Petition for Writ of Certiorari — McGlynn v. United States

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Supreme Court, U.S.

FILED

001532 APR -5 2001

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

DENNIS McGLYNN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Frep M. More ut, Jr.

403 W. Galena Blvd.

Aurora, IL 60506

630/892-6665

Attorney of Record

for Petitioner

QUESTIONS PRESENTED FOR REVIEW

I. Was Defendant, Dennis McGlynn, deprived of his

constitutional right to present a defense to the criminal

charges against him?

Il. Do FAA Regulations pre-empt the National Park

Service authority to regulate aeronautical activity over

and on the surface of Lake Powell, a designated landing

area for aircraft in the Lake Powell National Recreational

Area?

Ill. Are National Park Service Regulations 36 CFR

§ 2.17(a)(1) and (a)(3) ambiguous and do they adequately

and clearly describe what conduct is prohibited partic-

ularly when considered in conjunction with 36 CFR

§ 7.70(a)(6)?

TABLE OF CONTENTS

Questions Presented for Review ............6.00005

ce wo! reer prr rer or rr eT rrr ry rer

Opinions Below Entered in the Case...............

fraviadicthenh. oi: nixs ich de ye kee

Statutes and Regulations. .... ....0.4.66.sccccssdcess

Statement of the Case........ PPE eee rer Ts

Reasons for Granting the Writ..................05.

I. Defendant, Dennis McGlynn, Was Deprived Of

His Constitutional Right To Present A Defense

To The Criminal Charges Against Him........ 7

II. The National Park Service Does Not Have

Authority To Regulate Aeronautical Activity On

Airstrips In National Parks ................... 14

III. National Park Service Regulations 36 CFR

§ 2.17(a)(1) And (a)(3) Are Ambiguous And Do

Not Clearly Describe What Conduct Is Prohib-

rer re he hw ee 17

iii

TABLE OF AUTHORITIES

Page

Cases

City of Burbank v. Lockhead Air Terminal, 411 U.S.

624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973)....... 14, 16

Deschler v. Fireman's Fund American Life Insurance

Company, 663 P.2d 97, 39 ALR 4th 209 (Supreme

NE A I a vcs nna ndwbed ccuae Ccbecnc, 20

Edison v. The Reliable Life Insurance Companies, 664

WO OU WOU GU BEN cccascccacasscacceccee 16, 20

Kmart Corp. v. Carter, Inc., 486 U.S. 281, 108 S.Ct.

1811, 100 L.Ed.2d 313 (1988).......:.............. 20

Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75

EO Vic Civ ccbebasceddasdeve cco 18, 20

Louisiana Regional Airport v. Aero Resources, 962

Pape. See C.D. La. 1993)... 2... ccc cccsccncdnces 16

Skydiving Center v. St. Mary's County Airport Cort-

missioner, 823 F.Supp. 1273 (D. Md. 1993)......... 16

United States v. Bevel, 558 FSupp. 95 (N.D. Ga.

We ae HAA Ca bSadacuetads Fed) kako cd een bes¥ vp aceas 8

United States v. William Oxx, et al., 980 F.Supp. 405

(D. Utah 1997) (reversed 127 F.3d 1277 (10th Cir.

RERTEES SERS MESES REIS reg ae tae icalik pines RE passim

Wilson v. Insurance Co. of North America, 453

US Fame CHURN, CAL, BIIGD cc ccc ccsccnccscccace 16

STATUTES:

Title 16 United States Code § 1; 7(a).............. 2, 14

Title 49 United States Code § 106; 40103.......... 3, 14

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS:

Title 14 Code Federal Regulation § 1.1 (1997).... 4, 11, 12

Title 36 Code Federal Regulation § 2.17(a)(1);

EE Oe o 65s Kins ecaeceives becseecdbueenks inn passim

Title 36 Code Federal Regulation § 7.70(a)(6).... passim

Federal Aviation Administration Compliance

Code 5190.6A (10/2/89), par. 4-8(a)(1) and

DUE a0 nec reteaccbadinv ys cdcenieskeueatkatauaee 5, 16

PETITION FOR WRIT OF CERTIORARI

Petitioner, Dennis McGlynn, respectfully prays that a

Writ of Certiorari be issued to review a judgment of the

United States Court of Appeals for the Tenth Circuit

entered on December 15, 2000.

OPINION BELOW ENTERED IN THE CASE

United States v. Gravity Sports, Ltd. and Dennis

McGlynn, unpublished slip op., 10t* Circuit No.

00-4098 dated 12/15/00.

Copy in Appendix.

United States v. Gravity Sports, Ltd. and Dennis

McGlynn, unpublished slip op., D. Utah No.

2:96-CR-0052B, dated 5/26/00. ;

Copy in Appendix.

JURISDICTION

The judgment sought to be reviewed was filed on

December 15, 2000. A Petition for Rehearing En Banc was

denied on January 19, 2001. This Supreme Court of the

United States has jurisdiction under 28 U.S.C. §1254(a) to

review on Writ of Certiorari the judgment sought to be

reviewed of the United States Court of Appeals for the

Tenth Circuit. This petition is being filed within 90 days

after entry of the judgment denying the Petition for

Rehearing as provided by Supreme Court Rule 13.

STATUTES AND REGULATIONS

Title 16 United States Code §1.

“§1. Services created; director; other employees

There is created in the Department of the Inte-

rior a service to be called the National Park

Service, which shall be in charge of a director,

who shall be appointed by the President, by and

with the advice and consent of the Senate.

The services thus established shall promote and

regulate the use of the Federal areas known as

national parks, monuments, and reservations

hereinafter specified, except such as are under

the jurisdiction of the Secretary of the Army, as

provided by law, by such means and measures

as conform to the fundamental purpose of the

said parks, monuments, and reservations, which

purpose is to conserve the scenery and the natu-

ral and historic objects and the wild life therein

and to provide for the enjoyment of the same in

such manner and by such means as will leave

them unimpaired for the enjoyment of future

generations.”

Title 16 United States Code §7(a)

“§7a. Airports in national parks, monuments

and recreation areas; construction, etc.

The Secretary of the Interior (hereinafter called

“Secretary”) is authorized to plan, acquire,

establish, construct, enlarge, improve, maintain,

equip, operate, regulate, and protect airports in

the continental United States in or in close prox-

imity to, national parks, national monuments,

and national recreation areas, when such air-

ports are determined by him to be necessary to

the proper performance of the functions and the

Department of the Interior: Provided, That no

such airport shall be acquired, established, or

constructed by the Secretary unless such airport

is included in the then current revision of the

national airport plan formulated by the Secre-

tary of Transportation pursuant to the provi-

sions of the Federal Airport Act: Provided

further, That the operation and maintenance of

such airports shall be in accordance with the

standards, rules or regulations prescribed by the

Secretary of Transportation.”

