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## Petition to Withdraw or Repeal the Rules for

The Operation and Certification of Small Unmanned Aircraft Systems.

June 28,2016 F.R. Vol 81,No. 124 p

- 42064

- 42214
The Secretary of Transportation (OST) and the Department of Transportation (DOT ).

throu gh the Federal Aviation Administration (FAA) (the “Agencies”) , have imperiled our
property rights , a nd infringed upon landowners’ liberty interests

. New Regulations allow use
and occupancy of an area vested with existing property title; this, without adhe ring to
procedural due process , statutory limitations, or applicable case law

. On June 28, 2016 these Agencies published Rules and Regulations for the Operation and
Certification of Small Unmanned Aircraft Systems. F.R. Vol 81,No124 p

- 42064

- 42214 1

. (herei n the “Rules”)

. The Rules are not in accordance with the applicable law and fail to
comply with court ruling s in which the Agencies and the United States are named parties.
By ignoring existing property boundaries a nd court

- affirmed p roperty rights, the R ules rely

upon a n impermissible presumption of a public right and /or a misinterpretation of governing

statutes which is contrary to applicable law. It is an abuse of discretion , and short of
statutory obligation, to ignore applicable property laws and ci rcumvent obligations
preserving due process rights by allowing public use through private property

. T he se R ules
violate constitutionally protected rights, are i n excess of statutory authority, are unwarranted
by the facts

, and ignore substantial evidence in the record

. Further, t he Agencies have failed

to take required discrete actions designed to preserve the due process rights of those holding

property
, or interests in property

, effected by these Rules. The must be set aside.
Congress did not , and cann ot be presumed to have

, authoriz e public use of property held
in the private domain without funding for just compensation

, n or for the Agency to exercise
discretion to allow use of private property based on the capability of a new technology , nor to
expand the context and location of the pub lic easement to include use of private property by

drones , nor to condemn property for use by drones. Rather, C ongress limited the Agencies
authority by mandating that the Unmanned Aircraft S ystem be consistent with the U.S.
Constitution and applicable laws

. 2 The Rules do not comport with this obligation.

1 14 CFR Parts 21, 43, 61, 91, 101, 107, 119, 133, and 183 [Docket No.: FAA

– 2015

– 0150; Amdt. Nos. 21

– 99, 43

– 48, 61

– 137, 91

– 343, 101

– 9, 107

– 1, 119

– 18, 133

– 15, and 183

– 16] RIN 2120

– AJ60

2 ‘ Federal Aviatio n Administratio n Reauthorization Act of 2016 sec 2128 8,(B) ( Ensure “ that unmanned aircraft system activities are performed in a manner consistent with the Constitution and applicable laws” )pg. 2 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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Under 5 USC § 553 (e) , w e are requesting the Agencies repeal and withdraw the rules as

written and/ or Stay execution of the se new Rules

, until the deficiencies are co rrected

. Alternatively, w e ask the Agency to explicitly exempt from the R ules allowing

, or

a uthorizing

, flight s through the low

- altitude space (below 4 00 feet) above non

- federal lands

without landowner expressed permission

. And

, we request the Agency st op perm itting,
certifying

, issuing waivers, and exempting from FAA regulations drone s, or UAS operators

, f r om flight through non

- federal airspace; and to make as a condition of all existing and future

certifications

, waivers

, and permits that landowner per mission must be obtained before flying
over priva te property below the altitude of 4 00 feet.
My family own property in Georgia and North Carolina and we have experienced
interference of our rights by drones. We had previously filed com ments with the FAA during
the scoping period and requested drones not be allowed to occupy spac e which is considered

within the domain of landowners , s pecifically the zone below the Navigable Airspace and
above lands held by a valid deed. T he Rules imply

, by presumption

, a public right in this zone

which the Court and FAA have long recognized as being privately held. The Agency has failed

to consi der effects on property interests as required by law. The result is the Rules which are

in violation of 5 USC 706 and therefor e must be set aside

. For these reason s , we ask the
Agencies W ithdraw , Repeal and/ or Stay the Rules , or nullified them as they pertain to the
privately zone above privately owned lands

. Our Petition to withdraw is explained below

. Thank you for your consideration.
Sincerely,


# Michael Ba mford

Michael Bamford 828

- 226

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### I: The S pace Near Gr ound Level Vests with Title in t he Lands

1. The Agencies have presumed domain by authorizing public use through property whi ch
the US Supreme Court has recognized is vested with title to the lands.

2. At common law, he who owns the soil, owns up to t he heavens. 3

" Cu jus est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building , or the like, to overhang another's land:

... the word "land" includes not only the face of the earth, but every thing under it, or over it. ” Blackstone Commentaries Vol,2 Bk 2 p 18

. 3. The idea that property ownership and rights “extended to the heavens” worke d reasonably
before gravity was defied at Kittyhawk in 1903.

4. Even after flight became reality, t he US S up reme C ourt recognize d th a t an uninvited

invasion of the lower

- altitudes space i s a property right s violation

. See Portsmouth

Harbor v. United States , 260 US 327, 229, Supra (1922) (firing cannon balls over private

land institute s an implied servitude over property )

, also United States v. Causby 328 U.S.

256

, 266 (1946) (holding that low altitude flight is a “direct i nvasion of respondents

domain” )

, al so see Grigg s v. Allegheny , 369 US 84, 89 Supra (1962) ( “the use of land
presupposes the use of some of the airspace above it. Otherwise no home could be built,
no tree planted, no fence constructed, no chimney erected ” )

.

5. Courts have distinguished bet w een unencumbered title in lower

- altitude s , with the
servitude burdening higher “navigable airspace ” through which the public has a right of

transit

. Through case law and legislation, the lower boundary for this “ navigable airspace ”

has been fixed at the a ltitude of five

- hundred feet (500ft ). see Aaron v. United States , 311
F.2d 798, 801 (Ct. Cl aims . 1963) 4

. Also Branning v. United States , 654 F.2d 88, 97

- 98 Ct
Cl( 1981)

. Argent v. U

. S

. 124 F.3 rd 1277 (1997) sec. III

- A

6. The Avigational S e rvitude does not ext end down to ground level.

3 28 Am. Jur.2d 618,2 Blackstone Commentaries 18(1836). See als o, United States v. Causby, 328 U.S. 256,260 261(1946), citing I Coke, Institutes, 19th Ed. 1832, ch. 1, § 1(4a); 2 Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p.621

4 Aa ron v US “It is true that the inconvenienc e and annoyance experienced from the passage of a plane at 501 feet above a person's property is hardly distinguishable from that experienced from the passage of a plane at, say, 490 feet, but the extent of a right

- of

- way, whether on the ground or on water or in the air has to be definitely fixed. Acts that are permissible within the limits of the right

- of

- way are forbidden beyond its limits, and vice versa. Congress has fixed 500 feet as the lower limit of navigable air space; hence, what may be permissib le above 500 feet is forbidden below it, unless compensation is paid”pg. 4 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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7. North Carolina State Law 5 w as memorialized in US v. Causby 328 U.S. 256, 266 (1946).
( "ownership of the space above the lands and waters of this State is declared to be vested

in the several owners of the surface beneath." NC Ge n Stat § 63

- 12 )

. Holding that flight
of airpla nes between the altitude of 83 and 300ft invades the landowners’ domain. id

8. Similarly, Georgia recognize s “that the owner of land has title to and a right to control the

air space above it to a distance of at least 75 feet above his buildings thereon; but we are
not here holding that his title to the air space above his land is limited to an altitude of that
height.” Chronster v. Atlanta , 99 Ga. 447,449, 108 S.E.2d 731 (1959)

.

9. It is now settled law that the lower altit udes accrue with deeded title in land

. T herefore,

property interests in the lower altitudes within the metes and bounds of a ny deed are

vested with land owner t itle 6

. (herein the “Private Zone” or “Private Airspace”).

