Published February 27, 2017
Part 6 of 9
No Fly, No See
This is part six of a nine part series will illuminating the FAA’s complacency and the role the FAA’s concession played in the violence against Water Protectors.
The FAA has implemented several no-fly zones or Temporary Flight Restrictions (TFR) over the Water Protector camps, officer staging areas, and surrounding areas for everyone except police aircraft and aircraft supporting police.
No-fly zones include drone aircraft. The TFRs ground all the drone journalists and any media team with traditional aircraft.
Restricting drone journalists from filming in order to prevent filming of police actions is not new to the FAA. A police craft excepted TFR spanning 37 square miles and lasting 12 days was issued over St. Louis, Missouri area after the death of 18 year old Michael Brown explicitly for keeping the media from recording the protests and police behavior.
The FAA records official phone calls. During a conversation between a FAA employee and a FAA Kansas City manager, they explicitly state the reason for the TFR was to limit press from recording over the protest areas.
The FAA manager recounted a conversation with Chris at the St. Louis County Police. The manager said, “They [the police] finally admitted it really was to keep the media out … but they were a little concerned of, obviously, anything else that could be going on.”
Manger later added, “They did not care if you ran commercial traffic through this TFR (temporary flight restriction) all day long. They didn’t want media in there. … There’s no option for a TFR that says, you know, ‘OK, everybody but the media is OK.’”
The laws determining the reasons for a no-fly zone, CFR Chapter 14 § 91.137, are explicit.
91.137 Temporary flight restrictions in the vicinity of disaster/hazard areas.
(a) The Administrator will issue a Notice to Airmen (NOTAM) designating an area within which temporary flight restrictions apply and specifying the hazard or condition requiring their imposition, whenever he determines it is necessary in order to –
(1) Protect persons and property on the surface or in the air from a hazard associated with an incident on the surface;The Notice to Airmen will specify the hazard or condition that requires the imposition of temporary flight restrictions.(b) When a NOTAM has been issued under paragraph (a)(1) of this section, no person may operate an aircraft within the designated area unless that aircraft is participating in the hazard relief activities and is being operated under the direction of the official in charge of on scene emergency response activities.
On October 25, 2016 the FAA issued a no-fly zone over the Standing Rock Water Protector camps from October 25-November 4, 2016 (later ended on November 1) claiming hazard.
The TFR was informally justified by claiming a single drone piloted by journalist Dean Dedman was flying too close to a helicopter (the incident is described in the Drone War section of this article in which Dedman’s drone was shot at by police) on October 23, 2016. However, their official paperwork did not list any drone incursions.
The FAA is required to “specify the hazard or condition that requires the imposition of temporary flight restrictions.” under FAR 91.137.
Its declaration of the TFR stated the reason for the TFR was:
“FOR LAW ENFORCEMENT OPERATION. PURSUANT TO 14 CFR SECTION 91.137(A)(1) TEMPORARY FLIGHT RESTRICTIONS ARE IN EFFECT. ONLY RESPONSE ACFT IN SUPPORT OF THE LAW ENFORCEMENT ACTIVITY UNDER THE DIRECTION OF THE NORTH DAKOTA TACTICAL OPERATION CENTER AND ACFT APPROVED BY ATC IN COORDINATION WITH THE DOMESTIC EVENTS NETWORK ARE AUTHORIZED IN THE AIRSPACE.”
The North Dakota Tactical Operations Center is the law enforcement operations center tasked with overseeing the Water Protector camps and actions. The FAA did not state a hazard and gave authority over the TFR to the law enforcement agencies which asked for the TFR and whose behaviors had been exposed using drones.
No other drone journalists were implicated by law enforcement or the FAA.
Dedman posted his video of the police shooting his drone online later that day and Dedman was identifiable from his posts. Had there been an issue with his piloting, his license could have been revoked and his drone grounded. If the reason was Dedman’s behavior alone, imposing a ban on all journalists would provide no more protection to the public, or law enforcement than did grounding all the media.
As of the day of publication of this article, Dedman’s license has not been revoked for flying dangerously close to police helicopters.