49 United States Code §40103

“§40103. Sovereignty and use of airspace

(a) Sovereignty and public right of transit — (1)

The United States Government has exclusive

sovereignty of airspace of the United States.

(b) Use of airspace - (1) The Administrator of

the Federal Aviation Administration shall

develop plans and policy for the use of the

navigable airspace and assign by regulation or

order the use of the airspace necessary to ensure

the safety of aircraft and the efficient use of

airspace. The Administrator may modify or

revoke an assignment when required in the pub-

lic interest.

(2) The Administrator shall prescribe air traffic

regulations on the flight of aircraft (including

regulations on safe altitudes) for -

(A) navigating, protecting, and identifying air-

craft;

(B) protecting individuals and property on the

ground;

and

(D) preventing collision between aircraft,

between aircraft and land or water vehicles, and

between aircraft and airborne objects.”

Regulations:

14 CFR §1.1

“Parachute means a device used or intended to

be used to retard the fall of a body or object |

through the air.”

36 CFR §2.17(a)(1);\(a)(3); (e)

11(a) The following are prohibited.

“(1) operating or using aircraft on lands or

waters other than at designated take off or land-

ing areas, except pursuant to the terms and con-

ditions of a permit.”

“(3) delivering a person or object by para-

chute, helicopter, or other means of air delivery,

except in emergencies involving public safety or

serious property loss, or pursuant to the terms

and conditions of a permit. For the purposes of

this paragraph, “delivery” means the act of con-

veying or releasing persons or property.”

“(e) the operation of aircraft shall be in accor-

dance with regulations of the Federal Aviation

Administration.”

36 CFR §7.70(a)(6)

“§7.70 Glen Canyon National Recreation Area

(a) Designated airstrips

(b) The entire surface of Lake Powell, subject

to the restrictions contained in §2.17 of this

chapter.”

Federal Aviation Administration Compliance Code

5190.6A (10/2/89), par. 4-8(a)(1) and 4-8(b)

Appendix

STATEMENT OF THE CASE

Petitioner, Dennis McGlynn, is charged by a misde-

meanor Indictment with aiding and abetting Paul

Thompson to violate National Park Service Regulation 36

CFR §2.17(a)(3) by delivering a person or object to the

surface of Lake Powell in the Glen Canyon National

Recreation Area, Utah side, by a parachute without a

permit.

Paul Thompson had jumped from a cliff in the Glen

Canyon National Recreation Area with a soft rectangular

canopy device commonly called a parachute. Paul

Thompson landed on the surface of Lake Powell. By

National Park Service Regulation 36 CFR §7.70(a)(6) the

National Park Service designated the entire surface of

Lake Powell as an airstrip. it is uncontroverted that air-

craft are permitted to land on the surface of Lake Powell

without a permit.

Although the soft canopy device used by Paul

Thompson, is commonly called a parachute, it has a rect-

angular shape and is designed like an airplane wing with

ee eee

a curved upper surface, which causes air to flow faster

over the top of the wing and provide lift. The wing-like

canopy used by Thompson is maneuverable; can be con-

trolled by toggles attached to the wing; can slalom

around pylons; rise vertically; stay aloft for eleven hours; ‘

and fly horizontally through the air for a distance of 230

~ miles.

: The United States magistrate judge, and the United

States District Judge for the District of Utah, and the

United States Court of Appeals for the Tenth Circuit,

decided that a prior decision of the Court of Appeals for

the Tenth Circuit in United States v. William Oxx, et al., 127

F.3d 1277 (10** Cir. 1997), controlled their decision in this

case. Petitioner, Dennis McGlynn, was not a party to

those proceedings in United States v. William Oxx (ibid).

In United States v. William Oxx, et al., 980 F.Supp. 405,

407 (D. Utah 1997), the United States District Judge found

that National Park Service Regulation 36 CFR §2.17(a)(1) ;

and (a)(3) are ambiguous and do not clearly describe the

proscribed conduct so that a person of ordinary intel-

ligence can understand what conduct is prohibited. The

United States Court of Appeals for the Tenth Circuit

reversed the District Judge on different grounds.

¢ ;

REASONS FOR GRANTING THE WRIT

z ‘

Defendant, Dennis McGlynn, Was Deprived Of His

Constitutional Right To Present A Defense To The

Criminal Charge Against Him.

Petitioner, Dennis McGlynn, as Defendant (herein

called Defendant) was charged and convicted by a misde-

meanor Indictment with aiding and abetting Paul

Thompson to violate National Park Service Regulation 36

CFR §2.17(a)(3) by delivering a person or object to the

surface of Lake Powell in the Glen Canyon National

Recreation Area, Utah side, by a parachute without a

permit.

Paul Thompson had jumped with a device commonly

called a parachute from a cliff in the Glen Canyon

National Recreation Area. He landed on the surface of

Lake Powell.

National Park Service Regulation §2.17(a) provides in

part:

“(a) The following are prohibited:

(3) delivering a person or object by parachute,

helicopter, or other means of air delivery, except

in emergencies involving public safety or

serious property loss, or pursuant to the terms

and conditions of a permit. For the purposes of

this paragraph, “delivery” means the act of con-

veying or releasing persons or property.”

This case is one of several cases arising out of per-

sons jumping from the cliffs in the Glen Canyon National

Recreation Area and landing on the surface of Lake Pow-

ell. All cases originated with different proceedings, and

had different evidence. Dennis McGlynn raised the

defense that the device used by Paul Thompson, though

called a parachute, was in fact an aircraft and, therefore,

Paul Thompson was permitted to land on the surface of

Lake Powell without a permit. The McGlynn case had

additional issues which were presented but not

addressed by the Tenth Circuit. There was more evidence

in this case than in any of the others. Defendant, Dennis

McGlynn, was not a party to those proceedings, and is

not bound by an erroneous judgment in any of those

proceedings. United States v. Bevel, 558 F.Supp. 95 (N.D.

Ga. 1983). Yet, at all levels, the United States Magistrate

Judge, the United States District Judge for the District of

Utah, Central Division, and the United States Court of

Appeals for the Tenth Circuit found that the decision of

the Circuit Court of Appeals in United States v. William

Oxx, et al., 127 F.3d 1277 (10 Cir. 1997), was res judicata,

and failed to consider the issues presented by Defendant,

Dennis McGlynn, in this case.

