On May 25, 2017 (coincidentally my Birthday), S.1272 – Drone Federalism Act of 2017 was introduced in the Senate for Consideration. It would amend Section 336 of the FAA Modernization and Reform Act of 2012 and return to the states certain powers that have been claimed by the FAA. I’ve bolded/italized the most pertinent changes proposed by the bill.
This is certainly controversial, and I’d love to get feedback. Email it to me at firstname.lastname@example.org. This will be a subject of discussion at my Drone Law class at George Mason Law this week, so I’ll update with thoughts from my students!
I am also linking to an article written by two gentlemen from the Heritage Foundation, of which I am a fan. Entitled “Drones Are About to Revolutionize Our World. This Bill Will Let America Lead the Drone Economy,” and written by Jason Snead and John-Michael Seibler, it supports the return of recognized police powers to the states (the cover photo for this post is a great shot from their article and credited to iStock Photos).
- I, unlike many drone enthusiasts that I follow, am generally supportive of this bill. I am suspicious of the motives of Senators Feinstein and Blumenthal, who I’m surprised are willing to return any power to the states, but am encouraged by the strong Republican support too. (I was just in a Senator Lee’s home state)
Section 2(b)(1) is the most important aspects of the bill. It would allow states to “to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.” Section 2(b)(2) goes on to state that reasonable restrictions include “… (E) Prohibitions on careless or reckless operations. (F) Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.”
It’s a great start, but I think we still need to work on the language of (E) and (F), which are very broad. While states should be allowed to experiment, hopefully we’ll get some better industry feedback on how to address these two sections. Of most concern is that both the FAA and states deal with reckless operations and while (F) is laudable in theory, the bill should explicitly provide protections for operations. Otherwise, states could use (F) to issue virtual blanket prohibitions.
Here is a little history regarding the legal theories on airspace. The bill seems to accept a theory between the “Ownership to a Fixed Height” theory and the “Possible Effective Possession” theory. What isn’t accounted for is the differences between rural, suburban, and urban areas. The 200’ rule is a bit too rigid for nation-wide application.
Historically, there have been six Separate Approaches Airspace Ownership, as adapted from an outline for a class I taught (my apologies for the formatting, I’m still figuring out the outline feature in WordPress):
- Absolute Ownership Theory
- Lord Coke’s old ad coelum maxim – owner of the land owns the airspace above it without limit.
- Most threatening to the aviation industry – never adopted by any court as applied to aviation cases.
- Public Easement Theory
- Owner owns the airspace above his property, but it is subject to a public easement to aviation traffic.
- Flight over the property is only actionable in the event the easement is misused (“unreasonable interference”)
- Privilege of Flight Tort Theory
- Tort based theory – 2nd modification of the ad coelum rule (differs from 2 in legal theory only)
- The land owner is once again recognized as the owner of all the airspace above his property.
- When an aircraft traverses his property, a trespass has occurred, but this trespass is privileged.
- The privilege acts as a defense to the claim of trespass.
- The property owner will only prevail when it is found that the privilege was abused or exceeded.
- Ownership to a Fixed Height Theory
- This theory is the first of two variations of the “zone” concept.
- The extent of a landowner’s property rights to airspace is strictly defined by a horizontal boundary, which divides airspace into property “zones.”
- All air space above the boundary, a fixed altitude above ground level, is public property.
- All airspace below the boundary is the property of the landowner.
- This boundary is usually defined by proponents of this theory as the altitudes designated by Congress as “navigable airspace.”
- Possible Effective Possession Theory
- Under this approach, a landowner’s airspace property rights are limited to a fixed height of effective possession. This height depends on the nature of the land and its possible uses.
- For example, this height limit would not allow for the building of the Empire State Building in the middle of a Kansas wheat field.
- A very effective argument could be made, however, for fixing this height limit to allow for the construction of a grain silo or similar structures that are common to that type of land.
- This twist on the “zone” concept forces the court to determine just where the property rights boundary exists in each case.
- Once this is done, the application of this theory is identical to that of the “Ownership to a Fixed Height Theory.” All airspace above the possible effective possession of the landowner is public property to which the owner can claim no legal right.
- No Ownership Theory
- The most pro-aviation of the six, highly criticized
- Provides the landowner rights to only that airspace which is actually occupied.
