BPELSG ALJ and GPS, GPR, Mapping Citation

[MPaulk]

I recently came across a decision by an Administrative Law Judge concerning a case involving Ground Penetrating Radar Systems (GPRS) and its employees. The Board for Professional Engineers, Land Surveyors, and Geologists in California cited GPRS for practicing land surveying, civil engineering, and geophysics without the appropriate licenses. The employees argued that their work, particularly using modern technology such as GPR and GPS, did not require licensure because the tasks performed were merely "pushing buttons" and interpreting minimal data (a really short take on the arguments).

This case raises several critical questions for the profession, especially in light of the rapidly advancing technology that is becoming increasingly user-friendly and accessible. Here are a few points I would be interested in your opinions on:

How do you feel about the judge's decision in this case? Do you believe the citations were justified based on the tasks performed by GPRS, or do you think the use of these technologies should be considered more of a technical function rather than professional practice?

What do you believe is the threshold for practicing land surveying in the context of modern technology? Given that devices like the Pix4D viDock, iPhones paired with Emlid receivers, and new utility locating equipment with RTN services can produce georeferenced 3D models with minimal human input, at what point does the operation of these tools cross into the realm of land surveying?

Should more explicit guidelines or regulations exist regarding using such technologies in our field? As technology evolves, should our laws and regulations be updated to define better what constitutes land surveying versus what can be done by unlicensed technicians without PLS oversight?

I’m interested in hearing your thoughts and experiences on this matter. How do you integrate these new technologies into your practice, and where do you draw the line between technician work and professional land surveying?

[Warren Smith]

My initial take on this is that there is a market for this kind of technical data collection. Much like MySitePlan.com, a base map can be prepared and, ideally, verified under the direction of an actual licensed professional through oversight of technique. Part of the continuance of this business model is the existence of willing clients to use the data for design purposes.

Similar to the oldest profession, don't "clients" get caught up in prosecution now and then?

[DWoolley]

For those that may be unfamiliar, this is from the GPRS website:

"Utility As-Built Creation

GPRS provides a complimentary PDF, .KMZ file, and a SiteMap® Personal subscription with every outdoor utility locate. Our Project Managers utilize the data from your utility field markings to create digital, layered utility maps inside SiteMap®, and our in-house Mapping & Modeling Team can provide you with TruBuilt plan views and even a comprehensive 3D BIM or Conceptual Site Model (CSM) that accurately visualizes your entire utility infrastructure to communicate, collaborate, and manage your project or facility better."

I have attached a photo of the GPRS technician mapping an intersection with a GPS/RTN unit near our OC office in March 2024. The technician collected the underground utility paint marks, curb returns, light poles, median island, crosswalk paint etc. while I ate my lunch.

Good questions, MPaulk, very relevant to the future of land surveying.

As you know, I have spent the last several years trying to get the land surveyors to offer to protect the public from the unlicensed folks in the underground locate and mapping markets - understandably, the underground community (like the unions, post '82 engineers, contractors, site plan guys) will move forward without the land surveyors. The underground locate and mapping market has a greater public protection element than any boundary or construction land surveying. Seldom does faulty boundary or construction land surveying put the public in danger of being killed - the same is not true with underground utility mapping. Protecting the public from this unregulated underground utility mapping was the basis of the Orange County legislative proposal to add accuracy statements to mapping work product (oh, you should have heard the land surveyors squealing at the idea of requiring/publishing our expertise on work product). The equipment manufacturers will continue to label their products as "survey grade" and unabashedly state sub-centimeter accuracies.

My read on the land surveying crowd is they will not accept any regulations/guidelines/laws that define the practice of land surveying to further protect the public. They would rather face and accept deregulation. The underground folks, contractors, unions, have snapped away the work of the land surveyors like a fentanyl addled street thug stealing a purse from an old woman on the streets of San Francisco. The passive land surveyors should be grateful they are thieves and not rapist - their lack of resistance would expectedly be the same.

