Drone Pilot Files Lawsuit Against North Carolina Board of Surveyors After It Threatens Him with Jail Time, Fines for Taking Aerial Photos


Zacc Dukowitz
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Should commercial drone pilots obtain a surveyor’s license to sell aerial photos and videos of a piece of property?

This question is at the heart of a lawsuit recently filed in North Carolina. And the outcome could have big implications about the future of commercial drone operations not just there, but throughout the U.S.

The trouble started in late 2018, when commercial drone pilot Michael Jones received a letter from North Carolina’s Board of Examiners for Engineers and Surveyors.

nc-drones-michael-jones-lawsuit.jpg

A picture of Jones taken while flying

The letter warned him that the commercial drone work he did was illegal because it constituted surveying without a license. The Board demanded that he stop immediately.

Jones had been careful to say on his website and in other marketing materials that his aerial shots did not establish property lines and couldn’t be used for legal surveying needs because he was not a licensed surveyor.

Read today's post to learn more about what Jones did next and the First Amendment lawsuit he's filed against the Board.

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While this is not as bad as that racist law in Georgia, it IS an infringement upon the rights of us drone operators to try to stop us  from assisting real estate agents in selling their listings.  I specialize in this type of drone photography and it's bad enough that we have to take that stupid Part 107 test for $150 every two years (e.g., why do we need to know what the markings on airport runways mean when we can't fly with 5 miles of an airport?  Duh!).  This ruling could determine whether those of us who are licensed to take drone photos for commercial use (at a great cost in time and money to study for and take their silly test) will be able to continue to make money for our services.  Another case of stupid government overreach.  It will merely encourage more "recreational" use for real estate photography instead of drone use by licensed pilots...

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If the drone operator is providing a ground surface file which elevation contours can be derived from, the operator should be a licensed drone pilot (FAA Part 107) and a licensed surveyor in most states. 

If you are just taking photos for Real Estate presentations, you should be FAA Part 107 licensed but should not need to be a licensed surveyor.

I am a FAA Part 107 pilot and a licensed surveyor in many states, including Michigan. I don't make up the rules but must abide by them. The creation of ground surface files using a drone is not a simple matter and when done incorrectly can have costly impacts to the client, adjacent land owners and the general public.

I believe the rules need to be clarified to make a distinction between Drone surveying applications and Drone photography. 

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The interesting parallel I thought of was the Xray I had taken this week. That photograph was taken by someone unqualified to render a decision or diagnosis. She was only there to collect data for the expert. When I am actually surveying or measuring anything? And what about photos from the ground of a building? How is THAT different?

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Acquiring imagery is not land surveying.  It can be definitely a useful part, but it is not conducting a licensed survey.

My drone flights are conducted with the objective of doing photogrammetry i.e. precision aerial photography.  I know of no state licensure program for a photogrammatrist.  Even if I collate all the spatial data and generate maps, it is not surveying.

Greg V. makes a very salient point that an x-ray technician is not a radiologist and has no business practicing medicine.  But, guaranteed, the radiologist can't effectively do their jobs without an image technician.  Moreover, having worked with many land surveyors over the years, no state-licensed surveyor would be able to do their work without the instrument person, rod person, and note-taker, that is, the field crew acquiring the data.  Do they all have to have a surveyor's license?

With all due respect to my many friends in The Old North State, this sounds like government over-reach in a state that is decidely against government over-reach.

I hope Mr. Jones succeeds decisively.

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2 hours ago, snowshoesurveyor said:

If the drone operator is providing a ground surface file which elevation contours can be derived from, the operator should be a licensed drone pilot (FAA Part 107) and a licensed surveyor in most states. 

 

Even providing surface files from which any spatial data can be derived is not land surveying.  Plenty of publicly available data from the USGS, online, for example.

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4 hours ago, Bob Dumon said:

While this is not as bad as that racist law in Georgia, 

Seriously!?  Have you ever heard the expression “you never have a second chance to make a good first impression?”  

3 hours ago, snowshoesurveyor said:

If the drone operator is providing a ground surface file which elevation contours can be derived from, the operator should be a licensed drone pilot (FAA Part 107) and a licensed surveyor in most states. 

