pg. 1 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

 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). 

through the Federal Aviation Administration (FAA) (the “Agencies”), have imperiled our 

property rights, and infringed upon landowners’ liberty interests. New Regulations allow use

and occupancy of an area vested with existing property title; this, without adhering 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-42064-422141. 

(herein the “Rules”). The Rules are not in accordance with the applicable law and fail to 

comply with court rulings in which the Agencies and the United States are named parties. 

By ignoring existing property boundaries and court-affirmed property rights, the Rules rely

upon an 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 circumvent obligations 

preserving due process rights by allowing public use through private property. These Rules

violate constitutionally protected rights, are in excess of statutory authority, are unwarranted 

by the facts, and ignore substantial evidence in the record. Further, the 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 cannot be presumed to have, authorize public use of property held 

in the private domain without funding for just compensation, nor 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 public easement to include use of private property by 

drones, nor to condemn property for use by drones. Rather, Congress limited the Agencies 

authority by mandating that the Unmanned Aircraft System 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 Aviation Administration 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 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

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

written and/or Stay execution of these new Rules, until the deficiencies are corrected. 

Alternatively, we ask the Agency to explicitly exempt from the Rules allowing, or 

authorizing, flights through the low-altitude space (below 400 feet) above non-federal lands 

without landowner expressed permission. And, we request the Agency stop permitting, 

certifying, issuing waivers, and exempting from FAA regulations drones, or UAS operators,

from flight through non-federal airspace; and to make as a condition of all existing and future

certifications, waivers, and permits that landowner permission must be obtained before flying 

over private property below the altitude of 400 feet. 

My family own property in Georgia and North Carolina and we have experienced 

interference of our rights by drones. We had previously filed comments with the FAA during 

the scoping period and requested drones not be allowed to occupy space which is considered 

within the domain of landowners, specifically the zone below the Navigable Airspace and 

above lands held by a valid deed. The 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 consider effects on property interests as required by law. The result is the Rules which are 

in violation of 5 USC 706 and therefore must be set aside. For these reasons, we ask the 

Agencies Withdraw, 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 Bamford

Michael Bamford 

828-226-0381

mbamford123@comcast.net 
pg. 3 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

I: The Space Near Ground Level Vests with Title in the Lands

1. The Agencies have presumed domain by authorizing public use through property which 

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 the heavens.3

"Cujus 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 p18.

3. The idea that property ownership and rights “extended to the heavens” worked reasonably 

before gravity was defied at Kittyhawk in 1903. 

4. Even after flight became reality, the US Supreme Court recognized that an uninvited 

invasion of the lower-altitudes space is a property rights violation. See Portsmouth 

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

land institutes an implied servitude over property), also United States v. Causby 328 U.S. 

256, 266 (1946) (holding that low altitude flight is a “direct invasion of respondents

domain”), also see Griggs 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 between unencumbered title in lower-altitudes, 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 altitude of five-hundred feet (500ft). see Aaron v. United States, 311 

F.2d 798, 801 (Ct. Claims. 1963)4. Also Branning v. United States, 654 F.2d 88, 97-98 Ct 

Cl(1981). Argent v. U.S. 124 F.3rd 1277 (1997) sec. III-A

6. The Avigational Servitude does not extend down to ground level. 

 

3 28 Am. Jur.2d 618,2 Blackstone Commentaries 18(1836). See also, 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 Aaron v US “It is true that the inconvenience 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 permissible above 500 feet is forbidden below it, unless 

compensation is paid”
pg. 4 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

7. North Carolina State Law5 was 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 Gen Stat § 63-12). Holding that flight 

of airplanes between the altitude of 83 and 300ft invades the landowners’ domain. id

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

airspace 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 altitudes accrue with deeded title in land. Therefore, 

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

vested with landowner title6. (herein the “Private Zone” or “Private Airspace”). 

10. The Private Zone does not, and cannot be presumed to, include a public right of transit.

7

11. 49 U.S. Code § 401108provides for the FAA to acquire or dispose of property, “including 

airspace”, when necessary for overflights near airports. This statutory provision would be 

unnecessary 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 

domain over the airspace at altitudes below 500ft). 

12. The FAA provides a Suggested Template for Avigation Easements9to be used when 

compensating landowners for having taken airspace for overhead flights. The template 

requires property owners to sign over future building rights in their property, and waives 

 

5 "we are mindful of the basic axiom that `[p]roperty interests . . . 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 Doctrine 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 free 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 interests.”

