The Association for Uncrewed Vehicle Systems International (AUVSI) released a white paper titled, “As the Drone Flies: How to Think About Property Ownership, Federal Preemption, and Airspace Control in the Era of
Remotely Piloted Aircraft.” The paper was authored by Sara Baxenberg and Josh Turner, who are both experienced attorneys in UAS matters who serve as outside counsel to AUVSI. They address two key legal issues: first, the rights of individual property owners in the surface of their property as compared to the airspace above, and second, the authority of states and localities given federal preemption in the fields of air navigation and aviation safety.
The white paper provides a perspective, backed by existing law, about airspace rights in the age of drones. There are various legislative measures currently being proposed around the U.S. that contradict the thoughts presented in the white paper. For example, Montana SB 333 makes it criminal trespass by uncrewed aircraft systems (UAS) if the UAS flies 200 feet or lower over the property without authorization.
“While the advent of drones may appear to pose an inflection point for a variety of traditional legal concepts, these supposed conflicts are, in actuality, easily resolved,” said Sara Baxenberg, Partner at Wiley Rein LLP. “States can protect rights, interests, and assets in a way that ensures that the rules are clear for all stakeholders and all interests are adequately safeguarded.”
This white paper follows the launch of Drone Prepared, an AUVSI multi-state initiative to help lawmakers ensure that their state or locality is ready for the benefits that UAS and autonomous flight will bring to their communities.
Michael Smitsky, Vice President, Government Affairs at AUVSI, said: “By following the legal principles in this paper, states can be on the forefront of attracting the drone industry to their state and unlocking the benefits it will bring to their constituents.”
In U.S. v. Causby and its related cases, individual property owners possess a vast right to the surface of their land, but not the space above it. Aviation activities will affect the landowner‘s real property rights only when they take place in the close vicinity of the property and disrupt the landowner‘s utilization and enjoyment of the land.
Because airspace is an instrument of commerce, the Commerce Clause of the U.S. Constitution gives the federal government exclusive control over U.S. airspace. Given the complexity of the airspace today, the Federal Aviation Administration (FAA) must have exclusive authority to maintain safety. Consequently, federal law overrides any state or local regulations pertaining to aviation safety and air navigation.
Property owners do not have a right to the “non–navigable“ airspace, as any airspace in which the FAA authorizes flight, including that which drones can operate under Part 107 of FAA regulations, is considered “navigable airspace.” Therefore, the essential question for determining whether their rights are affected is not whether the flights occurred in this “navigable airspace“ but if they were in the “immediate reaches” of the land, which is an independent legal concept.
A link to the legal white paper is included below.