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April 05, 2017 | Blog Post| A Federal Court in Kentucky Shoots Down Drone Airspace Case

The Western District of Kentucky recently granted a motion to dismiss for lack of subject matter jurisdiction, determining that there is no federal question jurisdiction when a claim is brought for trespass to chattels and declaratory judgment where a drone is flown above an individual’s property. 

Generally, aircraft flying above a certain altitude enjoy a qualified immunity because of a line of cases starting with United States v. Causby in 1946.  The Causby case was the first to determine that repetitive, low flights over a residence constituted a compensable taking, and many cases since have further defined at what altitude a residence owner’s property rights end and federal airspace begins.  The issue has not been addressed in the drone context as of yet, partially because drones fly too low to the ground and because disputes often involve private individuals instead of the government.  The recent Kentucky case is the first glimpse of how courts may evaluate airspace relating to drone flights.

In Boggs v. Merideth, No. 3:16-CV-00006 (2017), Boggs brought suit seeking a declaratory judgment and money damages for damage to his drone after Merideth shot it out of the sky with a shotgun.  Boggs’ declaratory action asked the Court to determine that: “(1) an unmanned aircraft is an ‘aircraft’ under federal law; (2) an unmanned aircraft operating in Class G airspace is operating in ‘navigable airspace’ within the exclusive jurisdiction of the United States; (3) Boggs was operating his unmanned aircraft in this navigable airspace in the exclusive jurisdiction of the United States, rather than on Merideth’s property; (4) the operating of his unmanned aircraft in this manner did not violate Merideth’s reasonable expectation of privacy; and (5) a property owner cannot shoot at an unmanned aircraft operating in navigable airspace within the exclusive jurisdiction of the United States when operating in the manner in which Boggs alleges his unmanned aircraft was operating.”  Boggs claim for money damages were brought under Kentucky tort law for trespass to chattels. 

Merideth argued that Boggs’ declaratory claim simply anticipated defenses for trespass to chattels.  The Court agreed, finding that defenses alone are not sufficient to bring a claim under federal question jurisdiction, and the complaint on its face did not raise a federal question.  Under Kentucky law, privilege is a defense to trespass to chattels, and whether Boggs was operating his drone in airspace or on Merideth’s property would be used to establish privilege.

The Court went on to determine that this case was not one where jurisdiction would exist for state claims that implicate significant federal issues.  The Court noted that whether the drone was on Merideth’s property or in federal airspace would not be dispositive of the trespass to chattels claim, and thus was not necessary to the claim.  Further, the Court found that the federal issue raised was not substantial or “significant to the federal system as a whole.”  Because the FAA was not involved in this case, the FAA’s interest in regulating air safety and navigation would not be affected by the outcome of a case between two individuals over damage to property.  The Court also rejected the argument that the FAA’s increase in the regulations of unmanned aircraft indicates that federal courts should resolve these issues, finding instead that any such regulations are not at issue in this case, and, even if they were, they would only be ancillary issues. 

Finally, the Court reviewed whether it had any independent authority to exercise jurisdiction over the declaratory judgment claim.  The Court said “no,” reasoning that the Declaratory Judgment Act does not provide a private right of action, and Boggs’ trespass to chattel claim did not support federal question jurisdiction.  The Court noted that the only other claim available would be invasion of privacy, also under Kentucky’s tort law, so the same analysis would apply. 

This is the first case implicating property rights to airspace over dwellings in drone flights, but the battle between the state’s use of its police power to regulate and control drone flights and federal preemption of aviation is far from over.  For now, it is for states to decide the scope of unmanned aircraft system or drone privileges that are not regulated by the FAA both in the legislature and in court.  Indeed, many states have passed or are considering regulations on drone flight, including minimum distances from dwellings.

Laura Nicole Heft

An Associate at Butler Weihmuller Katz Craig LLP in Chicago, IL. Laura practices in our First-Party Coverage, Casualty Defense Litigation, Product Recall, and Aviation departments.

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The Federal Aviation Authority (“FAA”) Reauthorization Act of 2018 (the “Act”) was signed into law on October 5, 2018, by President Donald Trump. The Act was the first five-year FAA reauthorization since 1982.  Such reauthorizations provide the FAA with guaranteed funding for the next five years. The Act contains a plethora of supplementary provisions in addition to the provisions regarding the authorized funding of the FAA.  The Act can be broken down into five areas: (1) funding authorizations; (2) airline customer service; (3) aviation safety; (4) airports; and (5) unmanned aviation systems (“UAS”), also known as drones.

