Jagerbomb52
Well-Known Member
Sounds like something Ryan J. Latourette would enjoy getting involved with. He loves to challenge cases like this.
Stopped by campus police and told I can't fly over campus, even though i had LAANC authorization
- Thread starter merk
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Not really in this case - the officers cannot be expected to adjudicate themselves on which laws are valid.
Captain Lopez
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HoozierDroneDaddy
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Sorry, was not implying you did. Was referring to the above suggestions by other to continue flying.
It's amazing how you know these things without having been there.
I didn't go to them because I wasn't really focusing on any specific building or anything. These were wide shots just showing the location of the university relative to the property I was photographing. Plus, it would just mean extra time for me to try and find whoever is responsible and waiting to talk to them. I've never requested permission from anyone to photograph a public space, other then through LAANC if it was needed. The only reason why this happened this time is because they've apparently installed a drone tracking system. Otherwise people rarely even notice I am flying a drone once I have it up in the air.
I usually try to be polite and courteous when I am shooting. But having to track down whoever is responsible for a property before flying the drone would just be too much of a hassle for me. Plus they could always say no. And like I said, this is the first time someone even noticed I was flying a drone over their property. The drone was at around 200 ft up at the time so no one would have noticed it if not for the tracking system they have.
So i contacted the FAA and they replied. I think I have my definitive answer now:
You are correct. The University of Michigan can prohibit activities on the property over which they have jurisdiction. They have no jurisdiction over airspace.
Federal Law 49 U.S. Code §40103 stipulates (my emphasis added):
(a)(1) the US Government has the exclusive sovereignty of airspace of the United States;
(a)(2) a citizen of the United States has a public right of transit through the navigable airspace.
(b)(1) the Federal Aviation Administration shall regulate the airspace to ensure safety and efficient use of the airspace.
You are correct. The University of Michigan can prohibit activities on the property over which they have jurisdiction. They have no jurisdiction over airspace.
Federal Law 49 U.S. Code §40103 stipulates (my emphasis added):
(a)(1) the US Government has the exclusive sovereignty of airspace of the United States;
(a)(2) a citizen of the United States has a public right of transit through the navigable airspace.
(b)(1) the Federal Aviation Administration shall regulate the airspace to ensure safety and efficient use of the airspace.
So the key phrase is "navigable" airspace. A quick google search brought up a lawyers discussion on this exact point and drones.
"Federal law (The Air Commerce Act) gives the government exclusive control over "navigable airspace." The FAA defines and regulates navigable airspace, through which the public has a right of transit. Today, navigable airspace is defined as the air space above the lowest altitude at which airplane flight is authorized (500 to 1,000 feet, depending on the area). It also includes air space needed for takeoff and landing.
State laws, too, have a say in how much air space a landowner owns and can control. For example, an owner generally has the right to remove tree branches from a neighbor's tree that overhang the property line (the overhang is considered a trespass). Similarly, an owner may consider a hunter to have trespassed if the hunter fired a shot that traversed the owner's property. State and local governments have enacted building height restrictions and laws prohibiting view obstructions. And some states have made drone flights above private property a trespass, period. But when it comes to laws regarding navigable airspace, the FAA has the final say. In fact, the FAA has taken the position that it has the power to regulate aircraft, including drones, at any altitude, including that below flight levels."
When a Drone Flies Over My House, Is It Trespassing?
The age-old laws of trespass run smack up against the power of the FAA to regulate air space.
The lawyer also points out that state and local laws are all over the place when it comes to this, and has this link to the National Association of State Legislatures' website and their compendium on Current Unmanned Aircraft State Law Landscape.Current Unmanned Aircraft State Law Landscape
Many state legislatures are debating if and how unmanned aircraft systems (UAS), commonly called unmanned aerial vehicles (UAVs) or drones, should be regulated.
www.ncsl.org
Your argument depends on narrowly focusing on 49 U.S. Code §40103 (a) (2), which grants public right of transit through "navigable airspace". However, (a) (1) clearly establishes federal sovereignty over all airspace, which preempts any attempt by states or local authorities to pass laws regulating any airspace. The distinction is important; it means that you don't necessarily have a right to fly your aircraft below navigable airspace altitude at any location, but it reserves regulation of that to the FAA.So the key phrase is "navigable" airspace. A quick google search brought up a lawyers discussion on this exact point and drones.
