Look at Land Use Issues That Will Arise With Integration of Drone Technologies

A HIGHWAY IN THE SKY:
A LOOK AT LAND USE ISSUES THAT

WILL ARISE WITH THE INTEGRATION OF
DRONE TECHNOLOGY
Michelle Bolos
TABLE OF CONTENTS
I. Introduction ......................................................................................... 411
II. Background ......................................................................................... 413
III. Analysis ............................................................................................... 417
A. How Low Will the FAA Go? ...................................................... 417
B. Private Nuisance Claims.............................................................. 421
C. Trespass Claims ........................................................................... 424
D. Self Help ...................................................................................... 426
E. Federal Preemption ...................................................................... 427
F. Drone Flights: A Government Taking? ....................................... 428
IV. Recommendation ................................................................................ 429
V. Conclusion .......................................................................................... 434
I. INTRODUCTION
The sky as we know it is about to change. There will be a projected 7,500
commercial drones in U.S. airspace within the next five years.1 The drone
industry “will create more than 100,000 jobs and generate more than eighty-
two billion [dollars]” over the next decade.2 Drones will be utilized in almost
every field. Civilians will utilize drones to take pictures,3 Amazon intends to
deliver packages via delivery drones,4 scientists want to use drones to analyze
crops,5 real estate agents will utilize drones to survey land,6 and police expect
 J.D. 2016 University of Illinois College of Law. Thank you to everyone who helped edit and
prepare this note for publication. Go Illini!
1. Kellan Howell, Invasion: 7,500 Drones in U.S. Airspace Within 5 Years, FAA Warns, WASH. TIMES
(Nov. 7, 2013), http://www.washingtontimes.com/news/2013/nov/7/faa-chief-announces-progress-drone-regs/.
2. Id.
3. Joseph Serna, As Hobby Drone Use Increases, So Do Concerns About Privacy, Security, L.A.
TIMES (June 21, 2014, 4:58 PM), http://www.latimes.com/local/la-me-drone-hobbyist-20140622-story.html.
4. Amazon Prime Air, AMAZON, http://www.amazon.com/b?node=8037720011 (last visited Sept. 15,
2015).
5. Drones for Agricultural Crop Surveillance, PRECISION DRONE, http://precisiondrone.com/drones-
411
412 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015
to use drones to deter criminals and patrol neighborhoods.7

To date, there has been controversy surrounding drone use.8 Privacy
issues have been the major focus of drone integration thus far.9 Drones are
able to record surveillance footage of people on their property or in their
homes, and most Americans feel threatened by this capability.10 Undoubtedly
this is a major issue that needs resolution before drones can be a mainstay in
American society; however, it is not the only issue that needs to be addressed.
Drones will force lawmakers and citizens to take a hard look at land use
issues. Drones, unlike airplanes, fly at lower altitudes.11 How will these low
altitude aircrafts affect real property? The homeowner enjoying a peaceful
afternoon on his back porch will be interrupted when there is a constant hum of
drones flying over his property at low altitudes. Drones are going to force the
general public to face difficult questions about who owns the air above the
ground and what can be done to integrate drones into the airspace without
interfering with landowner rights.12 It is important to look at how privately
owned drones, utilized for commercial and civilian purposes, will affect
airspace rights.13 In order to successfully integrate drones into the national
airspace these potential issues need to be anticipated and resolved. Drones
should not limit landowner’s control over their land. It is imperative that
landowners have tools to defend their land against drones when unmanned
aircrafts interfere with the enjoyment of their land.
This note begins with a brief history about drones and the Federal
Aviation Administration (FAA). Further, it will argue that there needs to be
some legal recourse for landowners as drones are integrated into national
airspace, and the FAA needs to set clear guidelines regarding what rights
landowners will have against drones. First, landowners need to have control
over at least some part of the airspace above their property. Second, given the
small size of drones, private nuisance and trespass claims will be hard to
for-agriculture.html (last visited Sept. 15, 2015).

6. Robert Freedman, Drones in Real Estate: Not So Fast, REALTORMAG (Mar. 2014),
http://realtormag.realtor.org/law-and-ethics/briefs/article/2014/03/drones-in-real-estate-not-so-fast.
7. Law Enforcement Agencies Using Drones List, Map, GOVERNING (2013),
http://www.governing.com/gov-data/safety-justice/drones-state-local-law-enforcement-agencies-license-
list.html.
8. See generally Drones Take Over, CBS NEWS, http://www.cbsnews.com/drones/ (last visited Sept.
15, 2015) (discussing different types of drone controversies).
9. See generally Hillary B. Farber, Article: Eyes in the Sky: Constitutional and Regulatory Approaches
to Domestic Drone Deployment, 64 SYRACUSE L. REV. 1, 18 (2014) (discussing the privacy concerns
surrounding drones).
10. See Ethan Rosenberg, Poll: Americans Against Warrantless Drone Use, U.S. NEWS & WORLD REP.
(Aug. 16, 2013, 2:36 PM), http://www.usnews.com/news/newsgram/articles/2013/08/16/poll-americans-
against-warrantless-drone-use (illustrating that Americans would feel threatened if law enforcement were
using drones as a surveillance mechanism).
11. See Alistair Barr & Greg Bensinger, Google is Testing Delivery Drone System, WALL ST. J. (Aug.
29, 2014, 4:04 AM), http://online.wsj.com/articles/google-reveals-delivery-drone-project-1409274480
(discussing the fact that Google is testing drones at heights of just 130 feet).
12. See ALISSA M. DOLAN & RICHARD M. THOMPSON II, CONG. RESEARCH SERV., R42940,
INTEGRATION OF DRONES INTO DOMESTIC AIRSPACE: SELECTED LEGAL ISSUES 6 (2013) (discussing airspace
property rights).
13. See id. (illustrating that airspace rights effect the type of claim a landowner can bring).
No. 2] LAND USE ISSUES WITH DRONE TECHNOLOGY 413
establish, yet drones are capable of negatively affecting landowners; property

owners need some type of remedy.14 Third, if landowners do not have any
recourse in the law they may take the law into their own hands.15 Finally, to be
clear, this note does not argue that drones should be banned from the national
airspace. Drones are the way of the very near future and will propel the world
forward.16 While property law is typically derived from state law,17 it is
important for the FAA to provide best practices and guidelines when
integrating drones into airspace so that states have a foundation to which they
will conform their property laws in anticipation of drone use. If the FAA
recognizes land use problems and recommends ways to resolve these potential
issues then drones can be smoothly integrated into the national airspace.
II. BACKGROUND
The FAA has been tasked with keeping the airspace safe since 1958.18
The recent and continuing popularity of consumer drones in the nation’s
airspace requires the FAA’s attention.19 Integrating consumer drones into the
airspace is proving to be difficult for the FAA as everyone from Google and
Amazon to regular civilians are utilizing drone technology.20 Any American
consumer can easily buy a drone for a reasonable price.21 Congress recognizes
the unique challenges unmanned aircraft systems bring to the airspace and
provides the FAA with the authority to create regulations to safely integrate
drones into the national airspace.22 Thus far, the FAA missed every deadline
for drone integration.23
Drones, also known as unmanned aircraft systems, are able to fly at low
14. See Delta Air v. Kersey, 20 S.E.2d 245, 245 (Ga. 1942) (showing how difficult it is to bring
trespass claims in cases involving airspace).
15. See Jason Reed, FAA Warns Colorado Town that Shooting Down Drones Could Lead to
Prosecution, RT (July 20, 2013, 12:39 AM), http://rt.com/usa/faa-warns-against-shooting-drones-345/
(explaining that Colorado residents voted on an ordinance that would allow citizens to shoot drones flying over
their property).
16. See Danica Kirka, Drones: Next Big Thing in Aviation is Small, DENVER POST (July, 16, 2014,
12:01 AM), http://www.denverpost.com/business/ci_26155625/drones-next-big-thing-aviation-is-small
(discussing the mega impact drones will have on aviation and society).
17. See generally McCarran Int’l Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006) (showing how a state
has the power to regulate property rights within the state).
18. A Brief History of the FAA, FAA (Feb. 19, 2015, 4:23 PM), https://www.faa.gov/about/history/
brief_history/.
19. See S. REP. NO. 111-82, at Sec. 319 (2009) (illustrating the FAA is tasked with passing drone
regulation).
20. See generally Rachel Janik & Mitchell Armentrout, From the Burrito Bomber to Crop Monitoring,
a Look at Commercial Drone Use, MEDILL NAT’L SEC. ZONE, http://droneproject.nationalsecurityzone.org/
commercial-drone-use-rachel-janik-and-mitchell-armentrout/ (last visited Sept. 15, 2015) (discussing the
different commercial uses drones are utilized for).
21. See Drone, AMAZON.COM, http://www.amazon.com/ (last visited Sept. 15, 2015) (showing drones
are sold on the market for as little as forty-two dollars).
22. See Robert Bowman, Under Orders from Congress FAA Makes Way for Commercial Drones,
FORBES (July 22, 2014, 6:04 PM), http://www.forbes.com/sites/robertbowman/2014/07/22/under-orders-from-
congress-faa-makes-way-for-commercial-drones/ (discussing the timeline Congress has set out for the FAA to
come up with drone regulations).
23. Howell, supra note 1.
altitudes for sustained periods of time, unlike airplanes and helicopters.24

