The FAA’s no-fly zone barred indigenous drone pilots from documenting the NoDAPL struggle, but private security aircraft continued surveillance.
AT THE HEIGHT of the movement to stop the Dakota Access Pipeline’s construction last fall, the Federal Aviation Administration imposed a rare “temporary flight restriction,” also known as a no-fly zone, covering nearly 154 square miles of airspace above the pipeline resistance. The no-fly zone — a response to the activities of indigenous drone pilots, whose aerial videos documenting the struggle at Standing Rock drew large social media followings — was approved from October 25 to November 4 in 2016 and renewed twice to cover a smaller area, remaining in effect until December 13.
Documents obtained via open records requests, as well as material from court cases, reveal new details about how the FAA and state agencies helped police and private security companies wrest control of the airspace above the NoDAPL resistance from indigenous water protectors.
Following the flight ban, the media was no longer permitted to use aircraft to cover the events without undergoing a review process. According to the FAA’s no-fly order, “Only relief aircraft ops under direction of North Dakota Tactical Operations Center [were] authorized in the airspace.” Meanwhile, aircraft operated by Dakota Access Pipeline security officials continued to fly over the area to conduct surveillance. The FAA confirmed to The Intercept that the flights would have been legal only if the private security aircraft were participating in a law enforcement action. Prosecutors have used footage from those flights as evidence in felony cases brought against pipeline opponents, displaying an unusual and troubling partnership between the private security operatives and law enforcement.
As The Intercept has previously reported, pipeline builder Energy Transfer Partners hired the shadowy mercenary firm TigerSwan in September 2016 to oversee its security operation. TigerSwan moved quickly to establish a collaborative relationship with law enforcement. The Intercept received more than 100 leaked documents from a TigerSwan contractor describing those efforts in detail, along with DAPL security’s broader strategy of using aerial surveillance, infiltration, and social media monitoring to counter the water protector movement. TigerSwan, which began as a military and State Department contractor, frequently used the language of counterterrorism to inflate threat assessments, at times comparing the water protectors to jihadi insurgents.
Court documents confirm that DAPL security personnel were coordinating their flights with state agencies. In a police report concerning a highly militarized October 27 police raid during the no-fly period, Lt. Cody Trom of the Bismarck Police Department wrote that a team of officers assigned to clear protesters from a bridge at County Road 134 included a “DAPL air asset.” A spokesperson for the Morton County Sheriff’s Department, one of the agencies leading the police response at Standing Rock, told The Intercept, “DAPL was not deputized.” The spokesperson did confirm, however, that law enforcement personnel were present on DAPL aircraft. “During no-fly zone periods, a law enforcement officer was always on board the helicopter. The helicopter was flown by a private contractor, and a law enforcement officer accompanied him to conduct aerial surveillance.”
As the temporary flight restriction went into effect, at least one DAPL security aircraft circled the airspace above the police raid on October 27, photographing water protectors and coordinating with police.
The DAPL photos from that day have become key evidence in a federal felony case accusing five indigenous men of helping set fire to barricades on North Dakota County Road 134. If convicted, they each face a mandatory minimum sentence of 10 years in prison.
In a January 24 affidavit and in a later court hearing, Special Agent Derek Hill of the Bureau of Alcohol, Tobacco, Firearms and Explosives described how he identified at least two of the defendants, Michael Markus and Brennon Nastacio. “While law enforcement was conducting their operation, a helicopter that was being utilized by the Dakota Access Pipeline was monitoring the situation from the air,” Hill wrote in the affidavit. “A passenger in the helicopter was utilizing a digital camera to document the operation, and these digital photos were provided to law enforcement.”
“From a constitutional standpoint, landowners and others who have property rights have every right to show the police evidence that someone has trespassed on their land,” says Lee Rowland, a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “But if this instead amounted to deputizing a private company to take aerial surveillance of protesters on public property, including streets, and snitch on them to the police, that’s deeply problematic.”
According to water protectors, a DAPL helicopter frequently strayed from Dakota Access property. “The yellow helicopter that we’d identified as being DAPL’s flew to the south of DAPL property lots of times on October 27,” says Dallas Goldtooth of the Indigenous Environmental Network, who often filmed and livestreamed from the water protector camps in North Dakota.
A spokesperson for the North Dakota Department of Emergency Services did not respond to a request for comment. Vicki Granado, a spokesperson for Energy Transfer Partners, told the Intercept, “We are thankful for the professionalism and the services provided by all the law enforcement teams that were on the ground in North Dakota that ensured the safety not only of our employees, but the safety of those who live and work in the Mandan area. Beyond that, we do not comment on our security programs.” TigerSwan did not respond to inquiries.
A spokesperson for the FAA noted, “The Federal Aviation Administration carefully considers requests from law enforcement and other entities before establishing Temporary Flight Restrictions (TFR) in U.S. airspace. The TFR over the pipeline protest was approved to ensure the safety of aircraft in support of law enforcement and the safety of people on the ground.”
