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Preparing for the legal issues of drones on the farm

Peggy Kirk Hall Published on 29 May 2015

There is growing interest in the many applications that drones, or small unmanned aerial systems (small UAS), offer farm and ranch landowners. These remotely controlled vehicles, weighing up to 55 pounds, carry cameras, infrared sensors and other technology that allow a landowner to monitor crops, livestock, waterways, boundaries and more.

But this new technology raises legal issues, which means farmers and ranchers should prepare now to ensure legal issues won’t compromise the ability to capitalize on drone technology. Consider these five areas of legal concern if planning to use a drone for your operation.

1. Federal regulations
The Federal Aviation Authority (FAA) finally released proposed regulations for small UAS this February, but the regulations likely won’t be in place for another year.

The proposed rule fills a regulatory gap that now ties the hands of those who want to fly drones legally for agricultural uses because the FAA has determined such uses to be “commercial” and not within the hobby/recreational flight exemption from FAA regulation.

Instead, operators must obtain authorization from the FAA to conduct “commercial” flights – a lengthy and uncertain process that requires a pilot’s license.

The proposed small UAS rule will create a new category of regulation that will allow farmers and ranchers to operate a small UAS by complying with the following:

  • The small UAS operator must have an “unmanned aircraft operator certificate with a small UAS rating,” which requires the applicant to be at least 17 years old, speak English, have no state or federal drug offenses or physical or mental conditions to prevent safe UAS operation and passes an initial aeronautical knowledge test and a recurrent test every 24 months.

  • Aircraft registration with the FAA

  • Aircraft markings indicating registration and nationality

  • Maintaining aircraft in a safe condition

  • Pre-flight inspection and assessment

  • Maintaining a visual line-of-sight with the unmanned aircraft, using only human vision unaided by any device other than glasses or contact lenses.

    “Visual observers” may assist with this requirement if the operator and visual observer maintain constant communication, which may be through communication-assisted devices, and the aircraft remains close enough to the operator to maintain the visual line-of-sight.

The following are operating limitations which prohibit flying a small UAS:

  • More than 500 feet above ground level

  • More than 100 mph

  • After daylight, which is the time between official sunrise and sunset

  • When there is not minimum weather visibility of 3 miles from the aircraft’s control station

  • No closer than 500 feet below and 2,000 feet horizontally away from any clouds

  • Over any persons not directly involved in the operation and not under a covered structure that would protect them from a falling UAS

  • From a moving aircraft or vehicle, unless the moving vehicle is on water

  • Within Class A airspace; or within Class B, C or D airspace or certain Class E airspace designated for an airport, without prior authorization from the appropriate air traffic control facility

  • Carelessly or recklessly, including by allowing an object to be dropped from the aircraft in a way that would endanger life or property

  • An operator must report an accident to the FAA within 10 days of any operation that results in injury or property damage.

Speculative small drone operators should be prepared to comply with the new rule for small UAS when it becomes final, which could be sometime in 2016.

Until then, flying a small UAS for agriculture requires authorization from the FAA through its exemption and waiver process unless the flight is purely for “recreational” purposes and not for farm or ranch business, so farmers should rely on using authorized drone operators for their current needs.

Those who fly without FAA approval could be subject to substantial fines as the FAA has stated it will take enforcement action against operators of small UAS flights that could endanger the safety of other aircraft or persons on the ground.

2. State and local laws
Since 2013, lawmakers in 45 states have introduced legislation related to drones. New laws or resolutions were enacted in 23 of those states.

Most of the laws address UAS use by law enforcement or government, and many also establish state guidelines for private citizens who fly UAS, provide civil remedies for personal or property damage caused by a UAS and create criminal offenses for weaponing a drone, using a drone to harass hunters and fishermen or observing, capturing images or otherwise invading privacy on private property.

Other state and local laws could also address issues such as trespass, nuisance and interference with flying aircraft. Prospective UAS operators should check state and local laws to understand legal requirements and potential criminal and civil liabilities.

3. Surveillance of agricultural activities
In 2014, an activist used Kickstarter’s website to raise $75,000 to deploy drones to investigate “what is happening on factory farms” and to show “the magnitude of these operations and the pollution they generate.”

As with recent undercover investigations, the misuse of photographs and videos of agricultural activities can create serious ramifications for farms and ranches operating in accordance with the law.

Drone technology could be another tool for mischaracterizing “what is happening on the farm” or for interfering with the farm or ranch operation.

Governmental entities could also utilize UAS flights for surveillance purposes. The Fourth Amendment requires the government to obtain a search warrant to search an area where there is a “reasonable expectation of privacy.”

Courts have held that landowners typically have a reasonable expectation of privacy in the buildings and structures surrounding their home but do not have a reasonable expectation of privacy in “open fields.”

With or without a search warrant, it is possible that law enforcement and other governmental agencies could utilize drones for a variety of purposes such as detecting compliance issues. Keep in mind, however, that many state laws circumscribe the use of drones by state or local agencies and law enforcement.

4. Protecting property
Issues such as trespass and surveillance lead to the question of how to protect one’s property from other drone users. While a gray area, property law suggests that private property rights extend about 400 feet above the property surface or to as much of the space as the owner can “occupy or use in connection with the land,” according to the U.S. Supreme Court.

A landowner could report a drone flying within the owner’s private airspace for violating trespass, invasion of privacy or other applicable laws. Ensure that property boundaries are identifiable from the air and be aware that property owners who “shoot down” a drone flying over their property could face federal, state or local criminal actions.

5. Liability
Each of the issues above raises the possibility that a UAS operator could be legally liable for failing to follow the law. There is also the potential for a UAS to trespass, invade privacy, cause damage to a person or property, or be harmed or lost.

To address these liability risks, a UAS user can obtain liability insurance on the vehicle. To date, a number of insurance providers offer policies for UAS activities.  FG

Peggy Kirk Hall
Director
Ohio State University Agricultural and Resource Law Program
Email Peggy Kirk Hall

Preparing for the legal issues
Farmers and ranchers who plan to capitalize on the benefits of drone technology can prepare for potential legal issues by:

  • Staying current on and complying with the upcoming federal rule that will regulate small UAS

  • Until the new rule is final, only using authorized drone operators on the farm, or using a personal drone only for hobby/recreational uses

  • Identifying all applicable state and local laws

  • Managing UAS flights to avoid conflict with the laws and other vehicles, properties and persons

  • Making property boundaries visible to aerial viewers

  • Reporting flights within 400 feet of the property surface and resisting the urge to “shoot it down”

  • Insuring the small UAS

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