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In essence, a “giant tarp” has been laid over Standing Rock, allowing law enforcement to act with impunity and without any witnesses.

The FAA has imposed a 4-nautical mile Temporary Flight Restriction, (“TFR”), in airspace up to 3500 feet above sea level, over the Standing Rock Protest in North Dakota. The land in that area sits approximately 1600 feet above sea level, meaning about 1900 feet of the sky above the protest is off limits to any aircraft other than those permitted to fly — namely, aircraft in support of the law enforcement activities.

Neither the mainstream media, nor citizen journalists, nor activist hobbyists may fly in that area to document what law enforcement is doing. In essence, a “giant tarp” has been laid over the site, allowing law enforcement to act with impunity and without any witnesses. There is something very troubling about that, especially given the widespread accounts of militaristic law enforcement tactics, many of which have already been documented by drones.

It does not take a degree in rocket science to realize the effect of the TFR is that it blocks any documentation of the protest from the sky.

Whether that is also the reason it was requested and granted is a matter of opinion, of course. In this writer’s opinion that is unquestionably the reason. It’s another Ferguson-style TFR, where a TFR was requested and imposed specifically to bar media coverage. (The FAA has denied that of course, but the transcript indicates otherwise.)

What is not a matter of opinion is what the law requires for the issuance of a TFR. A TFR is issued by the FAA after it reviews and approves an agency’s request for one. The federal aviation regulation that governs the issuance of TFRs is FAR 91.137. In this instance, the FAA has used the most strict of the three degrees of flight restrictions available — 91.137(a)(1) — the relevant portion of which reads:

91.137 Temporary flight restrictions in the vicinity of disaster/hazard areas.

The only language in the text of the NOTAM that even remotely resembles the specification of a hazard or condition, is the phrase “FOR LAW ENFORCEMENT OPERATIONS,” and I was able to confirm with an FAA spokesperson yesterday, that “FOR LAW ENFORCEMENT OPERATIONS” is, in fact, the specified hazard or condition for the TFR.

Assuming that the FAA does not consider law enforcement operations themselves to be a “hazard,” (which ironically is the case at Standing Rock), it must consider those operations to be a “condition.” Under FAR 91.137, that condition must also be the reason specified to support the issuance of the TFR to “[p]rotect persons and property on the surface or in the air from a hazard associated with an incident on the surface.”

What condition about “law enforcement operations” would present a hazard to persons or property on the surface?

Well, law enforcement is shooting drones out of the sky — eight of them as of this writing. Aside from being a federal felony, shooting drones (which are “aircraft”), from the sky most certainly presents a hazard to persons or property on the surface because of a universally-recognized law — gravity. However, that particular hazard, created solely by law enforcement, could be easily eliminated if they simply stopped shooting down drones. Law enforcement at Standing Rock is also flying aircraft, (displaying altered registration numbers in violation of federal criminal law), at extremely low and unsafe altitudes over those protesting against the pipeline, arguably in violation of FAR 91.13, which prohibits careless and reckless flight.

Thanks to Peter Sachs of the Drone Law Journal for this thoughtful analysis which was first published in sUAS News. It is amazing that despite footage showing drones being fired on multiple times by a variety of people assumed to be police, the FAA once again seems to be unwilling to prosecute for shooting aircraft.

UPDATE Jason Koebler of Motherboard just published The Government Is Using A No Fly Zone To Suppress Journalism At Standing Rock.

In recent weeks, Dakota Access Pipeline protesters have been tear gassed, sprayed with water cannons in freezing temperatures, and shot with rubber bullets by a police force using military-style vehicles and violent riot suppression tactics. Every suppression apparatus the government has at its disposal has been used—even the National Guard has been called in.

These drone-shot videos have been invaluable in recording these abuses. And yet those, too, have been targeted by the government. The Federal Aviation Administration has set up a Temporary Flight Restriction over a four-mile radius surrounding the Standing Rock protests. The TFR applies only to civilians; law enforcement helicopters and aircraft buzz over protesters with impunity.

One of the most able journalists covering the FAA, Koebler brings new legal voices to add to Sachs’.

“This no fly zone is a clear violation of news gathering rights that are protected by the First Amendment,” Roy Gutterman, director of the University of Syracuse’s Tully Center for Free Speech, told me. “Using drones for news gathering is a viable modern technique, and this looks like it’s a government action clearly aimed at limiting access to a public place.”

“As far as the government imposing limitations on technology in public places, I can’t think of anything like this. Law enforcement or first responders have a legitimate government interest in preserving safety in a disaster scene by cordoning off an area, but this is a little different,” Gutterman said. “You’re putting a bubble over a whole zone without any real legitimate government interest.”

Gutterman says that, in general, there’s no need to get an “exception” to exercise First Amendment rights, and the United States does not and has never had a method of “registering” journalists.

