This discussion kinda reminds me of the Trent Palmer case:
The agency argued before an NTSB administrative law judge that the regulation in question establishes a 500-foot “bubble” around every aircraft, and no pilot may ever legally allow that bubble around the aircraft to include any “person, vessel, vehicle, or structure” except when actually landing, or taking off—a low approach to visually assess the suitability of a landing area that pierces the bubble is not allowed.