In short, to answer your question, the work is being completed, unabated, without a licensed land surveyor. In turn, the land surveyors will not interject themselves into the situation - they are content to shake their fists behind closed doors, and fade into further irrelevancy.

DWoolley

[LS_8750]

What is the meaning of 8726(6)(A)?

"Geodetic surveying means performing surveys, in which account is taken of the figure and size of the earth to determine or predetermine the horizontal or vertical positions of fixed objects thereon or related thereto, geodetic control points, monuments, or stations for use in the practice of land surveying or for stating the position of fixed objects, geodetic control points, monuments, or stations by California Coordinate System coordinates."

[DWoolley]

What is the meaning of 8726(6)(A)?

"Geodetic surveying means performing surveys, in which account is taken of the figure and size of the earth to determine or predetermine the horizontal or vertical positions of fixed objects thereon or related thereto, geodetic control points, monuments, or stations for use in the practice of land surveying or for stating the position of fixed objects, geodetic control points, monuments, or stations by California Coordinate System coordinates."

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master——that’s all.”

Lewis Carroll’s Through the Looking Glass (1871).

The land surveyors' may concern themselves with these words. The words have no meaning or serve no purposes to any others.

DWoolley

[DWoolley]

The Laborers’ agreement [union] for a Horizontal Directional Driller includes the following:

“All work in connection with horizontal directional drilling crews, surface and pit launch directional drills, referencing and documenting onsite operations and activities with use of a drone associated with HDD work covered by this Agreement, including…subsurface utility imaging services, operation of Trimble equipment [Trimbling], for locating, designating, depicting and mapping underground utilities and structures by means of imaging and other geophysical methods and systems including locators,…”.

As I read it, the Laborers consider the use of Trimble [GPS and total stations] for locating and mapping underground utilities is their work. No mention of licensed land surveyors. I do not know any land surveying firms that are signatory to the Laborers’ union (we are currently in the process). Based on my experience, when mapping underground utilities, the technicians map surface features i.e. curb and other hardscapes to provide geographical context and provide CAD files with no accuracy statements. The Laborers, like the contractors, post ’82 engineers, carpenters, do not concern themselves with the Professional Land Surveyors’ Act. For the full context of their collective perspective, read the testimony of Mark Eugene Reiser II, P.E. in the attached case - that testimony accurately sums it up. Apparently, the judge found the Reiser testimony compelling and anchored her decision on it.

To answer MPaulk’s questions:

1. Yes, unequivocally, according to Business and Professions Code 8726, the work described is exclusive to licensed land surveyors.

2. Yes, the citations were appropriate in that the work completed by technicians was not supervised by a California licensed professional.

However, the judge determined the underground utility locating and mapping did not constitute the practice of geology, engineering and/or land surveying. Although this case is not binding for future decisions, it has indirectly sanctioned the work of the unlicensed folks.

The contractors, laborers’ and carpenters’ unions, underground utility locators and mappers, drone mappers, other geospatial mappers, and predictably, the GIS folks, will fight and win these citations after the requisite 768 days of processing. It appears Crownholm simply did not have sufficient counsel.

The land surveyors could have built a fortress around their work with valid public protection arguments, they could have complied with existing laws and standards (signing and sealing work product comes to mind), they could have supported new laws and standards that further defined the practice of land surveying, and most certainly, they could have demanded their technicians have an LSIT (ultimately, a PLS) – which would have clearly separated us from them. The community, as a whole, chose not to protect themselves and the public.

Look around your place of employment, how many field and/or office technicians are there without an LSIT? Why is that? What difference did licensed supervision make, really? Who is willing to supervise someone for 5, 10, 15 years and not require their staff to prove to be minimally competent by testing on behalf of and for the preservation of the profession? Look around, what is the educational background of new hires?

Money meet mouth, all but two of our ten technicians have an LSIT – three or four of them will have a PLS in the next year. The two remaining technicians are scheduled to test again. I believe land surveying is a profession and we need to show minimum competency through licensure and education. In the next year we are projecting that fifty percent of our firm will be licensed land surveyors with the other 50% being LSITs, Alamo style.

