Monday, May 29, 2017

2017 Montana Special Election, House of Representatives

"I don't think there was a winner in this election.
The democrats lost the vote and the republicans got a loser."
~ Antlerradar, Hunt Talk Forum

 2017 Montana Special Election, House of Representatives

They say hindsight is 20/20, but it is not like there weren't signs along the way. It is not like everything was covered in camouflage, so blended in, that you could not see the issues for what they were. In the end, it wasn't a candidate that lost, it is Montana as a whole, regardless of which way the wind blew.

I read an interesting economics article, over a month ago, about zero-sum game theory or economic theory. Bear with me. Imagine a cake, a fixed situation. For someone to "win", get a larger share than another, they have to increase their share by taking some from another, causing them to "lose". In zero-sum, there have to be losers for someone to be a winner. You very much see this in Trump's world view.

As an egalitarian, I do not have a zero-sum world view. I believe in building up the whole that we all can benefit, building up partners.

Disgusted with all the politics, the partisan bs, here are some of my perspectives of this recent Montana election.

As an Independent, I am revolted that I only get two choices - hell, I have over 1500 font files on my computer because I like choices. Yes, I would like other options, like a Theodore Roosevelt type of candidate!

Breaking this down, I was disappointed in the Democratic Party's choice. I had emailed our local Gallatin County Party with my suggestion for Amanda Curtis - she had governmental experience, had already been vetted, had a previous network of supporters that could be activated quickly, and she is extremely passionate for serving the public and very much exhibits accountability (must be something in the Butte water that breeds such passionate advocates), etc. 5 of Gallatin County's votes went to Curtis.

When someone recently asked who the people were that voted for Quist in the primary, I linked to the Democratic County Committee webpage. That is when it hit me, there were not 56 county committees there - I counted - there were only 28, exactly 1/2 of the 56 counties.

When I grew up, my father had a saying, "Don't do a half assed job." Being a graphically minded person, I couldn't figure out as a very young girl, why a phrase would develop with a one cheeked person in relation to labor effort. As I got older and had ag experience, I figured it had to do with a team of asses for labor, the results greater than the two divided.

Now hearing the rumors that the Democratic party was not wholly invested in the election was bad enough, because my philosophy in life is if you go into a situation believing you will fail, you will make decisions to ensure that you do. Not good strategy in my book. But looking at only 1/2 of the 56 counties represented, that does not speak to me that the party of the "people" is invested in the people of Montana when there are only 28 county committees.

And if you don't think that has bearing on elections, take a look at this New York Times Montana county elections map. I was watching their page live that night because it was faster with more parameters than MT Secretary of States website. Anyway, I took a screenshot of the image, blew it up, added the county names in and added a white D to the counties that are listed as having committees. See for yourself, a picture is worth a 1000 words.

So if anyone wants to take an honest look at being the "party of the people", here is your roadmap to correcting this situation.

Now, I was not in Montana back in the day, but I have read about  Montana's Copper Kings, people trying to buy legislative seats and such. This appears to be a revival effort in a number of the last elections - Dark money made Mont. election ugly before assault , with nearly $5.2 million spent as of May 5th. This election made national news not just because of television shooting candidates talking about the Second Amendment, while Gianforte "allegedly" grabbed a reporter for asking a question about the Health Care CBO numbers, body slammed our First Amendment, freedom of the press, to the frickin ground the night before the election. Some voters had voter remorse, having already sent in their ballots, wanting to know if they could change their vote. The Lee Enterprise newspapers, however, in their voter remorse, were able to rescind their endorsements, while the Missoulian included another example of Gianforte's temper when they interviewed him; in a case of too little, too late, this example was not previously published to help give the public a heads up. Gianforte did not publicly apologize to Ben Jacobs, until after he won the election, nor did he apologize for an attempted bullying lawsuit to force FWP to abandon a perpetual public access site easement.

Did Montana win in any way in this special election? I don't think so.

Because even though a candidate won the election, this candidate will have future issues with the press for one of their own being treated criminally. And the sh*t will continue to roll downhill.

As stated by the Helena IR's article, Gianforte may face extra scrutiny from D.C. press after assault charges -

At least one longtime D.C. political analyst believes that Gianforte may also be shunned by the Republican leadership and given less important committee assignments in an effort to avoid tying the Republican party to his personal controversy. James A. Thurber, a distinguished professor of government at American University and the founder of the Center for Congressional and Presidential Studies, said the fact that Speaker of the House Paul Ryan had call on Gianforte to apologize was telling.

