BASE Jumpers vs. NPS

• The Yosemite 5 - Protest Jumps from El Capitan
• Aerial Delivery Laws
• Five People Sentenced In Connection With Fatal Parachute Jump Off El Capitan in Yosemite National Park - August 1998
• Judge Rejects Effort To Stop Prosection Of 9 - July 11, 1998
• BASE Jumper Convicted; Ordered To Pay $9,000 - March 26, 1998
• United States of America, Plaintiff-Appellant, vs. The BASE Jumpers, Appellees - Oct. 31, 1997
• United States of America, Plaintiff, vs. The BASE Jumpers - Sept. 30, 1997

The Yosemite 5 - Protest Jumps from El Capitan

NPS Report

On Friday, October 22, 1999 Jan Davis, 60, died while attempting a BASE jump from El Capitan in Yosemite Valley. Davis' jump was part of an organized act of civil disobedience protesting the NPS air delivery regulations (36 CFR 2.17(a)), which make BASE jumping illegal in national park areas without a permit. The demonstration organizer, Avery Badenhop, who is the NPS permittee for the 300-plus BASE jumpers at Bridge Day at New River Gorge NR, wrote a letter to the superintendent informing him of his intention to hold the demonstration. At a meeting with the chief ranger before the event, Badenhop was informed that the jump was illegal, that those who did it would be charged criminally, and their equipment would be seized. Badenhop would not identify the number of persons who intended to make the illegal jump, but hinted that it might be as many as 50. He also said that there likely would be a large crowd at the landing area in support of the illegal jumpers, and that he intended to attract as much media coverage as he could. With the potential for the demonstration overwhelming the park's resources, a Pacific West SET team (USPP) was called in for the incident. Davis was the fourth of five jumpers who showed up at the top of El Cap to jump. The first three made successful jumps and landed to the cheers of about 150 people, some of who were waving flags and banners in support of BASE jumping in national park areas, and were taken into custody. Davis then launched and free-fell for more than 15 seconds until she hit the talus slope at the base of the cliff. Her body was evacuated by long-line under the park's contract helicopter. Those who witnessed the fall saw no sign of her pilot chute ever being deployed to initiate the opening of her main parachute. Badenhop, who was to be the fifth jumper, opted not to continue and walked off the mountain. At least three TV camera crews and an Associated Press reporter covered the demonstration, and broadcast and print coverage has been intense. Park special agents are investigating the incident; decisions about prosecution will be made following consultation with the U.S. Attorney's Office.

United States of America vs. Avery Badenhop

The Government had charged me (Avery Badenhop) with Aiding and Abetting and Illegal Aerial Delivery, additionally, I was charged with Conspiracy, apparently for my involvement with planning the protest.

Initially, Dan Horner, an NPS criminal investigator contacted me by e-mail back in August of this year. The premise of the e-mail was about a rumor that there was going to be a mass protest jump in Yosemite, following the death of Frank Gambalie III at the hands of the NPS in June. At that time I had no involvement whatsoever with any plan to protest in Yosemite. NPS officials were aware of my standing in the BASE community, and sought me out as a go between the jumpers and the government. I did agree to take on the task. At that point, in privacy, I contacted various factions of BASE jumpers, to get the scoup on the mass jump. I was able to quell that situation, in exchange for a more structured one. I did inform the NPS that a protest, including jumps from El Capitan would take place on October 22, 1999. They did participate in the planning, and coordination of that protest. This was a protest of NPS policy, a policy of refusing to give permits to us, so we may jump from the cliffs in the National Parks.

On the day of the protest, NPS officials did indeed set up a landing area for us in El Cap Meadow, and even went as far as placing an autographed ranger hat on the center of a target. In our negotiations, the NPS seemed sure that we would not be able to control our landings as well as we said. I am a National Champion in BASE Accuracy, and assured them I could nail the bulls-eye. I was to be the last jumper off El Cap that day, but my opportunity did not materialize. The first three jumps went without any glitches, all three jumpers, Henry Boger, Joe Weber, and Mick Knutson all landed in the designated landing area. The fourth jumper, Jan Davis then jumped, but failed to deploy her parachute. She died as a result. We did not ever contend that BASE is a safe sport, we contend that it is dangerous, but we have a right to participate in the sport nevertheless. I did not jump, I walked back off the mountain. My parachute was confiscated. The three men who jumped were charged with Illegal Aerial Delivery, and Conspiracy. Their gear was confiscated, they were cited and released, as per agreement previously by the NPS.

Our group of four jumpers agreed amongst ourselves, that we would represent ourselves in the matter, and I engaged Beth Stockdale, acting Prosecutor in Yosemite, in the proceedings. (Beth is the acting prosecutor, as her predecessor, Scott Connelly, was removed from that position due to his conviction on charges of child molestation.) Although at times we agreed to disagree, the entire matter was handled amicably by both sides. I did file a Motion to Dismiss, based on the following:

Motion To Dismiss

NOW COMES the Defendant, Avery Badenhop, without councel and representing himself, and respectfully move this Court for an order dismissing this cause of action. In support of this Motion he states as follows:
1. He is the Defendant in this cause of action.
2. This cause of action arises out of the enforcement of section 2.17, which is called Unauthorized Air Delivery.
3. He has repeatedly applied for permits under that section and been denied, and has offered to abide by any reasonable rules, regulations or conditions which the Park Service may impose upon him.
4. The denial of his request for a permit is part of a blanket refusal to grant any permits for BASE or cliff jumping within Park Service lands, except for one six-hour permit issued annually for bridge jumping at the New River Gorge Bridge in Fayetteville, West Virginia.
5. Such policy on the part of the National Park Service is arbitrary, capricious, without basis, without any opportunity for public hearings or input of public opinion, and runs counter to the purpose for the national parks. (Incidentally, I am the current permit holder for Bridge Day, in West Virginia.)