In a two page slip opinion, the United States Court of

Appeals for the Tenth Circuit said in this case:

“We find that the device used in this case is

exactly the same device as used in Oxx. We,

therefore, find no principled way to distinguish

this case from prior controlling authority of this

court. This appeal is controlled by Oxx, supra.”

and denied a Petition for Rehearing En Banc while con-

tinuing to ignore the additional issues and evidence.

ee eee

OP WME es

Defendant, Dennis McGlynn, respectfully submits

that the United States Court of Appeals for the Tenth

Circuit could have found a principled way to distinguish

their prior decision in Oxx if they had only read the

Record on Appeal in United States v. William Oxx, et al.,

127 F.3d 1277 (10% Cir. 1997):

Admittedly, the record indicates that the devices are

the same, but the issues, evidence and burden of proof

between Oxx and this case are uifferent. Oxx originated in

the United States District Court by a Motion to Dismiss

filed by the Defendants in that case alleging ambiguity in

National Park Service Regulation 36 CFR §2.17(a)(1) and

(a)(3). The flight characteristics of the device used by the

Defendants was not an issue; and Defendants presented

only minimal evidence of the flight characteristics of the

device commonly called a parachute used by the Defen-

dants. In Oxx, the United States District Judge found

National Park Service Regulation 36 CFR §2.17(a)(3) was

ambiguous. United States v. William Oxx, et al., 980 F.Supp.

405 (D. Utah, 1997), and said at page 407:

“At the outset, the court begins an analysis by

recognizing that due process requires a criminal

statute to be stated in terms which are reason-

ably definite so that a person of ordinary intel-

ligence will know what the law prohibits or

commands.

And said at page 408:

“By its plain language, Section 2.17(a)(3) seeks

to prohibit “delivering or retrieving a person or

object by parachute, helicopter, or other air-

borne means.” The ordinary meaning of the

term “deliver” is to “set free from restraint” or

i i

10 |

, : , i

to “give transfer, yield possession or con-

a ss

Thus, under the common meaning of delivery, it

is difficult to understand how a person BASE

jumping can be said to be “delivering” himself.”

And in discussing the phrase, “other means of air deliv-

ery” in National Park Service Regulation 36 CFR

§2.17(a)(3), the United States District Judge said at page

408:

“Thus, according to its plain meaning, the aver-

age person would understand subsection (3) to

prohibit delivery of a person or object by para-

chute, helicopter, airplane or any other device

capable of human flight.

At the same time, however. subsection (1) of

section 2.17(a) provides that operation or use of

aircraft is permitted in specially designated

areas without a permit. Lake Powell is one of

those areas.” ...

The entire surface of Lake Powell is a designated

landing area and no permit is required for aircraft to land

on the surface of Lake Powell. Title 36 CFR §7.70(a)(6).

“§7.70 Glen Canyon National Recreation Area.

LTTE CeO SERIE Oe | ROPE? ee

(a) designated airstrips

the restrictions contained in §2.17 of this chap-

ter.”

at ee

The trial judge in Oxx went on to say,

“As expressed above, the plain reading of the

regulation appears to both at once permit deliv-

ery 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. . . .

Accordingly, because the Court finds that the

regulation as applied to the conduct of the

defendants is ambiguous, the Information is

hereby dismissed.”

It is obvious from the decision of the United States

District Judge in Oxx (980 FSupp. 405) that the issue in

that case presented on appeal to the United States Court

of Appeals for the Tenth Circuit was the ambiguity in

National Park Service Regulation 36 CFR §2.17(a)(1) and

(a)(3) and not the flight characteristics of the device used

by Paul Thompson.

Nevertheless, in Oxx (ibid. 127 F.3d 1277), the United

States Court of Appeals for the Tenth Circuit misap-

prehended the ambiguity in National Park Service Regu-

lation 36 CFR §2.17(a)(3) and CFR §7.70(a)(6) but instead

concentrated on the parachute nomenclature of the

device used by the Defendants and said at page 1279:

“We turn first to the primary issue on appeal,

are Defendants’ BASE jumping parachutes

included within the meaning of “parachute” in

§2.17(a)(3)? Federal regulations define a para-

chute as ‘a device used or intended to be used to

retard the fall of a body or object through the

air’ 14 CFR §1.1 (1997).” ...

“Delivering is not defined in the regulations,

but we believe it is apparent that moving one-

self from one area to another, as Defendants did,

constitutes delivery.”

And concluded on page 1280:

“A parachute by any other name is still a para-

chute, and delivering a person by parachute is

prohibited.”

Admittedly, the device used by Paul Thompson, is com-

monly called a parachute, but the device does more than

“retard the fall of a body or object through the

air,”

as a parachute is defined in 14 CFR §1.1. This definition

of the word “parachute” in National Park Service Regula-

tions 14 CFR §1.1 includes in 36 CFR §2.17(a)(3) only

those parachutes which “retard the fall of a body or

object through the air” and does not include the device

used by Paul Thompson, which can fly through the air

like an aircraft. All “aircraft” retard the fall of a body or |

object through the air. Otherwise, human flight through :

the air would be impossible.

Since the issue in the United States District Court in

Oxx was the patent ambiguity in National Park Service |

Regulation 36 CFR §2.17(a)(1) and (a)(3), only minimal

evidence of the flight characteristics of the device used by

Paul Thompson, was presented to the District Court and

included in the Record on Appeal to the United States

Court of Appeals for the Tenth Circuit in Oxx (ibid.).

In this case, however, Defendant, Dennis McGlynn,

presented patents showing the device used by Paul

Thompson has a rectangular shape and is designed like

Be,

an airplane wing with a curved top surface which causes

air to flow faster over the top surface to provide lift; and

describing the operation and flight characteristics of the

device used by Paul Thompson. Defendant also presented

video tapes showing the device is maneuverable; can be

used to slalom through gates; and presented evidence

that the device can rise vertically, fly horizontally

through the air a distance of 230 miles, and stay aloft for

eleven hours. Most of this evidence was not in the Record

on Appeal before the United States Court of Appeals for

the Tenth Circuit when United States v. William Oxx, et

al.,127 F.3d 1277 (10% Cir. 1997), was decided by that

court. Since Oxx was decided on the facts before the court

in that case, similar nomenclatures, i.e. parachutes,

should not make Oxx res judicata on Defendant, Dennis

McGlynn’s defense in this case; and Defendant’s defense

discussed supra concerning the invalidity of and ambi-

guity in National Park Service Regulations 36 CFR

§2.17(a)(1) and (a)(3) should be considered without refer-

ence to the prior decision of the United States Court of

Appeals for the Tenth Circuit in United States v. William

Oxx, et al., 127 F.3d 1277 (10 Cir. 1997).

Il.

