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United States v. McNeal

United States District Court, E.D. California

May 5, 2017

JAMES H. MCNEAL, JR., Defendant.



         On April 24, 2017, the Court held the preliminary examination in this matter on two citations. The first, citation 6372669, charges Mr. McNeal with a violation of 43 C.F.R. 9212.1(f), interfering with firefighters. The second, citation 6373736, charges Mr. McNeal with violation of 43 CFR 8365.1-4(a)(2). For the following reasons, the Court finds there is not probable cause to proceed on either charge.[1]

         I. Evidence presented at the hearing

         On August 27, 2016, in an area near the City of Lake Isabella, the Havilah fire had begun and was raging in earnest. The Court takes judicial notice[2] that this fire was burning near the Cedar fire which caused devastating effects to property and wildlife over nearly 30, 000 acres. The Court takes judicial notice also that the Havilah fire was much smaller, affecting about 341 acres. Part of the Havilah fire was burning on federal lands managed by the Bureau of Land Management.

         By August 27, 2016, Havilah residents had been ordered to evacuate and federal and local law enforcement officers were assisting in that effort. Key to getting residents safely out of the path of the fire, an airplane was being used to drop water on the fire. BLM Field Staff Ranger, Brien Chartier, assisted in the effort to evacuate residents. He testified that at least one time he was forced to drive through a wall of fire to get to a residence that needed to be evacuated and it was only the water drops that allowed some evacuations. In addition, the fire was moving so fast that only the water drops prevented the spread of the fire.[3]

         Ranger Chartier testified that during his evacuation efforts at about 5:48 p.m., he was dispatched to a report that there was a drone flying in the path of the airplane being used to make the water drops. He travelled to the area and located a person, later identified as James McNeal-the defendant in this action-who was holding a small drone.

         McNeal told Chartier that he was trying to obtain video and still photos of the firefighting airplane scooping up water. To do so, he flew the drone above and below the aircraft. Mr. McNeal was cooperative with Ranger Chartier and allowed him to view the video taken by the drone and to view the data maintained by the drone related to its operation. Chartier was familiar with of the operations of drones, given he owned and operated one, and was able to view the operational data in an app called The app used the data downloaded from the drone and created tables detailing the flight and flight path of the drone. According to the data, Mr. McNeal operated the drone for about two minutes at over 400 feet but otherwise the drone flew below this level. The drone had been in the air about 18.5 minutes. Mr. McNeal flew the drone on a path, generally, over his own home, over the homes of his neighbors to the south, over a street and the homes of neighbors to the west and northwest and over a street and over properties to the north. It is undisputed that he did not fly over federal lands at any time during the 18 minute flight.

         Ranger Chartier testified that Mr. McNeal told him that he had registered his drone with the FAA. To do this, the owner is obligated to agree to certain “guidelines” which, if not complied with, could subject the owner to criminal and civil penalties. One of the guidelines limits the operation of drones to below 400 feet and prohibits operating drones such to interfere with emergency personnel and equipment.

         As a consequence of the drone's flight which, it turns out, was in the direct path of the firefighting aircraft, the plane was forced to divert around the City of Lake Isabella and take a longer route to where the water was needed to be dropped. This caused delays in dropping the water and resulted in fewer drops due to the need to refuel more often.

         II. The charges

         The government has brought two charges against Mr. McNeal. In the first, Mr. McNeal is alleged to have violated 43 C.F.R § 9212.1(f) and in the second, he is charged with violating 43 C.F.R. § 8365.1-4(a)(2). The government is obligated to prove that Mr. McNeal acted knowingly and willfully as to both of these charges. United States v. Freeman, 42 F.3d 1403 (9th Cir. 1994).

         As to the first citation, the Court finds that there was sufficient evidence presented that Mr. McNeal interfered with firefighting equipment. The evidence demonstrated that Mr. McNeal purposefully flew his drone into the path of the firefighting aircraft. Though there is no evidence that he intended to impede the progress of that airplane, he intentionally flew the drone above and below the firefighting airplane because he wished to obtain photos of the airplane scooping up water. As a consequence, the airplane was forced to divert and was impeded in its firefighting efforts. This is sufficient to demonstrate Mr. McNeal acted willfully and knowingly. As to the second citation and based upon this same evidence, the Court concludes that there is sufficient evidence that operating the drone in this fashion created a nuisance.

         The question remains, however, whether Mr. McNeal's conduct may be addressed by the regulations under which he was cited. As a preliminary matter, clearly, the government has the authority to regulate conduct on adjacent property for the protection of the public land and those using it. Indeed, the Property Clause of the United States Constitution reads in pertinent part, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . U.S. Const. Art. IV, § 3, cl. 2. Whether the government chooses to exercise this authority is a different matter.

         In United States v. Alford[4], 274 U.S. 264, 267 (1927), which interpreted a statute-which is the current 18 USC § 1856[5]-to not require the wrongful ...

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