Pilots in NL prosecuted and found guilty for disturbing wildlife

[BackPacker]

Just a warning to you all about the current state of legislation in the Netherlands. I'm not proud of it but I do think this needs to be made more public.

AOPA Netherlands - Hoger beroep Oostvaardersplassen (http://www.aopa.nl/index.php?option=com_content&task=view&id=195&Itemid=2)

I did not find an English translation, unfortunately. Here's a loose translation:

2 pilots have been found guilty of disturbing wildlife in the court of law under the "Flora and Faunawet" (wildlife act). They were flying at approx. 1450 feet over the "Oostvaardersplassen", which is a nature reserve under Natura-2000. (Natura-2000 is the result of European legislation that requires the member states to identify important wildlife areas and protect these.) The aeronautical charts for this area identify a recommended minimum altitude of 1000 feet, while class A airspace (Schiphol TMA) starts at 1500 feet.

So the pilots were completely adhering to aviation laws and best practices. Something the judge admitted. Nevertheless, he found them guilty of breaching the Flora- and Faunawet, and fined each of them 250 euros. They now also have a penal record.

The judge admitted that this is a case of conflicting laws, particularly since the Flora and Faunawet does not have a vertical limit. But this was not a reason for getting these pilots acquitted. Instead, the judge called onto the government to resolve this conflict as soon as possible. Obviously AOPA, KNVvL and a host of other organizations will appeal this decision, as this can have major consequences, not just for GA but for CAT too. (ATC normally vectors planes inbound to Schiphol at 2000 feet over this same area.)

Here's a map of all Nature reserves under Natura-2000 by the way:

Ministerie van Landbouw, Natuur en Voedselkwaliteit - Natuurwetgeving - Gebieden (http://www.synbiosys.alterra.nl/natura2000/gebiedendatabase.aspx?subj=n2k)

[Ryan5252]

Surely a case for their defense would have been that they flew as far away as possible for the protected area whilst placing their aircraft only 50' of Class A. Further to this, although I am only speculating, was both the Aircraft and Pilot in Command capable of legally entering Class A? If not then their hands are tied and a case is to heard against the relevant authority for placing the lower limit of Class A in such a way it conflicts with pre-existing limits.
Also, I would wonder what was the actual impact to the wildlife? Was there any loss of life to the stock?
Just my own observations from an outsider not familair with the case or indeed to prevailing laws.

Cheers

[Donalk]

I must be missing something - in order to secure a conviction they must have contravened some statute. Is there a statutory prohibition on overflying this reserve?

[BackPacker]

Further to this, although I am only speculating, was both the Aircraft and Pilot in Command capable of legally entering Class A?

Even if the pilots and planes were IFR capable, you don't get to enter the Schiphol TMA over there without a very, very good cause.

And under the act you can be prosecuted for "disturbing" wildlife. So if one bird takes flight while you are flying over and one of the park rangers suspects a causal relationship between the two, you're screwed.

If they can read your callsign, that is, because this particular area currently happens to be in/under the Schiphol SRZ so your mode-S transponder, while mandatory, has to be switched off.:ugh:

Is there a statutory prohibition on overflying this reserve?

No, but there is a statutory prohibition on disturbing the wildlife in this reserve. And that statue has no vertical limits. Theoretically you could be prosecuted while overflying this reserve at FL300, as long as a park ranger finds that you disturbed an animal. And that's why this case is so important: We're trying to establish what the vertical limits of this wildlife act are.

And remember that this is not just some local Dutch case. This legislation was all forced upon us by EU legislation so at some point in time the same crazy lawsuits may happen in other EU countries. What gets decided here may well be influential in how similar laws in other countries may be interpreted.

If not then their hands are tied and a case is to heard against the relevant authority for placing the lower limit of Class A in such a way it conflicts with pre-existing limits.

Although the judge noted that the laws clearly conflict, and called upon the Dutch government to resolve this situation, I suspect that this rather low-level judge was simply not legally able to weigh one law against another. The public prosecutor was basically able to prove that the wildlife was disturbed in the legal sense of the wildlife act, so the judge at this level had no other way than to find the defendants guilty. That they were conforming to all aviation laws and customs at the time was not deemed a valid defence.