'For the Speaker to publicly say, "The gentleman should apologize," something generally doesn’t get to this,' said Thurber, who has written 12 books on American politics. 'Therefore, the party leadership may take him aside and say, "You've got to be a little more civilized in terms of the way you interact with the press." '

Thurber said the controversy could affect Gianforte's stature in Congress.

'People that have been around a long time, when they’re judging who should get certain committee assignments, this doesn’t help (Gianforte). There are things that are unsaid that happen. There will be opportunities that don’t come about (for Gianforte) because of things like this, but he’ll never know it.'

He added said that normally, not many people even know who freshmen members of Congress are.

'To pop out like this among freshmen, especially in a special election, is rare,' Thurber said. 'To be a showboat this early is not good. Usually, nobody even knows who they are. They co-sponsor a few bills, do constituent work and vote with the party.'

Thurber also predicted that Gianforte would suffer politically if he becomes a national punchline, especially if his interaction with Jacobs is parodied by Saturday Night Live, which Thurber said on Friday afternoon would 'probably' happen.

'If he turns into a joke, that’s deadly for a public official,' Thurber said. "

So I would admonish, both the Republican and Democratic parties, to get their act together, for the benefit of MONTANA, and provide decent candidates before the midterm election so that Montana does not continue to be a political embarrassment on the state and national scene. And to the voters, I sure as hell hope that "the people" will demand better representatives than what we have been served of late.

And just to add some food for thought, and because I don't advocate zero-sum game or economic theory - being tired of hearing all the polarized party ad hominem attacks of "libruls" and "trumptards" being out of touch with the people, here are some economic visuals based on the 2016 county votes in the national election (I didn't vote for either of these national candidates) and a paper on our public lands county economics. I believe we can build the whole up, but first, people need to have eyes to see what is currently going on.

I expect that some are not going to want to see or hear this, but the below chart showed the economic output by county, correlated with how the county voted in the 2016 presidential election.
On a national level, less than 500 US counties, liberal by some political standards, are economically carrying more than 2,600 counties.

At a recent Public lands and access meeting I went to in Red Lodge, Mike Haggerty from Headwaters Economics in Bozeman, gave a presentation on western counties economics.Basically, counties with public lands economically do better than counties with smaller amounts and counties with protected public lands do the best. Some of the slides he used are in the following Headwaters paper: Today’s Economy & the Role of Federal Lands.

So those are some of my post election thoughts. We, the people, deserve better; Montana deserves better! 

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Enhancing Montana's Wildlife & Habitat

Thank you,
Kathryn QannaYahu
Bozeman, MT


The Public Trust Doctrine & Montana's Stream Access

Physics - For every action there is an equal and opposite reaction... this is my "equal and opposite" reaction.

Even if you are not from Montana, you need to read this, the applications go beyond our state borders.

For over a year, Rick Berman and Will Coggin (D.C. special interest lobbyists) have been attacking grassroots hunting & angling groups, especially Montanans, labeling them "green decoys". During the 2016 election, I found Montana Supreme Court candidate, Kristen Juras' paper against the public trust doctrine and Montana's Stream Access; PERC (Property and Environment Research Center) put out an oped attacking the Public Trust Doctrine and Montana grassroots hunting & angling groups.  During the 2017 Legislative session, a number of legislators attacked the Public Trust Doctrine, equating it with "a taking", making it sound like a dirty word; Coggin began emailing our legislators attacking the local hunters and anglers that defend our public trust; and certain special interest legislators publicly attacked the grassroots groups attempting to brand them with the slanderous "green decoy" label. Enough was enough. I had to make time to refute all the bullshit.

Despite Juras' belief that Stream Access is a monumental erosion of private property; despite Sen. Jennifer Fielder's "fears" and lack of understanding; the Public Trust Doctrine is not new, it predates our US and Montana Constitutions, and is already in our Montana Constitution. Building on documentation I had been accumulating, I have spent the last couple months on this refutation, to arm the public with the truth about the foundation of the public trust doctrine and our stream access - to change the conversation.

Utilizing my pre-conservation research background, I have woven together this refutation history with endnotes for veracity. Additionally, I set up a webpage to house every piece of documentation involved in PDF for verifying, reading and downloading, including Supreme Court cases and Montana bills that go back to the 1800's.

The history provided illustrates not only the older Public Trust Doctrine foundation, but also examines the present attacks, especially in Montana, by out-of-state dark money interests and local efforts to undermine the Public Trust Doctrine itself, as well as the grassroots hunting/angling conservationists that have long defended the public trust.

