Sunday, March 19, 2017
EMWH SB 170 OPPOSE
Legislative Update Mar. 18, 2017
Bill du jour, another serving of the legislative bills...
Here is the "more to come" on SB 170 I couldn't fit before
SB 170 - Oppose - without major amendments.
I have some serious concerns with SB 170, without some major amendments, I feel it should be opposed. It states, "An act providing civil penalties for unauthorized operation of an unmanned aerial vehicle over real property; and providing an applicability date." This bill is modifying Title 70 Property, Chapter 16 Rights and Obligations Incidental to Ownership in Real Property, this section defines what property ownership means.
Archaic Latin law stated, “For whoever owns the soil, it is theirs up to heaven and down to hell.”
Then aircraft was invented. The U.S. Supreme Court determined, "the United States Government has exclusive sovereignty of airspace of the United States” and that “citizen[s] of the United States [have] a public right of transit through the navigable airspace." "It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared."
Now, ignore the whole drone thing for a moment and think about this air space for navigation. Think about airspace for corner crossing, which again, is not illegal in Montana. A person is stepping from one corner of public land, navigating the air space as they step to the adjoining corner of public land.
Back in 1986, when Nels Swandal (former judge) was a temporary County Attorney for Park County (now he is a senator), he was asked by a Park County resident for an opinion of trespass laws in relation to corner crossing. He replied, including a 4 square graphic with 2 diagonal private land squares and 2 diagonal Forest Service squares,
"You asked me for a clarification regarding the trespass laws as they apply to the crossing of corner sections that have diagonal corners. While each case has to be looked at on its own facts I can give you my general opinion...
The trespass laws were designed to protect the land but they do not protect the air space above that land. It is certainly possible for a person to locate a corner or make a good faith effort to locate a corner and step across it without trespassing on private land."
My concern, reading this bill, is without modifications, this could be used as a step towards air ownership again, applying it towards stepping across the air space of the 2 diagonal corners of public lands - the checkerboarded landownership - private and public.
I do not advocate using drones to harass private landowners, invasion of privacy or damage their property, but I also want to see respect and acknowledgment given to the public lands and it's owners.
And again, here is another trespass bill, which carries a penalty. Yet, HB 295, fining a landowner for illegally encroaching a public road, didn't make it out of the committee or pass a blast motion effort to get it discussed on the floor! The word 'hypocritical' comes to mind.
SB 170 was scheduled for it's 3rd reading in the Senate, has now been moved from Judiciary to Senate Business, Labor and Economic Affairs. More on this to come, but think about this and send your comments to the Senators and Representatives, addresses below.
Also, having spoken with someone involved in aeronautics, because a previous article on SB 170 said this bill conflicted with Federal law, I needed a better understanding. Federal overrules state - the Supremacy Clause. Title 14 CFR deals with Federal Aviation Regulations. With the increase in Unmanned Aerial Systems, the regulations needed to deal with the growing industry, beyond bottle rockets and hobby aircraft.
In 2016, a new section was added for the UAS - 2 sections for commercial and recreational/hobby - Title 14 CFR, Chapter 1, Subchapter F, Part 107.51. Which states that the altitude of the small unmanned aircraft cannot be higher than 400 feet above ground level, unless it is flown within a 400-foot radius of a structure; and does not fly higher than 400 feet above the structure's immediate uppermost limit.
Yet SB 170 states, "the unmanned aerial vehicle is not flown over the real property described in subsection (1) below an altitude of 500 feet."
It also applies a civil penalty for trespass, defined as a criminal act. - MCA 45-6-201
In essence, SB 170 extends property boundaries and rights 500 feet in the air.
"Critical Infrastructure" is not defined. As Sen. Pomnichowski pointed out, our Gallatin County Hyalite Reservoir is a city water source and could be considered a "critical infrastructure", yet Hyalite Reservoir is also a fishing and recreational site.
"A person who owns or lawfully occupies" - lawfully occupies could apply towards leasing our public lands, whether that be a State Trust land or a grazing lease on BLM or Forest Service, for example.
I feel this is yet another attempt to backdoor corner crossing.
An article- a good application for drones. Three Montana Middle-schoolers built a drone to hunt down poachers - This poacher-hunting drone could be the new weapon used by fish and wildlife officers all around the country.
SB 170 Statements at the Feb. 14th Judiciary Hearing
After the sponsor, Sen. Heinbauch briefly introduced the bill, the first and only proponent to speak (for about 15 minutes), was Chuck Denowh for UPOM, the primary author of this bill.
"This bill is really about 2 things. First of all from a property owners perspective, its about to what extent the property owners have the right to exclude others from the low altitude air space above their property. And for drone operators, this bill is an attempt to give some guidance about who is allowed to be where in the air space as an operator. In August of last year, the FAA finalized their rules per commercial drone use. So I think this type of bill is very ripe at this point because the FAA has come up with their long waited rule and they've given some parameters under which drone operators have to operate. But, they didn't talk at all in those regulations about property rights or where drone operators are allowed to be and I think that gives us a good opportunity for states to step in and define those rights."
As I have stated before, corner crossing, contrary to many's assumptions and beliefs, is not currently legislated, and 3 times now, in this legislature, they are trying to do that - HB 231, HB 566 and this SB 170 - but without the public's awareness and a public discussion of the matter.