(I guess it's kinda similar to performing a drive-by shooting and then using the fact that you adhered to the speed limit at the time, so were complying with road transportation laws, to claim you cannot be prosecuted for murder.)

Weighing laws against each other and thereby establishing limits on the reach of various laws is handled higher up. So hopefully this is just the opening move.

[Donalk]

Thanks for the clarification. This seems to be a particularly harsh judgement which relies on testimony from people on the ground to prove that wildlife were disturbed in some way. Surely a low flying hawk would cause a lot more distress to the locals.

Looking at the nature reserve map is a bit daunting as there is virtually no way of avoiding them on any trip. I fly in NL quite a bit and love the area but may have to be more 'selective' in future.

[Jim59]

I recently flew over Netherlands with a mode a/c (not s) transponder. You may not turn it on in Dutch airspace. More to the point you may not fly above 1200'. With a mode s transponder switched off (as required under TMA) you can fly higher!!!!!!!!

[BackPacker]

which relies on testimony from people on the ground

Actually most park rangers in the Netherlands have a "buitengewone opsporingsbevoegdheid" which means that their testimony, as long as it is within their field of expertise, is admissible as evidence in court, similar to the statements of a police officer.

That's what happened here too. The conviction was purely based on the testimony of those park rangers that wildlife was disturbed by the passing aircraft.

[BackPacker]

I recently flew over Netherlands with a mode a/c (not s) transponder. You may not turn it on in Dutch airspace. More to the point you may not fly above 1200'. With a mode s transponder switched off (as required under TMA) you can fly higher!!!!!!!!

Bit off-topic but you can't go higher there. From 1200' to 1500' you're in the SRZ Schiphol which is not allowed unless you have PPR (which is only given if you've got a good reason) and from 1500' upwards you're in the Schiphol TMA which is class A.

Outside the lateral limits of the Schiphol TMA / SRZ Schiphol you can go above 1200' with a working mode-S transponder only, according to the rules, but it's relatively easy to get a waiver for a transit through the Netherlands with just a mode A/C transponder.

[wsmempson]

I fly all over europe, but now give Holland a very wide berth. I can only assume, judging from the volume of cockeyed and misconceived legislation being churned out recently (mandatory ELT's (no PLB's,) Mandatory mode-s (as long as it's switched off) etc), that the Dutch CAA are skunked off their faces....

[Donalk]

that the Dutch CAA are skunked off their faces....


Maybe, maybe not. It does take a bit more planning but the Dutch have a willingness to be flexible in most cases. Besides it's too nice a country to avoid because of a few mindless bureaucrats.

[Jim59]

it's relatively easy to get a waiver for a transit through the Netherlands with just a mode A/C transponder.

You don't need a waiver if you remain outside all controlled airspace and below 1200', but do otherwise. I requested one three weeks in advance and was refused, so it's not that easy!.

[Johnm]

Presumably if you were walking there and the wildlife took to the air you would suffer the same fate, the rangers must be up before the judge almost daily......

Anything utterly incomprehensible is referred to as "double dutch" in the UK, I'm beginning to understand why!

[IO540]

Presumably if you are IFR then they will have to sue ATC :)

Thankfully I don't have to fly VFR to some places anymore... I highly recommend the IR for hassle minimisation.

[er340790]

Used to fly XC up to that area from EHBK (think the island was called Ameland or something) and was warned about the Dutch equivalent of RSPB being anal in the extreme. They would report anyone whose number they could read as a matter of routine. I think my N reg PA-28 probably helped there. To be honest I was more concerned keeping under the Class A 1500' limit. One trick I used was to pop into Budel (EHBD) on the way home and do a couple of T&Gs. Get lost in all that ATC chatter. ;)

[vanHorck]

Where does it say in the wildlife act that above 1500 ft it's ok to fly!?

Surely all IFR flights above are indeed at fault too!

[Katamarino]

Looking at that map, I am a little scared about even taking off from Rotterdam with these ridiculous Ranger jobsbodies around. If they apply this universally, it will not be possible to fly in Holland.

