Kentucky

(information last updated January 2019)

Ongoing Projects:

State Project(s):

The Kentucky Department of Environmental Protection (“DEP”) runs a volunteer water quality monitoring program: Kentucky Water Watch.  See Kentucky Water Watch, Ky. Dep’t for Envtl. Protection, http://water.ky.gov/ww/Pages/default.aspx (last visited Feb. 7, 2019).  

 

The DEP supports the Kentucky River Watershed Watch, a non-profit water quality monitoring organization.  See Supporters, Ky. River Watershed Watch, http://www.uky.edu/krww/content/supporters (last visited Feb. 7, 2019).

 

Collection of Information:

Ag-Gag Law:

“(3) A person commits an offense if, without the effective consent of the owner and with the intent to disrupt or damage the enterprise conducted at the animal facility, the person enters an animal facility, not then open to the public, with the intent to commit an act prohibited by this section, remains concealed, with the intent to commit an act prohibited by this section, in an animal facility, or enters an animal facility and commits or attempts to commit an act prohibited by this section.

 

(4) A person commits an offense if, without the effective consent of the owner and with the intent to disrupt or damage the enterprise conducted at the animal facility, the person enters or remains on an animal facility, and the person had notice that the entry was forbidden, or received notice to depart but failed to do so.”  Ky. Rev. Stat. § 437.420.

 

Violators are “subject to a fine of not more than five thousand dollars ($5,000) or imprison[ment] for not less than six (6) months but not more than one (1) year, or both, for each violation.”  Id. § 437.429(1).

 

“Animal facility” means “any vehicle, building, structure, or premises, where an animal or animal records are kept, handled, housed, exhibited, bred, or offered for sale” Id. § 437.410(2).

 

Scientific Collection Permit: 

“The Scientific and Educational Collecting Permit authorizes the collecting and holding, even temporarily of wildlife for zoological, educational or scientific purposes.” Scientific and Educational Collecting, Ky. Dep’t of Fish & Wildlife Resources, https://fw.ky.gov/Wildlife/Pages/Scientific-and-Educational-Collecting.aspx (last visited Feb. 7, 2019); see also Ky. Rev. Stat. § 148.029(3); id. § 433.877(1); 301 Ky. Admin. Regs. 4:070.

 

 

Trespass Laws:

Criminal Liability for Trespass Despite Lack of Notice:

No. Third degree criminal trespass requires that a person “knowingly enters or remains unlawfully in or upon premises.”  Ky. Rev. Stat. § 511.080(1) (emphasis added). “A person who enters or remains upon unimproved and apparently unused land which is neither fenced nor otherwise enclosed does not commit criminal trespass unless notice against trespass is personally communicated to him by the owner of the land or some other authorized person or unless notice is given by posting in a conspicuous manner.” Id. § 511.090(4). 

 

If “notice against trespass is given by fencing or other enclosure,” entry upon such property constitutes trespass in the second degree.  Id. § 511.070(1).

Criminal trespass in the second degree is a Class B misdemeanor.  Id. § 511.070(2).

Other Provisions:

See infra “Critical Infrastructure Laws.”

Drone Laws:

Surveillance Law:

“(3) Any recreational user may operate an unmanned aircraft system within this state, in compliance with 14 C.F.R. pt. 101.  

(4) Any institution of higher education, or school district, may use an unmanned aircraft system for educational, research, or testing purposes….

(8) No evidence obtained or collected as the result of the use of an unmanned aircraft system shall be admissible as evidence in any civil, criminal, or administrative proceeding within this state for the purpose of enforcing state or local law, except for:

  1. Evidence collected as permitted by subsections (2) to (6) of this section; or
  2. Evidence which is offered against the owner or operator of an unmanned aircraft system to show misconduct….

(10) Operation of an unmanned aircraft system in violation of subsection (2) or (3) of this section shall be a violation for the first offense and a Class B misdemeanor for the second or subsequent offense.” Ky. Rev. Stat. § 500.130.

State Parks:

A permit is required to fly drones in Kentucky State Parks. See Question: Can I fly a drone over a Kentucky State Park?FAQ, Ky. State Parks, https://parks.ky.gov/FAQ.html (last visited Feb. 7, 2019).

Other Provisions:

See infra “Critical Infrastructure Laws.”

Critical Infrastructure Laws:

Trespass by Person:

“A person commits the offense of trespass upon key infrastructure assets if he or she knowingly enters or remains unlawfully in or upon real property on which key infrastructure assets are located.” Ky. Rev. Stat. § 511.100(2)(a).

 

Trespass upon key infrastructure assets is a Class B misdemeanor for the first offense. Id. § 511.100(3).

 

“Key infrastructure assets” include, but are not limited to: (1) any critical node of a system used in the production or generation of electrical energy; (2) a petroleum refinery; (3) a rubber or hazardous chemical manufacturing facility; (4) a petroleum or hazardous chemical storage facility or terminal; (5) natural gas processing, fractionation, stabilization, and compressor station facilities, as well as above-ground pipelines and related facilities; and (6) a drinking water collection, treatment, or storage facility. Id. § 511.100(1)(a).

Trespass by Drone:

“A person commits the offense of trespass upon key infrastructure assets if he or she knowingly uses, or retains or authorizes a person to use, an unmanned aircraft system to fly above real property on which key infrastructure assets are located with the intent to cause harm or damage to or conduct surveillance of the key infrastructure asset without the prior consent of the owner, tenant, or lessee of the real property.” Ky. Rev. Stat. § 511.100(2)(b). 

 

Trespass upon key infrastructure assets is a Class B misdemeanor for the first offense. Id. § 511.100(3).

Stalking Laws:

Criminal Law:

“A person is guilty of stalking in the second degree when he intentionally:

  (a) Stalks another person; and

  (b) Makes an explicit or implicit threat with the intent to place that person in reasonable fear of: 1. Sexual contact as defined in KRS 510.010; 2. Physical injury; or 3. Death.” Ky. Rev. Stat. § 508.150(1).

Civil Law:

“A civil action may be maintained under this section against any person who commits the conduct prohibited under KRS 508.140 or 508.150.  A civil action may be maintained under this section whether or not the individual who is alleged to have violated KRS 508.140 or 508.150 has been charged or convicted of the alleged crime.”  Ky. Rev. Stat. § 411.220.

Use of Information:

Explicitly Prohibits:

See supra “Drone Laws.”

Evidentiary Standards:

Pleading a Claim:

Requires certification that the claim is “is well grounded in fact.”  Ky. R. Civ. P. 11.

Authentication or Chain of Custody:

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Ky. R. Evid. 901(a).

Expert Testimony:

Admissibility of expert testimony is governed by Kentucky Rule of Evidence 702 and the Daubert standard. See Futrell v. Commonwealth, 471 S.W.3d 258, 282-84 (Ky. 2015); Mitchell v. Com., 908 S.W.2d 100, 101 (Ky. 1995) (“We adopt the standard of review set forth in Daubert.”), overruled in part by Fugate v. Com., 993 S.W.2d 931 (Ky. 1999).

Discussion

Please note that this discussion is not moderated by the Emmett Environmental Law & Policy Clinic.