"So what does this bill do? It creates a new civil cause of action to allow a property owner to seek relief for unauthorized of an aerial drone above their property. Now you might think that, and I might think that our existing criminal trespass statutes would already apply to this sort of thing, and I think they do, I think it's pretty clear that under the criminal trespass statute that unauthorized drone use could result in a criminal trespass. So this bill really provides a second layer of protection for landowners, but beyond that, I think it gives guidance on drone operators about what they are and are not allowed to do, because, I think there's some confusion out there right now about that point. I think in coming years we are going to see more conflicts as they relate to drones.
The technology is still in its early days, but it is maturing fast and evolving very quickly. (He gives two headlines, one about PETA and another about Google and Chipotle with drone delivery, talking about burrito delivery, what if you were between the burrito shop and a college campus?) Those sum up two of the big concerns that property owners have. One is surveillance, not just surveillance by voyeurs, it could be surveillance by government entities, by other third parties above their property. And two is commercial delivery...
So what this bill really comes down to, if you have a right to be on the surface, you should have a right to be in the air above that property. If you don't have a right to be on the surface, you shouldn't be in the air above that property. And existing property law enforces that concept. Right now under common law, if you have an overhang, if you are on a property line, something overhanging, say a tree or a part of your house that goes into the air space on your neighbors property, you have to remove that, that's an invasion of the space above their property. (Denowh then talked about airport easements, misapplying some information which was refuted by Steve White (one of our county commissioners here in Gallatin Co., a commercial drone operator and the first proponent to speak). So existing law out there does support the notion that property owners have a property right in the air space above their surface. So we drafted this bill to recognize that, that's why there's a few exceptions and the big one is for easements. (He then spoke about the specific easements and the amendments being proposed that day. About the 14 minute mark he continues.)
This bill is really about giving guidance to property owners about what rights they have to exclude others from their air space..."
After all the opponents spoke, Steve White, Gallatin Valley Commissioner, a commercial drone pilot, very knowledgeable, especially addressing the FAA regulations, pointed out there was a conflict with the bill and FAA regulations, that some of these issues should be dealt with in privacy laws, etc. One of the opponents, perhaps the attorney for At&T or the BNSF Railway, brought up potential drifts, from wind gusts or what is perceived to be a trespass from the ground, accidental trespass, that this was going to create more litigation. Another person brought up that this fiscal note should not be $0 because there was going to be litigation. One of the Committee members asked the sponsor about the amendment suggested by the Motion Picture Association for filming and news gathering, the sponsor Heinbauch deferred to Denowh, who stated probably not.
Hinebauch then closes,
"All these people sitting behind me are good people, but if we get some bad people that want to have drones, we might have some problems. That's what we are trying to guard against. One thing we talked a little bit about, the air space, and Mr. Denowh brought this up a little bit, but one thing I have referred back to is the corner crossing bill. You guys all remember the corner crossing bill, it talked about air space, the corners meet, but they would have to use the air to get to the other section. So I think, and Mr. Denowh brought up the fact that a tree was hanging over someone else's property, 30 foot in the air, they had to cut it down, it wouldn't be bothering probably, but it was just in their space. And I think that provides the air space deal and if you ever want to become popular, try to introduce a drone bill... So that has to be protected, I think, and if we don't, I think we're gonna have trouble with all these things."
FAA / Aviation Perspective
After my concerns that this was a corner crossing bill, I consulted Mike Korn, a pilot and retired FWP Deputy Chief of Law Enforcement about the FAA. He also consulted with Harold Dramstad, MT Dept. of Transportation, Aviation - Bureau Chief, Safety & Education Program, who provided additional information and the Federal Aviation Regulations and Aeronautical Information Manual.
Here is Mike's SB 170 Overview - click link for article.
So what is with the tree branch air space?
So I have been digging into some laws.
Please note in the statements by Heinbauch and Denowh above, they use phrases such as, "I think", quite a lot, "define those rights", "creates a new civil cause of action", IF you have a right, you should...", "second layer of protection", "provides the air space deal".
Now when I know about a right or law, I never write or speak "if", "I think", etc. I hammer the absoluteness of that law, there is no touchy feely bullsh*t about it, no ambiguity, no assumption, no inference.
Private landowners stating there is no legal corner crossing cannot provide any definitive, concrete MCA to back up their claims. I have had a number of people for weeks since I first brought up the first trespass bill, in various positions, email me stating I must be incorrect, they plan on asking around, I ask them to get the exact MCA and none has yet been provided from any source.
Illegal Corner Crossing - an example of the "Lie repeated often enough it becomes the truth".
Here's the thing with communication psychology, they say to get your point across, paint a verbal picture, because all our decisions are made from our limibic system, our visual tied with the emotional response. Heinbauch and Denowh kept talking about a frickin' tree limb to make you think that tree limb was invading a landowners air space, that it was trespassing their air tied to surface property rights.
Here is the real law concerning fences/trees in Montana Code Annotated, involving property laws -
70-16-204. "Trees on or near boundary. (1) Trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.
(2) Trees whose trunks stand wholly upon the land of one owner belong exclusively to that landowner, although their roots grow into the land of another."
Do you see anything there about limbs, branches in air space? No. Because the air space is not tied to the surface as they deceptively tried to paint in people's minds.
Ordinances about limbs or branches may or may not be in the city or county ordinances, but they are not in the Montana Code Annotated property laws or private property trespass criminal laws.
UPOM and others have been obfuscating for years about corner crossing and they know it.
This is 3 times now this legislative session (that I have found, there could be more), in back door manners, that special interest groups/individuals/legislators have tried to quietly, legislatively steal your corner crossing rights public lands rights, when you didn't even know you had them. I believe that is called, "A Taking".
Please email the legislators opposing SB 170
Senate addresses below
House of Representatives addresses
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