Mine! The Government Perspective
The FAA issued its NPRM on December 31, 2019. The comments period closed on March 2, 2020. The FAA is now busy culling through the more than 53,213 public comments it received.
The FAA’s authority to issue rules on aviation safety is clear. Title 49 of the United States Code (49 U.S.C.), Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency’s authority. 49 U.S.C. 49 U.S.C. 44701(a)(5) charges the FAA with promoting safe flight of civil aircraft by prescribing regulations the FAA finds necessary for safety in air commerce and national security. 40103(b)(1) and (2) both direct the FAA to issue regulations for two purposes: (1) to ensure the safety of aircraft and the efficient use of airspace; and (2) to govern the flight of aircraft for purposes of navigating, protecting and identifying aircraft, and protecting individuals and property on the ground.
It is pursuant to this authority that, in 2016, the FAA issued the small UAS rule and just recently issued the RID NPRM. The RID rule proposes to establish operating requirements for UAS operators and performance-based design and production standards for UAS producers. The FAA admits that the proposed rule is but one part of a three-part ecosystem required to implement RID. The second is a network of Remote ID UAS Service Suppliers (Remote ID USS) that would collect the identification and location in real-time from in-flight UAS. The third is the collection of technical requirements that standards-setting organizations will develop to meet the performance-based design and production requirements in the proposed rule.
All UAS operating in the airspace of the United States (U.S.) over .55 pounds, and any UAS sold in the U.S. with very few exceptions (e.g., U.S. government aircraft, aircraft used for research), would be subject to the new requirements, meaning no person would be able to operate a UAS in U.S. airspace unless the UAS has RID capability meeting FAA requirements. Further, no UAS could be produced for operation in the U.S. after two years and no UAS could be operated after three years except in accordance with the rule’s requirements.
The purposes for the rule include ensuring public safety and the safety and efficiency of U.S. airspace by enabling the FAA and federal security partners to have near real-time situational awareness of UAS flying in the U.S. To achieve this, the proposal establishes design and production requirements for two categories of RID: Standard RID UAS and Limited RID UAS. Standard RID UAS would be required to broadcast identification and location information directly from the unmanned aircraft and simultaneously transmit that same information to a Remote ID USS through an internet connection. Limited RID UAS would be required to transmit information through the internet only, with no broadcast requirements; however, the UAS would be designed to operate no more than 400 feet from the control station. UAS that aren”T equipped with RID at all could operate (amateur-built UAS and UAS manufactured prior to the compliance date) in specially designated areas, called FAA-recognized identification areas (FRIAs).
UAS manufacturers would be required to equip UAS with RID using an FAA-approved means of compliance, issue each UAS a serial number, label the aircraft with the proper RID capability, and submit a declaration of compliance to the FAA. For Standard RID UAS, producers must ensure that if the RID is not functioning, the UAS must, by design, not be able to take off. Similarly, Limited RID UAS must be designed in such a manner as to preclude take off if the UAS cannot connect to the internet or transmit through an internet connection to a Remote ID USS or connect to another RID USS. As alluded to above, Limited RID UAS must be designed to fly only within 400 feet of the control station.
This is just the 30K foot overview of RID, which will essentially ground all non-compliant legacy drones. While there are lots of specifics and nuances, one could imagine the FAA’s position on the takings issues would be as follows: RID is critical to UAS integration in the National Airspace System (NAS). It will not only enable the distinction between aircraft that are friend (compliant) versus foe (non-compliant), it will also enable beyond visual line of sight operations (BVLOS), operations over people (OOP), night operations, and Unmanned Traffic Management (UTM) systems. Additionally, once the rule takes effect, there is a compliance grace period, allowing both operators and manufacturers to get on board. Finally, to the extent that pre-RID rule UAS will not be grand-fathered, they can still be flown in FRIAs.
Mine! The Drone Operator’s Counter-View
But they might not be permitted to be flown by oneself in one’s own backyard.
While only a handful of the tens of thousands of comments submitted on the RID NPRM referenced the idea that RID requirements would effectively “Take? their property, folks have raised such concerns on social media and through other informal channels. These concerns fall into two camps: (1) that RID requirements, by mandating the use of RID on drones flown at low altitudes over private property sufficiently infringes on one’s property rights to constitute a taking and (2) that the requirements will render current drones useless, thus also constituting a taking.
One commenter, RW, falls in the first camp. He states, in relevant part, “The fifth amendment of the US Constitution prohibits the government to infringe on a person’s right to life, liberty, or property. The rule as proposed…violates a property right. It is irrational that if I want to fly my drone with a camera to take pictures of my own house at an altitude of 100 feet, that I would need to first need to install a device that broadcasts data to the internet. The standard ID constitutes a regulatory taking of the use and enjoyment of ones (sic) own property.”
A like commenter, and modeler, HD, points to the 1946 Supreme Court case of United States vs. Causby. He says, ?…the Supreme Court upheld the landowner’s right to the airspace that envelops his property but not the navigable airspace above it. … I contend that the flying I do on my land is within the immediate enveloping atmosphere of my land and not the public highway of navigable airspace above it. As such, it should be under my exclusive control and any restriction on my model flying in that immediate enveloping atmosphere below the navigable public airspace above is an unconstitutional partial taking of my property without just compensation as proscribed by the 5th Amendment and defined under the ruling of United States vs. Causby.”