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.pdf
pg. 5 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

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 laws which recognize a landowner’s right to the Private Zone, these

new Rules 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 ignore the Congressionally imposed restraint that require the Agencies 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 excluding a material fact from their 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. The Agencies could not have met its’ obligation by never 

assessing the inconsistency between these Rules and applicable laws and constitutional 

provisions which protect vested property interests. 

15. By not removing the Private Zone from the Rules, the Rules misrepresent existing 

property rights through the Private Zone as being irrelevant to “flying in the airspace 

above a piece of property”. pg.42119. Applicable laws and court ruling have already held 

that aircraft flying below 500 feet interferes with the property interest vested with title.

16. Exclusion of this material fact throughout the Rules 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. see 5 USC 701-706.

17. The Rules include an impermissible presumption which denies the existence of property 

rights, then exercises discretion by allowing drones to fly through the Private Zone.

11

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

landowners for use by drones12; therefore, Rules which allow13 drones through the Private 

 

10 The FAA must ensure that the “unmanned aircraft system activities are performed in a manner consistent with the 

Constitution and applicable laws” Federal Aviation Administration Reauthorization Act of 2016’ sec 2128 8,(B)

11Preseault 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 the 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 claim to allow, certify, exempt from FAA control aircrafts flying through private property. 
pg. 6 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

Zone is in excess of the Agencies’ statutory limitations, which requires just compensation

when allowing the physical occupation of the Private Zone.

19. These 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 Rule allows, permits and certifies the use of unmanned aircraft within the “line of 

sight”. Prohibiting drone flight beyond the line of sight would appear rationale for 

safety reasons. 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.The Agencies have abused their discretion by substituting the landowners wellrecognized right to exclude, with some presumed jurisdiction to authorize use of nonfederal property based on technological advancements of aircrafts. 

c.The Rules make it illegal to fly a drone within 500 feet of a structures. Therefore, a 

property owner, or municipality, would be in violation of Federal law by using a drone 

to wash a 4

th floor window, or using a drone to paint their eaves. 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 be waived or exempted for drone operators without landowner permission.

d.The Rules waive regulations for creepy voyeurs hovering 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 preemptive property rights, and not just rights to privacy suggests that 

permission from the landowner -not capability of a drones- set limits on where drones 

fly.14 A Rule provisioned upon property rights was never considered, even though this 

reasonable alternative was proposed during public scoping.

e.The Rules treat the rights of property owners who have built structures dissimilar from 

property owners who have not. Under the Rules, drone invasions are prohibited near 

existing “structures”, while drones are allowed to invade less developed lands.15 

Landowners who farm, or view wildlife, or prefer structure-free meadow are deprived 

their right to exclude, because the Rules only consider limits of privacy awarded under 

the IVth Amendment, rather than property 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 property 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 IVth Amendment, 

rather than the right to exclude protected by the common law of trespass and recognized as a liberty interests 

protected under the due process clause of the Vth 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 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

f. The Rules grant rights to drones operators, not granted to other forms of transit which 

use the same space near ground level; including a landowners’ right to enjoy a walk in 

his meadow or bike a path without experiencing disruption by flying drones. 

g.Under the commerce clause, the Agency’s has broad authority over commercial 

navigation17 independent of property ownership, but this authority is not without 

limitations. The US Supreme court has held that this regulatory authority does not 

include allowing 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 above 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 

regulations, flight by drones. Here, Federal authority is limited to regulating interstate 

commerce; it does not include allowing uncompensated public use of private property 

without landowner-approval. The Rules exceed statutory limitations. 

i. Exempting aircrafts from FAA oversight violates the statutory mandate to “restrict or 

prohibit flight” which the FAA cannot “identify, locate and control”. By granting 

waivers, the FAA has failed to take a discrete action to “restrict and prohibit” aircraft

not under their “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 equally 

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 nature 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 to 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 insure 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 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

k.The FAA must collaborate with Federal Land management agencies, and hold a 

transparent public review, before flights are allowed over National Parks;21 this fulfills

the Constitutionally protected rights of due process owed to the Federal landowner and 

US citizens. Private landowners are entitled to this same right to be heard before their 

liberties to enjoy their property, and rights to exclude, are eviscerated by these Rules22. 