Because The Entire Surface Of Lake Powell Has Been

Designated As A Landing Area, FAA Regulations Pre-

Empt The Park Services’ Authority To Regulate Aero-

nautical Activities On The Surface of Lake Powell. This

Is An Issue Not Raised Or In Any Way Addressed In

The Oxx Case, But Raised, Briefed And Argued At All

Levels Of The McGlynn Case But Ignored By The Tenth

Circuit

By Section 1 of Title 16 of the United States Code (16

U.S.C. §1), Congress created the National Park Service to

establish National Parks and to promote and regulate the

use of federal areas known as National Parks.

By Section 106 of Title 49 of the United States Code

(49 U.S.C. §106), Congress created the Federal Aviation

Administration within the Department of Transportation;

and by the Federal Aviation Act (49 U.S.C. §40103), Con-

gress authorized the Federal Aviation Administration to

regulate and control all aeronautical activity within the

navigable air space of the United States. City of Burbank v.

Lockhead Air Terminal, Inc., 411 U.S. 624, 634, 93 S.Ct. 1854,

1860, 36 L.Ed.2d 547 (1973).

By Section 7(a) of Title 16 of the United States Code

(16 U.S.C. §7), Congress authorized the National Park

Service to establish, maintain, and operate airports in or

in close proximity to National Parks, but expressly pro-

vided:

” .,. that the operation and maintenance of such

airports shall be in accordance with the stan-

dards, rules or regulations of the Federal Avia-

tion Administration.”

Thus, Congress clearly intended for the Federal Aviation

Administration to regulate aeronautical activity in

National Parks. :

By National Park Service Regulation 36 C.F.R.

§2.17(e), the National Park Service expressly provides

that:

“(e) the operation of aircraft shall be in accor-

dance with regulations of the Federal Aviation

Administration.”

So, by National Park Service Regulations 36 CFR §2.17(e),

the National Park Service itself recognizes that the Fed-

eral Aviation Administration has preemptive and exclu-

sive authority to regulate aeronautical activity in

National Parks.

By National Park Service Regulation 36 C.F.R.

§7.70(a)(6), the National Park Service designates the

entire surface of Lake Powell in the Glen Canyon

National Recreation Area as an airstrip, subject to the

restrictions in Section 2.17 of this chapter.

An airstrip is a cleared area where aircraft can take

off and land.

Admittedly, the National Park Service had jurisdic-

tion over Lake Powell in the Glen Canyon National Rec-

reation Area as a lake; and before designating the entire

surface of Lake Powell as an airstrip, the National Park

Service could regulate use of the lake and prohibit air-

craft from landing or taking off from the surface of the

lake. But when the National Park Service designated the

entire surface of Lake Powell as an airstrip, the status of

Lake Powell changed from a lake in a National Park to

part of the navigable air space system of the United States

for the taking off and landing of aircraft; and jurisdiction

to regulate aeronautical activity on the surface of Lake

Powell was transferred to and preempted by the Federal

Aviation Administration as intended by Congress. City of

Burbank v. Lockhead Air Terminal, Inc., 411 U.S. 624, 625,

629, 93 S.Ct. 1854, 1856, 36 L.Ed.2d 547 (1973).

Paragraph 4-8(a)(1) and 4-8(b) of Federal Aviation

Administration Airport Compliance Code 5190.6A

(10/2/89), expresses the policy of the Federal Aviation

Administration that parachute jumping is an aeronautical

activity controlled by the Federal Aviation Administra-

tion which must be permitted at all publicly financed

airports. Case law also considers parachute jumping as an

aeronautical activity, subject to control of the Federal

Aviation Administration. Edison v. The Reliable Life Insur-

ance Companies, 664 F.2d 1130, 1132 (9% Cir. 1981). Louisi-

ana Regional Airport v. Aero Resources, 962 F.Supp. 866, 867

(N.D. La. 1997). Skydiving Center v. St. Mary’s County

Airport Commissioner, 823 F.Supp. 1273, 1283 (D. Md.

1993). Wilson v. Insurance Company of North America, 453

F.Supp. 732 (N.D. Cal. 1978).

Since Congress granted the Federal Aviation Admin-

istration exclusive authority to regulate aeronautical

activity in National Parks, the National Park Service has

no authority to enforce Regulation 36 CFR §2.17(a)(3); as

it relates to Lake Powell and Defendant, Dennis

McGlynn, cannot be found guilty of violating the regula-

tion in an area where the regulation is unenforceable. The

Park Service recognized the FAA authority when it

adopted Sub-Paragraph (e) of Section 2.17. “(e) the opera-

tion of aircraft shall be in accordance with regulations of

the Federal Aviation Administration.”

National Park Service Regulation 36 CFR §2.17(a)(1)

And (a)(3) Are Ambiguous Particularly, When Taken In

Conjunction With 36 CFR §7.70(a)(6), Do Not Clearly

Describe What Conduct Is Prohibited.

National Park Service Regulation 36 CFR §2.17(a)

provides in part:

“(a) the following are prohibited:

(1) operating or using aircraft on lands or

waters other than at designated take off or land-

ing areas, except pursuant to the terms and con-

ditions of a permit.

(3) delivering a person or object by parachute,

helicopter, cr other means of air delivery, except

in emergencies involving public safety or

serious property loss, or pursuant to the terms

and conditions of a permit. For the purposes of

this subparagraph, “delivery” means the act of

conveying or releasing persons or property.”

CFK §7.70(a)(6) provides, in part,

§7.70 Glen Canyon National Recreation Area.

(a) designated airstrips

the restrictions contained in §2.17 of this chap-

ter.”

18 ;

Criminal statutes should clearly describe the pro-

scribed conduct, so that a person of ordinary intelligence

can understand what conduct is prohibited. Kolender v.

Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d

_ 903 (1983). National Park Service Regulation 36 CFR

§2.17(a)(1) and (a)(3) are ambiguous and do not clearly

describe what conduct is prohibited.

36 CFR §2.17(a)(1) permits aircraft to land at desig- |

nated take off or landing areas without a permit. |

36 CFR §2.17(a)(3) prohibits parachutes, helicopters,

or other means or air delivery, which includes all aircraft,

from landing anywhere without a permit.

This ambiguity is illustrated by the conflicting opin-

ions of the United States District Court, District of Utah

(980 F.Supp. 405) and of the United States Court of

Appeals for the Tenth Circuit (127 F.3d 1277) in United

States v. William Oxx, et al.

