Mike Yoder v. Scott Bowen

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0201p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

MIKE YODER; DRONE DEER RECOVERY LLC,

│

identified on initiating documents as Drone Deer

│

Recovery Media, Inc.; JEREMY FUNKE,

│

Plaintiffs-Appellants, > No. 24-1593

│

│

v. │

│

SCOTT BOWEN, in his official capacity as Director of │

the Michigan Department of Natural Resources, │

identified on initiating document as Shannon Lott, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:23-cv-00796—Paul Lewis Maloney, District Judge.

Argued: January 29, 2025

Decided and Filed: July 31, 2025

Before: COLE, WHITE, and MATHIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Andrew R. Quinio, PACIFIC LEGAL FOUNDATION, Sacramento, California, for

Appellant. Nathan A. Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellee. ON BRIEF: Andrew R. Quinio, Donna G. Matias, PACIFIC

LEGAL FOUNDATION, Sacramento, California, for Appellant. Nathan A. Gambill, Echo

Aloe, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for

Appellee.

The court delivered a PER CURIAM opinion. MATHIS, J. (pp. 19–25), delivered a

separate opinion concurring in the judgment.

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_________________

OPINION

_________________

PER CURIAM. Plaintiffs-Appellants Mike Yoder; Yoder’s company, Drone Deer

Recovery, LLC (DDR); and life-long hunter Jeremy Funke (collectively, Plaintiffs) appeal the

district court’s dismissal of their complaint challenging a Michigan law that bans the use of

drones to hunt or collect downed game. Because we find that Plaintiffs have standing but fail to

state a claim on which relief can be granted, we AFFIRM.

I. Background

A. Factual Background

After a hunter shoots a game animal, such as a deer, the animal often runs away and dies

in another location. Tracking dogs and trail cameras are two ways of finding the animal. DDR

offers a third option—one that it says is less environmentally intrusive and more effective than

dogs or trail cameras. A hunter in an area where DDR does business can use DDR’s website to

connect with a nearby drone operator. The drone operator then searches for the downed animal’s

heat signature using the drone’s infrared camera and thermal imaging technology. Upon finding

a heat signature, the drone operator activates the drone’s camera and search lights to identify the

downed deer.

If the drone operator determines that the animal is dead or will die by the next morning,

the operator creates a Global Positioning System (GPS) location pin for the animal’s location and

sends that information to the hunter. The hunter can then find the downed animal using Google

Maps or a similar application.

Plaintiffs allege that a Michigan law prohibiting the use of drones to hunt or take downed

game (the Drone Statute) prevents DDR from doing business in Michigan. See Mich. Comp.

Laws § 324.40111c(2) (2015). The Michigan State Legislature enacted the law to prevent the

use of drones and unmanned submersibles—by either anti-hunting activists attempting to disrupt

hunting or hunters seeking an unfair advantage—because such conduct “would violate fair-chase

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principles and take away from the spirit and tradition of ethical hunting and fishing.” R. 25-1,

PID 123.

As relevant here, the Drone Statute proscribes “tak[ing] game or fish using an unmanned

vehicle or unmanned device that uses aerodynamic forces to achieve flight.” Mich. Comp. Laws

§ 324.40111c(2). The statute defines “take” as “to hunt with any weapon, dog, raptor, or other

wild or domestic animal trained for that purpose; kill; chase; follow; harass; harm; pursue; shoot;

rob; trap; capture; or collect animals, or to attempt to engage in such an activity.” Id.

§ 324.40104(1). “Game” is any animal from an enumerated list of 39 wild animals. Id.

§ 324.40103(1). Violating the Drone Statute is a misdemeanor punishable by fine of $50–500

and/or up to ninety days’ imprisonment. Id. § 324.40118.

The Michigan Department of Natural Resources (the MDNR) has regulatory authority

over “managing animals” in Michigan, which includes determining “lawful methods of taking

game.” Mich. Comp. Laws § 324.40107(1). Accordingly, it is responsible for enforcing the

Drone Statute. It has issued public guidance explaining that the Drone Statute prohibits

individuals from using drones to locate or recover injured game, specifically stating that

“[a]ttempting to locate and/or recover game, either dead or wounded, is an act which falls within

the definition of ‘take.’” Mich. Dep’t of Nat. Res., After the Harvest, MICH. SMALL GAME

HUNTING REGULS. SUMM. (2024), https://perma.cc/WN87-9FRY (the “Hunting Regulations

Summary”). Plaintiffs also allege that the MDNR informed two persons who sent the MDNR

inquiries about using drones to locate downed deer in Michigan that such drone use is illegal.

B. Procedural History

Based on the facts described above, Plaintiffs sued the MDNR under 42 U.S.C. § 1983,

alleging that the Drone Statute, as applied to them, violates their First Amendment right to

create, disseminate, and receive location information for downed game. They sought both

declaratory and injunctive relief, including a permanent injunction “restraining [the

MDNR] . . . from enforcing [the Drone Statute] against Plaintiffs in a manner that prevents the

creation, dissemination, and receipt of certain information.” R. 23, PID 93.

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The MDNR moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). It argued that the Drone Statute does not infringe on First Amendment-protected

speech because the text of the statute prohibits only using a drone to locate a deer—something

the MDNR argues is not speech—and does not prohibit telling another person a deer’s location,

which would be speech. Accordingly, the MDNR contended that Plaintiffs had not shown a

cognizable injury and, even if they had, they still lacked standing because the requested

injunction would not allow DDR to operate in Michigan. It also argued that the Eleventh

Amendment precluded Plaintiffs’ lawsuit.

The district court granted the MDNR’s motion, holding that Plaintiffs both lacked

standing and failed to state a claim on which relief could be granted. It first “separated

[Plaintiffs’ conduct] into two elements: flying a drone to track downed game (illegal and

regulated) and relaying the location of the game to patron hunters (legal and unregulated).” R.

28, PID 170. It then determined that the Drone Statute does not prohibit Plaintiffs from sending

or receiving location information, and that “[n]othing in the Drone Statute contemplates speech

or its regulation.” Id. The court also concluded that Plaintiffs’ alleged injury was not

redressable because the Drone Statute would still prohibit flying a drone to locate downed game

even if the court granted Plaintiffs’ requested injunction, which would “enjoin ‘Defendant from

enforcing Mich. Comp. Laws § 324.40111c against Plaintiffs in a manner that prevents the

creation, dissemination, and receipt of certain information.’” Id. (quoting R. 1, PID 9).