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 Constitution (the right to make needful 

rules over property belonging to the U.S.); privately held lands would retain the same 

discretionary right to exclude drones from 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 numerous 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 or land.23

n. Roads are governed by state and Federal laws, the Rules -which allow flying at ground 

level- fail to consider the impacts associated with drones occupying the same space as 

moving vehicles. The FAA is required to prevent interference with motorists. id. 

o.The Rules allows drones over municipal and state-owned parks, playgrounds, wildlife 

areas and recreational areas. Municipal and State agencies would be powerless24 to 

restrict drones, even though they may have the responsibility of managing these areas for 

a conflicting purpose25. The effects from authorizing drones 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 rights. If such broad 

discretion were accepted as true, landowners would be required to obtain an FAA 

permit to build a fence, plant a tree, or build a swing-set before blocking the “airspace” 

through which drones could fly freely under these Rules. Because the Rules allow

drones through the undeveloped Private Zone, the Rules create a prescriptive right, that 

prevents planting new trees, or building new structures, by the vested landowner. 

q.Permitting use through the Private Zone by drones creates an inverse 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”).

2349 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/1103
pg. 9 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

possession and the rules of prescription26, the Rules invalidate all future uses of the land 

which destroys all the investment backed expectations in real property. 

r. The Rules restrict drones use of the navigable airspace above 500ft, through which the 

agency has complete control to move existing air traffic upward. Setting the maximum 

altitude for drone flight artificially at 500ft, makes flying below 500 ft the only option. 

Failing to considered allowing drones to occupy the space between 500 and 700 ft is a 

NEPA failure. The Rules lack a reasonable alternative that would allow drones to fly 

through 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 failed to consider any alternatives that would preserve each landowners 

productive use of their property, or which does not commit private resources for use by 

drones. Without any alternative contrasting the selected Rule, violates NEPA.

28

 

t. The Rules fail to provide protection for property on the ground as required.

29

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

21. With respect to the Private Zone above private lands, the Rules were illegally published

without following necessary procedures, in violation of due process, and are inconsistent 

with applicable laws protecting property rights. The Rules must be set-aside. 7 USC 706

II: Illegally Expands the Burden on Private Title for a Public Easement 

22. The Agencies have abused their discretionary authority by expanding the scope of the 

public easement to now include use by drones through the Private Zone. This, based on a 

misinterpretation of the underlying statutes, and applicable laws regarding easements. 

23. Terms of an easement remain fixed based upon the purpose and context of conveyance.30 

 

26 The FAA have asserted 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 file 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 weightier 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 Property § 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 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

24. Additional encumbrances against existing title or property rights cannot be presumed or 

retroactively declared by an agency seeking to expand jurisdiction or a public right31.

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 unfunded mandate not authorized by Congress.32

26. The terms of the easement cannot be changed in isolation of constitutionally protected due 

process rights protecting property and property rights33 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 common 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 pressure34 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 under the Commerce Clause. 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 owners35. 

 

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

United States, and create a property interest, is not valid. Recognizing 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 change." See Dolan v Tigard (1994) citing Penn. Coal v Mohan 260 

U.S. 393,416 (1922) .

33 “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, The 

Guardian of Every Other Right: A Constitutional History of Property Rights (NY, Oxford 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 American 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 or 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 declaration 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 the 
pg. 11 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

a. In 1926, Congress passed the Air Commerce Act under authority derived from the 

Commerce Clause to regulate air commerce36.. 

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 height” 

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 

space 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 “control 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) {emphasis}. 

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 Act38 

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 possessory 

interest, and just compensation as required under the U.S. Constitution, article Vth.

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 Sess. 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 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 foreign air commerce. 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 sovereignty of airspace of the United States” 49 USC § 40103(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 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

m. The type of “flight prescribed by regulations issued under this Act”in 1958, did not refer 

to flight 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 above 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 Cl. (1996). . 

o. The Government’s 1926 ubiquitous assertion to “possess” and of “complete and 

exclusive” control of all airspace above the U.S. has 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 existing 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 airspace42-in which the public has a right 

of transit- does not include the zone immediately above private lands. The court has held 

flight through the lower altitudes to be an invasion of the property interests secured by 

title. see Argent v. United States 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 Griggs 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 public easement was fixed by the Courts and Congress. The servitude 

cannot be lowered to ground level without taking property rights away from landowners’, 

specifically their 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 flight 

prescribed by regulations 49 U.S. Code § 40103.a (32).
pg. 13 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

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 Under the 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. United States, 444 US 

164,173-4 (1979).

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

easement expands with the scope of their regulatory authority, and with disregard to 

property interests vested with title and recognized 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 commerce 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 foreign air commerce.” 49 USC§ 40102.a.3

39. Therefore, the purpose of the easement- which is based on Acts regulating air commerce 

under the Commerce Clause -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 thing to have occasional [commercial transport] crossing one's land. 

Noisy though they may be, they are limited 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 throw a greater burden 

on the servient tenement.”