As part of a plea agreement, I withdrew the Motion to Dismiss. As part of the plea agreement, the charges of conspiracy were dismissed. The three men who did jump must forfeit their jumping gear to the government, my un-jumped gear was returned to me,also part of the plea agreement. The four of us plead Nolo Contendre, that is, we did not contest the charges. We have been fined $2010.00 each, and also been forced to pay the cost of recovering the body of our fallen protester, Jan Davis. The cost is $1538.83 for each of us, a fact that was explained to the court by the prosecutor. I must comment on the Magistrate Judge Hollis Best, who presided over the case. He was hardly bright eyed and bushy tailed as I was in court. He was complacent, and confused. He repeatedly got names, dates and facts incorrect. If we had gone to trial, we could have tongue tied him in a minute. At the end of the proceedings, I, and the other convicted jumpers were permitted to make a statement, and this is mine:

Statement Of Elocution

1) I, and many of my BASE jumping colleagues were disturbed and appalled that Frank Gambalie III lost his life due to the policies and actions of Park personnel. I am very sorry for the loss.
2) Park Security personnel sought me out, and engaged me directly regarding the organization of a protest of National Park Policy.
3) I sought to restrict the protest to only those completely qualified and experienced in BASE jumping. Unfortunately, Jan Davis lost her life, and I am very sorry for the loss.
4) I attempted in good faith to make the protest peaceful and safe.
5) I did not deploy my parachute during the protest, and still it was confiscated.
6) I am no more guilty of Aiding and Abetting than the Park's Security personnel, or than was the Reverend Vivian who negotiated with various Police personnel during the Southern Christian Leadership Conference protests in the early 60's.
7) I am very sorry for the Park Administrator's position on this matter, all I want is LEGAL access to this Park to pursue my freedom, and my sport.
(End of statement.)

As a BASE jumper, all I take is pictures, and all I leave is footprints. However, if I had sprayed the Yosemite forest with bullets, I would have received a lesser sentence, as the following case will make evident. This case had the same prosecutor, and the same magistrate judge:

99-703 - Yosemite NP (CA) - Poaching
On September 18th, a ranger in the Mather District heard shots coming from inside the park near the boundary and contacted Nai Saefong and two juveniles shortly thereafter. The three were armed with a hunting rifle, shotguns and handguns, and were in possession of dead squirrels. On November 23rd, Saefong appeared in magistrate's court in the park and pled guilty to hunting, possession of dead animals (16 USC 60 and 62), and possession of weapons (36 CFR 2.4). Saefong was fined $500 and placed on a year's probation. The weapons were forfeited to the government for destruction. Also forfeited were Saefong's California hunting license, ammunition, and other associated hunting items. Under federal juvenile delinquency provisions, the two juveniles will be referred to the county for prosecution. [Beth Stockdale, Acting Prosecutor, YOSE, 11/24]

And if I had been digging up the ground and stealing from the entire nation its artifacts and history, I would have received a lesser sentence, as this case from Virginia makes evident:

99-716 - Prince William Forest Park (VA) - ARPA Conviction
On November 26th, ranger George Liffert checked out a suspicious vehicle parked on a state road adjacent to the park and saw Larry Hurt of Manassas actively operating a metal detector within the park. Hurt had a mini-ball which he'd excavated in his possession and showed Liffert several areas where he'd dug for relics. NPS archeologist Bob Sonderman led a regional archeological "rapid response team" in evaluating the scope and nature of the damage. On November 30th, Hurt was sentenced under a plea agreement for the ARPA offense. He forfeited his metal detector (which he'd owned for only three weeks), paid restitution of $639, and paid a $500 fine. The magistrate waived probation because of Hurt's cooperation in the investigation. [George Liffert, PR, PRWI, 12/1].

I have an ongoing relationship with officials in Yosemite National Park. In this relationship there is mutual respect. They know of my stance, and are aware that I believe in my cause, and that I am not going to just go away. On leaving the courthouse yesterday, Dan Horner and I exchanged a few polite words, and I let him know he's still got some cliffs I want to jump. I did also offer my sincere condolences to Dan Horner, the NPS, and to the family and friends of Ranger Steve Jarrel, who was shot and killed, while on duty in the state of Hawaii this past Sunday, at the Kaloko-Honokohau National Historic Park. In closing, I would ask that our attention now go to a prisoner at the Washoe County Jail in Reno, Nevada. That prisoner is Dennis McGlynn. He too was convicted of Aiding and Abetting an Illegal Aerial Delivery, that took place at the Lake Powell National Recreation Area in 1994. Dennis is now serving three months in jail, which was part of his sentence. He is due to be released on January 4, 2000. He has already spent my birthday, Bridge Day, Thanksgiving and his birthday incarcerated. Is it now fair or necessary that he spend Christmas and the New Year still in jail? Murderers, rapists and robbers all get early release for good behavior, why not a man convicted of a very petty offense? I'm sure not even the NPS administrators want to be the Grinch who stole Dennis' Christmas.
Avery Badenhop

Aerial Delivery

Illegal Aerial Delivery is a 1965 law originally set in place to prevent the resupplying of squatters in the National Parks via parachute. It has been repeatedly used against backcountry parachutists for decades.