Typically, noise from airplanes does not bother landowners due to the high
altitudes at which planes fly.25 However, as drones are introduced into the
airspace, property rights will likely become an issue.26 The foundation for
understanding landowners’ rights begins with understanding how much of the
air above the land a property owner is entitled to. Navigable airspace is
“airspace above the minimum altitudes of flight prescribed by regulations . . .
including airspace needed to ensure safety in the takeoff and landing of
aircraft[s].”27 Navigable airspace is where the majority of airplanes fly, and it
is considered to be part of the public domain, meaning nobody owns it.28
In United States v. Causby the Supreme Court took on the issue of who
owns the air above private property.29 In Causby, Plaintiffs complained that
military aircrafts flying only sixty-seven feet above their home and chicken
farm amounted to a government taking.30 The constant noise from the aircrafts
scared their chickens and caused the Causby’s to close their chicken
business.31 Before Causby and its progeny, landowners believed they owned
everything from the ground up to the heavens.32 Causby changed that rule,
stating that people own at least as much space above the ground as the
landowner can reasonably occupy or use in connection with the land.33 Causby
considered three elements in determining whether there was a taking:
“(1) whether the planes flew directly over the plaintiff’s land; (2) the altitude
and frequency of the flights; and (3) whether the flights directly and
immediately interfered with the plaintiff’s use and enjoyment of the surface
land.”34 These same considerations are also considered in many other land use
claims involving overhead aircraft flights.35 However, Causby does not draw a
clear line as to when airspace is private property and when it becomes public
domain because it is unclear what reasonable use of the airspace means.36
Depending on how the FAA regulates drones, property rights could be affected
and the type of claims people can bring will depend upon these regulations and
the definition of navigable airspace.
The FAA planned to have regulations promulgated by September 2015;
however, as of early September 2015 no such regulations have been
24. See Barr & Bensinger, supra note 11 (describing how Google is testing drones that will fly at just
130-200 feet above the ground).
25. Monica Wachman, What is the Altitude of a Plane in Flight?, USA TODAY,
http://traveltips.usatoday.com/altitude-plane-flight-100359.html (last visited Sept. 15, 2015) (explaining the
average cruising altitude of an aircraft is 39,000 feet above the ground).
26. See DOLAN & THOMPSON, supra note 12 (discussing airspace property rights).
27. 49 U.S.C. § 40102(28) (2012).
28. United States v. Causby, 328 U.S. 256, 256 (1945).
29. Id.
30. Id.
31. Id. at 259.
32. Id. at 260–61.
33. Id. at 264.
34. See DOLAN & THOMPSON, supra note 12 at 8 (discussing airspace property rights).
35. Id. at 8–9.
36. Id. at 8.
proposed.37 In fact, many people, including the Government Accountability

Office believe the deadline is overly optimistic since the agency has missed
every deadline to date regarding drones.38 Currently, there are some primitive
guidelines in response to drones.39 In 2012, the FAA Reform and
Modernization Act dedicated a section to unmanned aircraft systems.40
Congress set a deadline for the completion of certain goals such as defining
standards for unmanned aircraft systems, establishing requirements for pilots
of drones and methods to ensure safe operation of unmanned systems.41 In
2013, the FAA distributed a “UAS [Unmanned Aircraft System]
Comprehensive Plan” which did much of the same as the Reform Act,
outlining very little about the practical use of drones and establishing
guidelines and regulations the agency hopes to create in the coming years.42
As of right now, there are at least some rules pertaining to drones.43
However, recreational flyers can fly with few rules.44 Recreational flying does
not require a certificate and is permitted as long as the drone stays within the
flyer’s line of sight, is not flown for commercial purposes, and the unmanned
aircraft is less than fifty-five pounds.45 Furthermore, government public safety
agencies are allowed to operate drones weighing 4.4 pounds or less if: (1) the
drone is within the line of sight of the operator, (2) less than 400 feet above the
ground, (3) during daylight conditions, (4) within Class G airspace, and (5) and
outside of five miles from any airport or location with aviation activities.46
Clearly, it is legally permissible to fly some drones. However, before
February 2015, drone use for commercial purposes was strictly forbidden
without a special airworthiness certificate, much to the chagrin of companies
like Amazon and Google.47 In the near future, Amazon hopes to launch same
day delivery via Amazon Prime Air.48 Amazon plans to use a small drone to
pick up packages from their processing warehouses and fly them to the
customer’s doorstep within a few hours of the customer clicking “buy.”49
37. Bart Jansen, FAA Unveils Drone Rules; Obama Orders Policy for Agencies, USA TODAY (Feb. 16,
2015, 8:12 AM), http://www.usatoday.com/story/news/2015/02/15/faa-drone-rule/23440469/; Craig Whitlock,
FAA Will Miss Deadline to Integrate Drones in U.S. Skies, WASH. POST (June 30, 2014),
http://www.washingtonpost.com/world/national-security/faa-will-miss-deadline-to-integrate-drones-in-us-
skies-report-says/2014/06/30/fd58e8e2-007f-11e4-b8ff-89afd3fad6bd_story.html.
38. Jansen, supra note 37; Whitlock, supra note 37.
39. See Unmanned Aircraft Systems, FAA, https://www.faa.gov/uas/ (last visited Sept. 15, 2015)
(listing some of the primitive guidelines for drones).
40. H.R. 658, 112th Cong. (2012); See S. REP. NO. 111-82, at sec. 319 (2009) (illustrating the FAA is
tasked with passing drone regulation).
41. H.R. 658, 112th Cong. (2012).
42. THE JOINT PLANNING & DEV. OFF., UNMANNED AIRCRAFT SYSTEMS COMPREHENSIVE PLAN (Sept.
2013).
43. Unmanned Aircraft Systems, supra note 39.
44. Wendie L. Kellington, Unmanned Air Systems and Regulating Navigable Airspace, LAND USE INST.
(Aug. 14–16, 2013), http://www.wkellington.com/pdf/2013/Unmanned-Aerial-Systems-and-Regulating-
Navigable-Airspace.pdf.
45. Id.
46. Public Unmanned Air Craft Systems, Pub. L. No. 112-95, § 334, 126 Stat. 11, 76–77 (2012).
47. Unmanned Aircraft Systems Frequently Asked Questions, FAA, https://www.faa.gov/uas/faq/ (last
visited Sept. 15, 2015).
48. Amazon Prime Air, supra note 4.
49. Id.
Google has also been testing drone operations for the same purpose.50 The
FAA created a special airworthiness certificate available to companies that
want to utilize drones for commercial purposes.51 Companies can apply for
this certificate; however, these certificates are given out very rarely and come
with very strict rules.52 Currently, sixteen of the 295 companies that petitioned
for these certificates have been successful, and thus they are allowed to fly
drones for commercial purposes.53 Most of the permitted commercial uses
were given to film companies to allow crews to obtain aerial footage.54
In February 2015, the FAA introduced a new set of guidelines for
commercial drones, which removed some constraints for entities trying to use
drones for commercial purposes.55 One of the major limitations of the new
rule is that the unmanned aircraft must always be within the line of sight of the
operator.56 Furthermore, flights should be limited to an altitude of 500 feet.57
Moreover, the FAA operates six test sites where the agency is researching
and operating drones so it can tailor its upcoming regulations.58 Officials fly
drones at these sites to test their capabilities and potential hazards;59 the first
drone that launched at the FAA test site in Nevada crashed immediately,
validating the need for these test sites.60
The federal government is not the only legislative body that has
recognized the need for rules prior to drone integration.61 National parks no
longer permit drones after several incidents occurred.62 Drone use in national
parks has been cited as a nuisance to animals and visitors.63 There have been
noise complaints from visitors, and wildlife have been harassed due to drones
flying too close to the animals.64 For example, during a sunset at the Grand
50. Barr & Bensinger, supra note 11.