- An overflight is compensable only when actual physical damage to the underlying property has occurred regardless of the altitude flown.
- United States v. Causby (the Seminal S. Ct. case on airspace, although more have followed)
- Factual Background
- In 1942, a sleepy, municipal airport near Greensboro, North Carolina, was leased to the federal government à large military aircraft
- Causby’s chicken farm was less than 800 yards from the end of the runway.
- Large, four motored bombers frequently passed at tree top level over the Causby’s land in considerable numbers (glide path 83 feet up)
- Chicken business ruined, lost sleep
- The Court of Claims found that there had been a taking for which the Causbys were entitled compensation.
- The court then concluded that an easement worth $2,000 had been taken, but made no finding as to the specific nature of the easement or its duration.
- Supreme Court granted certiorari in order to determine if the Causby’s property had been taken within the meaning of the Fifth Amendment.
- The Court’s Rationale
- Justice Douglas – Majority opinion
- Quickly dismissed Lord Coke’s ad coelum doctrine as inappropriate to aviation overflight cases.
- Also dismissed the Hinman idea that the landowner had no property interest in airspace
- New test to see if taking (inverse condemnation) occurred
- The Court concluded that a property owner owned the “superadjacent” airspace above his property, and an invasion of this airspace should be treated as an actual invasion of the surface.
- Did not determine specific level for a taking
- Did say that a taking would not occur unless overflights were “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.”69
- Can infer that an interference with the enjoyment and use of the land occurs when the value of the property has diminished due to the over flights.
- At a minimum, the landowner owned as much airspace above the ground as could be occupied or used in connection with the land.
- Although the Court conceded that the definition of “property” is normally obtained by reference to local law, the Court seemed to consider its opinion as defining airspace property independently from any state definition.
- After determining that the Causbys in fact deserved compensation for an easement that had been taken over their property, the Court remanded the case to the Court of Claims for a determination of the nature of the easement.
- Analysis of the Decision
- The Court did not seem to embrace any of the six theories of airspace explained above
- Cited propositions from cases representative of nearly all of these theories.
- The ad coelum theory and the Hinman “no ownership” theory were certainly dismissed.
- The Court did not appear to rule out the “public easement” or “privileged trespass” theories
- North Carolina followed these theories, and the Court found them not inconsistent with the holding
- The Court’s lack of reference to the abuse of a preexisting privilege or easement, however, leaves these theories of little significance to the airspace as property discussion
- The Court did seem to adopt the “possible effective possession” theory as the absolute minimum protection to which the landowner was entitled.
- The Court also addressed the “fixed height” concept.
- Post-Causby decisions have, for the most part, completely misread the Supreme Court’s analysis.
- The court had separately stated in dicta that navigable airspace is defined as the “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority,” which at the time was 1,000 feet – a statement interpreted by later courts to mean that any flights below this specifically defined altitude would be a taking.
 See, e.g., Smith v. New England Aircraft Co., 270 Mass. 511, 170 N.E. 385 (1930); Burnham v. Beverly Airways, 311 Mass. 628, 42 N.E.2d 575 (1942).
 Hinman v. Pacific Air Transp., 84 F.2d at 755.
To preserve State, local, and tribal authorities and private property rights with respect to unmanned aircraft systems, and for other purposes.
IN THE SENATE OF THE UNITED STATES
May 25, 2017
Mrs. Feinstein (for herself, Mr. Lee, Mr. Blumenthal, and Mr. Cotton) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
To preserve State, local, and tribal authorities and private property rights with respect to unmanned aircraft systems, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Short title.
This Act may be cited as the “Drone Federalism Act of 2017”.
SEC. 2. Preservation of State, local, and tribal authorities with respect to unmanned aircraft systems.
(a) Scope of preemption for civil unmanned aircraft regulations.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall—
(1) define the scope of the preemptive effect of such regulations or standards pursuant to section 40103 or 41713 of title 49, United States Code, which shall be limited to the extent necessary to ensure the safety and efficiency of the national airspace system for interstate commerce; and
(2) preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments, including—
(A) protecting public safety;
(B) protecting personal privacy;
(C) protecting property rights;
(D) managing land use; and
(E) restricting nuisances and noise pollution.
(b) Reserved powers.—
(1) IN GENERAL.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.
(2) REASONABLE RESTRICTIONS.—For purposes of paragraph (1), reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system include the following:
(A) Limitations on speed.
