State and Local Regulation of Drones

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

This article provides an overview of the current state of the law with respect to the municipal regulation of drones outside the law enforcement context. Drones are referred to in Federal law as “unmanned aerial systems”, presumably to avoid the military connotations of the term “drone.” As the term “drone” is common parlance, however, it will be used in this article. Nothing in this article should be construed as legal advice. The law in this area is rapidly developing at the Federal, State and local levels, and anyone who has specific legal questions regarding the use of drones should consult counsel. The website of the Federal Aviation Administration (FAA) is a good resource for information on the rules governing the use of airspace generally, and the regulation of drones specifically.

I. Introduction

Drones for both recreational and commercial use have become more widely available and more sophisticated over the past few years. Changes in Federal regulation have made drones more readily available for commercial use. Many states have enacted or are considering statutes and regulations, and municipalities are considering regulations tailored to local conditions. The interface between Federal, State and local regulation remains largely undefined, and will undoubtedly become more clearly defined over time. Some principles, however, can be ascertained both from the current Federal regulations and existing state law.

II. Legal Jurisdiction of Airspace

The Federal government has exclusive jurisdiction of American airspace {49 U.S.C. § 40103(a)(1)}. Congress delegated to the FAA the authority to regulate “aircraft” operating in “navigable airspace” which is defined as the “airspace above the minimum altitudes of flight prescribed by regulations … including airspace needed to ensure safety in the takeoff and landing of aircraft.” (See 49 U.S.C. § 40102(a)(32). Over uncongested areas, airplanes can operate at an altitude of 500 feet above the ground. (See 14 C.F.R. § 91.119(a) and (c). All of these rules suggest the Federal government has exclusive jurisdiction of “navigable airspace”. Generally, when the Federal government assumes exclusive jurisdiction of some activity, States and municipalities are prohibited from enforcing inconsistent laws.

It is generally understood that States and municipalities are authorized, for example, to regulate the heights of buildings and other structures by virtue of their authority to protect the health, safety, and welfare of their residents. By the same token, private property owners have always been thought free to plant trees, build structures, and otherwise take advantage of the airspace above their property within limits only of competing interests of their neighbors and applicable local regulation.

Over the centuries prior to the advent of air travel, courts developed legal principles based in the law of trespass to define the rights of property owners in the airspace above their property. Under these principles, an intrusion into airspace constituted a trespass if it occurred within the “immediate reaches” of the airspace adjacent to the land, and substantially interfered with the property owner’s use and enjoyment of his property. Restatement (Second) of Torts § 159. There is no hard-and-fast rule as to what constitutes the “immediate reaches” or what constitutes a “substantial interference.” The answers to those questions are developed by courts on the specific circumstances of each case. Courts have found, for example, that power or telephone wires strung over property, or the eaves of a neighboring building hanging over the property lines, constituted a trespass under this principle.

All of this suggests that there is an overlap of jurisdiction between the Federal government’s exclusive authority over “navigable airspace” and the long-standing authority of State and local governments to regulate activities within the airspace within the “immediate reaches” adjacent to the ground. The legal authority of States and municipalities to regulate airspace below the limits of “navigable airspace” as defined in Federal law, however, remains uncertain.

III. The Impact of Drones

For many years, only those engaged in air commerce or recreation, land use applications for tall structures, or legal disputes with their neighbors were interested the legal nuances of jurisdiction of airspace. The advent of drones, however, has provided far more people the ability to fly aircraft into the navigable airspace and thereby pose a potential threat to conventional aviation, as well as to privacy and public safety.

At the same time, the regulation of drones is of interest to State and local regulators who wish to prevent drones from threatening public health and safety by, for example, flying illicit drugs or weapons into correctional facilities, surveilling schools or playgrounds, flying over local water and sewer plants, or peering into bedroom windows. Such activities can, of course, take place outside the limits of “navigable airspace.”

These activities have focused attention on the jurisdictional gray area between Federal, state, and local jurisdiction of airspace, and new regulations and laws are being rapidly developed to define the legal responsibilities.

