Airspace regulation

On Sep 25, 7:46 am, bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
> I'm posing this as a hypothetical, set in the U.S., but the elements are
> based on *REAL* events which occurred in W. Germany more than a
> quarter-century ago.

In the USA, federal law relegates control over the common airspace to the FAA.

> Background:
>  'Property rights' "in fee simple", exclusive of any rights retained (e.g.,
>  'water', or 'mineral') by prior owners, extend downward in wedge towards
>  the center of the earth. And, similarly, upwards 'to the limits of space',
>  if not further.

One's ownership rights in property do not, in a society regulated by laws, convert into unfettered use of that property for any purpose whatsoever, despite the beliefs of some anti-stateists (anti-federalists?).  Since, as I'm sure Robert knows, the concept of private ownership of property is one that is created and supported by law and by the enforcement power of the State to protect those rights -- without that enforcement, such rights would be meaningless as against squatters, nomads, trespassers and other assorted "unrightful" users -- the State (formally, the Sovereign) holds ultimate title to all property within the realm, as is shown by the ultimate escheat of property "back" to the State any time the line of succession of private ownership fails.

So, "fee simple" ownership rights, while representing the most "independent" and "permanent" bundle of rights available to a private party, still carry with them the limitation of requiring compliance with the dictates of the State, for the common good.  That's why e.g. zoning regulation is a constitutionally permitted limitation on an owner's use of his property, as is the FAA regulation of the height of buildings in and near airways (regular and published paths of aerial navigation).  In USA, you can't build a skyscraper adjacent to the end of an airport runway or a tower that extends into the approach path.  There are specific standards that must be complied with.  In fact, I recall recently reading about a developer in Calif. (San Diego area, I think) who was required to _remove_ (at considerable expense to himself) the top story of an office or condo building he had erected in the flight path of a nearby airport in defiance of height regulations.

>  Yet, there is a legally recognized right of 'transit' through the
>  "unobstructed airspace" above the property.

Absolutely.   Set by international treaties and incorporated into USA law, similar to the ancient law of "navigable waters" permitting transit by boat for purposes of commerce.

>  Such 'right of transit' is inferior to any actual use the property owner
>  might make of that space.  i.e., if he builds a structure into that
>  space, anyone that had been flying through it, _regardless_ of regularly,
>  frequently, or for how long, must now detour around that 'obstacle'.

That's not true everywhere in USA; the airspace "controlled" by the FAA (as set by law and marked on aerial charts) extends from ground level to infinity within a circle of varying size around "controlled" airports (those with FAA air traffic control towers present) as well as various extensions, wedges, etc. needed to provide clear approach paths to its runways, as well as large areas of space between airports: the "airways" marked by ground based radio beacons (or emulated by GPS receivers) extend for 5 miles or more to either side of the direct line between beacons and, in densely occupied areas, overlap so much that virtually all airspace beyond 1200 feet above ground level is "controlled".   There is actually little "uncontrolled" airspace left in USA, mostly in the sparsely settled Western interior (such as where Steve Fossett was planning to make his speed record run and got lost without a flight plan).  Maybe in so called "uncontrolled" airspace, outside of the recognized airways, owners can erect such towers, but even there, the law requires such things as warning beacons (the flashing red lights you see on top of towers and tall buildings) to protect nearby aerial navigation.   And (although technology has not yet seen such a development) one should note that _all_ airspace in USA above approximately 20,000 feet (I don't remember the exact number without looking it up) -- where jet airliners spend most of their time except while taking off and landing -- is "controlled" airspace.

Then there is "restricted" and "prohibited" airspace, into which civil flyers are forbidden to intrude, usually because military operations go on there or other security concerns (such as over the Presidential retreat at Camp David) lead to a ban on civilian overflights.

One should also keep in mind that even in uncontrolled airspace, FAA regulations require civil aircraft to avoid "buzzing" people on the ground, among other minimum safe altitude requirements: see (from http://ecfr.gpoaccess.gov):

§ 91.119   Minimum safe altitudes: General.

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

(d) Helicopters. Helicopters may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with any routes or altitudes specifically prescribed for helicopters by the Administrator.

> Oh, for those interested, the European situation involved U.S. military
> jets, flying low over private land, despite requests to do otherwise;

Well, of course, the military don't have to comply with civil air regulations, although as a matter of good neighborly relations and safety, they generally do.  Especially when USA forces are guests in a foreign land, they should.  Those who don't, give USA an unneeded black eye

> leading to acquisition and _use_ of a 12th century catapult, employing
> _cherry_pies_ as A.A. rounds.  Note: jet engines apparently have a _very_
> adverse reaction to 'eating' cherry pies. :))   This matter was ultimately
> resolved without legal system intervention.

ROTFL.. If the (German) government wanted to be strict about it, I suppose the cataperps here could have been prosecuted for intentionally harming an aircraft in flight, a serious offense since it is one likely to lead to serious injury or loss of life.  However I can see the flip side of the coin being the bad publicity the USA military would like to avoid, to keep as much local goodwill as they still had, and to correct their own overbearing behavior toward the locals, and that could easily be what led to the alternate result you report acually happened.

I am reminded of another anecdote I read years ago -- perhaps in Air & Space Smithsonian magazine -- about a sheep farmer in Arizona whose flocks were continually being harassed by low-flying jet fighters, causing ewes to miscarry and general havoc among the poor sheep.   These extremely low-level overflights continued despite his protestations to the base commander until one day, the shepherd took aim with his varmint rifle at a fighter coming toward his flock on a nap-of-the-earth speed run.  I don't remember whether he actually pulled the trigger, but I do remember the sight of a gun barrel facing his windshield certainly got the pilot's attention.  Of course, the pilot felt he was safe from small-arms fire while flying his supersonic jet, forgetting that when he is coming directly toward someone at nearly ground level, his frontal view presents a nice, clear, steady target with no need to "lead" the shot to compensate for relative motion.   I believe the sheep overflights stopped shortly after that incident.

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