Who Owns the Air?
Supplement to Section II, Chapter 8: Common Sense & The Law,
originally published Oct 07, 2007
Sure, air is good for breathing and flying but, like most aspects
of life, it gets regulated.
Sometimes municipalities or other entities,
pardon the pun, get in over their heads.
In the U.S., navigable airspace is strictly the purview of federal
government but that doesn't stop local entities from trying to
regulate it themselves. Even state agencies have tried.
Pilots have indeed been victorious fighting violations of such bogus
laws but at considerable personal expense. It's always best for one's
pocketbook to avoid the confrontation. It's maddening, though, and I
applaud those who do fight it.
Here's what's on the books. Thanks to John Fetz for locating it on the
Cornell University Law School site. Links to other parts of the
statute were left intact but will take you away from FootFlyer.com. Here
U.S. Government site.
TITLE 49 Transportation >
SUBTITLE VII Aviation Programs >
PART A Air Commerce and Safety >
subpart i >
CHAPTER 401 > § 40103
§ 40103. Sovereignty and
use of airspace
Sovereignty and Public Right of Transit.—
The United States Government has exclusive
sovereignty of airspace of the United States.
A citizen of the United States has a public
right of transit through the navigable airspace. To further that
right, the Secretary of Transportation shall consult with the
Architectural and Transportation Barriers Compliance Board
established under section 502 of the Rehabilitation Act of 1973 (29
792) before prescribing a regulation or issuing an order or
procedure that will have a significant impact on the accessibility
of commercial airports or commercial air transportation for
Use of Airspace.—
The Administrator of the Federal Aviation
Administration shall develop plans and policy for the use of the
navigable airspace and assign by regulation or order the use of
the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. The Administrator may modify or revoke
an assignment when required in the public interest.
The Administrator shall prescribe air
traffic regulations on the flight of aircraft (including
regulations on safe altitudes) for—
navigating, protecting, and identifying
protecting individuals and property on
using the navigable airspace
preventing collision between aircraft,
between aircraft and land or water vehicles, and between
aircraft and airborne objects.
To establish security provisions that will
encourage and allow maximum use of the navigable airspace by civil
aircraft consistent with national security, the Administrator, in
consultation with the Secretary of Defense, shall—
establish areas in the airspace the
Administrator decides are necessary in the interest of
national defense; and
by regulation or order, restrict or
prohibit flight of civil aircraft that the Administrator
cannot identify, locate, and control with available facilities
in those areas.
Notwithstanding the military exception in
(a)(1) of title
II of chapter
5 of title
5 applies to a regulation prescribed under this subsection.
Foreign Aircraft.— A
foreign aircraft, not part of the armed forces of a foreign country,
may be navigated in the United States as provided in section
41703 of this title.
Aircraft of Armed Forces of Foreign Countries.—
Aircraft of the armed forces of a foreign
country may be navigated in the United States only when authorized by
the Secretary of State.
No Exclusive Rights at Certain Facilities.—
A person does not have an exclusive right to use
an air navigation facility on which Government money has been
expended. However, providing services at an airport by only one
fixed-based operator is not an exclusive right if—
it is unreasonably costly, burdensome, or
impractical for more than one fixed-based operator to provide the
allowing more than one fixed-based operator to
provide the services requires a reduction in space leased under an
agreement existing on September 3, 1982, between the operator and
Hey, You! Get off of My Cloud!
2017-01-18-Case Law Example from an
article at Slate.com By Brian Palmer published July 11, 2013
How much of the airspace above your home do you own?
Geographic photographer George Steinmetz was arrested for trespass on
June 28 after circling his paraglider over a Kansas cattle feedlot,
according to an Associated Press report published Wednesday. Local
officials say Steinmetz didn’t have permission to launch his flyer from
the property or to take photos from the air. Can you keep people from
gliding over your property?
A midwestern farm, in this case with a powered
paraglider about to launch. But should this be legal?
Up to a point. Before the advent of air travel, landowners owned an
infinitely tall column of air rising above their plot. (The Latin
doctrine was Cujus est solum ejus usque ad coelum, or “whose is the
soil, his it is up to the sky.”) In 1946 the Supreme Court acknowledged
that the air had become a “public highway,” but a landowner still had
dominion over “at least as much of the space above the ground as he can
occupy or use in connection with the land.” In that case the court held
that a plane flying just 83 feet in the air—the commotion was literally
scaring the plaintiff’s chickens to death—represented an invasion of
property. The justices declined to precisely define the height at which
ownership rights end. Today, the federal government considers the area
above 500 feet to be navigable airspace in uncongested areas. While the
Supreme Court hasn’t explicitly accepted that as the upper limit of
property ownership, it’s a useful guideline in trespass cases.
Therefore, unless you own some very tall buildings, your private
airspace probably ends somewhere between 80 and 500 feet above the
ground. Paragliders and hang gliders can easily soar above that height,
so your ability to exclude a snooping gliding enthusiast appears to be
limited. (It should be noted that the vast majority of complaints about
trespassing hang gliders result from their landing on, not flying over,
The upward boundaries of private property may
be changing. The federal government is considering lowering the floor of
navigable airspace below 500 feet to accommodate surveillance drones,
which sometimes travel at lower altitudes. The move has alarmed some
local governments. Earlier this month the City Council of Northampton,
Mass., voted unanimously to adopt a resolution opposing any attempt to
expand navigable airspace. In February the Charlottesville, Va., City
Council called for a two-year moratorium on drones in the state.
Government drones get most of the media attention, but privately owned
models, which are now affordable for many groups and individuals, are
becoming a flashpoint. Paparazzi, media organizations, or just about
anyone who wants a look at private land will soon have the technology.
FAA Administrator Michael P. Huerta predicts that there could be 30,000
licensed drones by 2020.
In 2012 the animal rights group SHowing
Animals Respect and Kindness flew a drone over a planned pigeon shoot at
Broxton Bridge Plantation in South Carolina, causing the hunters to
abandon the shoot. A dispute arose over whether the drone was above
public or private land, but the hunters shot it down before fleeing the
scene. The drone owners vowed to sue for destruction of their property.