Petition for Writ of Certiorari — Albers v. United States

Sup ome Gourt, U. s.

fi LED

90 905 nov 3020

No.

. DEEICE-OE—FHE-6t R=

In The

Supreme Court of the United States

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MARK C. ALBERS, JIM T. FREEGARD,

DAVID W. MORAN, ERIN MORAN, DAVID PIERCE,

CARMEL PRESSE, J. LYLE PRESSE, JEFF SCHLABS,

MARK SHEEHAN, KIRK SMITH, DAVID M. STROBEL,

STEVE VAN HORN,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

PETITON FOR WRIT OF CERTIORARI

¢

Frep M. More ul, Jr.

403 W. Galena Blvd.

Aurora, IL 60506

630/892-6665

Attorney of Record

for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

4opp

QUESTION PRESENTED FOR REVIEW

Whether Petitioners can be guilty of disorderly conduct

when no member of the public is present or harmed by

Petitioners’ conduct.

ii

TABLE OF CONTENTS

Page

Question Presented for Review ................000. i

Sees OF AMOI 65.5 eee iii

Opinion Below Entered in the Case................ l

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Constitution and Regulations ...................05. 2

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Reasons for Granting the Writ..................... 4

I. THE GOVERNMENT FAILED TO CHARGE

AND PROVE THAT PETITIONERS’ CONDUCT

HARMED OR CREATED A RISK OF HARM TO

THE PUBLIC WHEN NO MEMBER OF THE

PUBLIC WAS PRESENT AT THE TIME....... t

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TABLE OF AUTHORITIES

Page

Cases

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* CONSTITUTION

Constitution of the United States, Amendment V .. 2, 7, 9

PETITION FOR WRIT OF CERTIORARI

All Petitioners respectfully pray that a Writ of Cer-

tiorari be issued to review the judgment of the United

States Court of Appeals for the Ninth Circuit entered on

September 7, 2000.

OPINION BELOW ENTERED IN THE CASE

United States v. Mark Albers, et al., 9th Circuit No.

99-10071, dated 9/7/00 (2000 WL 1264595 (9th

Cir.).

To Petitioners’ knowledge, the opinion of the United

States Court of Appeals for the Ninth Circuit has not yet

been published and is reprinted in the Appendix to this

Petition.

United States v. Mark Albers, et al., D.C. Ariz. No.

CR 95-00448-RGS, dated September 7, 2000.

There was never a written opinion handed down by

the United States District Court for the District of Ari-

zona.

JURISDICTION

The judgment sought to be reviewed was entered on

September 7, 2000. This United States Supreme Court has

jurisdiction under 28 U.S.C. § 1254(1) to review on Writ of

Certiorari the judgment sought to be reviewed of the

United States Court of Appeals for the Ninth Circuit. This

Petition is being filed within 90 days after entry of the

judgment as provided by Supreme Court Rule 13.

°

CONSTITUTION AND REGULATIONS

Constitution of the United States, Amendment V.

Title 36, Code of Federal Regulations, Section

2.34(a)(4).

Title 36, Code of Federal Regulations, Section

2.17(a)(1) and (a)(3).

Title 36, Code of Federal Regulations, Section

7.70(a)(6).

Title 14, Code of Federal Regulations, Section 1.1(a).

¢

STATEMENT OF THE CASE

All Defendants were charged by a two count Infor-

mation with:

Count I: Delivering or retrieving a person or object

by parachute within the confines of the Glen Canyon

Recreation Area, Arizona side, in violation of Title 36,

Code of Federal Regulations, Section 2.17(a)(3) and,

Count II: With disorderly conduct within the confines

of the Glen Canyon Recreation Area, Arizona side, by

engaging in conduct which was disorderly and created

and maintained a hazardous and physically offensive

condition, in violation of Title 36, Code of Federal Regu-

lations, Section 2.34(a)(4).

All Defendants as a group went to a remote area of

Lake Powell in the Glen Canyon Recreation Area and

participated in jumping with a RAM-air aeroelastic wing-

like cloth canopy, commonly called a parachute, from a

cliff in a remote area of Lake Powell and landing on the

surface of Lake Powell, Arizona side. Except for jumping

from a cliff and landing on the surface of Lake Powell,

there is no evidence of any other illegal conduct engaged

in by Defendants at that time.

No member of the public, except Defendants, were

present in the area at the time.

Title 36 of the Code of Federal Regulations, Section

2.17(a)(1) provides:

“(a) the following are prohibited:

(1) Operating or using aircraft in lands or

waters other than at designated take-off or

landing areas, except to the terms and condi-

tions of a permit.”

Title 36 of the Code of Federal Regulations, Section

7.70(a)(6) designates the entire surface of Lake Powell as

an airstrip.

Defendants believed that the RAM-air aeroelastic

wing-like cloth canopy used by them to jump from a cliff

in the Glen Canyon Recreation Area and land on the

surface of Lake Powell was not included within the defi-

nition of parachute as defined in Title 36, Code of Federal

Regulations, Section 1.1(a) which only “retards the fall of

a body or object through the air;” and believed their

conduct was permitted by Title 36 of the Code of Federal

Regulations, Section 2.17(a)(1), because the devices they

were using do much more than merely retard the fall of a

body through the air.

All Defendants were found guilty of disorderly con-

duct and each Defendant was sentenced to pay a fine or

$500.00 plus the additional sum of $345.33 for the cost of ,

prosecution.