CODE OF FEDERAL REGULATIONS, TITLE 36 - PARKS, FORESTS, AND PUBLIC PROPERTY, CHAPTER 1 - NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, PART 2--RESOURCE PROTECTION, PUBLIC USE AND RECREATION

36 CFR 2.17 - Aircraft And Air Delivery
(a) The following are prohibited:

1. Operating or using aircraft on lands or water [...]
2. Where a water surface is designated pursuant to paragraph (a.1) of this section, operating or using aircraft under power on the water within 500 feet [...]
3. Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit.

2006 NPS Management Policies
8.2.2.7 Parachuting
Parachuting (or BASE jumping), whether from an aircraft, structure, or natural feature, is generally prohibited by 36 CFR 2.17(a)(3). However, if determined through a park planning process to be an appropriate activity, it may be allowed pursuant to the terms and conditions of a permit.

...and here is the old policy for reference:

2001 NPS Management Policies
8.2.2.7 BASE Jumping
BASE (Buildings, Antennae, Spans, Earth forms) jumping? also known as fixed object jumping? involves an individual wearing a parachute jumping from buildings, antennae, spans (bridges), and earth forms (cliffs). This is not an appropriate public use activity within national park areas, and is prohibited by 36 CFR 2. 17( 3).

Five People Sentenced In Connection With Fatal Parachute Jump Off El Capitan in Yosemite National Park

Five people have been sentenced in U.S. District Court for participating in, and assisting, an illegal parachute jump in Yosemite National Park which resulted in the death of a sixth man. All five pleaded guilty to misdemeanor charges stemming from a BASE jump from El Capitan.

BASE jumping is an activity which involves jumping from a fixed object and deploying a parachute for landing. It was permitted on a trial basis in Yosemite for a brief period in 1980, but was discontinued due to frequent injuries, resource damage, illegal jumps, and spectator management problems experienced during the trial period.

Jeff Christman, 42, of Buckeye, Arizona, was one three who made the illegal jump off the 3000-foot cliff in the early morning of October 21, 1996. Witnesses saw two people land parachutes safely in the meadow at the bottom. Christman's parachute opened much higher than is typical for jumpers at this site. Witnesses said that he immediately slammed into the cliff, and then hung limp in his harness as his parachute bumped the wall several more times. Eventually his parachute hung up on a rock at El Capitan Tower, about 1300 feet above the floor of Yosemite Valley.

Rangers rappelled from a helicopter onto ledges at El Cap Tower after members of his group reported the accident 45 minutes later. Christman was dead when the rescuers got to him.

Christman was the fourth person to die in Yosemite National Park while BASE jumping from the cliffs. There have also been more than a dozen serious injuries since the late 1970s, when the activity started to occur in the park.

Under a plea agreement, the five defendants each received a $2000 fine, one year of supervised probation, and they must split the $5690 cost of the recovery of Christman's body. When Yosemite rangers catch BASE jumpers, they arrest them and seize their parachuting equipment as evidence. When convicted, the jumpers have recently been sentenced to from $500 to $2000 in fines, and their equipment has frequently been ordered forfeited.

Judge Rejects Effort To Stop Prosection Of 9

Last updated 07/11/1998, 12:37 a.m. MT. By Joe Costanzo Deseret News staff writer.

A federal judge on Friday rejected the latest in a series of unusual bids to stop the prosecution of nine BASE jumpers who took a prohibited leap off a 400-foot cliff at Lake Powell. The nine men were cited in 1995 with violating a National Park Service rule against the delivery or retrieval of a person or object by parachute, helicopter or other airborne means except in emergencies or with a permit. BASE jumping refers to leaps off buildings, antennae, spans and earth forms.

Although the case is only a "petty misdemeanor," it has spawned an expensive legal battle that has been waged over the past three years by a platoon of private and government lawyers in federal courts in Utah and Colorado. And with a criminal trial now slated for October along with the threat of civil litigation to follow, the case could break records for misdemeanor litigation.

On one side is a growing "extreme sport" seeking legitimacy and access to national recreational areas. On the other is the National Park Service, which considers BASE jumping incompatible with other recreational activities and a burden on park resources.

