a highway in the sky: a look at land use issues that will...

411

A HIGHWAY IN THE SKY:

A LOOK AT LAND USE ISSUES THAT

WILL ARISE WITH THE INTEGRATION OF

DRONE TECHNOLOGY

Michelle Bolos

TABLE OF CONTENTS

I. Introduction ......................................................................................... 411 II. Background ......................................................................................... 413 III. Analysis ............................................................................................... 417

A. How Low Will the FAA Go? ...................................................... 417 B. Private Nuisance Claims .............................................................. 421 C. Trespass Claims ........................................................................... 424 D. Self Help ...................................................................................... 426 E. Federal Preemption ...................................................................... 427 F. Drone Flights: A Government Taking? ....................................... 428

IV. Recommendation ................................................................................ 429 V. Conclusion .......................................................................................... 434

I. INTRODUCTION

The sky as we know it is about to change. There will be a projected 7,500

commercial drones in U.S. airspace within the next five years.1 The drone

industry “will create more than 100,000 jobs and generate more than eighty-

two billion [dollars]” over the next decade.2 Drones will be utilized in almost

every field. Civilians will utilize drones to take pictures,3 Amazon intends to

deliver packages via delivery drones,4 scientists want to use drones to analyze

crops,5 real estate agents will utilize drones to survey land,

6 and police expect

J.D. 2016 University of Illinois College of Law. Thank you to everyone who helped edit and

prepare this note for publication. Go Illini!

1. Kellan Howell, Invasion: 7,500 Drones in U.S. Airspace Within 5 Years, FAA Warns, WASH. TIMES

(Nov. 7, 2013), http://www.washingtontimes.com/news/2013/nov/7/faa-chief-announces-progress-drone-regs/.

2. Id.

3. Joseph Serna, As Hobby Drone Use Increases, So Do Concerns About Privacy, Security, L.A.

TIMES (June 21, 2014, 4:58 PM), http://www.latimes.com/local/la-me-drone-hobbyist-20140622-story.html.

4. Amazon Prime Air, AMAZON, http://www.amazon.com/b?node=8037720011 (last visited Sept. 15,

2015).

5. Drones for Agricultural Crop Surveillance, PRECISION DRONE, http://precisiondrone.com/drones-

412 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015

to use drones to deter criminals and patrol neighborhoods.7

To date, there has been controversy surrounding drone use.8 Privacy

issues have been the major focus of drone integration thus far.9 Drones are

able to record surveillance footage of people on their property or in their

homes, and most Americans feel threatened by this capability.10

Undoubtedly

this is a major issue that needs resolution before drones can be a mainstay in

American society; however, it is not the only issue that needs to be addressed.

Drones will force lawmakers and citizens to take a hard look at land use

issues. Drones, unlike airplanes, fly at lower altitudes.11

How will these low

altitude aircrafts affect real property? The homeowner enjoying a peaceful

afternoon on his back porch will be interrupted when there is a constant hum of

drones flying over his property at low altitudes. Drones are going to force the

general public to face difficult questions about who owns the air above the

ground and what can be done to integrate drones into the airspace without

interfering with landowner rights.12

It is important to look at how privately

owned drones, utilized for commercial and civilian purposes, will affect

airspace rights.13

In order to successfully integrate drones into the national

airspace these potential issues need to be anticipated and resolved. Drones

should not limit landowner’s control over their land. It is imperative that

landowners have tools to defend their land against drones when unmanned

aircrafts interfere with the enjoyment of their land.

This note begins with a brief history about drones and the Federal

Aviation Administration (FAA). Further, it will argue that there needs to be

some legal recourse for landowners as drones are integrated into national

airspace, and the FAA needs to set clear guidelines regarding what rights

landowners will have against drones. First, landowners need to have control

over at least some part of the airspace above their property. Second, given the

small size of drones, private nuisance and trespass claims will be hard to

for-agriculture.html (last visited Sept. 15, 2015).

6. Robert Freedman, Drones in Real Estate: Not So Fast, REALTORMAG (Mar. 2014),

http://realtormag.realtor.org/law-and-ethics/briefs/article/2014/03/drones-in-real-estate-not-so-fast.

7. Law Enforcement Agencies Using Drones List, Map, GOVERNING (2013),

http://www.governing.com/gov-data/safety-justice/drones-state-local-law-enforcement-agencies-license-

list.html.

8. See generally Drones Take Over, CBS NEWS, http://www.cbsnews.com/drones/ (last visited Sept.

15, 2015) (discussing different types of drone controversies).

9. See generally Hillary B. Farber, Article: Eyes in the Sky: Constitutional and Regulatory Approaches

to Domestic Drone Deployment, 64 SYRACUSE L. REV. 1, 18 (2014) (discussing the privacy concerns

surrounding drones).

10. See Ethan Rosenberg, Poll: Americans Against Warrantless Drone Use, U.S. NEWS & WORLD REP.

(Aug. 16, 2013, 2:36 PM), http://www.usnews.com/news/newsgram/articles/2013/08/16/poll-americans-

against-warrantless-drone-use (illustrating that Americans would feel threatened if law enforcement were

using drones as a surveillance mechanism).

11. See Alistair Barr & Greg Bensinger, Google is Testing Delivery Drone System, WALL ST. J. (Aug.

29, 2014, 4:04 AM), http://online.wsj.com/articles/google-reveals-delivery-drone-project-1409274480

(discussing the fact that Google is testing drones at heights of just 130 feet).

12. See ALISSA M. DOLAN & RICHARD M. THOMPSON II, CONG. RESEARCH SERV., R42940,

INTEGRATION OF DRONES INTO DOMESTIC AIRSPACE: SELECTED LEGAL ISSUES 6 (2013) (discussing airspace

property rights).

13. See id. (illustrating that airspace rights effect the type of claim a landowner can bring).

No. 2] LAND USE ISSUES WITH DRONE TECHNOLOGY 413

establish, yet drones are capable of negatively affecting landowners; property

owners need some type of remedy.14

Third, if landowners do not have any

recourse in the law they may take the law into their own hands.15

Finally, to be

clear, this note does not argue that drones should be banned from the national

airspace. Drones are the way of the very near future and will propel the world

forward.16

While property law is typically derived from state law,17

it is

important for the FAA to provide best practices and guidelines when

integrating drones into airspace so that states have a foundation to which they

will conform their property laws in anticipation of drone use. If the FAA

recognizes land use problems and recommends ways to resolve these potential

issues then drones can be smoothly integrated into the national airspace.

II. BACKGROUND

The FAA has been tasked with keeping the airspace safe since 1958.18

The recent and continuing popularity of consumer drones in the nation’s

airspace requires the FAA’s attention.19

Integrating consumer drones into the

airspace is proving to be difficult for the FAA as everyone from Google and

Amazon to regular civilians are utilizing drone technology.20

Any American

consumer can easily buy a drone for a reasonable price.21

Congress recognizes

the unique challenges unmanned aircraft systems bring to the airspace and

provides the FAA with the authority to create regulations to safely integrate

drones into the national airspace.22

Thus far, the FAA missed every deadline

for drone integration.23

Drones, also known as unmanned aircraft systems, are able to fly at low

14. See Delta Air v. Kersey, 20 S.E.2d 245, 245 (Ga. 1942) (showing how difficult it is to bring

trespass claims in cases involving airspace).

15. See Jason Reed, FAA Warns Colorado Town that Shooting Down Drones Could Lead to

Prosecution, RT (July 20, 2013, 12:39 AM), http://rt.com/usa/faa-warns-against-shooting-drones-345/

(explaining that Colorado residents voted on an ordinance that would allow citizens to shoot drones flying over

their property).

16. See Danica Kirka, Drones: Next Big Thing in Aviation is Small, DENVER POST (July, 16, 2014,

12:01 AM), http://www.denverpost.com/business/ci_26155625/drones-next-big-thing-aviation-is-small

(discussing the mega impact drones will have on aviation and society).

17. See generally McCarran Int’l Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006) (showing how a state

has the power to regulate property rights within the state).

18. A Brief History of the FAA, FAA (Feb. 19, 2015, 4:23 PM), https://www.faa.gov/about/history/

brief_history/.

19. See S. REP. NO. 111-82, at Sec. 319 (2009) (illustrating the FAA is tasked with passing drone

regulation).

20. See generally Rachel Janik & Mitchell Armentrout, From the Burrito Bomber to Crop Monitoring,

a Look at Commercial Drone Use, MEDILL NAT’L SEC. ZONE, http://droneproject.nationalsecurityzone.org/

commercial-drone-use-rachel-janik-and-mitchell-armentrout/ (last visited Sept. 15, 2015) (discussing the

different commercial uses drones are utilized for).

21. See Drone, AMAZON.COM, http://www.amazon.com/ (last visited Sept. 15, 2015) (showing drones

are sold on the market for as little as forty-two dollars).