Why do land surveyors demand others to be licensed, presumably to know and follow the laws, when they do not place the same demands on their own brethren?

Lastly, how much difference does the land surveyors' mapping work product look from the unlicensed folks? I routinely see work product without signature and seal, epoch and datum statements, do as I say not as I do?

The land surveying community chose their path and now, they will live with the consequences of their decisions.

The sky isn't falling, you'll all be here and thriving in 10 years. What could go wrong?

DWoolley

[hellsangle]

The surveying profession may become extinct some day . . . but if the collapse of the Atlantic meridional overturning circulation (AMOC) is near - so will we all! (Don't sweat the small stuff.)

Who was the complainant and did he/she/they having standing? Were there fiscal damages caused by the unlicensed technicians?

Crazy Phil

[Mike Mueller]

How do you feel about the judge's decision in this case? Do you believe the citations were justified based on the tasks performed by GPRS, or do you think the use of these technologies should be considered more of a technical function rather than professional practice?

Oddly enough I think both the citations were warranted by the laws referenced, AND that the judge got it right by finding them innocent. Most of those laws are outdated IMO. I think the stud finder and treasure hunter analogies are apt examples of people using the same tools for different things. It is not the use of the tool that makes something surveying, engineering, or geophysist-ing(sp).

What do you believe is the threshold for practicing land surveying in the context of modern technology? Given that devices like the Pix4D viDock, iPhones paired with Emlid receivers, and new utility locating equipment with RTN services can produce georeferenced 3D models with minimal human input, at what point does the operation of these tools cross into the realm of land surveying?

I personally think a good way to think of it is by considering what is shown vs not shown. A topographic map is almost more concerned with what it is NOT showing, than what it is. The judgement to determine what is being highlighted or brought to the attention of the viewer is like choosing what to write.

Should more explicit guidelines or regulations exist regarding using such technologies in our field? As technology evolves, should our laws and regulations be updated to define better what constitutes land surveying versus what can be done by unlicensed technicians without PLS oversight?

I hope we change the laws. I personally would love to see a tiered system that acknowledges the reality of modern tools and goes for the "big tent" approach, rather than a codified fortress of solitude were we try and defend our fiefdom to the detriment of society both in terms of economic efficiencies and in terms of encouraging law breaking when common sense runs into regulation. Fortresses always fail. Castles vs cannons, or another way to think of it, technology changed the rules and the old rules stop being useful.

I’m interested in hearing your thoughts and experiences on this matter. How do you integrate these new technologies into your practice, and where do you draw the line between technician work and professional land surveying?

Personally I like the judgement standard. IE if the outcome had several possible options and those outcomes were based on terms like "best available" or "most appropriate" or some other phrase that encapsulates the idea that experience and outside information were brought to bear to make the decision. Stating the pipe is 24" in diameter vs stating the pipe is large enough to do the job. Saying this is a iron pipe in the ground located 0.25 from the fence post vs stating this pipe represents your boundary.

I think the heart of the issue is that technology has consistently raised the capabilities of the "average person":
3D printers have allowed anyone with a smart phone to copy anything they want. Used to take skills to cast a metal object.
Guns took away all the skills of swordsmen. "God made men, Colt made them equal"
Aspirin saves folks from fevers. Used to need a shaman or barber.
Calculators (electronic) replaced all the calculators (human).
Where did the typing pool go? Replaced by Word, and Xerox. Carbon copy manufacturers are down to just Dave's local union :)
Think of all the poor telegraph workers replaced by phones. Speaking of, don't we all just hate the electronic switchboards that took away the jobs of the operators?

When it comes to landsurveying, I think it is like most things and follows Jevron's paradox which says as things get easier/more efficeint to use/exploit it does not decrease the use, but raises it. https://en.wikipedia.org/wiki/Jevons_paradox The classic example is when a car uses less fuel, people just drive farther. It was not the fuel tank size that limited the distance traveled, but really the cost benefit in terms of money.