In the most recent skirmish, attorney Fred M. Morelli contended the Park Service doesn't have the authority to regulate the airspace over Lake Powell. Airspace is the domain of the Federal Aviation Administration, he said. Moreover, Lake Powell is a designated landing zone where aircraft - including the "ram air canopies" used by the BASE jumpers - are permitted to land, he said. Unlike the old-fashioned round parachutes that simply soften a gravity-controlled landing, the BASE jumpers' canopies are designed to navigate through the air, he said. Assistant U.S. attorney Mark Y. Hirata said the FAA has decided that BASE jumping is not an aeronautical activity over which it has jurisdiction, unless it impedes aeronautical activity. And he rejected the comparison with aircraft, insisting the BASE jumpers' equipment is by definition a parachute. Morelli persisted, pointing to the Wright brothers' bicycle-powered airplane that took off from a hilltop. Was it a bike or an airplane? And what about all the people who jump off cliffs at Lake Powell without canopies or parachutes? Where do they fit into the picture? Morelli asked. U.S. District Senior Judge Bruce S. Jenkins peppered Hirata with questions as well, asking, for example, whether the regulation applied to someone who jumped from a cliff in the park but landed outside the park boundary. "What if they jumped out of an aircraft?" Jenkins asked. Would that make them subject to FAA regulation? The judge also wondered why the Park Service hadn't simply drafted a regulation prohibiting BASE jumping without a permit, if that's what it wants to do. "They could do it in one sentence . . . instead of trying to shoehorn it into something else," he said. Hirata said discussions are being held within the Park Service to address the issue but nothing definite has been proposed.

Frustrated by the answers, Jenkins said, "Tell me how to solve this crazy problem."

Charged in the Lake Powell case are William Oxx, Jonathan Oxx, Martin Tilly, Christopher Berke, David Katz, Steve Mullholland, John M. Henderson, Aaron M. Brennan and Michael Kvale.

Jenkins last year dismissed the charges against the nine men after concluding that the regulation was too ambiguous and that the BASE jumpers' canopies are similar to the non-powered aircraft that are allowed at Lake Powell.

However, prosecutors appealed the ruling to the U.S. 10th Circuit Court of Appeals, which reversed Jenkins and sent the case back for trial. The appeals judges said, "A parachute by any other name is still a parachute, and delivering a person by parachute is prohibited." Though governed by the appeals court order, Jenkins on Friday reiterated his concerns regarding the ambiguity of the regulation.

Despite his obvious misgivings about the case, Jenkins denied Morelli's motion for summary judgment on the pre-emption issue, denied a motion to suppress evidence and set the matter for trial for Oct. 6.

BASE Jumper Convicted; Ordered To Pay $9,000

WEST GLACIER, MONT. - A parachutist from Marion, Mont., who illegally BASE jumped off the summit of Mt. Siyeh last September, plead no contest Wednesday to federal charges filed against him, Glacier National Park officials announced today.

On September 24, 1997, (the parachutist) attempted an illegal parachute jump from Mt. Siyeh (10,014 feet). He immediately experienced problems when he flew into the rock face and ultimately hung from the rocks in his parachute approximately 400 feet below the summit. He was suspended on the 3,000-foot sheer cliff on Mt. Siyeh's north face for several hours before park rangers rescued him.

During the rescue, park ranger Charlie Logan rappelled down to the victim, secured, and stabilized him. He and Logan were both raised to the summit by other park rangers where he was transported by helicopter to West Glacier and then transferred to the A.L.E.R.T. air ambulance and flown to Kalispell Regional Hospital where he was treated and released that night for soft tissue injuries to his lower leg.

As a result of Wednesday's conviction, he was ordered by Federal Magistrate Richard Cebull of Great Falls to pay nearly $9,000 for the costs associated with his rescue and was put on probation for two years.

The conditions of his probation require that he not violate any state, federal or local laws; he must sell his parachute and apply the proceeds towards the rescue costs; and he may not enter Glacier National Park during the period of his probation.

Chief Park Ranger Steve Frye stated, "This conviction sends a message to anyone considering such activities. Parachuting is not allowed at Glacier National Park for good reason. Inherent risks and obstacles make such activity inappropriate in a setting such as Glacier. Not only did his illegal parachuting place himself at great risk, but also the lives of those rangers charged with rescuing him."

Mt. Siyeh is located just east of the Continental Divide in the north central portion of Glacier National Park and is one of six peaks rising above 10,000 feet.

United States of America, Plaintiff-Appellant, vs. The BASE Jumpers, Appellees

No. 96-4173.
United States Court of Appeals, Tenth Circuit.
Oct. 31, 1997.
Appeal From The United States District Court For The District Of Utah
(D.C. No. 96-CR-077 J)

FWIW, it appears that the US District Court in Utah decided in favor of the BASE jumpers. The gov't appealed, however, and the 10th Circuit reversed the lower court decision, which sucks. Anyway, I found this sort of interesting, so I thought I'd pass it along. It is long and I didn't bother to edit it much, so it may be choppy.
From: Marc (on rec.skydiving)

1) The government appeals from an order dismissing a petty offense information charging Defendants-Appellees with the delivery of persons by parachute in a national park without a permit and not in an emergency, in violation of 36 C.F.R. s 2.17(a)(3) (1996). Our jurisdiction arises under 28 U.S.C. s 1291 and 18 U.S.C. s 3731. We reverse.

Background

Defendants are BASE jumpers. "BASE" is an acronym for buildings, antennae, spans, and earth forms; when a person has completed a jump from each structure he can be certified as a BASE jumper. Defendants' charges stem from jumps during the week of April 28 to May 3, 1995, when they jumped from cliffs on the Utah side of the Glen Canyon National Recreation Area. After a brief free-fall they deployed parachutes, and all but one landed safely on the surface of Lake Powell.