22. See Robert Bowman, Under Orders from Congress FAA Makes Way for Commercial Drones,

FORBES (July 22, 2014, 6:04 PM), http://www.forbes.com/sites/robertbowman/2014/07/22/under-orders-from-

congress-faa-makes-way-for-commercial-drones/ (discussing the timeline Congress has set out for the FAA to

come up with drone regulations).

23. Howell, supra note 1.


altitudes for sustained periods of time, unlike airplanes and helicopters.24

Typically, noise from airplanes does not bother landowners due to the high

altitudes at which planes fly.25

However, as drones are introduced into the

airspace, property rights will likely become an issue.26

The foundation for

understanding landowners’ rights begins with understanding how much of the

air above the land a property owner is entitled to. Navigable airspace is

“airspace above the minimum altitudes of flight prescribed by regulations . . .

including airspace needed to ensure safety in the takeoff and landing of

aircraft[s].”27

Navigable airspace is where the majority of airplanes fly, and it

is considered to be part of the public domain, meaning nobody owns it.28

In United States v. Causby the Supreme Court took on the issue of who

owns the air above private property.29

In Causby, Plaintiffs complained that

military aircrafts flying only sixty-seven feet above their home and chicken

farm amounted to a government taking.30

The constant noise from the aircrafts

scared their chickens and caused the Causby’s to close their chicken

business.31

Before Causby and its progeny, landowners believed they owned

everything from the ground up to the heavens.32

Causby changed that rule,

stating that people own at least as much space above the ground as the

landowner can reasonably occupy or use in connection with the land.33

Causby considered three elements in determining whether there was a taking:

“(1) whether the planes flew directly over the plaintiff’s land; (2) the altitude

and frequency of the flights; and (3) whether the flights directly and

immediately interfered with the plaintiff’s use and enjoyment of the surface

land.”34

These same considerations are also considered in many other land use

claims involving overhead aircraft flights.35

However, Causby does not draw a

clear line as to when airspace is private property and when it becomes public

domain because it is unclear what reasonable use of the airspace means.36

Depending on how the FAA regulates drones, property rights could be affected

and the type of claims people can bring will depend upon these regulations and

the definition of navigable airspace.

The FAA planned to have regulations promulgated by September 2015;

however, as of early September 2015 no such regulations have been

24. See Barr & Bensinger, supra note 11 (describing how Google is testing drones that will fly at just

130-200 feet above the ground).

25. Monica Wachman, What is the Altitude of a Plane in Flight?, USA TODAY,

http://traveltips.usatoday.com/altitude-plane-flight-100359.html (last visited Sept. 15, 2015) (explaining the

average cruising altitude of an aircraft is 39,000 feet above the ground).

26. See DOLAN & THOMPSON, supra note 12 (discussing airspace property rights).

27. 49 U.S.C. § 40102(28) (2012).

28. United States v. Causby, 328 U.S. 256, 256 (1945).

29. Id.

30. Id.

31. Id. at 259.

32. Id. at 260–61.

33. Id. at 264.

34. See DOLAN & THOMPSON, supra note 12 at 8 (discussing airspace property rights).

35. Id. at 8–9.

36. Id. at 8.


proposed.37

In fact, many people, including the Government Accountability

Office believe the deadline is overly optimistic since the agency has missed

every deadline to date regarding drones.38

Currently, there are some primitive

guidelines in response to drones.39

In 2012, the FAA Reform and

Modernization Act dedicated a section to unmanned aircraft systems.40

Congress set a deadline for the completion of certain goals such as defining

standards for unmanned aircraft systems, establishing requirements for pilots

of drones and methods to ensure safe operation of unmanned systems.41

In

2013, the FAA distributed a “UAS [Unmanned Aircraft System]

Comprehensive Plan” which did much of the same as the Reform Act,

outlining very little about the practical use of drones and establishing

guidelines and regulations the agency hopes to create in the coming years.42

As of right now, there are at least some rules pertaining to drones.43

However, recreational flyers can fly with few rules.44

Recreational flying does

not require a certificate and is permitted as long as the drone stays within the

flyer’s line of sight, is not flown for commercial purposes, and the unmanned

aircraft is less than fifty-five pounds.45

Furthermore, government public safety

agencies are allowed to operate drones weighing 4.4 pounds or less if: (1) the

drone is within the line of sight of the operator, (2) less than 400 feet above the

ground, (3) during daylight conditions, (4) within Class G airspace, and (5) and

outside of five miles from any airport or location with aviation activities.46

Clearly, it is legally permissible to fly some drones. However, before

February 2015, drone use for commercial purposes was strictly forbidden

without a special airworthiness certificate, much to the chagrin of companies

like Amazon and Google.47

In the near future, Amazon hopes to launch same

day delivery via Amazon Prime Air.48

Amazon plans to use a small drone to

pick up packages from their processing warehouses and fly them to the

customer’s doorstep within a few hours of the customer clicking “buy.”49

37. Bart Jansen, FAA Unveils Drone Rules; Obama Orders Policy for Agencies, USA TODAY (Feb. 16,

2015, 8:12 AM), http://www.usatoday.com/story/news/2015/02/15/faa-drone-rule/23440469/; Craig Whitlock,

FAA Will Miss Deadline to Integrate Drones in U.S. Skies, WASH. POST (June 30, 2014),

http://www.washingtonpost.com/world/national-security/faa-will-miss-deadline-to-integrate-drones-in-us-

skies-report-says/2014/06/30/fd58e8e2-007f-11e4-b8ff-89afd3fad6bd_story.html.

38. Jansen, supra note 37; Whitlock, supra note 37.

39. See Unmanned Aircraft Systems, FAA, https://www.faa.gov/uas/ (last visited Sept. 15, 2015)

(listing some of the primitive guidelines for drones).

40. H.R. 658, 112th Cong. (2012); See S. REP. NO. 111-82, at sec. 319 (2009) (illustrating the FAA is

tasked with passing drone regulation).

41. H.R. 658, 112th Cong. (2012).

42. THE JOINT PLANNING & DEV. OFF., UNMANNED AIRCRAFT SYSTEMS COMPREHENSIVE PLAN (Sept.

2013).

43. Unmanned Aircraft Systems, supra note 39.

44. Wendie L. Kellington, Unmanned Air Systems and Regulating Navigable Airspace, LAND USE INST.

(Aug. 14–16, 2013), http://www.wkellington.com/pdf/2013/Unmanned-Aerial-Systems-and-Regulating-

Navigable-Airspace.pdf.

45. Id.

46. Public Unmanned Air Craft Systems, Pub. L. No. 112-95, § 334, 126 Stat. 11, 76–77 (2012).

47. Unmanned Aircraft Systems Frequently Asked Questions, FAA, https://www.faa.gov/uas/faq/ (last

visited Sept. 15, 2015).

48. Amazon Prime Air, supra note 4.

49. Id.


Google has also been testing drone operations for the same purpose.50

The

FAA created a special airworthiness certificate available to companies that

want to utilize drones for commercial purposes.51

Companies can apply for

this certificate; however, these certificates are given out very rarely and come

with very strict rules.52

Currently, sixteen of the 295 companies that petitioned

for these certificates have been successful, and thus they are allowed to fly

drones for commercial purposes.53

Most of the permitted commercial uses

were given to film companies to allow crews to obtain aerial footage.54

In February 2015, the FAA introduced a new set of guidelines for

commercial drones, which removed some constraints for entities trying to use

drones for commercial purposes.55

One of the major limitations of the new

rule is that the unmanned aircraft must always be within the line of sight of the

operator.56

Furthermore, flights should be limited to an altitude of 500 feet.57

Moreover, the FAA operates six test sites where the agency is researching

and operating drones so it can tailor its upcoming regulations.58

Officials fly

drones at these sites to test their capabilities and potential hazards;59

the first

drone that launched at the FAA test site in Nevada crashed immediately,

validating the need for these test sites.60

The federal government is not the only legislative body that has

recognized the need for rules prior to drone integration.61

National parks no

longer permit drones after several incidents occurred.62

Drone use in national

parks has been cited as a nuisance to animals and visitors.63

There have been

noise complaints from visitors, and wildlife have been harassed due to drones

flying too close to the animals.64

For example, during a sunset at the Grand

50. Barr & Bensinger, supra note 11.

51. Letter from Michael J. Zenkovich, Deputy Dir., Flight Standards Serv., to John McGraw, Agent for

Pictorvision Inc. (Sept. 25, 2014), http://www.faa.gov/uas/legislative_programs/section_333/media/

Pictorvision_Inc-11067.pdf.

52. Id.

53. Press Release, FAA, U.S. Transp. Sec’y Foxx Announces FAA Exemptions for Commercial UAS

Movie and TV Prod. (Sept. 25, 2014) http://www.faa.gov/news/press_releases/news_story.cfm?; Press

Release, FAA, FAA Grants Two More UAS Exemptions (Jan. 23, 2014) http://www.faa.gov/news/ updates/.