IV. Current Federal Law of Drones

The FAA recently released regulations regarding drones. (See Advisory Circular on Small Unmanned Aircraft Systems (sUAS) AC No. 107-2 (6/21/16). First, all drones that weigh between 0.55 pounds (250 grams) and 55 pounds (25 kilos) must be registered with the FAA. This can be done online and costs $5.00 (as of this writing).  No drone can be operated within 5 miles of an airport unless prior notification is provided to the airport and air traffic control. The term “airport” is defined as “a landing area used regularly by aircraft for receiving or discharging passengers or cargo.” (See 49 U.S.C. § 40102(a)(9). The definition may encompass local private landing strips. Persons interested in this issue may wish to consult counsel or the FAA for further guidance. The operator must keep the drone within visual line of sight at all times, and must always yield the right of way to manned aircraft.

Drones can be used for commercial purposes, but are subject to more stringent requirements. For example, the operator must obtain a Remote Pilot Airman Certificate, which requires a test based upon knowledge of the rules of the public airspace, and must be vetted by the Transportation Safety Administration. (See Remote Pilot – Small Unmanned Aircraft Systems Airman Certification Standards, Document # FAA-S-ACS-10, July 2016). The drone must undergo a pre-flight check to ensure safe operation. Commercial drones must remain under 400 feet, must not fly over people, and must not be operated from a moving vehicle (although these rules may be waived with permission of the FAA).

V. Permitted State and Local Regulation

When considering the intersection of Federal, State and local regulation, it is important to remember that Federal law trumps inconsistent State and local law. (It is equally important to remember these concepts are easy to state in broad terms but can be complex to apply in practice). Please consult legal counsel regarding any specific questions of Federal preemption of State or local law. This means, for example, that if a State law permitted the commercial use of drones up to 1,000 feet, that law would be unenforceable to the extent it is inconsistent with Federal law. Similarly, if State law required commercial operators to obtain a special license more stringent than the Remote Pilot Airman Certificate, that law would be preempted as well.

On December 17, 2015, the FAA published a Fact Sheet on State and Local UAS Laws (See www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf)) to summarize some principles defining the boundaries of Federal, state, and local regulation. The FAA’s intent in publishing this document is to avoid a patchwork quilt of inconsistent regulations from State to State and town to town and, above all, to ensure the safety of the public airspace.

The Fact Sheet is divided into two categories: State and local laws for which consultation with the FAA is recommended, and State and local laws within local government authority.

      A. Consultation Recommended

Consultation is recommended when the State or local government:

• Restricts flight altitude of drone.
• Restricts flight paths of drones.
• Ban the use of drones within town limits or over certain areas of town.
• Purports to regulate navigable airspace (i.e. above 500 feet).

The FAA may or may not approve such regulations, but prior consultation is recommended.

B. Generally Acceptable Regulation

Laws and regulations related to state and local police power to regulate health, safety and welfare, such as land use, zoning, privacy, trespass and local law enforcement, are generally outside federal regulation. A State or local government may, for example:

• Require the police to obtain a warrant prior to utilizing a drone for surveillance.
• Specify that a drone may not be used to harass or for voyeurism.
• Prohibit the use of drones for hunting and fishing, or to harass a person who is hunting or fishing. (Please note, RSA 207:57 prohibits drone surveillance of anyone lawfully hunting, fishing, or trapping. A regulation of the Department of Fish & Game prohibits the use of drones to locate or attempt to locate game for the purpose of taking it. Fis 312.01 and .02).
• Prohibit anyone from attaching a weapon to a drone.

VI. Conclusion

The increasing prevalence of drones creates new commercial and recreational opportunities, and poses challenges to privacy and public safety. State and local governments appear to have some authority to regulate the use of drones consistent with Federal law. The extent of this authority remains largely undefined and uncertain. Prudence suggests that anyone uncertain about the legal authority of the State or a local government to regulate drones should consult legal counsel or contact the FAA.

Attorney Christopher D. Hawkins is Of Counsel at Devine, Millimet & Branch, P.A. in Manchester. Chris can be reached by phone at 603.695.8530 or by email at chawkins@devinemillimet.com.