Bad River tribal member Joe Bates said he was piloting his drone and recording video and photos September 25 along the shore of Lake Superior. The photos and video revealed extensive work being done along the shore.
The property in question along Bayfront Road in Sanborn is owned by Scott Bretting, the local landowner who recently proposed building a multi-million-dollar housing development on city-owned land along Beaser Avenue.
Video taken by Bates and the drone show a long stretch of shoreline that has been cleared of all vegetation, with tons of rock rip-rap rock placed along the waterline.
Bates said his intent was to determine if a tribal stop-work order was being obeyed and, if not, to send the photos and video to tribal officials to allow them to take appropriate action.
“I had shot the video and I was basically returning back to where I had taken off from and all of a sudden a single shot rang out,” said Bates, who is a tribal member but does not work for the tribe. “The screen went blank, then you could hear the shot. Then there was a loud, obnoxious belly laugh. The last image that came through was from the drone, upside down on the beach, then it went dead for good.”
When contacted for comment by the Daily Press, Bretting told a reporter not to believe everything he read about the incident on social media, then said, “There’s no story here,” and declined to answer questions about the drone incident.
He later emailed documents saying he had appropriate permits from the U.S. Army Corps of Engineers for the work, and that the project was intended to prevent erosion of the wooded shoreline near his home. The email said permit delays by the Bad River Tribe had allowed erosion to claim 15 feet of land and trees.
Both Bates and Bretting reported the incident to police; Bates first phoned 911 to report the drone shot down, and Bretting called about 50 minutes later, “stating he shot the drone out of the sky as it was invading his privacy,” according to dispatch records.
Ashland County Sheriff’s Department Chief Deputy Brian Zupke said deputies took statements from everyone involved and the department is referring the matter to the district attorney’s office for possible charges against both Bretting and Bates. He said Bretting could be charged with criminal damage to property, and Bates with invasion of privacy — though he was unsure if privacy statutes apply.
Wisconsin privacy law says it is illegal to conduct surveillance of someone in a place in which they can reasonably expect not to be observed. Zupke said it will be up to the district attorney and ultimately perhaps a jury to determine if the area in which Bates was operating his drone — a shoreline — is private.
“Is it a house or was it just land? There can be less expectation of privacy because boats can come across and look at houses,” Zupke said.
Meanwhile, the Sheriff’s Department also has called in the Federal Aviation Administration, and Bates has alerted the FBI, which has some jurisdiction on tribal lands.
Drones are governed by a web of federal and state regulations. Bates is considered a recreational pilot, which means he is required to operate under 400 feet of altitude and to stay away from restricted areas such as airports or military installations. The courts have ruled that “the air is a public highway,” and the FAA’s regulations do not restrict a drone pilot from operating over private property.
FAA Media Relations Officer Emma Duncan told the Daily Press that it’s illegal under federal law to shoot at an aircraft of any sort. Anyone who shoots at an airplane or drone poses a significant safety hazard, she said. An unmanned aircraft hit by gunfire could crash, causing damage to people or property on the ground, or it could collide with other objects in the air.
Anyone who shoots at a drone could face civil penalties from the FAA and criminal charges filed by federal, state or local officials, she said.
Bates said he wasn’t trying to invade anyone’s privacy and was simply checking to be sure tribal regulations were being followed.
“I was right on the edge of the property over the lakeshore,” he said. “Air space is air space. There’s no property lines up in the air. I wasn’t flying over someone’s home. It’s not like I’m looking in anyone’s windows or anything.”
Bates said he and his drone — which cost about $2,000 — are registered with the FAA, which considers him a recreational enthusiast who can fly but cannot be paid for his work.
In fact, he’s proud to be developing a reputation as a thorn in the side of anyone who doesn’t adhere to rules on tribal lands. Earlier in the summer, he flew over work sites of Enbridge Energy contractors where a leak was detected in Line 5.
“In six years of flying I’ve never had any trouble with landowners, until Enbridge didn’t like me watching them,” he said. “I’m one of those who want to protect our tribal homeland. We have what we have here on account of our ancestors who provided that we live here forever without forced removal or taxation. As a tribal member it’s my obligation to also look seven generations ahead, like they did. So I guess, yeah, you could say I’m pretty passionate about this.”
Bates said he hasn’t determined if he will take any legal action of his own.
“For now I’m going to see what happens with the DA,” he said.