In the other camp, RH states, “The FAA has not considered adequately whether the Rules would result in an unconstitutional taking of their property without compensation. The FAA acknowledges that there will be a significant number of UA (primarily, but not limited to, drones) that will be rendered useless by imposition of the Rules. These UA represent significant investments by their owners (my investment is currently in excess of $1,000). The FAA has not considered its compensation that may be imposed as a result of its “Taking? of the owners? property.”
Can a regulation governing airspace over one’s real property (land) effectively “Take? it? Can a regulation that effectively nullifies use of one’s personal property “Take it?? The answers to these questions are rooted in Constitutional law.
The Mine-Field of 5th Amendment Takings Law
The 5th Amendment to the U.S. Constitution contains several protections for civil liberties. For our purposes, the relevant provision, “Nor shall private property be taken for public use, without just compensation,” provides a guarantee that the federal government cannot seize private property without providing due compensation. This Takings doctrine applies to the States by operation of the 14th Amendment. It applies to both real property (land) and personal property (a drone).
The power of the government to take property, in return for just compensation is called “Eminent domain.” Taking may be obvious insofar as it is physical – a land grab – either in total, on a temporary basis or a partial basis. Typically, in such cases, the government would take the land through a condemnation action and then pay fair market value.
This concept has been applied not just to land, but also to the air. The government has exercised eminent domain to acquire airspace interests (“Airspace easements?) and provide compensation using this same process, for example, to obtain access to flight paths in the early days of manned commercial flights.
This same concept of physical taking has been applied to personal property as well. Horne v. Dep’t of Agric.,135 S. Ct. 2419 (2015), found that a program requiring farmers to annually provide a percentage of their raisin crop to the government amounted to a physical taking of personal property requiring just compensation under the 5th Amendment.
Under the law, a taking can also occur when government regulation “Goes too far? and has a serious adverse effect on a person’s property. This is referred to as a regulatory taking. For example, in a seminal article on this topic, Airspace and the Takings Clause, (90 WASH. U. L. REV. 421 (2012), https://openscholarship.wustl.edu/law_lawreview/vol90/iss2/4), Troy R. Rule discusses government regulations that impose height and similar restrictions impacting airspace for the government’s own benefit (what he calls ‘veiled airspace easement regulations?). In these instances, the individual would have to initiate an “Inverse condemnation? case against the government and argue that the regulation amounts to a taking of private property and therefore compensation must be paid. Regulatory takings can be divided into three types of situations: (1) physical invasion; (2) where all economic benefit has been deprived; and (3) all others.
- Physical Invasion. A regulatory taking may occur when the regulation results in a physical occupation or invasion of private property. In the U.S. Supreme Court (SCOTUS) case of Loretto v. Teleprompter Manhattan CATV Corp (458 U.S. 419 (1982)), a regulation that allowed a television cable company to install cable equipment on the roof and side of a private apartment building constituted such a taking. (*Fun fact: United States v. Causby was a “Takings? case! In 1942, SCOTUS sided with landowners, finding just compensation was owed them because recurrent military overflights physically entered their airspace and substantially interfered with their chicken farm).
- Deprivation of All Economical Beneficial Uses. In some cases, the impact of a regulation may deprive citizens of “All economically beneficial uses? of their property. SCOTUS, in Lucas v. South Carolina Coastal Council (505 U.S. 1003 (1992)), found no physical taking, but circumstances equivalent to one where a state regulation precluded a landowner from building homes on his two beach-front parcels. In finding the regulation rendered the otherwise lucrative parcels completely valueless tantamount to a taking which required just compensation, the Court reinforced the concept that claimants may not “Conceptually sever? specific property interests (such as airspace rights) from the fee estate (real property) or purposes of this analysis.
- All Other Regulatory Takings – 3-Part Test. In 1978, in Penn Central v. New York City (98 S.Ct. 2646), the SCOTUS established a three-part ad hoc test to determine whether a regulation amounts to a taking: (1) the economic impact on the property owner, (2) the extent to which the regulation interferes with investment-backed expectations in the land, and (3) the character or extent of the government action. In that case, the owners of New York’s Grand Central Terminal were denied the ability to erect an office tower above the terminal due to a city ordinance. The Court dismissed the claim, and in so doing, rejected arguments that airspace can be considered separately from the land for regulatory takings analysis. This is important: the land and air above it are considered one when reviewing these cases.
The Takings doctrine seems to be applied in either obvious or arguably extreme cases. And not all government regulations fall to it. The government can exercise legitimate police powers to protect public health, welfare, and safety. For example, in 1991, Congress enacted the Intermodel Surface Transportation and Efficiency Act (49 U.S.C.” 30102 (1994)) which directed the National Highway Traffic Safety Administration (NHTSA) to implement a phase-in of airbags in all light vehicles during the 1997 and 1998 model years. The airbag requirement was controversial on a number of levels, including (ironically) because it resulted in numerous deaths. However, it does not appear to have been challenged, at least successfully, on a 5th Amendment takings basis. We are all driving around in cars with airbags today.