51. Letter from Michael J. Zenkovich, Deputy Dir., Flight Standards Serv., to John McGraw, Agent for
Pictorvision Inc. (Sept. 25, 2014), http://www.faa.gov/uas/legislative_programs/section_333/media/
Pictorvision_Inc-11067.pdf.
52. Id.
53. Press Release, FAA, U.S. Transp. Sec’y Foxx Announces FAA Exemptions for Commercial UAS
Movie and TV Prod. (Sept. 25, 2014) http://www.faa.gov/news/press_releases/news_story.cfm?; Press
Release, FAA, FAA Grants Two More UAS Exemptions (Jan. 23, 2014) http://www.faa.gov/news/ updates/.
54. See Section 333, FAA, http://www.faa.gov/uas/legislative_programs/section_333/ (last visited Sept.
15, 2015) (showing that most of the exemptions were granted to cinematography companies).
55. Press Release, FAA, DOT and FAA Propose New Rules for Small Unmanned Aircraft (Feb. 15,
2015) http://www.faa.gov/news/press_releases/news_story.cfm.
56. Id.
57. Id.
58. Test Sites, FAA, https://www.faa.gov/uas/legislative_programs/test_sites/ (last visited Sept. 15,
2015).
59. Id.
60. Adam Clark Estes, First Drone Launches at FAA Test Site in Nevada, GIZMODO (Dec. 20, 2014,
3:00 PM), http://gizmodo.com/first-drone-launches-at-faa-test-site-in-nevada-crashe-1673586255.
61. Current Unmanned Aircraft State Law Landscape, NAT’L CONF. OF STATE LEGS.,
http://www.ncsl.org/research/civil-and-criminal-justice/current-uas-state-law-landscape.aspx (last visited Sept.
15, 2015).
62. Unmanned Aircraft to be Prohibited in America’s National Parks, NAT’L PARK SERV. (June 20,
2014), http://home.nps.gov/applications/release/print.cfm.
63. Id.
64. Jack Nicas, National Park Service Moves to Ban Drones, WALL ST. J. (June 20, 2014, 6:24 PM),
http://online.wsj.com/articles/u-s-government-moves-to-ban-drones-in-national-parks-1403286430; Emily
Yehle, NPS Bans Drones over Safety, Nuisance Concerns, E&E PUBL’G (June 20, 2014),
Canyon, visitors complained that the noise created by the drone interrupted
their experience.65 Ultimately, the drone crashed into the canyon.66
Furthermore, there have been numerous states that have proposed new
legislation in response to drone use.67 Besides noise and nuisance issues, many
states have laws against unwarranted drone surveillance.68 Also, given
property law is typically a creature of state law,69 some states have
preventively promulgated rules regarding land use issues. Oregon, Tennessee,
and California have passed laws that give landowners specific causes of action
against drones, further proving the recognized tension between drones and
private property.70
Finally, the long-term property trend over the past two centuries has been
to give landowners greater power to exclude others from trespassing on their
land.71 During the early nineteenth century, much of the land was open to
public use without any ability to exclude people from using land.72 However,
over the nineteenth century the right to exclude became more popular and
landowners began enforcing that right.73 Therefore, if landowners are not
permitted to exclude drones from their land it would run counter to the century
long trend toward exclusion.74
III. ANALYSIS
A. How Low Will the FAA Go?

Drones create a unique set of issues for property owners and create legal
issues that have never been fully addressed.75 Drones, although in theory
resemble remote controlled helicopters, which have been around for decades,
will create problems remote-controlled recreational helicopters never did. The
popularity of drones will far surpass that of recreational helicopters given the
fact that drones will be used for commercial purposes.76 Furthermore, drones
http://www.eenews.net/stories/1060001697.
65. Id.
66. Id.
67. Id.
68. Current Unmanned Aircraft State Law Landscape, supra note 61.
69. Sisolak, 137 P.3d at 1120.
70. See H.R. 2710, 77th Leg. Assemb., Reg. Sess. (Or. 2013) (detailing one of Oregon’s drone
statutes); Michael Berry & Nabiha Syed, State Legislation Governing Private Drone Use, WASH. POST:
VOLOKH CONSPIRACY (Sept. 25, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/
09/25/state-legislation-governing-private-drone-use/ (discussing State’s legislative response to increasing
drone use).
71. Eric T. Freyfogle, The Enclosure of America, in ILL. PUB. LAW AND THEORY RESEARCH PAPERS
SERIES NO. 07-10, (2007).
72. Id. at 2–3.
73. Id. at 46–47.
74. Id.
75. See Causby, 328 U.S. at 256 (showing courts have not decided when airspace becomes private
property).
76. Todd Gardiner, What is the Difference Between a Drone and an R/C Plane or Helicopter?, QUORA,
http://www.quora.com/What-is-the-difference-between-a-drone-and-an-R-C-plane-or-helicopter (May 10,
2012) (“‘drone’ tends to mean vehicles with more capability . . . .”).
are unlike commercial airplanes because they are able to fly at low altitudes.77
The airplanes flying above homes are typically at least 39,000 feet above the
ground and can hardly be said to harm property.78 Companies such as Google
are currently testing drones operating at just 130-200 feet above the ground.79
So the ultimate question is how will drone law fit into current airspace rights?
Questions such as what constitute “reasonable use” of the airspace must be
answered. Causby left that question open for discussion.80
Since Causby, the legislature and judiciary have not needed to delve into
this question.81 Thus far, the general rule is that public domain begins at 500
feet above the ground in non-congested areas and 1,000 feet above the ground
in congested areas.82 However, drones are able and likely will fly below these
public domain altitudes.83 In fact, the FAA’s 2015 proposed rules specify that
drones allowed in the airspace today must fly below 500 feet.84 To date, issues
regarding low-flying aircrafts have not been a major source of contention for
landowners unless the land is located near an airport.85 Ultimately, given the
unique issues drones bring into the world there must be some legal recourse for
landowners as drones become more prevalent.
Currently, the FAA controls the national airspace far above people’s
property; however, the FAA’s new drone regulations may extend the agency’s
control to airspace just above the ground, leaving property owners with no
ownership of the airspace right above their lawn.86 In a recent case, Raphael
Pirker was hired to use a Ritewing Zephyr, a “power glider aircraft,” around
the University of Virginia to shoot a promotional video.87 The unmanned
aircraft had a camera attached to it that sent real time photos to Pirker on the
ground.88 He flew between 10 and 1,500 feet above pedestrians, buildings, and
streets.89 The FAA fined him $10,000 for violating 14 C.F.R. §91.13(a) of the
Federal Aviation regulations which prohibits operating an aircraft in a
77. See Barr & Bensinger, supra note 11 (illustrating drones are tested to fly at heights of 150 feet).
78. Wachman, supra note 25.
79. Id.
80. See Causby, 328 U.S. at 267 (explaining the Court never decided at what height airspace is
considered private property).
81. Id.
82. Argent v. United States, 124 F.3d 1277, 1281 (Fed. Cir. 1997).
83. This is How the FAA Regulates American Airspace, POPULAR MECHS (Sept. 9, 2013, 2:30 AM)
[hereinafter American Airspace], http://www.popularmechanics.com/technology/military/planes-uavs/this-is-
how-the-faa-regulates-american-airspace-15894142.
84. DOT and FAA Propose New Rules for Small Unmanned Aircraft, supra note 55.
85. Delta Air Corp., 20 S.E.2d at 245; Vanderslice v. Shawn, 27 A.2d 87, 87 (Del. Ch. 1942); see Jack
L. Litwin, Annotation, Airport Operations or Flight of Aircraft as Nuisance, 79 A.L.R.3d 253 (1977) (showing
a multitude of airplane nuisance cases in different jurisdictions).
86. See Huerta v. Pirker, N.T.S.B. No. CP-217 (Nov. 17, 2014), http://www.ntsb.gov/legal/alj/
Documents/5730.pdf (illustrating the FAA felt it had the authority to punish someone for recklessly using
airspace far below 500 feet).
87. Administrator’s Appeal Brief at 1, Huerta, N.T.S.B. No. CP-217; Matthew Schroyer, FAA Insists
Authority to Regulate Drones, Airspace in Trappy Lawsuit, PROF’L SOC’Y OF DRONE JOURNALISTS (Nov. 5,
2013), http://www.dronejournalism.org/news/2013/11/faa-insists-it-has-authority-to-regulate-all-drones-and-
airspace-in-trappy-lawsuit.
88. Huerta, N.T.S.B. No. CP-217 at 2.
89. Id.
“careless or reckless manner . . . .”90 In the first hearing, the judge overturned
the fine deciding this unmanned aircraft did not fall within the definition of an
aircraft under 14 C.F.R. § 1.1, and thus was not subject to 14 C.F.R. §
91.13(a).91 After this decision, the public was confused about what rules
governed drones.92 The decision hinted that no rules applied to drones used for
commercial purposes.93 However, the National Transit Safety Board quickly
appealed the decision and on appeal the decision was overturned and
remanded.94 The appeals court held that the unmanned aircraft did fall under
the definition of aircraft set out by the Federal Aviation regulations.95
After the Pirker case, the FAA made it clear that there are no grey areas
when it comes to drone use, and if a person wants to fly a drone, he needs
some level of permission from the FAA.96 Even more disturbing, the FAA
clearly felt it had control of Pirker’s device despite the fact it flew at low
altitudes and in airspace below the national airspace.97 In his motion to
dismiss, Pirker noted that the FAA does not have jurisdiction of the low
altitudes where he was flying: “[A]t a minimum, partial dismissal of the
Complaint is warranted as to all allegations concerning operation at very low
altitudes, inside a tunnel, below tree top level, or underneath a pedestrian
overpass because these locations are not ‘navigable airspace’ subject to FAA
jurisdiction.”98 However, according to the FAA, it is a common myth that the
administration does not control airspace below 400 feet.99 In fact, the FAA
says, “[T]he FAA is responsible for the safety of U.S. airspace from the ground
up. This misperception may originate with the idea that manned aircrafts
generally must stay at least 500 feet above the ground.”100 Interestingly,
neither court discussed the issue of where exactly private property begins.101
This once again shows the courts’ unwillingness to discuss this issue that will
become pervasive as more drones enter the airspace. Without knowing where
the national airspace begins and where private property ends, landowners will
be left wondering what kind of claim they can bring against drone users.
As mentioned earlier, navigable airspace is air above the minimum
90. Id. at 1, 5.
91. Id. at 3, 5.
92. See, e.g., Charles Blanchard & William Speros, Holding Pattern: FAA Regulation of Commercial
Drones After Huerta v. Pirker, BUREAU OF NAT’L AFF. 3 (Mar. 31, 2014), http://www.arnoldporter.com/
resources/documents/BBNA_Holding%20Pattern%20FAA%20Regulation%20of%20Commercial%20Drones
%20After%20Huerta%20v.%22Pirker.pdf (indicating that the decision “raises a number of questions” and that
until the FAA promulgates new rules or appeals the decision, “its jurisdiction over a growing UAS industry
will likely remain up in the air.”).
93. Id.
94. Huerta, N.T.S.B. No. CP-217 at 12.
95. Id.
96. Busting Myths about the FAA and the Unmanned Aircraft, FAA, http://www.faa.gov/news/updates/
(last updated Mar. 7, 2014) [hereinafter Bustling Myths].
97. Huerta, N.T.S.B. No. CP-217.
98. Respondent’s Motion to Dismiss at 10, Huerta, N.T.S.B. No. CP-217, http://www.wired.com/
images_blogs/threatlevel/2014/10/MotionToDismiss.pdf.
99. Busting Myths, supra note 96.
100. Id.
101. See Huerta, N.T.S.B. No. CP-217 (illustrating the court never responded to the argument that the
FAA did not have jurisdiction over altitudes that low).
altitude of flight, and it is considered public domain.102 As drones are

