U.S. v. Oxx, 96-CR-077 J.
| Decision Date | 30 September 1997 |
| Docket Number | No. 96-CR-077 J.,96-CR-077 J. |
| Citation | 980 F.Supp. 405 |
| Parties | UNITED STATES of America, Plaintiff, v. William OXX, Jonathan Oxx, Martin Tilly, Christopher Berke, David Katz, Steve Mulholland, John M. Henderson, Aaron M. Brennan, and Michael Kvale, Defendants. |
| Court | U.S. District Court — District of Utah |
Scott M. Matheson, Jr., U.S. Attorney, Matthew R. Howell, Asst. U.S. Atty., Salt Lake City, UT, for Plaintiff.
Fred M. Morelli, Jr., Aurora, IL, for Defendants.
On April 18, 1996, the United States filed a petty offense Information charging each of the named defendants in separate counts as to each but joined for convenience with violating 36 C.F.R. § 2.17(a)(3) (1995) by "deliver[ing] persons by parachute within the Glen Canyon National Recreation Area without a permit and when not required by an emergency." Investigations by the National Park Service resulted in warrants issued for each defendant. A joint bench trial for all of the defendants was scheduled for September 12, 1996. At the time of pre-trial motion hearings, the Government asserted that during the week of April 28, 1995, through May 3, 1995, each of the named defendants engaged in the activity commonly known as BASE1 jumping by leaping off the cliffs of Glen Canyon and then, shortly after leaping, deploying a parachute or similar device to glide to a landing in Lake Powell.
On August 29, 1996, each defendant filed a Motion to Dismiss the counts pending against him, asserting, among other things, that the Information is defective. Each defendant contends that the Information should be dismissed because (a) Section 2.17, as written, does not clearly prohibit BASE jumping; and (b) as applied to the facts of this case, Section 2.17 is ambiguous.
After hearing argument, considering proffered facts and testimony, and reviewing the papers submitted on the Motion, and for reasons more fully discussed below, the Court finds that the regulations, as currently written, were not intended to prohibit the BASE jumping activities the defendants were allegedly engaged in. Moreover, the regulation, as applied to the purported conduct of the defendants, suffers from an incurable ambiguity. Accordingly, each defendant's Motion is granted and the Information as to each defendant dismissed.2
In this case the Court is confronted with the question whether a regulation adopted by the National Park Service that was written to prohibit the air delivery of persons or objects into a park can be read to prohibit BASE jumping by enthusiasts already in the park. Specifically, the Court must determine whether BASE jumping constitutes unauthorized air delivery of a person or object in a national park in violation of 36 C.F.R. § 2.17(a)(3).3 In pertinent part, section 2.17 of the regulations provides as follows:
§ 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 pursuant 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.
The defendants argue that their alleged conduct does not violate subsection (3) because BASE jumping cannot be considered as "delivering ... a person by parachute," within the meaning of Section 2.17(a). Although BASE jumping does involve the use of a parachute, the defendants contend that the types of parachutes used in BASE jumping permit the jumper to control the parachute and engage in horizontal flight. The defendants assert that this element of flight control makes BASE jumping similar to hang gliding and other forms of powerless flight. Def. Motion ¶ 4. Because the regulation defines "aircraft" to include any "device that is used or intended to be used for human flight in the air, including powerless flight," 36 C.F.R. § 1.4(a) (1995), the defendants argue that BASE jumping can only be regulated, if at all, as the use or operation of aircraft under subsection (1) of Section 2.17(a). That subsection purports to permit the use of "aircraft" without a permit in areas "designated by special regulations." § 2.17(a)(1). The defendants point out that one of the areas so designated is "[t]he entire surface of Lake Powell." 36 C.F.R. § 7.70(a)(6) (1995). Accordingly, the defendants assert that because the parachute used in BASE jumping can be deemed an "aircraft" and aircraft use is permitted on Lake Powell, they have not engaged in any prohibited conduct.
