NY Man Charged After Flying Drone Over Chemical Plant

In what may prove to be a legally tenuous case, a New York man has been charged with trespassing via drone after he reportedly piloted his unmanned aircraft near a chemical plant owned by Van DeMark Chemical in Lockport, N.Y.

According to the Buffalo News, 62-year-old James A. Stivers admitted to police that he piloted the UAV on Monday, Nov. 30 and was “confronted by police” at the scene after a motorist reported the drone.

However, police waited four days to charge Stivers with trespassing and, a cursory glance at relevant drone laws does not seem to support such a charge. The report in question does not address whether or not the drone flew over the plant, begging the question: “If the drone did not even fly over, how can this be considered trespassing?”

A search of state drone laws reveals that, so far, only Louisiana restricts flying drones over or near chemical plants. A proposed bill in the Oregon legislature would also carry a similar prohibition. A bill passed into law this year in California states that a “person is liable for physical invasion of privacy when the person knowingly enters … into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image.” Note that this prohibit is a civil matter, not criminal.

The Supreme Court has held that the air above 500 feet is public property and the air below 83 feet is private property (see U.S. v. Causby). The decision never actually addressed the space in between. The court held that a landowner owned “at least as much of the space above the ground as he can occupy or use in connection with the land” and that if anyone flies into that space, their intrusion would be considered “in the same category as invasions of the surface” – presumably “trespassing.” So perhaps the question that remains unanswered is “how high was Stivers’ drone flying?”

Meanwhile, back at the Buffalo News site, commenter Perriwinkle, who claims to hold a Section 333 exemption as a drone pilot, expressed the sentiment that may be shared by many in the UAV community: “Let me say that unless this guy was inside the plant and buzzing around, this is a BS charge. They do not own the airspace above their property.”

Ironically, drone flights have been touted as a means to deliver “crucial safety services” as many chemical companies seek out Section 333 exemptions.