introduced into airspace, the minimum altitudes of flight will descend to just
above the ground since drones are able to fly at such low altitudes for sustained
periods of time.103 The most recent round of regulations set forth in 2015
specifically prescribe that drones must stay below 500 feet.104 This would
leave landowners without any control of airspace above their land since the
FAA states it can regulate the airspace below 500 feet.105 Since the initial rules
only allow drones to fly up to 500 feet, the FAA will surely use its
enforcement powers to regulate drones at this height, which trumps the
property owner’s authority.106 If landowners do not own the airspace above
their land, then landowners do not have the ability to bring legal claims for
things that occur in their airspace and interfere with their use of the land.107
However, this is in conflict with the rule set out in Causby, which states that a
landowner owns as much airspace as he can reasonably use.108
States like Oregon and Tennessee recognize this issue and have
determined the circumstances under which a claim can be made.109 In Oregon,
landowners can bring an action against anyone using a drone over their
property if the drone is: (1) flown over the property at less than 400 feet, (2) if
the landowner told the drone operator that he did not want the drone flown
over his property, (3) the drone operator flies the drone at an altitude less than
400 feet.110 While this band-aid fix may work for Oregon now, it certainly will
not work when Google and Amazon are the companies flying over property.
Imagine calling up Amazon to request the company stop flying drones at such
low altitudes above private property; the caller would undoubtedly be rerouted
to several different departments before ever potentially reaching a solution.
Oregon’s fix is likely too elementary to work nationwide and deal with large
corporations. However, it is a start, and it at least shows that some states are
foreseeing land use issues.111
Tennessee amended its criminal trespass provision in order to tailor the
provision to include drones.112 The provision now reads, “for purposes of this
section, enter means intrusion of the entire body or when a person causes an
unmanned aircraft to enter that portion of the airspace above the owner’s land
not regulated as navigable airspace by the Federal Aviation Administration.”113
If the FAA, however, is able to regulate air from the ground up then the
Tennessee statute would be obsolete. Tennessee specifically wrote in
102. Causby, 328 U.S. at 256.

103. American Airspace, supra note 83.
104. FAA., Overview of Small UAS Notice of Proposed Rulemaking (Feb. 15, 2015),
http://www.faa.gov/regulations_policies/rulemaking/media/021515_sUAS_Summary.pdf.
106. Id.
107. Drybread v. City of St. Louis, 634 S.W.2d 519, 520 (Mo. Ct. App. 1982).
108. Causby, 328 U.S. at 264.
109. H.R. 2710, 77th Leg., Reg. Sess. (Or. 2013).
110. Id.
111. Id.
112. TENN. CODE ANN. § 39-14-405 (West 2014).
113. Id. § 39-14-405(d).
unmanned aircraft into the trespass statute to make it clear to both drone
operators and landowners that claims against drone operators will be taken as
seriously as any other trespass claim.114
California introduced a bill in January 2015 regarding drone trespass as
well.115 The bill amended California trespass law by “extending liability” to
any unmanned aircraft “less than 350 feet above ground level” without the
landowner’s permission.116
Americans are already extremely skeptical about drones.117 Nearly
everyone, from average citizens to politicians, is nervous about the effect
drones may have on society.118 In early 2015, a man operating a drone crashed
into the White House, and just one day later, even President Obama reiterated
the need for drone regulations saying, “we don’t really have any kind of
regulatory structure at all for [drones].”119 Introducing this regulatory structure
is important, but so too is introducing specific guidelines as to how Americans
can fight back against drones if they do become an issue for landowners. The
only way to calm nerves is to face the issue head on and come up with
solutions to the public’s fears.
If landowners have no recourse to punish drone operators for flying too
low or too frequently over their homes, they are left with no way to protect
their property. People who are trying to enjoy a warm summer day on their
porch are interrupted by the buzzing of drones flying over at low altitudes and
can do nothing about it. Landowners need to be protected from the burgeoning
threat of drones buzzing just above their rooflines. If the FAA claims it can
regulate airspace at low altitudes,120 it ultimately means landowners do not
own the air above their homes, and thus landowners will not have recourse
against any intrusions in the air no matter how low. Ultimately, the FAA
needs to protect the landowners, and by regulating airspace so low to the
ground, landowners are entitled to few rights and protections.
B. Private Nuisance Claims
Private nuisance is the typical cause of action brought in situations where

a landowner’s enjoyment of the land is disturbed.121 In order to successfully
make out a prima facie case for private nuisance a person must prove:
(1) substantial harm and (2) the imposition of the harm is unreasonable.122
There are virtually no cases involving model aircrafts and nuisance, likely
114. Id.
115. S.B. 142, 2015–16 Reg. Sess. (Cal. 2015), http://leginfo.legislature.ca.gov/faces/
billNavClient.xhtml.
116. Id.
117. Joan Lowy & Jennifer Agiesta, AP-GfK Poll: Americans Skeptical of Commercial Drones, AP-
GFK, http://ap-gfkpoll.com/featured/findings-from-our-latest-poll-10 (last visited Sept. 15, 2015).
118. Id.
119. Jeremy Diamond, Obama: We Need More Drone Regulations, CNN (Jan. 28, 2015, 6:58 AM),
http://www.cnn.com/2015/01/27/politics/obama-drones-fareed/.
121. RESTATEMENT (SECOND) OF TORTS § 821D (Am. Law Inst. 1979).
122. Id.
because the popularity of model aircrafts was never as pervasive as drones

