How a Company With Ties to a Dakota Access Pipeline Owner Flew Over Protests in the No Fly Zone

Photo Credit: Richard Bluecloud Casteneda | Greenpeace USA

Cross-Posted from DeSmogBlog

One of the few helicopters authorized to fly within the U.S. Federal Aviation Administration's (FAA) Temporary Flight Restriction (TFR) zone over Dakota Access pipeline protesters in Cannon Ball, North Dakota, has been identified as belonging to ABC Helicopters. According to its website, this company maintained as a customer the company Enbridge, a Dakota Access, LLC minority equity owner.

That portion of its website was removed after DeSmog contacted ABC Helicopters, which appears to fit under the umbrella of a Minnesota and Wisconsin-based company named Brainerd Helicopters. The TFR, initially set for October 26 through November 5, recently ended early after coming under public criticism.*

The temporary no-fly zone was put into place in response to the alleged use of drones around and arrows attempting to shoot down a law enforcement helicopter operating above the Standing Rock encampments, which are protesting the proposed Dakota Access pipeline in North Dakota. 

Image Credit: Brainerd Helicopters

Days after the no-fly zone's termination, a videographer published footage taken by drone showing the Dakota Access pipeline being constructed within the area in which the Obama administration had requested a temporary construction halt.

DeSmog obtained the photograph of the ABC Helicopters–owned chopper from photographer Richard Bluecloud Casteneda, who was shooting photos on the ground at Standing Rock on behalf of Greenpeace USA. That helicopter has an identifying number listed as N283BH, which according to the FAA is owned by ABC Helicopters.

The use of TFRs is authorized under FAA Code 91.137, which has a clause allowing for the use of a TFR to "protect persons and property on the surface or in the air from a hazard associated with an incident on the surface."

But was the "hazard" in this case unwanted airborne media scrutiny? And why was a private company allowed into this airspace when no one else was? What is the background on this company?

We dug for answers to these questions and here's what we found.

Brainerd Helicopters

The registered owner's address for ABC Helicopters matches the home address of Michelle McDermott, who is also the president of Brainerd Helicopters. Until May 20, 2016, the chopper N283BH was registered to Brainerd, according to the website FlightAware.com.

In addition, the plane color for ABC's N283BH matches that of the helicopters advertised on Brainerd's website.

Image Credit: Brainerd Helicopters

On a 2013 version of its website tracked down using internet archives, Brainerd lists "powerline and pipeline patrols" as among the services it provides. The now-removed "customer" section of Brainerd's website also shows a photo taken with employees of the Alliance Pipeline, which carries natural gas obtained via hydraulic fracturing ("fracking"). 

Brainerd company vice president Jeff McDermott denied comment for this story. Michelle McDermott did not respond to a request for comment on why Brainerd took down the "customer" portion of its website, but did respond to a question about the link between ABC and Brainerd.

"[N283BH] is not operated by ABC Helicopters, LLC and is not currently being operated by Brainerd Helicopter Services, Inc," McDermott told DeSmog. "Any relationship between ABC Helicopters and Brainerd Helicopters Services not otherwise disclosed in the public record is a private business matter between the parties."

Enbridge, for its part, denied that N283BH was operating on its behalf within the designated FAA TFR zone.

"Enbridge is not yet an owner in the Bakken Pipeline System, which consists of the Dakota Access LLC (DAPL) and Energy Transfer Crude Oil Company LLC (ETCO)," Michael Barnes, Senior Manager for U.S. Corporate Communications & Business Communications for Enbridge, told DeSmog.

"Our planned investment for a minority equity ownership does not include construction or management of the project — that is the responsibility of Energy Transfer. We are working through closing conditions on our investment and monitoring the situation in North Dakota." 

Donnell Preskey Hushka, a spokeswoman for the North Dakota Association of Counties, said that the Morton County Sheriff's Department served as the law enforcement agency which managed the TFR with assistance from North Dakota Highway Patrol. She also said that every helicopter owned by a private company had a law enforcement official aboard.

"Only aircraft flown for law enforcement use are allowed in the TFR and private companies are being utilized and have a law enforcement officer aboard," said Hushka.

DeSmog previously reported that an aviation adviser for ExxonMobil served as the point of contact for an FAA temporary no-fly zone put in place during a tar sands pipeline spill which took place in Mayflower, Arkansas, in 2013.

Double M

Double M Helicopters is another company which operated a helicopter within the TFR, according a photo given to DeSmog by John Wathen. Wathen works for Friends of Hurricane Creek, which is part of the Waterkeeper Alliance, and he visited and shot photos at Standing Rock. 

That helicopter, N38HH, appears to have someone in it taking photographs of protestors. 

Photo Credit: John L. Wathen

Owner Monte Myers describes himself on the Double M website as a "30 Year veteran of the US Army with overseas deployments to Central America and Afghanistan."

Lee Rowland, a Senior Staff Attorney for the American Civil Liberties Union's Speech, Privacy & Technology Project, expressed concerns over the implications of this helicopter-based surveillance.

"There's no question that, in addition to the chilling of speech that excessive force and the shutdown of media causes, the persistent surveillance of protestors is of deep concern and improper use of the government's search authority, as well," she said. 

Ferguson Redux?

The FAA also issued a 12-day TFR in 2014 as protests simmered in Ferguson, Missouri, in the aftermath of the police shooting of 18-year-old Michael Brown, with those protests serving as the de facto launch of what is now known as the Movement for Black Lives.

The Associated Press (AP) obtained a recording via the Freedom of Information Act (FOIA) of a meeting in which the TFR was decided upon in Ferguson. That recording revealed that the FAA shut down the airspace in Ferguson to avoid media scrutiny of law enforcement's conduct.

In that recording, one FAA official stated that the agency "did not care if you ran commercial traffic through this TFR (temporary flight restriction) all day long. They didn't want media in there."

The circumstances which spawned FAA no-fly zones in Ferguson and Standing Rock show stark parallels. 

"Police said at the time, and again as recently as late Friday to the AP, that they requested the flight restriction in response to shots fired at a police helicopter," wrote AP of Ferguson.

"But police officials confirmed there was no damage to their helicopter and were unable to provide an incident report on the shooting. On the tapes, an FAA manager described the helicopter shooting as unconfirmed 'rumors.'"

Hushka, also the public information officer for the TFR, did not respond to a request for comment on whether an incident report had been generated for the incident spawning the TFR above the Standing Rock camps.

The ACLU's Rowland said she saw parallels between the TFR in the airspace above Ferguson and above Standing Rock. 

"What we saw in Ferguson was unfortunately part of a pattern of suppression of speech and excessive force and unfortunately I think there's a lot of evidence that there's a similar pattern at work at the pipeline protests," she said.

"And because the FAA now has a history of being caught on tape implementing a no-fly zone for the specific purpose of censoring media flights, I'm not sure they're entitled to an assumption of good faith that this no-fly zone had been put in place for valid reasons."

*FAA's website now shows the TFR back in place as of November 4 and running through November 15.