The United States Court of Appeals for the Ninth

Circuit said:

“The safety threat implicated in BASE jumping

is most often the potential harm to the jumper

due to the fatalities and injuries characterizing

the extreme sport. We do not, however, discount

the safety risk of BASE jumping posed to mem-

bers of the public, particularly in areas where

people are likely to congregate.”

ee

This case concerns alleged violations of National

Park Service Regulations 36 CFR § 2.17(a)(3) and 36 CFR

§ 2.34(a)(4). The United States District Court for the Dis-

trict of Arizona had original jurisdiction for violations of

federal law under Title 18 U.S.C. § 3231.

a t

REASONS FOR GRANTING THE WRIT

THE GOVERNMENT FAILED TO CHARGE AND

PROVE THAT PETITIONERS’ CONDUCT HARMED

OR CREATED A RISK OF HARM TO THE PUBLIC

WHEN NO MEMBER OF THE PUBLIC WAS PRESENT

AT THE TIME.

All Defendants were charged by Count 2 of the Infor-

mation with disorderly conduct by engaging in conduct

EEE ———————— EE

which was “disorderly,” by “creating and maintaining a

hazardous and physically offensive condition,” in viola-

tion of Title 36, Code of Federal Regulations, § 2.34(a)(4).

All Defendants were found guilty of disorderly conduct

and each Defendant was sentenced to pay a fine of

$500.00 plus the additional sum of $345.33 for the cost of

prosecution.

Title 36 CFR § 2.34(a)(4) provides:

Ҥ 2.34 Disorderly Conduct.

(a) A person commits disorderly conduct when

with intent to cause public alarm, nuisance,

jeopardy or violence, or knowingly or recklessly

creating a risk thereof, such person commits any

of the following prohibited acts.

(4) creates or maintains a hazardous or physi-

cally offensive condition.”

Disorderly conduct is a vague catchall phrase

intended to proscribe conduct which causes public alarm

or harm, or a risk thereof; so harm to the public is an

essential element of disorderly conduct which must be

charged and proved as distinguished from individual

harm. Garner v. State of Louisiana, 368 U.S. 157, 163-65, 82

S.Ct. 248, 251-53, 7 L.Ed.2d 207 (1961).

This Petition for a Writ of Certiorari is limited solely

to Count II of the Information charging all Defendants

with disorderly conduct and presents the issue whether

an alleged violation of Title 36 of the Code of Federal

Regulations, Section 2.17(a)(3) creates a hazardous and

physically offensive condition to the public and is per se

disorderly conduct when no member of the public except

Defendants were present; no member of the public was

present to be alarmed, harmed or threatened with harm

in any way by Defendants’ conduct.

All Defendants allegedly assembled and participated

in jumping without a permit with a RAM-air aeroelastic

wing-like cloth canopy, commonly called a parachute,

from a cliff in a remote area of the Glen Canyon Recre-

ation Area, Arizona side, and landing on the surface of

Lake Powell. Title 36 of the Code of Federal Regulations,

Section 7.70(a)(6), designates the entire surface of Lake

Powell as an airstrip.

There is no evidence that any member of the public

other than Defendants were present in the area at the

time; or that the public was harmed or threatened with

harm in any way by Defendants’ conduct, and there is no

evidence that the Defendants engaged in any conduct

other than jumping from the cliff and landing on the

surface of Lake Powell. The United States Court of

Appeals for the Ninth Circuit erroneously speculated that

some member of the public might be present, because

Defendants were jumping from a cliff in a remote area of

a National Park.

Count 2 of the Information charging Defendants with

disorderly conduct fails to charge that Defendants’ con-

duct harmed or created a risk of harm to the public so

there is no charge upon which Defendants can be con-

victed of disorderly conduct; and the United States failed

to prove that any member of the public, except Defen-

dants, were present or harmed by Defendants’ conduct,

so there is no evidence upon which Defendants can be

convicted of disorderly conduct. These are fatal defects

and Defendants’ convictions of disorderly conduct

should be reversed.

This United States Supreme Court has many times

held that conviction upon a charge not made is a clear

denial of due process; and that it is a violation of due

process to convict and punish a person without evidence

of guilt. Thompson v. City of Louisville, 362 U.S. 199, 206, 80

S.Ct. 624, 629, 4 L.Ed.2d 654 (1960). Gregory v. City of

Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 947, 22 L.Ed.2d

134 (1969).

Conviction of Defendants for disorderly conduct

without proof that any member of the public was harmed

by Defendants’ conduct violates Defendants’ right to due

process of law under the Fifth Amendment to the Consti-

tution of the United States; and thereby imparts impor-

tance to this Petition, notwithstanding Defendants were

respectively fined only $500.00 each.

The United States Court of Appeals for the Ninth

Circuit, after quoting the definition of “recklessly” from

the Model Penal Code:

“The risk must be of such nature and degree

that considering the nature and purpose of the

actor’s conduct and the circumstances known to

him, its disregard involves a gross deviation

from the standard of conduct that a law abiding

person would observe in the actor’s situation.”

speculated that harm to the public could be presumed

without proof from the hazardous nature of Defendant's

activity, notwithstanding no member of the public was

present. Since Defendants knew that no member of the

public other than Defendants were present in the area at

a

the time, Defendants could not know of any substantial |

risk of harm to the public and act recklessly. Farmer v.

Brennan, 511 U.S. 825, 836-37, 114 S.Ct. 1970, 1979, 128 ;

L.Ed.2d 811 (1994).

The United States Court of Appeals for the Ninth

Circuit referred to the definition of “public” in the Model

Penal Code as:

Ne meee fener: —

“affecting or likely to affect persons in a place in

which the public or a substantial group has

”

access ...

and assumed some member of the public might be pre-

sent because Lake Powell is in a National Recreation

Area.