The trouble is the surveying standards committee is conflating the use of a tool, in this case a drone with the chain of evidence required to certify the accuracy of a survey.  The act of collecting the aerial data and post processing it through an application like Pix4D does not constitute a survey.  That process can be certified but it requires a licensed surveyor to provide the chain of evidence for the ground control points.   

There are other uses for aerial data other than surveying.  The Game of Thrones used a lot of photogrammetry for scene construction. 

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VictorBravo77

Regarding the my field crew, I, as a licensed professional, am responsible for the actions, measurements and training of those people. They do there work under my direct supervision. If something is wrong, I am the responsible party and risk losing my license to practice.

The x-ray technician is likely certified for the work that they do and is likely doing that work under the supervision of  licensed professional who would be responsible for the x-ray technicians work.

I think you all mis-understand, I agree that there is large amount of drone photography that should not be regulated by the  Land Surveying Board, such as real estate photography. The problem arises in the area of mapping of the land, in particular for the determining contours, This is a gray area in the law.

If you read the law regarding the areas surveyors allowed to practice in, you will see that mapping land falls within their realm. This is not just in Michigan by the way.

But, I also understand that Google Earth is also used for mapping purposes. I'm pretty sure surveyors were involved with USGS mapping.

 

So my suggestion is, that if you want to do mapping work, get a good relationship with a licensed surveyor.

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40 minutes ago, snowshoesurveyor said:

VictorBravo77

Regarding the my field crew, I, as a licensed professional, am responsible for the actions, measurements and training of those people. They do there work under my direct supervision. If something is wrong, I am the responsible party and risk losing my license to practice.

The x-ray technician is likely certified for the work that they do and is likely doing that work under the supervision of  licensed professional who would be responsible for the x-ray technicians work.

I think you all mis-understand, I agree that there is large amount of drone photography that should not be regulated by the  Land Surveying Board, such as real estate photography. The problem arises in the area of mapping of the land, in particular for the determining contours, This is a gray area in the law.

If you read the law regarding the areas surveyors allowed to practice in, you will see that mapping land falls within their realm. This is not just in Michigan by the way.

But, I also understand that Google Earth is also used for mapping purposes. I'm pretty sure surveyors were involved with USGS mapping.

 

So my suggestion is, that if you want to do mapping work, get a good relationship with a licensed surveyor.

Yes, I concur with what you say.  I have productively worked with many surveyors who spend inordinate amounts of time chasing title and metes-and-bounds descriptions.

But, any good public university offers coursework in how to build maps and maybe has a department of Geography.  I don't think it is a simple matter at all and I hope you won't take issue with my comment.

I think Av8Chuck is right.  Maybe that's why my prices are so high :)

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Any judgment arising from this suit could have an impact worldwide on many jurisdiction's definition of what constitutes formal surveying, as performed by a licensed person, and a UAV pilot gathering "supporting" information on behalf of a "willing" agent. The UAV pilot's skill as well as the quality of the photographs obtained, while obviously important, would generally only make up a single tool in a much wider armoury of informational tools an agent might utilise; as in forensic analysis, as in the management of an industrial activity, as in the protection of critical infrastructure. Perhaps a counter argument might be put forward; where a licensed surveyor wishes to take any sort of image in pursuit of his or her surveying task, they must also hold formal photographic qualifications!

It would seem on the face of it, the Surveyor Board's notice to cease and desist is more about 'patch protection' than a recognition even the profession and the methods of surveying has moved on somewhat since construction of the Great Wall of China, the Egyptian Pyramids and Aztec Temples

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From a public safety perspective I am curious to see if state Boards will be suing law enforcement agencies and fire departments in the future for creating orthomosaic imagery and point clouds for their investigations. They are not commercial agencies and they are not selling their ‘products’ to anyone nor are they using the data to determine boundries or contour lines. 

From a commercial perspective, as long as the entity makes it clear that their product is not for use in boundry determinations or other legal actions that licenesed surveyors are required for then this is a clear overreach of a Board that likely received complaints from active surveyors in this area.  A licensed pilot who goes through the trouble of getting their license and runs a business is still subject to all rules and penalties if they are not doing things properly. If they provide a product to a customer and it is used improperly — they are responsible for any consequences of that. If DSPs are sued because they represented a deliverable as a ‘legal’ and precise representation of certain boundries without the help of an actual surveyor then that is their mess to deal with. Other DSPs that are creating deliverables that have nothing to do with surveying need to be left alone otherwise.