"Federal law (The Air Commerce Act) gives the government exclusive control over "navigable airspace." The FAA defines and regulates navigable airspace, through which the public has a right of transit. Today, navigable airspace is defined as the air space above the lowest altitude at which airplane flight is authorized (500 to 1,000 feet, depending on the area). It also includes air space needed for takeoff and landing.State laws, too, have a say in how much air space a landowner owns and can control. For example, an owner generally has the right to remove tree branches from a neighbor's tree that overhang the property line (the overhang is considered a trespass). Similarly, an owner may consider a hunter to have trespassed if the hunter fired a shot that traversed the owner's property. State and local governments have enacted building height restrictions and laws prohibiting view obstructions. And some states have made drone flights above private property a trespass, period. But when it comes to laws regarding navigable airspace, the FAA has the final say. In fact, the FAA has taken the position that it has the power to regulate aircraft, including drones, at any altitude, including that below flight levels."
When a Drone Flies Over My House, Is It Trespassing?
The age-old laws of trespass run smack up against the power of the FAA to regulate air space.www.criminaldefenselawyer.com
The lawyer also points out that state and local laws are all over the place when it comes to this, and has this link to the National Association of State Legislatures' website and their compendium on Current Unmanned Aircraft State Law Landscape.
Current Unmanned Aircraft State Law Landscape
Many state legislatures are debating if and how unmanned aircraft systems (UAS), commonly called unmanned aerial vehicles (UAVs) or drones, should be regulated.www.ncsl.org
Not my argument, I'm not a lawyer, just pointing to his opinion on the matter.
Also 40103 (b)(1) states "The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest."
Which seems to the non-lawyer me that the FAA has "control" over navigable airspace.
A presentation at a symposium last year on this subject summed the quandary up in the abstract as...
"Two critical but unanswered questions concerning the National Airspace System, are where does navigable airspace begin and where do private property rights end? The juxtaposition of private property rights and navigable airspace are inherently in conflict when considering common law principals and two seminal cases, Causby v. United States, 328 U.S. 246 (1946) and Griggs v. Allegheny County, 369 U.S. 84 (1964). The FAA purports that the National Airspace System starts at the surface. However, common law principles of property, nuisance, trespass, privacy, and Fourth and Fifth Amendment Rights of Constitutional Law along with state and local laws actually define where the National Airspace System starts, not the FAA."
Drones: Where does the National Airspace System Start?
Unmanned Aerial Systems (UAS), Unmanned Aeronautical Vehicles (UAV), drones and Personal Aerial Vehicles (PAV) constitute the greatest technological advancement since the jet age. (Elaine Chao, Secretary of Transportation, October 26, 2017) This technological advancement has prompted significant...
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If the FAA is in charge of navigable airspace only, and that starts at 500ft, then wouldn't that mean the FAA should have no authority over drones since we're all (supposed to be) flying at 400ft or lower?So the key phrase is "navigable" airspace. A quick google search brought up a lawyers discussion on this exact point and drones.
"Federal law (The Air Commerce Act) gives the government exclusive control over "navigable airspace." The FAA defines and regulates navigable airspace, through which the public has a right of transit. Today, navigable airspace is defined as the air space above the lowest altitude at which airplane flight is authorized (500 to 1,000 feet, depending on the area). It also includes air space needed for takeoff and landing.State laws, too, have a say in how much air space a landowner owns and can control. For example, an owner generally has the right to remove tree branches from a neighbor's tree that overhang the property line (the overhang is considered a trespass). Similarly, an owner may consider a hunter to have trespassed if the hunter fired a shot that traversed the owner's property. State and local governments have enacted building height restrictions and laws prohibiting view obstructions. And some states have made drone flights above private property a trespass, period. But when it comes to laws regarding navigable airspace, the FAA has the final say. In fact, the FAA has taken the position that it has the power to regulate aircraft, including drones, at any altitude, including that below flight levels."
When a Drone Flies Over My House, Is It Trespassing?
The age-old laws of trespass run smack up against the power of the FAA to regulate air space.The lawyer also points out that state and local laws are all over the place when it comes to this, and has this link to the National Association of State Legislatures' website and their compendium on Current Unmanned Aircraft State Law Landscape.
Current Unmanned Aircraft State Law Landscape
Many state legislatures are debating if and how unmanned aircraft systems (UAS), commonly called unmanned aerial vehicles (UAVs) or drones, should be regulated.www.ncsl.org
And no I'm not trying to seriously argue that point. It just seems to contradict itself if that were the case.
Of course. But that's not going to stop people from selectively quoting and ignoring context for the sake of arguing.
I think you're rightly pointing out the issue that the various lawyers have been saying. The FAA is the only one that can control/regulate airspace above 500ft (i.e. Navigable Airspace), but the FAA has also asserted that they can regulate all airspace - including that below navigable airspace down to the grass/dirt. Also I wouldn't be surprised if Congress hasn't already given the FAA explicit statutory authority over drones. On the other hand, State/local governments are saying that they too can place restrictions on the airspace that is below the FAA's exclusively controlled navigable airspace - which is the whole crux of the issue.