Defendants believed that the RAM-air aeroelastic

wing-like cloth canopy used by them to jump from a cliff

and land on the surface of Lake Powell in the Glen

Canyon Recreation Area was more than a parachute and

not included within the definition of a parachute in Title

14 of the Code of Federal Regulations Section 1.1 which

defines a parachute as a device “[u]sed or intended to be

used to retard the fall of a body or object through the air.”

The RAM-air aeroelastic wing-like cloth canopy as used

by Defendants do more than “retard the fall of a body or

object through the air” and is capable of vertical ascent

and can soar horizontally in powerless flight for a record

distance of 230 miles. So if Defendants allegedly violated

Title 36, Code of Federal Regulations, Section 2.17(a)(3)

‘ the violation was unintentional and did not per se create

or maintain “a hazardous or physically offensive condi-

tion” as charged in Count 2 of the information and was

not “disorderly conduct,” as provided by Title 36 of the

Code of Federal Regulations, Section 2.34(a)(4).

Although this case only involves the due process

rights of the individual Defendants, the opinion of the

United States Court of Appeals for the Ninth Circuit

concerns all who participate in hazardous activities

everywhere, because the Circuit Court assumes that there

is a risk of harm to the public from what the Circuit Court

considered the hazardous nature of the activity; so that

hazardous activities anywhere might cause public harm

and are per se disorderly conduct.

The opinion of the Circuit Court makes participants

in all hazardous sports, viz. rock climbing, hang gliding,

ski jumping, white water rafting, and many others, guilty

of disorderly conduct because of a presumed risk without

proof of harm to the public and violates the due process

rights and liberty interests of the individual Defendants

to choose their sport under the Fifth Amendment to the

Constitution of the United States and should be reversed.

Wherefore, Petitioners, MARK C. ALBERS, JIM T.

FREEGARD, DAVID W. MORAN, ERIN MORAN, DAVID

PIERCE, CARMEL PRESSE, J. LYLE PRESSE, JEFF

SCHLABS, MARK SHEEHAN, KIRK SMITH, DAVID M.

STROBEL, and STEVE VAN HORN, request that this

United States Supreme Court grant this Petition and issue

a Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit to review the judgment of the

United States Court of Appeals for the Ninth Circuit

convicting Defendants of disorderly conduct, in violation

of Title 36 Code of Federal Regulations, Section 2.34(a)(4)

and Title 18 United States Code, Section 2; and

10

Upon review, Petitioners request that this United

States Supreme Court reverse the judgment of the United

States Court of Appeals for the Ninth Circuit and acquit

all defendants of the charge of disorderly conduct.

Respectfully submitted,

Frep M. More ttl, Jr.

Attorney for Petitioners

403 W. Galena Blvd.

Aurora, IL 60506

630 / 892-6665

APPENDIX

APPENDIX

TABLE OF CONTENTS

Page

United States v. Mark Albers, et al., (9th Cir. No.

. of Loy? ieee rr Al1-12

Title 14 Code of Federal Regulations, Section

1.1(a) - General Definitions...................... Al3

Title 36 Code of Federal Regulations, Section

2.17(a)(1) and (3) — Aircraft and Air Delivery ....A13

Title 36 Code of Federal Regulations, Section

2.34(a)(4) - Disorderly Conduct.................. Al13

Title 36 Code of Federal Regulations, Section

PRED Se nctacte cheeses dscahersasadeseeseseaba Al4

United States Department of the Interior, Special

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Al

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UnitTeD STATES OF AMERICA,

Plaintiff-Appellant, No. 99-10071

D.C. No.

CR-95-00448-RGS

OPINION and ORDER

|

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|

v. |

|

!

| DENYING THE

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|

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Mark C. A bers; Jim T.

FREEGARD; Davip W.

Moran; ERIN Moran;

Davip Pierce; CARMEL

Presse; J. Lyte Presse; JEFF

SCHLABS; MARK SHEEHAN;

Kirk SmitH; Davip M.

StrRoBEL; STEVE VAN Horn,

PETITION FOR

REHEARING

Defendants-Appellants.

Appeal from the United States District Court

for the District of Arizona

Roger G. Strand, District Judge, Presiding

Argued and Submitted

February 7, 2000 - San Francisco, California

Filed September 7, 2000

Before: Procter Hug, Jr., Chief Judge,

Dorothy W. Nelson, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge D.W. Nelson

COUNSEL

Fred M. Morelli, Jr., Aurora, Illinois, for the defendants-

appellants.

A2

Camiliie D Bibles, Assistant United States Attorney. Phoe-

nx, ariozna, for the plaintiff-appellee.

ORDER

The opinion filed on July 17, 2000 is hereby WITH-

DRAWN.

SO ORDERED.

OPINION

D.W. NELSON, Circuit Judge:

National Park Service rangers arrested Mark Albers

and eleven others (collectively “Albers” or “the defen-

cants”) for BASE jumping in the Glen Canyon National

Fecreation Area. The government charged the defendants

vith delivering and retrieving persons by parachute, in

violation of 36 C.F.R § 2.17(a)(3), and disorderly conduct,

in violation of 36 C.F.R. § 2.34(a)(4). Subsequent to a

tench trial, the district court found the defendants guilty

cf both counts. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The acronym in BASE jumping refers to the struc-

tares off of which enthusiasts of the extreme sport jump

vith the use of a chute: Buildings, Antennas (radio and

television towers), Spans (bridges), and Earth (cliffs).