The district court determined that Plaintiffs had not stated a claim for similar reasons.

Because the court determined that using drones to track downed game and relaying location

information to a hunter were separable, it examined only whether using a drone to search the

wilderness for downed game constituted protected speech—a question it answered in the

negative. Accordingly, it granted the MDNR’s motion to dismiss based on both Rule 12(b)(1)

and Rule 12(b)(6).

This appeal followed.

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II. Standard of Review

We review the district court’s grant of a motion to dismiss for failure to state a claim de

novo. Booth Fam. Tr. v. Jeffries, 640 F.3d 134, 139 (6th Cir. 2011). To survive a Rule 12(b)(6)

motion to dismiss, a “complaint must present sufficient facts to ‘state a claim to relief that is

plausible on its face.’” Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319 (6th

Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining

whether a complaint meets that standard, we must “construe the complaint in the light most

favorable to the plaintiff, draw all reasonable inferences in its favor, and accept all well-pleaded

allegations in the complaint as true.” Keene Grp., Inc. v. City of Cincinnati, 998 F.3d 306, 310

(6th Cir. 2021). But we may disregard “naked assertions devoid of further factual enhancement”

and “formulaic recitation[s] of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (cleaned up).

We also review de novo dismissals for lack of subject-matter jurisdiction, including

dismissals for lack of standing. Phillips v. DeWine, 841 F.3d 405, 413 (6th Cir. 2016). A

challenge to the court’s subject-matter jurisdiction under Rule 12(b)(1) can be either facial or

factual. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Because

the MDNR questions the sufficiency of the pleadings and does not dispute jurisdictional facts, it

presents a facial attack on subject-matter jurisdiction. See Enriquez-Perdomo v. Newman, 54

F.4th 855, 861 (6th Cir. 2022). We therefore accept the well-pleaded factual allegations as true

and construe the Complaint in Plaintiffs’ favor. Id.

III. Analysis

For the reasons discussed below, we find that Plaintiffs have standing. We nonetheless

affirm the district court’s dismissal of their Complaint because Plaintiffs do not state a claim on

which relief can be granted.

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A. Standing

“Standing stems from the Constitution’s mandate that federal courts may decide only

‘Cases’ or ‘Controversies,’” Vonderhaar v. Vill. of Evendale, 906 F.3d 397, 400–01 (6th Cir.

2018) (citing U.S. Const. art. III, § 2, cl. 1), and is a prerequisite to federal jurisdiction, Loren v.

Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007). “The irreducible

constitutional minimum of standing contains three elements.” Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992)).

First, Plaintiffs must have suffered an actual past injury, or will suffer imminent future

injury, that is concrete and particularized. Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016).

“Particularized” means that “the injury must affect the plaintiff in a personal and individual

way.” Lujan, 504 U.S. at 560 n. 1. “[A] ‘generalized grievance,’ no matter how sincere, is

insufficient . . . .” Hollingsworth v. Perry, 570 U.S. 693, 706 (2013).

Second, Plaintiffs’ injury must be “fairly traceable to” or causally connected to the

challenged conduct, rather than “the result of the independent action of some third party not

before the court.” Lujan, 504 U.S. at 560 (cleaned up). Third, a favorable ruling on the

requested relief must be likely to redress Plaintiffs’ injury. Id. at 561.

1. Injury

In the pre-enforcement context, showing an imminent future injury requires plausibly

alleging: (1) “an intention to engage in a course of conduct” that is (2) “arguably affected with a

constitutional interest” but (3) is “proscribed by a statute,” and (4) that there is “a credible threat

of prosecution” under that statute. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014).

Plaintiffs have done so.

First, Plaintiffs have plausibly alleged an intention to bring DDR’s business model to

Michigan. In addition to alleging that DDR does business in other states, they allege that they

receive “frequent requests for deer recovery services in Michigan,” which they reject for “fear”

that the MDNR will enforce the Drone Statute against them, but “are ready, willing, and able to

operate in Michigan” absent a threat of enforcement. R. 23, PID 87. That is enough to plausibly

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allege an intention to do business in Michigan. See Kiser v. Reitz, 765 F.3d 601, 608 (6th Cir.

2014) (finding that the plaintiff had plausibly alleged an intent to advertise his general surgery

services where he “alleged that he has advertised . . . services in the past and that he intends to do

so in the future”).

Second, Plaintiffs’ proposed course of conduct is arguably affected with a constitutional

interest. “[T]he creation and dissemination of information are speech within the meaning of the

First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011). Accordingly,

everything from prescriber information, id. at 570–71, to credit reports, Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U.S. 749, 753, 759–61 (1985), and information on beer can labels,

Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995), may be speech for First Amendment

purposes. And Plaintiffs’ use of drones—a novel medium—does not necessarily put their

creation of information beyond the bounds of First Amendment protections. See, e.g., Brown v.

Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (extending First Amendment protections to video

games); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (extending First Amendment

protections to movies); Nat’l Press Photographers Ass’n v. McCraw, 90 F.4th 770, 783, 789–90

(5th Cir. 2024) (finding First Amendment interest in using a drone to take images while

conducting aerial surveillance).

The MDNR makes three arguments to the contrary. It first argues that flying a drone is

distinct from creating a location pin, and that the only allegedly protected activity is creating and

sharing location pins, not operating a drone. But Plaintiffs specifically argue that the MDNR

violated their First Amendment rights by preventing them from using drones to create and share

location information, as opposed to flying drones for another purpose or creating location pins

without using drones. Thus, for purposes of this specific as-applied challenge, we do not agree

that flying drones is separable from creating and disseminating location information.

The MDNR also points out that the text of the Drone Statute itself prohibits conduct, not

speech. Again, the case before us is an as-applied challenge. The question is whether the Drone

Statute is unconstitutional as applied to Plaintiffs’ intended conduct, not whether the Drone

Statute is unconstitutional on its face. Ross v. Duggan, 402 F.3d 575, 582 n.3 (6th Cir. 2004).

And, as discussed above, Plaintiffs have alleged that the MDNR’s interpretation and proposed

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enforcement of the Drone Statute burdens their First Amendment right to create and share

information.

