BASE Jumping, Bureaucracy, and the Law

Mark Chenoweth: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the government.

John Vecchione: Welcome to Unwritten Law. Mark Chenoweth and I are joined today by Casey Norman to discuss the case of base access versus the National Park Service. We have just returned from Houston, where Casey argued against the motion to dismiss by the National Park Service of our client’s complaint that they have never been allowed to base jump from any of the national parks but one, one day a year. So, Casey, welcome to the program.

Casey Norman: Thank you for having me on.

John Vecchione: And why don’t you tell our listeners and maybe our viewers, too, about what’s this case about? Why are we suing and what is base jumping?

Casey Norman: Sure. So, we are all elite base jumper professionals here at NCLA. But aside from that, we are also into –

Mark Chenoweth: Yes, I’ve seen the photographic evidence.

Casey Norman: Yes, I’ve been doing a lot these days. But we’re also very interested in the constitutional aspects of this case, namely the question of whether an executive agency can write criminal laws that will put people in prison, give them permanent federal criminal records, things of that nature. And what the base jumpers have been facing in literally every single national park across the country for almost 50 years now are criminal penalties if they simply base jump in the parks.

So, we’re bringing a non-delegation challenge to the statute that delegates that criminal lawmaking authority to the National Park Service who has been prosecuting these base jumpers.

John Vecchione: And what is base jumping?

Casey Norman: Oh, yes. So, if you think of skydiving, it’s similar to that. But instead of leaping out of an airplane, you’re leaping from a fixed object, like in the national parks, for instance, cliff sides, mountains. And you use sometimes a special parachute that’s called a wingsuit. And it kind of allows you to horizontally glide for a long period of time before you release the parachute and land.

John Vecchione: Like a flying squirrel.

Casey Norman: Exactly. Exactly.

Mark Chenoweth: Like a human flying squirrel. And someone did that right here.

John Vecchione: Watch me pull a rabbit out of this hat.

Mark Chenoweth: Someone did that right here in Arlington, Virginia, in the building next to ours.

John Vecchione: Really?

Mark Chenoweth: But that’s definitely not permitted.

John Vecchione: No, it was not permitted. But I didn’t know that. How long ago?

Mark Chenoweth: Oh, last year, a year before.

Casey Norman: Oh, wow.

Mark Chenoweth: Oh, very recently. Yeah.

John Vecchione: Oh, wow.

Casey Norman: I heard.

Mark Chenoweth: Yeah. There were criminal penalties attached to that. Yeah.

Casey Norman: But I should specify, though, it’s not the base jumping that’s the criminal act. In most areas, base jumping is legal. But the issue is if you trespass, you break into an apartment building and leap off the roof, that’s generally not permitted.

Mark Chenoweth: And that was the case here. That was a trespassing charge. That’s right. Which maybe that wasn’t criminal. I can’t remember. But anyway.

John Vecchione: The way I’ve always looked at it is that some places have removed the criminal penalties for suicide. So, you can jump without a parachute, but jumping with a parachute, then you’re in trouble.

Mark Chenoweth: And you need a permit.

John Vecchione: Yeah, exactly. So, in any event, we digress from the constitutional issues which we will now come back to. But there’s non-delegation, but there’s also tell the audience about what the regulation actually says that they’re supposedly have violated.

lation was issued, it was the: 1950

John Vecchione: As a sport.

think it was coined first in: 1978

John Vecchione: And what was happening, I think, is pretty clear is that some of the national parks, just like you have, I know the Adirondacks, where I go frequently, they have a park. But if you had previously had a cabin there or land there, that’s not part of the park. But getting to it is the problem. So, you either have to be able to go over land or somehow get there. And what people were doing was supplying their cabins by flying over and dropping stuff into the park.

Mark Chenoweth: Berlin airlift style.

John Vecchione: Yeah, exactly. Berlin airlift style. So, that’s what delivery means. But here, people will take their RVs or their trucks or whatever into the park with their equipment. They’ve delivered themselves into the park already.

Mark Chenoweth: And they’ve paid for park access or whatever. They’re not trespassing.

John Vecchione: Right. But when they go to this spot, jump off there, then supposedly delivering themselves again.