41. Therefore, an easement established for promoting and regulating air commerce did not 

convey a public easement for recreational drones, or invasions by paparazzi and voyeurs. 

42. Expansion of the easement to now authorize use by drones through the Private Zone 

cannot be presumed, or decreed so, through Agency rulemaking.
pg. 14 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

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 

to, expand the scope of an easement burdening private title. Improved capabilities of 

aircraft do not preempt the right to exclude others from the lower altitudes by a landowner. 

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 Court 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 type 

of crafts for which the easement 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 the 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 

United States to individuals should not be presumed to have been so precarious a contract. 

E: Implying a Right of Way by Presumption Against a Vested Property Right is Illegal. 

50. The Rules presume landowners have no interest in the space immediately adjacent to their 

property. The implication is that title includes only an interest in the surface,44 which has 

no vertical dimension. Under this assertion, weeds would intrude into the space under the 

FAA’s domain, not the landowners. This assertion is incongruent with the law.

51. The Courts have repeatedly rejected 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 points (as the boundary of a 

three-dimensional region). Merriam Webster online. see plane https://en.wikipedia.org/wiki/Plane_(geometry)
pg. 15 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

52. Domain over use of the Private Zone vests with a deeded property title, which was sold by 

the US Government by contract. Retracting a property interest retroactively based on 

some rules-making gimmick has been rejected by the Court45. 

F: The Discretion to Establish a Minimum Safe Altitude for Aircraft Does Not Expand 

the Scope of the Public Easement, nor alter what is Navigable for Title Purposes. 

53. The Agency has bootstrapped multiple and seemingly innocuous changes in nomenclature 

through the rulemaking process to reassert -by presumption- an easement to occupy the 

Private Zone. A claim which the courts had previously rejected. 

54. Courts have rejected agency and legislative attempts to redefine navigability in order to 

retroactively limit the scope of rights which had vested with title 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 landowners. 

Agency Actions at Issue:

a. In 2012, Congress Ordered the FAA to “redesign” the airspace47. The Act 

provided no expansion of authority for the Agencies to acquire property, 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 based upon a “minimum safe altitude” for flight by new technologies. See 

Minimum safe altitudes 14 CFR § 91.119 

c. The Agencies 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 prevent interference.

 

45 Brandt v. US, 134 S. Ct. 1257,1267 (2014) (Holding Congress retroactive attempt to reserve a rights of way to the 

United 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 

constitutional rule of equality." 

47 PL 112-95 Feb 2012, SEC. 218. AIRSPACE REDESIGN see 49 USC 40101
pg. 16 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

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 with 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 the 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 compensation51. 

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 only an easement in property”).

62. A title holder’s right to exclude has been upheld against interference by inanimate 

objects;

52 easements used 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 Comm'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)

51Preseault v. ICC, 494 US 1,23 (1990) ("If Congress can `pre-empt' state property law 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 property 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 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

beyond its’ original purpose or context;54 and flying invasions at altitudes between 400 

and 500 feet55. . 

63. Case law56-and changes to the Agencies own statutory provisions- 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 § 4011057.

64. Earlier cases recognized lower altitude airspace as being part of a landowners’ domain 

(Causby 1946; Grigg 1962). Then, the court applied tort laws to provide justice for the

loss in property values due to interference by flights at altitudes 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 ‘potential future uses’ in which an easement 

for flight may interfere. see Brown v United States 3 F.3d 1100 Ct Claims (1996). 

66. Even more recent Supreme Court decision recognize the distinction 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, however 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 

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

1525,1549,(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 immediately 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 challenge 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 property, ...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 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

67. Because the Rules allow drones to fly at altitudes near ground-level, the Rules authorize

the physical occupation of property within the domain of the landowner. See Nollan v 

Coastal Comm'n, 483 U.S. 825,831 (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 recognize the inadequacy of partial compensation 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 adjacent to the surface), the regulation has already ‘taken’ title 

by adverse possession61. 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 baseball, farming corn, or even planting 

trees would obstruct the Rules-created public easement through the Private Zone. The 

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

69. The Rules nullify 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 assertion 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 Rules circumvent the statutory provisions protecting citizens’ rights 

of due process within the administrative process through mandated analysis. Then

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 procedures63 and Executive Order 12630, mandates Agencies analyze the potential 

affects of their actions -specifically if it may cause a property taking- before making any 

uninformed 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, 458 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) (36 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 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

The Agencies have failed to conduct this required analysis which starts by defining the 

scope of the property, or interest in property, to which the Rules 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 

taxpayers. 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 Agencies’ Rules ignore case law, and their obligation to analyze the financial burden 

on taxpayers before promulgating any new rule. See Exec.Order. 1263064. 