Finally, the MDNR points out that Plaintiffs can create location information for downed

game without violating the Drone Statute because they need not use drones. But the availability

of other ways of creating and sharing location information does not negate Plaintiffs’ First

Amendment interest in using drones to do so. See Meyer v. Grant, 486 U.S. 414, 424 (1988)

(“That appellees remain free to employ other means to disseminate their ideas does not take their

speech through [their preferred means] outside the bounds of First Amendment protection.”).

The Drone Statute also proscribes Plaintiffs’ intended conduct—the third Susan B.

Anthony List element. 573 U.S. at 159. “[A]t the pre-enforcement stage, [Plaintiffs] need not

prove conclusively that [their] intended course of conduct violates the [statute] but only that it is

arguably proscribed by the statute.” Friends of George’s Inc., v. Mulroy, 108 F.4th 431, 437

(6th Cir. 2024). Plaintiffs make that showing here. Again, the Drone Statute prohibits “tak[ing]

game or fish using an unmanned vehicle or unmanned device that uses aerodynamic forces to

achieve flight.” Mich. Comp. Laws § 324.40111c(2). The MDNR’s own publicly issued

guidance explains that using drones to locate dead or wounded game falls within the definition of

“take.” Hunting Reguls. Summ. ¶ 1. And Plaintiffs cannot use drones to create location

information for downed game without using drones to locate the animal. See Brown v. Kemp, 86

F.4th 745, 763 (7th Cir. 2023) (“A statutory prohibition on a particular medium inevitably affects

expression by restricting communication within and through the medium.” (internal quotation

marks and citation omitted)). The Drone Statute thus effectively prohibits Plaintiffs from

creating location information using drones, even though the statutory text itself does not

expressly prohibit creating location information. Cf. W. Watersheds Project v. Michael, 869

F.3d 1189, 1195, 1197 (10th Cir. 2017) (holding that statutes that prohibited crossing private

property to collect “resource data” such as photographs, notes, and audio recordings if the

individual also recorded the geographic coordinates where the data was gathered implicated First

Amendment interests).

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With respect to the final Susan B. Anthony List element, Plaintiffs have shown a credible

threat of prosecution. 573 U.S. at 159. We have previously found that plaintiffs show a credible

threat of enforcement where they allege “a subjective chill and point to some combination” of

the following four factors: (1) “a history of past enforcement”; (2) receipt of “enforcement

warning letters . . . regarding their specific conduct”; (3) “an attribute of the challenged statute

that makes enforcement easier or more likely, such as a provision allowing any member of the

public to initiate an enforcement action”; and (4) whether the defendant has “disavow[ed]

enforcement of the challenged statute against a particular plaintiff.” McKay v. Federspiel, 823

F.3d 862, 869 (6th Cir. 2016). A plaintiff need not satisfy all the McKay factors to establish a

credible threat. Christian Healthcare Ctrs., Inc. v. Nessel, 117 F.4th 826, 848 (6th Cir. 2024).

Taken together, the McKay factors cut in Plaintiffs’ favor. First, Plaintiffs allege that

they have neither operated in Michigan (Yoder and DDR) nor requested drone recovery services

in Michigan (Funke) due to “fear that if they [do so] within the state, they will be subject to

enforcement action and its consequences.” R. 23, PID 91. We have previously found credible

fear where a plaintiff had to “censor himself to avoid violating” the statutes at issue. See Platt v.

Bd. of Comm’rs on Grievances & Discipline of Ohio Sup. Ct., 769 F.3d 447, 452 (6th Cir. 2014)

(cleaned up).

Second, Plaintiffs allege that the MDNR “actively enforces” the Drone Statute, R. 23,

PID 89, and the MDNR asserts in its briefing that it can issue citations for violating the Drone

Statute.

Third, although Plaintiffs did not receive warning letters addressed to them individually,

Defendants have publicly issued guidance that “addresses the central issue of” Plaintiffs’

intended conduct. See Boone Cnty. Republican Party Exec. Comm. v. Wallace, 132 F.4th 406,

417 (6th Cir. 2025) (finding that the “argument [that an advisory opinion directly addressing the

plaintiffs’ conduct was not a warning letter for purposes of the McKay factors] elevates form

over substance”).

Fourth, the Drone Statute contains no potential for exemptions that make the threat of

enforcement remote. See McKay, 823 F.3d at 869–70.

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Finally, MDNR officials have not disavowed enforcement. True, the MDNR says it has

no plans “to prosecute Plaintiffs or anyone else for creating or disseminating location pins.”

Appellee’s Br. at 23. But again, Plaintiffs specifically want to use drones to create location

information—conduct for which the MDNR has not clearly disavowed enforcement. By

contrast, MDNR has specifically advised the public that “the use of drones to pursue wildlife in

any manner . . . is illegal.” Hunting Reguls. Summ. Moreover, the MDNR has not represented

that it disavowed enforcement in a non-litigation context, and “the government’s disavowal must

be more than a mere litigation position.” Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010).

Accordingly, Plaintiffs have shown a credible threat of enforcement sufficient to meet

their burden for demonstrating a pre-enforcement injury. See Kareem v. Cuyahoga Cnty. Bd. of

Elections, 95 F.4th 1019, 1027 (6th Cir. 2024) (finding a credible threat of enforcement where

the plaintiff faced imprisonment for violating the statute at issue, the defendant stated that the

plaintiff’s intended conduct was illegal and did not disavow enforcement, and the defendant had

previously told an individual to not engage in the same conduct the plaintiff intended). Although

Plaintiffs have not shown that the MDNR has previously enforced the Drone Statute, “past

enforcement is not necessary to establish a credible threat of enforcement.” Id. at 1025.

In short, Plaintiffs have shown that they intend to engage in conduct that is at least

“arguably affected with a constitutional interest,” that their intended conduct is “proscribed by a

statute,” and that they face “a credible threat of prosecution” if DDR begins doing business in

Michigan. Susan B. Anthony List, 573 U.S. at 159. Although this is a close question, “First

Amendment standards . . . must give the benefit of any doubt to protecting rather than stifling

speech.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 327 (2010) (quotation marks

and citation omitted)). We thus find that Plaintiffs have plausibly alleged an injury-in-fact.

