Will Proposed New Military Aircraft Low Flight Patterns Result in Takings?

Consistent low flying aircraft can result in a taking of private property, in violation of the Constitution.

The Detroit News just published an article discussing public hearings relating to a plan to expand low-flying military aircraft maneuvers at a National Guard base. “The proposed zones include the Thumb area, where flights could be conducted as low as 500 feet off the ground in some areas; and the Grayling area, where permitted altitudes would lower in certain areas from about 5,000 feet to 500 feet and to 300 feet on one training route.” This could result in a taking, depending upon the intensity of the flights and the impacts on the property underneath them.

United States v Causby, 66 SCt 1062 (1946), involved frequent and regular flights of Army and Navy aircraft over a residence and chicken farm in North Carolina. The aircraft passed directly over the property at a height of 83 feet, along a path approved by the Civil Aeronautics Authority. The aircraft were so close to the property that they barely missed the tops of the trees and were so disruptive to the Causby property that 150 chickens on the farm were killed when they flew “into the walls from fright,” and the property owners had to give up their business.

The Causby Court addressed whether a taking had occurred and what the test for such a taking would be. The Court needed to grapple with common law doctrine relating to land ownership. While “it is ancient doctrine that at common law ownership of the land extended to the periphery of the universe,” that “doctrine has no place in the modern world” because “the air is a public highway.”  However, the Court recognized that if a property owner is to have full enjoyment of his land, he must have “exclusive control of the immediate reaches of the enveloping atmosphere,” known as the “superadjacent airspace.”  Thus, “flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” The Court agreed that in these circumstances, “a servitude” had been imposed upon the Causby land.

If the proposed Grayling plan is adopted, the question of whether the flights constitute a taking will depend on the frequency and actual impacts caused by the flights.