EASE jumpers have leapt from the Empire State Building,

tie Eiffel Tower, Angel Falls in Venezuela (the highest

vaterfall in the world), the 98-foot Christ statue in Rio de

Te oe

A3

Janeiro, and the World Trade Center. While the United

States Parachute Association recommends that skydivers

open their parachutes at a minimum elevation of 2,000

feet, most BASE jumps are made from 1,000 feet or less.

See Ellen Lord, Parachutist’s Death Revives Debate Over

Daredevil Jumps, Cincinnati Post, Oct. 27, 1999, at 10A.

BASE jumping has one of the sporting world’s highest

fatality rates with over 45 jumpers having died in its 18-

year history. See Karl Taro Greenfield, Life on the Edge,

Time Mag., Sept. 6, 1999, available in 1999 WL 25725124.

On May 1, 1995, Park Service Ranger Chris Cessna

received word that a group of individuals were BASE

jumping at Lake Powell in the Navajo Canyon area of

Glen Canyon. BASE jumping is prohibited in Glen Can-

yon, as it is in all other national parks with the exception

of the New River Gorge National Park.' Upon reaching

the Navajo Canyon, Ranger Cessna saw a houseboat at

the base of the canyon wall; a 100-foot climbing rope was

anchored from the rim of a 400-foot cliffs section. The

ranger, seeing several of the defendants on the boat with

items associated with BASE jumping, such as knee pads

and Protec helmets, climbed on board to investigate.

While Ranger Cessna was inspecting the houseboat, other

defendants, also carrying BASE jumping gear,

1 BASE jumping from the 870-foot New River Gorge Bridge

began shortly after it opened in 1977 and several years prior to

the area being designated as a national park. The Park Service,

after taking possession of the river under the bridge, granted

permission for BASE jumpers to leap from the bridge on the

third Saturday of each October. See The National Parks: Thrilled to

Death, The Economist, Nov. 13, 1999, available in 1999 WL

29811476.

A4

approached in a motorboat. A second ranger, Phil Hibbs,

located additional BASE jumpers and their gear on the

shoreline of Lake Powell. No other boats were in the area.

The government charged the defendants with two

counts: (1) air delivery without a permit in violation of 36

C.F.R § 2.17(a)(3); and (2) disorderly conduct in violation

of 36 C.F.R. § 2.34(a)(4). The defendants, asserting that

BASE jumping is a type of powerless flight permitted

under 36 C.F.R. § 2.17(a)(1), moved to dismiss under

Fed.R.Crim.P. 12(b)(2);? the district court denied the

motion on October 10, 1996. The defendants also filed

motions to suppress evidence and their statements. The

district court determined that film and videotape found

on the houseboat should be suppressed and also granted

the motion to suppress the defendants’ statements. On

appeal, this court reversed the district court order sup-

pressing the evidence and remanded the matter for trial.

See United States v. Albers, 136 F.3d 670, 674 (9th Cir. 1998).

Finally, the defendants, arguing that the Park Service’s

jurisdiction to prohibit air delivery on Lake Powell is

preempted by the Federal Aviation Administration

(“FAA”), filed a second motion to dismiss. On August 11,

1998, the district court denied this motion.

The bench trial commenced on September 4, 1997, at

the end of which the district court found the defendants

guilty of both counts charged. The judge sentenced each

defendant to pay a fine of $500, $345.23 for the cost of the

2 Fed. R. Crim. P. 12(b) requires that “[dJefenses and

objections based on defects in the indictment or

information . . . “ be raised prior to trial.

AS

prosecution, and a $20 special assessment fee. The defen-

dants timely appealed.

DISCUSSION

I

The Park Service proscribes BASE jumping under its

regulations governing aircraft and air delivery. See 36

C.F.R. § 2.17. The relevant provision prohibits “[dJeliver-

ing or retrieving a person or object by parachute, helicop-

ter, or other airborne means, except in emergencies

involving public safety or serious property loss, or pur-

suant to the terms and conditions of a permit.” 36 C.F.R.

§ 2.17(a)(3). We give substantial deference to the Park

Service’s interpretation of this regulation, see Department

of Health and Human Servs. v. Chater, 163 F.3d 1129, 1133

(9th Cir. 1998), “unless an ‘alternative reading is com-

pelled by the regulation’s plain language or by other

indications of the Secretary’s intent at the time of the

regulation’s promulgation.’ ” Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (1994) (quoting Gardebring v.

Jenkins, 485 U.S. 415, 430 (1988)).

Most significantly, Albers argues that § 2.17(a)(3) is

ambiguous as the “ram-air aeroelastic wings” used by the

defendants are a type of aircraft and a preceding provi-

sion, § 2.17(a)(1), permits the “operating or using [of]

aircraft” on designated lands and waters. Whether a reg-

ulation is unconstitutionally vague is a question of law

subject to de novo review. See United States v. Erickson, 75

F.3d 470, 475 (9th Cir. 1996). In arguing that the defen-

dants’ chutes are aircraft, “a device that is used or

intended to be used for human flight in the air, including

A6

powerless flight,” 36 C.FR. § 1.4(a), and not parachutes,

Albers relies on the sophisticated technology of the

equipment: a “rectangular shaped ram-air aeroelastic

wing . . . made of cloth with cross-sewn shaped fabric

ribs designed with the aerodynamic characteristics of an

aircraft wing intended for maneuverable powerless flight

through the air. . . . ” Albers also emphasizes its ver-

satility:

[T)he rectangular shaped ram-air aeroelastic

wing used by Defendants can be fitted with a

gondola, powered with a fan and flown through

the air; or it can be fitted with a frame like a

hang glider or equipped with a harness; and is

maneuverable and can be steered around trees

and other objects; and can be used in downhill

runs to avoid pylons similar to downhill skiing

slalom.