2. Traceability

Causation—the second prong—requires that the injury be “fairly . . . trace[able] to the

challenged action of the defendant.” Lujan, 504 U.S. at 560 (quotation omitted). Here, Plaintiffs

have alleged that the MDNR enforces the Drone Statute, and that it has statutory authority to do

so. Further, MDNR conservation officers can patrol to enforce laws and regulations,

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Mich. Dep’t of Nat. Res., Conservation officers, https://perma.cc/LXN3-LRRY,1 and the MDNR

acknowledges on appeal that it can issue citations for violating the Drone Statute.2

Because the MDNR “play[s] a direct role in enforcing” the Drone Statute, Somberg v.

McDonald, 117 F.4th 375, 381 (6th Cir. 2024) (explaining that plaintiffs must sue the state actor

“with power to inflict the penalty” to show causation in a pre-enforcement action); Kareem, 95

F.4th at 1027, the alleged violation of Plaintiffs’ First Amendment rights can be fairly traced to

the MDNR.

3. Redressability

Redressability means that it is “likely,” not “speculative,” that a favorable decision will

redress the plaintiff’s injury. Lujan, 504 U.S. at 561 (quotation omitted). Again, Plaintiffs allege

that the MDNR’s threatened actions chill their ability to create, disseminate, and receive

information about downed game using drones. And they seek “[a] declaration that the

[MDNR’s] interpretation of [the Drone Statute], as applied to Plaintiffs, violates” their

constitutional rights, along with a permanent injunction preventing the MDNR and its officers

and agents from enforcing the Drone Statute “against Plaintiffs in a manner that prevents the

creation, dissemination, and receipt of certain information.” R. 23, PID 93. That injunctive

relief would allow Plaintiffs to provide and receive drone-based game-recovery services—thus

removing the impediment to the exercise of their asserted First Amendment rights. See Kareem,

95 F.4th at 1027 (finding redressability met when the plaintiff’s requested relief was

“substantially likely to remedy her alleged injury”).

1Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute

because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.”); Demis v. Sniezek, 558 F.3d 508, 513

n. 2 (6th Cir. 2009) (taking notice of government website); United States v. Garcia, 855 F.3d 615, 621 (4th Cir.

2017) (“Under Federal Rule of Evidence 201(b) . . . [t]his court and numerous others routinely take judicial notice of

information contained on state and federal government websites.” (collecting cases)).

2The MDNR’s website also suggests that conservation officers issue citations for violations of Michigan’s

natural resources laws. See, e.g., Mich. Dep’t of Nat. Res., CO Biweekly Reports (12/12/2023–1/6/2024) (Jan. 6,

2025), https://perma.cc/U3CP-3JRA(describing multiple incidents where conservation officers issued citations).

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The MDNR argues that Plaintiffs’ requested injunction would not redress their injury

because MDNR “officials could still issue a citation to Plaintiffs if they use a drone to chase,

follow, or pursue a deer that had been shot.” Appellee’s Br. at 25. But this argument is

unpersuasive unless we agree that Plaintiffs’ intended conduct can be separated into two distinct

elements: flying drones and creating location information. As discussed above, in this as-

applied challenge, we do not. Accordingly, Plaintiffs have shown redressability.

B. Merits3

Turning to the merits of Plaintiffs’ First Amendment claims, we conclude that

intermediate scrutiny applies. And because Plaintiffs have not shown that the Drone Statute fails

intermediate scrutiny, their challenge must fail.

1. Level of Scrutiny

Plaintiffs offer three arguments in favor of applying strict scrutiny—that the Drone

Statute is content-based, that the statute involves “speech inputs,” and that their intended conduct

is inherently expressive conduct. None persuades.

a. The Drone Statute is not content-based.

Content-based laws “target speech based on its communicative content.” Reed v. Town

of Gilbert, 576 U.S. 155, 163 (2015). The First Amendment prohibits the government from

“restrict[ing] expression”—including conduct—“because of its message, its ideas, its subject

matter, or its content.” Id. (quotation omitted). Content-based restrictions on expression must

therefore satisfy strict scrutiny. Id. at 163–64. The distinction between content-based and

content-neutral restrictions is “whether the law is justified without reference to the content of the

regulated speech.” McCullen v. Coakley, 573 U.S. 464, 480 (2014) (internal quotation marks

omitted).

3The MDNR argued below, and continues to argue on appeal, that the Eleventh Amendment bars Plaintiffs’

suit. The district court did not address the MDNR’s sovereign immunity arguments because other issues were

dispositive. Because the same is true on appeal, we also do not reach the sovereign immunity issue.

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The Drone Statute is content-neutral. The statute makes it a crime to “take” game—a

term defined to include “hunt[ing],” “chas[ing],” “follow[ing],” “pursu[ing],” and “trap[ping]” or

“captur[ing]” animals—using drones. Mich. Comp. Laws § 324.40104(1). On its face, that

prohibition applies equally to hunters who want to recover downed game, anti-hunting activists

who want to find injured animals to nurse them back to health, and anyone else who wants to use

a drone to “follow” an animal. The legislative history of the Drone Statute confirms that

legislators enacted the law specifically to prevent drone use by both hunters and persons wishing

to disrupt hunting.4 And the MDNR need not examine the contents of transmissions to

determine whether a pilot is violating the Drone Statute because using a drone to locate an

injured animal violates the Drone Statute even if the pilot never shares a location pin with

anyone else. Plaintiffs’ contention that the statute is a content-based restriction because it singles

out location information of downed game, and because the MDNR must look at the contents of

drones’ transmissions to determine whether drone users are violating the Drone Statute, is

therefore unpersuasive.

Plaintiffs’ argument that the Drone Statute is content-based because the MDNR allows

drone use for other purposes—like assessing forest health—fares no better. Again, the relevant

inquiry is “whether the law is justified without reference to the content of the regulated speech.”

McCullen, 573 U.S. at 480 (internal quotation marks omitted). As discussed above, the Drone

Statute does not ban the use of drones for taking game based on the message conveyed or the

information created. See Nat’l Press Photographers Ass’n, 90 F.4th at 790 (finding that a statute

prohibiting the use of drones to surveil others did “not directly or even primarily regulate speech

and expression—nor [did it] target any particular message, idea, or subject matter”). The statute

therefore does not regulate drone use based on the information the drone might create in the

process, but because “of the action it entails”—pursuing injured animals. R.A.V. v. City of St.

