions on flight. I voluntarily gave them my name, as I had nothing to hide. They left on pleasant terms and stated, “Hope you make a ton of money.”

On June 9th, two local police officers showed up at my home and asked me not to fly my drone near Shinnecock Hills. I explained I was a commercial pilot who complies 100% with all Federal and local regulations.  I was told, “If you fly your drone it’s going to be a problem.” I promised not to fly my sUAS in any airspace controlled by the USGA, they appeared quite content with that answer and left. They didn’t realized the USGA had no jurisdiction in the matter and therefore have no control over the airspace. Local officers are not required to know anything about Federal laws or safe aviation procedures. They were not interested in my credentials, experience, safety checklist or the additional safety and privacy retrains I comply with which ar stricter than Federal or State requirements.

Yet, the Town dictates they are the sole entity deciding whether or not I can do business in the sky.

I had been in touch with homeowners whose property borders the golf course, they were interested in aerial photos of their homes with the US Open backdrop. These homeowners are locals that have lived here for decades, the course was a part of their family history in a way.  

During the Open I tweeted the FAA TFRs, checked NOTAM, and www.1800wxbrief.com for federal flight restrictions, none were publicized (this went on everyday of the Open). I tweeted screenshots daily. I found this very odd, disturbing and not right in any sense.  I did not intend on flying as the FAA website states:

“Depicted TFR data may not be a complete listing.  Pilots should not use the information on this website for flight planning purposes.”

Regardless of my intentions, each day I emailed the Chief of Police, Captain,  and Lieutenant requesting permission to fly during the Open while no Federal regulations where in place. My request states I would launch and land from private property with permission of the property owner, I would fly between 5:30am and 6am, prior to the first tee time, and would comply with all FAA regulations and restrictions.  

I expressed I was a commercial pilot and I hoped they would not impede my right to do business. I received one reply:

“We are in receipt of your email communication inquiring about an authorization to fly an unmanned aircraft system (UAS) over the outside perimeter of the US Open.  Whether it be over public or private property the authority to fly your UAS as requested is NOT authorized.  These measures are in place for security purpose and your cooperation is greatly appreciated. 

Respectfully,

  1. at Southampton Town Police”

Of course I complied, but not quietly. With much help from my friends the story received over 500k impressions within a few days on twitter and people across the country were contacting me with offers to assist.

During the tournament I spoke to eight NY State Troopers, each one told me the ordinance was unenforceable and no one could stop me from flying except for Federal Agents. One of the eight of them also knew there was no publicly posted Federal restrictions at the time. Bravo! These officers were properly trained.

I spoke with six Suffolk County Police officers, they were all willing to admit they were unsure of whether or not they had the right to restrict a flight that was not endangering the welfare of others.

I spoke to fourteen local Southampton Police Officers, they all stated “no drones can fly here”, and  yet not one of them knew what the local ordinance stated or was familiar with Part 107 FAA regulations.

June 17th US Open finals arrived, and still no publicly stated FAA restrictions, I found this baffling! On June 19th, two days after the Open when the USGA was long gone, I woke up to find a class D airspace publicized around Shinnecock Hills from June 9th-June 19th. Seriously! What was the FAA thinking, better late than never?

The following week every other day I emailed Police authorities requesting permission to fly at all Southampton Permitted special events and requested the proper protocol to follow when making such request.  I never received a reply. The town put this burden on local law enforcement, who simply are not equipped with the knowledge or tools to make an informed decision in regards to aviation procedures.

I resorted to calling the Sergeant on duty. He didn’t know what I was talking about when referencing the two mile radius, or permission to fly. The Town clerk told me that any officer, even a first year police officer had the authority to deny or grant me permission. He read the ordinance, called me back and told me, “Just go fly your drone, no one will know.”

He also stated he had no idea how I was to find out where and when Town special events were scheduled.  There is no public access to the list of permitted events. The town clerk told me to contact the police and police dispatch told me they don’t keep special event records.  It was completely impossible to comply with the ordinance.

The Sergeant than told me “You need to get to Town Hall and fix this.” So, I was being told to clean up the mess the USGA created. Where do I find a mop big enough? When I refused to disclose the name of this officer to the Town Clerk they stonewalled me and would no longer answer any of  my questions. I wasn’t about to bite the hand that feeds me as that would be unwise and counterproductive.

I finally realized I was never going to get an answer. So, on June 28th I sent an Official Legal Notice: Stating Their Lack of Denial will be Considered Presumed Consent to fly my sUAS.” I am not an attorney, so I had no idea if this was going to work. It stated:

“As obligated in Town Resolution No. 2018-552 this is my formal request to fly my commercial sUAS anywhere in the Town of Southampton in accordance with FAA regulations during all town permitted special events. I have submitted four written requests in the past week and have yet to be denied or granted permission.

I will now assume your failure to deny my request as presumed legal consent to fly.  In the event you choose to deny my request for permission to fly my commercial sUAS at any future special events please notify me formally via this email address  and afford me reasonable due process (at least eight hours prior to the event).

I appreciate your time and consideration.”

I still have not received a reply. And, intend on being present at every town meeting until this issue is formally resolved.

I happily flew my drone safely around the North Sea Carnival and received waves from the local police, firefighters and emergency personnel. I am fortunate. Remote pilots across the national are struggling to commence business legally and are being repressed by State and local laws. I have notified the FAA, hopefully they eventually take action and render this ordinance unenforceable as they did in the nearby Village of Sag Harbor. Therefore forcing the Town to drop the ordinance. As it stands now, I am the only drone pilot, commercial or recreational with permission to fly within two miles of Town Permitted Special Events. This doesn’t appear very fair in my eyes.

We work better and have a much louder voice in numbers, The advice, perspectives and input I received from other pilots, drone advocates and attorneys was invaluable and essential in order for me to overcome this local impediment.  I’d like to thank the many, many people who helped me along the way. This is just the beginning of my contribution to “The Cause”.