Of course, in a country where my friend can be fined for crossing a red light on her bike, when she hadn't actually crossed that road (she only started her journey at a point between the police office who 'saw' her at the light in question, and the one he apparently radioed to stop her), I am not at all surprised at the Judge's decision, or the actions of the Rangers.

It's a shame; I love the North of Holland as a place to fly, Texel and Ameland are wonderful! And ATC are universally helpful; lets hope they can sort out this absurd situation.

[Piper19]

I feel sorry for all these general aviation pilots in NL. I frequently fly there, but last years it's getting worse and worse. Unbelieveable high fees at airports, most airports that are not being closed only think about profit and they don't find it in small aviation. So they just ban them. Very strong green force there, political overruled and oversanctioned country.
I strongly hope NL is not an example of the future of EU general aviation. One of my first flights was to Rotterdam, I remember the apron being full of little Cessna's and Pipers. Something else today.
Their air force is doing better than ours though:D

[BackPacker]

One of my first flights was to Rotterdam, I remember the apron being full of little Cessna's and Pipers. Something else today.

Well, the apron is needed for the Transavia 737s and VLM F50s, but GA at Rotterdam is alive and well. The Vliegclub Rotterdam owns about 17 planes (Pipers, Cessnas, Robins and a Diamond), the RAC has something like three planes (Warriors nowadays - their Diamonds are in storage at Lelystad due to an entirely different reason called Thielert), there's a parachute club, a few commercial operators with small planes for sightseeing and banner towing, and at least something in the neighbourhood of 25-30 private planes scattered around the F-apron and along the L-taxiway.

So GA at Rotterdam is still very much alive and kicking, and GA is in fact still responsible for the far majority of movements at Rotterdam.

[Katamarino]

I have flown into all except three of the Civil airfields in Holland, one of which is Schipol. With the exception of Eindhoven, which we shall not talk about, I found most of them very welcoming, with great facilities, and a huge amount of GA, despite the expense of getting airbourne here! Admittedly, the fact that in less than two years I have managed to visit all except three speaks volumes about the low number of airports; I really miss the uncontrolled farm strip type of flying in the UK. Every airport here is controlled.

I really hope that we can keep the great GA locations that we do have here; a day spent at Texel watching the skydivers from the cafe is a nice way to spend a summer Sunday, and flying in and out of Rotterdam amongst the 737s is a great experience.

[IO540]

Most expensive avgas this side of Turkey though :)

[Oldpilot55]

I find this really quite depressing. We nearly had the same rubbish in the Cairngorms where a no-fly zone was proposed but rejected. I'm all for protecting wildlife but this over-zealousness seen in Holland leaves a nasty reminder of the freedoms our fathers died for two generations ago.

[adv]

so does a birdstrike now automatically qualify you for prosecution?
(or should that be persecution!)

[It flies]

I'm learning to fly at Lelystad airport at the moment, and from my own observation can confirm that a lot of the disturbed feathered wildlife crosses the busy A6 motorway and come foraging on the meadows of the airport. Herons, storks, buzzards, falcons and what have you. On more than one occasion I've dodged herons on the runway. Doing a runup next to four or five storks is common.

Might this have something to do with the type of aeroplane? I can't imagine something like a Rotax powered aircraft at 1450 ft to really be loud enough above the background noise to disturb any wildlife. It would be easier to be offended by a passing Yak-52. It seems that it would be hard to prove that wildlife is disturbed by an aircraft flying overhead next to a busy motorway.

[sternone]

You can't compare those cheeseheads with the rest of Europe. Therefor I'm sure that this stays a very isolated issue in Europe.

[hatzflyer]

I understand from friends in Belgium that a lot of wealthy Dutch pilots are now nipping across the boarder to fly. The result of this being that they offer "premium" rents for hangar space and are effectively pricing all the locals out of all the northern airfields.

[Mechta]

From what I have seen, it is unfamiliar noises which scare wildlife. If you flew the same plane over the same nature reserve every day, the birds would get used to it and probably not be bothered. Buy a new plane with a different engine, and for a few days they may get alarmed.

I have seen crows barely more than a rotor diameter from a Chinook starting up, who didn't bother getting out the way, so volume of noise isn't the only factor.