Paul, 505 U.S. 377, 385 (1992).

4Lawmakers’ stated rationale for enacting the Drone Statute was two-fold. They were concerned that

persons opposed to hunting, such as those affiliated with People for the Ethical Treatment of Animals (PETA),

might use drones to “disrupt” or “interfere with lawful hunting or fishing.” R. 25-1, PID 123. They were also

concerned that hunters and fishermen could use drones “to aid in taking game or fish,” thus “violat[ing] fair-chase

principles and tak[ing] away from the spirit and tradition of ethical hunting and fishing.” Id.

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In short, the Drone Statute incidentally burdens Plaintiffs’ ability to create location

information, rather than targeting expression. The law is thus content-neutral. See Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 645 (1994) (finding regulations content-neutral because they “distinguish between speakers

in the television programming market” but do so “based only upon the manner in which speakers

transmit their messages to viewers, and not upon the messages they carry”).

b. Drones are not speech inputs.

Plaintiffs next argue that, because drones have recording and information-creation

capabilities, drones create speech and are inputs entitled to heightened protections. In support of

this argument, they point to Lichtenstein v. Hargett, 83 F.4th 575, 584 (6th Cir. 2023). In

Lichtenstein, we examined several Supreme Court cases—Sorrell, 564 U.S. at 571 (explaining

that a regulation prohibiting trade magazines from purchasing ink would be a speaker- and

content-based restriction); Buckley v. Valeo, 424 U.S. 1, 44–45 (1976) (per curiam) (applying

heightened scrutiny to a statute limiting the amount of money individuals could contribute to

political candidates because it limited “core First Amendment . . . rights”); Meyer, 486 U.S. at

421–22, 25 (applying heightened scrutiny to a statute that prohibited paying circulators to gather

signatures to place an amendment on a state ballot); and Buckley v. American Constitutional Law

Foundation, Inc, 525 U.S. 182, 188, 195 (1999) (applying heightened scrutiny to a regulation

that allowed only registered votes to act as petition circulators). 83 F.4th at 585–86. Relying on

these cases, we suggested that regulations of certain “inputs” that create speech, such as money

or ink, must survive strict scrutiny. Id. at 586.

Lichtenstein is not as broad as Plaintiffs suggest. Rather, Lichtenstein’s discussion of

“speech inputs” refers to “inputs” that create traditional “political speech.” Id. at 586–87. Three

of the four cases Lichtenstein cites for the “speech inputs” proposition involved restrictions on

“core” political speech—something no party contends applies here. Buckley, 424 U.S. at 44–45;

Meyer, 486 U.S. at 420; Am. Const. L. Found., 525 U.S. at 204, 210. And Sorell—the fourth

case Lichtenstein cites—is inapposite because the restriction at issue in that case was a content-

based restriction. 564 U.S. at 571. We therefore find that Plaintiffs have not shown that drones

used to create location information for downed game are “speech inputs” meriting strict scrutiny.

No. 24-1593 Yoder et al. v. Bowen Page 15

c. Flying a drone is not inherently expressive conduct.

That leaves Plaintiffs’ third and final argument in favor of strict scrutiny: that drone use

is inherently expressive conduct. Conduct that is “sufficiently imbued with elements of

communication” implicates the First Amendment. Texas v. Johnson, 491 U.S. 397, 404 (1989)

(quoting Spence v. Washington, 418 U.S. 405, 409 (1974)). To be “inherently expressive”

conduct, Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006), the conduct

must “convey a particularized message” that someone viewing the conduct would most likely

understand, Johnson, 491 U.S. at 404 (quotation omitted). Examples of inherently expressive

conduct include wearing armbands to protest a war or displaying a flag in support of a political

party. See Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 388–89 (6th Cir. 2005).

We agree with the Fifth Circuit that “the operation of a drone is not inherently

expressive.” Nat’l Press Photographers Ass’n, 90 F.4th at 787. Operating a drone sends no

“particularized message,” Johnson, 491 U.S. at 404 (quotation omitted), and certainly not one

that a viewer could understand “from the conduct alone without any accompanying speech

explaining the reasons behind it,” Lichtenstein, 83 F.4th at 594. And because flying a drone

itself does not send any kind of message, Plaintiffs cannot convert drone use into expressive

conduct “simply by talking about it.” Rumsfeld, 547 U.S. at 66.

Plaintiffs resist this conclusion by pointing to several out-of-circuit cases finding that

making an audio or video recording is expressive activity: Animal Legal Defense Fund v.

Wasden, 878 F.3d 1184, 1204 (9th Cir. 2018); Kemp, 86 F.4th at 779; and 360 Virtual Drone

Services LLC v. Ritter, No. 5:21-CV-137, 2023 WL 2759032, at *9 (E.D.N.C. Mar. 31, 2023).

But none of those cases are on point because Plaintiffs allege that they capture only location

information, not audio or video recordings. See FCC v. Pacifica Found., 438 U.S. 726, 748

(1978) (“We have long recognized that each medium of expression presents special First

Amendment problems.”). Additionally, the Ninth Circuit has since clarified that Wasden does

not stand for the proposition that all recording is expressive activity. Project Veritas v. Schmidt,

125 F.4th 929, 946 (9th Cir. 2025) (en banc) (“Wasden reasoned that it defied common sense to

disaggregate the creation of the video, which may involve expressive decisions, from the video

or audio recording itself . . . . Wasden did not conclude that every act of recording requires

No. 24-1593 Yoder et al. v. Bowen Page 16

expressive decisions, nor that every act of recording implicates the First Amendment.” (cleaned

up)). Accordingly, we decline to treat the proposed drone operation in this case as expressive

conduct requiring the application of strict scrutiny.

2. Application of Intermediate Scrutiny

Intermediate scrutiny applies to regulations that are content-neutral and do not rise to a

level requiring strict scrutiny. Turner Broad. Sys., Inc., 512 U.S. at 662; Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 567 (1991) (intermediate scrutiny applies when “speech and nonspeech

elements are combined in the same course of conduct” (internal quotation marks and citation

omitted)); Johnson, 491 U.S. at 407 (1989) (intermediate scrutiny applies to regulations of

conduct “unrelated to the suppression of free expression” (quotation omitted)). We therefore

apply it here. Accord Nat’l Press Photographers Ass’n, 90 F.4th at 788 (applying intermediate

scrutiny to a facial challenge to a prohibition on capturing images using a drone while

conducting surveillance).

