Dismissal of Boggs v. Merideth because “using a federal forum to resolve Boggs’ [sic] garden variety state tort claim is inappropriate” exposes just how difficult it may be to get judicial guidance on core issues arising from unmanned aircraft systems (“UAS”) or “drones” in the national airspace. See Memorandum Opinion, (Doc. 20), Case No. 3:16-CV-00006-TBR (W.D. Ky. March 21, 2017).
In July 2015, outside Louisville, Kentucky, William “Drone Slayer” Merideth used No. 8 Birdshot to take down David Boggs’ drone, which Merideth insisted was invading his privacy and his property by hovering at a low altitude over his fenced backyard and his family. Merideth’s actions garnered him two felony charges under Kentucky law, but a judge later dismissed both in 2016.
Boggs had hoped to recover the cost of his drone through a restitution order, which was never issued. So Boggs sued Merideth for “trespass to chattels” seeking $1500 for destroying the drone. Boggs filed in federal district court (Case No. 3:16-cv-6-DJH (W.D. Ky.)) on grounds the lawsuit “arose under” federal law because it implicated significant federal issues related to the national airspace. Boggs asked the federal judge for declaratory judgment that— 1) an unmanned aircraft is an “aircraft” under federal law, 2) an unmanned aircraft operating in Class G airspace is operating in “navigable airspace” within the exclusive jurisdiction of the United States, 3) Boggs was operating his unmanned aircraft in this navigable airspace in the exclusive jurisdiction of the United States, rather than on Merideth’s property, 4) the operating of his unmanned aircraft in this manner did not violate Merideth’s reasonable expectation of privacy, and 5) a property owner cannot shoot at an unmanned aircraft operating in navigable airspace within the exclusive jurisdiction of the United States when operating in the manner in which Boggs alleges his unmanned aircraft was operating. Boggs v. Merideth, Memorandum Opinion, (Doc. 20), Case No. 3:16-CV-00006-TBR (W.D. Ky. March 21, 2017).
The court held that Boggs’s case did not “arise under” any federal laws and dismissed.
“Arising under” jurisdiction exists when four criteria set out in Gunn v. Minton, 568 U.S. 251 (2013) are met. The federal issue must be (1) necessarily raised [in the trespass claim], (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.
According to the district court, Boggs’s established none of these criteria.
First, the court concluded that the federal questions were not “necessarily raised” because they arose in connection with Merideth’s anticipated defenses (privilege, trespass into private airspace) and Boggs’s own replies to those defenses (navigable airspace is not private property), not in connection with Boggs’s original claim for damage to the drone. Second, the court was dubious that the federal issues were actually disputed, but concluded it was unnecessary to decide this issue. The court rejected Boggs’s argument that the sovereignty of United States’ airspace was “significant” to whether Merideth “intermeddled” with the drone under Kentucky tort law, and thus declined to find the fourth element.
Most importantly, the court concluded that third element was not met because the federal issues were not “substantial” in the context of jurisdictional analysis. While important to the parties, the court concluded the issues posed by Boggs were not significant to the “federal system as a whole.” The court characterized as “simple” the question of “whether Boggs’ [sic] unmanned aircraft was flying on Merideth’s property” for purposes of state tort law and rejected the notion that determination of that issue would affect the entire federal system. Mem. Op. at 7. The Court felt that even if the state court got it wrong about who owned the navigable airspace above Merideth’s property, such a decision would have no effect on the FAA’s authority to carry out its duties and mandates or on the “federal system as a whole.” The district court seemed greatly influenced by the FAA’s absence from the case and noted that a ruling on these matters would not bind the FAA. The Court also contrasted Huerta v. Haughwout, No. 3:16-CV-358, 2016 (D. Conn. July 18, 2016), in which the FAA sought to vindicate its subpoena power and its ability to enforce subpoenas in federal court
The Court’s assessment that these issues would not affect the system as a whole loses some steam in light of, inter alia, the FAA Office of General Counsel’s “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet” issued on December 17, 2015, to address a spate of state laws directed at UAS operations.
The document emphasizes that the FAA regulates UAS “to ensure safety of flight, and safety of people and property on the ground.” It refers to a number of Supreme Court and Court of Appeals decisions affirming exclusive federal control of the airspace and recognizing that “fractionalized” regulation and “inconsistent restrictions significantly decrease the safety of air commerce.” While diplomatically phrased, the FAA seems to be asserting that no other entity may attempt to regulate as “flight altitude, flight paths; operational bans; any regulation of the navigable airspace.”
To the extent that state decisional law would have the effect of regulating or restricting flight altitudes or paths, cases like Boggs might well have the requisite nexus to the federal system as a whole to trigger federal jurisdiction. Indeed, if every county or circuit court is free to determine at what altitude UAS might operate before some civil liability is incurred, then an unmanageable web of inconsistent rules arguably would be imposed on UAS operations, contrary to federal law.
The court’s analysis also seems to set an almost insurmountable bar to resolving the very issues that the general citizenry deems critically important as UAS are integrated into the national airspace. The Boggs decision suggests that state law damages claims between citizens of the same state are unlikely to ever generate “arising under” jurisdiction. Indeed, the judge in Boggs could not think of any. And while a case based on diversity jurisdiction is always possible, facts patterns raising the relevant questions are hard to imagine and those giving rise the requisite amount in controversy are not to be wished for. Federal question jurisdiction arising from something other than airspace issues seems similarly remote.
The Boggs opinion also found that the FAA’s absence weighed heavily against finding a substantial federal interest sufficient to confer jurisdiction. The FAA’s mandate is safety. It has no interest if the only damage, as in Boggs, is to the UAS itself or to damages not involving or caused by operation of the UAS. While there have been additional incidents of drones being downed with guns, and the FAA considers doing so a crime under 18 U.S.C. § 32, the FAA has no criminal enforcement powers and does not appear to have pursued any civil enforcement actions in these incidents.
In short, if FAA involvement and federal jurisdiction are prerequisites to consideration of the issues raised in Boggs, it may be a long wait for meaningful guidance.