To ensure our Montana Stream Access is here to stay, we need to educate and equip ourselves with the Public Trust Doctrine, defending it against private, legislative and judicial attacks; diligently and tirelessly challenge each access violation, in order to preserve our world-class, “Best in the West”, Montana Stream Access, for future generations.

The Public Trust Doctrine & Montana's Stream Access is brought to you for free and is open access for non-commercial use. You may download, view, copy and print and distribute this document as a whole. If you would like to contribute towards the many hours of research and compilation, it would be greatly appreciated, but this is first and foremost a labor of conservation love, to assist in Putting the "Public" Back In "Public Trust".
Click on Cover for the Public Trust Doctrine &
                  Montana's Stream Access report and documentation webpage.

Thank you,

Kathryn QannaYahu

Friday, March 31, 2017

SB 236 Senator Jedediah Hinkle's Washington D.C. Decoy

Who is the real Washington D.C., dark money, decoy here?
Today, on Voices of Montana, Sen. Jennifer Fielder and Sen. Jedediah Hinkle were guests, speaking about SB 236. Towards the end of the first segment, 28:43 mark, Hinkle says,

“Senate Bill 236, I would just to let your listeners know out there, One thing I want to warn everyone of, be careful the emails you get, because there's a lot of Green Decoy groups out there, who are really just shills, they may sound like sportsmen, they may advocate that they are sportsmen...” (the announcer cuts in) “Jedediah, I have been tricked myself. Make sure you go to, check out whose who."

For those that may not know, some of us have been watching and researching a couple of players in this game for years on Hunt Talk - Rick Berman and Will Coggin (transfer federal public lands to states), both from Washington D. C. In fact, their orchestration of slandering and attacking average hunter/angler groups in the western states became so large, as well as their other activities, journalists and organizations began investigating them. There is now a whole website dedicated to exposing Rick Berman's organization and the many fronts he operates on Rick Berman Exposed. SourceWatch also has a wiki page.

“Richard 'Rick' Berman is a longtime Washington, D.C. public relations specialist whose lobbying and consulting firm, Berman and Company, Inc., advocates for special interests and powerful industries. Berman and Co. wages deceptive campaigns against industry foes including labor unions; public-health advocates; and consumer, safety, animal welfare, and environmental groups.”

One of his front group projects is Green Decoys. “Green Decoys is a project of the Center for Organizational Research and Education that claims several sportsmen, hunting, and fishing groups are actually fronts for environmentalists.”

If you go to their Green Decoy site, you will see a video with Montana's Land Tawney on it. Green Decoys wants to fearmonger your support by stating that these hunting/angling groups are green decoy's because they are sportsmen in name only, targeting Backcountry Hunters & Anglers, Trout Unlimited and TRCP. In Montana they target local groups like Montana Sportsmen Alliance, Montana Hunters & Anglers, and Montana Wildlife Federation. In true McCarthyism style they attack any groups grant funding and associations. Hell, they even have me listed on the MSA section. “MSA’s website was designed and is maintained by Kathryn QannaYahu. QannaYahu is a member of Backcountry Hunters & Anglers, a Green Decoy, and the Public Land/Water Access Association, an anti-property rights environmental group.”

Yes, as a public trust advocate, I work with MSA, Helena Hunters & Anglers, quite a number of other grassroots hunting/angling groups in MT; am a BHA, MT Trout Unlimited and PLWA member and am damn proud of it! 

Recently, in a classic psychological projection, one of the bull$h*t green decoy originators, working for Berman from Washington D.C., Will Coggin (public land transfer), who likes to blanket western states with disparaging letters to the editor about our local groups, took to emailing our MT legislators, stating, “There are several groups active in the state who claim to represent sportsmen. But our research points to these groups simply being camouflage for radical environmentalists.”

Here is a screenshot below.


The fact that one of our Montana Senators, Sen. Hinkle has thrown in with the likes of Berman and Coggin, publicly brought up “Green Decoys”, in relation to SB 236, speaks volumes to me, as if I wasn't already convinced to oppose it.

Sen. Hinkle owes the conservation hunters and anglers of Montana an apology!   if you are so inclined to let him know.

SB 236 has little to do with any of us being able to hunt and more about the big corporations funding this nationwide “rights” movement, to guarantee themselves a market and fearmongering based sales. 

Don't be deceived by Hinkle's publicly maligning tactic against a number of Montana's grassroots hunting/angling groups.