Under intermediate scrutiny, a statute is constitutional “if it is within the constitutional

power of the Government; if it furthers an important or substantial governmental interest; if the

governmental interest is unrelated to the suppression of free expression; and if the incidental

restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance

of that interest.” United States v. O’Brien, 391 U.S. 367, 377 (1968). “[H]ighly general interests

that are obviously important” can satisfy the governmental interest prong. Lichtenstein, 83 F.4th

at 596–97.

Michigan has constitutional and statutory authority to enact the Drone Statute, which

conserves and preserves its natural resources. Michigan’s constitution empowers the Michigan

legislature to “provide for the protection of . . . natural resources of the state.” Mich. Const. art.

IV, § 52. That includes regulating the taking of game. People v. Zimberg, 33 N.W.2d 104, 106–

07 (Mich. 1948). Moreover, the Michigan Legislature has previously determined that “hunting,

fishing, and the taking of game are “a valued part of the cultural heritage of [Michigan] [that]

should be forever preserved.” Mich. Comp. Laws § 324.40113a(3).

No. 24-1593 Yoder et al. v. Bowen Page 17

The Drone Statute furthers those important conservation and preservation interests.

Again, the legislative history of the Drone Statute demonstrates that the Michigan Legislature

passed the Drone Statute to preserve fair-chase principles and prevent anti-hunting activists from

disrupting hunting. And managing how hunters can hunt Michigan’s wild animals is an

important state interest. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 299 (1984)

(observing that conserving park property is a substantial interest under O’Brien).

As explained above, the Drone Statute incidentally burdens expression, rather than

targeting it. It is thus “unrelated to the suppression of free expression.” O’Brien, 391 U.S. at

377.

Finally, the Drone Statute restricts First Amendment expression no more than necessary.

A statute is sufficiently narrowly tailored to survive intermediate scrutiny when “an adequate

relationship exists between the means (the conduct ban) and the ends (the government interest)

as long as the interest ‘would be achieved less effectively’ without the ban.” Lichtenstein,

83 F.4th at 598 (quoting Rumsfeld, 547 U.S. at 67). In other words, the statute “need only

‘further’ the [government’s] interest.” Id. (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 301

(2000) (plurality opinion)); see also Clark, 468 U.S. at 297 (“[I]f the parks would be more

exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation

under the First Amendment . . . .”).

The Drone Statute is narrowly tailored because it would be harder for Michigan to

achieve its stated interests—protecting its natural resources and preserving fair-chase principles

in hunting—without banning the use of drones to take game. Making an exception for using

drones to create location information for downed game might not necessarily threaten those

interests. But “[t]he First Amendment does not bar application of a neutral regulation that

incidentally burdens speech merely because a party contends that allowing an exception in the

particular case will not threaten important government interests.” United States v. Albertini, 472

U.S. 675, 688 (1985); see also FTC v. Superior Ct. Trial L. Ass’n, 493 U.S. 411, 430 (1990).

Accordingly, it is enough for the MDNR to show that prohibiting the use of drones to take game

furthers Michigan’s stated, important interests. Plaintiffs therefore have failed to state a claim on

which relief can be granted.

No. 24-1593 Yoder et al. v. Bowen Page 18

* * *

For the reasons set out above, we AFFIRM.

No. 24-1593 Yoder et al. v. Bowen Page 19

_________________

CONCURRENCE

_________________

MATHIS, Circuit Judge, concurring in the judgment. Michigan law bars the use of

drones to hunt or collect game animals. This creates a problem for Mike Yoder and his

company, Drone Deer Recovery LLC. As the name of the company suggests, Drone Deer

Recovery uses drones to help hunters locate and recover downed deer. Drone Deer Recovery

operates in several states and it now seeks to expand to Michigan, as its potential customer,

Jeremy Funke, lives and hunts there.

Yoder, Drone Deer Recovery, and Funke sued the director of the Michigan Department

of Natural Resources. They argue that the prohibition on using drones to hunt or collect downed

deer violates their free-speech rights because it prevents Drone Deer Recovery from using a

drone to communicate location information about a downed deer to a hunter such as Funke. The

district court dismissed their complaint for lack of subject-matter jurisdiction and for failure to

state a claim. I would affirm the district court’s decision because Plaintiffs have not established

Article III standing.

I.

A.

The Michigan Constitution declares that “[t]he conservation and development of the

natural resources of the state are . . . of paramount public concern.” Mich. Const. art. IV, § 52.

It authorizes the Michigan legislature to “provide for the protection of the . . . natural resources

of the state.” Id. Under this authority, the Michigan legislature has acted to regulate the hunting

of game. The Michigan legislature has determined that hunting, fishing, and the taking of game

are: (1) “a valued part of the cultural heritage of [Michigan] [that] should be forever preserved”;

(2) important to the state’s economy; and (3) vital to the conservation and preservation of its

natural resources. Mich. Comp. Laws § 324.40113a(3).

No. 24-1593 Yoder et al. v. Bowen Page 20

One such regulation is at issue. In 2015, the Michigan legislature passed the Drone

Statute, which provides, in pertinent part: “An individual shall not take game or fish using an

unmanned vehicle or unmanned device that uses aerodynamic forces to achieve flight[.]” Id.

§ 324.40111c(2). “‘Take’ means to hunt with any weapon, dog, raptor, or other wild or domestic

animal trained for that purpose; kill; chase; follow; harass; harm; pursue; shoot; rob; trap;

capture; or collect animals, or to attempt to engage in such an activity.” Id. § 324.40104(1).

And “game” includes 39 wild animals, including deer. Id. § 324.40103(1). A violation of the

Drone Statute is a misdemeanor punishable by a fine or imprisonment. Id. § 324.40118(1).

The Michigan legislature created the Michigan Department of Natural Resources to

“protect and conserve” Michigan’s “natural resources.” Id. §§ 324.501(1); 324.503(1). MDNR

has regulatory authority over “manag[ing] animals” in Michigan, which includes determining

“lawful methods of taking game.” Id. § 324.40107(1)(e). It requires anyone who kills or

wounds a game animal to make a reasonable attempt to retrieve the animal. Mich. Dep’t of Nat.