If DSPs are creating point clouds to measure volumes at a mining site — licensed surveyor needed? If a property owner simply wants contour information of their own property without respect to legal boundries — licensed surveyor needed? If construction companies are using drones in their progress updates and project tracking (BIM) - licensed surveyor needed?

 

Further info — an example state statute from Nebraska definitions:

  1. Land surveying means the establishment or reestablishment of corners and boundaries and the location of lots, parcels, tracts, or divisions of land, which may include distance, direction, elevation, and acreage, and the correct determination and description of lots, parcels, tracts, or divisions of land for, but not limited to, any of the following purposes:
    1. To furnish a legal description of any tract of land to be used in the preparation of deeds of conveyance when the description is not the same as the one in the deed of conveyance to the current owner or when bearings, distances, or measurements are needed to properly describe the tract being conveyed;
    2. To furnish a legal description of any land surveyed to be used in the platting or subdividing of the land;
    3. To determine the amount of acreage contained in any land surveyed; or
    4. To furnish a topographic plat of a lot, parcel, tract, or division of land and locating natural and artificial features in the air, on the surface or subsurface of the earth, and on the beds or surface of bodies of water for the purpose of establishing the facts of size, area, shape, topography, and orientation of improved or unimproved real property and appurtenances to the real property.

https://nbels.nebraska.gov/statutes.html

Notice the wording is all about ‘legal descriptions’ of corners, boundries, parcels, tracts, etc. and establishing ‘[legal] facts of size, area, shape, topography...’ etc. to the ‘real property’. Since drone operators cannot provide legal descriptions of these things then their deliverables should not be represented as such, but should not be absolutely barred from creating similar products that don’t represent to be ‘legal descriptions’, but are simply illustrations and representations of a property — free speech or not.

Edited by ChrisM
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This is very much like what Sen. Lee of Utah is attempting to do....making it impossible for us that have gone thru the efforts to obtain a Part 107 Cert and are trying to earn a living doing something we have a passion for.  

What's truly disturbing about the N.C. issue is government overreach by an agency that hasn't got a clue what they are talking about.

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On 4/3/2021 at 7:41 PM, ChrisM said:

https://nbels.nebraska.gov/statutes.html

Notice the wording is all about ‘legal descriptions’ of corners, boundries, parcels, tracts, etc. and establishing ‘[legal] facts of size, area, shape, topography...’ etc. to the ‘real property’. Since drone operators cannot provide legal descriptions of these things then their deliverables should not be represented as such, but should not be absolutely barred from creating similar products that don’t represent to be ‘legal descriptions’, but are simply illustrations and representations of a property — free speech or not.

Texas Earthwork companies do surveys all the time to give to clients to prove that their work conforms to the clients design.  The difference is as you have laid out, those surveys are just a topo, and not listing out corners or boundaries.  

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I am a licensed surveyor in three states, and a Part 107 drone pilot.  I read the article and what seems to be their main point in their complaint is Board is not allowing Competition.  The Board is established to Protect the Consumers of the end product by ensuring the people producing it know what they are doing.  You can split hairs in the legalize all you like but that is the intent.

Its seems to me its similar to buying your own prescription pad writing some information on it and sign your name. There is nothing wrong with doing that for your own amusement but you just can't pass it off as something its not and bring it to the pharmacy to be filled, that's a crime.

Sounds to me like sour grapes.  You buy a drone and your automatically a professional photographer and mapper?  Where was the outrage when the FAA told you that you have to be licensed to fly it, why isn't that also limiting competition? 

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24 minutes ago, Muddychief said:

The Board is established to Protect the Consumers of the end product by ensuring the people producing it know what they are doing.  You can split hairs in the legalize all you like but that is the intent.