(B) Prohibitions or limitations on operations in the vicinity of schools, parks, roadways, bridges, or other public or private property.
(C) Restrictions on operations at certain times of the day or week or on specific occasions such as during parades or sporting events.
(D) Prohibitions on operations while the operator is under the influence of drugs or alcohol.
(E) Prohibitions on careless or reckless operations.
(F) Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.
SEC. 3. Preservation of private property rights.
(a) Affirmation of applicability of constitutional takings clause to Federal Aviation Administration regulations.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall not authorize the operation of a civil unmanned aircraft in the immediate reaches of the airspace above property without permission of the property owner.
(b) Affirmation of applicability of constitutional takings clause absent Federal Aviation Administration regulations.—Section 336(a) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note) is amended—
(1) in paragraph (4), by striking “; and” and inserting a semicolon;
(2) in paragraph (5), by striking the period at the end and inserting “; and”; and
(3) by adding at the end the following: “(6) when flown in the immediate reaches of the airspace above property (as defined in section 3(c) of the Drone Federalism Act of 2017), the operator has the permission of the property owner.”.
(c) Definition.—In this section, the term “immediate reaches of the airspace above property”, with respect to the operation of a civil unmanned aircraft system, includes—
(1) any area within 200 feet above the ground level of the property;
(2) any area within 200 feet above any structure on the property; and
(3) any area where operation of the aircraft system could interfere with the enjoyment or use of the property.
SEC. 4. Pilot program on Federal partnerships.
(a) In general.—Not later than one year after the date of the enactment of this Act, the Administrator shall enter into agreements with not more than 10 State, local, or tribal governments to establish pilot programs under which—
(1) the Administrator shall provide technical assistance to such governments in regulating the operation of civil unmanned aircraft systems, including through the use of the latest available technologies; and
(2) the Administrator and such governments shall coordinate efforts with respect to the enforcement of regulations relating to the operation of civil unmanned aircraft systems.
(b) Selection.—In selecting among State, local, and tribal governments for purposes of establishing pilot programs under subsection (a), the Administrator shall seek to enter into agreements with—
(1) governments that vary in their size and intended approach to regulation of civil unmanned aircraft systems; and
(2) not less than one State government, not less than one county government, not less than one city government, and not less than one tribal government.
(c) Unmanned aircraft systems traffic management system.—The Administrator shall coordinate with Administrator of the National Aeronautics and Space Administration to ensure that participants in pilot programs established under subsection (a) are consulted in the development of the unmanned aircraft systems traffic management system under subsection (a) section 2208 of the FAA Extension, Safety, and Security Act of 2016 (Public Law 114–190; 49 U.S.C. 40101 note) and the pilot program under subsection (b) of that section.
(d) Report required.—Not later than 2 years after establishing the pilot programs required by subsection (a), the Administrator shall submit to Congress, and make available to the public, a report identifying best practices for State, local, and tribal governments to regulate the operation of civil unmanned aircraft systems and to collaborate with the Federal Aviation Administration with respect to the regulation of such systems.
SEC. 5. Rule of construction.
Nothing in this Act shall be construed—
(1) to diminish or expand the preemptive effect of the authority of the Federal Aviation Administration with respect to manned aviation; or
(2) to affect the civil or criminal jurisdiction of—
(A) any Indian tribe relative to any State or local government; or
(B) any State or local government relative to any Indian tribe.
SEC. 6. Definitions.
In this Act:
(1) ADMINISTRATOR.—The term “Administrator” means the Administrator of the Federal Aviation Administration.
(2) CIVIL.—The term “civil”, with respect to an unmanned aircraft system, means that the unmanned aircraft is not a public aircraft (as defined in section 40102 of title 49, United States Code).
(3) INDIAN TRIBE.—The term “Indian tribe” has the meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
(4) LOCAL GOVERNMENT.—The term “local”, with respect to a government, means the government of a subdivision of a State.
(5) STATE.—The term “State” means each of the several States, the District of Columbia, and the territories and possessions of the United States.
(6) TRIBAL GOVERNMENT.—The term “tribal”, with respect to a government, means the governing body of an Indian tribe.
(7) UNMANNED AIRCRAFT; UNMANNED AIRCRAFT SYSTEM.—The terms “unmanned aircraft” and “unmanned aircraft system” have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).