Res., Wildlife Conservation Ord., ch. IV, § 4.1(2). MDNR has explained that the Drone Statute

prohibits individuals from using drones to locate or recover injured game:

The use of drones to pursue wildlife in any manner, either during legal hunting

hours or after, is illegal. You may not take game or fish using an unmanned

vehicle or unmanned device that uses aerodynamic forces to achieve flight or

using an unmanned vehicle or unmanned device that operates on the surface of

water or underwater. . . . Attempting to locate and/or recover game, either dead or

wounded, is an act which falls within the definition of “take.”

See Mich. Dep’t of Nat. Res., 2023 Mich. Hunting Reguls. Summary, 25.1

B.

Plaintiffs seek to challenge the constitutionality of the Drone Statute. Jeremy Funke

hunts deer and other game on private and public land in Michigan. After a hunter (like Funke)

shoots an animal, it often runs away and dies in a distant location, making it difficult for the

hunter to locate and retrieve it. This is where Mike Yoder and Drone Deer Recovery come in.

1https://cms2.revize.com/revize/washingtonmi/2023%20Michigan%20Hunting%20Regulations%20Summ

ary.pdf.

No. 24-1593 Yoder et al. v. Bowen Page 21

Yoder, who is also a hunter, developed Drone Deer Recovery to use drones to locate downed

deer.

Drone Deer Recovery’s service is straightforward. Using its website, a hunter can find a

drone operator (like Yoder) in the area to locate a lost deer. The operator will dispatch a drone to

the area. The drone then uses an infrared camera and thermal imaging to search for the downed

animal’s heat signature. Once the drone finds a heat signature, the operator activates the camera

and searchlights to identify the animal. If the operator confirms it is dead or dying, he uses the

drone to create a location pin with the animal’s coordinates. The operator then sends the location

information to the hunter, who can then retrieve the animal.

Yoder and Drone Deer Recovery allege that the Drone Statute prevents them from

operating in Michigan. “DNR officials have advised Drone Deer Recovery that it is unlawful

under state law to use drones in any manner related to hunting.” R. 23, PageID 89. So Yoder

and Drone Deer Recovery do not operate in Michigan (and Funke does not use their services) for

fear of violating Michigan law.

II.

Federal courts have subject-matter jurisdiction over “Cases” and “Controversies.” U.S.

Const. art. III, § 2, cl. 1. So before considering a claim’s merits, a plaintiff must establish that it

has standing to sue. Kitchen v. Whitmer, 106 F.4th 525, 533 (6th Cir. 2024).

Standing requires the plaintiff to “have a personal stake in the case.” TransUnion LLC v.

Ramirez, 594 U.S. 413, 423 (2021) (citation modified). “The doctrine of standing gives

meaning” to Article III “by identifying those disputes which are appropriately resolved through

the judicial process.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (citation

modified). “[A] citizen does not have standing to challenge a government regulation simply

because the plaintiff believes that the government is acting illegally.” FDA v. All. for

Hippocratic Med., 602 U.S. 367, 381 (2024). To establish standing, a plaintiff must show that:

(1) he “has suffered or likely will suffer an injury in fact,” (2) “the injury likely was caused or

will be caused by the defendant,” and (3) “the injury likely would be redressed by the requested

judicial relief.” Id. at 380.

No. 24-1593 Yoder et al. v. Bowen Page 22

Plaintiffs bear the burden of proving standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338

(2016). They must establish standing “in the same way as any other matter on which the plaintiff

bears the burden of proof, i.e., with the manner and degree of evidence required at the successive

stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Because the

district court dismissed this case at the pleading stage, Plaintiffs needed to “clearly allege facts

demonstrating” standing. Spokeo, 578 U.S. at 338 (citation modified).

Typically, “a statute must be enforced against the plaintiff before he may challenge its

constitutionality.” Phillips v. DeWine, 841 F.3d 405, 415 (6th Cir. 2016). That said, a plaintiff

can bring a pre-enforcement challenge “under circumstances that render the threatened

enforcement sufficiently imminent.” Susan B. Anthony List, 573 U.S. at 159. Indeed, “where

threatened action by government is concerned, we do not require a plaintiff to expose himself to

liability before bringing suit to challenge the basis for the threat.” MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 128–29 (2007).

Plaintiffs bring a pre-enforcement challenge against MDNR. “In a pre-enforcement

challenge, whether the plaintiff has standing to sue often turns upon whether he can demonstrate

an ‘injury in fact’ before the state has actually commenced an enforcement proceeding against

him.” Kiser v. Reitz, 765 F.3d 601, 607 (6th Cir. 2014). Plaintiffs cannot show that they will

likely suffer an injury in fact.

An injury in fact is “an invasion of a legally protected interest which is (a) concrete and

particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at

560 (citation modified). A plaintiff establishes an injury in fact in a pre-enforcement action if

“he alleges an intention to engage in a course of conduct arguably affected with a constitutional

interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.”

Susan B. Anthony List, 573 U.S. at 159 (citation modified). I assume that Plaintiffs have alleged

their intent to engage in constitutionally protected conduct proscribed by the Drone Statute.

Still, Plaintiffs needed to show a credible threat of enforcement of the Drone Statute

against them by MDNR. To that end, Plaintiffs must have “an actual and well-founded fear that

the law will be enforced against them.” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393

No. 24-1593 Yoder et al. v. Bowen Page 23

(1988). But “mere allegations of a subjective chill on protected speech are insufficient.” McKay

v. Federspiel, 823 F.3d 862, 868 (6th Cir. 2016) (citation modified). Instead, the plaintiff must

show subjective chill and a combination of the factors below (the McKay factors):

(1) a history of past enforcement against the plaintiffs or others; (2) enforcement

warning letters sent to the plaintiffs regarding their specific conduct; (3) an

attribute of the challenged statute that makes enforcement easier or more likely,

such as a provision allowing any member of the public to initiate an enforcement

action; and (4) the defendant’s refusal to disavow enforcement of the challenged

statute against a particular plaintiff.

Christian Healthcare Ctrs., Inc. v. Nessel, 117 F.4th 826, 848 (6th Cir. 2024) (citation modified).

