I agree. A property owner "Owns" the airspace above their property from zero to 83 feet. From 83 ft to 500ft is for the hobbiest. From what I found maintaining an altitude above 83 ft over someone's property IS considered legal according to the FAA.
Where do people get these silly numbers? The SCOTUS decision in Causby did not establish the lower level of navigable airspace. The decision said, in part: "The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land.".
The 83 feet was only a passing mention for illustration: "The Court holds today that the Government has 'taken' respondents' property by repeatedly flying Army bombers directly above respondents' land at a height of eighty-three feet where the light and noise from these planes caused respondents to lose sleep and their chickens to be killed."
There is a big case coming up that was mentioned here a few weeks ago in SkyPan International. SkyPan's defense to my non-lawyers perception is a losing proposition. On their website they contend that navigable airspace begins at 500 ft.
"SkyPan operates only in privately owned air space over the private property of its clients. Never flying over people or public spaces, SkyPan always maintains straight up/straight down flights with fulltime altimeter monitoring and complete aircraft control. SkyPan never operates higher than surrounding structures and never penetrates the navigable US airspace as defined by the FAA."
SkyPan’s legal arguments will include an argument that the FAA lacks authority to regulate sUAS below the navigable airspace. SkyPan is making the same assumption that cities make when they think they can write local rules restricting flight. They believe that the definition of navigable airspace is fixed and immovable by misreading 14 CFR§1.1 -
General definitions: "Navigable airspace means airspace at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing." But, this section is
general specifications, not definitions; and the first line says: "unless the context requires otherwise". Helicopters and "weight shift aircraft" (Part 103 Ultralights) are clearly a context that fits the "otherwise". I have no doubt that the NTSB will say that sUAS are operating in navigable airspace when below 500 ft.
According to the FAA, there is no such thing as privately owned airspace in the sense SkyPan is intending here. If SkyPan takes the issue to court a potential ruling could clarify who owns the airspace over private property.
A lose for SkyPan is a win for us in that it will make a clear definition that the FAA controls flight below 500 ft.