Casey Norman: Well, the National Park Service would argue it’s not aerial if you’re driving yourself into the park. But still, I mean, if you move your body from one point in a park to another, is that delivering anything? I mean, you wouldn’t say when you walk or as you pointed out there. One example is if you jumped from a tree branch or boulder, are you aerial delivering yourself into the park from one spot to another? It doesn’t make sense.

Mark Chenoweth: And they haven’t prohibited that.

John Vecchione: And as Casey said in oral argument, if you hop around the park, depend on how high are you delivering yourself? But let’s get to that. So, this case is filed in Houston, and we may get to why because the judge asked. So, why don’t you tell us who were we before and what was going on? What was the motion about?

Casey Norman: So, we were before Judge Eskridge. This is the southern district of Texas in Houston, as you mentioned. And the DOJ, the National Park Service are challenging us on the basis of standing and then also the merits of our non-delegation arguments and our vagueness argument. So, those are kind of the three facets that we focused on yesterday, Monday.

Mark Chenoweth: They’re not challenging venue?

Casey Norman: They are, but their challenge is almost non-existent. They say basically there is no venue because there’s no standing.

John Vecchione: So, particularly the Houston plaintiff, supposedly doesn’t have standing. And if he doesn’t, there’s no venue. Casey, you were asked, the judge, Eskridge, obviously, has been to a lot of parks. I mean, he was familiar with what Big Ben looked like and all these places. And he’d seen the movie Free Solo, obviously, because from his comments, I mean, it’s not obvious everyone’s seen it, but it was obvious from his comments. But he asked the question, why did you file in maybe the flattest part of the world for this base jumping?

And Casey responded because the Ninth Circuit has precedent on this already, and the Eighth Circuit has precedent on this already, but the Fifth Circuit doesn’t have any. Tenth, correct, Utah. He was interested in Utah. He seemed to know all the Utah parks. So, in any event, he was satisfied with that. He said, “Oh, no wonder.” But it is true, Houston is flat.

Mark Chenoweth: I thought you were going to say because we didn’t have a Kansas plaintiff.

John Vecchione: That would be good. So, what were the non-delegation arguments of the government, and how did you respond?

years, since: 1935

John Vecchione: And that was the Fifth Circuit. The Supreme Court didn’t reach it.

Casey Norman: Exactly, exactly. It was on different grounds that they upheld the ruling. But the Fifth Circuit is on our side on that, at least. So basically, almost 100 years since the court has found any statute unconstitutionally to have delegated lawmaking authority to an agency. But our case is interesting because it’s not only a delegation of just general lawmaking authority. There’s also the criminal element. And there is a lot of case law in the Supreme Court and the Fifth Circuit that leaves expressly open the question of whether the intelligible principle test, which is just generally applied. It’s basically a very low bar to meet for the government.

John Vecchione: And what is the intelligible principle test?

Casey Norman: In essence, it looks at a statute that’s delegating lawmaking authority and says is there any form of intelligible principle in this statute that kind of guides the agency’s discretion in exercising lawmaking power? And in practice, this has meant almost nothing. It has not stood as much of a barrier to agencies exercising lawmaking power. But in the criminal context, there’s a different question. You’re talking about people’s liberty, individual American citizens’ liberty, potentially facing prison time.

And the court has said this is an open question whether or not this intelligible principle test we’ve formed is appropriate in the criminal context, because there’s a lot at stake there that isn’t in a normal civil case.

John Vecchione: And what was our response in this particular case as to why there is indeed a non-delegation problem?

Casey Norman: Well, if you look at the statute, so I did a lot of deep digging into the various cases where the court has found that there is an intelligible principle. And if you look at the Organic Act, which is what’s relevant in our case, the act that delegates criminal lawmaking authority to the National Park Service, it is very, very bare bones. What it says essentially is, whatever the Secretary of the Department of Interior, and he delegated to NPS, this lawmaking authority, whatever he deems to be necessary or proper for the use and management of the parks is fine.

Go off and write criminal laws for whatever necessary or proper purpose you find. And there’s what the government argues are two goals that guide or confine his discretion in writing criminal law. And the two goals are to conserve the parks and to provide for the public’s enjoyment of the parks. And somehow this is supposed to limit his ability to criminally deem what conduct is going to land you in prison or not.