The “McKay factors are not exhaustive,” and a plaintiff need not satisfy all the factors to

establish a credible threat. Online Merchs. Guild v. Cameron, 995 F.3d 540, 550 (6th Cir. 2021).

Plaintiffs allege subjective chill here. They do not operate in Michigan because they

“fear enforcement action and its consequences.” R. 23, PageID 91 (citation modified). So I turn

to whether Plaintiffs have pleaded sufficiently a combination of the McKay factors.

Past Enforcement. Plaintiffs have not established a history of past enforcement of the

Drone Statute by MDNR. The Supreme Court has explained “that past enforcement against the

same conduct is good evidence that the threat of enforcement is not chimerical.” Susan B.

Anthony List, 573 U.S. at 164 (citation modified). “A threat of enforcement is most credible

when the same conduct has drawn enforcement actions or threats of enforcement in the past.”

Christian Healthcare Ctrs., 117 F.4th at 848 (citation modified).

Plaintiffs say that MDNR “actively enforces the ban on drones” under the Drone Statute.

R. 23, PageID 89. In support, they point to emails MDNR enforcement officials sent to Mike

Cassells and Daniel Schultz, two individuals “interested in using drone location.” Id. Plaintiffs

allege that the emails stated that “using drones to locate downed deer in Michigan is illegal,” and

that “the use of drones related to locating wildlife in any manner is illegal.” Id. But general

statements that MDNR “actively enforces the ban on drones” or that an action is illegal are not

enforcement actions or threats. See Boone Cnty. Republican Party Exec. Comm. v. Wallace, 132

F.4th 406, 416 (6th Cir. 2025) (“generalized contention” that the defendant “actively enforces” a

statute “offers little support for the argument that the [defendant] will enforce here”).

No. 24-1593 Yoder et al. v. Bowen Page 24

Indeed, Plaintiffs never alleged that MDNR enforced the Drone Statute against them or

any other drone operators. See Fischer v. Thomas, 52 F.4th 303, 308 (6th Cir. 2022) (per

curiam) (“[W]e allow [plaintiffs] to meet this factor by pointing to past enforcement against

others.”). True enough, “a plaintiff need not always show that the statute has been enforced

previously against the precise conduct it wishes to undertake.” Christian Healthcare Ctrs., 117

F.4th at 849. But Plaintiffs fail to allege any instances of enforcement since the legislature

enacted the Drone Statute in 2015.

Warning Letter. Plaintiffs have not alleged that MDNR sent them a warning letter. They

do allege, however, that MDNR’s “agents or employees have recently explicitly articulated the

DNR’s position on the legality of [Drone Deer Recovery]’s business,” presumably through the

emails to Cassells and Schultz. R. 23, PageID 91. Plaintiffs also noted in their briefing that

MDNR issued guidance stating that “[t]he use of drones to pursue wildlife in any manner, either

during legal hunting hours or after, is illegal,” and that “[a]ttempting to locate and/or recover

game, either dead or wounded, is an act which falls within the definition of ‘take.’” See Mich.

Dep’t of Nat. Res., 2023 Mich. Hunting Reguls. Summary, 25. But neither the emails nor the

guidance is an “enforcement warning letter[] sent to the plaintiffs regarding their specific

conduct.” McKay, 823 F.3d at 869 (emphasis added).

To begin, neither was directed at Plaintiffs. See id. The guidance addresses the public at

large. And MDNR emailed Cassells and Schultz, not Plaintiffs. The complaint also fails to

allege that MDNR’s emails addressed Plaintiffs specifically. See id. (signs threatening

enforcement did not show credible threat of enforcement in part because they “address the

general public, not [the plaintiff] specifically or any of his past conduct”).

Consider the warning letters in Fischer. There, this court found a credible enforcement

threat when the letters “warned that [the defendant] had launched a preliminary investigation into

[the plaintiffs’] conduct.” 52 F.4th at 308; see also Winter v. Wolnitzek, 834 F.3d 681, 687 (6th

Cir. 2016) (finding credible threat of enforcement when letter stated that the defendant had

“probable cause for action” against the plaintiff for her conduct (quotation omitted)). Plaintiffs

make no similar allegations here. As a result, this factor weighs against them.

No. 24-1593 Yoder et al. v. Bowen Page 25

Ease of Enforcement. Plaintiffs point to nothing about the Drone Statute “that makes

enforcement easier or more likely.” See McKay, 823 F.3d at 869. The credibility of a threat of

enforcement increases when the statute allows “any member of the public to initiate an

enforcement action,” id., rather than when it is “limited to a prosecutor or an agency,” Susan B.

Anthony List, 573 U.S. at 164. A violation of the Drone Statute can lead to criminal penalties,

Mich. Comp. Laws § 324.40118(1), which means a prosecutor can enforce the statute. See

Friends of George’s, Inc. v. Mulroy, 108 F.4th 431, 440 (6th Cir. 2024) (concluding criminal

statute was “a standard criminal law with no attributes making enforcement easier or more

likely”). And MDNR has conceded that it can issue a citation for a violation of the statute. But

Plaintiffs do not allege that members of the public can file complaints or initiate enforcement.

See, e.g., Wallace, 132 F.4th at 417; Fischer, 52 F.4th at 308–09. So this factor weighs against

Plaintiffs too.

Disavowal. MDNR asserts in its brief that it has no “plan to prosecute Plaintiffs or

anyone else for creating or disseminating location[] pins.” D. 21 at p.30. This purported

disavowal falls flat. Plaintiffs intend to create location information using a drone. And MDNR

has not disavowed prosecuting them for such conduct. So this factor weighs in Plaintiffs’ favor.

* * *

Plaintiffs have established only one of the McKay factors—refusal to disavow

enforcement. Yet disavowal “is just one data point among many on the question [of] whether a

credible threat of enforcement exists.” Davis v. Colerain Township, 51 F.4th 164, 174 (6th Cir.

2022). The other McKay factors confirm that Plaintiffs have alleged no “circumstances that

render . . . threatened enforcement sufficiently imminent.” Susan B. Anthony List, 573 U.S. at

159. They fail to identify a history of enforcement of the Drone Statute, that they received a

warning letter, or that an attribute of the Drone Statute makes enforcement easier.

With no credible threat of enforcement, Plaintiffs cannot show an injury in fact.

Plaintiffs therefore lack standing.