Entry-level Guide to Hawaii Drone Laws
As drone enthusiasts continue to flock to Hawaii, it becomes increasingly important to consider the legal restrictions associated with operating a UAS. Although Hawaii has several regulations specific to UAS and drone operations, there is a wide array of federal regulations which are likely to govern drone use in the area. Hawaii drones can vary amongst the islands, which is why it is important to know what applies to you as a consumer, investor, or operator . Hawaii is home to an active UAS market that operates near three international airports, 17 regional or rural airports, as well as other private airstrips, helicopter landing zones, and locations near oceans, mountains, and jungles.
Drone regulation is still being implemented and updated at both the state and local levels. In this article, we will break down the drone laws into federal, state and local regulations so you know exactly which laws apply to Hawaii’s four populated islands, including: the Big Island, Maui, Oahu and Kauai.
State and Federal Drone Laws
Federal laws supersede state laws when it comes to drone regulations. For example, in 2016 the FAA established regulations for commercial drone use. Federal law has priority over state law and preemption doctrine dictates that the federal government is the exclusive regulator of the airspace and therefore any drone operations above 400 feet are subject to the FAA rules no matter where that airspace is located.
However, states have the right to control the operations below 400 feet and can enforce drone laws as they see fit. The state and local entities can impose additional restrictions on drone operations such as operational restrictions and permitting requirements. Hawaii has several state laws that affect drone use as well as numerous counties that have their own drone laws or proposed laws. Hawaii’s small size and large population has put pressure on lawmakers to impose more restrictions on drone use than do other states. Hawaii is one of several states that are reacting to privacy concerns by limiting the ability of drones to overhear or record audio of individuals. Hawaii also limits drone use near private and state property. Finally, Hawaii has numerous laws related to congested areas and the use of commercial drones in the state.
Hawaii also has laws that prohibit law enforcement from using drones without permission from a court or the individual who is being surveilled, unless the police are responding to an emergency.
Hawaii Drone Laws
Hawaii has implemented a number of specific drone regulations that pilots must be aware of. These can be summarized as follows:
- Registration: All drones weighing 0.55 lbs (253 grams) or more must be registered with the FAA within 30 days of first use. For more information, visit the FAA website at www.faa.gov/registration. State law also requires individuals to register their drones with Hawaii state authorities. Note that each county has its own registration requirements for drones; for more information, visit the Hawaii government website at https://hawaii.gov.
- No-fly zones: According to the Hawaii government website, "drones are not permitted to fly over state parks and beaches, or over any of the following areas: beaches; game management areas; reserves, natural area reserves, natural area reserves systems; designated wilderness areas; wildlife sanctuaries; wildlife and fish refuges; wildlife corridors; critical habitat; conservation easements; or preserve areas."
- Setback Zones: If you fly within 500 feet of another person, your drone must be at least 25 feet, or more, above ground level. Additionally, you cannot fly within a 25-foot setback zone of any designated state park, beach, or a private property, unless you have permission to fly it.
- Operable Control: If you are flying a drone as part of a commercial operation, you must be able to bring the aircraft back to you with an operable control, such as a remote controller. If you do not, you are subject to the same laws as private hobbyists, and the above laws may not apply to you.
- No Nighttime Flying: As of right now, Hawaii is not permitting nighttime flights, regardless of the drone’s purpose.
- Conflicts with FAA Regulations: Hawaii state law says that drone pilots must comply with federal drone regulations—however, federal preemption may apply if the drone pilot or commercial operation takes place in the context of an FAA air carrier certificate. Further, state law stipulates that "If a person is required to obtain a permit, or demonstrate flight proficiency to be able to fly an unmanned aircraft system in their state, then the State of Hawaii shall not require separate permitting or flight proficiency testing beyond that required by the Federal Aviation Administration."
- Penalties for Violations: If you violate any of the above regulations, you may be penalized, in addition to any penalties imposed for violation of federal laws. The penalties include: fines and fees, which shall be deposited into the State Parks Historic, Preservation, and Planning Fund; community service; and other penalties authorized by law.
Hawaii Drone No-Fly Zones
Hawaii is home to many national parks and wildlife refuges that are absolutely breathtaking, but are also designated as no-fly zones due to the delicate nature of the native bird life and cultural sites found on them. The Hawaiian Air Tour Operators Association (HATOO) has a list of no-fly zones for commercial drone pilots that includes locations like the Ninini Point Lighthouse in Kauai, the Kalaupapa National Historical Park on Molokai, and the Kaloko-Honoko State Park on the Big Island. The list of drone no-fly zones in Hawaii is continuously updated to keep in line with new regulations and changes in the law.