With all these state/local laws popping up on where drones can fly, has the DOT/FAA every issued a specific directive to a state/local jurisdiction saying the FAA is the only entity that can regular airspace and that their law is illegal or ordered a state/local jurisdiction to change their drone law?
So using the google again there is more to this story, and one drone website had a nice summary on Federal Preemption to answer my earlier question....
rotordronepro.com
Federal Preemption
In law, the concept of federal preemption holds that an individual state, county or city cannot promulgate a law, regulation or ordinance that conflicts with the federal government’s own rules. This principle has been tested repeatedly as local jurisdictions create rules to govern the use of drones that run afoul of the FAA’s dominion over the NAS. The resulting legal decisions have created bright line separation between the FAA and local governments, as well as some important gray areas.
On December 17, 2015, the FAA chief counsel published “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet” that outlined the lines of authority. This document features prominently in FAA’s commentary to its own regulations under Part 107. Among other things, the fact sheet:
“ Summarizes well-established legal principles as to the Federal responsibility for regulating the operation or flight of aircraft, which includes, as a matter of law, UAS. The Fact Sheet also summarizes the Federal responsibility for ensuring the safety of flight as well as the safety of people and property on the ground as a result of the operation of aircraft.
“Substantial air safety issues are implicated when State or local governments attempt to regulate the operation of aircraft in the national airspace. The Fact Sheet provides examples of State and local laws affecting UAS for which consultation with the FAA is recommended and those that are likely to fall within State and local government authority.”
The fact sheet makes clear that FAA is in charge of drone flights, training and equipage and that before state or local governments attempts to regulate in these areas, they would be well-advised to consult with FAA to ensure that state and local governments do not overstep.
However, the fact sheet also states that state and local government are responsible for “Laws traditionally related to state and local police power, including land use, zoning, privacy, trespass, and law enforcement operations”; “requirement for police to obtain a warrant prior to using a UAS for surveillance;” “specifying that UAS may not be used for voyeurism”; “prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing”; and “prohibitions on attaching firearms or similar weapons to UAS.”
Confirming the FAA’s Authority
In at least one instance, the courts have already shown deference to the FAA as regards the operation of UAS in the context of local regulations: Singer v. City of Newton, 284 F.Supp 125, (2017). The plaintiff in this case, Dr. Michael Singer, is a physician and professor at Harvard University. A drone enthusiast and certified pilot under Part 107, Dr. Singer sued when his home town of Newton passed an ordinance requiring all UAS to be registered with the city and banned flights at an altitude below 400 feet above private property without the expressed permission of the owner, among other provisions.
The court agreed with Singer that the ordinance was preempted by federal law. The court observed that since the FAA only allows drone flights at an altitude of 400 feet and below, the ordinance effectively banned drones in the city, when both congress and the FAA were charged with integrating drones into that same airspace. The city appealed the decision, but later asked for its appeal to be dismissed—a motion granted by the court.
Rules & Regulations: A history of drone laws in the United States - RotorDrone
Rules & Regulations: A history of drone laws in the United States
Intruder Weasel
Member
Good points Dronernator. You catch more bees with honey than vinegar. If you are shooting as a professional business then stay close to your customers, in this case, the university. If you're shooting for the joy of droning then make sure not to go too hard on the people/places/businesses around you. J.M.O.....
Just for clarity - the university was not my customer. I'm assuming if they had hired me to fly, they wouldn't then tell me I can't fly
I was flying for a realtor who wanted to highlight a properties location relative to the university and surrounding area.I emailed the university's office responsible for the drone flights and included the response from the FAA. I'll update this thread if and when I get a response back from them. The FAA also provided me with the contact info for the FAA regional counsel. I wish the DMV would respond as quickly and helpfully as the FAA did
Dronernator
Well-Known Member
Doesn't take many brain cells to picture the situation. Could have been an open top car but it wasn't, it was cold and the police had to knock. That means there's no easy way to turn 360 and car bodywork obstructing the view. Stupid place to be in control of a drone.
While not from the FAA there is federal court ruling on this.
Local Drone Law Struck Down by Federal Preemption | Insights | Holland & Knight
On September 21, a federal court for the first time struck down local ordinance attempting to regulate the operation of unmanned aircraft systems within its jurisdiction.
www.hklaw.com
Email the FAA UAS division at [email protected] and let them have the conversation with the police for you. Local police won’t be able to keep up with their knowledge or authority. I’ve done this very successfully in the past. They even emailed me a very official looking letter to keep in my flight bag.
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