Ongoing Projects:

Federal Project(s) Operating in the State:

Sponsored by the U.S. Fish & Wildlife Service, the National Park Service, U.S. Department of Agriculture, the U.S. Department of Interior, and other federal and non-federal sponsors, the American Woodcock Singing-ground Survey monitors woodcock populations in North America. See American Woodcock Singingground Survey, CitizenScience.Gov, https://www.citizenscience.gov/catalog/182/# (last visited Feb. 7, 2019). The survey consists of approximately 1,500 Singing-ground Survey routes randomly placed throughout woodcock habitats in Canada and the United States, and serves as a major source of information considered in the annual setting of woodcock hunting seasons. Id.; see also American Woodcock, U.S. Fish & Wildlife Serv., https://www.fws.gov/birds/surveys-and-data/webless-migratory-game-birds/american-woodcock.php (last visited Feb. 7, 2019).

The National Oceanic and Atmospheric Administration (“NOAA”) sponsors a citizen science program called “What’s your water level?” See What’s Your Water Level?, Nat’l Oceanic & Atmospheric Administration, http://noaa.maps.arcgis.com/apps/MapSeries/index.html?appid=8e4a278576964f47b4fc050e51f344ca (last visited Feb. 7, 2019). The program, run through an online application, collects and displays photos of water levels. See id. The photos are “used by local, state, and national managers and scientists to learn more about high coastal water levels, their causes, and impacts.” Id.

State Project(s):

The Virginia Department of Environmental Quality (“DEQ”) is tasked with creating a citizen water quality monitoring program and providing grants to volunteer citizen science groups. See Va. Code Ann. § 62.1-44.19:11. DEQ awards grants up to $11,000 for water quality monitoring, depending on the details of the monitoring plan. See Citizen Monitoring Grant Opportunities, Va. Dep’t of Envtl. Quality, https://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/WaterQualityMonitoring/CitizenMonitoring/GrantOpportunities.aspx (last visited Feb. 7, 2019).

The Virginia Master Naturalist Program, which is sponsored by DEQ and multiple other state agencies, “is a statewide corps of volunteers providing education, outreach, and service dedicated to the beneficial management of natural resources and natural areas within their communities.” The Virginia Master Naturalist Program: Who We Are, Va. Master Naturalists, http://www.virginiamasternaturalist.org/who-we-are.html (last visited Feb. 7, 2019). The program hosts a variety of citizen science projects, including: Bat Acoustic Monitoring, Mason Bee Research, the Spotted Skunk Survey, and the Virginia Amphibian Monitoring Program. See Volunteer Opportunities, Va. Master Naturalists, http://www.virginiamasternaturalist.org/volunteer-opportunities.html (last visited Feb. 7, 2019).

Collection of Information:

Research & Collecting Permit:

“Individuals, educational institutions and research agencies must have a completed and approved Research and Collecting Permit [] to research and collect on state park property. DCR does not typically require the permit for unobtrusive observation, but some parks restrict these activities to protect sensitive resources.” General Park Rules and Regulations, Va. Dep’t of Conservation & Recreation, http://www.dcr.virginia.gov/state-parks/rules-and-regulations (last visited Feb. 7, 2019); see also Va. Code Ann. § 29.1-418. 

Trespass Laws:

Criminal Liability for Trespass Despite lack of Notice:

No. Criminal liability only attaches “[i]f any person without authority of law goes upon or remains upon the lands, buildings or premises of another . . . after having been forbidden to do so, either orally or in writing . . . or after having been forbidden to do so by a sign or signs posted . . . at a place or places where it or they may be reasonably seen[.]” Va. Code Ann. § 18.2-119.

Agriculture-Related Trespass:

“If any person shall willfully use a spotlight or similar lighting apparatus to cast a light upon private property used for livestock or crops without the written permission of the person in legal possession of such property, he shall be guilty of a Class 3 misdemeanor.” Va. Code Ann. § 18.2-121.2. 

Drone Laws:

Trespass:

“(A) Any person who knowingly and intentionally causes an unmanned aircraft system to enter the property of another and come within 50 feet of a dwelling house (i) to coerce, intimidate, or harass another person or (ii) after having been given actual notice to desist, for any other reason, is guilty of a Class 1 misdemeanor.

(B) This section shall not apply to any person who causes an unmanned aircraft system to enter the property as set forth in subsection A if (i) consent is given to the entry by any person with legal authority to consent or by any person who is lawfully present on such property or (ii) such person is authorized by federal regulations to operate an unmanned aircraft system and is operating such system in an otherwise lawful manner and consistent with federal regulations.” Va. Code Ann. § 18.2-121.3.

Preemption:

“No political subdivision may regulate the use of a privately owned, unmanned aircraft system as defined in § 19.2-60.1 within its boundaries.” Va. Code Ann. § 15.2-926.3.

State Parks:

“No person shall voluntarily bring, land or cause to descend or alight within or upon any park, any airplane, remote control model aircraft, flying machine, … or other apparatus for aviation.” 4 Va. Admin. Code 5-30-400. Use of drones for approved research purposes requires a special use permit. See General Park Rules and Regulations, Va. Dep’t of Conservation & Recreation, http://www.dcr.virginia.gov/state-parks/rules-and-regulations (last visited Feb. 7, 2019).

Stalking Laws:

Criminal Law:

“Any person …who on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member[.]” Va. Code Ann. § 18.2-60.3(A).  

Civil Law: 

“A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § 18.2-60.3, whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.” Va. Code Ann. § 8.01-42.3(A).

Use of Information:

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

Explicitly Prohibits:

“[DEQ] shall establish a citizen water quality monitoring program to provide technical assistance and may provide grants to support citizen water quality monitoring groups if (i) the monitoring is done pursuant to a memorandum of agreement with the Department, (ii) the project or activity is consistent with [DEQ’s] water quality monitoring program, (iii) the monitoring is conducted in a manner consistent with the Virginia Citizens Monitoring Methods Manual, and (iv) the location of the water quality monitoring activity is part of the water quality control plan required under § 62.1-44.19:5.” Va. Code Ann. § 62.1-44.19:11(A).  However, “[t]he results of such citizen monitoring shall not be used as evidence in any enforcement action.” Id.

Evidentiary Standards:

Pleading a Claim:

Requires certification that the claim “is well grounded in fact.” Va. Code Ann. § 8.01-271.1.

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 thing in question is what its proponent claims.” Va. Sup. Ct. R. 2:901.

Expert Testimony:

Expert testimony is generally admissible if it will assist the trier of fact in understanding evidence. John v. Im, 559 S.E.2d 694, 696 (Va. 2002) (citing Va. Code Ann. §§ 8.01-401 & 8.01-403). Admissibility is subject to basic requirements, including the requirement that evidence be based on an adequate foundation. See Va. Code Ann. § 8.01-401.

The Virginia Supreme Court has left open the question whether the Daubert standard should be applied in trial courts to determine the scientific reliability of expert testimony. Im, 559 S.E.2d at 698.