See SB 236 for what it is.

Constitutional Amendment
SB 236 - Oppose - Passed the Senate 30 to 20, on the 28th, has a hearing before House Judiciary 4/3. Fielder's Constitutional referendum to safeguard right to hunt, fish, and trap wildlife. Current text. Various suggested text amendments have been proposed, from various sportsmens groups and the Sportsmens Caucus group, but nothing agreed on by all. Which speaks to me, that this bill (or one similar), which affects our Constitution, needs much more work and vetting before going before the legislature in such a rushed manner this year. (reported on 2/15)

Please email opposition to Representatives before 4/3, addresses below.

Legislative call number 444-4800

Senate addresses below

House of Representatives addresses,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

Saturday, March 25, 2017

Thanks for Your Comments. Now, Go Away. HB 651


What is it About “No!” That You Don’t Understand?

On Friday night, the House Natural Resources Committee passed on HB 651 to the House floor for a vote. This bill establishes a position of “Public Lands Advocate” under the State Land Board. The funding for this position comes from a $200,000 appropriation from the General Fund. In addition, 651 amends the Habitat Montana statute (87-1-242) so as to add “…and to secure public access to wildlife habitat” to the responsibilities of the program. In essence, this bill taps Habitat Montana for activities that are not part of the aim of the program, opening it up beyond its dedicated purpose.

To start, Rep. Zack Brown (D- Bozeman) objected to the bill being heard as it violated rules that requires adequate time for public notification between when a bill is introduced and then heard in committee. The bill was introduced on March 23rd and the hearing was the next day. Chairman Cary White (R-Bozeman) thanked Rep. Brown for his comment and then proceeded with the hearing. Additionally, the bill had been put together and pushed through so fast that there was not a fiscal note, the standard official and statutorily-required document that analyzes what the monetary impact the bill would likely be. This also provides basis and insight for discussion, both by the public and legislators. The hearing continued.

Once the hearing began no one appeared in support of the bill, except the bill’s sponsor, Matt Regier (R-Kalispell.) His testimony extolled the need for access to the 1.5 million acres of state lands in Montana. He pled the need to be able to access our land. He said that this bill would be the answer.

Immediately following that, 15 people, representing various conservation groups, state agencies and individuals testified in no uncertain terms against it. Sportsman’s groups, Montana DNRC, Montana Fish, Wildlife and Parks and private citizens all spoke against the bill, objecting to the diversion of Habitat Montana funds for dubious purposes and the redundancy and duplication of establishing yet one more government position with overlapping duties to existing successful programs. It was crystal clear that the supposed beneficiaries of HB 651 were adamant that this was not the ultimate solution.

In his closing, Regier tried valiantly to support his bill. He reiterated the need for access to public land and argued that this bill would solve the problem. Ironically, he stated that the turnaround from the time the bill was introduced to the hearing was insufficient for him to rally together anyone to appear in support of the bill. Hmmm. A nod is as good as a wink…..

Later, during Executive session (the time when committee members discuss bills among themselves, do not take any further testimony and then vote up or a down to passing a bill to the floor) the committee passed House Bill 651. The vote was, with one exception, along party lines, with Rep. Kelly Flynn (R-Townsend) opposing. During committee discussion, Flynn held up a fistful of slips, messages sent him by citizens opposing HB 651. He said, “Look at this! 100S and 100s and 100s more.“ He recognized this bill was not widely supported. Also during that discussion Rep. Wylie Galt (R-Martinsdale) broke into a commentary dissing public hunters, the conservation movement, and FWP concerning Habitat Montana. Why would someone with such fierce contempt for the very people HB 651 was supposed to benefit would then turn around and vote for it?

HB 651 is part of a bigger “package” that Republicans in the legislature announced to make access to public land as a banner of the party. Most every candidate, regardless of political stripe running in last year’s election featured photos of him/her swathed in hunter orange, wrestling a wild trout from a stream or sojourning into the Great Outdoors. The governor’s race was in part framed in issues regarding access to public land. Over a thousand people showed up at the capitol recently to demand that public lands remain in public hands. It's unquestionably an issue whose time has finally come. But HB 651 misses the mark…by a long ways.

Certainly, the most egregious part is the diversion of Habitat Montana funding to another agency and for things afield from its intent. Since its inception, Habitat Montana has been used for a wide range of conservation habitat projects including acquisition, conservation easements and leases. It is nationally-recognized and arguably, the most successful program of its kind anywhere. Many who disapprove of the state owning property have objected to this program and have, over the years tried various means to end, or at very least cripple it. HB 651 is one more transparent shot at that. It’s important to note that although not statutorily required, public access has been a requirement in all acquisitions, leases, agreements and conservation easements that are funded all or in part, by Habitat Montana.