John Vecchione: He also said something else that I don’t remember reading from the briefs. He said, “And plus, it’s only in the national parks. It’s not for America itself. So, it’s very limited.”

Casey Norman: Eighty-five million acres. Right.

John Vecchione: I know. Exactly. But I did think that was the old college try right there.

Mark Chenoweth: Yeah. Although, I think there’s a different rule for BLM. Maybe he was trying to –

John Vecchione: That is exactly right.

Mark Chenoweth: Bureau of Land Management, for those who don’t know.

John Vecchione: So, there’s that. There’s also this idea of permitting. I think it impressed the judge. I don’t think he knew this, so probably important to our audience, too. What type of things are allowed in the parks without a permit right now? And then, some things that might be similar to base jumping that you can do with a permit?

Casey Norman: Yeah. So, this is kind of a bizarre argument the DOJ seemed to be making throughout the argument on Monday. They kept implying that, basically, everything you do in a national park has to be regulated and likely requires a permit from the National Park Service, which is not the case. Obviously, you can go hiking. One of the examples that I raised was you can rock climb, including free soloing, which basically means that you have no harness, no restraint.

You’re just climbing up a vertical cliff with no protection at all, except for a parachute, which you’re wearing in case you are about to plummet to your death, which, again, that’s almost exactly like base jumping, except you’re wearing a parachute in case you make a mistake and are going to die. Whereas base jumpers will peacefully hike up on the path that other hikers take and then jump down in a controlled manner. But somehow that act is criminal and prohibited, and this other act doesn’t even require a permit, let alone being a criminal act.

John Vecchione: That’s true. And so, basically, if you’re a bad free soloist, you can base jump all you want.

Casey Norman: Yep. Exactly.

John Vecchione: In any event –

Mark Chenoweth: It’s a new style of base jumping.

John Vecchione: Exactly. I slipped again. And so, then the other one was hang gliding.

Casey Norman: Yeah. So, technically, the National Park Service says hang gliding falls under the same regulation of aerial delivery as base jumping. But the difference is that the National Park Service just routinely grants them permits whenever they ask. As far as we can tell, no hang glider in 50 years has ever been charged with a violation of the rule because they’re just given permits all the time. And hang gliding is like base jumping. You leap off of a cliff and fly around in the sky for a while, except instead of just a light parachute, you have this 80-pound massive wing above you that you’re dangling off of.

John Vecchione: Right. And there’s aluminum in it and stuff like that.

Casey Norman: Yeah. It can frighten the wildlife, I would think.

Mark Chenoweth: That seems more like aerial delivery than base jumping does.

John Vecchione: Sure. And I think the judge didn’t know that at the time. He was like, “Really? You can climb?” And the government’s argument was that, well, if you stay overnight on a ledge, you need a permit.

Casey Norman: I don’t even know if that’s true, actually. I looked it up.

John Vecchione: So, in any event, there are many things. Arbitrary and capricious wasn’t in here, but I think the idea that all these people can climb up all these mountains, up these cliff sides, you run into Robert Ault on your way up, I guess. And he’s our friend at Buckeye who climbs mountains. But anyway –

Mark Chenoweth: Without a parachute.

John Vecchione: Without a parachute. And that’s okay, and that doesn’t ruin anyone’s enjoyment, but if you parachute down, it does. So, the other thing that I found interesting is that there is one place you can base jump once a year. Tell us about that.

Casey Norman: Yeah. So, the one exception is in West Virginia. They have a national holiday called Bridge Day. And the big kind of events of the Bridge Day is base jumping. And it’s a particular bridge in West Virginia where I think it’s hundreds, if not thousands, of base jumpers have been safely jumping, as far as I can tell, without incident, no deaths for decades.

Mark Chenoweth: It’s the New River Gorge, I think.

Casey Norman: Exactly.

Mark Chenoweth: It’s on the back of the West Virginia quarter. If you’re a quarter enthusiast or a coin enthusiast like I am, the back of the West Virginia quarter has that bridge.

Casey Norman: I didn’t know that.

Mark Chenoweth: I think it’s in the National Park Collection, if I’m not mistaken.