Despite the equipment’s impressive characteristics, the

Tenth Circuit, the only other circuit to have addressed

this question, held that “[t]echnological improvements in

the shape, maneuverability, and control of modern para-

chutes, including those used here, do not make them

cease to be parachutes.” United States v. Oxx, 127 F.3d

1277, 1279 (10th Cir. 1997). We agree and we also think

that ordinary people would find that the chutes, although

technologically sophisticated, are still parachutes. See

Erickson, 75 F.3d at 475 (holding that a regulation is not

unconstitutionally vague if it is capable of a limited inter-

pretation such that ordinary people could understand

what conduct is prohibited and those enforcing it are

provided with clear standards).

"7 ™ CR

A7

Our determination here is supported by the defen-

dants’ own expert witness, Adam Filippino. In his testi-

mony, Filippino, a manufacturer of BASE jumping

equipment, described the defendants’ gear as “ram air

parachute[s]” and characterized both the ram-air and

round parachutes as “types of parachute.” He also identi-

fied two functional purposes of the BASE jumpers’ ram-

air parachutes: (1) “to slow [the jumper’s] rate of descent

to avoid dying at the bottom,” and (2) “to cover the

distance between where you open and where the boat is

waiting for you.” These purposes are consistent with the

term “parachute” as defined in the federal regulations: “a

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

body or object through the air.” 14 C.FR. § 1.1.

Given that the ram-air chutes used by the defendants

are parachutes, BASE jumping does not qualify as power-

less flight. Albers’ contention that the National Park Ser-

vice has defined powerless flight devices, a class of

aircraft, to include parachutes is at odds with the regula-

tory history of § 2.17(a)(3). In 1975, the Department of

Interior proposed a definition of powerless flight which

included “[t]he launching or landing of recreational

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

and other devices designed to carry persons or objects

through the air...” 40 Fed.Reg. 36,378 (1975) (emphasis

added). The final regulation, however, omitted reference

to parachutes. See 40 Fed.Reg. 57,695 (1975); see also 48

Fed.Reg. 30,258, 30,268 (1983). We defer to the agency’s

interpretation of this omission and read the final regula-

tion as excluding parachutes from the category of power-

less flight devices.

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Finally, Albers contends that the term “delivery” as

used in the prohibition under § 2.17(a)(3) against “[d]Jeliv-

ering or retrieving a person or object by parachute...” is

generally understood as the “giving, handing over or

transfer from one person to another.” In other words,

Albers, reasoning that delivery “is usually construed to

include more than one person,” maintains that the defen-

dants cannot be convicted under § 2.17(a)(3) for an activ-

ity which involves pushing oneself off structures. We

decline to define the term to exempt self-delivery and

choose instead to adopt the Tenth Circuit’s determination

that “moving oneself from one area to another, as defen-

dants did, constitutes delivery.” Oxx, 127 F.3d at 1279.

We acknowledge that the regulation of BASE jump-

ing under § 2.17(a)(3) is not the most organic fit. Because

of the deference owed to an agency’s interpretation of its

regulations, however, we conclude that BASE jumping is

prohibited under § 2.17(a)(3). The ram-air chutes used by

the defendants to BASE jump are a type of parachute and

do not therefore meet the regulatory definition of aircraft

as a form of powerless flight.

In accordance with their argument that ram-air para-

chutes qualify as aircraft, the defendants assert that the

FAA has authority over this matter as it has exclusive

jurisdiction over the airspace above, and surface of, Lake

Powell. The FAA Administrator has jurisdiction to

“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

eater tetas

A9

efficient use of airspace.” 49 U.S.C. § 40103(b)(1) (1996).

With respect to the landing of ram-air chutes in national

parks, however, the FAA does not have exclusive jurisdic-

tion and nothing precludes the Department of Interior

from, as here, promulgating regulations to prohibit such

landings. See 16 U.S.C. § 3 (1992); 36 C.R.R. § 7.70(a)(6).

Il

The district court, determining that the defendants

recklessly created a risk of harm to themselves and to

members of the public, convicted them of disorderly con-

duct under 36 C.FR. § 2.34(a)(4):

A person commits disorderly conduct when,

with intent to cause public alarm, nuisance,

jeopardy or violence, or knowingly or recklessly

creating a risk thereof, such person . . . [c]reates

or maintains a hazardous or physically offensive

condition.

On appeal, Albers argues the defendants cannot be con-

victed of disorderly conduct as no member of the public

was alarmed, disturbed, or offended by their BASE jump-

ing activities. We review the district court’s interpretation

of § 2.34(a)(4) de novo. See United States v. Hoff, 22 F.3d

222, 223 (9th Cir.1994). When considering the sufficiency

of evidence to support a conviction, we review the record

in the light most favorable to the government to deter-

mine whether a rational trier of fact could have found the

elements of the crime beyond a reasonable doubt. See id.

at 224.

A conviction under § 2.34(a)(4) is uncommon; only

one federal court has addressed its contours. See United

Al0

States v. Carroll, 813 F. Supp. 698, 704-05 (E.D. Mo. 1993).