I think that is the question. What IS the end product? What is the client asking for? If what they are asking for has no reason to be done by a licensed surveyor (per state statutues) then why would a surveying Board be limiting ALL 'mapping' with a drone if what was being done or provided to the client was NOT represented as being a legal survey (for the purposes of corners, boundries, etc). IF the client expected legally binding survey data and the DSP provided that to them without being licensed, then the Board should get involved, but not before. No different than a plumber or electrician that represents themselves as being 'certified, licensed, bonded and insured' when they are in fact, not. If they do work that causes damage, harm etc. they alone are responsible for that -- regardless if someone required them to be licensed, bonded and insured ahead of time. The difference in this analogy is that the 'work' of an unlicensed plumber or electrician is still doing plumbing and electrical work -- what they are hired to do. With the drone being the tool that is used by the pilot to create 'maps' (of any kind), the difference lies in what the client is expecting in return -- data that can be used in legal circles, or data simply for the client's own use, which, any licensed 107 pilot should be able to provide to them.

And no, buying a drone and getting a 107 license does not make you a professional anything. That is something that a business owner must build over time with their clients and the quality of their deliverables. Even being 107 AND a licensed surveyor at the same time does not automatically make you a 'professional' licensed UAV surveyor. Your clients ultimately determine the quality and validity of your work over time even after a Board or other authority blesses you as being 'allowed' to do so. A licensed UAV pilot Board certified surveyor can still provide inaccurate, substandard data to a client -- and then be dealt with by any ruling authority after the fact, which, doesn't provide any greater protection to the client to begin with.

There can definitely be a middle ground found here. But, it can't start with blanket restrictions on ALL mapping by ANY pilots.

Edited by ChrisM
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You can complain about how its unfair and why can't I do what I want, and how government can't tell me what to do, all you want, even argue taking pictures is free speech (I think that's their #2 argument).

BUT Its simple you have three choices:

1. Stop violating the law
2. Change the law
3. Obtain a Land Surveyors' License.

(mic drop)

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7 minutes ago, Muddychief said:

(mic drop)

That's very professional, so thank you.

  1. What law is being violated in your professional opinion?
  2. If there is no law being violated what needs to change?
  3. Why would one get a Land Surveyor's License if they were not providing land surveying?

Any posts here are just for presenting information. There is no animosity towards other users I wouldn't think. Please don't take any arguments from non-licensed surveyor's that are drone pilots as an attack on you or your product. Simple questions are being asked to come to a reasonable resolution in this new industry. That's how growth happens. For those that have gone through the process to get a 107 license -- they are willing to follow the rules to 'fly/operate" the drone and now are just using it as a tool to provide services that don't require a survey license because they are not providing survey data to their clients.

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11 minutes ago, Muddychief said:

1. Stop violating the law
2. Change the law
3. Obtain a Land Surveyors' License.

What law? 

Where does some standard committee get off telling people that if you shoot aerial with a drone, using a GPS and then stitch together a mosaic of the images that qualifies as a survey?  They have no right to tell anyone any such thing.  They can tell them they aren't authorized to sell the resulting product as a survey but that's it.  

Also, I don't see it the same way you do.  I don't think the lawsuit is about complaining about what's unfair, its pointing out the overreach of the Board of Supervisors to protect once class of worker versus another.    

1 hour ago, Muddychief said:

Where was the outrage when the FAA told you that you have to be licensed to fly it, why isn't that also limiting competition? 

Where were you?  That outrage that apparently you weren't aware of is what led to Rule107.  Prior to that you had to have a 333 exemption and were required to have a pilot's license and the FAA was pushing the requirement of having a commercial pilot's license.    

This isn't the first or the last of this type of lawsuit. All of the lawsuits regarding this issue have ended the same way, the board of supervisors and standards committees have lost.  You might want to be careful where you drop that mic.    

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22 minutes ago, Av8Chuck said:

Where does some standard committee get off telling people that if you shoot aerial with a drone, using a GPS and then stitch together a mosaic of the images that qualifies as a survey?

That's hilarious. Thank you for that.

The Board of Registration of Engineers and Land Surveyors IS the authority that defines what Surveying is. So they are the authority on what is and is not a survey.

Like I said earlier, It sounds like sour grapes, if you want to by a drone and then provide work products that require a license, get the license, or change the law.  Suing the board for not allowing competition is comical on its face, and the argument that their work product is Free Speech is almost more ridiculous.

I could say... where does some standard committee get off telling people that if I drive a car I am somehow required to be licensed? I am perfectly able to drive and don't need big government stopping me.

Sounds to me like the person in the article is trying to do just that, change the law.  I just would not have thought to get a lawyer and sue the board for a wild charge, I would have contacted the board directly.