54. See Section 333, FAA, http://www.faa.gov/uas/legislative_programs/section_333/ (last visited Sept.

15, 2015) (showing that most of the exemptions were granted to cinematography companies).

55. Press Release, FAA, DOT and FAA Propose New Rules for Small Unmanned Aircraft (Feb. 15,

2015) http://www.faa.gov/news/press_releases/news_story.cfm.

56. Id.

57. Id.

58. Test Sites, FAA, https://www.faa.gov/uas/legislative_programs/test_sites/ (last visited Sept. 15,

2015).

59. Id.

60. Adam Clark Estes, First Drone Launches at FAA Test Site in Nevada, GIZMODO (Dec. 20, 2014,

3:00 PM), http://gizmodo.com/first-drone-launches-at-faa-test-site-in-nevada-crashe-1673586255.

61. Current Unmanned Aircraft State Law Landscape, NAT’L CONF. OF STATE LEGS.,

http://www.ncsl.org/research/civil-and-criminal-justice/current-uas-state-law-landscape.aspx (last visited Sept.

15, 2015).

62. Unmanned Aircraft to be Prohibited in America’s National Parks, NAT’L PARK SERV. (June 20,

2014), http://home.nps.gov/applications/release/print.cfm.

63. Id.

64. Jack Nicas, National Park Service Moves to Ban Drones, WALL ST. J. (June 20, 2014, 6:24 PM),

http://online.wsj.com/articles/u-s-government-moves-to-ban-drones-in-national-parks-1403286430; Emily

Yehle, NPS Bans Drones over Safety, Nuisance Concerns, E&E PUBL’G (June 20, 2014),


Canyon, visitors complained that the noise created by the drone interrupted

their experience.65

Ultimately, the drone crashed into the canyon.66

Furthermore, there have been numerous states that have proposed new

legislation in response to drone use.67

Besides noise and nuisance issues, many

states have laws against unwarranted drone surveillance.68

Also, given

property law is typically a creature of state law,69

some states have

preventively promulgated rules regarding land use issues. Oregon, Tennessee,

and California have passed laws that give landowners specific causes of action

against drones, further proving the recognized tension between drones and

private property.70

Finally, the long-term property trend over the past two centuries has been

to give landowners greater power to exclude others from trespassing on their

land.71

During the early nineteenth century, much of the land was open to

public use without any ability to exclude people from using land.72

However,

over the nineteenth century the right to exclude became more popular and

landowners began enforcing that right.73

Therefore, if landowners are not

permitted to exclude drones from their land it would run counter to the century

long trend toward exclusion.74

III. ANALYSIS

A. How Low Will the FAA Go?

Drones create a unique set of issues for property owners and create legal

issues that have never been fully addressed.75

Drones, although in theory

resemble remote controlled helicopters, which have been around for decades,

will create problems remote-controlled recreational helicopters never did. The

popularity of drones will far surpass that of recreational helicopters given the

fact that drones will be used for commercial purposes.76

Furthermore, drones

http://www.eenews.net/stories/1060001697.

65. Id.

66. Id.

67. Id.

68. Current Unmanned Aircraft State Law Landscape, supra note 61.

69. Sisolak, 137 P.3d at 1120.

70. See H.R. 2710, 77th Leg. Assemb., Reg. Sess. (Or. 2013) (detailing one of Oregon’s drone

statutes); Michael Berry & Nabiha Syed, State Legislation Governing Private Drone Use, WASH. POST:

VOLOKH CONSPIRACY (Sept. 25, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/

09/25/state-legislation-governing-private-drone-use/ (discussing State’s legislative response to increasing

drone use).

71. Eric T. Freyfogle, The Enclosure of America, in ILL. PUB. LAW AND THEORY RESEARCH PAPERS

SERIES NO. 07-10, (2007).

72. Id. at 2–3.

73. Id. at 46–47.

74. Id.

75. See Causby, 328 U.S. at 256 (showing courts have not decided when airspace becomes private

property).

76. Todd Gardiner, What is the Difference Between a Drone and an R/C Plane or Helicopter?, QUORA,

http://www.quora.com/What-is-the-difference-between-a-drone-and-an-R-C-plane-or-helicopter (May 10,

2012) (“‘drone’ tends to mean vehicles with more capability . . . .”).


are unlike commercial airplanes because they are able to fly at low altitudes.77

The airplanes flying above homes are typically at least 39,000 feet above the

ground and can hardly be said to harm property.78

Companies such as Google

are currently testing drones operating at just 130-200 feet above the ground.79

So the ultimate question is how will drone law fit into current airspace rights?

Questions such as what constitute “reasonable use” of the airspace must be

answered. Causby left that question open for discussion.80

Since Causby, the legislature and judiciary have not needed to delve into

this question.81

Thus far, the general rule is that public domain begins at 500

feet above the ground in non-congested areas and 1,000 feet above the ground

in congested areas.82

However, drones are able and likely will fly below these

public domain altitudes.83

In fact, the FAA’s 2015 proposed rules specify that

drones allowed in the airspace today must fly below 500 feet.84

To date, issues

regarding low-flying aircrafts have not been a major source of contention for

landowners unless the land is located near an airport.85

Ultimately, given the

unique issues drones bring into the world there must be some legal recourse for

landowners as drones become more prevalent.

Currently, the FAA controls the national airspace far above people’s

property; however, the FAA’s new drone regulations may extend the agency’s

control to airspace just above the ground, leaving property owners with no

ownership of the airspace right above their lawn.86

In a recent case, Raphael

Pirker was hired to use a Ritewing Zephyr, a “power glider aircraft,” around

the University of Virginia to shoot a promotional video.87

The unmanned

aircraft had a camera attached to it that sent real time photos to Pirker on the

ground.88

He flew between 10 and 1,500 feet above pedestrians, buildings, and

streets.89

The FAA fined him $10,000 for violating 14 C.F.R. §91.13(a) of the

Federal Aviation regulations which prohibits operating an aircraft in a

77. See Barr & Bensinger, supra note 11 (illustrating drones are tested to fly at heights of 150 feet).

78. Wachman, supra note 25.

79. Id.

80. See Causby, 328 U.S. at 267 (explaining the Court never decided at what height airspace is

considered private property).

81. Id.

82. Argent v. United States, 124 F.3d 1277, 1281 (Fed. Cir. 1997).

83. This is How the FAA Regulates American Airspace, POPULAR MECHS (Sept. 9, 2013, 2:30 AM)

[hereinafter American Airspace], http://www.popularmechanics.com/technology/military/planes-uavs/this-is-

how-the-faa-regulates-american-airspace-15894142.

84. DOT and FAA Propose New Rules for Small Unmanned Aircraft, supra note 55.

85. Delta Air Corp., 20 S.E.2d at 245; Vanderslice v. Shawn, 27 A.2d 87, 87 (Del. Ch. 1942); see Jack

L. Litwin, Annotation, Airport Operations or Flight of Aircraft as Nuisance, 79 A.L.R.3d 253 (1977) (showing

a multitude of airplane nuisance cases in different jurisdictions).

86. See Huerta v. Pirker, N.T.S.B. No. CP-217 (Nov. 17, 2014), http://www.ntsb.gov/legal/alj/

Documents/5730.pdf (illustrating the FAA felt it had the authority to punish someone for recklessly using

airspace far below 500 feet).

87. Administrator’s Appeal Brief at 1, Huerta, N.T.S.B. No. CP-217; Matthew Schroyer, FAA Insists

Authority to Regulate Drones, Airspace in Trappy Lawsuit, PROF’L SOC’Y OF DRONE JOURNALISTS (Nov. 5,

2013), http://www.dronejournalism.org/news/2013/11/faa-insists-it-has-authority-to-regulate-all-drones-and-

airspace-in-trappy-lawsuit.

