(Sorry if this has been posted already. I searched and was unable to find where it had been.)
Anyone interested in following the UAS case of National Transportation Safety Board v Raphael Pirker can click on the following link to read Pirker's Reply Brief:
This is old news, it having been filed May 12, 2014, and available all over the internet since, but there may be some here that are interested who are not aware. As a member of Academy of Model Aeronautics (AMA) I am kept abreast of the ongoing war over the FAA's determination to deny or severely restrict certain freedoms. Presently the AMA has a call out for all members to respond to the FAA through public comment re the FAA's June 23rd release of its onerous interpretation of the Special Rule for Model Aircraft. I encourage everyone to join this fine organization in their efforts to protect the little guy, as my fear is the moneyed interests will end up hogging the skies due simply to the cost/burden of compliance with unnecessary onerous regulations.
In reading through Pirker's Reply Brief, I especially found the following section noteworthy (I apologize for its length, but I believe the point made is very applicable to what I anticipate using my sUAS for).
(from Pirker's Reply Brief:)
Judge Geraghty declined to decide the issue of the scope of the FAA's authority, because he did not need to reach it. However, the dismissal should be affirmed on that basis as well because the FAA's statutory authority is limited, by statute, to regulation of conduct in navigable airspace.
This limitation on the FAA's jurisdiction is best understood by examining the origin of the agency's authority vis-a-vis the common law of property and its relation to private airspace. From the founding of the United States and for nearly two centuries thereafter, the nation's skies were considered under the common law to belong to the land owners below under the principle cujus est solum ejus est usque ad coelom -- the land owner owns the skies "to the heavens." See generally, Stuart Banner, Who Owns the Sky?, Harvard Univ. Press (2008) at 167-202. The advent of airplanes flying through that property in the 1920s posed a serious conflict with this doctrine, because every flight was technically an actionable trespass.
In 1926, Congress addressed this legal dilemma in the Air Commerce Act, by permitting the public to travel through the "navigable airspace," defined as the minimum altitude established by the Department of Commerce. Pub.L.No.69-254, 44 Stat.568. At higher altitudes, the public was effectively granted an easement to travel in what previously was considered private property. Section 3 of the Civil Aeronautics Act of 1938 provided "a public right or freedom of transit in air commerce through the navigable airspace of the United States."
Jurisdiction over, and control of, activity in the lower airspace remained unsettled, however, until the United States Supreme Court addressed the issue in United States v. Causby, 328 U.S. 256 (1946). In Causby, North Carolina farmers claimed that very low overflights by U.S. military planes on approach to an adjacent airfield resulted in livestock deaths and constituted a property taking under the Fifth Amendment of the United States Constitution. Id. at 258-59. The Supreme Court acknowledged that the airspace had become a public highway, but placed an important limit on public airspace: "it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. . . . The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land." Id. at 264.
As to the demarcation between private and public airspace, the Supreme Court held that "[t]he navigable airspace which Congress has placed in the public domain is 'airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.' 49 U.S.C. §180." Causby, 328 U.S. at 263. Because the over-flights in Causby were very low to the ground, they were found to be below public airspace, and were deemed a Fifth Amendment taking requiring just compensation to the Causbys. The fact that the FAA's predecessor, the Civil Aeronautics Authority, regulated the flight's operation does not change the result." On the contrary, the Supreme Court wrote that f that agency prescribed 83 feet as the minimum safe altitude, then we would have presented the question of the validity of the regulation." Id. at 263 (emphasis added).
This legal distinction between navigable airspace and the airspace adjacent to land and buildings continues into the modern era. For example, in Air Pegasus of D.C. Inc. v. United States, 424 F.3d 1206 (Fed. Cir. 2005), the Federal Circuit Court of Appeals cited Causby and recognized the distinction between "non-navigable airspace immediately above [a heliport's] leasehold" and the "navigable airspace" that was at issue in the case. Id. at 1217. The two types of airspace remain legally distinct, and that distinction is key to understanding the statutory limit of the FAA's authority.
It is well-settled that agencies do not possess inherent powers, but instead derive authority only as delegated by Congress. See Louisiana Pub. Serv. Comm n v. FCC, 476 U.S. 355, 374 (1986). It is therefore a fallacy to suggest that the FAA controls what people are permitted to do in every cubic inch of airspace above American soil simply by virtue of being the nation's federal "aviation" agency. The fundamental airspace distinction identified in Causby continues to be reflected in the language of the current Federal Aviation Act. In the Federal Aviation Act, the section relating to Safety Considerations in Public Interest indicates that the FAA is authorized to "control[] the use of the navigable airspace and regulat[e] civil and military operations in that airspace in the interest of the safety and efficiency of
both of those operations." 49 U.S.C. § 40101(d)(4) (emphasis added). The statute also provides that with respect to "Use of Airspace[,] The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace." 49 U.S.C. § 40103(b)(1). (emphasis added). As the administrator acknowledged in the full briefing on this issue before Judge Geraghty, navigable airspace generally begins 500 feet above ground level, as defined in 49 U.S.C. 40102(32) and prescribed in 14 C.F.R. § 91.119. Thus, even if Congress could authorize FAA regulation of activity in airspace below 500 feet without violating the principles in Causby, it has not done so. Rather, the FAA's organic statue empowers the agency to regulate only the activity in "navigable airspace." A broader grant of statutory authority to the FAA would require the nation to revisit the property rights demarcation addressed in the 1926 Air Commerce Act and Causby.
Nearly the entirety of the FAA's complaint concerns operation "at low altitudes," Appeal at 1, in proximity to buildings, vehicles, trees, sidewalks, railroad tracks, and even inside a tunnel — locations that are not in navigable airspace. The FAA's ban on commercial operations in these spaces, and its
(22 Other sections of the statute reinforce this limited scope. See, e.g., 49 U.S.C. § 44718 (authorizing the FAA to intervene when structures "result in an obstruction of the navigable airspace" ); 49 U.S.C. § 44501 (requiring the FAA to make "long range plans" for the "use of the navigable airspace" ).)
(23 A simple analogy is the automobile, whose operation is licensed and regulated by states on public roads but unregulated by those agencies when operated on private lands such as farms.)
(24 The only exception is paragraph 10 vaguely alleging that Mr. Pirker operated at altitudes between 10 and 1500 feet when manned aircraft "may have been flying within the vicinity." Because there is no allegation that a manned aircraft actually was flying in the vicinity, this claim must be dismissed as well, for all the reasons set out in our other sections, but also for failure to allege that this aspect of the flight "endangered the life or property of another." The maximum altitude specified in AC 91-57 is "voluntary.")
concomitant attempt to assess a civil penalty, exceed the scope of its statutory authority. Even if the FAA regulations could be read to apply to model aircraft operations, the FAA currently lacks jurisdiction to control or prohibit what people do with those devices at altitudes below 500 feet. The FAA's assertions to the contrary erase the fundamental 68-year-old property law distinction between public navigable airspace and the immediate reaches above private land, ignore United States Supreme Court jurisprudence, and represent an ultra vires foray outside the scope of the agency's statutory authority.
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I would never discuss on this site or on any internet site the manner in which I have chosen to incorporate imagery aquisition/photogrammetry into my surveying and mapping business, and would certainly advise others against doing so as well. However, it appears the FAA's authority has some limits.
McScotty-
Are you on to this one ?
Derek
I hope so:-S