HB 651 establishes an “access advocate” position under the State Land Board, ostensibly to promote existing programs, identify opportunities to increase access and propose projects. However, by definition, this overlaps, duplicates numerous existing programs and efforts of other state agencies. FWP has numerous programs such as Block Management (which since 1985 has opened over 7 million acres of private and public land to free hunting) and Fishing Access Sites (over 300 statewide) which are ongoing in their efforts to open state, federal and private lands and waters to the public. DNRC’s recreational use section along with a dedicated Access Coordinator enables and expands public use of state lands. Each of these agencies have numerous other programs where public access is either a dedicated goal or collateral benefit of their work. The simple fact is that HB 651 comprises just another cog of bureaucracy doing the same thing and is simply not needed. And one only wonders why those who presume to be such strong advocates of reducing government and ending duplication and waste would propose more, rather than less. That, at an additional cost not only to Habitat Montana but now, to the General Fund and at the tune of almost a quarter of a million dollars ($200,000). So what gives guys?

If anything, the legislature should be doing everything it can to help the existing programs be sustainable, encouraging efforts to coordinate work across agency lines and view access in a comprehensive fashion. Access to private land often leads to access to state lands which in many cases leads to access to federal lands. Making these gears mesh better should be our priority and goal- not to further clutter the access landscape.

HB 651 will hit the House floor next week and it is critical that representatives get the message loud and clear that this bill is not worth further consideration. They need to be emailed and called with unequivocal messages to vote down this attempt at raiding Habitat Montana and duplicating other, already successful access efforts. 

by Mike Korn, retired FWP 

Saturday, March 18, 2017

SB 170 Overview by Mike Korn

SB 170

by Mike Korn, pilot and retired MT FWP Deputy Chief of Law Enforcement

SB170 is another in a stream of bills that have come before the legislature during the last few sessions due to the rising popularity and use–recreational/hobby, commercial, government and military –of drones. Most of these bills have been put forth as a means of guarding privacy and the unregulated use of UAV’s for law enforcement. The only Montana law currently on the books regarding the use of UAVs is 46-5-109MCA, Limitations on unmanned aerial vehicles (2013.) The law places restrictions on the admissibility of enforcement evidence gathered through the use of a UAV for criminal prosecution.

Although Montana law speaks to being able to control airspace (67-1-202 MCA, State sovereignty in space) the Federal Aviation Administration has ultimate authority over all things airborne (Title 49 CFR, Subtitle VII, Part A, Subpart 1, Chapter 401§ 40103 Sovereignty and Public Right of Transit.) This establishes the right of a safe, unified and coordinated use of airspace over the United States. Interestingly, FAA regulations exist regarding the use of hobby/model aircraft (Title 14 CFR Chapter I, Subchapter F, Part 101.) These rules were put into place to limit conflicts between model (and rockets) and “real” aircraft operating in the airspace. Because of the huge growth in use of UAV’s and the need to integrate their use into the aviation “airscape”, the FAA developed an entire set of regulations regarding their use. These regulations are found under Title 14 CFR, Chapter I, Subchapter F, Part 107 of the Federal Aviation Regulations, or FAR’s. This new section that was adopted in 2016, and defines UAV’s- now officially referred to as Unmanned Aerial Systems or UAS – and establishes a series of regulations for their use and the qualifications of those who operate them. Generally, they are divided into two classes- commercial and recreational/hobby. Commercial operation requires a “certificate” (pilot’s license) and hobby use does not. Airspace regulations restricting places where UAS can be operated (such as within a stated distance of an airport or airway) are set out as well as a host of other regulations. For hobbyists (non-governmental or non-commercial operators) the regulations limit, among other things, the altitude and proximity to structures that they can be operated:

§107.51 Operating limitations for small unmanned aircraft.

A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system:

(a) The groundspeed of the small unmanned aircraft may not exceed 87 knots (100 miles per hour).
(b) The altitude of the small unmanned aircraft cannot be higher than 400 feet above ground level, unless the small unmanned aircraft:
(1) Is flown within a 400-foot radius of a structure; and
(2) Does not fly higher than 400 feet above the structure's immediate uppermost limit.
(c) The minimum flight visibility, as observed from the location of the control station must be no less than 3 statute miles. For purposes of this section, flight visibility means the average slant distance from the control station at which prominent unlighted objects may be seen and identified by day and prominent lighted objects may be seen and identified by night.

