The Mercatus Center report, released this month, is the second version of a document released last March. The authors, Brent Skorup and Connor Haaland, rank all 50 states by their level of drone preparedness based on five factors: airspace lease laws, air rights laws, avigation easement laws, state drone programs and number of drone-related jobs. In the new report, North Dakota ranks No. 1, while Kentucky came in last place.
Skorup, a senior research fellow at George Mason University’s Mercatus Center, said he was reluctant about the concept of drone highways at first. However, once he looked at the situation from a legal perspective, he realized the potential for lawsuits can be high if drones fly over non-public areas.
In cases involving manned aircraft, American courts have sided with the rights of everyday citizens. In the United States v. Causby, the Supreme Court ruled that the government must respect the airspace directly above the property of a landowner. When it comes to future cases involving unmanned aircraft, Skorup could therefore see property owners suing for a variety of reasons, from trespassing to invasion of privacy.
“I think it would be crushing for most companies,” said Skorup, in reference to the threat of lawsuits. “A lot of these drone companies are not large operations. A lot of them don’t have a lawyer on staff or outside counsel.”
“It’s not a small group who potentially has a complaint,” Skorup continued. “It’s potentially every property owner you fly over. It only takes one of them to make a good case to get an injunction that shuts you down.”
Under Skorup and Haaland’s analytical framework in the report, a state can receive or be docked the most amount of points, a total of 30, based on whether it allows “authorities to lease airspace above state and local roads.” In an interesting twist, although the report indicates that North Dakota leads the nation in drone preparedness, the state lacks airspace lease laws. Nicholas Flom, who leads the Northern Plains UAS Test Site in North Dakota, told Government Technology that he believes such laws could hinder drone operations and that it may be best to not “get ahead of ourselves with the laws that need to be put in place.”
“This week, I was testifying in front of our Senate Appropriations Committee, and they actually brought this report up … I told them, ‘We didn’t score perfect,’” Flom recounted. “And I actually applaud our state legislators for not scoring perfect.”
Flom, a manned pilot by background, stated that North Dakota’s approach to drones is to work closely with the Federal Aviation Administration (FAA) and “grow in real time” as industry standards evolve. He fears that if states or local areas preemptively pass laws to account for possible legal action against drones, drone companies would face legal complexities that could lead to “more non-compliance, because you’re having to become an expert on such a granular level, maybe down to the level of a single municipality.”
Skorup said he’s sympathetic to the view that different state and local laws could lead to a legal “fragmentation” issue for companies. At the same time, he doesn’t think the FAA can be the sole authority for unmanned aviation as it is for manned aviation, as low altitudes have been treated differently by U.S. courts.
Skorup cited a ruling from late last year in Texas in relation to the National Press Photographers Association v. McCraw case. In this dispute, the plaintiffs attempted to argue that Texas has no right to declare no-fly zones above correctional facilities, detention facilities, critical infrastructure facilities and sports venues because the regulations go against the FAA’s “sole and exclusive authority to regulate the national airspace and aviation safety.”
The court rejected the plaintiffs’ argument on this point.
“Plaintiffs have not sufficiently pled that the No-Fly Provisions conflict with federal goals for uniform UAV regulation or to integrate UAVs into the national airspace,” read the court ruling. “As a result, the No-Fly Provisions neither regulate a field that is entirely preempted by federal regulation nor conflict with federal regulation.”
Even though North Dakota may not see eye to eye with Skorup and Haaland when it comes to preemptive legislation, the state hasn’t been passive in terms of preparing for drones, either. In October, Flom revealed the development of Vantis, a drone traffic network that will gradually spread throughout North Dakota. As written in the Grand Forks Herald, Vantis “will bring about the age of operating unmanned aerial vehicles beyond the visual line of sight, long considered to be the crucial next step in UAS development and commercialization.”
When asked whether every state might need something akin to Vantis to prepare for drones, Flom said “in some ways, the answer is yes.” The vision behind Vantis is that drone operators shouldn’t have to do their own surveillance, command and control, communication and so on. Why? Because all of that is a barrier to advanced operations for an industry that is still in its infancy.
“Everyone is having to do it on their own, which is really challenging when it comes to scalability,” Flom said. “We just don’t do that in [manned] aviation. We don’t have everybody operating on their own network. We have shared infrastructure.”
As for the future of airspace lease laws, Skorup brought up Senate Bill 2262, a new piece of legislation in Mississippi that, among other things, could “authorize the Department of Transportation to lease interest in a right-of-way or airspace above or below a state highway.” The typical airspace lease law was written decades ago and had nothing to do with drones. This bill is different.
“It’s the first to my knowledge that expressly mentions drones as a beneficiary of airspace leasing,” Skorup shared.
