Over 100 years ago manned aviation revolutionized transportation. However, it is less well-known that it also sparked a big change in property rights.

In the 1946 Supreme Court case, United States v. Causby, the court determined that although historically owning land was thought to convey a property right “to the periphery of the universe,” this concept had “no place in the modern world.” That is, Congress recognized that as far back as the Air Commerce Act of 1926, “navigable airspace” (i.e. the airspace above minimum safe altitudes) had to be subject to a “public right of freedom of foreign and interstate air navigation.” This resulted in the idea that “the air is a public highway” from the Causby court.

Now, with the rise of unmanned aerial systems (UAS or drones), the well-settled concept of navigable airspace as a public good and air navigation as a federal right are facing scrutiny. UAS are unique (and vastly different from manned aircraft) because they fly low, in the interstitial spaces. UAS can operate almost anywhere; this means that UAS have expanded the safe altitude for flight dramatically. Under Federal Aviation Administration (FAA) rules for the operation of UAS, UAS are authorized to fly below 400 feet (and above, with the appropriate FAA waiver).

Now, the Uniform Law Commission (ULC), a publicly funded organization with state-appointed members from around the country that encourage uniform state-law approaches to all sorts of issues, has established a committee for drafting tort laws relating to drones. The committee’s draft proposal would restrict drone operations by allowing property owners a right to exclude all drones from the airspace up to 200 feeton above any structure or the ground. Essentially, drones would be restricted from flying below 200 feet without express individual permission from the landowner, establishing a “per se” trespass tort law. The act of the flight itself would be an injury that could lead to a lawsuit against the drone operator without any actually physical injury caused.

There is a practical problem with this proposal –it would cut the usable airspace in half. That is, the FAA allows UAS operations below 400 feet (and in accordance with Part 107 UAS regulations), but a 200-foot minimum altitude may be a bit unworkable because it would be hard to negotiate a right of transit in that limited space. Additionally, because the FAA has authority to regulate navigable airspace, it would seem that state law restricting drone flights to above 200 feet, FAA regulations would preempt state law. Of course, this issue of preemption has been debated when it comes to drones as well lately because of the FAA’s push to get states and state law enforcement involved in the regulation of these devices.

We will follow this ULC draft as it progresses; for now, many in the drone industry turn to Causby and believe that the idea that property owners have the right to exclude drones flying above their property simply “has no place in the modern world.”

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