Ongoing Projects:

Federal Project(s) Operating in the State:

The National Park Service (“NPS”) is launching a volunteer-based citizen science water monitoring project in the Obed watershed. See Volunteers Wanted: Obed WSR to Host Citizen Science Water Monitoring Project, Nat’l Park Serv., https://www.nps.gov/obed/learn/news/volunteers-wanted-to-host-citizen-science-water-monitoring-project.htm (last visited Feb. 7, 2019). NPS is seeking volunteers to assist park staff in collecting water samples in the park and to process and analyze water samples. See id. The pilot project will focus on collection of E. coli bacteria samples. See id.

NPS hosts a variety of citizen science projects in and surrounding Great Smoky Mountain National Park:

• Project Budhurst is an initiative designed to assist NPS in collecting data on target species of high and/or low elevation trees in the Great Smoky Mountains. See Citizen Science, Nat’l Park Serv., https://www.nps.gov/grsm/learn/nature/dff11-citizenscience.htm (last visited Feb. 7, 2019).
• Visitors to the park can also volunteer to monitor otter populations on iNaturalist under the Otter Spotter program. Id.
• Great Smoky Mountain National Park further hosts a Picture Post project at the Campbell Overlook on Highway 441. Id. Visitors can upload photographs to the Picture Post website, which enables the park to track how the area has recovered from a November 2016 fire. Id.

State Project(s):

Tennessee’s Department of Environment & Conservation enables citizens to submit complaints about water quality violations to the department by completing an online form, by calling their toll-free phone number at (888) 891-8332, or by submitting letters by mail. See Citizen Water Quality Complaints, Tenn. Dep’t of Env’t & Conservation, https://www.tn.gov/environment/program-areas/wr-water-resources/water-quality/citizen-water-quality-complaints.html (last visited Feb. 7, 2019).

The Tennessee Amphibian Monitoring Program (“TAMP”) is a joint venture between the Tennessee Wildlife Resources Agency and the Middle Tennessee State University Center for Environmental Education. See Tennessee Amphibian Monitoring Program, Middle Tenn. State U., http://www.mtsu.edu/mtsucee/tamp.php (last visited Feb. 7, 2019). TAMP volunteers drive routes across Tennessee and monitor sounds at ten listening stations on each route. Id.

Collection of Information:

Ag-Gag Law:

“A person commits an offense if, without the consent of the owner, the person … enters or remains on an animal facility with the intent to disrupt or damage the enterprise conducted at the animal facility, and the person:

(A) Had notice that the entry was forbidden;

(B) Knew or should have known that the animal facility was or had closed to the public; or

(C) Received notice to depart but failed to do so.” Tenn. Code Ann. § 39-14-803(c)(1).

“For purposes of this subsection (c), ‘notice’ means:

1. Oral or written communication by the owner or someone with actual or apparent authority to act for the owner;
2. The presence of fencing or other type of enclosure or barrier designed to exclude intruders or to contain animals; or
3. A sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden.” Id. § 39-14-803(c)(2).

A violation of this section constitutes a Class B misdemeanor. Id. § 39-14-804(b).

Scientific Research and Collecting Permit:

Any person or institution “wishing to collect biological or geological materials, or air or water samples, or install research equipment on State Park or Designated State Natural Area land must obtain a scientific research and collecting permit from the Resource Management Division.” Tennessee State Parks Scientific Research and Collecting Permit, Tenn. Dep’t of Env’t & Conservation, https://www.tn.gov/environment/permit-permits/permit-natural-resources/tennessee-state-parks-scientific-research-and-collecting-permit.html (last visited Feb. 7, 2019); see also Tenn. Comp. R. & Regs. 0400-02-02-.23.

Other Provisions:

See infra “Drone Laws.”

Trespass Laws:

Criminal Liability for Trespass Despite Lack of Notice:

Yes, unless the statutory defense to prosecution applies.

“A person commits criminal trespass if the person enters or remains on property, or any portion of property, without consent of the owner.” Tenn. Code Ann. § 39-14-405(a).  Consent is inferred “in the case of property that is used for commercial activity available to the general public” or “when the owner has communicated [her] intent that the property be open to the general public.” Id.

Criminal trespass is a Class C misdemeanor. Id. § 39-14-405(g).

Defense to Prosecution of Trespass:

“It is a defense to prosecution under this section that:

1. A person entered or remained on property that the person reasonably believed to be property for which the owner’s consent to enter had been granted;
2. The person’s conduct did not substantially interfere with the owner’s use of the property; and
3. The person immediately left the property upon request.” Tenn. Code Ann. § 39-14-405(b).

