This Court Case May Alter the Rights of Drone Pilots Nationwide...and Nobody has Noticed

The Supreme Court may be about to accept an appeal with enormous potential to decide the airspace rights of drones in the United States, and nobody in the drone community seems to have noticed. Cases concerning drone flights over private property often receive attention from the drone community. However, since this latest case focuses on an 1880s federal statute and arcane areas of property law, nobody in the drone community seems to have sensed the threat.

The case, Iron Bar Holdings, LLC v. Cape, comes out of Wyoming, and the primary issue in the case is a practice called “corner-crossing.” Wyoming has vast areas where land ownership resembles a chessboard, with the black spaces owned by private landowners, and the white spaces owned by the federal government for use by the public for outdoor recreation like hunting and hiking. This land ownership pattern creates an interesting question: What happens when a single, private landowner owns all four black squares on the chessboard that surround a single white square owned by the federal government?

The other white squares on the chessboard are also public land, but they only touch at the corners, so a person passing from one white square to another on the chessboard would need to, albeit briefly, pass over one or both of the adjacent black squares. Is the owner of the black squares surrounding the white square of federal land entitled to treat the federal land as the sole province of the private landowner? Is the private landowner required to allow trespassers to pass over their land to reach the federal land? Landowners, ranchers, herders, and the federal government have been dealing with these questions for over 150 years.

The most recent attempt to resolve this question comes courtesy of a group of hunters who, in 2021, used an A-frame ladder to cross from one square of federal land to another. The hunters never touched the ground on the private land, but passed through the airspace a few feet above the private land at the corner where the federally owned white spaces and privately owned black spaces met. The private landowner sued the hunters for trespassing.

In May 2023, a federal district court held that while the private landowner owns the airspace through which the hunters traveled, passing through such airspace was not a trespass. When the landowner appealed to the Tenth Circuit Court of Appeals, the hunters won again, though this time the Tenth Circuit ruled that the passage over the corner was a trespass, but that a federal law known as the Unlawful Inclosures Act of 1885 (the “UIA”) allows such trespasses because the UIA makes it illegal to enclose public land.

Now, the private landowner indicates it will appeal the Tenth Circuit decision to the United States Supreme Court, and the Supreme Court’s ultimate ruling on this matter could have an enormous impact, not just on the practice of corner-crossing in the American West, but also on the rights of drones to pass through the airspace above privately owned land nationwide, even if that passage is brief and fleeting.

A Supreme Court ruling that a private landowner is entitled to exclude others from low levels of airspace above its land would upend assumptions made by the drone industry for years about the right to pass through airspace without permission. Similarly, if the private landowner prevails with an argument that, requiring a private landowner to allow a trespass is a taking of private property without compensation and thus unconstitutional, then the same rationale would apply to any federal requirement that landowners allow drones in that same airspace.

The impact of a ruling against the landowner is murkier. On one level, a holding from the Supreme Court that the landowner cannot exclude the hunters from passing through the airspace above their land would seem to indicate that a landowner can also not exclude a drone from the airspace above their land, but the reality is not so simple. A holding that the UIA requires private landowners to allow trespasses over their land would also mean the Supreme Court determined that traveling through low levels of airspace above private land is a trespass, and that drones do not necessarily have the UIA available to require landowners to permit the trespass. The drone community’s response to this apparent setback would likely be that the FAA Modernization and Reform Act of 2012 serves the same purpose as the UIA and thus requires landowners to allow for drone trespasses because it directs the FAA to integrate drones into the national airspace system, but this comparison is far from guaranteed to succeed.

The drone community has traditionally operated under the belief that a landowner cannot prohibit drone flights so long as neither the drone nor its pilot physically touch the ground of the landowner, and development of drone-based businesses and other uses have been developed based on that assumption. Cases like Iron Bar Holdings show that this belief remains a mere assumption, and one that flies in the face of longstanding real property law in the United States. Eventually, a court of competent jurisdiction will issue a ruling on this issue, and if such a ruling upholds the longstanding basic tenets of property law, the drone-based business community will hopefully be ready to adapt, otherwise, the plethora of benefits drones can offer our communities will be at risk.