Casey Norman: But yeah, the government kind of, the DOJ, tried to portray it as, oh, we grant permits. Look, we do it in West Virginia all the time. But I mean, I think 1.) we should emphasize it’s once a year in one location. And 2.) the National Park Service didn’t really have a choice in the matter because West Virginia controls and owns the bridge. And they love this holiday. And they really wanted base jumping to exist there. And the only way that they would allow the National Park Service to create kind of a national park –

John Vecchione: To take over the area.

Casey Norman: Yeah, in the area below, not just the river, but the whole area is for them to agree to waive the permit requirement for that day. So, it’s not really as though National Park Service conducted any analysis and is giving out permits out of the goodness of their heart.

Mark Chenoweth: No, but it does show that it can be done in a national park without incident. It’s not the kind of thing that needs to be criminalized for crying out loud.

Casey Norman: Exactly.

John Vecchione: Well, also, the other thing is as far as conserving the park, one of the things Casey pointed out was that they don’t know whether it’s going to hurt the park because they won’t do studies. It’s a big catch 22 in that they say that you can’t get a permit until they do a study and they won’t do a study. I mean, that’s what’s going on here.

Mark Chenoweth: And they just don’t want to deal with it is what it sounds like.

John Vecchione: Right. I guess so, and I’m not sure why because I can’t imagine the hang gliders have a bigger lobby than the base jumpers. I mean, I don’t know how many people there are in these various groups, but it does strike me.

Casey Norman: We allege in the complaint that historically, at least, it seems as though the park rangers participate in hang gliding, so they favor that sport. And I think that might be part of the reason. There’s just this longstanding feud between the base jumpers and the hang gliders and the park rangers and the rule breakers. And they haven’t gotten over that bitterness in almost half a century.

John Vecchione: Well, who knew? So, is there anything else from the argument that people should know or that you found interesting?

Casey Norman: Yeah, I think I found interesting that at the end, the judge reprimanded the DOJ a bit, and he said, “I think you better go back to your client and have them reconsider their criminal regulations because they are not reflective of modern interests.” And I mean, I think he’s probably got a lot of thinking to do, but I found that promising. And I think he’s right.

John Vecchione: Well, you know what that reminded me of when he did it? He did say, “Look, can’t you look at this?” But it reminded me a little bit of the First Circuit telling Congress that they better do something about the mackerel observers in the Gayful case. And since then, Congress has done something about it because they didn’t want the court doing anything, I guess, in that area. But it was true that that the idea that just no park ever did a study because that’s the other thing that came out that I didn’t know. It’s not the head of the Parks Department does this. Each park has a head and the head of that park is the one who can do it for that park.

Mark Chenoweth: They have permitting authority.

John Vecchione: Right. And as the judge pointed out, no one wants to base jump in the Everglades, right? You can’t find a high spot, and if you can, you land in alligators, right? So, that’s right out, I think.

Casey Norman: They’re trying. I mean, we list in the complaint, I think it’s like 12 to 13 different parks, everywhere, basically, where you could base jump. They’ve applied. They’ve reached out. They’ve said, “Here’s a way you could regulate us because we want to do it safely and do it in a way that doesn’t impact the environment.” And they either just get completely ignored or just, “No, we can’t give you a permit until we analyze base jumping. And we will never analyze base jumping. So, no permits for you.” That’s how it’s been.

John Vecchione: And the court also ordered an informational brief for the government of how you get a permit and how you move to change the permitting system if you want. So, we will get a brief from the government. Neither will agree with it or will respond. And so, that was interesting as well. I assume he wants to know how futile it is, I think, but I can’t read his mind, but it was interesting that that was another thing he wanted to know.

Casey Norman: Probably for standing purposes because a big part of the argument was spent on the futility of asking for a permit because some of our plaintiffs, including the guy who lives in Texas, they haven’t requested a permit because literally no individual has been granted one for, again, almost half a century.

John Vecchione: Fifty years. And base access has been asking and asking and asking. He belongs to base access.

Casey Norman: Right, right.

John Vecchione: Well, thank you very much for coming on the program and describing your argument. I’m sure when we get an opinion, we will inform our audience. And we will be back with more Unwritten Law in a moment.

Mark Chenoweth: As we like to say here at NCLA, let judges judge, let legislators legislate and stop bureaucrats from doing either.

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Duration: 19 minutes