10. The Private Z one does no t , and cannot be presumed to, include a public right of transit

. 7

11. 49 U.S. Code § 40110 8 provides for the FAA to acquire or dispose of prop erty, “including
airspace” , when necessary for overflights near airports . This statutory provis ion would be

unnecessa ry if airspace was not a vested property interest

, or if federal domain over all
airspace preexisted

. It would be unconstitutionally to interpret this statute as being
meaningless. See Griggs v Allegheny 369 US 84

, 92 ( 1962) ( again confirming private

dom ain over the airspace at altitudes below 500ft ).

12. The FAA provides a Suggested Template for Avigation Easements 9 to be used when
compensating landowners for having taken airspace for overhead flights. The template
requires property ow n e rs to sign over future building rights in their property

, and waives

5 "we are mindful of the basic axiom that `[p]roperty interes ts . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.' Preseault v. ICC, 494 US 1,20 (1990) citing others

6 US v. Causby 328 U.S. 256,265 “the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.” Citing "See Bouve, Private Ownership of Navigable Airspace Under the Commerce Clause, 21 Amer. Bar Assoc. Journ. 416, 421

- 422; Hise, Ownership and Sovereignty of the Air, 16 Ia. L. Rev. 169; Eubank, The Doctr ine of the Airspace Zone of Effective Possession, 12 Boston Univ. L. Rev. 414.

7 Oliver v. United States , 466 US 170 Supra ( 1984 ) note# 15 (“unlicensed use of property by others is presumptively unjustified , as anyone who wishes to use the property is fre e to bargain for the right to do so with the property owner, cf. R. Posner, Economic Analysis of Law 10

- 13, 21 (1973). For these reasons, the law of trespass confers protections from intrusion by others far broader than those required by Fourth Amendment i nterests.”

8 Authority to acquire property can be traced back to the Federal Aviation Act of 1958, 72 stat 741

, sec 303C. This provides for acquisition of airspace from surface owners within congressional imposed limitations.

9 https://www.faa.gov/airports/central/airports_resources/media/RPZeasement.pdfpg. 5 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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future liability from any aircraft from potential claims of interference or damage to

property

. These provisions to acquire property interests for flights are not meaningless.

13. Repugnant to these law s w hich recognize a landowner’s right to the Private Zone

, the se

new R ules allow and certify drones which can , and will

, hover just above ground level , i.e
through the Private Zone

. Consequently, the Rules are contrary to applicable law.

14. The Agencies igno re the Congressional ly imposed restraint that req uire the A gencies to

ensure drone Rules be “ consistent with the Constitution and applicable laws .” 10 The
Agencies circumvent the will of Congress by failing to compare the effects of these Rules

on property laws by simply e xclud ing a material fact from the ir assessment: the scope of
property rights and the location of property boundaries

. Agencies could not know if the

Rules are constitutional

, or if they comply with applicable property laws by disregarding

property rights and interests

. T he Agenc ies could not have met its’ obligation by n ever assessing the inconsistency between these Rules and applicable laws and constitutional
provisions which protect vested property interests.

15. By not removing the Priva te Zone from the Rules, t he R ule s misrepresent existing

property rights through the P ri vate Zone as being irrelevant to “flying in the airspace
above a piece of property”

. p g

. 42119

. A pplicable law s and court ruling have already held

that aircraft flying b elow 500 feet interfere s with the property in terest vest ed with title

. 16. E xclu sion of this material fact throughout the R ules making process was an abuse of the
Agencies ’ discretion , which results in an arbitrary and capricious set of Rules and violates

the US constitution and applicable laws

. s ee 5 USC 701

- 706.

17. T he R ule s include an impermissible presumption which denies the existence of property
right s, then exercises discretion by allowing drones to fly through the Private Zone

. 11

18. Congress did not grant these Agencies the a uthority to acquire the Private Airspace from

landow ners for use by drones 12 ; therefore

, Rules which allow 13 drones through the P rivate

10 The FAA must ensure that the “unmanned aircraft system activities are performed in a manner consistent with the Constitu tion and applicable laws” Federal Aviation Administratio n Reauthorization Act of 2016’ sec 2128 8,(B)

11 Preseault v. ICC, 494 US 1,23 (1990) [“see Ruckelshaus v. Monsanto Co., 467 U. S., at 1012 ("If Congress can `pre

- empt' state property law in the manner advocated by EPA, then the Taking Clause has lost all vitality. [A] sovereign, `by ipse dixit, may not transform private property into public property without compensation . . . . This is the very kind of thing that the Taking Clause of t he Fifth Amendment was meant to prevent' "), quoting Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S., at 164.]

12 49 USC § 48101 appropriates are for air facilities only . 2016 reduced the budget for property acquisition.

13 The June 2016 Rules cla im to allow

, certify

, exempt from FAA control aircrafts flying through private property.pg. 6 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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Zone is in excess of the Agencies ’ statutory limitations

, which require s just compensation

when allowi ng the physical occupation of the Private Zone.

19. The se Rules are not in accordance with the applicable laws or the Constitution.

20. The Agencies ’ action violates property rights in numerous ways, some are shown below:

a. The R ule allows , permits and certifi es the use of unmanned aircraft within the “line of sight”

. Prohibiting drone flight beyond the line of sight would appear rationale for safety rea sons. However, allowing use of Private Airspace based upon visual range does not comport with the scope of property rights based upon the metes and bounds of
recorded Deeds and applicable laws

. b. T he Agencies have abused their discretion by substituting the landowners well

recognized right to exclude , with some presumed jurisdiction to authorize use of non

feder al property based on technological advancements of aircrafts

.

c. The Rules make it illegal to fly a drone within 50 0 feet of a structures . T herefore

, a property owner
, or municipality

, would be in violation of Federal law by usin g a drone
to wash a 4 th flo or window , or using a drone to paint their e a ves

. Permission by the
property owner is the legal standard for use of private property. not the distance from a

structure

. The distance from a structure may be useful for safety reasons, but should
not then b e waived or exempted for drone operators without landowner permission.

d. The Rules waive regulations for creepy voyeurs h overing a drone near a window , and no rights for the home

- owner to secure his home against such an intrusion by a closer
drone . Again p reemptive property rights

, and not just rights to privacy suggest s that permission from the landowner

- not capability of a drone s

- set limit s on where drones fly. 14 A Rule provision ed upon property rights was never considered , even though this
reasonable a lternati ve was proposed during public scoping

.

e. The R ules treat the rights of property owners who have built structures dissimilar from property owners who have not

. Under the Rules, d rone invasions are prohibited near existing “structure s” , while drone s are allowed to invade less developed lands. 15

Landowners who farm

, or view wildlife, or prefer structure

- free meadow are de prived
their right to exclude

, because the Rules only consider limits of privacy awarded under
the IV th Amendment, rather than prop erty owners’ right to exclude

. 16

14 Oliver v. United States, 466 US 170,189

- 190 (1984) “privacy interests are not coterminous with property rights” “one who owns or lawfully possesses or controls pro perty will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude."

15 This oddity appears to be based upon rights of privacy and what constitutes chattels under the IV th Amendment, rather than the right to exclude pro tected by the common law of trespass and recognized as a liberty interests protected under the due process clause of the V th Amendment. compare United States v. Orito , 413 U. S. 139, 142 (1973) ("The Constitution extends special safeguards to the privacy of the home") with Oliver v. United States , 466 US 170, (1984) note#15.