The Government, on the other hand, argues that BASE jumping parachutes should not be considered "aircraft" under the regulations. Although the Government conceded at oral argument that the parachutes allegedly used by the defendants may exhibit some of the characteristics of flight, i.e., they can travel horizontally, (Transcript of Hearing on Motion to Dismiss, dated Sept. 9, 1996, at 49), it argues that the rulemaking history of Section 2.17 supports the view that parachutes of any kind do not fall within the meaning of "aircraft." Specifically, the Government relies on a statement that although the regulatory definition of aircraft was intended to expand the definition to include "ultralight aircraft and powerless flight," it was "not intended to include parachutes covered under subparagraph § 2.17(a)(3), or air delivery." 48 Fed.Reg. 30252, 30268 (June 30, 1983) (final rule).
Moreover, even if the parachutes used by the defendants could be viewed as "aircraft," the Government argues that subsection (3) still applies. The Government states that although Lake Powell has been designated as a landing area, the regulations provide that this designation is still subject to the restrictions found in Section 2.17.4 Among these restrictions, is the subsection (3) prohibition against "delivering or retrieving a person or object by parachute, helicopter, or other airborne means." Thus, the Government argues that despite the designation of Lake Powell as a landing area, the delivery of a person "by parachute, helicopter, or other airborne means" requires a permit.
At the outset, the Court begins its analysis by recognizing that due process requires a criminal statute to be stated in terms which are reasonably definite, so that a person of ordinary intelligence will know what the law prohibits or commands. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). This requirement ensures that a defendant will receive adequate warning of what the law requires so that he or she may act lawfully, and it serves to prevent arbitrary and discriminatory enforcement by providing police, prosecutors, judges, and juries with clear guidelines to fairly administer the law. Id. at 357-58, 103 S.Ct. at 1858-59; United States v. Gaudreau, 860 F.2d 357, 363 (10th Cir.1988) (citations omitted). No person should be required, at peril of life, liberty, or property, to speculate as to whether their actions will subject them to criminal penalties. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). Accordingly, "`penal statutes are to be construed strictly,' ... and that one `is not to be subjected to a penalty unless the words of the statute plainly impose it.'" United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971) (citations omitted). It follows, therefore, that a criminal statute cannot be read expansively to include what is not plainly within its language, (Kordel v. United States, 335 U.S. 345, 348-49, 69 S.Ct. 106, 108-09, 93 L.Ed. 52 (1948); United States v. Resnick, 299 U.S. 207, 209-10, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936)), or be extended by implication or analogy. Williams v. Moore, 262 F.2d 335, 338 (5th Cir.), cert. denied, 360 U.S. 911, 79 S.Ct. 1297, 3 L.Ed.2d 1261 (1959).
In determining the meaning of any statute or regulation the starting point must be the language of the statute itself, (see Bailey v. United States, 516 U.S. 137, ___, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995)), and the words used must be given their ordinary or natural meanings. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979).
By its plain language, Section 2.17(a)(3) seeks to prohibit "delivering or retrieving a person or object by parachute, helicopter, or other airborne means." The ordinary meaning of the term "deliver" is to "set free from restraint" or to "give, transfer, yield possession or control." Websters Third New International Dictionary of the English Language 597 (1971). Rather than "yielding possession or control," BASE jumpers instead seek, and require, heightened control. As was amply demonstrated by the defendants at oral argument, BASE jumpers rely on the fact that the parachutes they use provide them with increased control. The shape of the parachutes, along with the controls and vents attached to some parachutes, provide a BASE jumper with control akin to horizontal flight that enables the jumper effectively to steer clear of the structure leapt from and to guide the parachute to a safe landing area. Thus, under the common meaning of delivery, it is difficult to understand how a person BASE jumping can be said to be "delivering" himself.5
More damaging to the Government's argument, however, is the regulation's inclusion of the phrase "other airborne means." If a person were to read the plain language of the regulation, they might understand that subsection (3) attempts to broadly prohibit the delivery or retrieval of a person or object by "parachute, helicopter, or other airborne means." Since what is meant by "other airborne means" is not defined by the regulations, the Court turns to its ordinary meaning for guidance. See Perrin, 444 U.S. at 42, 100 S.Ct. at 314. Websters defines "airbor...
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U.S. v. Oxx
...suffered from an incurable ambiguity. The court then dismissed the Information as to each defendant. See United States v. Oxx, 980 F.Supp. 405, 408-09 (D.Utah 1997). The Government appealed and the Court of Appeals for the Tenth Circuit reversed. See United States v. Oxx, 127 F.3d 1277 (10t......