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Can drones fly freely above private property, with the regulatory permission of the FAA, or do landowners have the right to limit drone access under state and local trespass law?

It’s a thorny legal issue that has never quite been resolved.  In practice, under an informal agreement that’s come to be known as “cooperative federalism,” the FAA and some 25 US states have come to an uneasy compromise.

The agreement is this: Drones can fly above private property, even at low levels, as long as they don’t pose a noise nuisance or privacy invasion. or otherwise interfere with the activity of the residents below them.  If they do, landowners can sue the drone owners or ask for criminal enforcement to ensure that trespassing drones are barred from their midst.  Some states and localities have passed laws to this effect.

It’s a logical compromise but it doesn’t actually resolve the competing legal claims at stake.

Under a 1946 Supreme Court decision, private landowners are supposed to control what happens not only on their property – but also above it.  At least, in the airspace immediately above it.  But the FAA, which regulates the activities of drones, maintains that it alone has authority over the nation’s airspaces, right down to the “blade of grass” below them.

Who’s actually right?  Well, it’s never been tested in court.  But drone industry stakeholders have consistently defended the FAA’s authority to try to beat back efforts by states and localities to impose unduly harsh restrictions on drone flying.

On many matters, everyone is in agreement, in fact.  Drones should not fly too close to airports or to government buildings.  Drone flying over public gatherings – by anyone other than law enforcement, for legitimate anti-crime reasons – is a no-no.  And restrictions on drones flying over city parks, especially, are often in place, without much controversy.

In practice, the issue comes down to the precise purpose and nature of the drone flying – how intrusive is it?  In Rhode Island disputes have emerged between drone fliers seeking to film scene vistas along beaches and coastlines, and sunbathers demanding that their personal privacy be respected.  Police have intervened on one side or the other, depending on the circumstances.

But the real issue looking forward most likely concerns aerial package and cargo drone deliveries and major inspection operations.  Currently, these are still fairly limited in number and scope;  in fact, most still occur above public highways and waterways or in non-residential commercial zones, as per FAA guidelines.  Retail deliveries have been limited for the most part to relatively small sparsely populated suburban communities – in fact, to just a few dozen nationwide.  To date, most local residents in and around these areas have barely noticed these short-distance drone flights.

But what happens when the FAA begins granting more expansive authority to UAV companies to conduct unlimited flights over larger towns and eventually cities?   Instead of witnessing an occasional overflying aircraft, local residents could find their airspaces filled with a constant whirring and buzzing of drones, at all hours of the day, and possibly even the night. Things could get quite messy from a legal and regulatory standpoint.

The first signs of trouble – for example, recurring noise complaints about low altitude retail deliveries by Walmart in Arizona – are already on the horizon.  More complaints are cropping up at other sites where Walmart sites are stepping up store deliveries.

To their credit, some drone companies are attempting to pre-empt these complaints – either through better drone and propeller designed to minimize drone noise or by agreeing to fly and deliver packages close to the maximum feasible height – which is 400 feet, under FAA regulations.  Zipline’s drones are primarily fixed wing aircraft that simply fly by their destination zones at high altitudes, releasing their packages by parachute, rather than hovering over homes and business for a minute or more.  In theory, this delivery mode makes the deliveries less obtrusive.

Another option is to restrict retail deliveries to specified landing zones away from residential properties.  That would require customers to make an extra effort to retrieve their goods – or to deploy vans, bikes or scooters to reach the customer’s home or office.  In China, an enterprising new drone company operating in congested urban areas makes all of its daily food deliveries to and from the rooftops of tall office buildings, far from the traffic below.

Are any of these models sustainable, and how will they be received?

Past surveys have suggested that most consumers are blithely unaware of the current state of the drone industry and many of the legal and regulatory issues involved.  But a survey conducted last April by the Center for Growth and Opportunity at Idaho State University suggests some potential warning signs on the horizon.

The survey asked randomly-selected respondents how they viewed the prospect of rising drone traffic in their communities as well as their opinions about the rights of federal and state authorities to authorize and regulate drone flights over private property.

Survey respondents, rather overwhelmingly – about 70% –  sided with the idea that private citizens should indeed have a right to control the airspace above their property at altitudes as high as 1,000 feet and as low as 100 feet.  Under current FAA regulations, drones can only fly at a maximum altitude of 400 feet while no formal altitude level is designated as too low.  Survey respondents felt more restrictions, especially at lower levels, were entirely justified.

Furthermore, 61% of respondents felt that the FAA should not be permitted to override private landowner objections by imposing its own federal “pre-emption” authority.  This is an important finding as the FAA continues to insist that it enjoys an absolute right to control the nation’s airspaces at any altitude level – and is prepared to go to court, if need be, to enforce that claim.

Objections to commercial drone overflights were even stronger when respondents were asked to respond to a specific scenario:

“Suppose an online retailer has announced plans to begin launching delivery drones from a new distribution facility.  The drones will fly directly over certain homes situated near the facility at an altitude of 200 feet every five minutes during daylight hours.  Should owners of these homes have rights to prevent the retailer’s drones from repeatedly flying over their land?”

In this case, over three quarters of survey respondents (76%) agreed that homeowners should have the right to restrict repeated drone overflights.

These survey responses do not necessarily mean that additional compromises cannot be reached as drone deliveries expand. But they do suggest that efforts by the FAA to move ahead quickly to expand drone overflights for retail deliveries are likely to face mounting opposition – and potential legal challenge.

If the Idaho State survey is accurate, some real compromise is going to be necessary moving forward.  Recently, drone industry advocates attempted to develop a model drone trespass law that would be applicable nationwide – but the effort failed.  As this latest survey indicates, there is real concern among the population at large that retail drone deliveries on the scale currently contemplated – millions of deliveries annually, and hundreds of thousands daily – is too great a disturbance to the peace and tranquility of modern residential life.

Rather than hoping against hope that the FAA will one day be able to impose its authority – simply by fiat – stakeholders of various kinds need to consider what kinds of additional compromises might make sense.  Drones flights over private property might be approved en masse – as a matter of basic principle – but additional restrictions on the altitude, location, volume and timing of flights, as well as their mode of delivery,  might still be considered.  Some states might want tighter restrictions, others fewer.  In the end, a patchwork of state laws without complete federal uniformity may be needed.

The time to begin these discussions is now, while they’re barely on the radar screen.  Conflicts, now largely few and muted, will inevitably grow in number and volume.  The FAA, which is in the process of authorizing more BVLOS flights for retail delivery, should convene a special review group to discuss the future of drone airspaces, in the hopes of heading off litigation and court battles that might derail the industry’s progress, just when it seems poised for take-off.