The district court dismissed the information because of what it considered incurable ambiguity in the governing regulations. Its rationale was that defendants' BASE-jumping parachutes were somewhat similar to non-powered aircraft, which are allowed on Lake Powell under 36 C.F.R. s 2.17(a)(1) and s 7.70(a)(6) (1996). The court ruled that these provisions conflicted with a phrase in s 2.17(a)(3) which prohibits delivery of a person by "other airborne means" without a permit. That phrase, the court said, clearly prohibits landing a plane on Lake Powell, in contradiction of the provisions allowing it. Under these circumstances the district court held the regulations did not adequately notify the average person what conduct was prohibited, and the rule of lenity required the incurably ambiguous regulations to be construed in favor of the defendants. On appeal the government argues that the applicable regulation suffers from no ambiguity and is clear enough on its face to give defendants notice that their conduct was prohibited.

Discussion

Although we generally review the dismissal of an indictment or information for abuse of discretion, we review de novo a dismissal based on the district court's interpretation of the governing law. See United States v. Wood, 6 F.3d 692, 694 (10th Cir.1993).

As with any question of interpretation, we begin with the plain language of the regulation, which "must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). Section 2.17(a)(3) provides: "(a) The following are prohibited: ... (3) Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit." 36 C.F.R. s 2.17(a)(3) (1996).

Defendants argue, first, that their conduct cannot be regulated under s 2.17(a)(3) because their parachutes provided the kind of control characteristic of non-powered aircraft, which are permitted under s 2.17(a)(1). The district court, although not finding that defendants' parachutes were "aircraft," agreed that BASE-jumping parachutes "provide a BASE jumper with control akin to horizontal flight that enables the jumper effectively to steer clear of the structure leapt from and to guide the parachute to a safe landing area." Aplt.App. at 22. Thus defendants argue that their activity is covered by s 2.17(a)(1), which prohibits operation of aircraft except at places designated by special regulations. The surface of Lake Powell is such a designated landing area. See 36 C.F.R. s 7.70(a)(6) (1996). Accordingly the defendants assert that because their BASE- jumping parachutes are really non-powered aircraft, and such aircraft are permitted on Lake Powell, they have not violated the regulation. This argument, of course, turns on whether the defendants' BASE-jumping devices are non-powered aircraft or are parachutes within the meaning of s 2.17(a)(3).

2) Second, defendants argue that the regulatory prohibition of "delivering" a person is too ambiguous to cover their conduct.

Third, they argue that even if "delivery" unambiguously applies to their conduct, a conflict exists between s 2.17(a)(3), which prohibits delivery of a person by "other airborne means" without a permit, and ss 2.17(a)(1) and 7.70(a)(6), which allow aircraft on Lake Powell. This ambiguity, they argue, deprived them of adequate notice that their conduct was prohibited.

We turn first to the primary issue on appeal: are defendants' BASE-jumping parachutes included within the meaning of "parachute" in s 2.17(a)(3)? Federal regulations define a parachute as "a device used or intended to be used to retard the fall of a body or object through the air." 14 C.F.R. s 1.1 (1997). The parachutes at issue here do exactly that. Technological improvements in the shape, maneuverability, and control of modern parachutes, including those used here, do not make them cease to be parachutes. Defendants uniformly referred to their BASE-jumping apparatus as a "parachute" even while protesting it was something else, see Aplees. Brief at 4, 6, 7, 8, until oral argument, when they began calling the parachute an airfoil. The district court noted in its memorandum opinion that "BASE jumping does involve the use of a parachute." Aplt.App. at 19. We conclude that the term "parachute" in s 2.17(a)(3) unambiguously applies to the parachutes used by defendants in BASE jumping. Defendants assert that the word "delivering," in the phrase "delivering ... a person ... by parachute," is too ambiguous to cover BASE jumping. 36 C.F.R. s 2.17(a)(3) (1996). "Delivering" is not defined in the regulations, but we believe it is apparent that moving oneself from one area to another, as defendants did, constitutes delivery. As applied to their conduct, then, "delivering" is unambiguous.

Defendants also argue that a facial conflict exists between s 2.17(a)(3), which prohibits delivery by "other airborne means" without a permit, and ss 2.17(a)(1) and 7.70(a)(6), which permit operation of powerless aircraft on Lake Powell. We need not address this supposed ambiguity because the information charged delivery by parachute, not by "other airborne means." See Aplt.App. at 1-2. And it charged a violation only of s 2.17(a)(3), neither mentioning nor charging a violation of any other statute or regulation. Because we have held that the term "parachute" in s 2.17(a)(3) unambiguously applied to defendant's conduct, any ambiguity in the regulation of powerless flight is irrelevant. Nevertheless, to answer the contention that what is forbidden in s 2.17(a)(3) is simultaneously allowed elsewhere, we note that s 2.17(a)(3) only prohibits airborne delivery without a permit. When read together, so that each provision has meaning, there is no more conflict between the regulations than there is between one rule that allows a person to drive a car on the roads and another that requires her to have a permit to do so. The rule of lenity may not be invoked to manufacture ambiguity. See Albernaz v. United States, 450 U.S. 333, 342, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) ("Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent.") (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980)).

3) Because there is no ambiguity in the language of the regulation, defendants had adequate notice of the illegality of their conduct. Since "parachute" and "delivering" clearly applied to the defendants' activity, we conclude the regulation "made it reasonably clear at the relevant time that the defendant's conduct was criminal." United States v. Lanier, --- U.S. ----, ----, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997).

