United States District Court, E.D. California
ORDER DISMISSING THE CASE/CITATIONS BASED UPON A LACK
OF PROBABLE CAUSE
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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.
Evidence presented at the hearing
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 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
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.
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.
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 Healthydrones.com. 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.
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.
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.
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).
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
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.
United States v. Alford, 274 U.S. 264, 267 (1927),
which interpreted a statute-which is the current 18 USC
§ 1856-to not require the wrongful ...