threaten to be.123 Unfortunately, most precedential cases regarding airplanes
and private nuisance will not be of much use to victims of drone nuisance. The
majority of nuisance cases involving airplanes occur when landowners live
near airports.124 Furthermore, nuisance claims that tend to succeed on the
merits include disturbance as a result of dust production, noise, vibration, and
frequency of flights.125 Drone nuisance claims will be much harder to prove
given the small size of most drones.126 There will likely be no dust production
or vibration produced.127 However, as seen in national parks around the
country, the noise produced by drones can still be a disruption.128 The fact of
the matter is many of the reasons courts allow successful nuisance actions
against airplanes will not be present with drones.129 Yet, it is easy to imagine a
world where drones are constantly flying above your home or patio as you try
to enjoy the quiet of your land.130 The legislative and judicial system need to
realize that although drones do not produce as much noise or disruption as low
flying airplanes, they still have the ability to disrupt landowners, and those
landowners deserve a claim against that disturbance.
The noise caused by frequency of flights is really what landowners will
have to hang their hats on if nothing changes.131 It will be helpful to look at a
case where a landowner successfully argued that the frequency of aircraft
flights above his land was a nuisance. In Delta Air Corp. v. Kersey, the
plaintiff lived near an airport where aircraft flew over his home at altitudes of
twenty-five to fifty feet.132 The court held that repeated low flights at altitudes
of twenty-five to fifty feet, accompanied by noise and dust are dangerous to the
health of the landowner and injurious to his use of the land.133 However, it is
important to note that nuisance was found based on the frequency of flights
along with the fact that the noise and dust production “are dangerous to the
health and life of petitioner and his family and thus constitute a continuing
nuisance.”134 Ultimately, the court was not comfortable giving the landowner
relief simply based on the frequency of flights.135 The holding in this case is
similar to the holdings in many comparable cases.136 It is difficult to find cases
123. A simple search on WestLaw proves this fact as there are almost no cases regarding model aircraft
issues.
124. See Litwin, supra note 85 (outlining airplane nuisance cases).
125. Id.
126. DOLAN & THOMPSON, supra note 12.
127. Id.
128. Mike M. Ahlers, National Park Service Bans Drones over Safety, Noise Worries, CNN (June 21,
2014, 11:11 PM), http://www.cnn.com/2014/06/20/travel/national-park-service-drone-ban/.
130. Id.
131. See Litwin, supra note 85 (outlining airplane nuisance cases involving frequency of flight as the
main complaint).
132. Delta Air Corp., 20 S.E.2d at 245.
133. Id. at 249.
134. Id.
135. Id. at 251.
136. See Brandes v. Mitterling, 196 P.2d 464, 464 (Ariz. 1948) (illustrating an overhead flight case); see
also Scott v. Dudley, 105 S.E.2d 752, 752 (Ga. 1958) (discussing issues regarding overhead flights over
private property).
where mere frequency of flights over the land was enough to prove
nuisance.137 However it is important to note that “a nuisance claim can
succeed even if the plane flew over adjoining lands and never directly over the
plaintiff’s land, as long as the flight constitutes a substantial and unreasonable
interference with the use and enjoyment of the land.”138 Therefore, a drone
does not technically need to be flying directly over the landowner’s private
property as long as it is affecting the use and enjoyment of that land.139
However, the questions still remain, will the noise produced by a drone be
enough to establish a successful claim for nuisance? How noisy does it have to
be to succeed on a nuisance claim? Some cases suggest the noise has to drown
out conversation or cause physical pain.140 The hum of one drone passing by
may not be the issue, but the frequency of many drones passing by and the
constant hum is what will cause the issues.
Landowners may look to their town’s noise ordinance for help in halting
drone noise. For example, Urbana, IL noise ordinance says that Illinois
Pollution Control Board (IPCB) measures noises based on frequency (as in
frequency of the sound measured in hertz) and intensity.141 The IPCB creates a
guide of when noise levels are unacceptable based on the property impacted by
the sound.142 However, in order for these noise ordinances to be useful to
landowners, the IPCB should also take into account the repetitive nature of that
sound. Even if the sound of one drone is not loud enough, the sound of drone
after drone flying over surely interferes with the use of the property. Drones
are akin to barking dogs. Barking dogs, like drones, likely will not be so loud
they shake the ground or cause vibration, but given the sheer number of them,
they both cause noise that can be brought in a private nuisance claim. There
have been plenty of cases proving that the frequency of barking dogs is enough
to sustain a successful public nuisance claim.143 In Dobbs v. Wiggins the court
found that due to the frequency of barking dogs, “the dogs bark[ed] and
yelp[ed] at all hours of the day and night,” that plaintiffs’ “enjoyment of
outdoor activities” were “curtailed” because of the noise.144 Although there
was no dust or vibration, the mere frequency of the barking coupled with
plaintiffs’ inability to enjoy their outdoor space was enough for the court to
find a public nuisance.145 This same logic should carry over into the drone
context.
137. See Litwin, supra note 85 (showing very few cases where frequency of flights alone was enough to
prove nuisance).
138. DOLAN & THOMPSON, supra note 12, at 11.
139. Id.
140. Traetto v. Palazzo, 436 N.J. Super. 6, 6 (2014).
141. Memorandum from the Dept. of Cmty. Dev. Serv., Elizabeth H. Tyler, Amendment to Chapter 16
of the Urbana Code of Ordinances (Noise and Vibrations), City of Urbana (Apr. 18, 2013)
https://www.city.urbana.il.us/_agendas_-_packets_-_Minutes/Agendas_2013/04-22-2013/Ordinance_2013-04-
036.pdf.
142. Id. at 4.
143. Dobbs v. Wiggins, 929 N.E.2d 30, 41 (Ill. App. 2010).
144. Id. at 39–40.
145. Id.
C. Trespass Claims
The next logical cause of action is trespass. Trespass is a “physical

intrusion upon property owned by another.”146 However, if the landowner has
no claim in the airspace above his land, he has no trespass claim. As one court
put it, “a property owner owns only as much air space above his property as he
can practicably use. And to constitute an actionable trespass, an intrusion has
to be such as to subtract from the owner’s use of the property.”147 Trespass
law is created by state law, and thus each state will need to clarify how its
trespass laws will treat drone use.148
In Smith v. New England Aircraft, small aircrafts were flown over the
Smiths’ residential property at low altitudes, as low as 100 feet.149 The flight
patterns were irregular, and thus there was no way of knowing how many
flights were flown over.150 Although nuisance was not found in this case, the
court found a trespass.151 The court explained, “[t]he facts show intrusion
upon the land of the plaintiffs by flight of aircraft at these low altitudes by
noise and by the presence of the aircraft and its occupants.”152 However, there
is no bright-line rule that says this case was decided correctly and others
incorrectly. Since courts keep punting the issue of where navigable airspace
begins and land ownership ends, the potential success of a trespass claim is
unpredictable.153 The FAA likely does not want to clarify exactly what
“navigable airspace” includes and put a height requirement on it (e.g., anything
below 500 feet is navigable airspace) because the agency does not want to limit
its control. Therefore, landowners will have only precedent and general rules
to rely on. Unfortunately, there is disagreement among courts.154 There are
different theories as to when a trespass claim is acceptable.155 Some lower
courts have adopted a “fixed height” theory of airspace ownership,
On the one hand, the stratum of airspace that was defined in federal
law as “navigable airspace” was always a part of the public
domain . . . . On the other hand, the airspace below what is defined
as navigable airspace could be “owned” by the surface owner and,
therefore, intrusions upon it could lead to a successful takings or
property tort claim.156
Another theory is that a plane, while in navigable airspace and thus in the
public domain, “interfered with the owner’s use and enjoyment of the surface
enough to justify compensation” and so a trespass claim should be sustained.157

147. Geller v. Brownstone Condominium, 82 Ill. App. 3d 334, 336-37 (1980).
149. Smith v. New England Aircraft Co., 170 N.E. 385, 387 (Mass. 1930).
150. Id.
151. Id. at 388.
152. Id. at 393.
153. Id. (citing no concrete rule as to when airspace becomes public domain and when it is private
property).
155. Id.
156. Id.
157. Id.
Therefore, according to some courts, property owners still have a trespass

claim even when the aircraft is flying in the public domain, also known as
navigable airspace.158 Another theory is that a landowner has a claim against
an aircraft even if it is in navigable airspace (the public domain) as long as the
landowner reasonably uses that space.”159 The idea behind this theory is that
property owners should own as much airspace as they use.160
Furthermore, the Causby rule, that landowners own as much as space as
they can reasonably use, is unhelpful.161 As a homeowner, am I reasonably
using the air at the second story window of my home? Can I build a tower that
will reach far above my house? What is reasonable? According to the Ninth
Circuit, the landowner must currently use the airspace in order for him to claim
ownership.162 The Court goes on to say, “It would be, and is, utterly
impracticable and would lead to endless confusion, if the law should uphold
attempts of landowners to stake out, or assert claims to definite, unused spaces
in the air in order to protect some contemplated future use of it.”163 Therefore,
under this rule the second story of your home is reasonably used since your
home is occupying that area, however the landowner does not own anything
above his roofline if he is not using it.164 This interpretation severely limits the
Causby rule. Practically, this rule would not help solve the problems. The rule
means that owners of vacant property do not own much airspace; however, the
concern about drone noise does not apply to vacant land where the noise would
not bother anyone. In the residential property context, the homeowner likely
does not reasonably use anything above his roofline although drones at that
altitude may still be problematic; therefore, this interpretation does not resolve
any of the original concerns about land use. It seems as though altitude
restriction would be a better solution because it resolves the issue of noise;
drones at 500 feet will be quieter than drones grazing the roofline.
Given the different interpretations of airspace ownership and its effect on
a nuisance or trespass claim, it is difficult to know when a landowner will have
a successful claim.165 As drones are introduced into society it is likely that
questions about airspace will arise more frequently, and that is why it is
absolutely necessary the FAA make clear guidelines and best practices
regarding what rights property owners have to their airspace. While states
ultimately create their own rights for landowners, given the novelty of drones,
the FAA should create a model for states to follow if they so choose. The FAA
may choose to utilize one of the three theories mentioned above or create an
entirely new rule. Whatever rule the FAA and states decide on should give
landowners at least some ownership in the air above their property and the
rules should make it clear when a claim is acceptable.
158. Id.
159. Id.
160. Id.
161. Causby, 328 U.S. at 256.
162. Hinman v. Pac. Air Lines Transp. Corp., 84 F.2d 755, 755 (9th Cir. 1936).
163. Id. at 758.
164. Id.
The point of creating regulations and laws is to foresee the potential

