The Uniform Law Commission (ULC) recently came up with a draft law relating to “aerial trespass” by low-altitude unmanned aircraft systems (UAS) and the need for additional regulation beyond Federal Aviation Administration (FAA) laws.

According to ULC, its draft “Tort Law Relating To Drones Act” claims that “existing law will fail to protect landowners and will fail to clearly define what conduct by drone operators is and is not acceptable.” ULC, as defined, is a nonprofit, state-supported association made up of lawyers tasked with creating “nonpartisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.”

The draft law says, “Landowners and lessees likely do not physically occupy the airspace 200 feet above their land or structures, and it is presently unclear whether an intrusion into this area would be found to be an entry into the immediate reaches of the landowner’s airspace.”

It adds, “Under existing aerial trespass doctrine, determining whether an aerial intrusion is an entry into the immediate reaches requires a fact-specific inquiry which has historically caused uncertainty and a lack of uniformity.”

In turn, ULC has proposed a “per se aerial trespass” doctrine, which is defined as follows:

“A person operating an unmanned aircraft is liable to a landowner or lessee for per se trespass when the person, without consent, intentionally causes the unmanned aircraft to enter into the airspace below 200 feet above the surface of land or below 200 feet above improvements built upon the surface of the land.”

Exclusions include, for example, “conduct protected by the First Amendment,” public safety efforts, or operations by employees/contractors with a “valid easement, right of way or license.”

The group, which, as of press time, is currently considering the draft during its annual meeting in Louisville, Ky., has received a number of comments, which have been publicly posted here.

The Commercial Drone Alliance (CDA), for one, opposes ULC’s creation of a per se aerial trespass doctrine.

“The committee has not articulated a compelling reason why a strict liability version of aerial trespass – as reflected by the committee’s newly created per se aerial
trespass doctrine – is necessary with respect to FAA-authorized operations of UAS,” CDA writes in its comments.

Notably, according to the alliance, the doctrine “removes the requirement with respect to aerial trespass that any UAS operation must have interfered substantially with the landowner’s use and enjoyment of the land.” In turn, this could lead to “an explosion of potential claims against UAS operators even when the UAS operations traversing the airspace above one’s property have absolutely no impact or interference on the landowner’s use and enjoyment of the land – e.g., even when the landowner is not present during the flyover.”

As an “overarching comment,” CDA notes that the draft act “does not appreciate the U.S. government’s exclusive role in regulating matters of aviation safety, nor does it consider that Congress has vested the Federal Aviation Administration with the authority to regulate the areas of airspace use, management and efficiency, air traffic control, and aircraft noise at its source, among other areas.”

On that note, the FAA and U.S. Department of Transportation (DOT) submitted input that makes it clear the agencies do not endorse the draft rule “or the logic that underlies it,” they said. Not long after, the FAA issued a press release clarifying federal authority over navigable airspace:

“State and local governments are not permitted to regulate any type of aircraft operations, such as flight paths or altitudes, or the navigable airspace,” the agency said. However, it clarified that laws “traditionally related to state and local police power – including land use, zoning, privacy and law enforcement operations – generally are not subject to federal regulation.”

Echoing this in another comment to ULC are several stakeholders in the UAS industry – including the Association for Unmanned Vehicle Systems International, BNSF Railway, Amazon, DJI, PrecisionHawk, Skyward, the Small UAV Coalition, Verizon and more – which state that the draft “interferes with the plenary authority of the FAA by adopting a new interpretation of aerial trespass doctrine in order to give property owners a right to establish no-fly zones prohibiting any unmanned aircraft from flying below 200 feet.”

“No-fly zones may only be established, however, by the federal government. State and local laws purporting to establish such zones (or giving property owners the right to do so) stand in direct conflict with federal regulation of air navigation, and thus are preempted by federal law,” they add.

On the other side, throwing support behind the proposal is Reggie Govan, former chief counsel of the FAA under the Obama administration, who is in favor of two specific concepts, according to his comments:

  • “The lawful right of state governments through the exercise of their police powers to adjudicate and protect important privacy and private-property rights implicated by low-altitude drone operations; and
  • The desirability of states acting in concert through the adoption of generally
    uniform statutes to prevent the enactment of the proverbial ‘patchwork’ of
    disparate rights and responsibilities, especially on matters affecting the
    commercialization of new technologies.”

Additionally, the Heritage Foundation, a conservative public policy think tank based out of D.C., says the “current aerial trespass doctrine was developed to address manned aviation and is ill-suited to drones.” Thus, the group has expressed its support for ULC’s draft law:

“The committee’s proposal is a thoughtful measure intended to support the development of the unmanned aircraft systems industry while respecting, among other important and fundamental rights, the traditional right of a property owner to exclude unwanted intruders from their property,” the foundation explains in its comments.

“The committee’s adoption of a bright line per se aerial trespass rule serves both interests and is a necessary and beneficial legal and policy development in response to the advent and proliferation of UAS in low-altitude airspace near homes and all other structures,” it adds.

3 COMMENTS

  1. Thanks for this article. I would suggest you should add the FAA’s comments accompanying part 107 that are cited by Mr. Govan. You should especially do so given the citations you make to a press release (likely in response to the Lee amendment, not ULC) which has no force of law. On the other hand, the comments cited by Mr. Govan, which come from the FAA and are published in the federal register accompanying a regulation are due deference from courts.

    It is also notable that the Heritage letter points out that industry participants suggested 0 feet as a trespass line, in other words land owners have no right to exclude a drone, whatsoever. Industry advocates taking those types of positions are destined to fail.

    • I agree Mr. Govan’s comments, linked above, are an excellent primer about the state of the law on aerial trespass.

      So long some extremists in the drone industry continue to press this irrational position that landowners should have no authority to prevent drones flights over their property, regardless of the altitude, these issues will never be settled and the rest of the drone industry will not have the certainty it needs to continue to develop and flourish.

  2. The ULC’s proposal obviously gets more specific than what I discussed in my recent Unmanned Aerial article ( https://unmanned-aerial.com/making-the-case-for-expanded-drone-regulation-authority) but is consistent with the overall legal scheme.

    The FAA and extremists in the drone industry need to stop pushing this notion that only the FAA can regulate drones and that landowners have no authority to prohibit drone flights over their property, as this position ignores a long line of Supreme Court precedents that start with Causby and greatly exaggerates the FAA’s current statutory and regulatory authority.

LEAVE A REPLY

Please enter your comment!
Please enter your name here