In the absence of ambiguity, the rule of lenity--or strict construction--may not be applied. See Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (stating that the rule of lenity should be applied only if, "[a]fter 'seiz[ing] everything from which aid can be derived,' " the statute is still ambiguous) (quoting United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (quoting United States v. Fisher, 6 U.S. (2 Cranch) 214, 230 (1805) (Marshall, C.J.))); Albernaz, 450 U.S. at 342-43; see also United States v. Wilson, 10 F.3d 734, 736 (10th Cir.1993) (holding that the rule of lenity "is not applicable unless 'there is a grievous ambiguity or uncertainty in the language' ") (quoting Chapman v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)).

As a last resort, Defendants attempted at oral argument to bring their conduct within the regulatory exception for emergencies. They suggested that whenever a person jumps off a cliff he is in an emergency and may deliver himself by parachute without a permit. That argument, of course, will not fly.

(Hey, the court made a joke!) :-)

A parachute by any other name is still a parachute, and delivering a person by parachute is prohibited. As the intent of the regulation is abundantly clear, "nothing is left to construction." United States v. Fisher, 6 U.S. (2 Cranch) at 230. REVERSED.

United States of America, Plaintiff, vs. The BASE Jumpers

No. 96-CR-077 J.
United States District Court,D. Utah.
Sept. 30, 1997
MEMORANDUM OPINION AND ORDER

Background

1) On April 18, 1996, the United States filed a petty offense Information charging each of the named defendants in separate counts as to each but joined for convenience with violating 36 C.F.R. s 2.17(a)(3) (1995) by "deliver [ing] persons by parachute within the Glen Canyon National Recreation Area without a permit and when not required by an emergency." Investigations by the National Park Service resulted in warrants issued for each defendant. A joint bench trial for all of the defendants was scheduled for September 12, 1996. At the time of pre-trial motion hearings, the Government asserted that during the week of April 28, 1995, through May 3, 1995, each of the named defendants engaged in the activity commonly known as BASE [FN1] jumping by leaping off the cliffs of Glen Canyon and then, shortly after leaping, deploying a parachute or similar device to glide to a landing in Lake Powell. On August 29, 1996, each defendant filed a Motion to Dismiss the counts pending against him, asserting, among other things, that the Information is defective. Each defendant contends that the Information should be dismissed because:

(a) Section 2.17, as written, does not clearly prohibit BASE jumping; and
(b) as applied to the facts of this case, Section 2.17 is ambiguous.

After hearing argument, considering proffered facts and testimony, and reviewing the papers submitted on the Motion, and for reasons more fully discussed below, the Court finds that the regulations, as currently written, were not intended to prohibit the BASE jumping activities the defendants were allegedly engaged in. Moreover, the regulation, as applied to the purported conduct of the defendants, suffers from an incurable ambiguity. Accordingly, each defendant's Motion is granted and the Information as to each defendant dismissed. [FN2]

Issue

In this case the Court is confronted with the question whether a regulation adopted by the National Park Service that was written to prohibit the air delivery of persons or objects into a park can be read to prohibit BASE jumping by enthusiasts already in the park. Specifically, the Court must determine whether BASE jumping constitutes unauthorized air delivery of a person or object in a national park in violation of 36 C.F.R. s 2.17(a)(3). [FN3]

In pertinent part, section 2.17 of the regulations provides as follows:
(section 2.17 Aircraft and air delivery)

(a) The following are prohibited:
(1) Operating or using aircraft on lands or waters other than at locations designated pursuant to special regulations.
(3) Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit.

The defendants argue that their alleged conduct does not violate subsection (3) because BASE jumping cannot be considered as "delivering ... a person by parachute," within the meaning of Section 2.17(a). Although BASE jumping does involve the use of a parachute, the defendants contend that the types of parachutes used in BASE jumping permit the jumper to control the parachute and engage in horizontal flight. The defendants assert that this element of flight control makes BASE jumping similar to hang gliding and other forms of powerless flight. Def. Motion P 4. Because the regulation defines "aircraft" to include any "device that is used or intended to be used for human flight in the air, including powerless flight," 36 C.F.R. 1.4(a) (1995), the defendants argue that BASE jumping can only be regulated, if at all, as the use or operation of aircraft under subsection (1) of Section 2.17(a). That subsection purports to permit the use of "aircraft" without a permit in areas "designated by special regulations." s 2.17(a)(1). The defendants point out that one of the areas so designated is "[t]he entire surface of Lake Powell." 36 C.F.R. s 7.70(a)(6) (1995). Accordingly, the defendants assert that because the parachute used in BASE jumping can be deemed an "aircraft" and aircraft use is permitted on Lake Powell, they have not engaged in any prohibited conduct.

2) The Government, on the other hand, argues that BASE jumping parachutes should not be considered "aircraft" under the regulations. Although the Government conceded at oral argument that the parachutes allegedly used by the defendants may exhibit some of the characteristics of flight, i.e., they can travel horizontally, (Transcript of Hearing on Motion to Dismiss, dated Sept. 9, 1996, at 49), it argues that the rulemaking history of Section 2.17 supports the view that parachutes of any kind do not fall within the meaning of "aircraft." Specifically, the Government relies on a statement that although the regulatory definition of aircraft was intended to expand the definition to include "ultralight aircraft and powerless flight," it was "not intended to include parachutes covered under subparagraph s 2.17(a)(3), or air delivery." 48 Fed.Reg. 30252, 30268 (June 30, 1983) (final rule).