In United States v. William Oxx, et al., 980 F.Supp. 405

(D.C. Utah 1997), the District Judge decided National

Park Service Regulation 36 CFR §2.17(a)(1) and (a)(3)

were ambiguous and said at page 408:

“Thus, what the regulations seem to give with

one hand, i.e. the right to land an aircraft with-

out a permit, they appear to take away with the

other, i.e. no delivery or retrieval of persons by

‘airborne means.’ ”

On the other hand, the United States Court of

Appeals for the Tenth Circuit, in United States v. William

Oxx, et al., 127 F.3d 1277 (10th Cir. 1997), in reversing the

District Judge, said at page 1279:

al,

“Nevertheless, to answer the contention that

what is forbidden in §2.17(a)(3) is simul-

taneously allowed elsewhere, we note that

§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 a

permit to do so.”

In other words, the United States Court of Appeals for

the Tenth Circuit construed 36 CFR §2.17(a)(3) as requir-

ing a permit before any aircraft could land anywhere on

National Park Service property. This interpretation of 36

CFR §2.17(a)(3) by the United States Court of Appeals for

the Tenth Circuit is contrary to and overlooks the lan-

guage in 36 CFR §2.17(a)(1) and the language of CFR

§7.70(a)(6) which expressly permit all aircraft to land at

designated take off or landing areas without a permit.

This interpretation of 36 CFR §2.17(a)(1) and (a)(3) by the

Court of Appeals is also contrary to the interpretation of

Regulation 36 CFR §2.17(a)(1) and (a)(3) by the National

Park Service which concedes that aircraft can land at

designated landing areas in National Parks without a

permit including the entire surface of Lake Powell.

The words “delivering a person or object by para-

chute, helicopter or other airborne means” contributes to

the ambiguity in 36 CFR §2.17(a)(3). The word “delivery”

in common usage connotes handing over of some res

from one person to another. Most individuals would not

consider jumping from a cliff with a parachute and land-

ing on the surface of Lake Powell as delivering one’s self

to the surface of Lake Powell, as construed by the Court

of Appeals in Oxx (ibid.), anymore than they would con-

sider walking from one room to another room in a house

as delivering one’s self to the second room in the house.

As two witnesses (who testified in this case) inquired,

how could they deliver themselves since they were

already there?

If learned Justices of the United States courts dis-

agree as to what conduct is permitted and prohibited by

National Park Service Regulation 36 CFR §2.17(a)(1) and

(a)(3), an ordinary intelligent person cannot understand

what conduct is prohibitea, and National Park Service

Regulation 36 CFR §2.17(a)(3) cannot be enforced.

Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858,

75 L.Ed.2d 963 (1983). Kmart Corp. v. Carter, Inc., 486 U.S.

281, 294, 108 S.Ct. 1811, 1819, 100 L.Ed.2d 313 (1988).

It was entirely reasonable, given the flight charac-

teristics of Paul Thompson’s device, for Dennis McGlynn

to conclude that his “parachute” was, in reality, an air-

craft and, thus, permitted to land on the surface of Lake

Powell without a permit, particularly, in the light of two

appellate court opinions in effect at the time. The Utah

Supreme Court, in the context of a life insurance exclu-

sion, recognized and ruled that a “parachute” was an

aircraft. Deschler v. Fireman's Fund American Life Insurance

Company, 663 P.2d 97, 39 ALR 4 209 (Supreme Court of

Utah (1983)). Likewise, in 1983, the Ninth Circuit Court of

Appeals in a similar case, also ruled that a “parachute”

was an aircraft. Edison v. The Reliable Life Insurance Com-

pany, 664 F.2d 1130, 1132 (9 Cir. 1981).

The trial judge in the Will Oxx case felt the Statute

was ambiguous; both the Ninth Circuit Court of Appeals

and the Utah Supreme Court ruled that the devices in

question were “aircraft”. In the McGlynn trial, Ranger

Sumner testified for the Government and on cross-exam-

ination was shown a video of various powered aircraft

whose lifting surface or wing was a soft canopy identical

to the “parachute” used by Paul Thompson. When asked

if he would make an arrest if that device landed on the

surface of Lake Powell he said he would “have to further

investigate.” The Government also conceded that if a

person were to “parachute” from a conventional aircraft

onto the surface of Lake Powell, FAA regulations would

control.

Also in the Dennis McGlynn trial, the Paul Thompson

“parachute” was conclusively shown to be an “aircraft”.

That leaves only the Tenth Circuit opinion that a “para-

chute is a parachute” and that opinion was based on an

erroneous premise. Three out of four, Dennis McGlynn

should win.

CONCLUSION

This case may not involve great public interests, but

it does involve grave Constitutional issues, i.e., the right

of individuals to present a defense to criminal charges

against them and to have their defense considered by the

court uncontrolled by prior decisions on different facts in

other cases to which they were not a party.

Wherefore, Petitioner, Dennis McGlynn, requests that

this Supreme Court of the United States grant this peti-

tion and issue a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit to review a judg-

ment of that court convicting Defendant, Dennis

McGlynn, of aiding and abetting Paul Thompson to vio-

late National Park Service Regulation 36 CFR §2.17(a)(3)

by delivering a person or object to the surface of Lake

Powell in the Glen Canyon National Recreation Area by a

parachute without a permit; and

Upon review, Petitioner requests that this Supreme

Court of the United States reverse the judgment of the

United States Court of Appeals for the Tenth Circuit and

acquit Petitioner of the charges against him.

Respectfully submitted,

Frep M. More tl, Jr.

Attorney for Petitioner,

Dennis McGLYNN

403 W. Galena Blvd.

Aurora, IL 60507-1416

(630) 892-6665

APPENDIX

TABLE OF CONTENTS

Pages

Unpublished Opinion:

United States vs. Gravity Sports Ltd., and Dennis

McGlynn, 10th Circuit 00-4098, 12/15/00....... App. 1

Unpublished Opinion:

United States vs. Gravity Sports, Ltd., and Dennis

McGlynn, Utah 2-96-CR-0052 B 5/26/00...... App. 3

Unpublished Opinion:

Order, Tenth Circuit, 1/15/01................ App. 14

Federal Aviation Administration Compliance

Code 5190.6A, 10/2/89 Paragraph 4-8(a)(1) and

i OE ET Re Se Pes e CaN arty a Ac eal Ea ane App. 15

App. 1

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF )

AMERICA, )

ey Sm )

Plaintiff-Appellee, No. 00-4098

v. ) (D. Ct. No. 96-

GRAVITY SPORTS, LTD., ) CR-0052B)

DENNIS McGLYNN (D. Utah)

Defendant-Appellant. )

ORDER AND JUDGMENT

(Filed Dec. 15, 2000)

Before TACHA, McKAY, and HENRY, Circuit Judges.

This appeal is from an order of the district court

affirming the conviction and sentences of defendants

Dennis McGlynn and Gravity Sports, Ltd., who were

charged with aiding and abetting Paul Thompson in vio-

lating National Park Service Regulation 36 C.F.R.

