USA v. Albers

Decision Date07 February 2000
Docket NumberNo. 99-10071,99-10071
Citation226 F.3d 989
Parties(9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK C. ALBERS; JIM T. FREEGARD; DAVID W. MORAN; ERIN MORAN; DAVID PIERCE; CARMEL PRESSE; J. LYLE PRESSE; JEFF DENYING SCHLABS; MARK SHEEHAN; KIRKSMITH; DAVID M. STROBEL; STEVE VAN HORN, Defendants-Appellants. Office of the Circuit Executive
CourtU.S. Court of Appeals — Ninth Circuit

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

Camille D. Bibles, Assistant United States Attorney, Phoenix, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding D.C. No. CR-95-00448-RGS

Before: Procter Hug, Jr., Chief Judge, Dorothy W. Nelson, and M. Margaret McKeown, Circuit Judges.

ORDER

The opinion filed on July 17, 2000 is hereby WITHDRAWN.

SO ORDERED.

OPINION

D.W. NELSON, Circuit Judge:

National Park Service rangers arrested Mark Albers and eleven others (collectively "Albers" or "the defendants") for BASE jumping in the Glen Canyon National Recreation Area. The government charged the defendants with delivering and retrieving persons by parachute, in violation of 36 C.F.R S 2.17(a)(3), and disorderly conduct, in violation of 36 C.F.R. S 2.34(a)(4). Subsequent to a bench trial, the district court found the defendants guilty of both counts. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The acronym in BASE jumping refers to the structures off of which enthusiasts of the extreme sport jump with the use of a chute: Buildings, Antennas (radio and television towers), Spans (bridges), and Earth (cliffs). BASE jumpers have leapt from the Empire State Building, the Eiffel Tower, Angel Falls in Venezuela (the highest waterfall in the world), the 98-foot Christ statue in Rio de 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 Canyon, as it is in all other national parks with the exception of the New River Gorge National Park.1 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, 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 S 2.17(a)(3); and (2) disorderly conduct in violation of 36 C.F.R. S 2.34(a)(4). The defendants, asserting that BASE jumping is a type of powerless flight permitted under 36 C.F.R. S 2.17(a)(1), moved to dismiss under Fed. R. Crim. P. 12(b)(2);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 suppressing 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 prosecution, and a $20 special assessment fee. The defendants timely appealed.

DISCUSSION
I

The Park Service proscribes BASE jumping under its regulations governing aircraft and air delivery. See 36 C.F.R. S 2.17. The relevant provision prohibits "[d]elivering 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." 36 C.F.R. S 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 compelled 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 S 2.17(a)(3) is ambiguous as the "ram-air aeroelastic wings" used by the defendants are a type of aircraft and a preceding provision, S 2.17(a)(1), permits the "operating or using [of] aircraft" on designated lands and waters. Whether a regulation 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 defendants' chutes are aircraft, "a device that is used or intended to be used for human flight in the air, including powerless flight," 36 C.F.R. S 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 versatility:

[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 parachutes, 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 interpretation such that ordinary people could understand what conduct is prohibited and those enforcing it are provided with clear standards).

Our determination here is supported by the defendants' own expert witness, Adam Filippino. In his testimony, 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 identified 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.F.R. S 1.1.

Given that the ram-air chutes used by the defendants are parachutes, BASE jumping does not qualify as powerless flight. Albers' contention that the National Park Service has defined powerless flight devices, a class of aircraft, to include parachutes is at odds with the regulatory history of S 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 regulation as excluding parachutes from the category of powerless flight devices.

Finally, Albers contends that the term "delivery " as used in the prohibition under S 2.17(a)(3) against"[d]elivering 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 defendants cannot be convicted under S 2.17(a)(3) for an activity which...

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