A freelance photographer on assignment for National Geographic was arrested in Finney County, Kansas, on June 28, after snapping aerial photographs of a cattle feedlot as part of a series on food issues scheduled for next year.
To be clear, George Steinmetz, who took the aerial photos from a paraglider, was not charged with breaking the state’s Farm Animal and Field Crop and Research Facilities Protection Act (we’ll get to that in a minute). Finney County Sheriff Kevin Bascue tells us that Steinmetz and Zhang were “arrested for having allegedly driven their vehicle onto private property that was clearly posted ‘No Trespassing.’ ”
Steinmetz did not respond to our request for an interview. National Geographic spokesperson Beth Foster would only issue this statement:
Susan Richmeier, Finney County attorney, tells TakePart this is a simple criminal trespass misdemeanor case.
“The deal with these animal facilities is they’re not enclosed. They’re contained. There are trade secrets and security issues. What are they taking the photos for? To damage us? Sue us? Why is someone there? If someone is coming onto posted property—the question is why? Most of the feedlot guys would cooperate with any photographer. They just want to be asked,” says Richmeier.
Which feedlot facility are we talking about? Richmeier declined to identify them.
“They don’t want to be put in the public eye,” she says.
A looksee through the Kansas Department of Agriculture Division of Animal Health’s Annual Feedlot Report shows there are at least 12 feedlot facilities in Finney County, with a combined capacity of over 305,000 head of cattle. (To put that in perspective, Finney County has a population of approximately 37,000 people.) At its simplest definition, feedlots are the final stage of production, where cattle go to be fattened for market.
While the call to police was about a trespassing charge, it’s easy to jump to the underlying conclusion—this is really about Kansas’ ag-gag statue.
“Kansas was actually one of the first states to adopt a law restricting access to agricultural operations and prohibiting the photographing of agricultural facilities,” says Susan Schneider, Director, LL.M. in Agricultural & Food Law at the University of Arkansas School of Law. “The Kansas legislature passed the “Farm Animal and Field Crop and Research Facilities Protection Act” (K.S.A. 47-1825-1830) in 1990. This statute makes it a crime to ‘enter an animal facility to take pictures by photograph, video camera or by any other means.’ ”
But Steinmetz didn’t enter the facility; he flew through the air above it. Had he not been arrested for trespassing, would he have been crossing the legal line by taking photos from above? The answer is unclear.
“A landowner’s rights do extend to the airspace above his/her property. But the airways can be analogized to a public highway. If one is traveling through the air for a legitimate purpose in a reasonable manner at a height that would not unreasonably interfere with the landowner’s enjoyment of his/her property, in conformity with relevant flight regulations, then it would not be a trespass,” writes Schneider in an email.
“This issue may be coming up more and more, as state and federal gov’t agencies often need to rely on aerial photos for enforcement of conservation and environmental laws,” she says.
Schneider says the issue here isn’t whether it’s a charge of trespassing or a violation of the agricultural protection act.
“The real issue is transparency. Farmers, feedlot operators and processors are all producing a product to sell to consumers. And that product is perhaps the most essential product on Earth—our food. Anytime the industry complains that people should not take a picture of how our food is being produced, it casts all of agriculture in a bad light,” she writes.