issues with drones and give landowners a way to resolve the issue without it
costing them thousands of dollars and years of their time. Furthermore,
clarifying what claims landowners have against drone operators will also
ensure that drone users are alert and practicing safe piloting. If a drone pilot
knows a landowner has an action against him, then those pilots are likely to be
more considerate and use safer flying practices. Therefore, the government has
to stop punting the question of airspace rights and decide on a rule that will be
applied by courts, and if that rule includes the term reasonable, it must also
define what reasonable use of airspace means.
D. Self Help
If landowners do not have any recourse in the law, they may handle the
issue themselves. It is not legal to shoot down drones, yet people are doing it
anyway.166 Some people simply do not want drones over their property, and
given there currently is no other recourse, people have resorted to shooting
them down.167 A town in Colorado even voted on a “drone hunting”
ordinance, evidencing just how serious people are about taking matters into
their own hands.168 Ultimately, the ordinance was not passed due to legal and
social ramifications.169
It is a federal crime to shoot an aircraft out of national airspace; it carries
a prison sentence of up to twenty years.170 However, currently, people who
shoot down drones will only go to jail for a few days or suffer no repercussions
at all.171 This great disparity in the law, the idea that federal and state crimes
are treated so lightly in the case of drones, is proof that nobody, including law
enforcement and the judicial system, understands how to treat drones.172 Even
politicians have threatened to shoot down drowns; Rand Paul recently
commented, “[d]rones should only be used according to the Constitution. But
if they fly over my house, they better be aware because I’ve got a shotgun.”173
Moreover, in a recent interview, Jeff Bezos, Chief Executive Officer at
Amazon.com, was interviewed during an episode of 60 Minutes about
Amazon’s potential use of drones for delivery services.174 He was asked how
Amazon will keep people from shooting its drones down.175 It’s a very real
166. Derek Mead, Shooting at Federal Drones is Neither Legal nor Smart, MOTHERBOARD (Dec. 11,
2013, 12:10 PM), http://motherboard.vice.com/blog/shooting-at-federal-drones-is-neither-legal-nor-smart.
167. Id.
168. Id.
169. Gregory S. McNeal, Thankfully, Shooting down a Drone Will Land You in Federal Prison, FORBES
(Dec. 10, 2013, 4:57 PM), http://www.forbes.com/sites/gregorymcneal/2013/12/10/thankfully-shooting-down-
a-drone-will-land-you-in-federal-prison/.
170. Id.
171. FAA Warns Colorado Town that Shooting down Drones Could Lead to Prosecution, supra note 15.
172. Id.
173. Ashley Codiannia, CNN Exclusive: Snapchat Interview with Senator Rand Paul, CNN,
http://www.cnn.com/2015/01/28/politics/rand-paul-snaphat-interview/ (last updated Jan. 28, 2015, 11:32 AM).
174. Interview with Jeff Bezos, CEO, Amazon.com, in New York, N.Y. (Dec. 1, 2013),
http://www.cbsnews.com/news/amazons-jeff-bezos-looks-to-the-future/.
175. Id.
questions and one that proves to be a serious concern. The question itself
illustrates the persistent American ideal that it is acceptable to take the law of
drones into our own hands.176 Between unclear guidelines and people in
positions of power supporting drone takedowns, Americans are left in limbo,
and certainly have and may continue to take the law into their own hands.177
As drones emerge into the airspace we cannot have such disparity. Creating a
norm that allows civilians to shoot down drones is dangerous for a number of
obvious reasons. Shooting into the air can cause stray bullets to hit airplanes
or animals. Furthermore, if people are shooting into the air in residential
neighborhoods people on the ground could be struck by stray bullets. Clearly,
the idea that it is acceptable to shoot at drones must be squashed quickly. The
American legal system prides itself on allowing its citizens to know right from
wrong before being convicted of a crime; however, if citizens do not know
what other options are available to them and there are no direct guidelines,
confusion and chaos will ensue.
The FAA focuses all of its attention on drone operation,178 but at some
point the FAA will also need to focus on the American public and make sure
the public and states are prepared to see drones on a regular basis.179 The more
Americans feel helpless, the more they will take the situation into their own
hands.180
E. Federal Preemption
State property law typically defines landowners’ rights.181 Therefore, the
states are ultimately responsible for clarifying the rights of landowners
regarding claims in trespass and nuisance. As evidenced in McCarran
International Airport v. Sisolak, states can and will define property law with
great precision.182 The case involved overhead flights above Sisolak’s
property.183 The court found that Sisolak had rights in airspace up to 500 feet
and did not have to prove there were low and frequent overhead flights to
establish a regulatory per se taking.184 Rather, the Nevada Supreme Court
ruled that evidence that the airplanes flew lower than 500 feet above his
property was sufficient to prove a permanent physical invasion of his
airspace.185 This case shows the power vested in states to create their own
176. Doug Gross, Amazon’s Drone Delivery: How Would it Work?, CNN, http://www.cnn.com/2013/
12/02/tech/innovation/amazon-drones-questions/ (last visited Sept. 15, 2015).
177. Bruce Schneier, Is it OK to Shoot Down a Drone Over Your Backyard?, CNN,
http://www.cnn.com/2015/09/09/opinions/schneier-shoot-down-drones/ (last visited Sept. 15, 2015).
178. The focus thus far has been about creating rules about drone operations and creating test sites to
learn more about drone operation.
179. See Test Sites, supra note 58 (illustrating the FAA’s focus on drone technology at test sites, and
lack of focus on educating the American public).
180. See FAA Warns Colorado Town, supra note 15 (showing how citizens are ready and willing to
shoot down drones to protect their property).
181. See Sisolak, 137 P.3d 1110 (showing that states regulate property rights within the state).
182. Id.
183. Id.
184. Id.
185. Id.
property law rights.186

The FAA’s self-proclaimed ability to regulate all airspace, even below
500 feet, creates tension with the states’ abilities to create their own property
law.187 This brings up issues of federalism and begs the question to what
extent might federal regulations preempt state law? If the FAA set forth a
regulation authorizing drones to fly into private space,188 it needs to point to a
source of power that allows it to do so. While this federalism issue could itself
be the sole topic of another article, this note does not argue that the FAA
should enforce concrete regulations regarding airspace rights which may
potentially preempt state law. Rather, the FAA should create guidelines
regarding land use and airspace issues that have caused confusion in the past
and will surely cause more issues in the future—such as where private property
ends and national airspace begins. It is without doubt that the FAA controls
the national airspace, and so if states have a better understanding of where that
national airspace begins, they can draft informed legislation when deciding at
which altitude a claim of trespass is warranted.189 It is absolutely necessary for
the FAA to clearly define at what altitude national airspace begins. If national
airspace is below 500 feet then preemption of state law regarding property
rights will prove to be a major issue.
Overall, drone integration will be smoother if the FAA offers guidelines
and best practices as it releases regulations regarding drones. Furthermore,
states have not had the opportunity to test drones as the federal government
has.190 Therefore, the Federal government better understands whether
employing an altitude restriction on drone flights is necessary, and if so at what
altitude. If the FAA does the tough thinking in advance, states can simply
conform those guidelines to best fit within their current property law, which
will allow for quicker and more efficient integration of drones.
F. Drone Flights: A Government Taking?

The takings clause, part of the Fifth Amendment of the Consitution,
potentially limits the FAA’s ability to regulate drones.191 To begin a takings
analysis, an understanding of the state law is necessary.192 The first inquiry is,
what powers does state law give landowners to exclude drones from their
land?193 After this question is answered then we can understand how the FAA
regulation has interfered with state private property rights, “while property
186. Id.
187. 49 U.S.C. § 40103 (2012).
188. See generally Unmanned Aircraft Systems Frequently Asked Questions, supra note 47 (showing the
FAA understands the necessity of authority to enact such regulations).
189. See Gregory McNeal, The Federal Government Thinks Your Backyard is National Airspace and
Toys are Subject to FAA Regulations, FORBES, http://www.forbes.com/sites/gregorymcneal/2014/11/18/the-
federal-government-thinks-your-backyard-is-national-airspace-and-toys-are-subject-to-faa-regulations/ (last
visited Sept. 15, 2015) (indicating the FAA has the best knowledge of what constitutes national airspace).
190. Test Sites, supra note 58.
191. U.S. CONST. amend. V.
192. By understanding what powers state law gives property owners to exclude drones, it is easier to get
clear on how much the FAA has interfered with private rights.
193. Id.
may be regulated to a certain extent, if regulation goes too far it will be

