Disputes over Drone uses in Public Airspace

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By: Archer (Ziyi) Chen

As we enter the 2020s, property rights have involved more abstract and immaterial aspects of our lives. One of the reasons for such a change is new, futuristic technologies. New disputes on property rights arose when those technologies started to be applied everywhere in baffling ways. Drones used to deliver goods exemplify this. Big companies like Amazon, UPS, and Dominos have announced they are launching projects using air drones to deliver their products to customers. Nonetheless, drones swiftly flying through the streets and neighborhoods filled with vehicles and people have raised public concerns. For instance, drones can pose physical threats to people if their packages fall or deviate from their predetermined routes. Drones may also make unpleasant noises and pollution that disturb the residents.

Who has the authority to regulate drone use?

Over the past 40 years, the Supreme Court has consistently reaffirmed that the right to exclude is “one of the essential sticks in the bundle of rights that are commonly characterized as property,” which is an exclusive right for a property owner to use and enjoy the “fruit” of his property. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021); Dolan v. City of Tigard, 512 U.S. 374, 384 (1994); Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979). 

Congress has authorized the Federal Aviation Administration (FAA) to regulate drone use and set up a series of standards on flying height, load weight, real-time location reporting, eligibility exams, and registration exemption. Most of the standards mainly concern drone uses in the airspace strictly above an owner’s private residential property. 

Professor of law Troy Rule at Arizona State University proposes several measures to regulate drone uses in airspace strictly above property. Market measures include online bidding by property owners of permits granted to corporations, and smart contracts between owners and corporations that are automatically executed and effective over a lengthy period of time instead of just for one-time use. On the government side, Congress should legislate to authorize specific federal administrative entities (e.g., FAA) to regulate drone uses related to national security and to clarify the standard and bounds of the drone use regulatory jurisdiction and other lingering questions. The drone uses unrelated to national security are addressed similarly by state legislatures and local regulating entities.

Uniform Law Commission (ULC), a non-profit that aims to promote consistency of laws across states and provide model legislation, has proposed a “per se aerial trespass” doctrine:

“A person operating an unmanned aircraft is liable to a landowner or lessee for per se trespass when the person, without consent, intentionally causes the unmanned aircraft to enter into the airspace below 200 feet above the surface of land.” 

The emphasis is on a specified altitude range above the property, the owner’s consent, and the drone user’s intention.

The application of the Private Nuisance Doctrine in public airspace regulation 

However, the proposals above only dealt with drone uses above a piece of property, but drone use in public airspace adjacent to the property has not been sufficiently addressed. While the adjacent public airspace is not part of the private property, it might also cause substantial interference with a property owner’s use of his land. 

The private nuisance doctrine can be used to protect a property owner from substantial and unreasonable interference of his property rights from sources outside of the property lines. Unlike the concept of trespassing, which concerns more the physical intrusion of a property, the Private Nuisance Doctrine is commonly used to address “annoyance” or intangible invasion of the owner’s right of “quiet enjoyment,” especially from sources outside of the property lines. For residential properties such use and fruit should include staying and resting at the property with basic safety, privacy, and tranquility. 

If a plaintiff has ownership or the right to possess a property and the defendant’s actions substantially and unreasonably interfere with the plaintiff’s enjoyment and use of their property rights, the plaintiff may bring up a private nuisance lawsuit. The court may order monetary compensation, injunctive relief (which requires the defendant to stop the actions that caused the nuisance), and/or awarding the plaintiff the fees caused by bringing up a lawsuit. To determine whether the defendant’s action constitutes an unreasonable interference, the court may refer to the character of the community where the action takes place and the suitability of the activity to that neighborhood. Another more modern and comprehensive method also evaluates the social and economic usefulness and unavoidability of certain actions that have negative consequences, which, if confirmed, may justify the interference.

Conclusion

When drone use causes substantial interference with the owners’ use and enjoyment of the property without constituting a physical intrusion (i.e. trespass), the legal theories centered on private nuisance can be utilized to judge cases. Legislators can legislate to clarify what kinds of drone use constitute a private nuisance and authorize administrative entities to enforce it. Only with the legislation and administration addressing drone uses in public airspace do we finally get a complete picture of drone use regulation.

Archer (Ziyi) Chen was a part of the Sunwater Institute’s 2023 Summer Internship program. He is a senior undergraduate studying political science and economics at New York University and is actively involved in academic research and journalism.