We therefore find it useful to first define the germane

terms contained in the regulatory provision. The govern-

ment claims that the defendants recklessly engaged in

BASE jumping so we begin by construing the meaning of

the term “recklessly.” Because the statute does not define

“recklessly,” we must derive the meaning of the term

from other sources. See United States v. Karlic, 997 F.2d

564, 569 (9th Cir. 1993). In Karlic, we consulted the Model

Penal Code to divine the meaning of “knowingly” and

“recklessly” under the Sentencing Guidelines, which do

not define either term. See id. Accordingly, we find it

useful here to refer to the Model Penal Code’s definition

of “recklessly” by way of analogy:

A person acts recklessly with respect to a mate-

rial element of an offense when he consciously

disregards a substantial and unjustifiable risk

that the material element exists or will result

from his conduct. The risk must be of such a

nature and degree that, considering the nature

and purpose of the actor’s conduct and the cir-

cumstances known to him, its disregard

involves a gross deviation from the standard of

conduct that a law-abiding person would

observe in the actor’s situation.

Model Penal Code § 2.02(2)(c) (1985). The Supreme Court

has, moreover, explained that the criminal law generally

permits a finding of recklessness only when persons dis-

regard a risk of harm of which they are aware. See Farmer

v. Brennan, 511 US. 825, 836-37 (1994). We thus conclude

that the relevant inquiry in finding recklessness here is

LE ee re nr ere ee we

All

whether the defendants deliberately disregarded a sub-

stantial and unjustifiable risk of creating a hazardous or

physically offensive condition of which they were aware.

We must next give meaning to the term “public,”

which is not defined in § 2.34(a)(4). We again find it

useful to consult the Model Penal Code, which defines

“public” as “affecting or likely to affect persons in a

place to which the public or a substantial group has

access. ... ” Model Penal Code § 250.2(1) (1962). BASE

jumping in a national recreation area certainly satisfies

the latter portion of the definition for, as Justice Roberts

has noted, “parks . . . have immemorially been held in

trust for the use of the public... ” Hague v. Committee for

Indus. Org., 307 U.S. 496, 515 (1939) (Roberts, J., concur-

ring). The more difficult question is whether the defen-

dants’ BASE jumping activities affected or were likely to

affect others.

The safety threat implicated in BASE jumping is most

often the potential harm to the jumper due to the fatal-

ities and injuries characterizing the extreme sport. We do

not, however, discount the safety risks of BASE jumping

posed to members of the public, particularly in areas

where people are likely to congregate. See Carroll, 813

F.Supp. at 704 (finding that BASE jumping from the St.

Louis Arch, which is located in the eastern part of down-

town St. Louis, was hazardous to those on the ground).

The appellants respond by arguing that they were jump-

ing in a remote part of Glen Canyon. The evidence shows,

though, that there were occasionally other boats in the

area. The risk of harm to those on the boats is real as one

of the defendants here collided into the BASE jumpers’

houseboat. Visitors to the national park, moreover, have

Al2

no reason to be on guard for BASE jumpers as they might

for those taking part in activities which are permitted

such as rock climbing or hang gliding. We therefore

affirm the district court’s determination that BASE jump-

ing can create a risk of harm to the public and defer to the

courts’ evidentiary findings. See Hoff, 22 F.3d at 224.

With this opinion, the appellants’ Petition For

Rehearing is otherwise denied.

AFFIRMED.

Al3

Title 14 Code of Federal Regulations, section 1.1(a)

Parachute means a device used or intended to be

used to retard the fall of a body or object

through the air.

Title 36 Code of Federal Regulations, Section 2.17(a)(1)

and (3)

(a) The following are prohibited:

(1) Operating or using aircraft on lands or

waters other than at designated take-off or

landing areas, except pursuant to the terms

and conditions of a permit.

(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 subparagraph, “deliv-

ery” means the act of conveying or releas-

ing persons or property.

Title 36 Code of Federal Regulations, Section 2.34(a)(4)

(a) A person commits disorderly conduct

when, with intent to cause public alarm,

nuisance, jeopardy or violence, or know-

ingly or recklessly creating a risk thereof,

Al4

such person commits any of the following

prohibited acts:

(4) Creates or maintains a hazardous or physi-

cally offensive condition.

Title 36 Code of Federal Regulations, Section 7.70(a)(6)

7.70 Glen Canyon National Recreation Area

(a) Designated airstrip.

(6) The entire surface of Lake Powell subject to

the restrictions contained in Section 2.17 of

this chapter.

A15

UNITED STATES DEPARTMENT OF THE INTERIOR

National Park Service

Special Use Permit

Name of Use Site Use/BASE Jumping/Landing

Date Permit Reviewed 2000, 27/Jun

Reviewed 19

Reviewed 19

Expires 2000 21/Oct

Long Term XX

Short Term

Permit #

BASE NERI 2170 00-35

Event Park Type No #

New River Gorge NR - Fayette Station

Name of Area

Avery Badenhop P.O. Box 2507

Bridge Day Association Petaluma, CA 94953-2507

Name or Permittee Address

707-773-3950

Phone

is hereby authorized during the period from (Time 9:00

AM day 21 Month Oct 2000), through (Time 3:00 PM day

21 Month Oct 2000), to use the following described land

or facilities in the above named area:

Fayette Station

For the purpose(s) of: Fayette Station to be used for

intentional parachute landings following BASE jumps

from the New River Gorge Bridge on Saturday, October

21, 2000. Set-up to begin at 8:30 AM on October 21, 2000;

event (jumping) to start at 9:00 AM and end at 3:00 PM.

Al6

Clean-up/take-down to be completed by 3:30 PM.

Approximately 400 participants.

PLEASE NOTE THE ATTACHED SPECIAL CONDI-

TIONS ARE A PART OF THIS PERMIT.