“There’s no governing body that says who is a journalist and who isn’t a journalist,” he said. In theory, it shouldn’t matter whether the journalist is part of the protest or is part of a traditional mainstream media company. “Traditional journalistic ethics aside, there’s nothing in law that says a journalist can’t have an agenda.”

While the fate of the TFR and the Standing Rock drone journalists is important in the short term, there’s a larger, more important societal question here:

Will the FAA be allowed to continue rubber stamping no-fly zones for law enforcement whenever there is a protest?

“It’s scary they can put these no-fly zones up during actions, whether it’s Ferguson or Standing Rock or the next place it happens,” says Rhianna Lakin, who has been a prominent member of the commercial drone community for years and has been been providing on-the-ground support and training for indigenous pilots. “They can suppress media by putting up no-fly zones.”

“I think this might be an opportunity to test the application of a TFR under the First Amendment,” Gutterman said. “The Ferguson protests are long gone, but this issue isn’t going anywhere in the near future.”

Jason also tells the story of the drone pilots. Two primary pilots have emerged.

Since August, Myron Dewey has been flying drones above Standing Rock. A Native American from Nevada, Dewey went to Standing Rock because he wanted to stand up for indigenous rights after seeing mining destroy native lands near his home.

He brought a drone with him and set up a small media company called “Digital Smoke Signals.” He and a person called Dr0ne2bwild have been the main drone journalists documenting the protests and the law enforcement response to it.

“For years, the story has been told for us, not by us. This is our opportunity to tell our story,” Dewey told me.

The drone footage has given the public a general sense of the scale and tenor of the protests. “They provide a sense of security to the water protectors to know that they’re in the air documenting the truth,”Rhianna Lakin told me. “It provides truthful and accurate documentation of what’s happening, so we can take the statements the Morton County Sheriff is putting out and verify it.”

Dewey said numerous water protectors who have been arrested have had their charges dropped based on the footage his drones have taken, and thousands of people have watched as law enforcement have used military-style tactics to suppress the protesters.

“The drones provide a visual narrative—we’ve seen unarmed people praying getting shot with a water cannon,” Dewey said. “We show canisters being shot into the middle of a crowd, guns being pointed at people, medics being shot in the back with rubber bullets.”

Flying drones in rural North Dakota in November has been difficult. The pilots burn through batteries at an astonishing rate, and spotty 4G signal limits where the pilots can livestream from. Most concerning, videos show that the law enforcement regularly shoot at them, which is a violation of a federal law that prevents anyone from firing on civil aircraft in US airspace. Violating it is a felony.

“I’m pushing the drones to a limit I don’t think they’ve been tested at,” Dewey said. “The drone was freezing up because it was sprayed with water—there were icicles on the drone. I’ve had three shot down—one by sniper fire, one by a canister. A percussion grenade at another. We’re on drone number eight. They continue to fly.”

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UPDATE I have shared this post with several UAV groups on Facebook. An article by a gentleman named Scott Gates was brought to my attention. On the Standing Rock tribe’s Dakota Pipeline Protest … is an outstanding piece of research that looks at what has actually happened in the various hearings that led up to permitting the pipeline. If you would like some insight into the backstory this is as good as you are likely to find. Honestly, it does not speak well for the tribe whose water supply appears to have been assured by $40M of Federal investment.

In a review of the North Dakota filings – directly relevant to the tribes complaints – we can see a picture of detailed review, extensive input and engagement with various affected parties, and detailed historical, cultural, flora and fauna and other reviews. We can see information on the MANY changes made to the route to accommodate concerns raised in input obtained from those willing to give it.

What seems missing is any significant involvement and input from the tribe during the 2 year approval process, despite dozens others with far less resources successfully petitioning to intervene, and filing affidavits to get their voices and input heard. The Standing Rock Tribe is not listed as a Petitioner to Intervene and offer an Affidavit.

It is not the intention of this post to argue the merits of the protest. My interest is the TFR and its implications for precedent and abuse.
North Dakota Gov. Jack Dalrymple has ordered protesters to clear out immediately, citing harsh winter conditions as well as the need to inspect and approve living structures. The Army Corp is threatening arrests if the camp is not empty December 5. If there is good news it is that the Morton County Sheriff’s Department has for the moment walked back their threat (The Governor’s threat?) to cut off access for people and supplies.
The protesters, some 7,000 strong from around the world, vow that they are not going anywhere…  2,000+ veterans are heading to the camp to create a human shield.
Based on how this has been managed to date – which in large part we know about because of the drone footage – we have all the makings of a bloody battle in which 3-5,000 police equipped with the latest tactical gear will use force on mostly unarmed protesters including many women and children.
This TFR makes it just a little too easy for the government to use whatever tactics they choose, secure that they will not have to deal with an eye in the sky – or shoot more down. If there ever was an example of #dronesforgood this might be it.

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