Any word on how things went yesterday?
Any word on how things went yesterday?
United States of America
v.
Avery Badenhop
The Government had charged me with Aiding and Abetting an Illegal Aerial Delivery, additionally, I was charged with Conspiracy, apparently for my involvement with planning the protest.
Initially, Dan Horner, an NPS criminal investigator contacted me by e-mail back in August of this year.
The premise of the e-mail was about a rumor that there was going to be a mass protest jump in Yosemite,
following the death of Frank Gambalie III at the hands of of the NPS in June. At that time I had no involvement whatsoever with any plan to protest in Yosemite. NPS officials were aware of my standing in the BASE community, and sought me out as a go between the jumpers and the government. I did agree to take on the task. At that point, in privacy, I contacted various factions of BASE jumpers, to get the scoup on the mass jump. I was able to quell that situation, in exchange for a more structured one. I did inform the NPS that a protest, including jumps from El Capitan would take place on October 22, 1999. They did participate in the planning, and coordination of that protest. This was a protest of NPS policy, a policy of refusing to give permits to us, so we may jump from the cliffs in the National Parks.
On the day of the protest, NPS officials did indeed set up a landing area for us in El Cap Meadow,
And even went as far as placing an autographed ranger hat on the center of a target. In our negotiations, the NPS seemed sure that we would not be able to control our landings as well as we said. I am a National Champion in BASE Accuracy, and assured them I could nail the bulls-eye. I was to be the last jumper off El Cap that day, but my opportunity did not materialize. The first three jumps went without any glitches, all three jumpers, Henry Boger, Joe Weber, and Mick Knutson all landed in the designated landing area. The fourth jumper, Jan Davis then jumped, but failed to deploy her parachute. She died as a result. We did not ever contend that BASE is a safe sport, we contend that it is dangerous, but we have a right to participate in the sport nevertheless. I did not jump, I walked back off the mountain. My parachute was confiscated. The three men who jumped were charged with Illegal Aerial Delivery, and Conspiracy.
Their gear was confiscated, they were cited and released, as per agreement previously by the NPS.
Our group of four jumpers agreed amongst ourselves, that we would represent ourselves in the matter, and I engaged Beth Stockdale, acting Prosecutor in Yosemite, in the proceedings. (Beth is the acting prosecutor, as her predecessor, Scott Connelly, was removed from that position due to his conviction on charges of child molestation.) Although at times we agreed to disagree, the entire matter was handled amicably by both sides. I did file a Motion to Dismiss, based on the following:
MOTION TO DISMISS
NOW COMES the Defendant, Avery Badenhop, without councel and representing himself, and respectfully move this Court for an order dismissing this cause of action. In support of this Motion he states as follows:
1. He is the Defendant in this cause of action.
2. This cause of action arises out of the enforcement of section 2.17, which is called Unauthorized Air Delivery.
3. He has repeatedly applied for permits under that section and been denied, and has offered to abide by any reasonable rules, regulations or conditions which the Park Service may impose upon him.
4. The denial of his request for a permit is part of a blanket refusal to grant any permits for BASE or cliff jumping within Park Service lands, except for one six-hour permit issued annually for bridge jumping at the New River Gorge Bridge in Fayetteville, West Virginia.
5. Such policy on the part of the National Park Service is arbitrary, capricious, without basis, without any opportunity for public hearings or input of public opinion, and runs counter to the purpose for the national parks.
(Incidentally, I am the current permit holder for Bridge Day, in West Virginia.)
As part of a plea agreement, I withdrew the Motion to Dismiss. As part of the plea agreement, the charges of conspiracy were dismissed. The three men who did jump must forfeit their jumping gear to the government, my un-jumped gear was returned to me, also part of the plea agreement. The four of us plead Nolo Contendre, that is, we did not contest the charges. We have been fined $2010.00 each, and also been forced to pay the cost of recovering the body of our fallen protester, Jan Davis. The cost is $1538.83 for each of us, a fact that was explained to the court by the prosecutor.
I must comment on the Magistrate Judge Hollis Best, who presided over the case. He was hardly bright eyed and bushy tailed as I was in court. He was complacent, and confused. He repeatedly got names, dates and facts incorrect. If we had gone to trial, we could have tongue tied him in a minute.
At the end of the proceedings, I, and the other convicted jumpers were permitted to make a statement, and this is mine:
Statement of Elocution.
1) I, and many of my BASE jumping colleagues were disturbed and appalled that Frank Gambalie III lost his life due to the policies and actions of Park personnel. I am very sorry for the loss.
2) Park Security personnel sought me out, and engaged me directly regarding the organization of a protest of National Park Policy.