88. Huerta, N.T.S.B. No. CP-217 at 2.

89. Id.


“careless or reckless manner . . . .”90

In the first hearing, the judge overturned

the fine deciding this unmanned aircraft did not fall within the definition of an

aircraft under 14 C.F.R. § 1.1, and thus was not subject to 14 C.F.R. §

91.13(a).91

After this decision, the public was confused about what rules

governed drones.92

The decision hinted that no rules applied to drones used for

commercial purposes.93

However, the National Transit Safety Board quickly

appealed the decision and on appeal the decision was overturned and

remanded.94

The appeals court held that the unmanned aircraft did fall under

the definition of aircraft set out by the Federal Aviation regulations.95

After the Pirker case, the FAA made it clear that there are no grey areas

when it comes to drone use, and if a person wants to fly a drone, he needs

some level of permission from the FAA.96

Even more disturbing, the FAA

clearly felt it had control of Pirker’s device despite the fact it flew at low

altitudes and in airspace below the national airspace.97

In his motion to

dismiss, Pirker noted that the FAA does not have jurisdiction of the low

altitudes where he was flying: “[A]t a minimum, partial dismissal of the

Complaint is warranted as to all allegations concerning operation at very low

altitudes, inside a tunnel, below tree top level, or underneath a pedestrian

overpass because these locations are not ‘navigable airspace’ subject to FAA

jurisdiction.”98

However, according to the FAA, it is a common myth that the

administration does not control airspace below 400 feet.99

In fact, the FAA

says, “[T]he FAA is responsible for the safety of U.S. airspace from the ground

up. This misperception may originate with the idea that manned aircrafts

generally must stay at least 500 feet above the ground.”100

Interestingly,

neither court discussed the issue of where exactly private property begins.101

This once again shows the courts’ unwillingness to discuss this issue that will

become pervasive as more drones enter the airspace. Without knowing where

the national airspace begins and where private property ends, landowners will

be left wondering what kind of claim they can bring against drone users.

As mentioned earlier, navigable airspace is air above the minimum

90. Id. at 1, 5.

91. Id. at 3, 5.

92. See, e.g., Charles Blanchard & William Speros, Holding Pattern: FAA Regulation of Commercial

Drones After Huerta v. Pirker, BUREAU OF NAT’L AFF. 3 (Mar. 31, 2014), http://www.arnoldporter.com/

resources/documents/BBNA_Holding%20Pattern%20FAA%20Regulation%20of%20Commercial%20Drones

%20After%20Huerta%20v.%22Pirker.pdf (indicating that the decision “raises a number of questions” and that

until the FAA promulgates new rules or appeals the decision, “its jurisdiction over a growing UAS industry

will likely remain up in the air.”).

93. Id.

94. Huerta, N.T.S.B. No. CP-217 at 12.

95. Id.

96. Busting Myths about the FAA and the Unmanned Aircraft, FAA, http://www.faa.gov/news/updates/

(last updated Mar. 7, 2014) [hereinafter Bustling Myths].

97. Huerta, N.T.S.B. No. CP-217.

98. Respondent’s Motion to Dismiss at 10, Huerta, N.T.S.B. No. CP-217, http://www.wired.com/

images_blogs/threatlevel/2014/10/MotionToDismiss.pdf.

99. Busting Myths, supra note 96.

100. Id.

101. See Huerta, N.T.S.B. No. CP-217 (illustrating the court never responded to the argument that the

FAA did not have jurisdiction over altitudes that low).


altitude of flight, and it is considered public domain.102

As drones are

introduced into airspace, the minimum altitudes of flight will descend to just

above the ground since drones are able to fly at such low altitudes for sustained

periods of time.103

The most recent round of regulations set forth in 2015

specifically prescribe that drones must stay below 500 feet.104

This would

leave landowners without any control of airspace above their land since the

FAA states it can regulate the airspace below 500 feet.105

Since the initial rules

only allow drones to fly up to 500 feet, the FAA will surely use its

enforcement powers to regulate drones at this height, which trumps the

property owner’s authority.106

If landowners do not own the airspace above

their land, then landowners do not have the ability to bring legal claims for

things that occur in their airspace and interfere with their use of the land.107

However, this is in conflict with the rule set out in Causby, which states that a

landowner owns as much airspace as he can reasonably use.108

States like Oregon and Tennessee recognize this issue and have

determined the circumstances under which a claim can be made.109

In Oregon,

landowners can bring an action against anyone using a drone over their

property if the drone is: (1) flown over the property at less than 400 feet, (2) if

the landowner told the drone operator that he did not want the drone flown

over his property, (3) the drone operator flies the drone at an altitude less than

400 feet.110

While this band-aid fix may work for Oregon now, it certainly will

not work when Google and Amazon are the companies flying over property.

Imagine calling up Amazon to request the company stop flying drones at such

low altitudes above private property; the caller would undoubtedly be rerouted

to several different departments before ever potentially reaching a solution.

Oregon’s fix is likely too elementary to work nationwide and deal with large

corporations. However, it is a start, and it at least shows that some states are

foreseeing land use issues.111

Tennessee amended its criminal trespass provision in order to tailor the

provision to include drones.112

The provision now reads, “for purposes of this

section, enter means intrusion of the entire body or when a person causes an

unmanned aircraft to enter that portion of the airspace above the owner’s land

not regulated as navigable airspace by the Federal Aviation Administration.”113

If the FAA, however, is able to regulate air from the ground up then the

Tennessee statute would be obsolete. Tennessee specifically wrote in

102. Causby, 328 U.S. at 256.

103. American Airspace, supra note 83.

104. FAA., Overview of Small UAS Notice of Proposed Rulemaking (Feb. 15, 2015),

http://www.faa.gov/regulations_policies/rulemaking/media/021515_sUAS_Summary.pdf.


106. Id.

107. Drybread v. City of St. Louis, 634 S.W.2d 519, 520 (Mo. Ct. App. 1982).

108. Causby, 328 U.S. at 264.

109. H.R. 2710, 77th Leg., Reg. Sess. (Or. 2013).

110. Id.

111. Id.

112. TENN. CODE ANN. § 39-14-405 (West 2014).

113. Id. § 39-14-405(d).


unmanned aircraft into the trespass statute to make it clear to both drone

operators and landowners that claims against drone operators will be taken as

seriously as any other trespass claim.114

California introduced a bill in January 2015 regarding drone trespass as

well.115

The bill amended California trespass law by “extending liability” to

any unmanned aircraft “less than 350 feet above ground level” without the

landowner’s permission.116

Americans are already extremely skeptical about drones.117

Nearly

everyone, from average citizens to politicians, is nervous about the effect

drones may have on society.118

In early 2015, a man operating a drone crashed

into the White House, and just one day later, even President Obama reiterated

the need for drone regulations saying, “we don’t really have any kind of

regulatory structure at all for [drones].”119

Introducing this regulatory structure

is important, but so too is introducing specific guidelines as to how Americans

can fight back against drones if they do become an issue for landowners. The

only way to calm nerves is to face the issue head on and come up with

solutions to the public’s fears.

If landowners have no recourse to punish drone operators for flying too

low or too frequently over their homes, they are left with no way to protect

their property. People who are trying to enjoy a warm summer day on their

porch are interrupted by the buzzing of drones flying over at low altitudes and

can do nothing about it. Landowners need to be protected from the burgeoning

threat of drones buzzing just above their rooflines. If the FAA claims it can

regulate airspace at low altitudes,120

it ultimately means landowners do not

own the air above their homes, and thus landowners will not have recourse

against any intrusions in the air no matter how low. Ultimately, the FAA

needs to protect the landowners, and by regulating airspace so low to the

ground, landowners are entitled to few rights and protections.

B. Private Nuisance Claims

Private nuisance is the typical cause of action brought in situations where

a landowner’s enjoyment of the land is disturbed.121

In order to successfully

make out a prima facie case for private nuisance a person must prove:

(1) substantial harm and (2) the imposition of the harm is unreasonable.122

There are virtually no cases involving model aircrafts and nuisance, likely

114. Id.

115. S.B. 142, 2015–16 Reg. Sess. (Cal. 2015), http://leginfo.legislature.ca.gov/faces/

billNavClient.xhtml.

116. Id.

117. Joan Lowy & Jennifer Agiesta, AP-GfK Poll: Americans Skeptical of Commercial Drones, AP-

GFK, http://ap-gfkpoll.com/featured/findings-from-our-latest-poll-10 (last visited Sept. 15, 2015).

118. Id.

119. Jeremy Diamond, Obama: We Need More Drone Regulations, CNN (Jan. 28, 2015, 6:58 AM),

http://www.cnn.com/2015/01/27/politics/obama-drones-fareed/.


121. RESTATEMENT (SECOND) OF TORTS § 821D (Am. Law Inst. 1979).

122. Id.


because the popularity of model aircrafts was never as pervasive as drones

threaten to be.123

Unfortunately, most precedential cases regarding airplanes

and private nuisance will not be of much use to victims of drone nuisance. The

majority of nuisance cases involving airplanes occur when landowners live

near airports.124

Furthermore, nuisance claims that tend to succeed on the

merits include disturbance as a result of dust production, noise, vibration, and

frequency of flights.125

Drone nuisance claims will be much harder to prove

given the small size of most drones.126

There will likely be no dust production

or vibration produced.127

However, as seen in national parks around the

country, the noise produced by drones can still be a disruption.128

The fact of

the matter is many of the reasons courts allow successful nuisance actions

against airplanes will not be present with drones.129

Yet, it is easy to imagine a

world where drones are constantly flying above your home or patio as you try

to enjoy the quiet of your land.130

The legislative and judicial system need to

realize that although drones do not produce as much noise or disruption as low

flying airplanes, they still have the ability to disrupt landowners, and those

landowners deserve a claim against that disturbance.

