Basejumper.com - archive

http://www.nps.gov/...te-national-park.htm

I wonder if they're going to stick the drone operators with federal charges, a night or two in jail and confiscation?

Doubtful.

The NPS doesn't have authority under 36 CFR 2.17(a)(3) to regulate drone use. The subject statute expressly prohibits "delivering or retrieving a person or object"; drones do neither. Considering that courts' application of the aerial delivery statute to BASE is already spurious, an alleged violation on the basis of drone use would likely be summarily dismissed upon challenge.

That said, as an administrative agency the NPS could (and likely will) promulgate separate regulations expressly prohibiting drone use in national parks & monuments (on the grounds they claim).

If you know anyone who is charged with violating the aerial delivery statute for flying a drone, let me know, I'll take that fight. Likewise, if you are charged with aerial delivery as a jumper, also let me know - if you have the balls to roll the dice, I have the time, litigation experience, and legal resources to fight the NPS (and no, not for profit).

Working with the NPS is one avenue toward permitting jumping in national parks; mounting a collateral legal attack on the misapplication of an archaic backcountry poaching/squatting statute is another. Legal precedent isn't in our favor; I'd like to change that.

It's not like base jumping is delivering or retrieving a person either.

I think if they had a similar chip on their shoulder they could just as easily say that you are delivering a camera to a shooting location in the park via helicopter.

I know nothing about law, but is there a "mom, why aren't they being punished" defense?

fight the power!

http://www.nps.gov/zion/parkmgmt/lawsandpolicies.htm

he UAS guys are getting smashed everywhere

I agree that the statutory language has been stretched to absurdity and the legislative intent massacred. That said, the feds will argue that drones deliver themselves, much like jumpers deliver themselves. But I wonder whether a jumper could argue that they were forced to "deliver" themselves via parachute because falling towards earth certainly constitutes an emergency involving public safety. Does it matter that the "emergency" would be created by the jumper? Would it matter if a pilot "created" an emergency that forced an unplanned landing? I don't think so, and I think a creative attorney could argue the same on behalf of a jumper. Like any other test case, the facts and the jumper would need to be ideal or you'd risk establishing bad precedent.

I can push you off and "create" the emergency ;)

That's actually not an awful idea as a defense to air delivery for me, but then you'd get charged with attempted murder. And that's a bummer.

But what if God, i.e. a sudden gust of wind, pushed the jumper? What if said jumper walked to the edge of the giant rock admittedly to jump, but instead decided to walk down, rescue animals, pick up litter, and counsel troubled youth? At the moment of turning around, a sudden burst of wind inflates the jumper's WS and creates an emergency circumstance beyond the jumper's control.

This might seem like a silly defense, but prosecuting jumpers under this statute to begin with is inviting silly defenses.

I'll plead insanity.

But seriously. I started this thread mostly because I was curious whether or not it is possible to use the same statute to produce vastly different punishments. Is there a legal basis for throwing the book at BASE jumpers but only kindly asking drone operators to leave?

If they are using the same statute, shouldn't it be the same punishment - at the very least shouldn't they negotiate within a certain range of similar punishments?

I know that the world isn't fair, but don't they have to either punish the drone people as much as the BASE jumping people or punish the BASE jumping people as little as the drone people?

I've never litigated this statute, so I can only speak in the abstract. But to answer your question theoretically, it's entirely possible for prosecutors to use the same statute to punish alleged offenders to dramatically different degrees. Laws usually have corresponding sentencing guidelines with ranges that vary depending on various aggravating or mitigating factors.

I wouldn't focus on the punishment. If I were inclined to use a drone for filming or whatever and got busted, I'd focus on the word "aircraft."

http://www.forbes.com/sites/gregorymcneal/2014/05/03/yosemite-looks-to-ban-drones-but-the-law-is-not-on-their-side/

Believe it or not WHIT, this 'emergency exception' was actually already posed as an ancillary last-ditch oral argument in U.S. v. Oxx, 127 F.3d 1277 (10th Cir. 1997). In rejecting the argument, the judge who wrote the ruling dropped a pun saying that "this argument would not fly".


I'm curious too. As you're probably already aware, when application of a statute has disparate effects on different groups, it can be held to be unconstitutional under the Equal Protection clause. That is one of the arguments I'd like to make.