16 Oliver v. United States , 466 US 170, 184 (1984), also note 15 (Property rights are broader than privacy rights)pg. 7 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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f. The Rules grant right s t o drones operators, not granted to other forms of transit which use the same space near ground level; i ncluding a landowners’ right to enjoy a walk in
his meadow or bike a path wit hout experiencing disruption by flying drones.

g. Under the commerce clause, the A gency ’s has broad authority over commercial navigation 17 independent of property ownership , but this authority is not without limitations. The US Supreme court has held that this regulatory au thority does not
include allowi ng public access to private areas without landowner permission

, nor without congressional approval followed by just compensation

. 18

h. We do not dispute the absolute authority these Federal Agencies may have in the airspace abov e public lands ; 19 or in the control of the public right of transit in the navigable airspace above 500ft ; 20 rather

, that the scope of authority to regulate flying
aircraft flying through the Private Zone does not include allowing

, or exempting from regulatio ns , flight by drones

. Here, Federal a uthority is limited to regulating interstate

commerce ; it does not include a llowing uncompensated public use of private property
without land owner

- approval

. T he Rules exceed statutory limitations.

i. Exempting aircr afts from FAA oversight violates the statutory mandate to “restrict or prohibit flight” which the FAA cannot “identify, locate and control”. By granting waivers, t he FAA has failed to take a discrete action to “restrict and prohibit” aircraft

not under th eir “control”. Granting waivers for flight through Private, State or municipal airspace is therefore both in excess of jurisdictional discretion and also short of statutory obligation. See 5 USC 706(2). j. The Agencies’ regulatory authority over aircrafts in the Private Zone does not include exempting from regulations , an aircraft that would physically occupy low

- altitudes (Private Zone) without landowner consent. The waiver implies authority.

17 see City of Burbank v. Lockheed , 411 U.S. 624, 626 (1973) citing Cooley v. Board of Wardens 53 U.S. 299 (1851)"Now the power to regulate commerce embraces a vast field, containing not only many but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating e qually on the commerce of the United States in every port, and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation." . . . Whatever subjects of this power are in their n ature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress."

18 “this Court has never held that the navigational servitude creates a blanket exception t o the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation. Thus, while [the area] may be subject to regulation by the [Federal agency], acting under the authority delegated it by Congress, it does not follow that the [area] is also subject to a public right of access.” Kaiser Aetna v. United States , 444 US 164,172

- 3 Supra (1979)

19 U.S. Const. art. IV, sec 3.2: The Property Clause (making needful rules for property “ belonging to the United States”).

20 see City of Burbank v. Lockheed Air Terminal, Inc ., 411 U.S. 624, 639 (1973). See also id. at 627 (quoting statute subsequently remodified at 49 U.S.C. § 40103(b) (the FAA “has been given broad authority to regulate the use of the navigable airspace ‘in order to in sure the safety of aircraft and the efficient utilization of such airspace . . .’ and ‘for the protection of persons and property on the ground . . .’”)). For navigable waters see United States v. Rands, 389 U.S. 121 (1967).("The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States.... For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.")pg. 8 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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k. The FAA must collaborate with Federal Land management agen cies, and hold a transparent public review, before flights are allowed over National Parks; 21 this fulfil ls the Constitutionally protected rights of d ue process owed to the Federal landowner and
US citizens

. Private landowners are entitled to this same ri ght to be heard before their liberties to enjoy their property

, and right s to exclude

, are eviscerated by these Rules 22

. l. Federal land managing agencies retain the authority to prohibit drones

, or any aircraft

, in the space above a Wilderness Area

. 16 U.S . Code § 1133(d)(1). Since the basis for such authority is the Property Clause of the US C onstitution (the right to make needful rules over property belonging to the U.S. ) ; private ly held land s would retain the same discretionary right to exclude drones f rom use through the Private Airspace.

m. The Rules allow drones to occupy the zone above navigable waters traditionally occupied by ships and other floating vessels. Congress authorized control of this space to the US Coast Guard who have established num erous rules and regulations to prevent collisions between vessels upon navigable waters . These are not considered by the Rules that allow drones to occupy this same space as ships, despite the FAA ’s obligation to prevent collisions with vessels on water o r land. 23

n. Roads are go verned by state and Federal laws, the Rules

- which allow flying at ground
level

- fail to consider the impacts associated with dron es occupying the same space as

m oving vehicles . The FAA is required to preve nt interference with mot orists. i d

.

o. The Rules allows drones over municipal and state

- owned parks, playgrounds, wildlife areas and recreational areas. Municipal and State agencies would be powerless 24 to restrict drones, even though they may have the responsibility of managin g these areas for

a conflicting purpose 25 . The effects from authorizing d rone s through lower altitudes on existing uses was never considered before promulgating the Rules : a NEPA violation.

p. The Rules include an impermissible presumption that Agencies’ discretion over Airspace is not preempted by constitutionally protected property right s . If such broad
discretion were accepted as true, landowners would be require d to obtain an FAA permit to buil d a fence, plant a tree, or build a swing

- set before block ing the “airspace” through w hich drones could fly freely under these Rules. Because t he Rules allow
drones through the undeveloped Private Zone

, the Rules creat e a prescriptive right, that prevent s planting new trees
, or building new structures

, by the ve sted land owner.

q. Permitting u se through the Private Zone by drones creates an inv erse condemnation of
property recognized by the courts to be within the landowner ’ s domain

. By adverse

21 49 USC § 40128 Congress mandates the FAA collaborate with the Federal land managing agencies, and requires public transparency under NEPA, before regulating the airspace above National Parks.

22 See Dolan v Tigard 512 US 374, 394 (1994) (A landowners “right to exclude would not be regulated, it would be eviscerated”).

23 49 USC § 40103.b.2.D: FAA shall prescribe regulation on flight “preventing collision between aircraft and land or water vehicles, and between aircraft and airborne objects.” 1958 Act sec. 307(c)

. 24 Supremacy Clause, U. S. Const., Art. VI, cl. 2.

25 Northampton, MA passed an ordinance preventing drones. http://www.northamptonma.gov/DocumentCenter/View/1103pg. 9 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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possession and the rules of prescription 26 , the Rules invalidate all f uture uses of th e land which destroys a ll the investment backed expectations in real property

.

r. The Rules r estrict drones use of the navigable airspace above 500ft

, through which the agency has complete control to move existing air traffic u pward

. Setting t he maximum altitude for drone flight artificially at 500ft, makes flying below 500 f t the only optio n. F ailing to considered allowing drones to occupy the space between 500 and 700 ft is a
NEPA failure. The Rules lack a reasona ble alternative that would all ow drones to fly
thr ough the existing public easement available

. 27 Better management of the airspace already in the public domain was never considered, before usurping private rights.

s. The Agencies fail ed to consider any alternatives that would preserve each lando wners productive use of their property , or which does not commit private resources for use by
drones

. Without an y alternative contrasting the selected Rule , violates NEPA

. 28

t. Th e Rules fail to provide protection for property on the groun d as required

. 29

u. Th e Rules provide no protection for floating or flying property held by others.

21. With respect to the Private Zone above private lands

, t he Rules were illegally published

without following necessary procedures, in violation of due process , and are inconsiste nt
with applicable la ws protecting property rights. T he R ules must be set

- aside

. 7 USC 706



### II: I llegally Expands the Burden on Private Title for a Public Easement

22. The Agencies have abused their discretionary authority by expanding the scope of the
publi c easement to n ow include use by drones through the Private Zone. This, based on a
misinterpretation of the underlying statutes, and applicable laws regarding easements.