3) I sought to restrict the protest to only those completely qualified and experienced in BASE jumping. Unfortunately, Jan Davis lost her life, and I am very sorry for the loss.
4) I attempted in good faith to make the protest peaceful and safe.
5) I did not deploy my parachute during the protest, and still it was confiscated.
6) I am no more guilty of Aiding and Abetting than the Park's Security personnel, or than was the Reverend Vivian who negotiated with various Police personnel during the Southern Christian Leadership Conference protests in the early 60's.
7) I am very sorry for the Park Administrator's position on this matter, all I want is LEGAL access to this Park to pursue my freedom, and my sport.
(End of statement.)
As a BASE jumper, all I take is pictures, and all I leave is footprints. However, if I had sprayed the Yosemite forest with bullets, I would have received a lesser sentence, as the following case will make evident. This case had the same prosecutor, and the same magistrate judge:
99-703 - Yosemite NP (CA) - Poaching
On September 18th, a ranger in the Mather District heard shots coming
from inside the park near the boundary and contacted Nai Saefong and
two juveniles shortly thereafter. The three were armed with a hunting
rifle, shotguns and handguns, and were in possession of dead
squirrels. On November 23rd, Saefong appeared in magistrate's court in
the park and pled guilty to hunting, possession of dead animals (16
USC 60 and 62), and possession of weapons (36 CFR 2.4). Saefong was
fined $500 and placed on a year's probation. The weapons were
forfeited to the government for destruction. Also forfeited were
Saefong's California hunting license, ammunition, and other associated
hunting items. Under federal juvenile delinquency provisions, the two
juveniles will be referred to the county for prosecution. [Beth
Stockdale, Acting Prosecutor, YOSE, 11/24]
And if I had been digging up the ground and stealing from the entire nation its artifacts and history, I would have received a lesser sentence, as this case from Virginia makes evident:
99-716 - Prince William Forest Park (VA) - ARPA Conviction
On November 26th, ranger George Liffert checked out a suspicious
vehicle parked on a state road adjacent to the park and saw Larry Hurt
of Manassas actively operating a metal detector within the park. Hurt
had a mini-ball which he'd excavated in his possession and showed
Liffert several areas where he'd dug for relics. NPS archeologist Bob
Sonderman led a regional archeological "rapid response team" in
evaluating the scope and nature of the damage. On November 30th, Hurt
was sentenced under a plea agreement for the ARPA offense. He
forfeited his metal detector (which he'd owned for only three weeks),
paid restitution of $639, and paid a $500 fine. The magistrate waived
probation because of Hurt's cooperation in the investigation. [George
Liffert, PR, PRWI, 12/1]
I have an ongoing relationship with officials in Yosemite National Park. In this relationship there is mutual respect. They know of my stance, and are aware that I believe in my cause, and that I am not going to just go away. On leaving the courthouse yesterday, Dan Horner and I exchanged a few polite words, and I let him know he's still got some cliffs I want to jump.
I did also offer my sincere condolences to Dan Horner, the NPS, and to the family and friends of Ranger Steve Jarrel, who was shot and killed, while on duty in the state of Hawaii this past Sunday, at the Kaloko-Honokohau National Historic Park.
In closing, I would ask that our attention now go to a prisoner at the Washoe County Jail in Reno, Nevada. That prisoner is Dennis McGlynn. He too was convicted of Aiding and Abetting an Illegal Aerial Delivery, that took place at the Lake Powell National Recreation Area in 1994. Dennis is now serving three months in jail, which was part of his sentence. He is due to be released on January 4, 2000. He has already spent my birthday, Bridge Day, Thanksgiving and his birthday incarcerated. Is it now fair or necessary that he spend Christmas and the New Year still in jail? Murderers, rapists and robbers all get early release for good behavior, why not a man convicted of a very petty offense? I'm sure not even the NPS administrators want to be the Grinch who stole Dennis' Christmas.
Avery Badenhop
I hope everyone out there understands the time, effort, and risks the Yosemite 5 took to gain access to OUR park. Many thanks to all of you. My sympathies to Jan's family.
Now, can someone again post the address and info for applying for a permit to jump El Cap? Let's bombard them with requests to jump it! Continue the fight.
jason bell - base428
"
Wilderness Permits
P.O. Box 545
Yosemite, CA 95389
(209)372-0740
Filming Permits
P.O. Box 700
El Portal, CA 95318
(209)379-1854
By pleading nolo contendre and paying the fines, you are making the statement that you agree with the Park Service's policies. If you weren't going to fight this, legally and publicly, why did you even bother to jump. The people who jump and evade the rangers are making a more powerful statement than you are. Fight? Surrender is no way to fight!! Thanks for dropping the ball.