The FAA spokesperson noted that the flight restriction offered provisions for media to operate aircraft as long as they complied with FAA rulesaround licensing and safety, and coordinated with the agency before flying. The agency did not respond to questions about how many media operators obtained waivers, stating, “We did not deny any requests from media who met those requirements.” One drone pilot, Rob Levine, eventually obtained a media waiver, but only in a small segment of the restriction zone.
MYRON DEWEY, A videographer who attracted hundreds of thousands of viewers to his series of DAPL-related videos on social media, was among the people whose use of consumer drones to document the anti-DAPL struggle spurred the request for a no-fly zone.“I told the FAA, the difference between how we’re approaching this is that I’m exercising sovereignty,” said Dewey, who is Newe-Numah/Paiute-Shoshone. “I said, ‘If you want to bring up a no-fly zone, you need to go to the tribal council and make your request to them.’”
The no-fly zone came at a moment of heightened tension between police and pipeline opponents, as water protectors, claiming what they called “eminent domain,” built a new camp on land owned by Energy Transfer Partners that would have been covered under the 1851 Treaty of Fort Laramie. Two days after the no-fly zone was imposed, law enforcement and private security officers forcibly evicted the new camp, using military-grade armored personnel carriers and shooting protesters with rubber bullets and other “less-than-lethal” weapons.
Yet even before the no-fly zone, law enforcement had been targeting drone operators. On October 19, Aaron Turgeon, a member of the Rosebud Sioux tribe of South Dakota, was charged with two counts of “reckless endangerment” and one count of “physical obstruction of a government function” for flying his drone in the vicinity of a law enforcement operation. Prosecutors also charged Dewey with misdemeanor “stalking” for flying his drone near a DAPL security guard. Turgeon was eventually found not guilty, and Dewey’s charges were dropped.
Law enforcement went so far as to shoot at a drone belonging to Dean Dedman, a member of the Standing Rock Sioux tribe, in the days leading up to the temporary flight restriction, claiming that the drone was flying too close to a helicopter.
An October 24 law enforcement email obtained by The Intercept shows police and emergency response officials communicating with a representative of the California-based security company Trak Assets, which had offered a demonstration on “drone defense technology” for the police to use in North Dakota. And a “logistics tracking sheet” shows that law enforcement acquired a “drone shoot down device” from the Dakota Zoo to “disable protestor drones” on November 4. The document notes that the device was eventually returned to the zoo.
This wasn’t the first time the FAA had been accused of allowing law enforcement to use flight restrictions to keep out cameras. The agency came under criticism in 2014 when a temporary flight restriction was put in place over protests in Ferguson, Missouri, following the police killing of 18-year-old Michael Brown. In audio recordings obtained by the Associated Press, an FAA manager described how St. Louis police “finally admitted it really was to keep the media out.”Recognizing the “substantial sensitivities” of the issue, officials “at the highest levels” of the FAA weighed in on the decision to institute the no-fly zone at Standing Rock. Internal records show the request generated controversy within the agency. “I know this is a high profile event so I wanted you onboard with my denial. I plan on denying the request based on there being no hazard from the ground to [aircraft], exp: no shots fired,” wrote Kevin George, an air traffic control specialist at the FAA, on October 23. George noted that violations of law by drone pilots would be more appropriately pursued individually by police.
When a request to renew the restriction was submitted in November, FAA officials again expressed hesitation. “Candidly,” an FAA official wrote at the time, “some of the involved tribes are arguing that the FAA’s action to implement a [temporary flight restriction] was driven not by a genuine safety/security threat, but rather by the desire of the local [law enforcement agents] handling the situation to prevent the protesters from using drones to surveil unlawful actions on the part of [law enforcement] that infringe on the protesters’ First Amendment rights.”
“A pattern we have to be very vigilant about in the future is that the FAA tends to just respond in lockstep to requests from law enforcement,” the ACLU’s Rowland told The Intercept. “And we need to ensure that law enforcement does not get used to the perverse incentive of asking for an over-broad no-fly zone that creates a blackout on media surveillance.”
Ultimately, North Dakota law enforcement officers helped sway FAA officials by suggesting that anti-DAPL water protectors would take up arms and consumer drones might cause a fatal accident. “There is also good intel they are going to be even more desperate in their actions,” wrote Sean Johnson of the state’s Department of Emergency Services.
In the same email exchange, Johnson alleged that pilots had intentionally flown their drones toward law enforcement aircraft, and “it is only a matter of time until a law enforcement officer, a lawful protester, or member of the public is injured (or worse yet killed) as a result of unlawful actor usage of UAS.” Highway Patrol officer Shannon Henke added, “We can only pray for the best that a flight crew is not lost due to the violations that keep occurring.” Henke claimed that law enforcement had observed protesters wielding “both long guns and handguns” and stated, “We need to ensure the movement of law enforcement trying to protect the innocent is not being broadcast live by the use of drones.”
In the spring of 2017, as TigerSwan expanded its surveillance effort to new camps in multiple states, the security firm encouraged staff to “focus on becoming Certified Drone Pilots to support the DAPL program,” according to a situation report dated May 5 that was leaked to The Intercept. A day later, TigerSwan confirmed that one of its contractors “completed drone training and has successfully passed the drone operator test” and “is now an official drone operator in the state of SD.”