23. T erms of an easement remain fixed based upon the purpose an d context of conveyance. 30

26 The FAA have ass erted the Laws of Prescription to claim a free easement through airspace. See County of Westchester v. Commissioner of Transportation 986 F.2d 624 (1993) , and the failure to fi le a taking claim caused by regulations as being time

- barred from judicial review. see Argent v. U

. S

. 124 F

. 3 rd 1277 (1997)

27 The Court recognizes the higher the altitude (above 500ft) still may require just compensation but less so. Stephens v. United States, 11 Cl. Ct. 352, 362 (1986) (“The court finds that the most appropriate rule is that when overflights occur in navigable airspace, a presumption of non

- taking exists which can be overcome by proof of destruction of, or substantial impairment to the property. As the height of overflights increases, however, the Government’s interest in maintaining air sovereignty becomes wei ghtier while the landowner’s interest diminishes

28 42 U. S. C. § 4332(C),

29 49 USC § 40103(b).

30 Preseault v. United States 100 F.3d 1525,1542 (1996) "The extent of an easement created by a conveyance is fixed by the conveyance." 5 Restatement of Propert y § 482 (American Law Institute 1944). ...“An easement is not such a possessory estate of freehold. Traditional characterization describes an easement as a "use" interest

, sometimes an "incorporeal hereditament," but not a "possessory" interest ”@,1533 see also Sierra Club v. Hodel, 848 F. 2d 1068.1083 10th Circuit (1988)pg. 10 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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24. A dditional encumbrances against existing title or property rights cannot be presumed or
retroactively declared by an agency seeking to expand jurisdiction or a public right 31

. 25. The Agencies Rules also assert their jurisdiction expands after they redefined the extent of
the public easement. The expansion of territory under the Agencies control, and available
for public use by drones creates an unfu nded mandate not authorized by C ongress. 32

26. The terms of the easement cannot be changed in isolation of constitutio nally protected due
process rights protecting property and property rights 33 The Rules are illegal under 5

USC 706 and must be set

- aside

. Brief History of the Public’s Right of Flight, and the Scope of the Avigation Easement:

27. At commo n law, property extends “to the heavens”, this worked reasonably well before
the first flight at Kittyhawk in 1903. Subsequently , rapid growth in air travel, commerce
needs, property concerns and international pressure 34 forced Congress to act.

28. Commercial Aviation Acts in 1926 and 1938 were superseded by the Act of 1958 which

formed the FAA to oversee Air Commerce. The Rules cite the 1958 Act for authority.

29. Federal authority and rights of air transit were declared by Congress, not under the
property clause, but rather u nder the Commerce C lause. Congress incorporated
terminology relating to waterways (navigable) to establish a servitude or public easement
for air commerce by planes well

- above the zone typically used by property owners 35

.

31 Brandt v. US , 134 S. Ct. 1257,1267 (2014) (Holding Congress retroactive attempt to reserve a rig hts of way to the United States

, and create a property interest

, is not valid. Recogni zing the need for certainty and predictability where property titles are concerned.”)

32 . "A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the chan ge." See Dolan v Tigard (1994) citing Penn. Coal v Mohan 260 U.S. 393,416 (1922)

. 33 “Individual freedom finds tangible expression in pr operty rights.” United States v. Good, 510 US 43,61, supra (1993). Property rights serve a constitutional purpose by securing individual liberty. [see e.g, J.W. Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (NY, Oxfor d Press, 1992); F. McDonald, Novous Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Unv. Kansas 1985)]

34 Paris Convention of 1919 (Convention for the Regulation of Aerial Navigation, Oct. 13, 1919, 11 L.N.T.S. 173) and the Pan Americ an Convention on Commercial Aviation , U.S.

- Cuba, Feb. 20, 1928,ratified 1931 47 Stat. 1901) .

35 Branning v. United States, 654 F.2d 88, 97

- 98 (Ct. Cl. 1981). The House report accompanying the 1926 bill stated: “The provisions of the bill are not unique o r unprecedented. In practically every case each provision has a precedent in an existing provision of law, and is modeled upon and often paraphrased from it. Usually these existing provisions are those of the marine navigation laws. This is natural for the reason that air space, with its absence of fixed roads and tracks and aircraft with their ease of maneuver, present as to transportation practical and legal problems similar to those presented by transportation by vessels upon the high seas. The declarati on of what constitutes navigable air space is an exercise of the same source of power, the intestate commerce clause, as that under which Congress has long declared in many acts what constitutes navigable or nonnavigable waters. The public right of flight in the navigable air space owes its source to the same constitutional basis which, under thepg. 11 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

, 2 0 1 6 D O T R e f #160728

- 000030 M i k e Bamford a. In 1926, Congress passed the A ir Commerce Act under authority derived from the Commerce Clause to regulate air commerce 36

.. b. The 1926 and 1958 Acts, authorized an easement for transit by commercial aircraft through the navigable airspace defined as the space “above a minimum safe heig ht” through airspace of the United States for the type of air travel being regulated by the Act.

c. The easement provides “a public right of freedom of transit in air commerce through the navigable airspace of the United States”, codified in 1940 as 49 USC § 1304; which remains in the current statutes see 49 USC§ 40103.a.2. d. The 1926 Act at first asserted possession of all airspace. "The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the air

spac e above the United States ” 37

e. The possessory assertion was later nullified by the US Supreme Court in Causby (1946).

. The 1926 law was repealed in 1958, see the Federal Aviation Act of 1958 sec. 301. f. The 1958 Act provided the FAA complete authority to “co ntrol use of the navigable airspace of the United States,” see Sec.103(b)(1) {emphasis added}

g. Similarly, the current statutes provide that: “The United States Government has exclusive sovereignty of airspace of the United States” 49 USC § 40103(A)(1) {emph asis}. h. The adjective “ above the United States” used in 1929, was replaced with “ of the United States”; the former being a relative location, the later being possessory. The assertion the Untied States “possess” the airspace was also removed in the 1958 Act 38
i. This change in statutory language is not, and cannot be presumed to be, meaningless. j. The Change in assertion from possessing all the airspace to controlling flight within the public easement at higher altitudes comports with the Supreme court rulings which recognizes landowners retain possessory interests in use of the Private Zone. 39
k. Therefore, airspace of the United States, no longer includes, nor can be presumed to include, all the airspace above the United States without transfer of the po ssessory interest, and just compensation as required under the U.S. Constitution, article V th

. l. Section 101 (24) of 1958 Act defines navigable airspace as: “airspace above the minimum altitudes of flight prescribed by regulations issued under this act, and shall include airspace needed to insure safety in take

- off and landing of aircraft." Section 101 (24) of 1958 72 Stat. 739. Currently, 49 USC § 1301 (24).

decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States. H.R.Rep. No. 572, 69th cong., Ist S ess. 9

- 10 (1926).”

36 Under the 1926 Act, “as used in this Act, the term ‘air commerce’ means transportation in whole or in part by aircraft of persons or property for hire, navigation of aircraft in furtherance of a business, or navigation of aircraft from one place to another for operation in the conduct of a business. Pub. L. No. 69

- 254, § 1, 44 Stat. at 568, codified at 49 U.S.C. § 171 (1940). In the Act of 1938 sec,1(3) defines “Air commerce” means interstate, overseas, or foreign air commerce or the t ransportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air comm erce. Which remains current today. 49 USC§ 40102.a.3

37 Section 6(a) of the Air Commerce Act of 1926, Pub. L. No. 69

- 254, 44 Stat. 568, 572, as amended by the Civil Aeronautics Act of 1938, Pub. L. No. 75

- 706, 52 Stat. 973, codified at 49 USC § 176 (a) (1940)

38 Compare 52 Stat. 1028 from 1926 and the current 49 USC § 40103(A)(1). The 1926 Act “declared to possess

... the air space above the United States", while the current statute shows restraint: “The United States Government has exclusive sovereignt y of airspace of the United States” 49 USC § 4 0103(A)(1). The declaration to ‘ possess ’ was removed, and the adjective above was replaced with of , the former being directional, the later possessive

39 United States v. Causby 328 U.S. 256, 266 (1946) (holding that low altitude flight a “direct invasion of respondents domain”),pg. 12 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

