by Mike Korn, pilot and retired MT FWP Deputy Chief of Law Enforcement
SB170 is another in a stream of bills that have come before the legislature during the last few sessions due to the rising popularity and use–recreational/hobby, commercial, government and military –of drones. Most of these bills have been put forth as a means of guarding privacy and the unregulated use of UAV’s for law enforcement. The only Montana law currently on the books regarding the use of UAVs is 46-5-109MCA, Limitations on unmanned aerial vehicles (2013.) The law places restrictions on the admissibility of enforcement evidence gathered through the use of a UAV for criminal prosecution.
Although Montana law speaks to being able to control airspace (67-1-202 MCA, State sovereignty in space) the Federal Aviation Administration has ultimate authority over all things airborne (Title 49 CFR, Subtitle VII, Part A, Subpart 1, Chapter 401§ 40103 Sovereignty and Public Right of Transit.) This establishes the right of a safe, unified and coordinated use of airspace over the United States. Interestingly, FAA regulations exist regarding the use of hobby/model aircraft (Title 14 CFR Chapter I, Subchapter F, Part 101.) These rules were put into place to limit conflicts between model (and rockets) and “real” aircraft operating in the airspace. Because of the huge growth in use of UAV’s and the need to integrate their use into the aviation “airscape”, the FAA developed an entire set of regulations regarding their use. These regulations are found under Title 14 CFR, Chapter I, Subchapter F, Part 107 of the Federal Aviation Regulations, or FAR’s. This new section that was adopted in 2016, and defines UAV’s- now officially referred to as Unmanned Aerial Systems or UAS – and establishes a series of regulations for their use and the qualifications of those who operate them. Generally, they are divided into two classes- commercial and recreational/hobby. Commercial operation requires a “certificate” (pilot’s license) and hobby use does not. Airspace regulations restricting places where UAS can be operated (such as within a stated distance of an airport or airway) are set out as well as a host of other regulations. For hobbyists (non-governmental or non-commercial operators) the regulations limit, among other things, the altitude and proximity to structures that they can be operated:
§107.51 Operating limitations for small unmanned aircraft.
A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system:
(a) The groundspeed of the small unmanned aircraft may not exceed 87 knots (100 miles per hour).
(b) The altitude of the small unmanned aircraft cannot be higher than 400 feet above ground level, unless the small unmanned aircraft:
(1) Is flown within a 400-foot radius of a structure; and
(2) Does not fly higher than 400 feet above the structure's immediate uppermost limit.
(c) The minimum flight visibility, as observed from the location of the control station must be no less than 3 statute miles. For purposes of this section, flight visibility means the average slant distance from the control station at which prominent unlighted objects may be seen and identified by day and prominent lighted objects may be seen and identified by night.
SB 170 has a number of inherent, surface problems. It establishes UAV overflight without landowner permission as an act of trespass (45-6-201 MCA) but with a civil penalty. This would seem to be a mixing of metaphors between civil and criminal acts, providing a pretty vague sense of what such an act really constitutes. It also fails to state who exactly would be the entity or person to pursue the “civil action.” It infers the landowner. But that is unclear. Further, the bill speaks to “damages and injuries” a connection that’s peculiar.
There is a burgeoning UAV industry in Montana. Companies are starting up to accommodate a quickly growing market for use in a wide range of purposes, both commercial and governmental. These businesses should be concerned that this bill conflicts with FAA flight regulations and as such, complicates the legalities involved in both production and use of UAV’s. The FAA strongly urges states to work with them in drafting of UAV laws to ensure that they are synchronized and avoid conflicts. Simply by the contradiction in altitude regulations, it appears that the authors of SB 170 did not take advantage of those resources but rather, chose to include the disclaimer: “…The unmanned aerial vehicle is operated for government or commercial purposes in compliance with authorization granted by the Federal Aviation Administration…” The FAA offers a wide range of legal resources to assist states in drafting such laws. (https://www.faa.gov/uas/resources/uas_regulation_policy/media/uas_fact_sheet_final.pdf).
SB 170 literally extends property boundaries to 500’ above ground of the physical land. By codifying the law under Title 70 of the MCA, it establishes the air above a piece of property as a property right. This harkens back to arcane old English law which established “…For whoever owns the soil, it is theirs up to heaven and down to hell.” This concept has been left far behind with the advent of aircraft, a national airspace system and property case law that defines the limits of ownership. It is an idea embraced only by the most biblical of lay legal scholars.
Landowners should be concerned with SB 170 because as one of its “exceptions” it grants authority to fly over their property without permission to “… a mineral rights owner or the owners ‘lessee off the mineral estate…” In Montana, the surface owner is often not the owner of the minerals beneath the ground. That is an accepted fact and for the mineral owner to inventory or survey their mineral holdings is not uncommon. UAV technology has provided a whole new dimension to the ability to do this and other kinds of work normally undertaken by a person actually being on the ground. Yet, to excuse someone from going on to one’s land to do so without contacting the surface owner grants privilege that most surface landowners would not want. A simple knock on the door or, as in surveyor law, a letter stating intent is the least that should be expected.
But why should the general public- particularly recreationists- be concerned about SB 170? Because by establishing the airspace above a piece of ground as part and parcel of a property right, it essentially makes “corner-crossing”, the stepping across a piece of private land to go from one piece of public land to another at the intersection of the parcels, illegal. If, the air above a parcel of land is too, private property then to pass through that air to access a piece of public land- without physically landing on privately-held terra firma- would constitute an act of trespass. What SB 170 does is short-circuit and back-door the on-going discussion regarding the legality of corner-crossing, one that is yet to be resolved either by the courts or in the halls of the legislature. It makes that decision without the necessary open public discussion and ultimately, common resolution that the issue demands. Why that fact has never been directly stated by the bill’s sponsors is a fundamental question regarding this bill.
SB 170 is a poorly-crafted and questionable effort, ostensibly to solve problems that we never knew existed and create greater ones that need to be publicly discussed.