Airspace and Drone RegulationPosted on Nov 23, 2021
United States v. Causby qualified the concept of ad coelum—whoever owns the soil owns to the heavens and hell.Causby states, “[a] [l]andowner owns at least as much of the air space above the ground as he can occupy or use in connection with the land,” and an invasion into this airspace could deprive one of the use and enjoyment of one’s land. Thus, private aerial trespass suits became more likely to succeed under these conditions. Following Causby, a decade later, the United State Congress created the Federal Aviation Administration (FAA) to regulate the national airspace. Today, however, unmanned aircraft systems (“UAS,” or drones) also share the airspace, and as technology advances, it is likely that other technologies might also occupy airspace. Along with this technological evolution, however, has come state and federal regulation of drones. As companies, such as Amazon, move to incorporate drones in their delivery systems, the question of commercial drone usage over private property is salient.
For commercial purposes, the FAA requires adherence to its Part 107 Small UAS Rule, which includes registering the drone and passing the FAA’s Aeronautical Knowledge Test to obtain a remote pilot certificate. However, in 2021, the FAA enacted the Operation of Unmanned Aircraft Systems Over People final rule, which allows drones weighing less then fifty-five pounds to operate at night or over people under certain conditions, without the need for a waiver. This move highlights the FAA’s likely move towards creating more expansive yet flexible uniform rules for drones, especially since “the FAA anticipates an increased demand for flexibility in small UAS operations.”
While the FAA does not address aerial trespass over private property, in the meantime, many states and cities have created their own legislation regarding trespass that supplements the FAA’s rules. A Nevada law, for example, states that a property owner in the state can bring an action for trespass against an owner or operator of a drone under certain conditions if flown below 250 feet over the property. Similarly, the Borough of Franklin Lakes, New Jersey prohibits drones from operating in airspace below 400 feet over private property without prior consent from the property owner. Oregon prohibits flying drones over private property if they intentionally or recklessly harass or annoy the owner or tenant of the property, and Utah prohibits drone use over private property when any portion of the property is not open to the public, and the person operating the drone is not authorized to fly over the property. The city of Rancho Palos Verde, California prohibits drone takeoff and landing on private property without the consent of the property owner, and New York City prohibits flying drones in general. While federal laws would supersede these state and city legislation, the courts have begun ruling on drones and aerial trespass issues.
In 2021, the Michigan Court of Appeals in Long Lake Twp. v. Maxon, held that landowners remain entitled to some airspace above their properties, and any intrusions would constitute trespass; likewise, flying drones at legal altitudes over another’s property without warrant or permission would reasonably constitute trespass. This is significant since commercial drones may need to access private property to deliver packages and accessibly reach other properties. Under tort law, “[f]light by aircraft in the air space above the land of another is a trespass if, but only if: (a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other’s use and enjoyment of his land.” While prong (b) may be contested, it is not unfathomable that individuals may allege that drones are crossing through their properties multiple times a day, which would parallel Causby in that company use of drones may be “so low and so frequent as to be direct and immediate interference with the enjoyment and use of land.” Thus, commercial drones may be halted before most even begin to fly.
On the other hand, if other courts of appeals or circuit courts disagree with Michigan and do not classify drones as trespassing on private property, a Fifth Amendment challenge may arise. Thus, homeowners may allege that courts are taking away their right to exclude and not enforcing state trespass law, especially in those instances where states and cities have enacted their own conflicting legislation specifically regarding drones. While this Fifth Amendment judicial taking of property for public use, that is use by the public at large and commercial companies, is a federal question, the Court of Claims will reference local law. Given state trespass laws differ, this may lead to different outcomes, and companies may be limited to drone delivery in certain areas.
Although drones could provide quick deliveries, judicial challenges to airspace access may arise via individual or class action aerial trespass suits or a Fifth Amendment Takings challenge. This would lead to costly litigation and inconsistent delivery systems.
 United States v. Causby, 328 U.S. 256, 264–266 (1946).
 49 U.S.C. § 106.
 Amazon Prime Air, Amazon (2016), https://www.amazon.com/Amazon-Prime-Air/b?ie=UTF8&node=8037720011.
 14 C.F.R. § 107.13; 14 C.F.R. § 107.61.
 84 Fed .Reg. § 3856.
 Fed. Aviation Admin. (FAA), Operations Over People General Overview (2021).
 Nev. Rev. Stat. Ann. § 493.103 (2015).
 Bor. of Franklin Lakes, N.J., Ordinance § 137-3 (2016).
 Or. Enrolled House Bill 3047 (HB 3047-B); Utah Crim. Code § 206 (2017).
 Rancho Palos Verdes, Cal., Use of Drones in City of Rancho Palos Verdes, https://www.rpvca.gov/1319/Drones (last visited Nov. 14, 2021).; New York City, N.Y., Admin. Code § 10-126 (city restrictions make it illegal to fly drones in New York City).
 Long Lake Twp. v. Maxon, No. 349230, 2021 WL 1047366, at *7 (Mich. Ct. App. Mar. 18, 2021)
 Restatement (Second) of Torts § 159(2) (Am. L. Inst. 1965)
 Causby, 328 U.S. at 267.
 Id. at 266.