, 2 0 1 6 D O T R e f #160728

- 000030 M i k e Bamford m. The type of “

flight prescribed by regulations issued under this Act ”in 1958, did not refer
to fl ight by drones in 2016 hovering inches above a backyard lawn or garden . See Griggs v. Allegheny County, 369 US 84,88

- 89 (1962).

n. Through multiple Supreme Court rulings navigable airspace and the scope of the public easement was fixed at an altitude of a bove 500ft, below which the courts held public access constitutes an invasion of existing property rights. see Griggs v Allegheny 369 US 84 note#1; more detail Aaron v. United States , 311 F.2d 798, 801 Ct. Cl. (1963); Brown v United States 3 F.3d 1100 Ct C l. (1996). .

o. The Government’s 1926 ubiquitous assertion to “possess” and of “complete and exclusive” control of all airspace above the U.S. ha s been held unconstitutional, while also holding the congressional declared public right of transit above 500ft valid. 40

p. The Rules completely disregard these limitations to the scope of the public easement and reasserts a claim against property title for flight by drones down to ground level. An assertion previously overturned by the courts as an invasion of exist ing property rights.
30. The public easement

- established by Congress for promoting air commerce using the
technologies available in 1926 and under the authority of the Commerce Clause

- does not,
and cannot be presumed to have, extended to include public use of the Private Zone by

drones in 2016. see Preseasult v United States

. 41 (the terms of an easement remains fixed
based upon the context and purpose of the originally conveyed easement.)

A : Illegally expansion of the location of the public easement down to ground level.

31. The Courts have already held that the navigable airspace 42

- in which the public has a right
of transit

- doe s not include the zone immediately above private lands. The court has held
flight through the lower altitudes to be an invasion of the property i nterests secured by

title. see Argent v. U

nited S tates 124 F.3rd 1277 (1997) sec. III

- A , citing many others.

32. The 500ft altitude

- below which public access constitutes an invasion of property

- has
been memorialized by the US Supreme Court. see Gr iggs v Allegheny 369 US 84 note#1;

more detail Aaron v. United States , 311 F.2d 798, 801 Ct. Cl. (1963).

33. The location of this pu blic easement was fixed by the Courts and C ongress. The servitude
cannot be lowered to ground level without taking property r ights away from landowner s ’

, specifically the ir right to exclude

. 34. Lowering the location of the public easement from 500ft down to ground level alters the

terms and context of the current public easement and is in excess of statutory limitations.

40 See Causby v United States. Finding unconstitutional the Servitude when applied to the airspace between 84 and 300’ above the earth surface.

41 Preseault v. United States 100 F.3d 1525 ,1542 (1996) "The extent of an easement created by a conveyance is fixed by the conveyance." 5 Restatement of Property § 482 (American Law Institute 1944)

42 49 U.S. Code § 40103.a.2, and navigable airspace means airspace above the minimum altitudes of fli ght prescribed by regulations 49 U.S. Code § 40103.a (32).pg. 13 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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35. The Agencies have failed to consider the impact to existing property interests, nor
considered a more reasonable alternative of setting a minimum altitude for drones.

B: Authority U nder th e Commerce Clause does not Include a Public Right to Access.

36. While Agencies authority may include regulating commercial aircraft at lower altitudes
under the authority of the Commerce Clause, “it does not follow that the [lower altitudes]
are also subject to a public right of access.” Kaiser Aetna v. Uni ted States , 444 US

164,173

- 4 (1979).

37. The Agencies acted in excess of statutory authority and discretion by pr esuming the public

easement expand s with the scope of their regulatory authority, and with disregard to
property interests vested with title a nd r ecognized by the court (see section I above )

C: An Easement for Air Commerce , Does NOT Extend to use by Drones.

38. The stated purpose of the 1926/1938/1958 Aviation Acts was to regulate air commerce.
“Air commerce” means interstate, overseas, or foreign air co mmerce or the transportation
of mail by aircraft or any operation or navigation of aircraft within the limits of any civil
airway or any operation or navigation of aircraft which directly affects, or which may
endanger safety in, interstate, overseas, or f oreign air commerce.” 49 USC§ 40102.a.3

39. Therefore, the purpose of the easement

- w hich is based on Acts reg ulating air commerce

under the Commerce C lause

- is limited in scope to an easement needed for safety or
regulating interstate commerce . i.e. moving goods and people by plane.

40. An easement established under the commerce clause for the purpose of regulating air
commerce by plane

- flying a few times a day at high altitudes

- does not, and cannot be
presumed to, extend to drones hovering a few inches above the ground whenever a drone
operator choses to fly the aircraft. see Preseault v. US , 100 F. 3d 1525,1542

- 1543 (1996)

“It is one th ing to have occasional [commerc ial transport] crossing one's land. Noisy though they may be, they are limi ted in location, in number, and in frequency of occurrence. [it is another], when used for public recreational purposes. ... to allow this change would permit ‘a substantial variance in the mode of or extent of user or enjoyment of the easement so as to thro w a greater bu rden on the servient tenement.”

41. Therefore, an easement established for promoting and regulating air commerce did not
convey a public easement for recreation al drone s , or invasions by paparazzi and voyeurs.

42. Expansion of the easement to now aut horize use by drones through the Private Zone
cannot be presumed , or decreed so, through Agency rulemaking

.pg. 14 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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D: Improvements in Aircraft Technology Does Not Expand the Scope of an Easement:

43. Advancements in the capability of flying technologies does not, and cannot be interpreted

t o, expand the scope of a n easement burdening private title. Improved capabilities of

aircraft do not preempt the right to exclude others from the lower a ltitudes by a land owner.

44. The US Supreme Court has held that modern craft with greater capabilities do not expand
the navigable servitude. The contours of the navigable servitude must be based on the
technology available at the time the servitude was established

. see Montana LLP v

Montana 132 US 1215, 1233

- 4 supra (2012).

45. The Cour t of Claims has held that technological advancement that caused louder and more
frequent flights through the navigable airspace above 500ft, expands the context of the
public easement and entitles landowners to just compensation for the interference

. 43

46. These rulings acknowledge the context of the easement remains fixed based upon the t ype

of crafts for which the e asement was established (planes), and does not include use by
future aircrafts, like drones, hovering a low altitudes using remote control technologies.

47. Similarly, improved technologies which advance the possible uses of an existing patent,
would still infringe on the existing property rights of the original patent. 35 USC§ 271

48. Therefore, it was an abuse of Agencies’ discretion to presume the public easement
expands with t he capabilities of aircrafts

, and with disregard for vested property interests.

49. Property title is not pre

- burdened by a presumptive right

- of

- way waiting to be exploited
by enhanced technologies . The Grant under which property title was transferred from the

U nited States to individuals should not be presumed to h ave be e n so precarious a contract

. E: Implying a Right o f Way by Presumption Against a V ested Property Right is Illegal.

50. The Rules presume landowners have no interest in the space immediately adj acent t o their
property. The implication is that title includes only an interest in the surface, 44 which has

no vertical dimension. Under this assertion

, weed s would intrude in to the space under the

FAA’s domain , not the landowner s. T his assertio n is inc ongruent with the law

. 51. The Courts have repeatedly r ejected the assertion that property rights and vested title stops

at the surface or does not include the adjacent airspace above the land. see Portsmouth

Harbor

, Causby and Griggs section I above

.