§ 2.17(a)(3), a class B misdemeanor, by delivering a per-

son or object to the surface of Lake Powell in the Glen

Canyon National Recreation Area on the Utah side, by a

parachute without a permit. The defendants were found

guilty of these offenses and the sentences were imposed

by the magistrate judge and affirmed by the district

court.

The defendants’ appeal urges us to interpret

§ 2.17(a)(3) in a way that distinguishes this case from

United States v. Oxx, 127 F.3d 1277 (10th Cir. 1997). The

district court in this case clearly stated

App. 2

[bJoth sides acknowledge that the parachutes

used by the defendants are the same as those at

issue in Oxx. As stated in Oxx, “the term ‘para-

chute’ in § 2.17(a)(3) unambiguously applies to

the parachutes used by defendants in BASE

jumping.” See Oxx, 127 F.3d at 1279. The Tenth

Circuit further stated, “[a] parachute by any

other name is still a parachute, and delivering a

person by parachute is prohibited” and

“[tlechnological improvement in the shape,

maneuverability, and control of modern para-

chutes, including those used here, do not maxe

them cease to be parachutes.” Id. at 1279-80.

United States v. Gravity Sports, Ltd., No. 2:96-CR-0052 B,

slip op. at 5 (D. Utah May 30, 2000).

We find that the device used in this case is exactly the

same device as that used in Oxx. We therefore find no

principled way to distinguish this case from prior con-

trolling authority of this court. This appeal is controlled

by Oxx, supra. The order of the district court is affirmed.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge

App. 3

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH - CENTRAL DIVISION

UNITED STATES OF

)

AMERICA, ) MEMORANDUM

Plaintiff / Appellee, ee

“~ , Case No.

: 2:96-CR-0052B

GRAVITY SPORTS, LTD., ?

DENNIS McGLYNN,

Defendants/Appellants. )

INTRODUCTION

(Filed May 30, 2000)

On September 15, 1994, Paul Thompson pursued an

activity known as BASE! jumping at Lake Powell in

Southeastern Utah. He jumped from a cliff into the water

below. On the descent, he struck a cliff and was killed.

Defendants, Dennis McGlynn and Gravity Sports, Ltd.,

were charged with aiding and abetting Paul Thompson to

violate National Park Service Regulation 36 C.F.R.

§ 2.17(a)(3), a class B misdemeanor, by delivering a per-

son or object to the surface of Lake Powell in the Glen

Canyon National Recreation Area, Utah side, by a para-

chute without a permit. Following a bench trial to Magis-.

trate Judge Samuel Alba, both defendants were found

guilty of the offense and now appeal their conviction to

1 BASE is an acronym for buildings, antenae, spans and

earth forms.

App. 4

this court pursuant to Federal Rule of Criminal Procedure

58(g)(2)(B). This court has original jurisdiction under 18

U.S.C. § 3231. Having reviewed the memoranda submit-

ted by the parties, the court issues this Memorandum

Opinion and Order.

Entered on docket

5/3/00 by:

{ILLEGIBLE}

Deputy Clerk

BACKGROUND

In the spring of 1994, Gravity Sports circulated a

flyer advertising “Cliff Camp 94.” Fur a fee of $1,000,

Gravity Sports offered prospective attendees of Cliff

Camp 94 “the chance to learn, while you experience first

hand, every aspect of slider-down ‘cliffin.’ ” Cliff Camp

94 was touted in the advertisement as “an accelerated

course in fixed object jumping, allowing you to do and

learn in one week what might take years by traditional t

methods.” Participants were told that they would make

ten to fifteen jumps at up to seven different sites.

During September, 1994, a group of approximately

ten to twelve persons, including McGlynn and

Thompson, traveled from California to Lake Powell to

participate in Cliff Camp 94. The group traveled to

approximately seven different cliff sites. On September

15, 1994, Thompson jumped from a cliff located on the

Utah side of Lake Powell in the Glen Canyon National

Recreation Area. Upon jumping from the cliff, Thompson

deployed a rectangular shaped parachute, or as the

App. 5

defendant asserts, “a rectangular “RAM-air’ aeroelastic

wing inflatable canopy” (RAM canopy), which appeared

to malfunction and throw him into the side of the cliff

wall. Thompson sustained injuries causing his death.

Following their trial and conviction, the defendants

were sentenced by the Magistrate Judge on August 27,

1999. Defendant McGlynn was sentenced to three months

incarceration, sixty months probation, and required to

pay $2,225 in restitution. Defendant Gravity Sports, Ltd.

as ordered to pay a $5,000 fine.

Defendants now appeal the Magistrate Judge’s rul-

ing, arguing that their convictions should be reversed. As

stated by the defendants, they advance the following

arguments: (1) the defendants are not bound by the

United States Court of Appeals for the Tenth Circuit’s

decision in United States v. Oxx, 127 F.3d 1277 (10th Cir.

1997); (2) the government failed to meet its burden of

proving beyond a reasonable doubt that a person of ordi-

nary intelligence will understand what conduct is prohib-

ited, and the defendants could reasonably have believed

that the RAM canopy qualified as an aircraft capable of

powerless flight; (3) the Federal Aviation Administration

has exclusive jurisdiction of aeronautical activity on Lake

Powell rather than the National Park Service; and (4)

defendant Gravity Sports was a dissolved partnership not

capable of committing a crime as a separate entity.*

2 On November 12, 1999, after the appeal was fully briefed,

defendants filed a motion to add additional argument,

contending that the fine imposed on defendant Gravity Sports is

an additional punishment on McGlynn as the remaining

proprietor of Gravity Sports, which constitutes double

App. 6

DISCUSSION

All issues presented in this appeal are issues of law,

and the Court accordingly reviews them de novo. See

United States v. Wood, 6 F.3d 692, 694 (10th Cir. 1993).

United States v. Oxx

Count II of the indictment charges the defendants

with aiding and abetting delivery of Paul Thompson by

parachute to the surface of Lake Powell without a permit

in violation of National Park Service Regulation 36 C.F.R.

§ 2.17(a)(3). The instant appeal hinges on the interpreta-

tion of section 2.17(a)(3) and in that regard whether the

Tenth Circuit Court of Appeal’s opinion in United States v.

Oxx, 127 F.3d 1277 (10th Cir. 1997) is controlling here.

Defendants contend that the Magistrate Judge erro-

neously followed Oxx as controlling precedent, arguing

that the only issue before the Tenth Circuit in Oxx was

whether a RAM canopy was more than a parachute for

purposes of a motion to dismiss. Defendants argue that in

the instant case the government must have proved

beyond a reasonable doubt that a RAM-canopy was not

an aircraft. Regardless whether the Court is reviewing a

motion to dismiss or, as in the case at bar, a conviction

from a bench trial, the Court must interpret section 2.17,

punishment in violation of the Fifth Amendment. The

government opposes the motion as untimely. The Court agrees.