Calling ram-air canopies "aircraft" instead of parachutes was also unsuccessfully used as a defense in Ox. Although the trial court actually agreed (United States v. Oxx, 980 F. Supp. 405 (D. Utah 1996), the 10th circuit reversed, saying that "a parachute by any other name is still a parachute."

As I've said before, courts generally give wide deference to administrative agencies in the promulgation and application of regulations within the agencies purview. That's why we've seen the 9th and 10th circuits stretching judicial logic to fit the interpretation the NPS wants them to.

If anybody is curious, there's a good summary of American case law as it pertains to BASE here.

Playing devil's advocate here, but doesn't equal protection apply to categories of person such as ethnicity and gender, and not their preferred hobby?

I've always wondered, what would happen if you went to free solo el cap with a base rig on, which is totally legal, but fell off. Would the NPS prefer you just explode on the talus? Would it be illegal to use your parachute to save your life? Lets say you had video evidence to present of you actually falling to prove its not just an "oops i fell" defense.

Legally, if you could prove that it was a genuine emergency, you'd probably win.

You'd have to litigate to know the answer for sure, though.

Whit and Surfers are both lawyers in real life, so they are more likely to have good answers on legal issues than most of the folks posting here.

Free soloing is allowed...I wonder if you could literally do this on the last pitch (rap down to a good place to freesolo and fall) and it be a legal exit? I'm sure the gear would be confiscated and there'd be litigation involved, but I'd take donation gear and take one for the team . In all seriousness, dean potter would be the best person to do it...and if they can loophole us with the aerial delivery, isn't it only fair? Of course, we could just fuck over the free soloers by getting it banned too...

I'd do it once on video with a raven in a velcro rig to prove a point.

Hey Tom, as I recall, you also went to law school. Anyway, this is interesting and as we all know, whatever interpretation an administrative agency decides to place on their own regulation is given, "great deference" by the courts. That said, the NPS used to use "Powerless Flight" under 36 CFR 236 a (If I remember.). before they went to aerial delivery. Powerless flight said it's illegal without a permit to engage in powerless flight such as "hang gliders, body kites and other devices designed to fly through the air in powerless flight". Phil Smith and I got charged after our 1983 train jump into the Pecos river off the S. Pacific train top using 16' diameter rounds with pull down centers. The NPS controlled the area as part of a federal reservoir. I wrote a Motion to Dismiss on an old rule of statutory construction, (ejusdom generis) that says 1. if a statute has specific words in it and then contains a mother hubbard catch all phrase like, "other devices" that it must be narrowly construed. Second cause, I emphasized that the vagueness doctrine required criminal statutes to be quite specific. Anyway, the US Magistrate in San Antonio dismissed the case against us. There has already been bad precedent on aerial delivery. I think those cases are wrong given the history of why the aerial delivery reg was put into the Yosemite CFR's, but it's their system and real legal challenges take time and money. My question is why do we care about drones in Yosemite. Hell, give the Rangers someone else to chase.

Thanks for chiming in, Rick. Yes; Tom went to law school, but I think he spent more time thinking about their medical program.

In short, the current statute as written, interpreted, and enforced sucks balls. The statutory language is vague and broad. And Surfers is right, great deference is given to the assholes who enforce it and draft the regulations around it.

With due respect to attorney Morelli, he only argued "the emergency exception" in Oxx as Surfers noted- as an ancillary, last-ditch effort in oral argument on appeal. I don't give too much weight to the Court's subsequent dismissal of his "emergency" argument via the use of a pun in dicta. And although it's negative precedent, I don't think it has much controlling value. Morelli's fact pattern was tough, and he was forced to argue that a parachute is not a parachute. He did well, but that's a tough one.

I don't like the Equal Protection clause arguments either. This country stopped paying attention to its Constitution at least 50 years ago.

Free-soloing or getting blown off ,e.g., and the genuine emergency created is the only statutory legal attack that I think is really interesting. I think clumsy jumpers, cough wink, cautious sight-seers, and faltering free-solo climbers might be able to fall and parachute with immunity....but I'd use the Raven just in case.

A serious legal challenge to this statute is probably waged by lobbyists (money), not lawyers.

+1.

It's somewhat amusing (and unsurprising) that most lobbyists either are or were formerly practicing lawyers.

http://www.forbes.com/...s-not-on-their-side/

enjoyed this article. made me laugh and wonder why they are reaching so hard by using the old aerial delivery CFR. if it's a true issue, amend the CFR.

are government controlled drones subject to this ban?