The Uniform Law Commission (ULC) is in the process of drafting a model law to clarify what constitutes trespass by unmanned aircraft systems (UAS) – often referred to as “drones” – above a landowner’s property. The ULC warns that the existing law is antiquated and fails to protect landowners. The aerial trespass doctrine was created before the emergence of drones and relies on FAA regulations originally built in the context of large, manned aircraft. Thus, existing law “no longer makes sense in an era in which drones already number in the millions and operate closer to the ground than manned aircraft have traditionally operated,” the draft reads.
The Supreme Court established in U.S. v. Causby that a landowner must have control of the “immediate reaches” of the land but left unanswered where exactly one’s property rights exist. The ULC notes that drones typically operate 200 to 400 feet off the ground, and while it’s unlikely that a landowner physically occupies the airspace 200 feet above the land or structure on the property in question, it remains unclear whether a drone flying below 200 feet intrudes into those “immediate reaches.”
Further, Causby did not specify whether relief was to be granted on a nuisance theory (substantial interference with use and enjoyment of the land) or a trespass theory (invasion of airspace). The ULC says courts have misread Causby to mean aerial trespass is actionable on the nuisance theory, which requires harm, rather than traditional trespass to land, which only requires intentional entry.
ULC’s proposed strict liability aerial trespass legislation reads, in relevant
SECTION 301. PER SE AERIAL TRESPASS.
A person operating an unmanned aircraft is liable to a land owner or lessee for per se aerial trespass, when the person, without consent, intentionally causes the unmanned aircraft to enter into the airspace below  feet above the surface of land or below  feet above improvements built upon the surface of land.”
The FAA regulates the operation of small UAS under 14 CFR part 107, which provides that small UAS “may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle.” In addition, the Code provides the following operating restrictions:
Summary of FAA Operational Limitations for Small UAS:
The FAA issued a press release on July 20, 2018 stating it has “exclusive authority” to regulate aviation safety, while cities and municipalities are not permitted to have their own regulations, including governing the navigable airspace. The FAA added “the Department of Transportation’s UAS Integration Pilot Program (IPP), directed by the President, will provide the FAA with insight on how to best involve local jurisdictions in the integration of UAS into the airspace.”
The ULC drafting committee tackling the regulation of UAS is about mid-way through legislative drafting process. A first draft of the proposed legislation was read at the Uniform Law Commissions Annual Conference earlier this month in Louisville, Kentucky. The drafting committee will likely spend at least another year to continue to draft uniform legislation that will be read again before the ULC commissions next July in Anchorage, Alaska.
For almost 20 years Kim Lowe has lawyered from the trenches. Kim lawyers from experience, using her knowledge of the law and understanding of how both for-profit and nonprofit business enterprises operate.
Lindsey LaBelle is a 3L at the University of St. Thomas School of Law and joined Avisen as a law clerk in June 2018. Lindsey received her B.A. in Journalism and Mass Communication from University of Wisconsin-Madison.