The noise caused by frequency of flights is really what landowners will

have to hang their hats on if nothing changes.131

It will be helpful to look at a

case where a landowner successfully argued that the frequency of aircraft

flights above his land was a nuisance. In Delta Air Corp. v. Kersey, the

plaintiff lived near an airport where aircraft flew over his home at altitudes of

twenty-five to fifty feet.132

The court held that repeated low flights at altitudes

of twenty-five to fifty feet, accompanied by noise and dust are dangerous to the

health of the landowner and injurious to his use of the land.133

However, it is

important to note that nuisance was found based on the frequency of flights

along with the fact that the noise and dust production “are dangerous to the

health and life of petitioner and his family and thus constitute a continuing

nuisance.”134

Ultimately, the court was not comfortable giving the landowner

relief simply based on the frequency of flights.135

The holding in this case is

similar to the holdings in many comparable cases.136

It is difficult to find cases

123. A simple search on WestLaw proves this fact as there are almost no cases regarding model aircraft

issues.

124. See Litwin, supra note 85 (outlining airplane nuisance cases).

125. Id.

126. DOLAN & THOMPSON, supra note 12.

127. Id.

128. Mike M. Ahlers, National Park Service Bans Drones over Safety, Noise Worries, CNN (June 21,

2014, 11:11 PM), http://www.cnn.com/2014/06/20/travel/national-park-service-drone-ban/.


130. Id.

131. See Litwin, supra note 85 (outlining airplane nuisance cases involving frequency of flight as the

main complaint).

132. Delta Air Corp., 20 S.E.2d at 245.

133. Id. at 249.

134. Id.

135. Id. at 251.

136. See Brandes v. Mitterling, 196 P.2d 464, 464 (Ariz. 1948) (illustrating an overhead flight case); see

also Scott v. Dudley, 105 S.E.2d 752, 752 (Ga. 1958) (discussing issues regarding overhead flights over

private property).


where mere frequency of flights over the land was enough to prove

nuisance.137

However it is important to note that “a nuisance claim can

succeed even if the plane flew over adjoining lands and never directly over the

plaintiff’s land, as long as the flight constitutes a substantial and unreasonable

interference with the use and enjoyment of the land.”138

Therefore, a drone

does not technically need to be flying directly over the landowner’s private

property as long as it is affecting the use and enjoyment of that land.139

However, the questions still remain, will the noise produced by a drone be

enough to establish a successful claim for nuisance? How noisy does it have to

be to succeed on a nuisance claim? Some cases suggest the noise has to drown

out conversation or cause physical pain.140

The hum of one drone passing by

may not be the issue, but the frequency of many drones passing by and the

constant hum is what will cause the issues.

Landowners may look to their town’s noise ordinance for help in halting

drone noise. For example, Urbana, IL noise ordinance says that Illinois

Pollution Control Board (IPCB) measures noises based on frequency (as in

frequency of the sound measured in hertz) and intensity.141

The IPCB creates a

guide of when noise levels are unacceptable based on the property impacted by

the sound.142

However, in order for these noise ordinances to be useful to

landowners, the IPCB should also take into account the repetitive nature of that

sound. Even if the sound of one drone is not loud enough, the sound of drone

after drone flying over surely interferes with the use of the property. Drones

are akin to barking dogs. Barking dogs, like drones, likely will not be so loud

they shake the ground or cause vibration, but given the sheer number of them,

they both cause noise that can be brought in a private nuisance claim. There

have been plenty of cases proving that the frequency of barking dogs is enough

to sustain a successful public nuisance claim.143

In Dobbs v. Wiggins the court

found that due to the frequency of barking dogs, “the dogs bark[ed] and

yelp[ed] at all hours of the day and night,” that plaintiffs’ “enjoyment of

outdoor activities” were “curtailed” because of the noise.144

Although there

was no dust or vibration, the mere frequency of the barking coupled with

plaintiffs’ inability to enjoy their outdoor space was enough for the court to

find a public nuisance.145

This same logic should carry over into the drone

context.

137. See Litwin, supra note 85 (showing very few cases where frequency of flights alone was enough to

prove nuisance).

138. DOLAN & THOMPSON, supra note 12, at 11.

139. Id.

140. Traetto v. Palazzo, 436 N.J. Super. 6, 6 (2014).

141. Memorandum from the Dept. of Cmty. Dev. Serv., Elizabeth H. Tyler, Amendment to Chapter 16

of the Urbana Code of Ordinances (Noise and Vibrations), City of Urbana (Apr. 18, 2013)

https://www.city.urbana.il.us/_agendas_-_packets_-_Minutes/Agendas_2013/04-22-2013/Ordinance_2013-04-

036.pdf.

142. Id. at 4.

143. Dobbs v. Wiggins, 929 N.E.2d 30, 41 (Ill. App. 2010).

144. Id. at 39–40.

145. Id.


C. Trespass Claims

The next logical cause of action is trespass. Trespass is a “physical

intrusion upon property owned by another.”146

However, if the landowner has

no claim in the airspace above his land, he has no trespass claim. As one court

put it, “a property owner owns only as much air space above his property as he

can practicably use. And to constitute an actionable trespass, an intrusion has

to be such as to subtract from the owner’s use of the property.”147

Trespass

law is created by state law, and thus each state will need to clarify how its

trespass laws will treat drone use.148

In Smith v. New England Aircraft, small aircrafts were flown over the

Smiths’ residential property at low altitudes, as low as 100 feet.149

The flight

patterns were irregular, and thus there was no way of knowing how many

flights were flown over.150

Although nuisance was not found in this case, the

court found a trespass.151

The court explained, “[t]he facts show intrusion

upon the land of the plaintiffs by flight of aircraft at these low altitudes by

noise and by the presence of the aircraft and its occupants.”152

However, there

is no bright-line rule that says this case was decided correctly and others

incorrectly. Since courts keep punting the issue of where navigable airspace

begins and land ownership ends, the potential success of a trespass claim is

unpredictable.153

The FAA likely does not want to clarify exactly what

“navigable airspace” includes and put a height requirement on it (e.g., anything

below 500 feet is navigable airspace) because the agency does not want to limit

its control. Therefore, landowners will have only precedent and general rules

to rely on. Unfortunately, there is disagreement among courts.154

There are

different theories as to when a trespass claim is acceptable.155

Some lower

courts have adopted a “fixed height” theory of airspace ownership,

On the one hand, the stratum of airspace that was defined in federal law as “navigable airspace” was always a part of the public domain . . . . On the other hand, the airspace below what is defined as navigable airspace could be “owned” by the surface owner and, therefore, intrusions upon it could lead to a successful takings or property tort claim.

156

Another theory is that a plane, while in navigable airspace and thus in the

public domain, “interfered with the owner’s use and enjoyment of the surface

enough to justify compensation” and so a trespass claim should be sustained.157


147. Geller v. Brownstone Condominium, 82 Ill. App. 3d 334, 336-37 (1980).


149. Smith v. New England Aircraft Co., 170 N.E. 385, 387 (Mass. 1930).

150. Id.

151. Id. at 388.

152. Id. at 393.

153. Id. (citing no concrete rule as to when airspace becomes public domain and when it is private

property).


155. Id.

156. Id.

157. Id.


Therefore, according to some courts, property owners still have a trespass

claim even when the aircraft is flying in the public domain, also known as

navigable airspace.158

Another theory is that a landowner has a claim against

an aircraft even if it is in navigable airspace (the public domain) as long as the

landowner reasonably uses that space.”159

The idea behind this theory is that

property owners should own as much airspace as they use.160

Furthermore, the Causby rule, that landowners own as much as space as

they can reasonably use, is unhelpful.161

As a homeowner, am I reasonably

using the air at the second story window of my home? Can I build a tower that

will reach far above my house? What is reasonable? According to the Ninth

Circuit, the landowner must currently use the airspace in order for him to claim

ownership.162

The Court goes on to say, “It would be, and is, utterly

impracticable and would lead to endless confusion, if the law should uphold

attempts of landowners to stake out, or assert claims to definite, unused spaces

in the air in order to protect some contemplated future use of it.”163

Therefore,

under this rule the second story of your home is reasonably used since your

home is occupying that area, however the landowner does not own anything

above his roofline if he is not using it.164

This interpretation severely limits the

Causby rule. Practically, this rule would not help solve the problems. The rule

means that owners of vacant property do not own much airspace; however, the

concern about drone noise does not apply to vacant land where the noise would

not bother anyone. In the residential property context, the homeowner likely

does not reasonably use anything above his roofline although drones at that

altitude may still be problematic; therefore, this interpretation does not resolve

any of the original concerns about land use. It seems as though altitude

restriction would be a better solution because it resolves the issue of noise;

drones at 500 feet will be quieter than drones grazing the roofline.

