Yet another trespass bill SB 170

K

katqanna

Well-known member
Joined
Jan 20, 2013
Messages
1,695
Location
Bozeman, MT
SB 170 - I have some concerns with this bill, without 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.

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 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 airspace 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.
Click to expand...

My concern, reading this bill, is without modification, this could be used as a step towards air ownership again. Using this bill as precedent, another bill could come across the legislature, applying towards stepping across the air space of the 4 corners of 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, 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. 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.

I feel this is yet another attempt to backdoor corner crossing.

edit: 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.
 
Last edited:
So why should someone be allowed to invade your private space? Do you want someone flying a drone over your backyard and looking at your family?? If yes, then we should not have fences in our yards. What people do on their property is their business. Be very careful what you ask for.

Its not called personal property, Its call PRIVATE property.
 
I just snagged this from wiki, but I believe it is correct.
§119 of Part 91 of the Federal Aviation Regulations (FAR):
  1. Anywhere: an altitude allowing a safe emergency landing without undue hazard to person or property on the ground;
  2. Over Congested Areas: an altitude of 1,000 feet above the highest obstacle within a horizontal distance of less than 2,000 feet;
  3. Over Populated Areas: an altitude of 500 feet AGL;
  4. Over Open Water or Sparsely Populated Areas: an altitude allowing for a linear distance greater than 500 feet from any person, vessel, vehicle, or structure;
  5. Helicopters: If without hazard to persons or property on the surface, an altitude lower than in definitions 2, 3, and 4 above, provided in compliance with any routes or altitudes specifically prescribed for helicopters by the FAA.
Click to expand...

Basically an aircraft has to stay 500 feet away from "person, vessel, vehicle, or structure." I'm not sure why drones should have stricter restrictions, or why it would be designated trespass if done in a drone but not an aircraft.
 
RE: Corner crossing...
My understanding - private property is the highest point on a person's property. No? I.E. peak of the tallest tree - becomes the height for the entire property? I see a drone over my house, I'll make use of my 870... Haha!

Am I incorrect?
 
Sorry, forgot to add my CFR link.

belshawelk, I have never advocated for trespass or harassing private landowners, unless they view it a harassment to stop their illegal activities on, or damage to, adjoining public lands or to our public resources.

This bill does not affect just private property issues. The bill appears to not be well researched, conflicts with Federal regulations, conflicts between civil/criminal and yet it passed our Senate this way.

Of all these issues with this bill, you chose not to address anything else, distilling a complex issue down to the oversimplified concept of "private property".
 
I think Kat is right about this bill.

I listened to the testimony. The proponent was Chuck Denowh, of UPOM. He also seemed to be the one behind the bill and he said "The bill is really about giving guidance to property owners about what rights they have to exclude others from their airspace." He also said "What this bill comes down to is if you don't have a right to be on the surface you shouldn't be in the air above that surface."

So there you have it, he wants to use this bill to try and claim ownership of airspace up to 500' above ground level (AGL). In fact the sponsor brought up corner crossing when wrapping up (around the 58 minute mark in the audio).

What bothers me is that Denohw used the FAA 500' AGL regulations (FAR 91.119 below) as a basis for where property owners have an interest in the space above the property. The regulations clearly say the rules are about safety (not property rights) and that there are no flight level restrictions over sparsely populated private lands as long as you are 500' from a person, vessel, vehicle, or structure. He is not being forthright in using existing regulations so his whole testimony is suspect.

In a testament to our ironic and small world, Steve White of you-won't believe-this testified against it, noting that the FAA limits UAVs to below 400' AGL, so the law pushes the drones into FAA regulated airspace. It would also affect his business. He said the bill should be changed to prohibit harassing hunters, spying on people etc, rather than a blanket prohibition of flying above private land. I agree.

If this bill passes you would be trespassing if you flew aircraft less than 500 AGL over private land, UNLESS the vehicle was manned. That is the messed up stuff you get when you are really after something else. *

rg

*second irony/small world event. Around the 49 minute mark the esteemed Sen Fielder asked about including manned vehicles in the language, not referring to airplanes, but to personal jet packs, which she felt would be coming soon. The sponsor answered that it hadn't considered, but still left out the fact that airplanes can now legally fly below 500' AGL.

FAR 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, powered parachutes, and weight-shift-control aircraft. If the operation is conducted without hazard to persons or property on the surface -
(1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA; and
(2) A powered parachute or weight-shift-control aircraft may be operated at less than the minimums prescribed in paragraph (c) of this section.
[Doc. No. 18334, 54 FR 34294, Aug. 18, 1989, as amended by Amdt. 91-311, 75 FR 5223, Feb. 1, 2010]
Click to expand...
 