Consider a perfect 3D model of your entire property, including a BIM of your house and all the underground utilities. If that cost as much as a hamburger, everyone would have it. If it cost as much as a good vacation, some would have it. If it costs what it costs now, then its only worth getting when there is some way to monetize it to recoup your costs.

So as the cost of "getting a surey" goes down because of increased powers of tools, more folks will get them and use them. Will all those surveys be done by someone licensed by the DCA of California? Almost certainly not. Will they be done by folks who should be considered surveyors? Probably not because the tools will do it. Will surveyors still have work? Almost certainly. Due to our pricing structure we will likely remain as just the tip of the iceberg, both in terms of market share and in terms of standards.

I personally take the long view, and I know I am getting a little philosophical here, but at the end of the day, society exists to keep us safe and happy. If my kid can be raised in a safe enough world with enough food I am happy. If that goal is accomplished by us all eating mongongo nuts https://en.wikipedia.org/wiki/Mongongo, or making guns germs and steel, https://en.wikipedia.org/wiki/Guns,_Germs,_and_Steel its all the same to me.

Or as Phil mentioned... its all moot due to forces way bigger than some CA laws. By the way Phil, I would recommend the book "The End of the World is Just the Beginning" by Peter Zeihan. It was like Dr Strangelove for me :)

Mikey Mueller, PLS 9076
Sonoma County

[DWoolley]

The surveying profession may become extinct some day . . . but if the collapse of the Atlantic meridional overturning circulation (AMOC) is near - so will we all! (Don't sweat the small stuff.)
...
Crazy Phil

Fortunately, the millennials and GenZ land surveyors will not need to concern themselves with making a living due to the AMOC. Worry not about land surveying because you will all be dead soon, thanks for the heads up Phil. I am sure they are relieved knowing they will all perish soon - it must be a "mysterious ways" thing.

DWoolley

[DWoolley]

How do you feel about the judge's decision in this case? Do you believe the citations were justified based on the tasks performed by GPRS, or do you think the use of these technologies should be considered more of a technical function rather than professional practice?

Oddly enough I think both the citations were warranted by the laws referenced, AND that the judge got it right by finding them innocent. Most of those laws are outdated IMO. I think the stud finder and treasure hunter analogies are apt examples of people using the same tools for different things. It is not the use of the tool that makes something surveying, engineering, or geophysist-ing(sp).
...

Mikey Mueller, PLS 9076
Sonoma County

A judge does not have the discretion to determine a law is outdated and therefore, should not be enforced. That is the responsibly of the Legislature.

The majority of the laws related to land surveying are ancient law and date back more than 100 years. By the same logic, time to deregulate? Phil, do we have time or should I start my ark over the weekend? Gosh, I wish you had told me sooner.

DWoolley

[hellsangle]

Naw, Dave - if the Tipping Point is in the future you and I'll be dead before it happens . . . and it will take a generation+/- before we become the fate of the dinosaurs.

New moniker: Phil-the-sky-is-falling? LOL

Enjoy what we have.

[DWoolley]

Here is the other side of the argument that I have twice presented to the regulating board:

When folks mark and locate underground utilities under the current system they utilize a pdf of the paper plans or direct connect etc. and the presumed accuracy is 18" or 24" each side of the marked line. The SUE work (not 811) often includes potholing.

The GIS data, especially when coupled with GPS, is presumed to be "survey grade" and/or "sub-centimeter". Typically, the relative coordinates are well within 18" to 24" range. However, that is not the problem. The problem is most RTN or geostationary satellite systems coordinate generating platforms produce a real time coordinate in today's epoch. There are many GIS systems that remain in the original 1991.35 coordinate system. The difference between today's coordinates and the 1991.35 is well out of the 18" to 24" tolerance.

