If the National Park Service’s absurd interpretation of their regulations stands, individuals flying drones in national parks may face six months of imprisonment and/or a $5,000 fine.   The fine and jail time were announced today by a National Park Service spokesperson.  That’s a big problem because the National Park Service hasn’t followed their own rules or followed any formal rulemaking process that would support their draconian threats.

We live in a nation of laws.  Those laws are passed by our elected representatives in Congress who oftentimes delegate to agencies like the National Park Service the authority to make rules implementing those laws.  There is a process that must be followed, and the National Park Service has not followed it.  The National Park Service is threatening park visitors with jail time and substantial fines, but the agency hasn’t written any rules to make it clear to park visitors what is prohibited.

In fact, the situation is so muddled that different parks within the National Park Service are issuing different statements, leaving park visitors confused as to what counts as a drone.  That means park visitors may be confused as to what might subject them to jail time.  The Grand Canyon, for example distinguishes between drones flown in “FPV” or “First Person View” versus toy drones, while Zion claims the use of drones is prohibited in all circumstances.

This rule, buried on the Grand Canyon's website, claims to prohibit the use of "radio controlled aircraft" and "model aircraft" but not "toy class remote controlled aircraft."

If your daughter is about to fly her drone above your campsite, she may be facing six months in jail.  Wouldn’t it be nice to know what the National Park Service means when they say “drones” are prohibited?  Wouldn’t it be nice to know what law they are relying on, rather than feeling like the government can make rules by Facebook and Twitter?

Unfortunately, it seems even the agency doesn’t know what they are talking about.  While they’ve decided they want to prohibit drones, it is clear the rules on the books don’t address drone use.  What that means in our rule of law system is that the agency can’t simply make things up by bureaucratic decree, rather they are bound by existing rules until they promulgate new ones.

As I pointed out here, the National Park Service defines aircraft as:

“a device that is used or intended to be used for human flight in the air, including powerless flight.”

That is their definition, it is the law that is on the books (as opposed to made up law in Tweets and press releases).  That regulation can be found by any concerned citizen (here it is).  If the government wants to fine or imprison people for flying an “aircraft” they can only do so pursuant to the rules they’ve promulgated.  Those rules state that aircraft are “used or intended to be used for human flight.”

Instead of following their own rules, the National Park Service has chosen to ignore the definition of aircraft (the definition that they wrote), and has instead tried to adopt the definition of aircraft used by the FAA.  They claim that 36 CFR 2.17(d) allows them to do this, it states:

“The use of aircraft shall be in accordance with regulations of the Federal Aviation Administration. Such regulations are adopted as a part of these regulations.”

By its plain text, this regulation adopts FAA rules for  use of an aircraft, not the definition of an aircraft itself.

The (Photo credit: Yosemite National Park Facebook page)

If the average park visitor wants to know what the National Park Service means when it comes to aircraft, isn’t the best definition the National Park Service’s definition?  That seems reasonable to me, but perhaps I’m wrong and the National Park Service can promulgate a definition of aircraft in their own rules, then ignore that definition by adopting another agency’s rules by reference.  I don’t think that’s the case, but for argument’s sake, let’s look at the FAA’s rules.  What exactly do they say about drones?  Well, according to the Pirker decision which interpreted the meaning of the term “aircraft” in FAA rules, “the FAA has distinguished model aircraft as a class excluded from the regulatory and statutory definitions.”  That is to say, drones and manned aircraft are two different things.  Thus under both the National Park Service’s rules on the books, and the FAA’s rules, drones are not aircraft.

Now, here’s the rub.   I’m fine with the National Park Service limiting the use of drones, they just need to follow the right process.   Good government and the law both require that when agencies like the National Park Service, Department of the Interior (and the FAA for that matter) promulgate rules, that they do so by following certain procedural steps.  First, they must issue a notice of proposed rulemaking, this lets individuals know that the agency may be making a rule that impacts them.  Second, they should open a comment period so that members of the public can provide input on the rules the agency is considering.  Third, the agency should consider the comments, and then adopt a final rule giving a statement about the reasons they’ve adopted the rule.  These steps keep government accountable to the people, and ensure that bureaucracies don’t make law that is disconnected from the wishes of the electorate.  In fact, with new technology it is easy for the public to comment on rules (just visit Regulations.gov to see for yourself) and that commentary can help to make better rules.

What will happen if the National Park Service follows this process?  It’s possible we may end up with the same drone ban that they currently want to implement, but that ban will have democratic legitimacy.  Not only will it be more legitimate, the process leading to the final rule will likely make the rule better.  The agency will be able to articulate why banning drones (thus hampering forms of free expression such as photography) is an important conservation measure that trumps free expression.  The public will have an opportunity to help shape the rules, perhaps helping to clarify what a drone is, exempting certain types of drones or certain uses from the ban, and making a safe harbor for children or those who acted without criminal intent.  Public commentary may also change the draconian $5,000 fine and six months jail time to a more reasonable penalty that reflects the nature of the offense.  The final rule will be published and searchable, and there will be clarity as to what is prohibited and what is allowed.  This will make for efficiency in enforcement, and serves the liberty interests of park visitors.  I can’t list all of the possible rules that an open and transparent process would create for drones — and that’s the point, input from many people will make for better rules.

In all, everyone benefits when agencies like the National Park Service follow the law when making rules.  When agencies haphazardly claim to make rules through press releasesFacebook posts and Tweets democracy suffers.  Such forms of communication are not permanent, they are not transparent, and they are not subject to engagement by interested members of the public.  Limiting drone use in parks may be a good idea, but it needs to be done the right way.

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