43 Argent v. United States , 124 F.3d at 1285 @1287; see also Branning v US , 228 Ct. Cl. at 259, 654 F.2d at 100

44 Surface “the exterior or upper boundary of an object” “a two

- dimensional locus of p oints (as the boundary of a three

- dimensional region). Merriam Webster online. see plane https://en.wikipedia.org/wiki/Plane_(geometry)pg. 15 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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52. Domain over use of the Private Zone vests with a deede d p roperty title, which was sold b y the US Government by contract. Retracting a property interest retroa ctively based on

some rules

- making gimmick has been rejected by the Court 45

. F : The Discretion to Establish a Minimum Safe Altitude for Aircraft Does Not Expand the Scope of t he Public Easement , nor alt er what is N avigable for Title Purposes

.
53. The Agency has bootstrapped multiple and seemingly innocuous change s in nomenclature
through th e rulemaking process to reassert

- by presumption

- an easement to occ upy t he

Private Z one . A claim which the courts ha d previously rejected

. 54. Courts have rejected agency and legislative attempts to redefin e navigability in order to
retroactively limit the scope of rights which had v ested with t itle transfer

. 46

55. A servitude against title cannot be expanded by the Agencies to suddenly include all
airspace down to ground level by altering the definition of navigable. 45

56. It is an abuse of Agency discretion and in excess of statutory limitations to alter the scope

of the easement which burdens private title without providing due process for land owners. Agency Actions at I ssue:

a. In 2012, Congress Ordered the FAA to “redesign” the airspace 47 . The Act provided no expansion of authority for the Agencies to acquire prop erty, or to acquire property interests in airspace below the altitude of 500feet. b. In 2012, the Agency stratified the national airspace into various categories for various purposes adding a new lower tier of airspace extending down to ground level; this bas ed upon a “minimum safe altitude” for flight by new technologies. See Minimum safe altitudes 14 CFR § 91.119

c. The Agencie s relabeled all altitudes as being in the National Airspace System , (NAS),

over which it asserts absolute control to regulate use. (F.R. 2012) d. Through rulemaking the Agencies had shuffled the nomenclature and removed the delineation between the navigable airspace through which the public has a right of transit and the Private Zone in which a landowner has domain to preven t interference

.

45 Brandt v. US, 134 S. Ct. 1257,1267 (2014) (Holding Congress retroactive attempt to reserve a rights of way to the U nited States and create a property interest is not valid. Recognizing the need for certainty and predictability where property titles are concerned.”)

46 see PPl Montana v. Montana, 132 S. Ct. 1215,1235 (2012) citing Brewer

- Elliott v. United States, 260 US 77,88 supra (1922) (“It is not for [ the government], to adopt a retroactive rule for determining navigability which would destroy a title already accrued under federal law and grant

, or would enlarge what actually passed ... [this] under the constitutio nal rule of equality

. "

47 PL 112

- 95 Feb 2012, SEC. 218. AIRSPACE REDESIGN see 49 USC 40101pg. 16 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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57. The Court recognizes that the authority to set minimum safe altitudes for flight does not

preempt existing property rights and permit public use without compensation. 48 Similarly
the Court questions public use and issues of privacy flying in the zone below 400ft. 49

58. For each reason listed above modification of the easement burdening property title without
due consideration for the rights of the title holder, and without the due process owed them

under Federal and State laws does not comport wi th applicable laws as is required.



### III: Failed to Meet Their Obligation to Consider If the Rules Effect a Taking:

59. Allowing drones through the Private Zone “eviscerates the owner's right to exclude others
from entering and using [their] property

— perhaps t he most fundamental of all property

interests.” 50

60. It is a violation of the US Constitution for the Agencies, or even Congress, to preempt
property law without providing due process, and where necessary, just compensation 51

. 61. The US Supreme court recognizes that the imposition of the navigational servitude over private lands effects a property taking by authorizing a physical invasion of private

property. Kaiser Aetna v. United States 44 US 164,179

- 180 (1979). ("[E]ven if the
Government physically invades o nly an easement in property”).

62. A title holder’s right to exclude has been up held against interference by inanimate
objects ; 52 easements use d intermittently by the pubic; 53 the expansion of an easement

48 Branning v. U.S., 228 Ct. Cl. 240, 253

- 56, 654 F.2d 88, 97

- 98 (1981), 228 Ct. Cl. at 262, 654 F.2d at 101

- 102 (reprinting trial judge’s report as modified (citing Aaron v. U.S., 160 Ct. Cl. 295, 301, 311 F.2d 784, 801 (1963))

49 Florida v Riley 488,US 445,453

- 4, 465

- 468 (1998)

50 Lingle v. Chevron, 544 U.S. 528, 539 S.Ct (2005). Citing Dolan v. City of Tigard, 512 U. S. 374, 384 (1994); Nollan v. California Coastal Co mm'n, 483 U. S. 825, 831

- 832 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982); Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979). When a regulation goes too far a taking has occurred. Penn Coal v.Mahon 260 US 393 (1922)

51 Preseault v. ICC, 494 US 1,23 (1990) ("If Congress can `pre

- empt' state property la w in the manner advocated by [the Agency] , then the Taking Clause has lost all vitality. [A] sovereign, `by ipse dixit, may not transform private property into public prop e rty without compensation. [] This is the very kind of thing that the Taking Clause of the Fifth Amendment

was meant to prevent' ")

52 Loretto v. Teleprompter 458 U.S. 419,433 Supra (1982)

53 Id, see also Nollan v. California Coastal Comm'n , 483 U.S. 825,832 (1987) (a "permanent physical occupation" of the property "has occurred . . . where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.") also Dolan v. City of Tigard, 512 U. S. 374, 384 (1994);pg. 17 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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beyond i ts’ original purpose or context; 54 and flying inva sion s at altitude s between 400

and 500 feet 55

. . 63. Case law 56

- and changes to the Agencies own statutory provision s

- confirm that property

interests associated with US Land Grants extends upwards to 500ft above ground level.

And , that Congress limited any acquisition authority of the FAA to the airspace required

for take

- off and landings surrounding airports. 49 U.S. Code § 40110 57

. 64. E arlier cases recognized lower altitude airspace as being part of a landowners’ domain
( Causby 19 4 6 ; Grigg 19 62 )

. Then

, the cou rt applied t ort laws to provide justice for the
loss in property values due to in terference by flights at altitude s between 80 and 300 feet

. 65. More recent “takings” cases that involve flight through the Private Zone in rural areas

confirms the need to also compensate for “land used as a recreational retreat and valued for
its seclusion and quietude”, and for the value of ‘ po t ential future u ses ’ in which an easement
for flight may interfere. s ee Brown v United States 3 F.3d 1100 Ct Claims (1996).

66. Even more r ec ent Supreme Court decision recognize the distin c tion between a regulation

which limits a landowner ’s use by regulation, from a regulation that authorizes physical

occupancy . see Lingle v.Chevron 544 U.S. 528, 527

- 539 Supra (2005) a “ physical

invasion, h owever minimal the economic cost it entails, eviscerates the owner's right to
exclude others from entering and using her property

— perhaps the most fundamental of all
property interests” 58 see Dolan v Tigard 512 US 374, 394 (1994) (The landowners “right

t o exclude would not be regulated, it would be eviscerated”). see Preseault v. US , 100 3d

1 525,1549, (1996) 59

54 Preseault v. United States 100 F.3d 1525,1542 (1996) "The extent of an easement created by a conveyance is fixed by the conveyance." 5 Restatement of Property § 482 (American Law Institute 1944)

55 Aaron v. United States, 311 F.2d 798, 802 Ct. Claims. (1963) compensating for an avigational easement over property “at altitudes of 400 feet and above.”

56 See Lacey v. United States , 219 Ct. Cl. 551, 554, 595 F.2d 614, 616 (1979) (applying 500

- foot rule)); see, e.g., Persyn v. United States, 34 Fed. Cl. 187, 195 (1995)

57 The 1958 Act 303 “Within the limits of available appropriations made by congress therefor [aquire] interests in airspace imm ediately adjacent thereto and needed in connection [with navigation facitlities (airports).” ...