Aathorizing legislation or other authority (RE-NPS-53

A>pendix 1): 16 U.S.C. § la-1 P.L.95-625 sec. 507(b)

NEPA Compliance: CATEGORICALLY EXCLUDED XX

EA/FONSI EIS OTHER APPROVED

PLANS PERFORMANCE BOND: Required Not

Required XX Amount $00.00

LIABILITY INSURANCE: Required _ Not Required XX

Anount $0.00, with National Park Service named as addi-

tional insured. The Permittee hereby agrees to save and

held harmless the United States of America, its agents

ard employees, from any and all claims, damages, suits

atlaw or equity of whatever kind of nature for damages

to or loss of property or injury or death to persons

reulting directly or indirectly from or attributable to the

Permittee for its employees in connection with the activ-

ites authorized by this permit.

ISUANCE of this permit is subject to the conditions on

the reverse hereof and appended pages and when appro-

piiate to the payment to the U.S. Dept. of the Interior,

National Park Service of the sum of $150.00 (paid) with

ar Administrative Cost Recovery Fee of $350.00. (paid)

Al7

The undersigned hereby accepts this permit subject to the

terms, covenants, obligations, and reservations,

expressed or implied herein.

PERMITTEE /s/ [Illegible] 7-10-00

Signature Date

Authorizing Official

/s/ {Iegible] 7/14/00

Signature Date

CONDITIONS OF THIS PERMIT

1. The permittee shall exercise this privilege subject to

the supervision of the Superintendent, and shall

comply with all applicable laws and regulations of

the area.

2. Damages - The permittee shall pay the United States

for any damage resulting from this use which would

not reasonably be inherent in the use which the

permittee is authorized to make of the land

described in this permit.

3. Benefit - Neither Members of, nor Delegates to Con-

gress, or Resident Commissioners shall be admitted

to any share or part of this permit or derive, either

directly or indirectly, any pecuniary benefits to arise

therefrom: Provided, however, that nothing herein

contained shall be construed to extend to any incor-

porated company, if the permit be for the benefit of

such corporation.

4. Assignment - This permit may not be transferred or

assigned without the consent of the Superintendent,

in writing.

A18

Revocation — This permit may be terminated upon

breach of any of the conditions herein or at the

discretion of the Superintendent.

The permittee is prohibited from giving false infor-

mation; to do so will be considered a breach of

conditions and be grounds for revocation [Re: 36

CFR 2.32(4)].

Permittee will comply with applicable public health

and sanitation standards and codes.

The following provisions constitute Condition 4 in

accordance with Executive Order No. 11246 of Sep-

tember 24, 1965, as amended by Executive Order

11375 of October 13, 1967.

NONDISCRIMINATION. If use of the resource cov-

ered by their permit will involve the employment by

the Permittee of a person or persons, the Permittee

agrees as follows.

(a) The Permittee will not discriminate against any

employee or applicant for employment because of

race, color, religion, sex, age, national origin, or dis-

abling condition. The permittee will take affirmative

action to ensure that applicants are employed, and

that employees are treated during employment with-

out regard to their race, color, religion, sex, age, or

national origin. Such action shall include, but not be

limited to, the following: employment, upgrading,

demotion or transfer, recruitment or recruitment

advertising; layoff or termination; rates of pay or

other forms of compensation; and selection for train-

ing, including apprenticeship. The Permittee agrees

to post in conspicuous places, available to

employees and applicants for employment, notices

to be provided by the Superintendent setting forth

the provisions of this nondiscrimination clause.

A19

(b) The Permittee will, in all solicitations or adver-

tisements for employees placed by or on behalf of

the Permittee, state that all qualified applicants will

have consideration for employment without regard

to race, color, religion, sex, age, or national origin.

(c) The Permittee will send to each labor union or

representative of workers with which he has a col-

lective bargaining agreement or other contract or

understanding, a notice, to be provided by the

Superintendent, advising the labor union or

workers’ representative of the Permittee’s commit-

ments under Section 202 of Executive Order 11246 of

September 24, 1965, as amended, and shall post

copies of the notice in conspicuous places available

to employees and applicants for employment.

(d) The Permittee will comply with all provisions

of Executive Order No. 11246 of September 24, 1965,

as amended, and of the rules, regulations, and rele-

vant orders of the Secretary of Labor.

(e) The Permittee will furnish all information and

reports required by Executive Order No. 11246 of

September 24, 1965, as amended, and by the rules,

regulations, and relevant orders of the Secretary of

Labor, or pursuant thereto, and will permit access to

his books, records, and accounts by the Superinten-

dent and the Secretary of Labor for purposes of

investigation to ascertain compliance with such

rules, regulations and orders.

(f) In the event of the Permittee’s noncompliance

with the nondiscrimination clauses of this permit or

with any of such rules, regulations, or orders, this

permit may be cancelled, terminated, or suspended

in whole or in part and the Permittee may be

declared ineligible for further Government contracts

or permits in accordance with procedures authorized

in Executive Order No. 11246 of September 24, 1965,

A20

as amended, and such other sanctions may be

imposed and remedies invoked as providing in

Executive Order No. 11246 of September 24, 1965, as

amended, or by rule, regulation, or order of the

Secretary of Labor, or as otherwise provided by law.

(g) The Permittee -will include the provisions of

Paragraphs (1) through (7) in every subcontract or

purchase order unless exempted by rules, regula-

tions, or order of the Secretary of Labor issued pur-

suant to Section 204 of Executive Order No. 11246 of

September 24, 1965, as amended, so that such provi-

sions will be binding upon each subcontract or pur-

chase order as the Superintendent may direct as a

means of enforcing such provisions, including sanc-

tions for noncompliances; Provided, however, that in

the event the Permittee becomes involved in, or is

threatened with, litigation with a subcontractor or

vendor as a result of such direction of the Superin-

tendent, the Permittee may request the United States

to enter into such litigation to protect the interests of

the United States.

