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86 Geo. Wash. L. Rev. 1152
On August 29, 2016, the Federal Aviation Administration (“FAA”) released a small-drone rule that will substantially increase the number of commercial drones flying throughout the national airspace. This new rule fails to specifically regulate or define when a drone is trespassing over a landowner’s private property. Moreover, since the development of drone technology, which has allowed aircraft to fly throughout the lower airspace, courts have not regularly addressed aerial trespass. Thus, the limits on where aircraft can fly and where landowners’ property rights extend are becoming murky and
problematic.
The FAA has refused to address this trespass issue, claiming that states can adequately address it. This presents a problem, however, because the FAA has exclusive jurisdiction over the undefined “navigable airspace,” meaning that federal law will likely preempt any state regulation that addresses drone trespass. Any sufficient regulation covering this issue will require restrictions of the airspace that the FAA will consider to be the “navigable airspace” and thus an intrusion into its jurisdiction. This conflict will result in drone trespass remaining unregulated, leaving landowners and drone operators without any clear answer as to who is allowed to be where. This Note proposes that the FAA address this issue by defining the navigable airspace so that there is a bright-line height minimum describing where the FAA’s exclusive jurisdiction ends, where drones must fly above, and where in the airspace states can regulate without the fear of federal preemption.