58 Citing Loretto v. Teleprompter 458 U.S. 419,433 Supra (1982), also [the Court has invariably found a taking anytime a claimant raised a constitutional challeng e to a permanent physical occupation. at 427. See also Pumpelly v. Green Bay Co.,80 U.S. 166 (1872)].

59 “This issue of title and ownership expectations must be distinguished from the question that arises when the Government restrains an owner's use of pro perty, ...Placing restraints on an owner's use of her property invokes the regulatory takings issue, rather than the question of the Government's physical occupation of private property, and both factually and legally raises significantly different issues. ..The Government's attempt to read ... regulatory takings law into the analysis of a physical occupation case would undermine, if not eviscerate, long

- recognized understandings regarding protection of property rights; it is rejected categorically” Preseault v. US, 100 3d 1525,1549,en blance(1996)pg. 18 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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67. Because t he Rules allow drones to fly at altitude s near ground

- level, the Rules authorize

the physical o ccupation of property within the domain of the landowner. See Nollan v

Coastal Comm'n , 483 U.S. 82 5 ,831 (1987) (holding a public easement to be a taking

, and

not a “mere restriction on use” due to regulations. ) See also Dolan v Tigard 512 US 374,
401 (1994) 60

68. These more recent judicial ruling recog nize the inadequacy of partial compen sation when
a public easement has procured a fundamental property right from the title holder

. The
Court now recognizes when a regulation provides for the physical occupation of property
(like the zone immediately adja cent to the surface), the regulation has already ‘taken’ title
by adverse possession 61

. The Rule does not simply “ reduce ” an owner’s enjoyment or use of their property, it eviscerates their right to exclude

, by granting a right

- of

- way to drones.

Therefore , erecting a fence or birdhouse, hitting a base ball

, farming corn , or even planting

trees woul d obstruct the Rules

- created public easement through the Private Zone . The

created easement eviscerates all future productive use and private enjoyment of proper ty.

69. The Rules nullif

y a US contract ; invalidating property rights backed by U.S. grants from

an altitude of 500ft down to the earth’s surface . This contract nullification was illegally
disregarded by the Agencies , and replaced with a presumptive asser tion of a public right to
travel by drone through the Private Zone. The Rules illegally delay any consideration of
preemptive rights to future judicial reviews on a “case by case basis”. see Rules @ 42119

. This , while the law only provides a six

- year window for effected owners to seek
compensation

. 62 The R ules circumvent the statut ory provisions protecting citizens’ rights
of due process with in the admi nistrative process through mandated analysis . T hen
egregiously slough

- off onto the judiciary and each landowner the role of sorting out
preemptive rights for each and every property owner in America.

70. NEPA procedures 63 and Executive Order 12630, mandates Agencies analyze the potential

affects of their actions

- specifically if it may cause a property taking

- before making any

u ninformed decision or creating new Rules which may interfere with property interests.

60 “limitation of the right to exclude others undoubtedly constitutes a significant infringement upon property ownership” citing Kaiser Aetna v. United States, 444 U. S. 164, 179

- 180 (1979)

61 Loretto v Telepromter , 45 8 U.S. 419, 434

- 435 (1982).

62 See 28 U.S.C. § 2501; see also John R. Sand & Gravel Co., 552 U.S. at 134

- 35 (noting the “absolute nature” of the “jurisdictional” limitations statute applicable to the court).

63 the National Environmental Policy Act (NEPA) (3 6 CFR§§ 220.1

- 220.7) , see 42 U.S.C. § 4332(2)(C). Department of Transportation v. Public Citizen , 541 US 752 ,757 supra ( 2004 )pg. 19 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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The Agencies have failed to conduct this required anal ysis which starts by defining the
scope of the property, or interest in property

, to which the Rule s may interfere

. 71. The Agency cannot claim ignorance to this likely infringement on property rights, or
violations of these statutory provisions designed to protect due process for landowners and

taxpaye rs. These issues were raised during the administrative scoping process in 2015

, and have been adjudicated by the courts . The effects on property interests were easily

foreseeable, raised in 2015

, and highlighted in the Rules

, but never assessed or considered

before publishing the Rules. This is a procedural violation which violates due process.

72. The A gencies ’ Rule s ignore case law, and their obl igation to ana lyze the financial burden

on taxpayers before promulgating any new rule. See E x e c

. O r d er

. 12630 64

. 73. The Agencies expansion of their acquisition authority does n ot comport with the statutory
limitations place on the Agency under the 1958 Act

. Sec. 303 and 307 (b ) of the Act l imits
authority based on available funding

, and only for acquiring an easement through airspace

needed for take

- off and landing planes near a irports. Property a cquisition for allowing

drones to travel near ground level is neither authorized , nor funded

, by Congress

. 74. Therefore, Agencies ’ act ions are in excess of their statutory authority and limitations

. A llowing use of private property witho ut being authorized, or funded

, to acquire the

necessary property interest violates the US Constitution Article V

. 75. Because Congress did not grant the Agencies the authority or fund s, to acquire the Private

Zone , the Rules are in excess of statutory autho rity and constitutional limitations . The

Rule should be withdrawn and modified, or they must be set aside. 5 USC 706.



### IV: The Rules Result in a Procedural Due Process Violation :

76. "No person shall be deprived of life, liberty or property without the due pr ocess of law." 65

To insure that a person will not be deprived of property or liberty without due process,
numerous Federal Acts incorporate restrictions to, and obligations on, Federal Agencies
that preserve property

, and those liberties associated with pr operty rights 66

.

64 Executive Order 12630, 1988. see “GAO

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- 1015 Regulatory Takings” for description and obligation failures.

65 US Constitut ion 5 th, {emphasis added} see United States v. Good, 510 US 43,49 S.Ct (1993) (“ The Due Process Clause of the Fifth Amendment guarantees that ‘[n]o person shall ... be deprived of life, liberty, or property, without due process of law.’ Our precedents esta blish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property”. citing many others.)

66 “Individual freedom finds tangible expression in property rights.” United States v. Good, 510 US 43,61, supra (1993). Property rights serve a constitutional purpose by securing individual liberty. [see e.g, J.W. Ely, Thepg. 20 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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77. Statutes mandate that notice include sufficient clarity to define the Action being
proposed, 67 which preserve s the affected party the right to object at a meaningful time.
Statutes then mandate a transparent assessment and thorough analys is of the potential
consequences (direct, indirect and cumulative) be published for public review before
promulgating any proposed action 68

. 78. Because judicial review of a Federal Actions is limited to a review of the administrative

record, 69 these required analyses must be exhaustive in order to preserve due process 70

. Because ill

- informed Federal Actions had resulted in property “takings”, additional
analysis related to potential interference with property interests are now compulsory. 71

Finally, due proce ss is preserved by placing the Agency with the burden of proof that their
asserted jurisdiction and findings are valid. 72

79. As echoed by the supreme Court authorized physical occupation eviscerates a fundamental
element of the property right 73

80. Agencies’ Rul es have circumvented and misrepresented these statutory schemes designed

to preserve due process rights, property title, and existing property rights. The Agency has
presumed discretion and authority based on the presence of “air” and new technologies.

T h is, in lieu of property owners ’ r ight s to ex clusive use and enjoyment of their Private

Zone

, which the Court recognizes inc l ude s the adjacent space below 500ft

. 81. Landowners , and individuals with property interests

, have been adversely affected by the

abse nce of analysis and assessment protected within the meaning of th es e statutory
provisions . We are entitled to judicial review under the APA 74

.