recognized as a taking.”194 In a per se taking, the landowner is unable to use
the space in which the invasion is taking place.195 For example, in McCarran,
an ordinance restricted the landowner from building anything over eighty feet
and was held to be a takings per se.196 However, this per se test would likely
not apply in the circumstances of drones because it is not as if landowners are
permanently barred from using the airspace. Instead, the multi-factor Penn
Central takings test would likely apply because it deals with takings that may
not alone create such a large loss so as to have a major economic effect on the
property or the landowner.197 The test takes into account whether a
government act expressly authorizes invasion into the private property.198
Thus, even if a drone flies over but does not dramatically affect the value or
use of the property, it may still qualify as a taking so long as the government
authorized the invasion into the private property.199 The Penn Central takings
test is a balancing of multiple factors;200 however, in the case where the FAA
allows drones to fly below 500 feet, the current minimum altitude designated
as national airspace,201 then a landowner may be able to argue a takings claim
and receive compensation for his loss.
IV. RECOMMENDATION
The main concern this note addresses is how private property owners will
be affected by the increasing popularity of drones. For decades, landowners
and airplanes have coexisted peacefully, and it is possible for drones and
landowners to coexist harmoniously as well. Drones can propel the world
forward and will be involved in everything from helping scientists learn about
global warming to delivering a package only a few hours after it was
ordered.202 Therefore, as with any new technology, as long as guidelines are
set, drones can be a giant leap forward in the world of technology.
First, the simplest action the FAA can take is merely to clarify what it
means to reasonably use airspace.203 This will immediately help landowners
understand if they have a reasonable action against a drone operator.
Reasonable use should include both present and reasonable future use. A
homeowner should not be able to argue they plan to build a twenty-five foot
tower in their backyard at some indeterminate time, and thus they own that
space. However, it is natural for landowners to have antennas on their property
194. Sisolak, 137 P.3d at 1121.

195. See id. at 1115 (stating the property owner could not build anything over eighty feet).
196. Id.
197. See Penn Cent. Transp. Co. v. City of N.Y.C., 438 U.S. 104, 124 (1978) (explaining the test is a
balancing of all the factors, and not just any one factor).
198. See id. (taking more likely to be found when characterized as a physical invasion by the
government).
199. Id.
200. Id.
201. Argent, 124 F.3d at 1279.
203. See Causby, 328 U.S. at 256 (stating a landowner owns as much air as he can reasonably use).
that reach above rooflines or any other objectively reasonable use that
complies with zoning requirements. Any drone operator that comes within this
reasonable use of airspace should be treated as a trespasser that the landowner
has a claim against.
However, airspace rights become too complex if “reasonable use”
becomes a legal term of art. Americans and courts need to be able to clearly
understand the regulations, and there must be as little ambiguity as possible.
Therefore, setting an altitude restriction is the best option. The FAA should set
a minimum altitude at which commercial drones can fly. This way the difficult
question posed in Causby, how much of the airspace do landowners own, does
not need to be contemplated.204 One thing is relatively well settled, anything
500 feet or above is in the public domain.205 Therefore, the rule must be that
drones cannot fly below at least 500 feet or some altitude that is proven to be
high enough that land users will generally not be bothered by the noise.
After setting the altitude restriction, the guideline must be strictly
enforced;206 however, as seen earlier, courts have different interpretations of
airspace rights and thus different ideas of when a claim is actionable.207
Therefore, by creating set guidelines about when airspace is considered public
domain and at what altitude a drone operator infringes on a person’s airspace
rights will help clear up the issue. This black and white rule is easy for
everyone to understand, and there is no ambiguity if somebody breaks the rule.
Yet, the FAA is currently traveling down an opposite path by limiting drones
to an altitude of 500 feet.208 It is unclear the exact reasoning behind the
altitude limitation; however, there are logical and obvious explanations—the
FAA does not want drones flying above that altitude so drone operators do not
interfere with aircrafts, and the FAA does not want drones out of the line of the
operator’s sight until concrete regulations and testing have been completed.209
Setting an altitude restriction allows landowners to understand when they can
successfully complain about drone use over their land. Eliminating the term or
clarifying the term “reasonable use” when it comes to how much airspace a
landowner uses is the most efficient way to start on a path to clear and
understandable rules.
Furthermore, the FAA needs to educate the public about the guidelines it
passes. What does 500 feet above a house look like? How can a person judge
500 feet merely using sight? If the FAA does not educate the public there are
bound to be frivolous complaints and lawsuits because people think the drone
is flying at an altitude lower than 500 feet. However, the definitive aspect of
an altitude restriction would likely decrease disputes between landowners and
drone operators on the issue of noise and disturbance, and also quell
Americans’ fears about privacy; the higher a civilian drone flies the less detail
204. Id.
205. Argent, 124 F.3d at 1281.
206. Id.
207. See DOLAN & THOMPSON, supra note 12 (outlining different interpretations of national airspace).
209. See generally id. (discussing the FAA’s proposed regulations on small drones).
it can see below.210 Since drones are potentially pervasive in every aspect of
society, utilized by everyone from major corporations to average civilians,
everybody is listening and waiting for regulations regarding drones.211 This
attention gives the FAA a tremendous opportunity to be heard and make
guidelines clear and understandable to the American public and state
legislatures.212 Hopefully, at altitudes of at least 500 feet, landowners would
not notice the noise produced by the drone, just as now airplane noise does not
seriously harm the average landowner’s use and enjoyment of their land.213
This altitude restriction is one of the simplest measures the FAA can take that
can be in place from the outset of drone regulation. Flying at a minimum
altitude should not hinder drone users and should be an easy rule to follow.
Second, states need to clarify the specific causes of action a landowner
may have against drone users if the landowner can no longer enjoy his land
due to the frequency of flights across the property. As noted above, it is very
hard to predict when a nuisance claim and trespass claim will succeed given
the unique ability of drones to fly at low altitudes without producing vibration
or dust yet still causing noise.214 Furthermore, regardless of state law, the FAA
can help resolve issues by setting up a separate department within the FAA to
deal solely with drone complaints. Assumedly, the most frequent and
consistent drone flights that would become bothersome to landowners are
those used by companies such as Google or Amazon. These drones will likely
be equipped with location and GPS devices, and therefore, the companies will
be able to keep track of their most frequent flight patterns.215 The FAA should
require commercial drone users to register these flight patterns with the
agency. This way, if a landowner feels as though a drone is flying overhead an
exorbitant amount of times per day he can contact this drone specific agency
and identify any registered drones frequently flying over the property. This
way the landowner can try to potentially work out a resolution directly with the
user before any legal action is taken. If commercial drone users do not comply
with this registration system and are caught, the FAA could fine them or exact
some other penalty.
However, registration is potentially not enough. Every aircraft has a GPS
device on board so that it can be tracked; it may be necessary for the FAA to
210. See generally Matt Burns, Parrot’s Newest Drone Packs a Serious Camera, Extreme Range,
TECHCRUNCH (May 11, 2014), http://techcrunch.com/2014/05/11/parrots-newest-drone-packs-a-serious-
camera-extreme-range/ (showing that even really good drones can only see landscapes and not detail at high
altitudes).
211. Ucilia Wang, The Good Drones: Industries Eagerly Await FAA Rules to Allow Them to Fly, THE
GUARDIAN (Nov. 26, 2014), http://www.theguardian.com/sustainable-business/2014/nov/26/drones-
quadcopoters-farms-drilling-utilities.
212. Id.
213. See generally Litwin, supra note 85 (noting that most nuisance cases involving noise from aircrafts
are brought by owners of property near airports).
214. See Alistair Barr & Greg Bensinger, Google is Testing Deliver Drone System, WALL ST. J. (Aug.
29, 2014, 4:04 AM), http://online.wsj.com/articles/google-reveals-delivery-drone-project-1409274480
(discussing that Google is testing drones at heights of just 130 feet).
215. See John Wenz, Amazon Wants a Special Sky Highway Just for Autonomous Drones, POPULAR
MECHS (July 28, 2015), http://www.popularmechanics.com/flight/drones/news/a16643/amazon-wants-its-own-
special-air-space-for-drones (discussing GPS aboard drones).
require such GPS systems on board drones as well so each drone can be
tracked, and flight paths can be detailed.216 Some commentators feel that
putting restrictions on drones before the first batch of commercial drones are
released into the skies is premature.217 Those people think it necessary to
encounter the problems before creating solutions to issues which may not
become issues at all.218 The problem with that view is that drones are proving
to be the next major movement, a movement as major as airplanes, and people
are nervous about the consequences drones may have and rightfully so.219 By
enacting rules and letting landowners know they will have causes of action if
drones overcome their land calms the publics’ fear and empowers them so they
do not feel like they will become a victim to drones. The drone movement is
too big to release into the wild without making sure that foreseeable problems
and gripes from Americans can be and are being addressed.
Third, the FAA needs to ensure landowners know whom to contact when
they have an issue with a drone. Each company that uses drones for
commercial purposes should have a department specifically set up for
answering questions and resolving complaints from citizens about that
company’s drone use. This will likely already be in place with companies like
Amazon.220 Since drones will be used as a delivery method, Amazon will keep
track of shipments via drones just as they keep track of shipments via truck
carriers.221 The FAA also has to make clear that the company may have to
change flight paths or fly higher if a landowner has solid claims against that
company. At least for a while, the FAA, states, and companies who use drones
should create a specific department to resolve drone issues until drones become
as mainstream as airplanes. One thing is for sure, as with everything, when a
new product hits the market there are bound to be lots of kinks to work out in
the beginning. Many of the airplane nuisance claims came in the 1930s and
1940s when airports and aircraft flying became a mainstay,222 and it is likely
that many lawsuits surrounding drones will also be concentrated around the
date they are cleared to take off into the national airspace.
Fourth, while many of the above recommendations may work to police
commercial drone use it is much more difficult to monitor personal drone use.
However, the FAA could create a set of guidelines where every non-
commercial drone user needs to register their drone within their specific state.
In exchange for registering the drone operator receives a sticker with a specific
216. How Do You Track a Plane?, BBC (Mar. 17, 2014), http://www.bbc.com/news/world-asia-pacific-
26544554.
217. Michael Berry & Nabiha Syed, Legislators Shouldn’t Rush to Enact Laws on Private Drone Use,
WASH. POST (Sept. 26, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/26/
legislators-shouldnt-rush-to-enact-laws-on-private-drone-use/.
218. Id.
219. See Nick Logan, Drones: The Good, the Bad and the Ugly, GLOBAL NEWS (Dec. 2, 2013),
http://globalnews.ca/news/1003851/drones-the-good-the-bad-and-the-ugly (discussing the good and bad
consequences of broad drone use).
220. See 13 Jobs Match Your Search (Sept. 14, 2015) https://www.amazon.jobs/results? (showing
current job listings in Amazon’s Prime Air department).
221. Interview with Jeff Bezos, supra note 174.
222. E.g., Causby, 328 U.S. at 256; Delta Air Corp., 20 S.E.2d at 245 (showing lawsuits involving
airplanes in the 1930s and 1940s).
number on it, akin to license plates, which the operator needs to attach to the
bottom of the drone so that it is visible to a person from ground level. If a
drone is flying so low that it is causing issues for a landowner, then it should
be low enough that the property owner can read the number. The property
owner can then look up that number and find whom the drone is registered to.
Again, a separate drone department can field complaints regarding personal
drone usage, but ultimately states would be the final arbitrator. If a person is
caught flying without this sticker, for example, if the drone crashes into
another’s drone or someone’s property and the drone operator is turned into the
state for not complying with the registration, then she will be fined, just as if
someone were driving a car without insurance.
Finally, one of the most involved plans that has been advocated for is
offered by urban designer Mitchell Sipus.223 As an urban designer, he wants to
ensure that drones do not takeover American airspace leaving landowners in a
world of whizzing aircrafts.224 He suggests that the FAA create different
flying zones; he calls it a parallel between “traffic law and drone law.”225 For
example, in wide open spaces drones should be allowed to fly at lower
altitudes and at faster speeds.226 However, where there are clusters of homes,
drones should fly slower and at higher altitudes.227 It is a sort of traffic system
for drones.228 The basic logic is you can go fast on the autobahn, but you need
to slow down in neighborhoods. Essentially the plan begins by taking an aerial
map of the area and cutting up the sky into four zones; green, yellow, orange,
and red.229 The green zones are open areas where there are not many people,
and it is safe to fly.230 Yellow and orange areas are areas where there are
clusters of buildings.231 Yellow areas are spaces which may be okay to fly
during the night, but restricted during the day (i.e. housing subdivisions).232
Orange areas denote that flying during the day is okay but at night it is not
(e.g., an observatory with a telescope which drones may interfere with at
night).233 Red zones are areas where there are large clusters of people.234
Allowing drones to only fly over homes at night would take care of the issue of
people not being able to enjoy the outdoors during the day.235 Sipus imagines
a world where drones can have sensors so they know when they are entering a
red or yellow area and can automatically divert its course.236
223. Kelsey D. Atherton, The Future of Urban Planning: Zoning for Drones, POPULAR SCI (Aug. 22,
2014), http://www.popsci.com/article/technology/future-urban-planning-zoning-drones.
224. Id.
225. Id.
226. Id.
227. Id.
228. Id.
229. Id.
230. Id.
231. Id.
232. Id.
233. Id.
234. Id.
235. Kirsten King, Drone Zoning: Urban Planning and the Future for Drones, DRONELIFE.COM (Sept. 3,
2014), http://dronelife.com/2014/09/03/drone-zoning-urban-planning-future-drones.
236. Evan Rawn, The Three-Dimensional City: How Drones Will Impact the Future Urban Landscape,
It would surely take municipal governments’ time and money to establish