If you happen to be flying near any of these sites, a local state or federal agent will surely advise you of your mistake. You can be fined up to $10,000 if you fly your drone in a national park, and up to $11,000 fine if you fly within a wildlife refuge. The fine can be doubled for each violation or mistake if the pilot is found to be in commercial use of the aircraft without permission. Pilots found to be purposely breaking the law, of course, face heftier fines. The bottom line is that you simply do not want to be caught flying your model aircraft in these areas; fines are exorbitant and the potential jail time is staggering.
Hawaii Drone Laws for Hobbyists
As with any technology, the legal landscape surrounding drones is complex and evolving. In Hawaii, there is a specific set of legal requirements that must be adhered to by recreational drone pilots. An understanding of these laws is critical for future recreational pilots to avoid potential fines and legal consequences. As per federal law, recreational drone pilots are required to register their drones with the Federal Aviation Administration (FAA) if their drone weighs more than 0.55 pounds (250 grams). Registration requires the creation of a free account on the FAA’s online platform, where you then pay an $5 fee to register your drone. Drones must be labeled with the unique registration number. Registration must be renewed after three years. After registration, recreational drone pilots also have a "Trust" component that they must complete to fly legally. This is a knowledge test that assesses one’s understanding of the legal requirements of flying drones. This component was created under the FAA Reauthorization Act of 2018. Recreational drone pilots must be 13 years or older to register themselves. For pilots under the age of 13, a parent or guardian may register the drone in his or her name. Safety precautions must be taken at all times when flying a drone, as injuries to people and damages to property may result from collisions and crashes. The FAA requires that recreational drone pilots fly at least 400 feet above ground level, fly only in daylight, keep the drone within visual line of sight, and yield the right of way to other aircraft. In addition to adhering to these federal regulations, all drone pilots must comply with Hawaii state law which prohibits drone flights in certain areas near airports, military bases, and schools. Flying a drone in these restricted areas risks civil criminal penalties.
Hawaii Drone Laws for Commercial Use
Commercial drone operators in Hawaii need to follow the FAA’s rules under Part 107 of the Federal Aviation Regulations. To operate drones commercially in the state, a pilot is required to obtain his or her remote pilot certificate by passing an FAA knowledge test and passing a TSA security background check. In addition to Part 107 compliance, Hawaii commercial drone operators should also evaluate the need for commercial general liability insurance and state permits to operate within national parks or other state established no-fly zones.
National Park Service (NPS) regulations prohibits all drone operations in Hawaii’s national parks, including Haleakalā National Park and Hawaiʻi Volcanoes National Park. The regulations make exceptions for videos, people hiking in backcountry, and other permitted and authorized uses. Failure to comply with the NPS regulations can result in up to $5000 in fines and/or 6 months imprisonment on a petty offense. Given the steep civil and criminal penalties for violations of these regulations, if you want to fly in a national park, you should review the NPS website to determine if you meet any of the exceptions – or seek an NPS permit.
A valid commercial drone permit may be required to fly your drone in certain areas in Hawaii . The State of Hawaii has established no-fly zones in areas such as state parks, state hospitals, state correctional facilities, and in other areas. For example, state and federal parks have restrictions, such as at Kilauea on the Big Island. Commercial drone pilots may be able to obtain a permit to fly their drones in certain locations in the park by obtaining a commercial use authorization ("CUA") from the NPS. Moreover, as of January 5, drones are banned from state hospitals and correctional facilities in Hawaii. Hawaii Act 205 applies to commercial or recreational drones and applies to individuals who: (1) land or attempt to land a drone on or near the premises; (2) release or attempt to release a drone on or near the premises; or (3) fly or attempt to fly a drone over the premises. This statute applies to state hospitals on public land, such as Kahi Mohala in Oahu, or Hawaii State Hospital on Kaneohe in the Big Island. The statute likewise applies to publically funded secure detention facilities, like the Oahu Community Correctional Center, which is located in Oahu. The statute imposes fines of $250-$500 per violation. Prior to flying, consult the state or county ordinances. There may be permits or prohibitions at the state and county level as well.