Guardian of Every Other Right: A Constitutional History of Property Rights (NY, Oxford Press, 1992); F. McDonald, Novous Ord o Seclorum: The Intellectual Origins of the Constitution (Lawrence, Unv. Kansas 1985)]

67 An agency must “State what the Decision was” 40 CFR§1505.2(a)

. see Mullane v. Central Hanover,339 U.S. 306, 314 supra (1950) (to preserve due process notice must “convey the required information”) see US v. Jenks, 22 F. 3d 1513,1520 10th (1994) (a court must first know what the decision means before it can assess if it is right or wrong.)

68 National Environmental P olicy Act (NEPA) (36 CFR§§ 220.1

- 220.7).)

69 “ The court must limit its review of an agency's action to the facts contained in the administrative record.” Whitewater v. Tidwell, 959 F. Supp. 2d 839,849 SC (2013)

70 The Agencies must take a “Hard Look” at the consequences of their actions. See Nat’l Audubon v. Dept of Navy

, 422 F.3d at 185; Strycker’s BayNeighborhood Council, Inc. v. Karlen , 444 U.S. 223, 227

– 28 (1980)

71 EO 12630, 1988. see “ GAO

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- 1015 Regulatory Takings ” for description and USFS failu re to meet the obligation.

72 5 USC 556

. the Agency being the proponent of the Actions

73 Lingle v.Chevron 544 U.S. 528, 527

- 539 Supra (2005) “A permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner's right to exclu de others from entering and using her property

— perhaps the most fundamental of all property interests”. also Loretto v. Teleprompter 458 U.S. 419,433 Supra (1982)

74 5 USC 702pg. 21 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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82. The Rules were promulgated by failing to meet three obligations which preserve the due
process rights of property owners and those holding an interest in property . The three
obligations not meet are : i) a taking analysis, ii) Congressional compliance, and iii) NEPA.
i) E xecutive Order 12630 Requires a Taking Analysis Be Conducted

83. The Rules seek to alter the CFRs without having conducted the necessary taking analysis as required by Executive Order 12630.

84. Because the Rules authorize the physical occupation of the Private Zone, and becaus e the

Court and statutes recognizes this t o be a taking , the Rules do effect a property taki ng.
85. Section II of Executive Order 12630 states: "Policies that have takings implications refers to Federal [actions], proposed Federal regulations, or other Federal policy statements that, if implemented or enacted, could effect a taking of property.”{ emphasis added}

86. The requirement to conduct the taking analysis before publishing the Rules prevents regulations from inadvertently taking property interests

, which could be costly to

taxpayers or which would d eny due process rights owed to property owners

. 87. Circumventing this requir ement not only denies the due proces s rights owed landowner to object to these Rules at a meaningful time, it also c ircumvents the obligation to taxpayers who may be unaware of the cost of allowing drones operators to fly wherever they wish.

ii) Drone Rules must be Consistent with the Constitution and Applicable Laws.

88. The ‘‘Federal Aviation Administration Reauthorization Act of 2016’’ requires the Agencies “ensur[e] that unmanned aircraft system activities are performed in a manner consistent with the Constitution and applicable laws ” sec 2128 8,(B).

89. The Rules fail to even define the contours of Constitutional preemptive laws or the scope of property rights protected by law, which may be effected by the Rules.

90. The Rules fail to fulfil this basic statutory requirement associated with the unmanned aircraft system, before publishing Rules for unmanned aircrafts , or d rones.
91. The Rules openly circumvent consideration of any rights or laws which the Rules may violate and delay consideration of these laws on a future “case by case basis”. s ee Rules @

42119

. The Rules circumvent the statutory provisions protecting citizens’ rights of due process within the adminis trative process by failing to conduct a mandated analysis of applicable law and Constitutional rights before publishing the R ul es for D rones.

iii) The Rules Fail to Meet Obligations Under NEPA

92. The National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321

- 4370h, “requires federal agencies to follow certain procedures before undertaking projects that will affectpg. 22 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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the [human] environment.” Se e Hughes River Watershed Conservancy v. Glickman, 81
F.3d 437, 443 (4th Cir. 1996). NEPA is designed to among other things “stimulate the health and welfare of man.” 42 U.S.C. § 4321.

93. Whenever a rule may have cumulative effects on the human or economic environment a complete Environmental Assessment must be conducted. see 42 U.S.C. § 4332(2)(C). The agency has failed to fulfill their NEPA obligation by failing to conduct the necessary

assessments which prevent s uninformed Decisions and therefore an arbi trary and capricious Rule.

94. The Agencies believe the Rules are “categorically excluded from preparation of an environmental assessment or environmental impact statement ” which is only possible if

the federal action does not , "individually or cumulatively h ave a significant effect on the human environment” ( 40 CFR 1508.4 )

95. It is hard to imagine how a Rule which authorizes drones to fly through a zone h eld in

the private domain could not effect the “ human environment ” of the landowner

. The evidence in front of the Agenci es show that drones do impact the human environment.

96. The Rules cite to a court case where a drone operator was reckless in the operation of his drone by harassing pede strians and flying through tunnels with moving vehicles. See

Rules footnote 71 75 There the FAA argued that t his reckless drone flight had a significant impact on safety and the human environment . The se fact s warrant a full NEPA analysis

and an Environmental Impact Statement (EIS)

, not a categorical exclusion circumventing a NEPA analysis

. 97. NEPA also requires an array of reasonable Alternatives and a comparative analysis among the alternatives. The Rules provide no alternative which requires landowner approval before flying through the Pr ivate Zone, or a policy which requires drones to fly at higher altitudes with out turning private property into a thoroughfare for drones.

98. The failure to have ever considered a more reasonable alternative that would not interfere

with a landowner’s produc tive use of their property or which commits the resource to use by drones circumvents the protections envisioned by the NEPA. 42 USC § 4332(2)(C) iv, v.

99. Circumventing the Executive Order, NEPA and statutory provisions that preserve the

con stitutional righ ts protecting property and libert y constitutes not only a f ailure of the

agency to act . (5 USC 706), it also amounts to a due process violation.

75 See Rules Note71. (“

Administrator v. Pirker , at 4

- 5, 8

- 12. A copy of the Pirk er decision can be found at: http://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5730.pdf.)pg. 23 o f 2 3 Petiti on to W ithdraw the final Rules for Dr o n e s , J u l y 2 8

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V: Conclusion and Request :

We do not question the Rule s authoriz ation for drones to fly through the navigable
airspace above 500ft in which a public easement exists , or above fede ral lands, or even above

pu blic lands through which a Federal agency would have authority under the P roperty C lause.
We do not question the Agencies authority to regulate commerce , or protect the safety of citizens
by prevent ing drones from reck less flying near others or othe rs ’ property, or even prevent ing

interference with constitu tionally protected proper ty intere sts or privacy. However, the Rule s

authorize and allow drones to fly a t low

- altitude through the Private Zone

, which is by law part

of the landowner ’ s domain. There fore, t h e Rules are not in accordance with applicable laws

. The Rule s are publi shed without the necessar y assessments and analysis and therefore are procedural ly deficient ; this failure to act results in a pr ocedural due process violation.

As allowed under 5 USC § 557, w e ask the Agency to r epeal o r w ithdraw the Rules ; or , to Stay impleme ntation of the pending Rules with respect to allowing drones to fly above non

federal land, unless approved by the landowner

. Full i mplementation should be delayed until the
appropriate analyses are conducted and due consideration is given to the effects on the

landow ners use and enjoyment of their property. We al s o request the FAA stop waiving and
exempting drone operators from use over non

- public lands below 500 ft, and make as a condition
of existing certifications and future waivers that landowner permission must b e obtained before

f lying over private property below 500feet.

Thank you for review and consideration of these o bjections to the Rules for the June 28,

2016 Operation o

f Small Unmanned Aircraft Systems.
Sincerely, 

# Michael Ba mford

Michael Bamford Georgia 828

- 226

- 0381 mbamford123@comcast.net