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Virginia legal - law interpretation, discussion?
76 4 2021-12-3
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daneast
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United States
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I live in Virginia, and unfortunately our state has some antiquated (1983) law on the books which is being interpreted to prevent any drone operation on any Virginia Parks which are overseen by the Department of Conservation and Recreation.  I live in a very rural area, and some of this conservation land is literally just mountains covered in trees, old railways that have been converted to trails, etc. Aditionally, there are very rural historic areas I would like to video some of the old structures with a drone.

Apparently VA has stopped processing all special requests to operate drones, after a court ruled they could not charge a fee for said processing.  Such is the bureaucracy in the Commonwealth of Virginia (don't even get me started on their DMV). When they were issuing the permits they required $1 million dollar liability insurance.  

The FAA has exclusive control over all aircraft regulation, with one exception - "aircraft landing sites" (https://www.faa.gov/newsroom/faa ... cal-drone-authority)
Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things. State and local governments are not permitted to regulate any type of aircraft operations, such as flight paths or altitudes, or the navigable airspace.
However, these powers are not the same as regulation of aircraft landing sites, which involves local control of land and zoning. Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation.

The Virginia law appears to take this into consideration, because as you see, it specifically refers only to landings. It also covers bringing (as in anything but flying) aircraft onto DCR land, as that is their domain as well (https://www.dcr.virginia.gov/sta ... nt/rules-drones.pdf)
No person shall voluntarily bring, land or cause to descend or alight within or upon any park, any airplane, remote control model aircraft, flying machine, balloon, parachute or other apparatus for aviation. "Voluntarily" in this connection shall mean anything other than a forced landing.


I'm tempted to challenge this law, on the basis that the wording of it allows a aircraft to be flown OVER DCR land, as well as the fact that the FAA prevents states from prohibiting flight.  Additionally, if my drone's battery were to die during flight, that absolutely qualifies as a "forced landing".  Note that this is not private land. It is public land.

In this document, which is not a law, but an intrepretion of the above law, they state "Recreational or hobbyist flights of unmanned aircraft systems (UAS) is prohibited on DCR lands."  The Virginia law does not state that, nor does the FAA allow them to regulate that.
https://www.dcr.virginia.gov/sta ... nt/rules-drones.pdf

My interpretation is that this allows them to be flown over the land (because "bringing" is not "flying"), but not landed on DCR land unless my battery dies. It does not expressly forbid take-offs, but since you must bring the aircraft onto the land in some other manner, which is forbidden, take-off is not possible.  This should allow the launching of a drone from non-DCR land, and, obeying all applicable FAA rules (visual flight drone, and / or spotters), the flight of the drone over DCR land.

In other words, once my drone has entered DCR land via flight, I can land it due to low battery, change the battery, and launch the drone again and again. As long as the landings are forced landings and the drone is flown onto DCR land initially.

Finally, I also wonder if the DCR has the right to regulate drones under 250 grams at all, as the FAA has already ruled they do not have to be licensed if not used for commercial purposes.
2021-12-3
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Mobilehomer
First Officer
Flight distance : 1849659 ft
United States
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In a nutshell, the FAA controls airspace - PERIOD!!! The gummint(local, state, federal) controls the ground. You CAN fly over as long as you take off and land on non-park land. Same with National Parks.
2021-12-3
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DAFlys
Captain
Flight distance : 6403281 ft
United Kingdom
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+1 for Mobilehomer answer.
2021-12-4
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Cetacean
Captain
Flight distance : 2494390 ft
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United States
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Aloha Dan,

     You appear to have done a good analysis of your flying limitations.  I am not an attorney, but I do deal with bureaucratese on a regular basis.  This is only civics (common sense) advice, not legal advice. According to what you have written, I would "chance 'em".  The big difference is how you fly.  If you try to fly, "In your face!", you will have no end of problems to the extent that it would be advantageous to have an attorney or be an attorney in order to succeed.  

     Otherwise, if you can fly "under the radar", and outside of conflict with people who might object, you could have many hours of good flying.  The issues you note may never come up and challenge your simple, obvious and innocent interpretations of the applicable laws.  

     Do be aware that there are online maps of property, like parks, that show that some roads, parking lots, etc. are not under park jurisdiction.  There are also "orphaned" properties next to parks that were never included within the park but are right next to the park.  The maps usually include names and addresses of the property owners so you can contact them for permission to take-off and land or at least inform them of your intent to do so.  

     If you should get "busted", save your arguments for the judge.  The enforcement officer is not able to discuss advanced legal arguments, only the judge can, and the judge will tend to agree with you if you keep your arguments reasonable.  Just act innocent (since you are) in the presence of the enforcement officer.  The enforcement officer might let you off with some sort of warning (or no warning).  If they do, you may have to fly in a different jurisdiction to avoid repeat offender status and a citation.

     Hope this helps!  Take care and be safe!

Aloha and Drone On!
2021-12-4
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DowntownRDB
Captain
Flight distance : 525 ft
United States
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If you feel strongly about this issue seek the advice of an attorney licensed in the Commonwealth of Virginia.  Unfortunately, he/she will probably tell you that you can launch from outside DCR land and fly over it but can't land on DCR land except in an emergency situation.  Once you land I'm sure the Commonwealth law prohibits taking back off.  I just don't think it is worth expending a large amount of funds to only be told no.  
2021-12-4
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