The League of Landowners and Drone Operators (LLDO) was formed for the purpose of asserting the rights of the landowner to exclusive control of the immediate reaches of the enveloping atmosphere over his/her property and promulgating guidelines for the safe operation of Drones within that airspace.
The Supreme Court in Causby v. The United States ruled, “We have said that the airspace is a public highway. Yet 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 the can occupy or use in connection with the land.” This is contrary to the FAA’s current policy that they control of all of the National Airspace System beginning from the surface of the earth.
The League seeks a collaborative, non-confrontational relationship with the FAA. However, the FAA seems unable to address this issue of airspace, specifically concerning the operation of drones over the landowners property. The league would like to help.
In 2007, the FAA made a policy, and said, “Everyone must stop commercial UAV operations until we [the FAA] can generate the applicable rules.” That was seven years ago, and the promised rules are nowhere to be seen. To date, only two civilian commercial UAV operations have been authorized; and those for flights over the arctic. Seven years, two authorizations, and those were commanded by Congress.
Historically, the land owner has owned the airspace above his/her property to the beginning of the universe; until 1958. Then, Congress declared the Navigable Airspace to be public domain, and charged the FAA with responsibility for managing it. The FAA now claims authority over the total National Airspace System (NAS) from the surface upward. The floor of the NAS has not been specified by the FAA with regard to the ceiling of the landowners airspace. This begs the question, who owns what airspace? What constitutes, “the immediate reaches of the enveloping atmosphere?” Does FAA policy over-rule the Supreme Court decision in Causby v. United States? These questions need to be answered now.
Why is this so important now? Informed sources estimate that 70 percent of commercial UAVs will be used in agriculture. Let’s use that as an example.
No longer can farmers plant seeds from last years crop, pray for rain, and expect to feed the world. Things have changed, mostly for the better. My grandfather plowed with mules, killed weeds with a hoe, fertilized with manure, harvested by hand and produced about 60 bushels of corn per acre. About average for the time. Then came the age of mechanization. Farmers now plow with tractors, plant GMO seeds, kill weeds with herbicides, fertilize with liquid nitrogen, harvest with combines and produce about 150 bushels of corn per acre; more than double the previous yield. Informed sources estimate that farmers will have to double their yield again by 2050 to feed the world. That requires precision farming, and precision farming requires data. You can’t manage what you don’t understand, and you can’t understand what you can’t see.
That is why farmers need the UAVs to image the fields. Now they use satellites and manned aircraft; neither is efficient. Farmers need to image their fields often, and on their schedule, in order to manage irrigation and apply herbicides and pesticides to affected areas quickly before damage is done and the infestations spread. Only UAVs can provide this data in a timely and cost effective manner.
The FAA’s seven year moratorium on commercial UAV operations in the interest of safety has had unintended consequences. This doesn’t just affect farmers. Everyone I know eats food. Withholding UAV produced data from farmers reduces their ability to increase yields and subsequently increases food prices. This hurts everyone. Also, without timely data farmers have to use more herbicides and pesticides as infestations spread. In addition to the expense, this means greater contamination of the environment than would otherwise be necessary.
Farm yields have suffered from lack of data, and food prices are rising. The environment has suffered from over application of herbicides and pesticides due to lack of data. Businesses that were, or were planning to, provide this data have gone out of business, with subsequent loss of jobs and tax revenues. The technological lead of the U.S. in small UAVs has now gone to China and other countries. This has become a man made disaster as the result of indecision by the FAA, and it continues under the excuse of safety. How is it safe to fly the same aircraft, in the same airspace, taking the same picture, for a hobby, and not safe to do the same thing commercially. This FAA decision defies all logic.
The Supreme Court ruling under Causby v. United States proclaimed, “The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land.” Therefore, the landowners, not the FAA, must take responsibility for operations in their airspace. It is the intent of the League to promulgate guidance for the safe and effective use of UAVs in that airspace, with or without input from the FAA.
Let us begin:
DEFINE THE LANDOWNERS’ AIRSPACE
The lateral boundaries are easy, they are the surveyed boundaries of the landowners’ property. The flight must remain therein at all times. The vertical boundary is open to discussion. What constitutes, “at least as much of the space above the ground as he can occupy or use?” What constitutes, “the immediate reaches of the enveloping atmosphere?” Until the FAA or the Courts render a decision, how about starting at 400 feet above ground level (AGL), the same as the recreational flyers? That sounds reasonable.
