The Future of Commercial Drone Operations Requires a Legal and Technological Mechanism that Enables and Quickly Facilitates Low-Altitude Flights Over Private Property
In 1946, the landmark case, United States v. Causby, 328 U.S. 256 (1946), the Supreme Court issued foundational guidance as to what extent private property owners actually own and may control airspace over their property.
In Causby, a farmer lived adjacent to an airport whereby U.S. military aircraft entered and departed at low-altitude over his property. While interference with the farmer’s property caused direct and indirect economic damage, the Court addressed the seminal issue as to property invasion, trespass and occupation by flying at low-altitude in airspace over their property. The Court stated that landowners have “exclusive control of the immediate reaches of the enveloping atmosphere,” and that “the landowner owns at least as much of the space above the ground as they can occupy or use in connection with the land.” The Court would further clarify that one need not physically occupy the airspace, in the form of building or structure to indeed own or have a connection to the land.
With what surely will constitute one of the most prescient insights concerning the confluence of technological innovation and the law, the Court stated some seventy-years ago, in all but contemporary vernacular that had yet to be manifestly conceived, that the non-voluntary construction of a low-altitude drone superhighway over private property would amount to an unconscionable taking of private property:
We would not doubt that if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land.
As the Court would go on to articulate, compelling low-altitude access and use of airspace over private property would be a of form of taking (i.e. without just compensation, low-altitude flight is a physical intrusion of private property in violation of the Fifth Amendment’s Due Process Takings Clause), that would subtract from the enjoyment, use and control of one’s property.
The reason is that there would be an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.
“We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.”
Land Use and Regulatory Takings of Private Property
Readdressing the specific issue of airspace ownership and control, the Court held in Griggs v. County of Allegheny (1962) that by directing low-altitude flight traffic over the petitioner’s property without consent or just compensation, the County’s actions had amounted to the taking of an avigation easement for which it had to compensate the property owner per the Fifth Amendment’s Takings Clause, as is pursuant to the states through the Fourteenth Amendment.
While contemporary land use, regulatory jurisprudence and takings law is in fact extensive, if not quixotic to the point of at times being contradictory,[i] Causby served a distinctive purpose, establishing the foundational nexus between airspace and private property interest. See footnote for a more comprehensive treatise and expansive overview on the subject matter, in Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York.[ii]
Therefore, the question as to when legislation or regulation amounts to a taking of private property is an issue as to the form (i.e. physical occupation, invasion or appropriation of property or a regulatory taking that deprives the owner of the economic use, enjoyment and benefit of the land) and extent of property interference.
Physical and Regulatory Takings
In Lingle v. Chevron (2005), the Supreme Court summarizes takings jurisprudence as a direct government appropriation or physical invasion of private property, either of which requires just compensation.[iii] Moreover, the Court states that regulatory takings can occur, even without physical occupation or appropriation of private property, if it deprives the owner of all economically beneficial use.[iv] While demonstrating that an owner has been deprived of “all” economic use may seem unnecessarily burdensome, it addresses non-possessory forms of property ownership (i.e. mineral rights interest or easement holders).
Lingle takes into consideration the previous findings of the Court in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002):
The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property.[v]
Therefore, Tahoe-Sierra and Lingle make a distinction between physical takings and regulatory takings, that impact economic use, even if not through physical occupation, invasion or appropriation.
New FAA Drone Regulations Fail to Address Essential Issues Necessary for Commercial Applications
The Federal Aviation Administration Extension, Safety, and Security Act of 2016 (“FAA Reauthorization”) became effective upon July 15, 2016.[vi] The FAA Reauthorization specifically addresses the issue of unmanned aerial system (“UAS” or “drones”) in no less than five sections. Moreover, the FAA Reauthorization follows the June 2016 release of the highly anticipated Part 107 by the FAA, concerning commercial drone operations.[vii] However, Part 107 neither facilitates nor creates many new commercial drone opportunities and serves primarily to acknowledge the existence of useful technology and its future applications. Functionally suppressive, Part 107 still prohibits the most essential technological capabilities necessary for practical commercial drone applications, particularly elements (1-7) below:
1. Beyond visual line of sight of the operator
2. Higher than 400 feet above ground level unless within 400 feet of a structure
3. Operation directly over people not involved in operating the UAS
4. A single individual operating multiple UAS
5. During nighttime hours
6. Aircraft over 55 pounds, including payload
7. Operation in weather conditions with less than three miles visibility
While Part 107 fails to address certain existing and mid-development technological capabilities, like autonomous or semi-autonomous drone flight, it does leave open the possibility for drone operations to request FAA approval for a waiver of certain elements of the above restrictions.
Line of Sight Limitations
The new regulations place a line of sight (“LOS”) restriction on commercial drone operations, precluding exclusively GPS-based, autonomous drone operations, meaning drone operators must maintain visual contact with their drone. However, while exclusive first-person view (“FPV”) operation, where operators control the flight based on a video-feed from the first person perspective and orientation of the drone was prohibited, as opposed to drone operations based on direct visual line of sight, Part 107 allows for a broad exemption for first-person view operations if the “see and avoid” safety requirement “is satisfied in other ways.” The “see and avoid” language, in combination with the ambiguous “other ways” elements to the exemption likely address the ongoing development of drone-to-air traffic control communication, traffic collision and obstacle avoidance systems.
