Drone Technology, Airspace Design, and Aerial Law in States and Cities

Federal and state governments have embraced drone technology in recent years to stimulate a domestic industry for new jobs and long-distance delivery services. However, the federal-state breakdown about who manages drone airspace has not been resolved, which, as the Government Accountability Office recently reported to Congress, threatens the progress of the US drone industry. What is clear is that landowners, whether public or private, own low-altitude airspace and air rights. This article traces the legal treatment of surface airspace as real property back to Anglo-American legal treatises and court decisions in the mid-19th century. Therefore, absent a revolution in property and government takings law, state and city authorities will play a major role in demarcating drone highways, as well as creating time, place, and manner restrictions such as time-of-day rules, noise maximums, and privacy protections. This paper proposes a cooperative federalism system of airspace leasing above public roads to avoid most nuisance, trespass, and takings lawsuits from residents. Finally, this paper proposes a legal presumption establishing an altitude where private air rights end and federally managed airspace begins.