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Thread: FAA regulation of flying on private property?

  1. #1
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    FAA regulation of flying on private property?

    There has obviously been a lot of discussion on what the FAA can and cannot regulate. One point that I haven’t seen discussed is the statement issued by SCOTUS in the US v Causby case by Justice William O. Douglas.


    He states…
    If the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run" ... Thus, a landowner "owns at least as much of the space above the ground as he can occupy or use in connection with the land," and invasions of that airspace "are in the same category as invasions of the surface.

    So my question here is very simple. Doesn’t model aviation constitute a use of airspace in connection with the land? If it is then it would seem to me that flying over private property with permission of the owner shouldn't be able to be regulated by the FAA for the same reason they can't regulate indoor flying. It's not in the national airspace.

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    Sure they can. There are plenty of existing regulations that restrict what you can do on your own property. Just because it's yours does not make it a free for all.

    For example you cannot legally own an automatic firearm, even on your own property, without a class 3 firearms license (unless it was manufactured before May 19, 1986, then you can own that without a license.)
    Last edited by SecretSpy711; 9th June 2016 at 03:59 PM.
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    Quote Originally Posted by SecretSpy711 View Post
    Sure they can. There are plenty of existing regulations that restrict what you can do on your own property. Just because it's yours does not make it a free for all.

    For example you cannot legally own an automatic firearm, even on your own property, without a class 3 firearms license (unless it was manufactured before May 19, 1986, then you can own that without a license.)
    I think the FAA is scoped to act within the national airspace system though. Whereas other agencies like ATF are not restricted by such a scope.

    Here is some language from the 2016 reauth bill... https://www.congress.gov/bill/114th-...5AF93496E8BCA3

    “(10) UNMANNED AIRCRAFT SYSTEM.—The term ‘unmanned aircraft system’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.
    I would like to see it argued that flying over private property with permission of the owner is not flying within the national airspace system and thus exempt from FAA regulation.
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    I don't think that being over your own property excludes it from the NAS...
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    look at item (c) in the FAA minimum altitude FAR:
    http://www.flightsimaviation.com/dat...rt_91-119.html

    If an aircraft is over open water or sparsely populated areas, there is no minimum altitude, it just has to stay 500 feet from people, vessels, vehicles and structures. Doesn't say anything about whether the land or water is privately owned.

    Another example is crop dusters. Being over a farmer's land with his permission does not exempt the pilot from having a pilots' license, or a transponder, or needing to have annual inspections of the aircraft.
    Last edited by SecretSpy711; 9th June 2016 at 04:08 PM.
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    Thats the question isnt it. I haven't seen it discussed before. I think the quote above from SCOTUS is interesting because it could mean that if you own said airspace it would be set apart from the national airspace system. Even the FAA agrees that they have no regulatory authority over what happens indoors (like in gyms) because it's not a part of the NAS. So if it could be argued that the above SCOTUS ruling removes the airspace above your private property from the NAS then it can be argued that the FAA lacks the regulatory authority to regulate flying over private property.

    Presumably flights from full sized aircraft don't need permission from land owners because they don't generally interfere with the owners use or enjoyment of the land. Which is basically what SCOTUS ruled in the causby case. That low flights interfered with his use of the land and he was owed compensation.
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    Quote Originally Posted by SecretSpy711 View Post
    Another example is crop dusters. Being over a farmer's land with his permission does not exempt the pilot from having a pilots' license, or a transponder, or needing to have annual inspections of the aircraft.
    Thats a good point, but I would point out one thing. This is not the use of the airspace in connection to the land. In the model example a user is on the ground at all times and enjoying the land via the recreational activity of model flying. In the crop duster example the user leaves the ground and is no longer in connection with it.
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    I think there is a distinction to be made here between what the FAA can regulate, and trespassing. If you have permission from the landowner or if its on your own land then you are not trespassing, which is really what Causby was about. The government did not have permission from Causby to enter his property.

    To address whether property is in the NAS or not, consider also that the FAA regulates more than *just* the NAS, it also regulates ground ops at airports. You can have an airport on your own property simply by mowing the grass in an appropriate area and registering it with the FAA. Interesting side effect: Technically (according to the FAA), anyone wanting to fly their drone within 5 miles of your airstrip would need to notify you.
    Last edited by SecretSpy711; 9th June 2016 at 04:30 PM.
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    Quote Originally Posted by btown2 View Post
    So if it could be argued that the above SCOTUS ruling removes the airspace above your private property from the NAS then it can be argued that the FAA lacks the regulatory authority to regulate flying over private property.
    I tend to agree with that line of thought to a certain HAT, as part of the FCC's Antenna Structure Registration system (ASR) the FAA has set a limit of 200 feet AGL, if the structure is under 200 feet AGL then the FAA doesn't require it be registered, at or over 200 AGL the FAA considers it to be a hazard to navigation and the structure must be painted and lighted or day/night lighted.

    As such and on the surface, it would seem the FAA doesn't consider under 200 AGL to be part of the NAS by the wording of their own regulations.

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    In the United States the FAA regulates all aircraft operations in NAVIGATABLE air space, presumeably above 500 feet AGL. To date, no law has ever made the determination that models and drones are considered to be AIRCRAFT. If and when that destinction is made then that will open up several new issues. As far as flying over private property, parks, arenas, lakes, etc. the police and local government have ABSOLUTELY NO AUTHROITY to regulate those flights. All federal airspace is regulated by the FAA alone. But police and local governments may have authority over where any aircraft touch down or from where they take off if not on an authorized airport/landing field.
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