Furthermore, there is also no evidence that this argument was

raised below to the Magistrate Judge. Moreover, even if the

Court were to consider defendants’ argument, defendants have

provided virtually no legal support for their proposition. The

motion to add this additional argument is denied.

App. 7

and the Tenth Circuit’s decision in Oxx provides clear

guidance as to the proper interpretation.

Section 2.17(a)(1) states:

§ 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 pur-

suant 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.

36 C.FR. § 2.17(a)(1) and (a)(3).

Defendants assert that section 2.17 is ambiguous

when considering the definitions contained in other

National Park Service Regulations, specifically 36 C.F.R.

§§ 7.70(a)(6) and 1.4(a), as well as 40 Fed. Reg. 36,378

(1975). Section 770 provides:

§ 770 Glen Canyon National Recreation Area.

(a) designated airstrips

(6) the entire surface of Lake Powell subject to

the restrictions contained in § 2.17 of this chap-

ter.

36 C.F.R. § 7.70(a)(6). Section 1.4 defines aircraft as

including powerless flight. See 36 C.F.R. § 1.4(a). Accord-

ing to a statement by the director of the National Park

App. 8

Service, powerless flight includes parachutes. See 40 Fed.

Reg. 36,378 (1975) (stating under the heading of “Power-

less Flight,” that “launching or landing of recreational

gliders, sailplanes, parachutes, body kites, hang gliders,

and other devices designed to carry persons or objects

through the air in powerless flight is prohibited”).

Based on the above definitions, defendants argue that

the regulations provide for the use of aircraft in desig-

nated areas (section 2.17(a)(1)), that Lake Powell is a

designated airstrip (section 7.70(a)(6)), that aircraft

includes powerless flight (section 1.4(a)), and that accord-

ing to a statement by the director of the National Park

Service in the Federal Register parachutes are within the

definition of powerless flight (40 Fed. Reg. 36,378). In

contrast to defendants’ argument, section 2.17(a)(3)

plainly prohibits delivering a person by parachute.

Defendants attempt to overcome section 2.17(a)(3) by

arguing that Thompson’s RAM canopy was more like a

powerless aircraft than a parachute.? If Oxx is controlling

3 Defendants filed a motion to cite additional authority on

February 8, 2000. The Court grants that motion and have

considered the authority presented therein, which include a

number of insurance cases that stand for the proposition that

rectangular-shaped parachutes, hang kites, and water ski kites

may be considered aircraft for insurance purposes due to the

operator’s control of the devices. See Deschler v. Fireman’s Fund

Life Insurance Co., 663 P.2d 97 (Utah 1983); Clark v. Lonestar Life

Insurance Co., 347 S.W.2d 290 (Tex. App. 1961); Wilson v.

Insurance Co. of N. Am., 453 F.Supp. 732 (N.D. Cal. 1978). While

these cases may be interesting, they are not on point and fail to

address the regulation here in issue and the clear interpretation

thereof in Oxx.

App. 9

precedent, this argument must fait. Both sides acknowl-

edge that the parachutes used by the defendants are the

same as those at issue in Oxx. As stated in Oxx, “the term

‘parachute’ in § 2.17(a)(3) unambiguously applies to the

parachutes used by defendants in BASE jumping.” See

Oxx, 127 F.3d at 1279. The Tenth Circuit further stated,

“{a] parachute by any other name is still a parachute, and

delivering a person by parachute is prohibited” and

“[t]lechnological improvement in the shape, maneu-

verability, and control of modern parachutes, including

those used here, do not make them cease to be para-

chutes.” Id. at 1279-80. Even Thompson’s own device was

labeled “Quark 7 cell RAM air parachute. . . . Caution:

high performance parachute.”

Defendants went to extensive efforts at trial, through

the use of expert testimony and other exhibits, to demon-

strate that the RAM canopy in question was capable of

traveling significant horizontal distances, making it a

powerless flight vehicle. However, there is no question

the indicted conduct consisted of jumping off a cliff and

attempting to land in the water below. Thompson was

clearly using what the regulations define as a parachute:

“a device used or intended to be used to retard the fall of

a body or object through the air.” 14 C.F.R. § 1.1.

The Magistrate Judge correctly followed Oxx as bind-

ing precedent. He based his verdicts of guilty on the facts

presented at trial, from which it was reasonable to con-

clude that the device in question was a parachute.

Understanding of Prohibited Conduct

Defendants cite Kolender v. Lawson, 461 U.S. 352

(1983), for the proposition that criminal statutes are to be

App. 10

strictly construed and must clearly define the proscribed

conduct so that all persons of ordinary intelligence can

understand what conduct is prohibited. See id. at 357.

Defendants contend that the Magistrate Judge’s ruling

was based on an improper construction of the relevant

statute, and that the proscribed conduct was not suffi-

ciently clear.

Defendants argue that reasonable people could

believe that section 2.17(a)(1) permits powerless flight to

land on the surface of Lake Powell and that defendants’

RAM canopy qualifies as powerless flight. However, a

person of ordinary intelligence should understand that

section 2.17(a)(3) plainly prohibits delivery of a person by

parachute, and that the device at issue in this case was a

parachute. Such clarity cannot be replaced by convolut-

ing some other alternative to create ambiguity. See Alber-

naz v. United States, 450 U.S. 333, 342 (1981) (“Where

Congress has manifested its intention, we may not manu-

facture ambiguity in order to defeat that intent.”). The

Tenth Circuit has spoken: “As the intent of the regulation

is abundantly clear, ‘nothing is left to construction.’ ” Id.

at 1250 (quoting United States v. Fisher, 6 U.S. (2 Cranch)

214, 230 (1805)). Here again, Oxx is controlling precedent.

There, the Tenth circuit in addressing this same issue

stated that “the regulation made it reasonably clear at the

relevant time that the defendant’s conduct was

criminal.’ ” Oxx, 127 F.3d at 1279 (quoting United States v.

Lanier, 520 U.S. 259 (1997)).

App. 11

Federal Aviation Administration and National Park

Service Jurisdiction

Defendants argue that the National Park Service is

not authorized to regulate aeronautical activity and that

the Federal Aviation Administration (FAA) has exclusive

jurisdiction over aeronautical activity at Lake Powell.

Thus, defendants contend that the Magistrate Judge con-

victed the defendants under an improper statute because

the National Park Service is precluded from enforcing

section 2.17(a)(3).