Moreover, even if the parachutes used by the defendants could be viewed as "aircraft," the Government argues that subsection (3) still applies. The Government states that although Lake Powell has been designated as a landing area, the regulations provide that this designation is still subject to the restrictions found in Section 2.17. [FN4] Among these restrictions, is the subsection (3) prohibition against "delivering or retrieving a person or object by parachute, helicopter, or other airborne means." Thus, the Government argues that despite the designation of Lake Powell as a landing area, the delivery of a person "by parachute, helicopter, or other airborne means" requires a permit.

Analysis

At the outset, the Court begins its analysis by recognizing that due process requires a criminal statute to be stated in terms which are reasonably definite, so that a person of ordinary intelligence will know what the law prohibits or commands. Kolender v. Lawson, 461 U.S. 352, 357 (1983). This requirement ensures that the that a defendant will receive adequate warning of what the law requires so that he or she may act lawfully, and it serves to prevent arbitrary and discriminatory enforcement by providing police, prosecutors, judges, and juries with clear guidelines to fairly administer the law. Id. at 357-58; United States v. Gaudreau, 860 F.2d 357, 363 (10th Cir.1988) (citations omitted). No person should be required, at peril of life, liberty, or property, to speculate as to whether their actions will subject them to criminal penalties. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Accordingly, "'penal statutes are to be construed strictly,' ... and that one 'is not to be subjected to a penalty unless the words of the statute plainly impose it.' " United States v. Campos-Serrano, 404 U.S. 293, 297 (1971) (citations omitted). It follows, therefore, that a criminal statute cannot be read expansively to include what is not plainly within its language, (Kordel v. United States, 335 U.S. 345, 348-49 (1948); United States v. Resnick, 299 U.S. 207, 209-10 (1936)), or be extended by implication or analogy. Williams v. Moore, 262 F.2d 335, 338 (5th Cir.), cert. denied, 360 U.S. 911 (1959).

3) In determining the meaning of any statute or regulation the starting point must be the language of the statute itself, (see Bailey v. United States, 116 S.Ct. 501, 506 (1995)), and the words used must be given their ordinary or natural meanings. Perrin v. United States, 444 U.S. 37, 42 (1979).

By its plain language, Section 2.17(a)(3) seeks to prohibit "delivering or retrieving a person or object by parachute, helicopter, or other airborne means." The ordinary meaning of the term "deliver" is to "set free from restraint" or to "give, transfer, yield possession or control." Websters Third New International Dictionary of the English Language 597 (1971). Rather than "yielding possession or control," BASE jumpers instead seek, and require, heightened control. As was amply demonstrated by the defendants at oral argument, BASE jumpers rely on the fact that the parachutes they use provide them with increased control. The shape of the parachutes, along with the controls and vents attached to some parachutes, provide a BASE jumper with control akin to horizontal flight that enables the jumper effectively to steer clear of the structure leapt from and to guide the parachute to a safe landing area. Thus, under the common meaning of delivery, it is difficult to understand how a person BASE jumping can be said to be "delivering" himself. [FN5]

More damaging to the Government's argument, however, is the regulation's inclusion of the phrase "other airborne means." If a person were to read the plain language of the regulation, they might understand that subsection (3) attempts to broadly prohibit the delivery or retrieval of a person or object by "parachute, helicopter, or other airborne means." Since what is meant by "other airborne means" is not defined by the regulations, the Court turns to its ordinary meaning for guidance. See Perrin, 444 U.S. at 42. Websters defines "airborne" as "to be transported or designed to be transported by air." Websters Third New International Dictionary 45. To the average person, an airplane would be the quintessential means of "airborne" travel. Thus, according to its plain meaning, the average person would understand subsection (3) to prohibit the delivery of a person or object by parachute, helicopter, airplane, or any other device capable of human flight.

At the same time, however, subsection (1) of section 2.17(a) provides that the operation or use of aircraft is permitted in specially designated areas without a permit. Lake Powell is one of those areas. Thus, the average person reading subsection (1) would understand that he or she would be permitted to use an aircraft on Lake Powell. Aircraft, as noted by the defendants, is defined broadly to include any "device that is used or intended to be used for human flight in the air, including powerless flight." 36 C.F.R. s 1.4. 36 C.F.R. s 7.70(a)(6), however, also states that the use of aircraft on Lake Powell is subject to the restrictions found in Section 2.17, one of which is the restriction against delivery of a person or object by "airborne means." Thus, what the regulations seem to give with one hand, i.e., the right to land an aircraft without a permit, they appear to take away with the other, i.e., no delivery or retrieval of persons by "airborne means."

