Yesterday, I attended the 10th Circuit Court of Appeals and witnessed the United States Government vs. Dennis McGlynn.
If you ever have a chance to witness a case such as this, please do it. The BASE community needs your support!
The following are my observations...
Even though I knew what to expect, it took on a new meaning when I walked into the "gothic-like" building that housed the courthouse. The courthouse itself was an auditorium with marble-sculptured walls. At the helm of the room sat three judges with a giant engraved phrase rising above them -- "REASON IS THE SOUL OF LAW". I hoped this would apply today...
On hand was Fred Morelli, Dennis McGlynn, Avery Badenhop, The Pick, Jay Smith, and myself. While we waited for the case to be called, we heard other cases on cross-burnings and racial hate crimes -- it felt weird that BASE was about to be presented in this environment.
Finally, it was Fred and Dennis's turn. Each side gets 15 minutes to present their case to a panel of three judges. As each side presents their argument, the panel of judges will stop them and ask questions in order to clarify their understanding of the argument.
I was worried in the first 5 minutes of Fred Morelli's argument because it seemed as if the judges weren't taking this case seriously. But then things started to change for the better.
Here's the technical scoop:
The NPS claims that BASE jumping at Lake Powell violates Title 36 CFR Section 2.17(a)(3) -- Illegal Air Delivery.
If this was Yosemite Valley, it would currently apply in a court of law. But at Lake Powell, Title 36 CFR 7.70(a)(6) designates the entire surface of Lake Powell as a designated landing area.
Title 36 CFR 1.4(a) (July 95 Ed.) defines aircraft as including powerless flight.
Furthermore, Title 36 CFR 2.17(a)(1) permits powerless flight to land on the surface of Lake Powell *without* a permit.
So several arguments can be derived from the above information:
1) Ram-air canopies are aeroelastic wings that exhibit the characteristics of powerless flight. Therefore, by the Park Service's own regulations, ram-air canopies are permitted to land on the surface of Lake Powell.
2) The Park Service claims that BASE-jumping still falls under illegal air-delivery. Even if it did, they have a conflicting regulation (see above) that permits powerless flight to land on the surface. Laws must be presented to the public in a way that a person of average intelligence can decipher them. Even the panel of judges were confused by these conflicting regulations...
So Fred's argument continued...we fall under powerless flight and it is permitted on the surface of Lake Powell.
After Fred's 15 minutes were up (not nearly enought time), it was the government's turn.
As the NPS/government attorney presented his case, one of the judges began drilling him with questions such as:
Are hang-gliders allowed to leave the tops of cliffs and land on the water?
The answer was yes.
Are they required to have a permit to do so?
The answer was no.
If a hang-glider pilot went to the edge of a cliff and jumped off with his hang-glider, would he violate any law.
The answer was no.
If a ram-air canopy leaped from the cliffs and theoritically swooped down and skimmed the water and then gained lift and landed out of park territory would he violate any law?
The government wasn't sure, but said probably not.
The judge then wanted to know what was the difference between a BASE jumper jumping from a cliff and landing in the water vs. a hang glider doing the same thing.
The NPS/government could not not answer and kept stepping on it's own feet by saying things like, "But it violates Title 36 CFR 2.17(a)(3) Illegal Air Delivery."
The government's time ran out and this was pretty much it.
If any person of reasonable intelligience looks at the facts of this case, it is overwhelmingly in our favor!
But one disturbing fact remains: judges sometimes do not look at all of the facts in a particular case and will make a swift judgement based on how they feel about the case.
Time will tell...
Fred Morelli said that judgement on this case could take anywhere from 3 months to 18 months. He also feels optimistic about a 2-1 ruling in our favor. If so, this will be the biggest legal victory ever for the sport of BASE jumping.
I'd like to add one thing: some people think that this case is only about Dennis McGlynn. Yes, the actual case is about Dennis McGlynn, but the outcome of this case, and its arguments, directly effects the future of BASE jumping at Lake Powell. It could also set the precedent and open up the door for our battle for access within the rest of the National Park System.
Think about it.
If you want to support the battle, do anything and everything you can.
I challenge you to write letters, donate to the CJAA Access Fund, or heck, just show up in court to support the cause.
C-ya!
Bryan
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