Defendants base their argument on the assertion that

when the National Park Service designated the surface of

Lake Powell as an airstrip pursuant to section 7.70 the

National Park Service relinquished and transferred what-

ever control it had to the FAA. Defendants also assert that

parachute jumping is an aeronautical activity under FAA

Airport Compliance Order 5190.6A (1989). Defendants’

argument is without merit. Lake Powell is not an FAA

certified airport and its designation as an airstrip cannot

be viewed as the same. The government, in its opposition

to defendants’ motion to dismiss, submitted position

papers by both the National Park Service and the FAA,

each supporting the government’s position that the

National Park Service has jurisdiction to regulate BASE

jumping at Lake Powell, rather than the FAA.

Moreover, jumping off the cliffs at Lake Powell and

landing in the water below - regardless of what vehicle

slows the descent — falls within the National Park Ser-

vice’s jurisdiction. The National Park Service is charged

with promoting and regulating the use of park lands so as

“to conserve the scenery and the natural and historic

App. 12

objects and the wildlife therein and to provide for the

enjoyment of the same in such manner and by such

means as will leave them unimpaired for the enjoyment

of future generations.” 16 U.S.C. § 1. The national parks

fall under the jurisdiction and management of the

National Park Service, and the Secretary of the United

States Department of the Interior is charged with making

and publishing “such rules and regulations as he may

deem necessary or proper for the use and management of

the parks, monuments, and reservations” under the

National Park Service's jurisdiction. 16 U.S.C. § 3. See also

Lesoeur v. United States, 21 F.3d 965, 968 (9th Cir. 1994)

(noting that “the Secretary has a great deal of discretion

in promulgating and enforcing regulations for use of the

national parks under 16 U.S.C. § 3”); Wilkenson v. Depart-

ment of Interior, 634 F.Supp. 1265 (D. Colo. 1986) (noting

that the congressional grant of authority to the Secretary

to manage the national park system is “very broad”).

The National Park Service’s enforcement of section

2.17(a)(3) against BASE jumping at Lake Powell is not

preempted or precluded by the FAA’s assertion of juris-

diction over parachute and FAA-certified airport activ-

ities. The Magistrate Judge’s rejection of defendants’

argument, and his application of section 2.17(a)(3) to

defendants’ conduct was appropriate.

Dissolution of Gravity Sports, Ltd. and Its Liability

Defendants assert that defendant Gravity Sports can-

not be convicted of a crime because it is a dissolved

partnership. There is no evidence that this issue was

raised below. This Court sits in review of the matters

addressed by the Magistrate Judge in the trial and related

App. 13

proceedings of the defendants’ underlying class B misde-

meanor convictions. See Berna v. Chater, 101 F.3d 631, 632

(10th Cir. 1996) (holding that appellate review “is limited

to the issues . . . properly preserve[d] in the [trial] court

and adequately present[ed] on appeal”); Walker v. Mather,

959 F.2d 894, 896 (10th Cir. 1992) (holding that as a

“general rule . . . ‘a federal appellate court does not

consider an issue not passed upon below’ ” (quoting Sin-

gleton v. Wulff, 428 U.S. 106, 120 (1976))). Defendants

waived this argument by not raising it below.

CONCLUSION

For the foregoing reasons, the convictions and sen-

tences imposed by the Magistrate Judge are AFFIRMED.

DATED, this 26th day of May, 2000.

/s/ Dee Benson

Dee Benson

United States District Judge

App. 14

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF

AMERICA,

Plaintiff-Appellee,

No. 00-4098

GRAVITY SPORTS, LTD;.

DENNIS McGLYNN

Defendants-Appellants,

Nm Nee Nee ee ee ee ee eee”

ORDER

Filed January 19, 2001

Before TACHA, Chief Judge, McKAY, and HENRY, Cir-

cuit Judges.

Appellant Dennis McGlynn’s petition for rehearing is

denied.

The petition for rehearing en banc was transmitted to

all of the judges of the court who are in regular active

service as required by Fed. R. App. P. 35. As no member

of the panel and no judge in regular active service on the

court requested that the court be polled, that petition is

also denied.

Entered for the Court

PATRICK FISHER, Clerk of Court

by: /s/ Amy Frazier

Deputy Clerk

App. 15

AIRPORT COMPLIANCE

REQUIREMENTS

[LOGO]

OCTOBER 2, 1989

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

* * *

4-8. RESTRICTIONS ON AERONAUTICAL USE OF

AIRPORT.

a. Safety and Efficiency.

(1) While the airport owner must allow its use by all

types, kinds, and classes of aeronautical activity as well

as by the general public (passengers, visitors, etc.), the

obligation agreements do provide for exceptions as dis-

cussed in this paragraph. When complaints are filed with

FAA regarding restrictions imposed by the airport owner

in the interest of safety and/or efficiency, assistance of

the appropriate local Flight Standards and Air Traffic

representatives should be obtained in determining the

reasonableness of the restrictions. It may be appropriate

to initiate an FAA airspace study to determine the effi-

ciency and utility of the airport when considering the

proposed restriction. In all cases the FAA will make the

final determination of the reasonableness of the airport

owner’s restrictions which denied or restricted use of the

airport.

* * *

b. Parachute Jumping. Parachute jumping is an

aeronautical use and requests to airport owners from

parachute jumping clubs, organizations, or individuals to

App. 16

establish a drop zone within the boundaries of an airport

should be evaluated on the same basis as other aeronauti-

cal uses of the airport. Any restriction, limitation, or ban

against parachute jumping on the airport must be based

on the grant assurance which provides that the sponsor

may prohibit or limit an aeronautical use “for the safe

operation of the airport or when necessary to serve the

civil aviation needs of the public” (see paragraph 4-8a).

Among the reasonable limitations on parachute jumping

that an airport owner might require are:

(1) The airport owner designate reasonable time

periods for jumping and specific areas for drop zones.

(2) Jumpers (or requesting organization) agree to

pay a reasonable fee that is not unjustly discriminatory.

(3) Jumpers hold a general liability insurance policy

that names the airport owner as an additional ensured

party, with the amount of insurance to be reasonable and

not unjustly discriminatory. The airport owner is not

required to permit this activity if, in his judgment, it

creates a safety hazard to the normal operations of air-

craft arriving or departing from the airport, nor is the

airport owner required to close the airport to provide a

safe environment for the parachute jumpers. In cases

where complaints are filed with FAA, Flight Standards

and Air Traffic should be consulted to help determine the

reasonableness of the airport owner’s restrictions. It may

be appropriate to initiate an FAA airspace study to deter-

mine the efficiency and utility of the airport when consid-

ering the proposed restriction. In all cases the FAA will

make the final determination of the reasonableness of the

App. 17

airport owner’s restrictions which denied or restricted

use of the airport.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.