The legality of a new Wilkesboro Town Council resolution that temporarily prohibits drones from flying over the Tyson Foods Inc. chicken processing complex in Wilkesboro is being questioned by a commercial drone pilot and his attorney.
The council unanimously passed a resolution Monday prohibiting operation of unmanned aircraft (drones) above or within 100 feet of the Tyson complex until all local and state declarations of emergency have expired.
A COVID-19 outbreak at the Tyson complex has drawn multiple television news crews to the facility over the past week, some of which have flown drones over and into the airspace of the Tyson complex, said town officials.
“As Tyson’s (COVID-19) case count has grown, the publicity around the facility has reached a fever pitch, with multiple news crews trying to get coverage of the facility,” noted Town Manager Ken Noland. “We’re getting more than one drone flying at a time, and we’re concerned we could have an accident.”
Noland said “seeing drones fly over your head just adds to the stress count” of Tyson workers.
Hours after the resolution passed, Vic Moss, owner of Moss Photography and Drone U in Denver, Colo., sent an email to Noland, the Wilkes Journal-Patriot and Mickey Osterreicher, an attorney with the National Press Photographers Association.
Moss wrote, “I caution you against enforcing this. If you do, and cite someone, you will find your city attorney defending an indefensible federal court case.” He explained that, according to federal statute, the Federal Aviation Administration (FAA) has sole authority to control the National Airspace System (NAS). No political subdivision, such as a municipality, is allowed to control the NAS without consultation with the FAA, he wrote.
“It would be in the best interest of the Town of Wilkesboro to remove this ill-conceived ordinance from your books,” Moss continued. “Otherwise you’re opening up the town to a very expensive lawsuit.”
Moss alleged, with Tyson being the largest employer in Wilkes County, “I can see why they would be able to pull the strings of the town council. But in this case, they’ve led you astray, and possibly opened up the town to a lot of trouble.”
Prior to adopting the resolution, Councilman Andy Soots asked if the town had the authority to restrict the airspace above Tyson, and, if so, at what altitude. Noland said the FAA says drones should not be flown higher than 400 feet.
Town Attorney John Willardson instructed the council, “I think you’re within your right to adopt this if you’re so inclined. I think there’s (federal) restrictions already in effect but I see no harm in adopting this to clarify the town’s position.”
Councilman Russ Ferree said, “The owner (Tyson) needs to take these people (flying drones) to court, or find somebody that shoots skeet.” He made the motion to approve the resolution, which was passed unanimously.
Noland said the ordinance would be enforced by the Wilkesboro Police Department and could potentially be a misdemeanor charge with a fine of up to $500.
In 2019 the council passed a similarly-worded drone ordinance prohibiting flight activity over the 2019 MerleFest at Wilkes Community College.
Moss added that he works “tirelessly for safe drone use, and reasonable drone regulations across the country. As such I’ve developed a reputation for being able to help cities avoid this type of issue. I hope that you’ll be able to fix this issue before it causes issues.”
Osterreicher said Tuesday that his organization has worked with the FAA and law enforcement agencies for years to promote and coordinate the safe use of drones by journalists and others. “We are extremely concerned when local governments attempt to usurp the powers of the FAA to regulate the national airspace. Stringing together a number of ill-conceived and conclusory assumptions such as ‘impacted the facility and invaded the privacy Tyson team members’ with several ‘whereas’ in order to prohibit [drones] is not only a violation of federal preemption but an abridgment of the First Amendment.”
He added, “We hope that the Wilkesboro Town Council will reconsider their actions before a legal challenge costs citizens tax dollars that we are sure could be better used elsewhere.”