I read Carl C. de Baca’s (PLS) August 2023 column, Anatomy of a Conspiracy, with great interest and approval which perhaps is no surprise; I mean, use the word ‘conspiracy’ in your title and drop a reference to X-Files in your opening grafs and it’s safe to say that you’ve made a fan of me. And even beyond this, I’m solidly in line with his basic premise that something should be done about all these cretins who “are unlicensed but want to start a business doing (our) job.”
But I’m not ready to accept de Baca as a comrade in arms just yet; it’s clear from his writing that we have serious philosophical differences regarding the state’s proper role when regulating commerce. For one thing, he professes to have been “aware of the Libertarian fight against all occupational licensing for at least 10 years” and goes on to vilify the (libertarian advocacy group) Institute for Justice’s “crusade” against occupational licensing. My issue here is simple; I myself am what my civil engineer father would have called a ‘Goldwater Republican’ meaning that I am in sympathy with libertarian ideals and am certainly in agreement with Thoreau’s dictum, “that government is best which governs [and regulates] least.” And so, to the extent that de Baca is opposed to reducing the State’s regulatory power, I am opposed to him.
I’m not alone in this, or even necessarily in the minority of my peers; though I have no studies or polls to back me up, in 40 years of working as a surveyor, working with surveyors and engineers, attending surveying conferences and trade shows, and interviewing and writing about surveyors and engineers at large consulting firms I’ve formed the definite impression that as a class they tend to be:
- relatively conservative, politically
- relatively suspicious of government regulation
- libertarian at least to the extent that they privately voice qualms about benefitting from a government enforced trade monopoly.
This could be observer bias, of course, and certainly by any estimation the political left is well-represented among our ranks. And ultimately, it doesn’t matter where the political center falls among the ‘reality-based professionals,’ as I am not so feckless as to make an argument to land surveyors based on a fallacious ‘appeal to the majority.’ Surveyors, after all, know better than most that ‘it is not enough to be correct, one must also persuade.’
So then, what are my arguments in favor of a reduced role for government in the regulation of land surveying? Perhaps I can draw them out by considering and reacting to de Baca’s arguments based on three court cases in which the Institute for Justice represented plaintiffs being fined by regulating boards.
Oregon—2019
Here, de Baca tells us, the IJ took the case of one Mats Järlström who was “cited and fined by the Oregon Board of Engineers and Land Surveyors for claiming in public meetings, to be an “engineer.” The IJ sued the Board on free speech grounds and won. De Baca concludes (sarcastically) that Järlström’s “right to Free Speech trumped the Board’s right to protect the public.”
What he does not tell us is that the decision of United States Magistrate Judge Stacie F. Beckerman (available at ij.org/wp-content/uploads/2017/04/Jarlstorm-opinion.pdf) is a model of good legal and constitutional reasoning, and absolutely preserved the Board’s right to “protect the public” while smacking down a Board with a “history of overzealous enforcement action” infringing on the First Amendment.
It’s an excellent decision and you should read it for yourself if you care about such matters. My own summation is that the Oregon Board had long sought to regulate the use of not just the terms ‘professional engineer’ or ‘registered professional engineer’ but the very word ‘engineer.’ Judge Beckerman concluded that this is kinda nuts (not her words) because:
“Unlike “M.D.” or “certified public accountant,” there is no fixed meaning to the title “engineer.” On the contrary, there are many different types of engineers. Courts have long recognized that the term “engineer” has a generic meaning separate from “professional engineer,” and that the term has enjoyed “widespread usage in job titles in our society to describe positions which require no professional training.””
She also pointed out that “nothing in the record supports the conclusion that a reasonable person would assume that an individual who calls herself an “engineer” is necessarily a registered professional engineer” and even offered the Board a simple legal remedy: simply strike the word ‘engineer’ (as a single word unaccompanied by ‘registered professional’) from the relevant statutes.
In all this Judge Beckerman was perfectly and obviously correct and as a free speech absolutist—as I assume we all are—I assert with joy what de Baca says sarcastically: of course, Järlström’s right to Free Speech prevailed here, and any other verdict would have been repugnant to liberty.