 

 

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 Hmmmmmmm.  So if I take a panoramic photo on my iPhone that stitches it together in photogrammetry and the metadata from the GPS in the phone is embedded in the photo, then it can't be sold?  What is the difference from drone photogrammetry?

What about Zillow importing KML municiple GIS files for their property boundaries into the Zillow app and displaying it on a google map engine?  Is Zillow then surveying since the are projecting property boundaries on a map?

Mapping a golf course and using the GPS metadata to compute basic surface area measurements to calculate the amount of fertilizer to apply per square foot is surveying?  It is no difference from measuring it with a GPS on the ground. 

Farmers having GPS apps on their tractor to do precision row cropping on their property is surveying? 

This is nothing more than a government board protecting their turf since drones are taking some of their low hanging survey type fruit.  This pilot had clear disclaimers that he does not do legal survey operations unless reviewed by a surveyor.

Instead of bullying, they need to bring the drone operators and surveyors into technical forums to discuss what drones can and can't do and needs to be moderated by both surveyors and drone professionals.

I predict the plaintiff will prevail in this case and the board of surveyors will regret the drone case law that was created.

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Folks,

As I stated before, I believe that the rules need to be clarified to determine what is surveying when it comes to drone photography. The problem comes when unlicensed people perform drone photography that is used for the purpose of creating a contour map which is used for land development purposes.

This work has potential impacts on the general public and main duty of the professional boards of licensing is to protect the public. One of the uses of these maps is to show storm water drainage so that the drainage does not impact neighboring parcels anymore than which already naturally occuring.

An inaccurate map can lead designers to make poor decisions, which can have undesired consequences on the neighbors. Does licensing prevent inaccurate maps, no but the likelyhood is lessened and you have a license that can be revoked.

I have no issue with drone photography being used for most other purposes and would not report the activity to a licensing board. However, if you are going to make a map with contours for developments, I definitely would report the activity to the licensing board.

I would recommennd that if you are interested in doing that type of work, find a local surveyor to work with. You will find we are not such bad folks.

 

 

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On 4/3/2021 at 11:51 AM, snowshoesurveyor said:

Regarding the my field crew, I, as a licensed professional, am responsible for the actions, measurements and training of those people. They do there work under my direct supervision. If something is wrong, I am the responsible party and risk losing my license to practice.

I have provided topographical data derived by means of photogrammetry to licensed surveyors.  I am not a licensed surveyor myself and I was not under the surveyor's direct supervision.

However, the photogrammetry was referenced to ground control placed by the surveyor and they used means of checkpoints to proof the data that I provided in order to use it in their work.

I'm curious what you think of this scenario?

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I do not see a problem. By using the data they are responsible which is likely why they checked the control points.

The problem with the original scenario, is that  we do not know the back story. It seems to me there must of been something that happened that triggered a complaint. Then after an investigation a letter is sent.  That is the missing information that is vital to making a judgement.

We all need to be able to make a living doing what we love to do. But there are rules and limits that need to be adhered to. In the case of drone photography/surveying, the rules need better definition or we need to understand there will be these types of issues. Understand that in many state,  a land surveyor has spent at least 4 years of schooling for a Bachelor of Science degree and another 4 years minimum of field training to be able sit for a Land Surveyor's exam of which there are two National exams and a state specific exam.

So understand, we may be a picky about folks that have not gone thru the process picking off the "low fruit". Just saying

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25 minutes ago, snowshoesurveyor said:

So understand, we may be a picky about folks that have not gone thru the process picking off the "low fruit". Just saying

Snowshoesurveyor, don't get me wrong.  I totally respect licensed professional engineers, surveyors, etc. and understand the concerns about using data incorrectly.  It can be a safety or a legal issue.  But every state has different survey laws and boards and we all know each can have differing levels of opinions at those levels depending on state and local issues and even political or business influences.  It would be better if both service industries came together to establish national guidelines vs taking the issues to the courts where you can lose all control.  I totally think this will come down to what is the data being used for?  If it is for engineer or legal boundary or perhaps environmental issue, then yes.  If data is for general progress or site change data not used for those purposes, then no.  Stitching all photos together does not necessarily make a survey or mapping if not intended for those purposes. 

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