UNMANNED AERIAL VEHICLES: From Law to Land. OTEC 2017 Columbus, Ohio BETH R. MINEAR, ESQ.

Transcription

1 UNMANNED AERIAL VEHICLES: From Law to Land OTEC 2017 Columbus, Ohio BETH R. MINEAR, ESQ.

2 PRESENTATION DISCLAIMER This PowerPoint slide deck constitutes copyrighted material. The content herein should not be photographed, videoed, published, broadcast, rewritten for broadcast or publication, distributed or redistributed directly or indirectly in any medium without written permission. Neither these materials nor any portion thereof may be stored or used on a computer except for personal use. This presentation does not constitute legal advice and is intended for educational purposes only.

3 LAND USES & OVERVIEW Drone usage can be a safe and efficient alternative for many companies and public entities Initial work surveys or ongoing monitoring Operation and maintenance activities Project execution throughout the timeline Environmentally sensitive areas Daily use and compliance

4 UAVs IN PROJECTS - SURVEY Survey uses for UAVs Civil or location surveys Geotechnical surveys Wetland delineation/waters of the U.S. Threatened and Endangered Species Raptor and Migratory Birds (MBTA)

5 UAVs IN ASSET O & M Operation and Maintenance uses Aerial leak detection surveys Tower inspection for electric or cell Well sites and valve sites in remote or hard to access locations Encroachment remediation and asset protection Incident response

6 UAVs IN PROJECTS Fantastic to establish baseline for project planning or other work Update at periodic intervals Stay on course Monitor sensitive features risk mitigation Monitor progress/document issues Remap at completion to confirm reclamation and final baseline to cut off litigation

7 DAILY USE & CHALLENGES Initial challenges in starting UAV program and how overcome Landowner suspicion Hodge-podge of laws in state and local jurisdictions Uncertainty in the laws Ancient rights

8 LEGAL OVERVIEW Congress delegated authority to FAA to define navigable airspace 49 USC 40103(b)(1) FAA has multiple categories of controlled airspace Generally airspace deemed to be 500 feet and above, takeoff and landing notwithstanding (Class G uncontrolled) FAA does not have authority over state real property laws need to check by state

9 LEGAL OVERVIEW - Drones FAA Modernization and Reform Act of 2012 (FMRA) Sections Section 336 Model aircraft (hobby) no regulatory authority for recreational purposes 333f business or commercial use: Special Airworthiness Certificate ( for hire prohibited Petition for exemption with Certificate of Waiver authorization (COA) low-risk controlled environment Part 107 Waiver

10 NEW UAS REGULATIONS August 29, 2016 Commercial operators need remote pilot certificate no longer needs pilot s license No need for airworthiness certificate Day flights only and visual line of sight maintained May not fly over people not part of UAS operation May not go higher than 400 feet Maximum speed in 100 mph

11 NEW UAS REGULATIONS Recognized as critical tool for the energy industry both in terms of safety and efficiency Specific industry-related examples of possible small UAS operations under the new regulations: Power-line/pipeline inspection in hilly or mountainous terrain; Antenna inspections; Bridge inspections; and Wildlife nesting area evaluations

12 REGS INTERPRETATION Academy for Model Aeronautics guidelines 80 year old organization Works with FAA and its UAS Integration Office Monetizing model aircraft usage If you post hobby on YouTube and get paid for views, is it business? Taylor v. Huerta (FAA), (D.C. Cir. 2017) Registration IS regulation of model aircraft

13 AIRSPACE LITIGATION United States v. Causby, 328 U.S. 256 (1946) Griggs v. Allegheny County, 369 U.S. 84 (1962) Florida v. Riley, 488 U.S. 445 (1989) State v. Davis, 2015-NMSC-034 (Oct, 19, 2015) Boggs v. Meredith, Civil Case No. 3:16-cv D.C. W.D. Kentucky - (dismissed March 21, 2017)

14 STATE LAWS States stepping in to rapidly fill the federal void As of May 24, 2017, 37 states have enacted laws regarding drones and three states have resolutions FAA Reauthorization Act of 2016 originally had preemption language, but not in final version Seven states have legislation preempting localities from enacting UAS laws Arizona, Delaware, Maryland, Michigan, Oregon, Rhode Island and Virginia

15 STATE LAWS Twenty-four states have Privacy laws related to drones Ohio does not Eighteen states have warrant requirements for law Ohio does not Criminal penalties for misuse in six states Ohio does not Six states prohibit drone use in hunting and fishing Ohio does not

16 OHIO DRONE LAWS Nothing by the state yet Municipalities stepping in: Aurora 1000 feet ordinance public buildings, utilities, active fire or crime scenes; privacy Cleveland L.E. Authority to enforce FAA laws Cuyahoga Heights bans over public parks, schools, public properties or video private prop Broadview Hts and New Royalton proposed

17 OHIO SURVEY LAWS ORC Entry upon real property; notice; Any agency may, upon the notice prescribed in this section, prior to or subsequent to the filing of a petition pursuant to (the ORC) enter upon any lands, waters, and premises for the purpose of making such surveys, soundings, drillings, appraisals, and examinations as are necessary or proper for the purpose of the agency... and such entry shall not constitute a trespass. Notice of such proposed entry shall be given to the owner or the person in possession by such means as are reasonably available not less than forty-eight hours nor more than thirty days prior to the date of such entry.

18 LEGAL USE & EASEMENTS With easements/rights-of-way, there is an existing grant Few existing grants will specifically address use of UAS Words of the grant will be key to use Gray area on use of UAS for survey rights on greenfields where likely no current grant

19 LAND RIGHTS ANALYSIS Ancient rights reasonable contemplation Restrictive language in existing rights All operations thereon to be conducted on foot/horse/atv All activities necessary for operation... Activities as required for regulatory compliance Unless an emergency, no access during hunting season No right to use existing rights to piggy-back future rights

20 LAND RIGHTS ANALYSIS Newer rights reasonable contemplation Broader language in existing rights All operations thereon to be conducted with reasonable care to mitigate damage to crops All activities reasonably necessary or convenient for operation... Activities as reasonably required for safe and efficient operation Unless an emergency, no access until crops are harvested Multiple line rights or blanket use

21 UAVs IN ACTION - SURVEYS Preliminary Survey uses for UAVs Survey permissions will need careful wording Uncertain whether companies will be able to use statutory survey rights in many situations Some states require specific additional notice, even with existing rights

22 UAVs IN NEGOTIATIONS Landowner negotiations for needed or existing rights Will likely need to supplement Keep existing rights May consider a time, place and/or manner provision May reference existing state laws May consider agreeing to copies of information obtained

23 UAVs IN ACQUISITION For new rights however obtained, may need to evaluate whether a dealbreaker Confidentiality issues information not used for other purposes Typically, if you cannot condemn for a right, you cannot insist on it May need a Declaratory action if unclear whether right exists or can be implied proceed with caution

24 UAVs IN OUTREACH Technology is new enough to still be interesting Have a drone demonstration in various areas existing or future assets Outreach without an ask Less expensive models to demo Educate what is and what isn t factual Sell the merits of least-invasive entry Privacy assurances

25 UAVs LAND to LEGAL Takeaways General and specific land rights and UAVs know uses and limitations Public airspace and privacy rights research local ordinances... every use Understand existing land rights, if any, and what is necessary for new rights Triage existing rights for current use or need to supplement

26 THANK YOU! Beth R. Minear, Esq