these zoning airspace laws, but if they are willing to invest time and money, it
could create a safe highway in the sky. Sipus points out that there was once a
time when cars were new, and pedestrians were both skeptical and scared of
automobiles.237 At first, people sped around unsafely, but eventually, traffic
lights and laws were put into place; this is exactly what Sipus intends.238
These drone traffic laws do not necessarily have to be in place at the same time
drones are cleared for takeoff. The FAA can choose to allow drones to be
flown with regulations it passes and take more time to create airspace traffic
laws so that it is done correctly. Moreover, if the FAA does not want to
implement airspace zoning, individual states can choose to limit drone use via
this type of regulation. Not everything can get done at once, and it is important
to realize that regulations and safety guidelines can continue to be improved
upon even after drones are released into the sky.
Ultimately, whatever guidelines the FAA passes, it is extremely important
the FAA makes them known to the world. Since the market for drones is so
vast and the skepticism about drones is so prevalent it will be important to
deliver the guidelines in an understandable, universal manner so that everyone
from the Amazon CEO to average Joe has a grasp of what will be expected of
his use of drones.
V. CONCLUSION
Drones have the potential to propel the world forward. Drones can be
used for research, faster delivery, etc.239 Drones can and should be integrated
into the national airspace system as this new technology has the ability to teach
us many new things. Of course, drones can and probably will have negative
effects as well. However, the fear of negative effects on people and property
should not stop society from integrating these sophisticated devices into the
world. There can be resolutions and guidelines put into action to ensure that
drones and property owners happily coexist. The FAA must foresee the
problems of land use that will arise and ward those issues off before they
become a problem. The FAA and the American public need to work together
in order for there to be a seamless integration of drones. As long as the FAA is
aware of America’s fears, communicates with the American public about the
regulations that will be passed, and Americans relay their objections, a
cohesive plan can be formed.
Although privacy issues have been the main focus of drone integration
thus far,240 the FAA needs to be sure to take an all-encompassing look at the
issues that may arise, privacy being one of them but land use being another.
The FAA needs to have rules set in place at the outset of its drone regulations
ARCHDAILY (Jan. 1, 2015), http://www.archdaily.com/583398/the-three-dimensional-city-how-drones-will-

impact-the-future-urban-landscape.
237. Atherton, supra note 224.
238. Id.
240. Drones Take Over, supra note 8.
so that the rules become commonplace and drone users know from the
beginning they are to respect landowners and their property. A world where
drones buzz around and landowners enjoy the benefits of those drones without
feeling any negative consequences is an attainable goal. There are a number of
ways to clarify regulations and resolve land use issues. Landowners and
airplanes learned to exist together and so too can drones and landowners. The
fact the FAA keeps missing deadlines for drone regulation proves how difficult
drone integration is.241 However, there is no doubt more regulations are on the
way and drones will be used by civilians and corporations.242 As with every
other major technological advance there are fears and controversy, but it is just
as important to remember that the world cannot keep moving forward without
this technology. If the FAA deals with the issues at the outset of this mass
movement there is no doubt that drones can become an integral part of
American society. The reality is, drones are the way of the very near future
and society must embrace them.
241. Howell, supra note 1.


Look at Land Use Issues That Will Arise With Integration of Drone Technologies

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Look at Land Use Issues That Will Arise With Integration of Drone Technologies

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A HIGHWAY IN THE SKY:

A LOOK AT LAND USE ISSUES THAT

to use drones to deter criminals and patrol neighborhoods.7

for-agriculture.html (last visited Sept. 15, 2015).

establish, yet drones are capable of negatively affecting landowners; property

altitudes for sustained periods of time, unlike airplanes and helicopters.24

proposed.37 In fact, many people, including the Government Accountability

50. Barr & Bensinger, supra note 11.

A. How Low Will the FAA Go?

altitude of flight, and it is considered public domain.102 As drones are

102. Causby, 328 U.S. at 256.

B. Private Nuisance Claims

Private nuisance is the typical cause of action brought in situations where

because the popularity of model aircrafts was never as pervasive as drones

The next logical cause of action is trespass. Trespass is a “physical

146. DOLAN & THOMPSON, supra note 12, at 11.

Therefore, according to some courts, property owners still have a trespass

The point of creating regulations and laws is to foresee the potential

property law rights.186

F. Drone Flights: A Government Taking?

may be regulated to a certain extent, if regulation goes too far it will be

194. Sisolak, 137 P.3d at 1121.

It would surely take municipal governments’ time and money to establish

ARCHDAILY (Jan. 1, 2015), http://www.archdaily.com/583398/the-three-dimensional-city-how-drones-will-

241. Howell, supra note 1.

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