Anyway, who's to say the birds didn't detect a nearby predator which caused them to take flight?

[BackPacker]

Anyway, who's to say the birds didn't detect a nearby predator which caused them to take flight?

The park rangers.:(

According to the law, their observation statement is sufficient for a conviction. Just like a statement from a police officer would be sufficient in a lot of cases. In fact, in the Netherlands, they have the legal status of "buitengewoon opsporingsambtenaar" which gives them limited police-like privileges.

You can't compare those cheeseheads with the rest of Europe. Therefor I'm sure that this stays a very isolated issue in Europe.

Welcome back Sternone! Have all the bruises on your ego from your previous frequent-visit period healed?

[AC-DC]

I just bought a new map, over Holland a Prohibited is printed.

[BackPacker]

I just bought a new map, over Holland a Prohibited is printed.

Sorry, can't use that one legally yet. Look at the date: it's from 2012. You know the law: never fly with outdated or pre-dated charts.:}

[It flies]

Anyway, who's to say the birds didn't detect a nearby predator which caused them to take flight?

This is the point I was trying to make. This seems very hard to prove as the Oostvaardersplassen is right next to a motorway and Lelystad airport. People are free to enter. Lots of aeroplanes fly along the edges each day. I think even the aerobatic competition box is within hearing distance.

According to the law, their observation statement is sufficient for a conviction. Just like a statement from a police officer would be sufficient in a lot of cases. In fact, in the Netherlands, they have the legal status of "buitengewoon opsporingsambtenaar" which gives them limited police-like privileges.


I'm aware of this, but it would not make much sense if this can pass unchallenged in a higher court. In Holland you can get a 140 euro fine for holding a mobile phone while driving. It doesn't matter whether you are using it or not, the police officers' word is enough evidence. But if I could prove that I don't even own a phone and I was holding my camera, how can this 'evidence' hold up in court?

We're in need of a Dutch version of 'Flying Lawyer' here. :confused:

[BackPacker]

People are free to enter.

Last time I was there the nature reserve was fenced off. Access is very limited and only allowed when accompanied by a park ranger. Except last year when all the ponds were iced over and somebody gave a blanket permission to all ice skaters to enter.

I think even the aerobatic competition box is within hearing distance.

The aerobatics hold is normally placed at the western tip of the ATZ/SRZ and is two lateral miles from the fence, approximately. The aerobatics box is slightly further away from the fence at approx. 4 miles. That's most likely hearing distance, but I wonder if it's close enough to actually cause a disturbance.

Furthermore, there is a highway and a railway line in between.

[Katamarino]

I would also be interested to hear how 'The Police Officer said so' can possibly be taken as more believable than the person being prosecuted (assuming they are a person of good standing without previous record). Expecially having seen cases where the Officer is mistaken, or just plain inventing stuff - do they have targets to fill on 'numbers of cyclists stopped', or the like? It seems odd that they have to wrongly fine innocent cyclists when visiting any road crossing in The Hague will get you 95% of cyclists sailing blindly through the red light, while I and maybe one other person get sworn at for having the gall to stop for it!

I realise we are branching out here slightly :}

[It flies]

Backpacker, thanks for the clarification on the aerobatics area. It will be interesting to see how this case develops. Especially if the everlasting plans to develop Lelystad for airliner traffic actually happen. There will be a lot of fines handed out then...

I would not be surprised to see this verdict overturned eventually.

Katamarino, I think this thread will be moved to Jetblast swiftly if we continue on that one :)

[Katamarino]

Good point, I'll leave it there :ok:

[It flies]

There has been a short update on this issue on the dutch AOPA site. Follow the link in the first post to see the update. (Text in dutch)

I think the gist of the text is this:

The dutch minister has in answer to questions in dutch parliament told that she will look into the inconsistencies in the current laws and if necessary change them so the current use of airspace by general aviation in the Netherlands can be upheld.

I think this can be seen as a glimmer of hope?

