Who owns the airspace? - July/Aug 2014
Recently Congress asked the Federal Aeronautics Administration (FAA) to promulgate some rules that would deal with unmanned aerial aircraft or as most of us call them “drones.” This issue has been on the FAA’s plate for a number of years. The ability to come up with a workable answer of how to regulate them may be the big reason for the delay.
The big issue comes down to who owns the airspace. Common law has held that a surface owner owns below the property to the center of the earth and above the property to the heavens. This common law process worked well until Wilbur and Orville Wright came along with a vehicle that could travel through the airspace from one point to another. Naturally, as aircraft become more powerful and better designed, the ability to fly over not just one property owner’s land but many hundreds started to create issues with trespassing on private individual’s airspace.
In order to accommodate the new technology, Congress passed legislation that in essence declared the air space above a certain height to be public. By doing so, they allowed vehicles that traveled through those air spaces the ability to avoid having to obtain permission from the many landowners that the aircraft traversed over. The law also required that anyone operating within those air spaces were regulated.
Of course from a practical standpoint Congress did not feel they should regulate from the ground up, but just that level above the ground where it was safe to operate an aircraft. The set upon height for this was generally 500 feet above the ground with exceptions being made for landing fields and such. It was unreasonable for someone who wanted to build a structure on his land to have to get permission from a federal agency prior to the construction of that structure. Of course that was then and this is now.
The confusion now entering into the equation is the advent of affordable drones. Affordable drones can allow someone with a little money and some basic remote control abilities to fly aircraft without the need to own an expensive machine and also learn how to safely operate that machine. This new ability for people to afford and fly these machines has reopened the question of who owns the airspace as well as who regulates what flies in those spaces. Congress again weighed in on this debate with the FAA Modernization and Reform Act of 2012. The Act exempts model aircraft used for hobby or recreational purposes but left aircraft utilized for commercial purposes untouched.
Currently there are proposals on the drawing board for the FAA to regulate everything above the ground as part of this process of addressing who and how drones should be flown. How serious those proposals are will only be revealed when a rule is published. However, the end result could in essence be similar to what EPA is trying to do with their new “waters of the US” rule, in that by saying everything is public airspace above the ground and therefore subject to regulation by the FAA, then everyone would have to comply with their rules.
Of course this also means that the ownership of the air space allotted by common law to the landowner will now belong to the public. I also trust that should these rules go forward, there will not be any proposals to compensate individuals for the public taking that will occur.
While most landowners concern themselves with entities like the EPA, Corp of Engineers, USDA and Department of Interior, it would appear that we will also need to watch carefully what the FAA is going to propose and see how much of their proposal will affect private property.
By Ken Hamilton, Wyoming Farm Bureau Federation Executive Vice President