United States v. Albers
Citation: 30 ELR 20792
No. No. 99-10071, 221 F.3d 1133/(9th Cir., 07/17/2000)
The court upholds a district court decision finding several buildings, antennas, spans, and earth (BASE) jumpers in the Glen Canyon Recreation Area guilty of air delivery without a permit and disorderly conduct. Under 36 C.F.R. § 2.17(a)(3), delivering a person or object by parachute is prohibited. The jumpers argued, however, that 36 C.F.R. § 2.17(a)(3) is ambiguous because the "ram-air aerolastic wings" used by the jumpers are a type of aircraft, and 26 C.F.R. § 2.17(a)(1) permits operating or using of aircraft on designated land and waters. The court first holds that 36 C.F.R. § 2.17 prohibits BASE jumping. Technological improvements in the shape, maneuverability, and control of modern parachutes do not make them cease to be parachutes. Additionally, ordinary people would find that the chutes, although technologically sophisticated, are still parachutes. Therefore, given that the ram-air chutes used by the jumpers are parachutes, BASE jumping does not qualify as powerless flight. Further, the term "delivery" in 36 C.F.R. § 2.17(a)(3) can include self-delivery. The court next holds that the Federal Aviation Administration does not have exclusive jurisdiction and that nothing precludes the U.S. Department of the Interior from promulgating the regulations at issue in this case. The court also holds that the jumpers were properly convicted of disorderly conduct. The jumpers deliberately disregarded a substantial and unjustifiable risk of creating a hazardous or physically offensive condition of which they were aware.
Counsel for Plaintiff
Camille D. Bibles, Ass't U.S. Attorney
U.S. Attorney's Office
4000 U.S. CtHse.
230 N. First Ave., Phoenix AZ 85025
Counsel for Defendants
Fred M. Morelli Jr.
Law Offices of Fred M. Morelli Jr.
403 W. Galena Blvd., Aurora IL 60506
Before Hug and McKeown, JJ.