Drones & private property

Recent efforts to integrate commercial drones into everyday business endeavors, like package delivery, have shined a new light on an old issue: Who controls the airspace around private property? It is well established that the federal government has exclusive sovereignty over navigable airspace in the United States. Congress delegated the authority over defining and regulating “navigable airspace” to the Federal Aviation Administration (FAA), but the boundaries of that airspace remain unclear and have been the subject of dispute for decades. For example, to what extent can the FAA regulate the airspace just above your home? What about the airspace of your property just above the ground?

An early examination of the issue by the Supreme Court in the 1946 case United States v. Causby provides some prescient guidance. There, the noise from low-flying military aircraft startled a neighboring farmer’s chickens, causing them to fly into walls and die. Because of the loss in value of the property and the ability of the farmer to raise chickens, the question for the Court was whether this constituted a “taking” of the farmer’s property under the “Takings Clause” of the Fifth Amendment.

Ruling in favor of the farmer, the Court found that flights over private property could violate the Takings Clause if they led to “a direct and immediate interference with the enjoyment and use of the land.” Flights below the minimum safe altitude could result in a taking, while anything above

the minimum safe altitude constitutes navigable airspace that is in the public domain. The Court put forth two principles that are relevant today. First, landowners have “exclusive control of the immediate reaches of the enveloping atmosphere.” Second, landowners own at least as much of the space above the ground as they can occupy or use in connection with the land.

Unfortunately, the Court did not define a specific limit. Clearly, when the Supreme Court decided Causby and when the FAA was granted the authority over navigable airspace, no one could have anticipated widespread civilian use of drones, many of which only weigh a few pounds. The dangers of manned aircraft were easily recognizable in 1946, but the dangers posed by these smaller, unmanned aircrafts of today are not as clear. The undefined altitude limits of Causby make this ripe for adjudication. For this reason, local governments across the country have attempted to regulate the flight of drones in some capacity or another for purposes of safety, privacy, or other considerations. When they do, these local governments run afoul of the FAA’s mandate, and the laws, if challenged, will likely be found to be preempted by federal law.

This is for good reason. According to a December 2015

fact sheet from the general counsel’s office of the FAA, the safest way to regulate aircraft is with a uniform system. Allowing multiple localities to weigh in with different regulations would be both inconsistent and inefficient, and could lead to safety issues. That is why the FAA recommends that local governments consult the FAA on any law that intends to place an operational restriction on drones or that mandates some kind of equipment or training.

A recent case examined this issue as it relates to drones. In Singer v. City of Newton, the United States District Court for the District of Massachusetts ruled that a local ordinance placing restrictions on where drones can fly was preempted. As with many local governments across the country, the City of Newton, Massachusetts, passed an ordinance regulating drone operation within the city under the auspices of protecting the privacy of Newton residents and preventing “nuisances” and “other disturbances” within the city. However, Michael Singer, a medical doctor and Harvard professor, challenged three distinct sections of the ordinance, including a section that prohibited drones from flying below 400 feet over any private property without the express permission of the property owner.

The Court ultimately ruled that all the challenged provisions are preempted by federal law. As to the issue of navigable airspace, the Court noted that the ordinance effectively prohibited drone use in the city because the FAA’s own regulations already mandate that pilots keep drones below 400 feet. By restricting drones from flying below 400 feet in any capacity without permission, there was nowhere left for drones to fly. Therefore, the Court held that the provision “thwarts not only the FAA’s objectives, but also those of Congress for the FAA to integrate drones into the national airspace.” While this decision is not binding on other jurisdictions, it does provide a well-reasoned and thoughtful analysis that may be adopted by other courts.

The FAA’s authority over low-altitude airspace was also reaffirmed a month after the Singer decision through President Trump’s issuance of a new Executive Order directing the FAA and the Department of Transportation to create a pilot program for low-altitude flying (up to 400 feet) and easing some of the restrictions on commercial flights. While the pilot program seeks to solicit cooperation from state, local, and tribal governments, the order ultimately supports the administration’s belief that authority over the airspace lies with the federal government.

Is there an altitude limit that a local government could impose that would not run afoul of the FAA’s mandate? What if the City of Newton required permission for flights below 100 feet or within a certain height of a structure on private property? These are the types of questions that the courts will be faced with in the coming months.

In the meantime, local governments have had to get creative in how they can enter into the regulatory space for drones. Rather than regulating the flight of drones through the air, some local governments have passed laws regulating where drones can land or take off. Others have focused on regulating the particular use of the drone and what can be attached to it. Since many drones contain cameras and residents often have privacy or voyeurism fears, many local regulations focus on that aspect of it rather than the drone itself.

As the use of drones become more prevalent and noticeable in everyday life, more local regulations are bound to appear. Whether those regulations can be enforced and to what extent those regulations are challenged will be interesting to watch, but local governments are not without recourse.—Jonathan D. Ash

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