[Pace]

Although the judge noted that the laws clearly conflict, and called upon the Dutch government to resolve this situation, I suspect that this rather low-level judge was simply not legally able to weigh one law against another. The public prosecutor was basically able to prove that the wildlife was disturbed in the legal sense of the wildlife act, so the judge at this level had no other way than to find the defendants guilty. That they were conforming to all aviation laws and customs at the time was not deemed a valid defence.

BackPacker

Surely the Captain of an aircraft has the ultimate descision to override any law in his duties of maintaining the safety of his aircraft.

To have pulled his aircraft up into CAS would have caused a collision threat if he had tried to avoid the birds.

His descision not to avoid the birds by not entering CAS would within his rights overule the bird protection laws?

Pace

[dublinpilot]

Pace,

I think the provision that you are refering to only allows the commander to disregard a part of the ANO...not any law.

dp

[IO540]

I think this is one of many examples of where national laws were drafted without considering ICAO obligations.

The UK drive to sell off aviation frequencies is another one, dreamt up by unbelievable idiots, but the amazing thing is how far this one has run without anybody in Govt apparently noticing the "little problem".

[BackPacker]

Surely the Captain of an aircraft has the ultimate descision to override any law in his duties of maintaining the safety of his aircraft.

Pace, this was not a case of a safety concern overriding the law. We were not talking about a flock of birds in-flight on a collision course, but rather wildlife being disturbed on the ground by pilots overhead at 1450'.

Looking at the letter of this wildlife protection law, what the pilots should have done is not overfly this nature reserve at any height where this might disturbe wildlife. Not at 1450' (50' below the base of CAS) like they did, not at 2000'-FL45 (typical CAT vectoring altitudes for EHAM at this location) and not at FL100 or above. Unless they were absolutely sure that their appearance/shadow/exhaust gas/noise/karma could not, in any way, disturbe the wildlife there.

That's the main problem we're talking about. It's not an aviation law but a wildlife protection law resulting from European legislation. The way that wildlife protection law is currently written - and apparently interpreted - is that it has no vertical limit. If your plane, no matter at what altitude, is thought/observed to have disturbed wildlife in that area then you're a target for prosecution. Even if you fully comply with other laws, including those for aviation.

Of course the Natura-2000 wildlife reserves (note: plural - there are several dozens of these identified in the Netherlands alone) are not listed as such on any VFR or IFR aviation chart. Furthermore, pilots have no way of knowing how skittish the animals are at that time. Have they eaten recently? How many natural predators are there in that area anyway? How used are they to overflying air traffic, or, for instance, traffic noise from a nearby highway or railway line?

(Note that in this particular case, the Oostvaardersplassen, a railway line literally run along the fence of the nature reserve and the highway A6 is just 750 meters away. If a train passes and a bird within the reserve is disturbed and takes flight, theoretically the train driver can be prosecuted too.)

So abiding by this law is a totally hopeless proposition. Not just for a pilot overflying this reserve, but also for a train or car driver on the nearby railway line or highway.

[It flies]

Another update on the Dutch AOPA website. Things seem to be slowly moving in the right direction. (text in Dutch only)

http://www.aopa.nl/files/docs/40.pdf

[BackPacker]

Interesting document. Thanks for posting that.

For those who don't speak Dutch: what it basically comes down to is that the appeals are still pending, and the responsible cabinet ministers are waiting for the results of this appeal. But preliminary talks have taken place between the GA sector (represented, amongst others, by AOPA) and the branches of government that are responsible for these nature reserves and aviation.

The goal of these talks is to get a clear situation for pilots, and three situations have been identified:
1. Where the nature reserve is robust and disturbance is very unlikely, or unlikely to have a serious effect, normal aviation laws will apply. (500 feet rule and all that).
2. Where the nature reserve is slightly more vulnerable, a code of conduct will be agreed upon between the GA sector and the authorities. Probably just like it exists right now, where sensitive areas are marked on the chart and you plan to overfly these as high as possible, minimum 1500'.
3. Where the nature reserve is especially vulnerable, clear minimum heights will be identified and this will be put into legislation. Maybe in the same way the wetlands area Waddenzee is currently treated.

(Disclaimer: this is a rather loose and short translation of a much larger document with some of my own interpretations and examples thrown in. If anyone cares, feel free to put up a more formal translation.)