Given the different interpretations of airspace ownership and its effect on

a nuisance or trespass claim, it is difficult to know when a landowner will have

a successful claim.165

As drones are introduced into society it is likely that

questions about airspace will arise more frequently, and that is why it is

absolutely necessary the FAA make clear guidelines and best practices

regarding what rights property owners have to their airspace. While states

ultimately create their own rights for landowners, given the novelty of drones,

the FAA should create a model for states to follow if they so choose. The FAA

may choose to utilize one of the three theories mentioned above or create an

entirely new rule. Whatever rule the FAA and states decide on should give

landowners at least some ownership in the air above their property and the

rules should make it clear when a claim is acceptable.

158. Id.

159. Id.

160. Id.

161. Causby, 328 U.S. at 256.

162. Hinman v. Pac. Air Lines Transp. Corp., 84 F.2d 755, 755 (9th Cir. 1936).

163. Id. at 758.

164. Id.



The point of creating regulations and laws is to foresee the potential

issues with drones and give landowners a way to resolve the issue without it

costing them thousands of dollars and years of their time. Furthermore,

clarifying what claims landowners have against drone operators will also

ensure that drone users are alert and practicing safe piloting. If a drone pilot

knows a landowner has an action against him, then those pilots are likely to be

more considerate and use safer flying practices. Therefore, the government has

to stop punting the question of airspace rights and decide on a rule that will be

applied by courts, and if that rule includes the term reasonable, it must also

define what reasonable use of airspace means.

D. Self Help

If landowners do not have any recourse in the law, they may handle the

issue themselves. It is not legal to shoot down drones, yet people are doing it

anyway.166

Some people simply do not want drones over their property, and

given there currently is no other recourse, people have resorted to shooting

them down.167

A town in Colorado even voted on a “drone hunting”

ordinance, evidencing just how serious people are about taking matters into

their own hands.168

Ultimately, the ordinance was not passed due to legal and

social ramifications.169

It is a federal crime to shoot an aircraft out of national airspace; it carries

a prison sentence of up to twenty years.170

However, currently, people who

shoot down drones will only go to jail for a few days or suffer no repercussions

at all.171

This great disparity in the law, the idea that federal and state crimes

are treated so lightly in the case of drones, is proof that nobody, including law

enforcement and the judicial system, understands how to treat drones.172

Even

politicians have threatened to shoot down drowns; Rand Paul recently

commented, “[d]rones should only be used according to the Constitution. But

if they fly over my house, they better be aware because I’ve got a shotgun.”173

Moreover, in a recent interview, Jeff Bezos, Chief Executive Officer at

Amazon.com, was interviewed during an episode of 60 Minutes about

Amazon’s potential use of drones for delivery services.174

He was asked how

Amazon will keep people from shooting its drones down.175

It’s a very real

166. Derek Mead, Shooting at Federal Drones is Neither Legal nor Smart, MOTHERBOARD (Dec. 11,

2013, 12:10 PM), http://motherboard.vice.com/blog/shooting-at-federal-drones-is-neither-legal-nor-smart.

167. Id.

168. Id.

169. Gregory S. McNeal, Thankfully, Shooting down a Drone Will Land You in Federal Prison, FORBES

(Dec. 10, 2013, 4:57 PM), http://www.forbes.com/sites/gregorymcneal/2013/12/10/thankfully-shooting-down-

a-drone-will-land-you-in-federal-prison/.

170. Id.

171. FAA Warns Colorado Town that Shooting down Drones Could Lead to Prosecution, supra note 15.

172. Id.

173. Ashley Codiannia, CNN Exclusive: Snapchat Interview with Senator Rand Paul, CNN,

http://www.cnn.com/2015/01/28/politics/rand-paul-snaphat-interview/ (last updated Jan. 28, 2015, 11:32 AM).

174. Interview with Jeff Bezos, CEO, Amazon.com, in New York, N.Y. (Dec. 1, 2013),

http://www.cbsnews.com/news/amazons-jeff-bezos-looks-to-the-future/.

175. Id.


questions and one that proves to be a serious concern. The question itself

illustrates the persistent American ideal that it is acceptable to take the law of

drones into our own hands.176

Between unclear guidelines and people in

positions of power supporting drone takedowns, Americans are left in limbo,

and certainly have and may continue to take the law into their own hands.177

As drones emerge into the airspace we cannot have such disparity. Creating a

norm that allows civilians to shoot down drones is dangerous for a number of

obvious reasons. Shooting into the air can cause stray bullets to hit airplanes

or animals. Furthermore, if people are shooting into the air in residential

neighborhoods people on the ground could be struck by stray bullets. Clearly,

the idea that it is acceptable to shoot at drones must be squashed quickly. The

American legal system prides itself on allowing its citizens to know right from

wrong before being convicted of a crime; however, if citizens do not know

what other options are available to them and there are no direct guidelines,

confusion and chaos will ensue.

The FAA focuses all of its attention on drone operation,178

but at some

point the FAA will also need to focus on the American public and make sure

the public and states are prepared to see drones on a regular basis.179

The more

Americans feel helpless, the more they will take the situation into their own

hands.180

E. Federal Preemption

State property law typically defines landowners’ rights.181

Therefore, the

states are ultimately responsible for clarifying the rights of landowners

regarding claims in trespass and nuisance. As evidenced in McCarran International Airport v. Sisolak, states can and will define property law with

great precision.182

The case involved overhead flights above Sisolak’s

property.183

The court found that Sisolak had rights in airspace up to 500 feet

and did not have to prove there were low and frequent overhead flights to

establish a regulatory per se taking.184

Rather, the Nevada Supreme Court

ruled that evidence that the airplanes flew lower than 500 feet above his

property was sufficient to prove a permanent physical invasion of his

airspace.185

This case shows the power vested in states to create their own

176. Doug Gross, Amazon’s Drone Delivery: How Would it Work?, CNN, http://www.cnn.com/2013/

12/02/tech/innovation/amazon-drones-questions/ (last visited Sept. 15, 2015).

177. Bruce Schneier, Is it OK to Shoot Down a Drone Over Your Backyard?, CNN,

http://www.cnn.com/2015/09/09/opinions/schneier-shoot-down-drones/ (last visited Sept. 15, 2015).

178. The focus thus far has been about creating rules about drone operations and creating test sites to

learn more about drone operation.

179. See Test Sites, supra note 58 (illustrating the FAA’s focus on drone technology at test sites, and

lack of focus on educating the American public).

180. See FAA Warns Colorado Town, supra note 15 (showing how citizens are ready and willing to

shoot down drones to protect their property).

181. See Sisolak, 137 P.3d 1110 (showing that states regulate property rights within the state).

182. Id.

183. Id.

184. Id.

185. Id.


property law rights.186

The FAA’s self-proclaimed ability to regulate all airspace, even below

500 feet, creates tension with the states’ abilities to create their own property

law.187

This brings up issues of federalism and begs the question to what

extent might federal regulations preempt state law? If the FAA set forth a

regulation authorizing drones to fly into private space,188

it needs to point to a

source of power that allows it to do so. While this federalism issue could itself

be the sole topic of another article, this note does not argue that the FAA

should enforce concrete regulations regarding airspace rights which may

potentially preempt state law. Rather, the FAA should create guidelines

regarding land use and airspace issues that have caused confusion in the past

and will surely cause more issues in the future—such as where private property

ends and national airspace begins. It is without doubt that the FAA controls

the national airspace, and so if states have a better understanding of where that

national airspace begins, they can draft informed legislation when deciding at

which altitude a claim of trespass is warranted.189

It is absolutely necessary for

the FAA to clearly define at what altitude national airspace begins. If national

airspace is below 500 feet then preemption of state law regarding property

rights will prove to be a major issue.

Overall, drone integration will be smoother if the FAA offers guidelines

and best practices as it releases regulations regarding drones. Furthermore,

states have not had the opportunity to test drones as the federal government

has.190

Therefore, the Federal government better understands whether

employing an altitude restriction on drone flights is necessary, and if so at what

altitude. If the FAA does the tough thinking in advance, states can simply

conform those guidelines to best fit within their current property law, which

will allow for quicker and more efficient integration of drones.

F. Drone Flights: A Government Taking?

The takings clause, part of the Fifth Amendment of the Consitution,

potentially limits the FAA’s ability to regulate drones.191

To begin a takings

analysis, an understanding of the state law is necessary.192

The first inquiry is,

what powers does state law give landowners to exclude drones from their

land?193

After this question is answered then we can understand how the FAA

regulation has interfered with state private property rights, “while property

186. Id.

187. 49 U.S.C. § 40103 (2012).

188. See generally Unmanned Aircraft Systems Frequently Asked Questions, supra note 47 (showing the

FAA understands the necessity of authority to enact such regulations).