North Carolina—2021
The issue here is that “Michael Jones and his company 360 Virtual Drone Services, LLC are cited and fined by the North Carolina Board of Examiners for Engineers and Land Surveyors for offering (protected) surveying services without a license.” The actual decision can be found at ij.org/wp-content/uploads/2023/04/MSJ-Denial.pdf, the IJ’s summation of the case is at ij.org/press-release/north-carolina-drone-operator-to-appeal-in-first-amendment-lawsuit/, and they tell us that Jones, a small time drone enthusiast, had begun producing aerial images professionally, and then took the further step of combining his images with publicly available images,—I assume subdivision maps and such. The IJ took Jones’ case, again on free speech grounds, and de Baca says, “Somehow the IJ equated making orthophotos showing boundary line data taken from public sources, as speech.” My response to that is, well, isn’t it speech? Taking pictures, making collages of them with existing records, and then selling them does seem like ‘speech’ in the same way that posters and paintings and such are protected speech.
Still, he may be correct here, and in fact Jones lost his case and the North Carolina Board’s ruling was upheld. But there are curious points of the case to consider:
- The decision states, “Where plaintiffs seek only to convey images, including images with lines indicating the position of property boundaries, the Act does not apply,” (emphasis added). But as the IJ summation says, “Even so, the court ruled that North Carolina can punish drone operators if they create and share even basic information about land without first getting a land-surveyor license.” This seems contradictory.
- North Carolina’s efforts to classify basic aerial mapping as “surveying” is by no means universal; many states, perhaps most, are fine with it. The increasing ubiquity of drones seems somewhat analogous to the omnipresence of GPS in smartphones; am I ‘surveying’ when I look up directions (which come with distances) on Google Map? Nevertheless, per the IJ, North Carolina’s “surveying board has enforced its law vigorously against small drone companies, threatening them with civil and even criminal penalties.”
- I’m not positive that free speech is really the most important issue here; it seems to me that the North Carolina Board is not so much infringing protected speech as they are attempting to protect a business plan being made obsolete by technological advances.
For all these reasons and more, and as de Baca says, “the I.J. will almost certainly appeal” this decision. I’m looking forward to that.
California 2022
This is another case nominally based on protection of free speech, but more accurately described as a legal wrangle concerning the definition of ‘land surveying.’ Per de Baca, “Ryan Crownholm and his company MySitePlan.com were cited and fined for the unlicensed practice of Land Surveying by the (CA) Board of Engineer, Land Surveyors and Geologists. Crownholm is not licensed,” and goes on to tell us that “The judge in the California case ruled quickly and decisively in favor of the defendants.”
An article about the case, written by IJ attorney Mike Greenberg, appears in 2022/10/02/ The Orange County Register. This is in the opinion section, so take it as libertarian propaganda if you wish, but a few points made are indisputably true and persuasive:
- “Ryan… uses publicly available Geographic Information Systems (GIS) maps to create drawings for clients. The drawings, called site plans, simply depict the location of various features on a property, such as buildings, driveways, fences, or vegetation.” Importantly, they make no claim to determine boundary.
- “Ryan’s website has a clear disclaimer that reads: “THIS IS NOT A LEGAL SURVEY, NOR IS IT INTENDED TO BE OR REPLACE ONE.” Local California building departments routinely accept site plan drawings from non-surveyors. As a matter of fact, several building departments even teach individuals how to draw their own site plans, using GIS maps, when applying for permits for small projects on their property.” (emphasis added)
- “Even the national organization of state surveyor boards recognizes that non-authoritative drawings like Ryan’s aren’t “surveying,” and thus shouldn’t require a license.” This fact was new to me, but true. The NCEES “MODEL RULES,” Revised September 2021 and available at ncees.org/wp-content/uploads/Model_Rules_2021_web-2.pdf lists several “Activities Excluded from the Practice of Surveying” including “The transcription of previously georeferenced data into a GIS or LIS by manual or electronic means, and the maintenance thereof, provided the data are clearly not intended to indicate the authoritative location of property boundaries, the shape or contour of the earth, or fixed works.” (emphasis added)
Look, I fully understand and feel the pain of licensed land surveyors watching with dismay as a former cash cow is eaten up by pencil necked geeks with bad attitudes and internet connections. But aren’t they in much the same position as, say, publishers of phone books and gazetteers shouting at clouds as smartphones, and technology in general, inevitably destroy their entire business? Things change, business is hard, customers with just a little bit of internet savvy are finding cheaper ways to do things, and all of that sucks hard… and is a tide that can’t be held back by rants, no matter how eloquent.
The actual professional perquisite of licensed land surveyors is the legal determination of boundaries, and to a lesser extent precise and accurate ‘reality capture.’ Attempts to protect other income streams by legal means—for example by fining people who have the temerity to call themselves ‘engineers’—are, quite rightly, doomed to fail.
Angus Stocking is a former licensed land surveyor who has been writing about infrastructure since 2002.