However, for the purposes of commercial drone applications, in particular parcel delivery services, it will likely require a degree of autonomy greater than the current FPV exemption and modification to the LOS requirement, to allow in some capacity autonomous flight beyond-visual-line-of-sight (“BVLOS”) necessary to facilitate drone service operations of greater range and scale.
To the FAA’s credit, it is not simply aware of the practical limitations under the current regulatory framework, but has initiated programs to analyze Extended Visual Line of Sight (“EVLOS”) operations, the reliability of the existing technology and mitigation of potential safety concerns. These evaluative programs include, but are not limited to, the Pathfinder Initiative, coordination with NASA’s Unmanned Aircraft Systems (“UAS”) Traffic Management (“UTM”) National Campaign[viii] and partnership with various digital platforms to create the Low-Altitude Authorization and Notification Capability (“LAANC”) in an effort to streamline waiver authorization in controlled airspace.[ix]
FAA Regulation is Silent on the Issue of Low-Altitude Flight Over Private Property
The FAA’s receptiveness to the ongoing technological changes and potential benefits of commercial drone services to the economy, as well as its willingness to coordinate inter-agency governmental programs with NASA and private technology vendors is indeed most promising.
However, unless the FAA expects drones to exclusively operate over public property or within controlled airspace (i.e. higher altitudes), a technological and legal mechanism is necessary to swiftly enable and facilitate the consent of property owners for low-altitude flight over private property, short of an eminent domain action.
Instead of pursuing an eminent domain action, which unnecessarily thrusts public policy issues and likely litigation upon unsuspecting individuals, we propose a mechanism that both incentivizes participation of property owners (i.e. hosts), while providing an unrestrained potential to create dynamic flight paths for commercial drone service providers (i.e. as opposed to static flight routes) and the ability fly at low-altitude over private property without trespassing.
A mechanism to facilitate wide-scale Right-of-Way access, via granting of revocable avigation easements at low-altitudes is an essential, if not the most critical component to successfully scaling commercial drone services.
While the FAA has sovereign regulatory authority over all airspace in the U.S., it cannot compel (i.e. force) low-altitude access over private property without consent, short of an eminent domain or condemnation action which would require judicial participation and just compensation, as it would constitute a form of taking.[x] Moreover, as stated by the FAA, Air Traffic Control has no authority or responsibility to control air traffic in Class G airspace, which extends from the surface (i.e. ground) to the base of the overlying Class E airspace.[xi]
Therefore, without an efficient mechanism to enable and incentivize property owners to grant low-altitude Right-of-Way access to drone service providers, there is no practical way for commercial drone services to map dynamic flight routes and operate at low-altitude without trespassing.
An easement is a legally enforceable mechanism that enables the use of property by someone other than the property owner. Easements are commonly granted to public utilities and government agencies for uses that benefit the public good (i.e. railroad tracks and public streets). Easements can be temporary or permanent (i.e. “runs with the land”). Permanent easements thereby remain enforceable upon future transfer of property ownership to any succeeding property owners.
Compensation and the rights to use private property is typically negotiated on a case-by-case basis, between property owners and the easement seeking entity. However, when public agencies have the authority to seek an easement and are unable to negotiate compensation and terms of property use, they may attempt to acquire the easement through eminent domain in a legal proceeding called condemnation.
Airports frequently acquire avigation easements in the airspace over properties surrounding airports and airport development projects, as low-altitude flights, takeoffs and landings may include invasion, trespass and occupation of private property, therefore constituting a taking and/or interference with the property owner’s use and enjoyment of their property.
The AERO Foundation proposes the use of uniform Revocable Avigation Easements, which will provide a mechanism for property owners (i.e. hosts) to grant access to any qualified drone services providers within the AERO Network. This peer-to-blockchain instrument is a revocable and temporary agreement, enabling registered and qualifying drone service providers to access low-altitude airspace over host property in accordance to the terms prescribed by the avigation easement and the AERO Foundation.
AERO Token is an Ethereum-based blockchain technology that enables property owners (i.e. hosts) to grant temporary Right-of-Way easements to authorized drone service providers in exchange for income.
[i] See, Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 WM. & MARY BILL RTS. J. 679, 681 (2005). Kanner noted that: Penn Central lacks doctrinal clarity because of its outright refusal to formulate the elements of a regulatory taking cause of action, and because of its intellectual romp through the law of eminent domain that paid scant attention to preexisting legal doctrine. Its aftermath has become an economic paradise for specialized lawyers, a burden on the judiciary, as well as an indirect impediment to would-be home builders, and an economic disaster for would-be home buyers and for society at large.
[iii] Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)
[v] See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321–22 (2002)