Run though a likely scenario, the mark and locate team has a plan that shows the gas line is 12' off the curb. They snap to a line in the 1991.35 GIS system and stake it out with the real time epoch - placing them several feet out of position. In California we have a tolerance that requires "hand digging" when you get, wait for it, within 18" to 24" inches. Restated, the "sub-centimeter" GPS with the CAD that displays 9 decimal places places the gas line outside of the hand digging area and backhoe operator is digging like a banshee over the gas line, boom!

The current California law requires the new underground utilities to be mapped into a GIS system. That is the limits of the law i.e. without reference to any coordinate system, datums, accuracy, etc. This means the GIS will be in a given epoch (or not) and the collection of the as-built could be completed with a phone. Fast forward a few years, staking from the as-built location, boom! The current EM locators have GPS onboard and "staking" is a feature.

Let's say they have similar enough epochs they are within 18" to 24". There is a good chance they will mark the line 12' incorrectly because the default setting in most data collectors is international feet not US survey feet - until they release the 2022 reference frame, when international feet will be correct, again, boom! Has anyone looked up the difference between international feet and US survey feet on Google? Google states the difference is 0.01' per mile. Who would concern themselves with 0.01' per mile? There is no "word to the wise" that demonstrates SPC is 400 miles x 1100 miles (4'x11'), again, boom!

Fortunately, as a matter of life and limb, the underground folks have asked me to teach them - they seem much more eager to learn about so-called "surveying" than our "no continuing education", no regulation crowd.

Although unsurprising, it is unfortunate the BPELSG experts didn't explain why the license was required for marking underground utilities. It truly is a matter of public safety. I wish they had presented the fact 67% of the billions of dollars in damages annually is due to locator error.

DWoolley

[DWoolley]

...
Although unsurprising, it is unfortunate the BPELSG experts didn't explain why the license was required for marking underground utilities. It truly is a matter of public safety. I wish they had presented the fact 67% of the billions of dollars in damages annually is due to locator error.

DWoolley

And the BPELSG expert should have mentioned the California Government Code specifies the mark and locate work must be completed by a "qualified person" and refers to the California Health and Safety code to define a "qualified person". Almost none of the folks doing the mark and locate work meet the definition of a "qualified person".

BPELSG should have had these folks dead to rights.

If only the land surveyors...well, if wishes were horses we'd all be riders.

DWoolley

[Mike Mueller]

Naw, Dave - if the Tipping Point is in the future you and I'll be dead before it happens . . . and it will take a generation+/- before we become the fate of the dinosaurs.

New moniker: Phil-the-sky-is-falling? LOL

Enjoy what we have.

I have not kept up with the literature regarding the speed of the climate flips, but last I read the flips from warm to ice never melting was like 10-15 years according to the pollen counts in Greenland.

The Holocene interglacial period that we are currently in has gone on significantly longer than the average interglacial. Unless we happen to live at the end of the glacial period that has lasted for roughly 2,580,000 years, (https://en.wikipedia.org/wiki/Quaternary_glaciation) we are due for ice sheets to cover all of New England.

Heck, I wouldn't be surprised if scientists discover that the Little Ice Age was the onset of the next glaciation period, and we were "saved" by the industrial revolution. (https://en.wikipedia.org/wiki/Little_Ice_Age) Given that nature never stands still, I am way happier with a warming earth than the alternative :)

/hits siding switch and sends train back on tracks
Mikey Mueller, PLS 9076
Sonoma County

[Mike Mueller]

Fortunately, as a matter of life and limb, the underground folks have asked me to teach them - they seem much more eager to learn about so-called "surveying" than our "no continuing education", no regulation crowd.

See, another example of the profession of surveying living outside the confines of the DCA. In all seriousness, this is exactly what I meant when I wrote about the iceberg above. Dave, you are the tip of the iceberg from my other post. Helping those who use a subset of the surveying skills in their daily life, but who aren't surveyors. There is a big tent of folks out there like that and it seems like you are already embracing that approach by helping the underground locators do their job better, even if its not under a LS.