In most rural areas this will be uncontrolled airspace, well below the Navigable Airspace which the ATO controls. Why does this matter? Because Air Traffic Control does not provide separation between aircraft in uncontrolled airspace. “See and Avoid” is the rule for traffic separation. When the drone operator sees a manned aircraft he/she SHALL take action to avoid it. Simple, yes? Which brings us to:
RULES OF THE ROAD AND RIGHT OF WAY
There are no winners in a mid air collision, and they should be avoided at all costs. Since the ATO is not responsible for separating traffic in uncontrolled airspace, therefore, “See and Avoid” would apply.
Historically, right of way is given to the least maneuverable craft. That’s just common sense. Drones are difficult to see, especially by a pilot enclosed in a cockpit with limited visibility and heavy task loading. Therefore, collision avoidance is the responsibility of the Drone operators.
There must be two operators of the Drone, the Pilot Flying (PF) and the Pilot Monitoring (PM). That makes four eyes to spot conflicting traffic. However, usually the manned aircraft will be heard well before it can be seen, thus giving even greater opportunity to take evasive action. Naturally, the Drone shall ALWAYS give way to the manned aircraft. Typically, the Drone will have descended to a landing before the manned aircraft even knows one was flying in the area. This makes the “See and Avoid” safer between a Drone and a manned aircraft than between two manned aircraft. This definitely satisfies the equivalent level of safety issue.
Visual Line Of Sight (VLOS) must be maintained at all times, otherwise “See and Avoid” is — well, void.
The greatest number of manned aircraft using the rural airspace under the Navigable Airspace are the Aerial Applicators. Which brings us to:
CONFLICT WITH MANNED AERIAL APPLICATORS
Although aerial applicators share the same lateral airspace as the Drones, this is not a high risk situation. Crop dusters typically “ferry” (travel between the point of loading and spraying) at or above 300 feet AGL. This is to avoid being surprised by another crop duster pulling up out of a field in a “Duster Turn.” This is well above the normal height of the imaging swath of 60 to 120 feet for the Drone. In addition, the Drone operator SHALL descend to a hover, and land to deconflict any encounter with a manned aircraft. This is really necessary for the Drone pilot, as the wake turbulence from the larger manned aircraft flying overhead could upset the Drone with expensive results.
While manned aircraft use “see and avoid” for traffic separation, the Drone operators use “Hear, then See and Avoid” to provide and even greater level of safety.
Coordination with the aerial applicators operating in the area is not only neighborly, it can improve scheduling to prevent having to sit out a planned flight while a manned crop duster works an adjacent field and overflies the boundaries during turns. That leaves privacy issues:
Peeking drones are in the news lately, however this privacy issue is not germane to agricultural operations. There are two reasons for this. First, the agricultural Drones are operated in rural areas and only over the land owners property. Second, orthogonal photography is used for agricultural imaging, meaning the camera is pointing straight down at the crop. Not at the neighbors window.
Currently we are talking about an air vehicle weighing less than 55 pounds, flying at an altitude of less than 400 feet AGL, at an airspeed of approximately 10 meters per second (less than 30 miles per hour), with a flight duration of 15-25 minutes, all this only over the land owners property. Also, we are talking about professional agriculturists acting responsibly with a real need to have the data that can only be supplied by UAVs under their direct control. The UAVs they fly must be both safe and reliable to meet their requirements. These are not thrill seekers trying to capture outrageous video of spectacular events, and flying near and/or over people in public places. The FAA needs to be cognizant of the risk/reward factors in their decisions concerning authorization of commercial UAV operations.
But this is not recreation, this is business, and we need to begin now. The League believes the best course of action, for everyone, is for the FAA to honor the Supreme Court decision in Causby v. The United States and restore “exclusive control of the immediate reaches of the enveloping atmosphere” to the land owner. We are only talking about 400 feet AGL above the landowners property. This would also transfer the risks involved with operating UAVs in that airspace to the landowner. This can then free up FAA resources for dealing with the exponentially expanding use of this technology in higher risk areas, such as flights over congested areas or near large gatherings of people. Also, this would allow the FAA to truthfully say to Congress that they had opened the airspace for, potentially, 70 percent of commercial sUAS operations.
If you wish to receive more information on rights of the landowners, or the safe operation of Drones over your property, contact the League at the
e-mail address below:
“Justice is the firm and continuous desire to render to everyone that which is his due.”