Drone Safety in Hawaii
When operating a drone in Hawaii, it is essential to keep the unique topography and weather conditions of the islands in mind. The lush landscapes, soaring cliffs, and vibrant beaches offer a stunning backdrop for aerial photography and other applications but also present a variety of challenges that pilots should be aware of. Wind patterns in Hawaii can change rapidly. Pilots are advised to check weather conditions frequently and avoid flying during high winds or in areas prone to gusts. For example, coastal areas can experience sudden changes in wind direction and speed, while mountainous regions may have more stable conditions but can be subject to turbulence. In addition to wind, pilots should also be mindful of temperature inversions, which are a common occurrence in Hawaii. An inverted atmosphere can cause drones to drift or be difficult to control, making it potentially hazardous to fly in these conditions. The geographical features of the islands also play a role in flight operations. Dense foliage and rugged terrain can be challenging when trying to recover a downed drone. Pilots should familiarize themselves with the areas where they are operating and plan for safe landing locations or appropriate emergency procedures. Wildlife is another important consideration when flying in Hawaii. The state is home to several endangered species, including the Hawaiian monk seal and the Hawaiian hoary bat, which require specific protections. In addition to these rare species, Hawaii is also home to a wide variety of exotic birds, plants, and marine life, which can be susceptible to disturbances from drone operations. If you cannot find a suitable place to land, you can fly further inland or closer to the ocean. If you see a hawk or any wild bird, try to land the drone immediately and avoid flying in open areas where there is wildlife present, except for larger birds, such as albatrosses, cockatoos, and wild turkeys. These birds are generally not a threat to drones.
Hawaii Drone Laws: Recent Changes
Over the past few years Hawaii has seen some major updates to its drone laws, including the introduction of new legislation, as well as several court cases impacting Hawaii drone laws. Notably, the State Legislature has made it unlawful to operate a drone in Hawaii State Parks, and just recently a new federal law was passed amending certain drone laws, which may impact Hawaii.
In 2016, the Hawaii State Legislature passed SB 264 (Act 208) which makes it unlawful to operate an unmanned aircraft inside a state park. The prohibition on unmanned aircraft operations under Hawaii state law pertains to public lands or conservation districts only.
Another major development in Hawaii drone law has been the direct application of the U.S. Constitution by the Hawaii State Court of Appeals in Hawaii County v. Back, 132 Hawai’i 377, 322 P.3d 797 (Haw. Ct. App. 2014). In this case, the Court held the Hawaii County Police violated the U.S. Constitution when it obtained, without a warrant, photographs taken by a drone flying over private property. Applying the United States Supreme Court decision in Florida v. Riley, 488 U.S. 445, 109 S.Ct. 698 (1989), which held police may not enter curtilage to collect evidence, the Hawaii Court concluded that a reasonable expectation of privacy extends to aerial surveillance.
No longer a "hotbed" for new hobbyist drone laws, Hawaii’s drone policy landscape has recently changed, as the 114th Congress has amended federal law governing drone operations thus preempting any local drone laws in Hawaii. While local government and state laws still apply to anti-drone technology and privately owned land, drone operations in Hawaii are likely to be governed under federal law, specifically the FAA’s new expanded drone laws. As we discuss more below, the FAA’s new rules will impact both commercial and recreational drone pilots.
On June 21, 2016, Congress passed the Federal Aviation Administration (FAA) Reauthorization Act of 2016, which included new drone legislation. The new law requires the FAA to phase out a lottery system for drone registration, replacing it with a comprehensive framework that streamlines and integrates the FAA’s roles as the lead agency regulating drone use and the agency’s anti-drone responsibility to prevent unauthorized drone flights at airports and other sensitive facilities.
The new law also directs the FAA to promulgate regulations for remote identification of drones flying in the national airspace and directs the FAA to issue a rule that states operators must leave a buffer zone under five (5) feet of airspace when flying at schools and in other areas where people gather.
Until recently, commercial drone pilots in Hawaii could only operate under the FAA’s Small UAS Rule (Part 107) which prohibited operations over people and at night without a waiver. The FAA’s new drone law, applies to all drone pilots, and will likely mandate that all drone pilots obtain a federal license. With very few exceptions, all commercial drone pilots will need to pass a detailed commercial drone exam requiring knowledge of airspace designations, drone weather and NOTAMs, drone aerodynamics, drone equipment, procedures, risk management, and malfunction of drones. Additionally, from now on only drone pilots with a federal license may operate a drone for business purposes.
The FAA’s new drone law streamlines the process to obtain a license by removing medical, age, and language requirements previously required (except for those who speak English). As of August 29, 2016, the FAA’s new drone law has significantly changed the way drone pilots operate across the country. As noted above, the new drone law impacts both commercial drone pilots across the United States, including Hawaii, as well as recreational drone pilots.
Conclusion
Over the years, Hawaii has put in place drone laws to protect the unique environment of the islands as well as its residents and tourists. However, however they can be confusing for many, especially those who are visiting from the Mainland. The combination of federal, state , and local regulations covers everything from where you can and cannot fly a drone to what data you can and cannot collect while flying one.
Violators can face major fines from the State as well as the FAA, which will also track your drone registration to the drone that you’re flying on their system. This is why it’s crucial that anyone – visitors and residents alike – understand their rights and responsibilities when it comes to flying drones in Hawaii.