This defense is not applicable when the property owner posted signs or placed identifying purple paint marks on trees that “are reasonably likely to come to the attention of a person entering the property.” Id. § 39-14-405(c).

Other Provisions:

See infra “Drone Laws.”

Drone Laws:

Surveillance & Critical Infrastructure Law: 

“(a) Subject to the exceptions set forth in § 39-13-902(a), a person commits an offense if the person:

(1) Uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image . . .

(6)(A) Without the business operator’s written consent, knowingly uses an unmanned aircraft within two hundred fifty feet (250’) of the perimeter of any critical infrastructure facility for the purpose of conducting surveillance of, gathering evidence or collecting information about, or photographically or electronically recording, critical infrastructure data. . . .”  Tenn. Code Ann. § 39-13-903.

“Critical infrastructure facility” includes, but is not limited to, facilities that manufacture, store, process, treat, or transmit chemicals, oil, gas, electricity, and water.  Id. § 39-13-903(6)(B).

An offense under this section is a Class C misdemeanor. Id. § 39-13-903(b).

Exception: 

“(a) Notwithstanding § 39-13-903, it is lawful to capture an image using an unmanned aircraft in this state . . .

(1) For purposes of professional or scholarly research and development by a person acting on behalf of an institution of higher education…, including a person who:

(A) Is a professor, employee, or student of the institution; or

(B) Is under contract with or otherwise acting under the direction or on behalf of the institution; …

(4) If the image is captured for the purposes of mapping… 

(9) If the image is captured by state or local law enforcement authorities, or a person who is under contract with or otherwise acting under the direction or on behalf of state authorities, for the purpose of:

(A) Surveying the scene of a catastrophe or other damage to determine whether a state of emergency should be declared;

(B) Preserving public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency; or

(C) Conducting routine air quality sampling and monitoring, as provided by state or local law;    

(10) At the scene of a spill, or a suspected spill, of hazardous materials;…

(16) In connection with oil and gas pipeline and well safety and protection.” Tenn. Code Ann. § 39-13-902.

Trespass Law As Applied to Drone Activity: 

“(a) A person commits criminal trespass if the person enters or remains on property, or any portion of property, without the consent of the owner. . . .

 (d) For purposes of this section, ‘enter’ means intrusion of the entire body or when a person causes an unmanned aircraft to enter that portion of the airspace above the owner’s land not regulated as navigable airspace by the federal aviation administration. . . .

 (g) Criminal trespass is a Class C misdemeanor.”  Tenn. Code Ann. § 39-14-405.

State Parks:

“The operation or use of aircraft on lands or waters other than at the landing areas designated in special regulations is prohibited [in state parks].” Tenn. Comp. R. & Regs. 0400-02-02-.02(1). Flight is only allowed with written approval from the park manager. See Drone/UAV, Policies, Tenn. State Parks, https://tnstateparks.com/about/policies (last visited Feb. 7, 2019).

Critical Infrastructure Laws:

Drone Law:

See supra “Drone Laws.”

Stalking Laws:

Criminal Law:

“A person commits an offense who intentionally engages in stalking.” Tenn. Code Ann. § 39-17-315(b)(1).

“‘Stalking’ means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” Id. § 39-17-315(a)(4).

Civil Law: 

“(a) There is hereby created a civil cause of action for malicious harassment.

  (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney’s fees and costs, and punitive damages.”  Tenn. Code Ann. § 4-21-701.

Use of Information:

Although our research is incomplete, this provision could be construed to prohibit the use of information collected by citizens.

Explicitly Prohibits:

“[A]n image captured in violation of § 39-13-903, or an image captured by an unmanned aircraft that was incidental to the lawful capturing of an image… [m]ay not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding.”  Tenn. Code Ann. § 39-13-905(a)(1).

Evidentiary Standard:

Pleading a Claim:

Requires certification that “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”  Tenn. R. Civ. P. 11.02(3).

Authentication or Chain of Custody:

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

Expert Testimony:

Tennessee courts follow the non-exhaustive list of factors identified in McDaniel and later expanded on in Stevens when considering expert testimony under Tennessee Rule of Evidence 702.  See Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005); State v. Stevens, 78 S.W.3d 817, 832-35 (Tenn. 2002); McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997) (“Although we do not expressly adopt Daubert, the non-exclusive list of factors to determine reliability are useful in applying our Rules 702 and 703.”).