Mikey Mueller, PLS 9076
Sonoma County

[DWoolley]

According to: https://geospatial.blogs.com/geospatial ... llion.html

" The 2019 estimated national cost of damage to underground utilities estimated by the CGA is approximately $30 billion annually. In a recent report the Infrastructure Protection Coalition estimates that an additional $61 billion in waste, inefficiency, and excess cost is embedded in the system. It has proposed 13 recommendations that would eliminate $40 billion of the combined $90 billion in damage and waste costs over a 3- to 5-year timeline. The cost of implementing the recommendations is estimated at $1.2 billion. The return on investment (ROI) for implementing these measures is estimated to be $33 for every $1 invested in improving the system. ."

Recommendation number 10 (a) and (b):

10. Excavation Site Accurate Description:

a. Premark / White-line Requirement: Require pre-mark or white-lining of any proposed excavation area that includes traditional reference to intersecting streets/roadways paired with one or more of the following options: GPS coordinates, electronic white-line using aerial image(s), or physical white-lining.

b. GIS System Adoption by Asset Owners: By 2030, cause all asset owners to adopt a GIS system for asset mapping and require notification through 811 using GPS coordinates.

Arguably, this was not as much a land surveying issue – locating and paint marking utilities on the ground without a depth - until the future solutions were anchored in mapping and mapping "accurate" GIS data to mark, locate and as-built the utilities that includes depth. The new ASCE standards for mark, locate and mapping have accuracy levels for horizontal and vertical standards and reporting. The proposed solutions involve measuring horizontally (geodetic) and vertically anchored on datums for mapping purposes. Minnesota has an active bill that is requiring GIS use for underground utility locations. Montana and Colorado already have similar laws in place.

I think the land surveying community, taken as a whole, is little more than the helmet wearing obstacle to their progress.

The land surveyors, for the most part, passed on the first round of GIS in the late 1990s – repeatedly telling those folks they needed land surveyors "it is the law!". In turn, they created a “Land Surveying Summit” conference that drew more than 20,000 participants this year under a different name that no longer includes "surveying". There was a problem the GIS crowd did not anticipate, the land surveyors were not interested in participating in the conference, their community and acceptance as being the experts.

The GIS folks necessarily created the GISp - because the land surveyors were only interested in telling them they couldn't do the work, but not doing the work and most certainly, not leading an industry comprised of educated and well financed groups. Are the land surveyors the flagellants of the professions?

Today that GISp community passes around Crownholm, advocate changing the model law to have tiered licenses to effectively deregulate portions of the land surveying protected by California law. I remain confident the deregulation will take place - attrition alone will do it over a long enough timeline . However, I do not think we will have to wait that long (my guess, less than 10 years and only rubble will remain of the profession as we know it today, where is the incentive for the super majority over 55 crowd to sustain and/or lead?) - the land surveying adjacent communities will simply do the work without land surveyors while we bear witness and fade into obscurity. This is the price for low recruiting standards, failure to demand licensure and the general lawlessness in business practices i.e. citation stats that date back to the Benson era.

In a nutshell, the sticking point to the GPS-GIS-Standards Mapping and accuracy certification folks in the land surveying community, sans LSIT employees, bang away their only known tune, Roll Out the Barrel, with the passion of Jerry Lee Lewis, circa '58, all the while espousing to be a virtuoso akin to Bach. It coulda, shoulda, woulda have been different, but the land surveying community cannot have nice things.

Lux Subterra teaches a monthly 40 hour locating/detection and GPR class – both are NULCA/NSF certified and taught at the local community college. The demand is shifting hard to include mapping. We have a curriculum and instructors- it is refreshing to have an audience wanting more education, standards, and modifications of the laws.

DWoolley

[LS_8750]

American Society for Photogrammetry and Remote Sensing (ASPRS) recently published Geospatial Accuracy Standards:

https://www.asprs.org/revisions-to-the- ... -data-2023