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In the most recent edition of our book, Butler on Drones, we reported that ISO has issued specific exclusions for unmanned aircraft for inclusion into CGL policies, but it was an open question whether a CGL policy’s standard aircraft exclusion already excluded coverage for liability arising from the use of a drone. A California federal district court has now weighed in on the question – the first to do so, as far as we are aware. And we like the answer.

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The aviation industry is in dire need of a future workforce. This industry is already suffering from a shortage of qualified individuals to work in all sectors of aviation. For instance, the Forbes article here states that the gap between supply and demand for aviation mechanics is projected to be at 9 percent by 2027.   

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January 05, 2018 Blog PostRecreational Drone Registration Requirement Has Returned

Back on December 21, 2015, the Federal Aviation Administration (FAA) required drone owners to register their drones if their drones weighed more than 0.55 pounds and less than 55 pounds (small drones). The registration was valid for three years.  Basically, anyone who possessed a drone for recreational use had to pay $5.00 to register their drone online with the FAA.  Following that requirement, over 820,000 drone owners had registered their drones. However, in May 2017, the D.C. Circuit Court of Appeals struck down that requirement, finding that the FAA violated its own rule found in the 2012 FAA Modernization and Reform Act that prohibits the FAA from promulgating any rules or regulations regarding model aircraft in Taylor v. Huerta, 856 F.2d 1089, 1090 (D.C. Cir. 2017). After the Taylor decision, the FAA created a form through which registrants could remove themselves from the registry list and request a refund of their $5.00 registration fee they had paid.

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January 05, 2018 Blog PostFAA Releases Drone Identification and Tracking Report that the FAA Will Consider in Drafting its Final Rule on In-Flight Drone Accountability

Law enforcement agencies want accountability when it comes to drone flights, especially when those flights are over people. Enabling a drone and its owner/operator to be quickly identified by law enforcement is necessary toward the expansion of the authorized use of drones to include flights over people and beyond the line of sight as well as the safe integration of drones in the national Airspace System. The Unmanned Aircraft Systems (UAS) Identification and Tracking Aviation Rulemaking Committee (ARC) chartered by the Federal Aviation Administration (FAA) submitted its report and recommendations to the FAA on technologies available to identify and track drones in flight and other associated issues.

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The Federal Aviation Administration’s (“FAA’s”) authority to institute airspace restrictions derives from 14 CFR § 99.7, “Special Security Instructions,” which is intended to address national security concerns from the Department of Defense and U.S. Federal security and intelligence agencies. 

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August 23, 2017 Blog Post"It's Not Old, It's A Classic!": Risk in Aging Aircraft with GARA Protecting Manufacturers

The General Aviation Revitalization Act of 1994 (“GARA”) was a byproduct of aging aircraft, rising costs, and tort liability in the United States.  Congress was concerned that aircraft manufacturers were being devastated by liability costs for accidents occurring long after the planes left the manufacturer.  These liability costs drove up the price for aircraft beyond what the market would bear, and general aviation experienced a sharp decline.  The General Aviation Manufacturers Association reports the total U.S.-manufactured general aviation airplane shipments went from a high of 17,811 in 1978 to a low of 929 in 1994.  As a result many manufacturers stopped making certain model aircraft, including Cessna which ceased production of all piston aircraft in 1986. 

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July 14, 2017 Blog PostNew Laws passed in Florida and Oregon add to Varying State Drone Regulations

More and more states are adopting individual rules for UAS operations within their borders. These rules vary from state to state.  Congress wanted to take up the issue and regulate UAS federally, but stakeholders including the Aircraft Owners and Pilots Association, Drone Manufacturers Alliance, the National Business Aviation Association, and the Commercial Drone Alliance, among others, are encouraging Congress to defer regulation of UAS pending the report and recommendations of the Drone Advisory Committee, the “DAC”.

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May 24, 2017 Blog PostThe D.C. Court of Appeals Just Scrapped the Drone Registry and May Have Also Turned Homeowners Insurers into Aviation Insurers

Model-aircraft hobbyist John Taylor didn’t want to register his model aircraft with the FAA pursuant to the newly created drone registry. So he took on the FAA, challenging new regulations aimed at unmanned aircraft registration and flight restrictions.

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April 13, 2017 Blog PostThe Answers to Some of Your Questions About What Airlines Can Do When a Flight is Overbooked and Someone Is Going to Have to Get Off of the Plane

Suddenly, the entire world is interested in learning about the laws governing airlines’ actions when a flight is overbooked. It isn’t every day that the entire world suddenly wants to learn all about something that you’ve spent years studying, so this post is for our clients who insure aviation risks, our clients who are frequent air travelers, and perhaps a few curious strangers who have no business with our law firm but have nonetheless been led here by their quest for answers. 

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