Proposed Avigation Easement Laws Could Create Toll Roads in the Sky for Drone Operations
BY Zacc Dukowitz12 May 2021
Several states are currently considering laws that could make commercial drone operations much more complicated—and expensive.
The proposed legislation varies from state to state. But the idea that connects them is to extend property rights for landowners into the airspace above their land, so that people who own land would also own the airspace over it.
With this new airspace ownership, property owners could then charge drone pilots to fly over their land.
If you wanted to do an aerial photo shoot and had to enter the airspace above someone’s property, you’d have to pay the airspace owner. And if a drone delivery company wanted to fly through that person’s airspace to deliver a package, they would also have to pay.
Further, large landowners, including state governments, could potentially institute aerial “tollroads,” charging a fee for each drone that enters the airspace in order to conduct business.
What Is Avigation Easement?
These proposed laws are generally grouped under the term “avigation easement” laws.
The word avigation is a combination of navigation and aviation, and the word easement refers to the need for crossing or using someone’s land for a specific purpose (like a photo shoot or a delivery).
When combined, the phrase avigation easement extends the idea that a property owner has the right to decide what happens on their property into the right for them to decide what happens in the sky over that property as well, up to a certain altitude.
Here’s a definition from USLegal.com:
Avigation easement is an easement or right of overflight in the airspace above or in the vicinity of a particular property. It also includes the right to create such noise or other effects as may result from the lawful operation of aircraft in such airspace and the right to remove any obstructions to such overflight.
The idea of avigation easement isn’t new.
Airports located near private property have avigation easement agreements with the owners of that property, which confer the right of aircrafts to fly at low altitudes over the property as they take off or land. Once the craft is at 500 feet, an easement is no longer required.
The right of property owners to secure avigation easement agreements from airports dates back to 1946.
That year, the U.S. Supreme Court ruled in U.S. v. Causby that a farmer (Causby) living near an airport owned the airspace from 83 feet to 365 feet above his property—that is, the airspace through which planes flew as they took off and approached the neighboring airport.
This idea was further established in 1962, in another Supreme Court case called Griggs v. County of Allegheny. In that case, the court declared that “the use of land presupposes the use of some of the airspace above it,” recognizing that some of the airspace over a property could also be considered property by the landowner.
Despite these two cases, there is a big leap from saying that airports have to have avigation easements with neighboring properties to saying that anyone anywhere can demand avigation easements from those flying a drone that enters the airspace above their land.
And that leap is exactly what’s at issue in these new proposed state laws.
AUVSI and the Consumer Technology Association Take Stance Against Avigation Easements
AUVSI (Association for Unmanned Vehicle Systems International) recently issued a statement taking a strong stance against avigation easement laws.
The statement was titled “For the Drone Industry to Take Off, We Must Defeat ‘Avigation Easement’ Proposals” and follows a joint press release issued on the same topic a few weeks before by AUVSI and the CTA (Consumer Technology Association).
In both documents, AUVSI makes it clear that it sees avigation easements as an existential threat to the commercial drone industry.
At the heart of the issue is the concern that states will each enact their own particular drone laws, which would make commercial drone operations incredibly complicated.
Further, if states are allowed to create legislation about airspace, smaller government authorities at the county or municipal level might be allowed to do so as well, creating a mishmash of regulations so complicated that simply figuring out how to be in full compliance could present a significant barrier to working as a commercial drone pilot.
A patchwork of 50 states with 50 different sets of rules would be a disaster for industry, weakening strong federal safety standards and imposing tremendous costs on consumers and drone operators.
– AUVSI and CTA Joint Statement
Not only do state avigation easement laws threaten to create a complex and costly system for commercial drone operators to navigate, it also directly challenges federal control of the airspace.
The AUVSI statement goes on, making it clear how high the stakes are if these kinds of laws are passed by calling them potential “poison pills”:
The drone toll model is perhaps a money-maker for some companies that want to get in on the front-end of airspace management and charge taxes or fees for access, however, it is a poison pill for the nascent commercial UAS industry, and the yet-to-be realized AAM marketplace. Taxing industry for access to low-altitude airspace before the industry has yet to engage in widespread commercial operations, and for most companies, turn a profit, would kill the industry and its innovative approach to revolutionizing business.
The Proposed Avigation Easement Laws
In the opening to this article we mentioned that there are laws under consideration right now that would institute avigation easements for drones.
The four states considering these laws are Louisiana, Mississippi, West Virginia, and Texas. Here’s an overview of each law:
- Louisiana. Louisiana bill H.B. 587 would give the state Department of Transportation (DOT) the power over avigation easements above state highways and waterways and the ability to partition that airspace into separate levels and charge a fee for using each level. View the proposed law.
- Mississippi. Mississippi bill S.B. 2262 would give the state DOT the same powers outlined above in the Louisiana law, but the DOT would only be able to charge “fair market value” fees (whatever that means, since the market doesn’t currently exist). View the proposed law.
- West Virginia. West Virginia bill H.B. 2726 would give local governments the power to issue permits for drone operation above public roads but it would not allow them to charge a fee for these permits. View the proposed law.
- Texas. Texas bill H.B. 3403 would give the state DOT power over avigation easements above state-owned land and make it illegal to fly a drone BVLOS (Beyond Visual Line of Sight) without an avigation easement. The law would also allow local governments and private landowners to establish avigation easements over their land through the state DOT. Anyone with an avigation easement in place could charge a fee for those who want to use that airspace. View the proposed law.
In addition to these state laws, Senator Mike Lee recently proposed a federal law that would allow states and other local governments to create their own drone laws. AUVSI is also against this law, and has issued a separate statement detailing its position.
If these laws are passed, what will probably happen is that the commercial drone industry will simply die in those states for all but the largest companies.
Dronepreneurs looking to start a side hustle will be unlikely to have the funds to pay easement fees or the means to do easement research, leaving only the Amazon Prime Airs or the major inspection companies left to do drone work, essentially killing off a nascent industry throughout the state.
On the other hand, states that are embracing drone technology, such as North Dakota or North Carolina, might in turn see their commercial drone economies flourish.
Of course, it’s far too early to know right now, but it does seem like these laws would only serve to hurt the drone industry and those who do work with drones.
Wondering what you can do? If you’re concerned about avigation easement laws in your state, contact your state representative to share your concerns.
Want to talk to others in the drone community about these laws? Join the conversation in this thread on the UAV Coach community forum.