SB 170 has a number of inherent, surface problems. It establishes UAV overflight without landowner permission as an act of trespass (45-6-201 MCA) but with a civil penalty. This would seem to be a mixing of metaphors between civil and criminal acts, providing a pretty vague sense of what such an act really constitutes. It also fails to state who exactly would be the entity or person to pursue the “civil action.” It infers the landowner. But that is unclear. Further, the bill speaks to “damages and injuries” a connection that’s peculiar.

There is a burgeoning UAV industry in Montana. Companies are starting up to accommodate a quickly growing market for use in a wide range of purposes, both commercial and governmental. These businesses should be concerned that this bill conflicts with FAA flight regulations and as such, complicates the legalities involved in both production and use of UAV’s. The FAA strongly urges states to work with them in drafting of UAV laws to ensure that they are synchronized and avoid conflicts. Simply by the contradiction in altitude regulations, it appears that the authors of SB 170 did not take advantage of those resources but rather, chose to include the disclaimer: “…The unmanned aerial vehicle is operated for government or commercial purposes in compliance with authorization granted by the Federal Aviation Administration…” The FAA offers a wide range of legal resources to assist states in drafting such laws. ( 
SB 170 literally extends property boundaries to 500’ above ground of the physical land. By codifying the law under Title 70 of the MCA, it establishes the air above a piece of property as a property right. This harkens back to arcane old English law which established “…For whoever owns the soil, it is theirs up to heaven and down to hell.” This concept has been left far behind with the advent of aircraft, a national airspace system and property case law that defines the limits of ownership. It is an idea embraced only by the most biblical of lay legal scholars.
Landowners should be concerned with SB 170 because as one of its “exceptions” it grants authority to fly over their property without permission to “… a mineral rights owner or the owners ‘lessee off the mineral estate…” In Montana, the surface owner is often not the owner of the minerals beneath the ground. That is an accepted fact and for the mineral owner to inventory or survey their mineral holdings is not uncommon. UAV technology has provided a whole new dimension to the ability to do this and other kinds of work normally undertaken by a person actually being on the ground. Yet, to excuse someone from going on to one’s land to do so without contacting the surface owner grants privilege that most surface landowners would not want. A simple knock on the door or, as in surveyor law, a letter stating intent is the least that should be expected. 
But why should the general public- particularly recreationists- be concerned about SB 170? Because by establishing the airspace above a piece of ground as part and parcel of a property right, it essentially makes “corner-crossing”, the stepping across a piece of private land to go from one piece of public land to another at the intersection of the parcels, illegal. If, the air above a parcel of land is too, private property then to pass through that air to access a piece of public land- without physically landing on privately-held terra firma- would constitute an act of trespass. What SB 170 does is short-circuit and back-door the on-going discussion regarding the legality of corner-crossing, one that is yet to be resolved either by the courts or in the halls of the legislature. It makes that decision without the necessary open public discussion and ultimately, common resolution that the issue demands. Why that fact has never been directly stated by the bill’s sponsors is a fundamental question regarding this bill.

SB 170 is a poorly-crafted and questionable effort, ostensibly to solve problems that we never knew existed and create greater ones that need to be publicly discussed.

3rd Trespass Law Attempt - SB 170

SB 170 Issues
(Corner Crossing applications below)

I have some serious concerns with SB 170, without some major 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.
Archaic 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[s] 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 air space 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."
My concern, reading this bill, is without modifications, this could be used as a step towards air ownership again, applying it  towards stepping across the air space of the 2 diagonal corners of public lands - the 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 and Representatives, 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 - the Supremacy Clause. 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."
  • "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.
  • 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.

An 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.


SB 170 Statements at the Feb. 14th Judiciary Hearing
Corner Crossing

After the sponsor, Sen. Heinbauch briefly introduced the bill, the first and only proponenet to speak (for about 15 minutes), was Chuck Denowh for UPOM, the primary author of this bill.
"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."

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..."
After all the opponents spoke, Steve White, a very knowledgeable person, especially addressing the FAA regulations, pointed 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 members asked the sponsor about the amendment suggested by the Motion Picture Association for filming and news gathering, the sponsor Heinbauch 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." 

So what is with the tree branch air space?

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 for weeks since I first brought up the first trespass bill, 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."
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 tried 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 obfuscating 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"

Please email the legislators opposing SB 170

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