Regular drone flights could be defined as “aerial trespass” under a proposal discussed by the Uniform Law Commission (ULC) in July, warns one aviation lawyer. The ULC provides draft legislation for independent adoption by state lawmakers and floated the idea last month at its annual meeting in Louisville, Kentucky, said Mark Dombroff, co-leader of the aviation practice of national law firm LeClairRyan.

The proposal would make all encroachment over another person's land by UAS a form of trespass that conveys a presumption of damages, so long as the altitude of the flight was 200 feet or below. Dombroff said that could put state law in conflict with current FAA regulations that permit drone flight up to 400 feet. "It sure seems to me that if that this were enacted in a state, the federal government would quickly file a lawsuit arguing that it was an unlawful preemption of FAA authority," he said. The ULC plans to continue debate on the measure into next year. 

Mark McKinnon, head of LeClairRyan's UAS practice team, said that despite asserted federal primacy, states will continue to focus on this area of regulation. “We could see some action on this moving forward. In general, this is an area where states will likely be focused over the next couple of years. Some lawmakers want to tease out the boundaries of their citizens' rights to the air above their properties. The question is how that will interact with federalized airspace," he said.