The permittee agrees to save and hold harmless the

United States of America, its agents and employees,

from any and all claims, damages, suits at law or

equity of whatever kind of nature for damages to or

loss of property or injury or death to persons result-

ing directly or indirectly from or attributable to the

permittee or its employees in connection with the

activities authorized by this permit.

In addition the Permittee agrees to carry a general

liability insurance policy in the amount of $0.00 in

which the National Park Service is named addi-

tionally insured in that policy only in relation to

activities on NPS lands. A certificate of that insur-

ance must accompany the Special Use Permit when

submitted for approval by the Superintendent.

10.

A21

—

The permittee will comply with all Federal, State

and County laws, regulations and ordinances within

the New River Gorge National River.

11. The permittee must designate an on-site liaison per-

son(s) with the National Park Service (PLEASE

LIST).

Phone

Name Position/Title _ Number

1. Avery Badenhop Event (707) 773-3950

Coordinator

2. Dennis McGlynn Exit Area (530) 584-4747

Manager

3. Henry Parker _ Exit Area (561) 778-2657

Manager

12. The permittee acknowledges that this permit grants

non-exclusive use of the site. Permittee shall ensure

that the rights and privileges of other park visitors

are recognized.

The permittee recognizes that this is a revocable

permit and may be revoked at the discretion of the

Superintendent or his designee upon 24 hour notice,

or without notice if damage to resources or facilities

is threatened, if public health and safety is jeopar-

dized or the permitted activities would constitute an

unacceptable conflict among visitor use activities,

notwithstanding any other term or condition of the

permit to the contrary.

Permittee will remit to NPS $150.00 application fee

(paid) with an Administrative Cost Recovery Fee of

$350.00 for recovery of costs incurred by NPS in

conjunction with this event. If any additional costs

are incurred during the course of this event, the

13.

A22

permittee will be billed for the balance at the conclu-

sion of the event.

Request to cancel or reschedule the permitted event

must be in writing, at least two weeks in advance of

the scheduled event day. In case of cancellation, only

site use fees will be refunded. Administrative fees

are non-refundable.

The permittee, upon terminating the event specified

in the Special Use Permit, will leave the area/site in

the same condition as it was prior to use.

SPECIAL CONDITIONS

PERMIT BASE-NERI-2170-00-35

BRIDGE DAY ASSOCIATION (BDA)

AIR DELIVERY OF PERSONS BY PARACHUTE

LANDING ON NPS PROPERTY (FAYETTE STATION)

The Special Use Permit, BASE-NERI-2170-00-35, is subject

to the following terms and conditions:

1.

All jumpers jumping in the timeframe of the permit

must register with Bridge Day Association (BDA). The

BDA will compile and keep a bona fide/accurate list of

individuals registered to jump. This list will include the

individual’s name, address and date of birth. This list will

be made available to the National Park Service at their

request.

ys

The BDA will assist in verifying that Item #1 is

accurate. An honest attempt will be made by the

BDA to assure that false names and information are

not included on the participant list. The BDA will

not knowingly and/or willingly allow individuals to

register for the jump using false or inaccurate names

or required registration information. Any infractions

may result in the termination of this permit.

A23

BDA will notify all individuals registering to jump

that they will be required to have on their person a

photo ID, in addition to the BDA-provided jumper

registration arm band, at all times during the event.

All jumpers must jump from the new River Gorge

Bridge pre-designated launch point and at the direc-

tion of BDA officials. Jumps from areas other than

the New River Gorge Bridge pre-designated launch

point are not authorized.

All jumpers must participate under BDA guidelines

and all provisions of this permit. Any infractions by

one individual may result in that particular individ-

ual being denied to participant [sic] in the event

under this permit. Any infractions by one individual

may also result in the termination of this permit.

All jumpers must deploy or attempt to deploy a

parachute for landing. Tandem jumps utilizing only

one parachute are prohibited.

All injuries requiring medical attention associated

with this Special Use Permit will be reported to the

Chief Ranger’s Office, New River Gorge National

River, within 10 working days of the close of this

event. At a minimum, the name and address of the

injured person and the type of injury will be

reported.

BDA will provide their own watercraft for rescue

purposes through a contract with a reputable, local

whitewater rafting company (I.e. Wildwater Expedi-

tions Unlimited or other comparable rafting com-

pany, selected with NPS prior approval). Whitewater

rafting company selected will work under the super-

vision of the National park Service Incident Com-

mand System.

No multiple jumps from the bridge will be allowed

unless coordinated in advance with the National

10.

11.

/s/

A24

a

Park Service and the selected whitewater rafting

company water personnel.

a.

BDA jumping officials (jumpmaster) will estab-

lish and maintain direct communications with

and between the selected whitewater rafting

company water personnel.

No more than one jumper in the air per available

rescue boat unless approved in advance by the

selected whitewater rafting company water per-

sonnel.

Jumping will be suspended any time National |

Park Service personnel or the selected whitewa-

ter rafting company water personnel request.

The jumpmaster will automatically suspend

jumping any and every time that at least one

empty rescue boat is not available.

A maximum of two (2) jumpers will be in the water

at one time. Anytime two or more jumpers are in the

water at one time, jumping will be temporarily

stopped until given the go ahead from rescuers at

river level.

If permittee and participants adhere to all provisions

and conditions of this permit, the National Park

Service will consider issuing a Special Use Permit to

the permittee for Bridge Day 2001.

Henry Law /s/ Avery Badenhop

Henry Law Avery Badenhop

Assistant Superintendent Event Coordinator

New River Gorge Bridge Day

National River Association