Many enthusiasts young and old enjoy operating small drones or Unmanned Aerial Vehicles (UAV). At the end of 2017, Bard College Center for the Study of the Drone estimated that there were over 836,000 hobbyist users in the US. Recreational drones are now everywhere and probably not going away anytime soon.
Any UAV between 0.55lbs to 55lbs and used only for recreational use can be operated without a license but the drone must be registered with the FAA.
Drones can certainly be a fun way to spend an afternoon but some residents that live under the path of even recreational drones are not happy. People don’t want drones peeking into their bedroom windows, buzzing their house, or their livestock. If a drone flies over someone’s property does that mean its trespassing?
The drone industry has been moving at such a fast pace, court case law has not quite caught up. Last known case that has pertinence is from 1946. The US Supreme Court ruled in United States vs. Causby that a North Carolina farmer could assert property rights up to 83 feet in the air. This case actually had to do with military planes flying over his farm at low altitudes.
Property owners sometimes get so angry that they want to shoot down drones flying over their property which is not allowed under FAA rules since a drone is considered an aircraft.
But does the federal government actually have jurisdiction over aerial trespass?
A 2015 ruling by a federal judge in Louisville, Kentucky threw out a lawsuit against William Meredith (self-proclaimed Drone Slayer) brought by drone operator and neighbor David Boggs. Boggs was suing Meredith for destruction of his $1,500 drone, but the judge dismissed the case because the judge found that the federal court was not the proper venue for Bogg’s claim (state court was a better fit according to the judge). Meredith shot down the drone because he felt Boggs was using it to spy on his daughter.
In another case brought last year, the City of Newton, Massachusetts lost its lawsuit (first of its kind) when a US District Judge ruled the city had no jurisdiction to control its airspace since that is the domain of the FAA. The city could neither set a minimum of 400 feet for drone operations nor require banning drone flight beyond the visual sight line of the operator.
In a 2015 memo, the FAA stated that local jurisdictions have a right to create regulations that deal with land use, zoning, privacy and trespassing. The FAA is concerned that there might be too much of a patchwork of laws and would like to encourage state lawmakers instead of local jurisdictions to take up the regulation of drones.
Cities though seem to be the leader in drone regulations and not states. And it’s not easy to bridge the gap between privacy and trespassing in airspace that the local jurisdictions cannot regulate.
Greenwood Village, Colorado City Attorney Tonya Haas Davidson agreed, “It’s very difficult to regulate drones because of the FAA.”
Greenwood Village, a city of 16,000 in Arapahoe County, has recently tried to propose local regulations. City Manager John Jackson said, “We want to preserve a high quality of life for our citizens, and privacy and public safety are a big part of that. But we’re not trying to be the drone police.”
Greenwood Village prepared their ordinance to regulate drones through existing city powers and not tackling the sticky wicket of the FAA regulations:
· No recording of photographing of any person via drone if that person has a “reasonable expectation of privacy”
· No launching, landing or operating a drone on private property without consent of property owner
· Cannot use a drone to harass, annoy or alarm humans or animals.
· Cannot use a drone to interfere with law enforcement.
City ordinances can be as different as the town.
Cherry Hills, Colorado Mayor Laura Christman said her community decided to clamp down on drones due to the city’s prized horse population. Drones can spook a horse either in a pasture or in a riding situation and can hurt the animal as well as any people riding or who happen to be nearby. The town requires all drones to be registered with the FAA and operators to follow FAA guidelines. Also, operators are prohibited from flying over city property, including public streets/buildings, parks and trails.
The Telluride, Colorado drone ordinance requires drone users to be approved by the town or property owners before flying over the respective spaces. Drones cannot be flown near people nor wildlife not directly involved in the operation. Operators also cannot fly high or drunk.
Currently the only Colorado state law on the books has to do with hunting. Operators cannot use drones in connection with any hunting activity which includes scouting. This law actually includes all aircraft and drones were recently added to the mix. In 2017, state lawmakers passed a bill that would study and implement procedures on drone usage for state and local governments. Ski areas have published their own guidelines for drones.
As drones become more prolific in the public and private sphere, how will the privacy of people and even animals be treated? State lawmakers, city councilors and judges will all have a role to play before UAV law becomes real for both drone operators and those of us who have nothing to do with these flying machines.
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