73. The Agencies expansion of their acquisition authority does not comport with the statutory

limitations place on the Agency under the 1958 Act. Sec.303 and 307 (b) of the Act limits 

authority based on available funding, and only for acquiring an easement through airspace 

needed for take-off and landing planes near airports. Property acquisition for allowing 

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

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

Allowing use of private property without 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 funds, to acquire the Private 

Zone, the Rules are in excess of statutory authority 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 process 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 property rights66. 

 

64 Executive Order 12630, 1988. see “GAO-03-1015 Regulatory Takings” for description and obligation failures.

65 US Constitution 5th, {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 establish 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, The 
pg. 20 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

77. Statutes mandate that notice include sufficient clarity to define the Action being 

proposed,67 which preserves the affected party the right to object at a meaningful time. 

Statutes then mandate a transparent assessment and thorough analysis of the potential 

consequences (direct, indirect and cumulative) be published for public review before

promulgating any proposed action68. 

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 process70. 

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 process 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’ Rules 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. 

This, in lieu of property owners’ rights to exclusive use and enjoyment of their Private 

Zone, which the Court recognizes includes the adjacent space below 500ft.

81. Landowners, and individuals with property interests, have been adversely affected by the 

absence of analysis and assessment protected within the meaning of these statutory 

provisions. We are entitled to judicial review under the APA74.

 

Guardian of Every Other Right: A Constitutional History of Property Rights (NY, Oxford Press, 1992); F. 

McDonald, Novous Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Unv. Kansas 1985)]

67An 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 Policy 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-03-1015 Regulatory Takings” for description and USFS failure 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 exclude 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 702
pg. 21 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

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) Executive 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 because the 

Court and statutes recognizes this to be a taking, the Rules do effect a property taking. 

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 deny due process rights owed to property owners.

87. Circumventing this requirement not only denies the due process rights owed landowner to 

object to these Rules at a meaningful time, it also circumvents 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 drones. 

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”. see Rules @ 

42119. The Rules circumvent the statutory provisions protecting citizens’ rights of due 

process within the administrative process by failing to conduct a mandated analysis of 

applicable law and Constitutional rights before publishing the Rules for Drones.

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 affect 
pg. 22 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

the [human] environment.” See 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 prevents uninformed Decisions and therefore an arbitrary 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 have 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 held in

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

evidence in front of the Agencies 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 pedestrians and flying through tunnels with moving vehicles. See 

Rules footnote 7175 There the FAA argued that this reckless drone flight had a significant

impact on safety and the human environment. These facts 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 Private Zone, or a policy which requires drones to fly 

at higher altitudes without 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 productive 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

constitutional rights protecting property and liberty constitutes not only a failure 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 Pirker decision can be found at: 

http://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5730.pdf.)
pg. 23 of 23 Petition to Withdraw the final Rules for Drones, July 28, 2016 DOT Ref#160728-000030 Mike Bamford

V: Conclusion and Request: 

We do not question the Rules authorization for drones to fly through the navigable 

airspace above 500ft in which a public easement exists, or above federal lands, or even above

public lands through which a Federal agency would have authority under the Property Clause. 

We do not question the Agencies authority to regulate commerce, or protect the safety of citizens 

by preventing drones from reckless flying near others or others’ property, or even preventing

interference with constitutionally protected property interests or privacy. However, the Rules 

authorize and allow drones to fly at low-altitude through the Private Zone, which is by law part 

of the landowner’s domain. Therefore, the Rules are not in accordance with applicable laws. 

The Rules are published without the necessary assessments and analysis and therefore are

procedurally deficient; this failure to act results in a procedural due process violation.

As allowed under 5 USC § 557, we ask the Agency to repeal or withdraw the Rules; or,

to Stay implementation of the pending Rules with respect to allowing drones to fly above nonfederal land, unless approved by the landowner. Full implementation should be delayed until the 

appropriate analyses are conducted and due consideration is given to the effects on the 

landowners use and enjoyment of their property. We also request the FAA stop waiving and 

exempting drone operators from use over non-public lands below 500ft, and make as a condition 

of existing certifications and future waivers that landowner permission must be obtained before 

flying over private property below 500feet.

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

2016 Operation of Small Unmanned Aircraft Systems. 

Sincerely,

Michael Bamford

Michael Bamford 

Georgia 

828-226-0381

mbamford123@comcast.net