[Katamarino]

Backpacker; what you summarise here seems to be exactly the situation we already have; what is actually changed there to ensure that this bizarre situation doesn't happen again?

I want to fly to Ameland to tomorrow; should I cover up my registration just in case the nature loonies are out? :p

[BackPacker]

It's not exactly what we have now. What I think the article is hinting to is that each of the 162 Natura-2000 areas will be assessed for the impact that aviation might have on these areas. Very sensitive areas will get a Prohibited area (or SRZ, or something to that effect) around them, like the Waddenzee. Less sensitive areas will be marked as a nature reserve with a suggested minimum overfly height, and robust areas will not be marked on the aeronautical maps at all.

Right now virtually none of the 162 areas get any mention on the aeronautical maps or in the AIP.

Nevertheless, nothing (except preliminary discussion) will happen until the appeals process is over.

[Katamarino]

Thanks for the clarification; so it will be an addition of many new areas on the chart, rather than a major re-classification of existing ones.

[It flies]

It has taken a very long time but the two pilots who where prosecuted in 2009 for disturbing widlife have been cleared of charges. The Dutch appeal court has ruled that flying over the Natura 2000 aera of the Oostvaarders plassen does not constitute a disturbance of wildlife.

Some more info here (Dutch only):

Proefproces Oostvaardersplassen gewonnen | AOPA (http://www.aopa.nl/2012/06/proefproces-oostvaardersplassen-gewonnen/)

[dublinpilot]

Thanks for the update. Was only thinking about this one recently.

[fattony]

Glad to see that common sense has prevailed...even if it did take three years!

[BackPacker]

The Dutch appeal court has ruled that flying over the Natura 2000 aera of the Oostvaarders plassen does not constitute a disturbance of wildlife.

Actually the findings of the court were slightly different.

The courts interpretation of the Flora- and Fauna law is that it's aimed at long-lasting protection of wildlife areas. To be prosecuted under the law requires a long lasting or serious disturbance of the wildlife sanctuary, where the ecosystem may suffer long-term effects.

The most important sentence is probably this:

Sporadische verstoringen zonder enige waarschijnlijke negatieve invloed worden niet beschouwd als een verstoring in de zin van de Flora- en faunawet.

("Sporadic disturbance without any probable negative influences will not be considered a disturbance under the Flora- and Fauna law.")

So the court did acknowledge the rangers finding that the pilots actually caused a disturbance (birds taking flight), but didn't find the disturbance severe enough to cause long-lasting effect to the ecosystem. And thus finds the disturbance not punishable under the Flora- and Fauna law.

In the long run, the court has now placed a significant limit on the application of the Flora- and Faunalaw. Whereas previously any disturbance was cause for prosecution, the prosecutor now has to prove a long-lasting effect on the ecosystem.

All in all a very happy ending. Both for the pilots involved (a conviction, even without punishment, would give them a criminal record) and for aviation in general.

[david viewing]

Fortunately it's still possible to fly from Texel to Scandinavia without crossing any of these areas, although it does involve remaining some way out to sea from the coast in places. Better to risk human life than disturb the wildlife, obviously. This is not the first prosecution that's been reported either.

Beware that Skydemon does not show these areas, although I understand that the SD team are looking at the possibility of adding them.

[Katamarino]

Better to risk human life than disturb the wildlife, obviously.

Humans are a significantly less endangered species than a great many wild ones.

[peterh337]

So the court did acknowledge the rangers finding that the pilots actually caused a disturbance (birds taking flight), but didn't find the disturbance severe enough to cause long-lasting effect to the ecosystem. And thus finds the disturbance not punishable under the Flora- and Fauna law.

I am completely shocked.

If a bird takes to flight because a plane passes overhead, the pilot should be fined €1000, for the first offence.

But seriously, these prosecutions are totally outrageous. It's a proof that there are people in positions of influence who are idiots.

[Katamarino]

If a bird takes to flight because a plane passes overhead, the pilot should be fined €1000, for the first offence.

Is that €1000 per bird? :sad:

[peterh337]

No; birds in Holland can be found for far less than that :E

€10 base price?