In short, courts have adopted a very fact-specific approach in resolving takings cases, resulting in a litany of case law that’s complicated and sometimes seemingly contradictory. However, the underlying purpose of the takings clause generally shines through. “When thinking about these cases,” says Daniel Olson, a Criminal Justice instructor and constitutional law expert at the University of Colorado Colorado Springs, “It’s important to remember that one fundamental purpose of the takings clause is ensuring that one or two people aren”T stuck bearing the brunt of costs that should, in all fairness, be shared among the broader community.” It likely strikes you as fair that we should all bear some of the burdens when a property owner isn”T allowed to develop a prime piece of beach-front property. After all, society at large reaps the benefit of a beautiful view, and one lonely landowner shouldn”T bear all the economic losses associated with non-development. In contrast, in the case of mandatory airbags, “It’s clear that we”Ll all eventually share in the costs, as manufacturers will pass those along to the public in the form of higher prices for enhanced safety.” Applying this logic to drones and mandatory RID, if the government’s regulations render a drone unusable for its intended purposes, the real issue, Olson says, “Is whether those costs are more fairly borne by society or the individual drone owner?? Should we, the people, be compensating drone owners for the losses associated with the RID requirements?
Mine Own Take
In my view, it would be an uphill battle to win a takings case based on the proposed RID rule. RID requires the addition of on-board capabilities that most UAS do not currently possess, in the name of safety. Does this mandate to either retrofit one’s aircraft with these capabilities constitute a taking of one’s real or personal property? The analysis begins in the realm of regulatory takings because the proposed rule is neither an outright physical land or personal property grab.
The rule would not constitute a “Physical occupation or invasion of private property? like that in Loretto, which involved physically attaching cables to a landowner’s building. Even in Causby, which involved airspace, planes were physically entering the landowner’s airspace. The requirement to add equipment to aircraft, as a condition to using them even in private airspace, even if there is a substantial financial injury to owners who fail to do so, technically involves no physical invasion or occupation of that private land.
Modeler and commenter on the RID NPRM, HD, points to Causby to argue that the RID rule interferes with what he wants to do within the immediate envelope of his property. It seems that that challenge apparently came and went with the Part 107 rule, which purports to regulate airspace below 400 feet above ground level and below. Nevertheless, there has been no case holding that physical occupation or invasion of personal property –such as here in the form of required equipment on a drone – would constitute a compensable taking. The best analogy would be airbag regulations for cars, which despite their controversial effect on the very safety they purported to protect, remained unassailed on 5th Amendment grounds.
But wait, you say–what about those raisins that the government took from the farmer? What if I”M flying my drone without RID and a police officer takes it? My response would be, at that point, the police officer would likely be seizing evidence of a crime, under the 4th & 14th Amendment (assuming there is a state law that allows the officer to do so).
This idea that the RID rule would deprive folks of “All economical beneficial uses? seems to be the main contention. For business folk, having a drone without the RID on board is the equivalent of owning a rock. Can”T fly it, thus, it’s dead to them. This seems to fall within Lucas (no physical taking, but circumstances equivalent to one). The problem here is that in that case, SCOTUS reinforced the concept that claimants may not “Conceptually sever? specific property interests – such as airspace rights – from the fee estate (real estate) for purposes of analysis. For example, even RW who says he would be unable to fly a drone with a camera to take pictures of his own house at an altitude of 100 feet, would still retain economic value in his house. Under Lucas, because RW and other similarly situated landowners would surely continue to retain economic viability of their land surface, their claims on this basis would fail.
Next, we turn to the Penn Central three-part ad hoc test. Even under prong one, the economic impact on the property owner, courts take a Lucas-type view and do not segregate the impacts on the air from the continued value of the land. This sets a high bar to hurdle. Even prong two, investment-backed expectations in the land, involves a review of other viable uses for that land. Finally, in reviewing the character or extent of the government action, courts provide great discretion to the government, particularly in the area of safety.
I”M no gambler, but my money is on the fact that no judge will want to be seen as impeding an effort to potentially save lives in the face of the safety (collisions), terrorist, and criminal threats that the FAA is attempting to address through the proposed RID rule. Whether or not we personally agree that the ends justify the means, a rule to enhance airspace safety will likely prevail over individual claims. Mine take: comply or don”T fly.
*The views and opinions in this article are those of the author and do not reflect those the DOD, do not constitute an endorsement of any organization mentioned herein and are not intended to influence the action of federal agencies or their employees.
To hear more from Ms. Zoldi and Professor Olson, join us at InterDrone 2020 taking place December 14-18 at the Hyatt Regency in Dallas, Texas.
About the Author:
Dawn M.K. Zoldi (Colonel, USAF, Retired) is a licensed attorney and a 25-year Air Force veteran. She is an internationally recognized expert on unmanned aircraft system law and policy, and a recipient of the Woman to Watch in UAS (Leadership) Award 2019.