You dropped the ball.... I did not see your name on the list of charges!!! If you had picked up the ball you might have something to say. Do you even have a clue as to what has happened. I think NOT. once again F*** you. Feel free to reply I will Not wast my time with you again.
G)~>WayL)~>w
This was posted by Tom Aiello on Oct-26-99 at 05:48 PM (EST):
" ... in U.S. law, you need a test case involoving actual parties who are harmed or otherwise effected by the law directly. It is insufficient in our courts to simply ask for review. You must first break the law, then be arrested and tried (and often must also be found guilty), then challenge the constitutionality of the law (i.e. ask for judicial review).
That was, in fact, the entire purpose of this El Cap jump--to establish the test case required for judicial review. Without the jump, your suggested course of action [judicial review] is impossible--with the jump it may be feasible.
BASE jumpers are neither stupid nor blind. In order to pursue legal avenues of redress, this "protest jump" was completely necessary. "
Of course, I have no idea what involvement with or insight into the El Cap protest Tom may have had and I certainly would NOT want to criticise those who plea-bargained this week. I am, however, as sure as I can be at this distance that Tom is (with respect!) completely wrong about the availability of judicial review in U.S. law: from the researches that I have made, it is possible to challenge a decision without needing a conviction first.
However, if a *legal* challenge is ever to be mounted against the NPS policy of point-blank refusal to issue permits for base-jumping, then someone, somewhere, is going to have to think how such a challenge can be set up and mounted. Maybe someone is, but it is a little disappointing that (with the exception of a positive response from Robin Heid) Tom's was the only post in answer to a suggestion I made shortly after the El Cap protest, the core of which I reproduce below:
" & [judicial review] could be used to challenge the NPS policy of refusing to issue permits. It would require very careful planning and preparation, very good and experienced lawyers, and the courage (and money) to see it through all the way (say to the Supreme Court). But if it can be shown (1) that there is such a policy on the part of the NPS and (2) that the policy cannot be defended on any rational ground, then there may be a powerful case to argue which could result in the NPS policy being declared illegal."
[and in a later post]:
"There would undoubtedly be very many difficulties in such a case, of which standing (particularly if the reviewing court is a federal one) would be just one.
However, if (AND I EMPHASISE "IF") no one out there has sought the advice of a lawyer specialising in administrative law/judicial review on this question before now, it might just be worth forking out a few (I use the word "few" ironically, of course) bucks to do so (on the assumption that there are no BASE-jumping administrative lawyers out there who would do it for free).
If they have, and the answer was "NO", then I apologise (again) for wasting your time."
I am not a BASE-jumper. I am an English and not a U.S. lawyer. But I earn my living (in large measure) trying to spot points which others have not. If no one has thought of this before, why not think about it now? If you have and decided it's a non-runner, then say so (at least drop me an email and explain why) and I'll just go back to lurking.
Your conclusion and accusation may be in error.
Perhaps you care to e-mail me directly.
I could explain our course of action.
Since it involves OUR legal tactics,
which the opposition need not be privy to,
privacy is a MUST.
<center><font size="1" color="#ff0000">LAST EDITED ON Dec-17-99 AT 01:18 PM (EST)</font></center>
President Nixon understood the existence of what he called, "the great silent majority," (I spent considerable time around him when in the Marine Corps) and appreciate it or not "Way-Back" is part of that faction.
Telling him to F-off, while understandable as a knee jerk reaction, is counter productive at the least.
I'm starting to see a lot of, "you didn't contribute to the fund, you didn't show up at the protest, you didn't get involved, etc, etc.
Stop it!
It may help to consider Way-Back may be just as involved in this fight as anyone, and maybe for a lot longer. Is it the powerful glare of the present tense that does not allow some to see this? The fact is some jumpers involved in the current events are old hands in this sport, and some are not. I'm directing these comments at the ones who are not.
I'm backing the people who jumped at the protest. However, I do so with the knowledge that we are building on what's come before. Way-Back has a valid opinion and he has the perfect right to voice it without being told to F-off. He, me, and God knows how many other veteran BASE jumpers are going to be offended by this . . . don’t make it harder for people to support you.
And if I may, I believe what has him steamed is the fact we have all, to some extent, been put into the position of backing the protest jumpers or backing the Park Service, there is no third way. And in light of the circumstances, that could be construed as not much of a choice at all . . . So go easy, for after all, you and Way-Back are on the same ball club.
Nick
BR
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