189. See Gregory McNeal, The Federal Government Thinks Your Backyard is National Airspace and

Toys are Subject to FAA Regulations, FORBES, http://www.forbes.com/sites/gregorymcneal/2014/11/18/the-

federal-government-thinks-your-backyard-is-national-airspace-and-toys-are-subject-to-faa-regulations/ (last

visited Sept. 15, 2015) (indicating the FAA has the best knowledge of what constitutes national airspace).

190. Test Sites, supra note 58.

191. U.S. CONST. amend. V.

192. By understanding what powers state law gives property owners to exclude drones, it is easier to get

clear on how much the FAA has interfered with private rights.

193. Id.


may be regulated to a certain extent, if regulation goes too far it will be

recognized as a taking.”194

In a per se taking, the landowner is unable to use

the space in which the invasion is taking place.195

For example, in McCarran,

an ordinance restricted the landowner from building anything over eighty feet

and was held to be a takings per se.196

However, this per se test would likely

not apply in the circumstances of drones because it is not as if landowners are

permanently barred from using the airspace. Instead, the multi-factor Penn Central takings test would likely apply because it deals with takings that may

not alone create such a large loss so as to have a major economic effect on the

property or the landowner.197

The test takes into account whether a

government act expressly authorizes invasion into the private property.198

Thus, even if a drone flies over but does not dramatically affect the value or

use of the property, it may still qualify as a taking so long as the government

authorized the invasion into the private property.199

The Penn Central takings

test is a balancing of multiple factors;200

however, in the case where the FAA

allows drones to fly below 500 feet, the current minimum altitude designated

as national airspace,201

then a landowner may be able to argue a takings claim

and receive compensation for his loss.

IV. RECOMMENDATION

The main concern this note addresses is how private property owners will

be affected by the increasing popularity of drones. For decades, landowners

and airplanes have coexisted peacefully, and it is possible for drones and

landowners to coexist harmoniously as well. Drones can propel the world

forward and will be involved in everything from helping scientists learn about

global warming to delivering a package only a few hours after it was

ordered.202

Therefore, as with any new technology, as long as guidelines are

set, drones can be a giant leap forward in the world of technology.

First, the simplest action the FAA can take is merely to clarify what it

means to reasonably use airspace.203

This will immediately help landowners

understand if they have a reasonable action against a drone operator.

Reasonable use should include both present and reasonable future use. A

homeowner should not be able to argue they plan to build a twenty-five foot

tower in their backyard at some indeterminate time, and thus they own that

space. However, it is natural for landowners to have antennas on their property

194. Sisolak, 137 P.3d at 1121.

195. See id. at 1115 (stating the property owner could not build anything over eighty feet).

196. Id.

197. See Penn Cent. Transp. Co. v. City of N.Y.C., 438 U.S. 104, 124 (1978) (explaining the test is a

balancing of all the factors, and not just any one factor).

198. See id. (taking more likely to be found when characterized as a physical invasion by the

government).

199. Id.

200. Id.

201. Argent, 124 F.3d at 1279.


203. See Causby, 328 U.S. at 256 (stating a landowner owns as much air as he can reasonably use).


that reach above rooflines or any other objectively reasonable use that

complies with zoning requirements. Any drone operator that comes within this

reasonable use of airspace should be treated as a trespasser that the landowner

has a claim against.

However, airspace rights become too complex if “reasonable use”

becomes a legal term of art. Americans and courts need to be able to clearly

understand the regulations, and there must be as little ambiguity as possible.

Therefore, setting an altitude restriction is the best option. The FAA should set

a minimum altitude at which commercial drones can fly. This way the difficult

question posed in Causby, how much of the airspace do landowners own, does

not need to be contemplated.204

One thing is relatively well settled, anything

500 feet or above is in the public domain.205

Therefore, the rule must be that

drones cannot fly below at least 500 feet or some altitude that is proven to be

high enough that land users will generally not be bothered by the noise.

After setting the altitude restriction, the guideline must be strictly

enforced;206

however, as seen earlier, courts have different interpretations of

airspace rights and thus different ideas of when a claim is actionable.207

Therefore, by creating set guidelines about when airspace is considered public

domain and at what altitude a drone operator infringes on a person’s airspace

rights will help clear up the issue. This black and white rule is easy for

everyone to understand, and there is no ambiguity if somebody breaks the rule.

Yet, the FAA is currently traveling down an opposite path by limiting drones

to an altitude of 500 feet.208

It is unclear the exact reasoning behind the

altitude limitation; however, there are logical and obvious explanations—the

FAA does not want drones flying above that altitude so drone operators do not

interfere with aircrafts, and the FAA does not want drones out of the line of the

operator’s sight until concrete regulations and testing have been completed.209

Setting an altitude restriction allows landowners to understand when they can

successfully complain about drone use over their land. Eliminating the term or

clarifying the term “reasonable use” when it comes to how much airspace a

landowner uses is the most efficient way to start on a path to clear and

understandable rules.

Furthermore, the FAA needs to educate the public about the guidelines it

passes. What does 500 feet above a house look like? How can a person judge

500 feet merely using sight? If the FAA does not educate the public there are

bound to be frivolous complaints and lawsuits because people think the drone

is flying at an altitude lower than 500 feet. However, the definitive aspect of

an altitude restriction would likely decrease disputes between landowners and

drone operators on the issue of noise and disturbance, and also quell

Americans’ fears about privacy; the higher a civilian drone flies the less detail

204. Id.

205. Argent, 124 F.3d at 1281.

206. Id.

207. See DOLAN & THOMPSON, supra note 12 (outlining different interpretations of national airspace).


209. See generally id. (discussing the FAA’s proposed regulations on small drones).


it can see below.210

Since drones are potentially pervasive in every aspect of

society, utilized by everyone from major corporations to average civilians,

everybody is listening and waiting for regulations regarding drones.211

This

attention gives the FAA a tremendous opportunity to be heard and make

guidelines clear and understandable to the American public and state

legislatures.212

Hopefully, at altitudes of at least 500 feet, landowners would

not notice the noise produced by the drone, just as now airplane noise does not

seriously harm the average landowner’s use and enjoyment of their land.213

This altitude restriction is one of the simplest measures the FAA can take that

can be in place from the outset of drone regulation. Flying at a minimum

altitude should not hinder drone users and should be an easy rule to follow.

Second, states need to clarify the specific causes of action a landowner

may have against drone users if the landowner can no longer enjoy his land

due to the frequency of flights across the property. As noted above, it is very

hard to predict when a nuisance claim and trespass claim will succeed given

the unique ability of drones to fly at low altitudes without producing vibration

or dust yet still causing noise.214

Furthermore, regardless of state law, the FAA

can help resolve issues by setting up a separate department within the FAA to

deal solely with drone complaints. Assumedly, the most frequent and

consistent drone flights that would become bothersome to landowners are

those used by companies such as Google or Amazon. These drones will likely

be equipped with location and GPS devices, and therefore, the companies will

be able to keep track of their most frequent flight patterns.215

The FAA should

require commercial drone users to register these flight patterns with the

agency. This way, if a landowner feels as though a drone is flying overhead an

exorbitant amount of times per day he can contact this drone specific agency

and identify any registered drones frequently flying over the property. This

way the landowner can try to potentially work out a resolution directly with the

user before any legal action is taken. If commercial drone users do not comply

with this registration system and are caught, the FAA could fine them or exact

some other penalty.

However, registration is potentially not enough. Every aircraft has a GPS

device on board so that it can be tracked; it may be necessary for the FAA to

210. See generally Matt Burns, Parrot’s Newest Drone Packs a Serious Camera, Extreme Range,

TECHCRUNCH (May 11, 2014), http://techcrunch.com/2014/05/11/parrots-newest-drone-packs-a-serious-

camera-extreme-range/ (showing that even really good drones can only see landscapes and not detail at high

altitudes).

211. Ucilia Wang, The Good Drones: Industries Eagerly Await FAA Rules to Allow Them to Fly, THE

GUARDIAN (Nov. 26, 2014), http://www.theguardian.com/sustainable-business/2014/nov/26/drones-

quadcopoters-farms-drilling-utilities.

212. Id.

213. See generally Litwin, supra note 85 (noting that most nuisance cases involving noise from aircrafts

are brought by owners of property near airports).

214. See Alistair Barr & Greg Bensinger, Google is Testing Deliver Drone System, WALL ST. J. (Aug.

29, 2014, 4:04 AM), http://online.wsj.com/articles/google-reveals-delivery-drone-project-1409274480

(discussing that Google is testing drones at heights of just 130 feet).