Kat,

my wish is we should not have to have any laws because people should respect private property. But many many do not. I hunt both public and private property. Hard to get access to private property because many users do not respect the owners and leave trash and dangerous or hazardous materials behind, or rip up the ground with going off road. There has to be laws to protect the owners because of this. Nobody should ever be able to tread on someone else's land without permission.

Flying drones are an invasion of privacy plan and simple.
 
belshawelk said:
Flying drones are an invasion of privacy plan and simple.
Click to expand...

Privacy is not what this bill is about - it's about claiming ownership of the airspace 500' AGL - ownership they currently don't have. Steve White requested that the bill be changed to directly address privacy, etc, but that isn't what the sponsor's goal is.
 
Can we revisit the point about Sen. Fielder and personal jetpacks coming soon? Wow.
 
She must be watching reruns of the Jetsons.

How does she keep getting elected?
 
Nunyacreek said:
Can we revisit the point about Sen. Fielder and personal jetpacks coming soon? Wow.
Click to expand...

Yeah, she asked the sponsor if he had considered removing "unmanned" and thought about jetpack technology? Removing "unmanned" is manned aviation, a whole different classification of technology that has its own regulations.

Rob, thanks for mentioning the hearing testimony, I was running errands and forgot to listen to the testimony yesterday morning, so I got to it right after your post, transcribing part of Hinebauch and most of Denowh, who I agree, is the real mover on this bill.

I had to laugh a couple times, as Hinebauch was briefly introducing the bill, he finished by saying, what he assumed were all the proponents in the room would want to speak. There was only 1 proponent, all the others were opponents. Then after everyone spoke, the committee began asking questions and Sen. Sands asked Hinebauch a question, which he could not answer, deferring to Denowh. Denowh (UPOM) really introduced the bill, spoke for about 15 minutes.

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.
Click to expand...

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 discussion.

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...
Click to expand...

After all the opponents spoke, and Steve White was a very knowledgeable person, especially addressing the FAA regulations, pointing 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 asked the sponsor about the amendment suggested by the Motion Picture Association for filming and news gathering, this was 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.
Click to expand...
 
If this is not about a privacy issue than what is it about??? Why not go fly drones over the billions of acres of public land?
 
belshawelk said:
If this is not about a privacy issue than what is it about??? Why not go fly drones over the billions of acres of public land?
Click to expand...

It's about establishing in law that landowners own up to 500 feet above their airspace. I'm thinking Kat has another tiger by the tail here.
 
belshawelk said:
If this is not about a privacy issue than what is it about??? Why not go fly drones over the billions of acres of public land?
Click to expand...
As Ben says this is about asserting ownership of airspace that they don't own. Listen to the testimony. The sponsor even mentions corner crossing (I can visualize Denohw cringing, thinking "Dammit I told you not to say the C words!!") If they were concerned with privacy they would attack those issues directly like other states have (making spying on people, harassing hunters, etc, illegal).

But back at you - if this was about personal privacy why did Denohw use the FAA regulation of 500' minimum safe flying altitude to justify this ownership boundary, but didn't mention that the FAA has no altitude restrictions over sparsely populated areas, which is certainly > 99% of Montana.
 
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, 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.
Click to expand...

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 tied 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 lying 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".
 
Last edited:
Just listened to the audio of the Mar. 8th full senate hearing. Sen. Pomnichowski brought up two very good points.


  • "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. This would prohibit the use of drones and any photography of those public lands.

This could seriously limit drone use on public lands.
 
You must log in or register to reply here.

Similar threads

J
Montana Senate Bill 333 - Create offense of trespass by unmanned aerial vehicle.
2
Replies
38
Views
2K
PrairieHunter
P
Ben Lamb
SB 442 - Habitat and Access
7 8 9
Replies
178
Views
15K
Visiting Hunter
Visiting Hunter
Nameless Range
What Has Montana's Stream Access Law Meant To You?
Replies
13
Views
2K
DP_PublicLands
D
Brad
It's Public Land. But The Public Can't Reach It.
Replies
16
Views
3K
Mussgrass
M
G
Good bill would make blocking access hunter harassment
Replies
4
Views
917
Straight Arrow
Straight Arrow
Use Promo Code Randy for 20% off OutdoorClass

Latest posts

Forum statistics

Threads
111,034
Messages
1,944,420
Members
34,976
Latest member
atlasbranch

Share this page

Back
Top