4) In response to this contradiction, the Government suggests that the phrase "other airborne means" was only intended to apply to some other airborne means of making air drops and not the normal use of aircraft and airplanes. Tr. at 47, 50-51. This interpretation, however, is contrary to the plain language of the regulations and is not supported in the scant rulemaking history. Nor is it set forth anywhere in the regulations. Moreover, even if the Court were to adopt the Government's interpretation, the Information should be dismissed. If, as the Government submits, the phrase "other airborne means" applies only to "air drops," then it seems clear that the regulation as a whole was intended to apply only to air drops, whether by parachute, helicopter, or any other airborne means. Under this interpretation the regulation cannot be said to apply to parachuting that is not related to air drops--to parachute jumping from an aircraft. [FN6]

The regulations thus appear to put the average person in a difficult position. On the one hand, he is told that he may land his airplane on Lake Powell and "deliver" himself. On the other hand, in the same regulation, he is being told that he cannot deliver himself by any "airborne means." A person wishing to use an aircraft lawfully within the Lake Powell region is faced with a quandary as to making a choice as to what he is going to do, and, unfortunately, the regulations do not provide clear guidance as to what conduct is and is not permitted. A person should not be required to guess as to whether their course of conduct will subject him to criminal liability. See Lanzetta, 306 U.S. at 453. As explained above, the plain reading of the regulations appears to both at once permit delivery by airborne means and prohibit delivery by airborne means. The regulation, in this context, is sufficiently fraught with ambiguity that one would find it difficult to understand what is allowed and what is prohibited.

At the very least, whether BASE jumping constitutes a violation under the regulation remains in doubt. In such cases, the Court must adhere to the well-established rule that, " 'where there is ambiguity in a criminal statute, doubts are to be resolved in favor of the defendant.' " Adamo Wrecking Co. v. United States, 434 U.S. 275, 285 (1978) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)). "This practice reflects not merely a convenient maxim of statutory construction. Rather, it is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited." Dunn v. United States, 442 U.S. 100, 112 (1979) (citations omitted). Accordingly, because the Court finds that the regulation as applied to the conduct of the defendants is ambiguous, the Information is hereby dismissed.

As a final point, the Court notes that the regulation the defendants were charged with violating came into existence pre-BASE jumping and that it appears to be a genuine strain to suggest that prohibition in subsection (3) goes beyond what would normally be thought of as "air drops." If the Park Service wants to prohibit BASE jumping, they could easily include a paragraph in the regulations and simply say BASE jumping is prohibited. If the regulation is intended to convey to the public a clear message of what conduct is and is not permitted in a national park, that purpose is not served by trying to shoehorn a prohibition against BASE jumping into a regulation that was promulgated with a different mischief in mind.

Conclusion

5) By this Memorandum Opinion and Order, coupled with the Court's ruling from the bench on September 9, 1996, the Court hereby grants each of the defendants' Motions to Dismiss.

IT IS ORDERED that each defendant's Motion is granted.

<snip>

FN1) BASE is an acronym describing the structures--Buildings, Antennae, Spans, and Earth forms--that devotees of this activity commonly leap from. An activity that is akin to hang gliding, the sport of BASE jumping calls for the base jumper to first leap from a stationary structure of his or her choice and, after enjoying a brief free-fall, to then deploy a parachute enabling the jumper to land safely. A person who completes a jump off each of the four structures can be certified as a BASE jumper.

FN2) Much of the evidence linking the defendants with BASE jumping was uncovered during a warrantless search conducted Park Service Rangers. The defendants have also challenged the constitutional validity of these searches, because the court's ruling on the present motion to dismiss will effectively dispose of the proceeding, it is unnecessary for the Court to decide these other issues. See United States v. Cusumano, 83 F.3d 1247, 1250-51 (10th Cir.1996).

FN3) Although two other district courts have touched upon the issues presented in this proceeding, see United States v. Carroll, 813 F.Supp. 698 (E.D.Mo.1993); United States v. May, No. CR F-85-242 EDP, slip op. (E.D.Cal. July 8, 1986), neither court engaged in a close analysis of this regulation. The question of whether BASE jumping is conduct that is prohibited by this regulation is thus a question of first impression and is an issue that may be resolved by this Court as a matter of law. See Aerolineas Argentinas v. United States, 77 F.3d 1564, 1574 (Fed.Cir.1996) (citations omitted).

FN4) Specifically, the regulations provide that the entire surface of Lake Powell is designated as an airstrip, "subject to the restrictions contained in s 2.17 of this chapter." 36 C.F.R s 7.70(a)(6).

FN5) There also remains the question of whether a person already in the park can be said to be "delivering" himself to another location within the same park. A common understanding of "delivery" as used in the regulation appears to contemplate the delivery of a person or goods from outside the park to a location inside the park. It is far from clear that a person inside the park would consider their own movement from one location to another in the very same park as "delivery."

FN6) Although not conclusive, the early history of the regulations support this view. The proposed regulations state that "air delivery" may be permitted only after the park superintendent examines, among other things, the "availability of ground transport facilities as an alternative method of delivery." 30 Fed.Reg. 1857 (proposed Feb. 9, 1965). The inclusion of an examination of other alternative ground delivery methods clearly indicates that what was contemplated by air delivery was the traditional notion of air drops of cargo or persons. What the regulation sought to prohibit is the air drop of such goods without a permit. Thus, it does not appear that the regulation, as originally proposed, was intended to govern the type of activity charged here. In addition, the regulations have also adopted the Federal Aviation Administration ("FAA") regulations. 36 C.F.R. s 2.17(d). In its regulations, the FAA provides that the only type of parachute jumping it seeks to regulate is the "descent of a person, to the surface from an aircraft in flight." 14 C.F.R. s 105.1(b) (1996). Similarly, it does not appear that this regulation was intended to govern the purported activities of the defendants. See 14 C.F.R. s 105.11.