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On a beautiful day in late October, our team boarded the Duke University Marine Lab’s boat for our first sampling trip. The mid-fall sunshine heated up the day to a pleasant 70 degrees. Our captain navigated us to the first of the three oyster reefs we planned to sample for our research. He guided the boat to find slightly deeper water among the sand bars and we came to rest a couple dozen yards from a constructed oyster reef. We tugged on our neoprene booties, jumped over the side of the boat, and waded over to the reef. Some folks assessed the depth at different points around the reef while others hammered three Autonomous Reef Monitoring Structures (ARMS) into the sediment around each reef to measure subtidal reef biodiversity.
All the while, Justin began preparing the DJI Phantom for flight. Within a few minutes, the DJI quadcopter was in the air, buzzing at 75 meters and capturing the structural complexity of the reef while we watched the flight. In hindsight, I imagine that Jason might have been contemplating whether the drone’s sounds penetrate the surface of the water and create acoustic patterns within the reef itself. I imagine that Justin may have been thinking about the programming decisions he had made in the days preceding our field work—decisions that dictated the drone’s altitude and path. However,at the time, my mind was captivated by something else: the legal and regulatory frameworks that allow us to analyze the health and biodiversity of oyster reefs using unoccupied aerial systems (UAS) or drones.
Stick with me; 55 years after the Wright Brothers flew the world’s inaugural flight in Kitty Hawk, the United States recognized the need for a comprehensive and uniform set of regulations to govern the burgeoning aviation sector (Nilsson, S. 2017. Drones Across America: Unmanned aircraft systems (UAS) regulation and state laws. Chicago, IL: American Bar Association, Air & Space Law Forum. p 7.) Planes were changing the way that people traveled, goods were transported, and wars were fought. Congress tasked the Federal Aviation Administration (FAA) with “the control of “aircraft” and the use of navigable airspace within the United States,” authority that various court cases subsequently underlined if not extended (Lathan & Watkins Aerospace, Defense and Government Services Industry Group. 2014, March 11. FAA Lacks Authority to Ground Small UAVs Used for Commercial Purposes. Client Alert Commentary, 1659. p 1; See Burbankv. Lockheed Air Terminal Inc., 411 U.S. 624 (1973); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386-87. 1992).
After another 65 years of fine-tuning regulations in response to the aviation sector’s demands, the FAA has developed a fairly fixed regulatory regime. However, the advent of drones has forced Congress to contemplate whether this tried-and-true regulatory regime for traditional aviation can be tailored to fit the needs of the flourishing unoccupied aviation sector. At first glance, drones seem a lot like remote control (RC) planes. Both are air frames that have the capability of being operated by someone on the ground via remote control. Many RC planes and drones are comparable in size. Many RC planes and drones have similar flight specs in terms of potential altitude, speed, distance, etc. The similarities made me question why they weren’t regulated in the same way. However, unlike their RC cousins, drones integrate artificial intelligence (AI). It is because of this AI that our team was able to program our drone to fly a predetermined route at a specified altitude in order to gather structure from motion data. This pre-programming isn’t possible in RC aircraft.
Structure from motion is the method our team is using to analyze reef structure. Specifically, structure from motion gathers 2 dimensional images, identifies unique pixel clusters across these images, and then examines how these unique pixel clusters’ geographic relationships to one another change across the images in order to develop a 3 dimensional recreation of the landscape. It is also because of this AI that a separate regulatory regime for drones may be appropriate.
Congress required the FAA to regulate the emerging UAS market as part of the FAA Modernization and Reform Act of 2012. Specifically, under § 333, “the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system” and, if they can be operated safely,“the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system.” FAA Modernization and Reform Act of 2012, 49 U.S.C. § 40101.
Drones operate lower to the ground than traditional occupied aircraft. In fact, the FAA’s regulations prohibit UAS users from flying at altitudes more than 400 feet above ground level. 14 CFR § 107.51(b). This provides a valuable buffer between UASs and occupied aircraft which can—absent takeoff and landing procedures—fly as low as 500 feet above ground level. 14 CFR § 91.119(c).
This proximity to the ground implicates particular legal issues. For instance, private property historically operated under the common law doctrine of cuius est solum, eius est usque ad coelom et ad infernos (“for whoever owns the soil, it is theirs up to heaven and down to hell”), meaning that a person’s property rights extended downward to the mineral rights below one’s land and skyward through the air column above one’s land. This mantra has been chipped away over time by, among other things, the aviation sector. See United States v. Causby, 328 U.S. 256, 264-65 (1946). However, it remains the case that private property rights extend some undefined distance into the air column over one’s land, a fact that has led to conflict between property rights under state law and the regulations of drones under federal law.
UASs constantly toy with the boundary between state-level property rights and federal-level airspace regulatory regimes by navigating at much lower altitudes. The closer drones fly to the ground, the more states interpret this nascent technology to be within their domain rather than within the FAA’s. On the other hand, federal preemption over aviation reduces regulatory complexity and will lead to a uniform framework for both drones and occupied aircraft. Some states have established laws and regulations that step beyond the bounds of the FAA’s regulations while others have chosen to stay out of this airborne corn maze. For instance, in the very state of our research—North Carolina—state legislators passed N.C. Gen. Stat. § 15A-300.2 which asserts the state’s complimentary regulatory authority over drones insofar as state or private property is implicated.
I bring all this up, this whole regulatory mess that is less talked about among scientific circles, because it is relevant to our Bass Connection team’s analysis of oyster reef biodiversity. In addition to testing the effectiveness of drones and bioacoustics to monitor oyster reefs, our team is also conducting a survey of professionals who manage and monitor oyster reefs. Through this survey, we hope to assess how these professionals feel about incorporating innovative technologies like drones and bioacoustics into their management arsenal. However, the uncertainty of the regulatory regime surrounding drones may influence how professionals feel about the viability of this new technology. Specifically, if environmental managers aren’t persuaded that the regulatory climate will enable drones to proliferate, then the effectiveness of monitoring methodologies might not ultimately matter. Furthermore, because we are using drones to collect data, these are legal regimes with which we must comply.
Through our survey, our team is, in-part, assessing the impacts regulatory uncertainty is having on managers’ impressions of drones. Likewise, we are waiting to see how state government and the federal government chooses to regulate the proliferation of drones. In anticipation of the potential dangers of this new technology, will regulators and politicians heavily regulate drones to avoid concerns such as drone-on-drone crash incidence, impact to wildlife, dangerous interactions with occupied aircraft, privacy issues, etc.? Or in the hopes of harnessing the potential benefits of this new technology and seeing how innovation shapes the contours of the drone space, will regulators and politicians allow the market to lead the regulatory regime? Only time will tell. In the interim, our team, other Duke researchers, and researchers at campuses across the country continue to leverage this new technology to answer vital questions.
Post by Molly Bruce, Remote sensing team