The FAA said, “We put the TFR in place at the request of state, local, and federal officials for law enforcement activities,” according to drone360mag.com.
On October 27, 2016, two days after the issuance of the drone restriction, the police raided the Sacred Ground Camp in the TFR area. The raid area covered more than one square mile including Sacred Ground Camp, Backwater Bridge, the surrounding grazing area, and County Road 134.
Sacred Ground Camp was on disputed territory, the tribe claiming it is their rightful land under the 1851 Treaty, law enforcement claiming it was private property on which the Water Protectors were trespassing. The land is a sacred burial ground, according to members of the Standing Rock Sioux and other surrounding Native American nations.
Hundreds of officers and National Guard spread across acres of land pushed the Water Protectors out of camp coming up Highway 1806 and attempting to come up County Road 134. Police used tasers, tear gas, armored vehicles, helicopters, long range acoustic devices (LRAD), billy clubs, pepper-spray, physical pushing, bean bag guns, concussion grenades, smoke grenades, and rubber bullets to move the Water Protectors out of the camp.
During the raid a DAPL security employee broke through the police and Water Protector lines and drove at a high rate of speed in a ditch toward the other Water Protector camps and was stopped by Water Protectors using a tow truck and conversation.
Private aircraft was allowed in the air as long as they were approved by the police. The Morton County Sheriff’s Department managed the TFR, according to Donnell Preskey Hushka, a spokesperson for the North Dakota Association of Counties.
“Only aircraft flown for law enforcement use are allowed in the TFR and private companies are being utilized and have a law enforcement officer aboard,” said Hushka.
Helicopters from two private companies were documented during the October 25 – November 1 TFR; ABC Helicopters/Brainerd Helicopter Service and Double M Helicopters.
Blue, red and white helicopter with tail number N283BH is registered to ABC Helicopters at the home address of Michelle McDermott – the president of Brainerd Helicopters. The helicopter registered to ABC Helicopters matches the color scheme used by Brainerd Helicopters.
Brainerd’s listed “powerline and pipeline patrols” as a service available on the 2013 version of their website. It also listed Enbridge Energy as a customer.
Enbridge Engergy Partners (EEP) has plans to purchase a major stake in the DAPL, which they affirmed on October 31, 2016.
“We can’t get into the specifics of this, due to the confidential nature of the agreement [between EEP and ETP to buy a major stake in the DAPL], other than to say we remain confident [the conditions] will be met,” said Guy Jarvis, executive vice-president at EEP.
Enbridge denied N283BH was flying on their employ, according to DESMOGblog.com.
“Our planned investment for a minority equity ownership does not include construction or management of the project — that is the responsibility of Energy Transfer,” said Michael Barnes, Senior Manager for U.S. Corporate Communications & Business Communications for EEP.
Desmogblog.com contacted Brainerd Helicopters who stated the helicopter is flown under ABC Helicopters and any relationship between ABC and Brainerd is a private business matter.
A helicopter registered to Double M Helicopters with the tail number N38HH was spotted over head during the TFR with a passenger taking photographs of Water Protectors.
Prosecutors have admitted in open court that DAPL surveillance has is used as evidence in cases against Water Protectors according to Angela Bibens, criminal defense attorney for the Water Protector Legal Collective, the organization coordinating legal efforts for Water Protectors.
Prosecutors contend that Water Protector Michael Marcus was identified using DAPL security aircraft photography from the day of the raid. He is being held without bail.
Mike Fasig, the driver of the tow truck which stopped Kyle Thompson, the DAPL security employee with the AR-15, has been charged with felonies for stopping the gunman. Prosecutors are using footage from the North Dakota Highway Patrol helicopter.
“And because the FAA now has a history of being caught on tape implementing a no-fly zone for the specific purpose of censoring media flights, I’m not sure they’re entitled to an assumption of good faith that this no-fly zone had been put in place for valid reasons,” said Lee Rowland, a Senior Staff Attorney for the American Civil Liberties Union’s Speech, Privacy & Technology Project.
LaRae Meadows is a freelance writer, who has been embedded at Standing Rock.
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