215. See John Wenz, Amazon Wants a Special Sky Highway Just for Autonomous Drones, POPULAR

MECHS (July 28, 2015), http://www.popularmechanics.com/flight/drones/news/a16643/amazon-wants-its-own-

special-air-space-for-drones (discussing GPS aboard drones).


require such GPS systems on board drones as well so each drone can be

tracked, and flight paths can be detailed.216

Some commentators feel that

putting restrictions on drones before the first batch of commercial drones are

released into the skies is premature.217

Those people think it necessary to

encounter the problems before creating solutions to issues which may not

become issues at all.218

The problem with that view is that drones are proving

to be the next major movement, a movement as major as airplanes, and people

are nervous about the consequences drones may have and rightfully so.219

By

enacting rules and letting landowners know they will have causes of action if

drones overcome their land calms the publics’ fear and empowers them so they

do not feel like they will become a victim to drones. The drone movement is

too big to release into the wild without making sure that foreseeable problems

and gripes from Americans can be and are being addressed.

Third, the FAA needs to ensure landowners know whom to contact when

they have an issue with a drone. Each company that uses drones for

commercial purposes should have a department specifically set up for

answering questions and resolving complaints from citizens about that

company’s drone use. This will likely already be in place with companies like

Amazon.220

Since drones will be used as a delivery method, Amazon will keep

track of shipments via drones just as they keep track of shipments via truck

carriers.221

The FAA also has to make clear that the company may have to

change flight paths or fly higher if a landowner has solid claims against that

company. At least for a while, the FAA, states, and companies who use drones

should create a specific department to resolve drone issues until drones become

as mainstream as airplanes. One thing is for sure, as with everything, when a

new product hits the market there are bound to be lots of kinks to work out in

the beginning. Many of the airplane nuisance claims came in the 1930s and

1940s when airports and aircraft flying became a mainstay,222

and it is likely

that many lawsuits surrounding drones will also be concentrated around the

date they are cleared to take off into the national airspace.

Fourth, while many of the above recommendations may work to police

commercial drone use it is much more difficult to monitor personal drone use.

However, the FAA could create a set of guidelines where every non-

commercial drone user needs to register their drone within their specific state.

In exchange for registering the drone operator receives a sticker with a specific

216. How Do You Track a Plane?, BBC (Mar. 17, 2014), http://www.bbc.com/news/world-asia-pacific-

26544554.

217. Michael Berry & Nabiha Syed, Legislators Shouldn’t Rush to Enact Laws on Private Drone Use,

WASH. POST (Sept. 26, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/26/

legislators-shouldnt-rush-to-enact-laws-on-private-drone-use/.

218. Id.

219. See Nick Logan, Drones: The Good, the Bad and the Ugly, GLOBAL NEWS (Dec. 2, 2013),

http://globalnews.ca/news/1003851/drones-the-good-the-bad-and-the-ugly (discussing the good and bad

consequences of broad drone use).

220. See 13 Jobs Match Your Search (Sept. 14, 2015) https://www.amazon.jobs/results? (showing

current job listings in Amazon’s Prime Air department).

221. Interview with Jeff Bezos, supra note 174.

222. E.g., Causby, 328 U.S. at 256; Delta Air Corp., 20 S.E.2d at 245 (showing lawsuits involving

airplanes in the 1930s and 1940s).


number on it, akin to license plates, which the operator needs to attach to the

bottom of the drone so that it is visible to a person from ground level. If a

drone is flying so low that it is causing issues for a landowner, then it should

be low enough that the property owner can read the number. The property

owner can then look up that number and find whom the drone is registered to.

Again, a separate drone department can field complaints regarding personal

drone usage, but ultimately states would be the final arbitrator. If a person is

caught flying without this sticker, for example, if the drone crashes into

another’s drone or someone’s property and the drone operator is turned into the

state for not complying with the registration, then she will be fined, just as if

someone were driving a car without insurance.

Finally, one of the most involved plans that has been advocated for is

offered by urban designer Mitchell Sipus.223

As an urban designer, he wants to

ensure that drones do not takeover American airspace leaving landowners in a

world of whizzing aircrafts.224

He suggests that the FAA create different

flying zones; he calls it a parallel between “traffic law and drone law.”225

For

example, in wide open spaces drones should be allowed to fly at lower

altitudes and at faster speeds.226

However, where there are clusters of homes,

drones should fly slower and at higher altitudes.227

It is a sort of traffic system

for drones.228

The basic logic is you can go fast on the autobahn, but you need

to slow down in neighborhoods. Essentially the plan begins by taking an aerial

map of the area and cutting up the sky into four zones; green, yellow, orange,

and red.229

The green zones are open areas where there are not many people,

and it is safe to fly.230

Yellow and orange areas are areas where there are

clusters of buildings.231

Yellow areas are spaces which may be okay to fly

during the night, but restricted during the day (i.e. housing subdivisions).232

Orange areas denote that flying during the day is okay but at night it is not

(e.g., an observatory with a telescope which drones may interfere with at

night).233

Red zones are areas where there are large clusters of people.234

Allowing drones to only fly over homes at night would take care of the issue of

people not being able to enjoy the outdoors during the day.235

Sipus imagines

a world where drones can have sensors so they know when they are entering a

red or yellow area and can automatically divert its course.236

223. Kelsey D. Atherton, The Future of Urban Planning: Zoning for Drones, POPULAR SCI (Aug. 22,

2014), http://www.popsci.com/article/technology/future-urban-planning-zoning-drones.

224. Id.

225. Id.

226. Id.

227. Id.

228. Id.

229. Id.

230. Id.

231. Id.

232. Id.

233. Id.

234. Id.

235. Kirsten King, Drone Zoning: Urban Planning and the Future for Drones, DRONELIFE.COM (Sept. 3,

2014), http://dronelife.com/2014/09/03/drone-zoning-urban-planning-future-drones.

236. Evan Rawn, The Three-Dimensional City: How Drones Will Impact the Future Urban Landscape,


It would surely take municipal governments’ time and money to establish

these zoning airspace laws, but if they are willing to invest time and money, it

could create a safe highway in the sky. Sipus points out that there was once a

time when cars were new, and pedestrians were both skeptical and scared of

automobiles.237

At first, people sped around unsafely, but eventually, traffic

lights and laws were put into place; this is exactly what Sipus intends.238

These drone traffic laws do not necessarily have to be in place at the same time

drones are cleared for takeoff. The FAA can choose to allow drones to be

flown with regulations it passes and take more time to create airspace traffic

laws so that it is done correctly. Moreover, if the FAA does not want to

implement airspace zoning, individual states can choose to limit drone use via

this type of regulation. Not everything can get done at once, and it is important

to realize that regulations and safety guidelines can continue to be improved

upon even after drones are released into the sky.

Ultimately, whatever guidelines the FAA passes, it is extremely important

the FAA makes them known to the world. Since the market for drones is so

vast and the skepticism about drones is so prevalent it will be important to

deliver the guidelines in an understandable, universal manner so that everyone

from the Amazon CEO to average Joe has a grasp of what will be expected of

his use of drones.

V. CONCLUSION

Drones have the potential to propel the world forward. Drones can be

used for research, faster delivery, etc.239

Drones can and should be integrated

into the national airspace system as this new technology has the ability to teach

us many new things. Of course, drones can and probably will have negative

effects as well. However, the fear of negative effects on people and property

should not stop society from integrating these sophisticated devices into the

world. There can be resolutions and guidelines put into action to ensure that

drones and property owners happily coexist. The FAA must foresee the

problems of land use that will arise and ward those issues off before they

become a problem. The FAA and the American public need to work together

in order for there to be a seamless integration of drones. As long as the FAA is

aware of America’s fears, communicates with the American public about the

regulations that will be passed, and Americans relay their objections, a

cohesive plan can be formed.

Although privacy issues have been the main focus of drone integration

thus far,240

the FAA needs to be sure to take an all-encompassing look at the

issues that may arise, privacy being one of them but land use being another.

The FAA needs to have rules set in place at the outset of its drone regulations

ARCHDAILY (Jan. 1, 2015), http://www.archdaily.com/583398/the-three-dimensional-city-how-drones-will-

impact-the-future-urban-landscape.

237. Atherton, supra note 224.

238. Id.


240. Drones Take Over, supra note 8.


so that the rules become commonplace and drone users know from the

beginning they are to respect landowners and their property. A world where

drones buzz around and landowners enjoy the benefits of those drones without

feeling any negative consequences is an attainable goal. There are a number of

ways to clarify regulations and resolve land use issues. Landowners and

airplanes learned to exist together and so too can drones and landowners. The

fact the FAA keeps missing deadlines for drone regulation proves how difficult

drone integration is.241

However, there is no doubt more regulations are on the

way and drones will be used by civilians and corporations.242

As with every

other major technological advance there are fears and controversy, but it is just

as important to remember that the world cannot keep moving forward without

this technology. If the FAA deals with the issues at the outset of this mass

movement there is no doubt that drones can become an integral part of

American society. The reality is, drones are the way of the very near future

and society must embrace them.

241. Howell, supra note 1.
