Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Very pleased to welcome to the show, Casey Norman, who
is litigation counsel at NCLA, and we've had multiple NCLA
guests on the show. That is the New Civil Liberties
Alliance NCLA Legal dot org. And I got this in
an email from NCLA and I just thought it was
a very interesting legal question about the National Park Service
(00:25):
and what they can and can't do. So rather than
my explaining the story, we'll let Casey do it. Hi, Casey,
welcome to KOA.
Speaker 2 (00:32):
Hi, thank you for having me on.
Speaker 3 (00:33):
Very glad to do it.
Speaker 1 (00:34):
So tell us what the National Park Service is doing
that you believe is unconstitutional.
Speaker 2 (00:42):
Sure, So, in this case that we just filed yesterday,
it's called base Access, the National Park Service, NCLA is
challenging Congress's unconstitutional delegation of criminal lawmaking power to the
National Park Service, which of course is an executive branch agency.
And they did this by means of a statue called
the Organic Act, which created the agency NPS, and it
(01:06):
also delegated the power to the agency to issue whatever
regulations it decides are necessary or proper to manage or
use the National Parks. So we're talking about eighty five
million acres of public lands across the country, and you
have this agency composed of unelected bureaucrats who are deciding
what conduct constitutes a crime on these lands. So, with
(01:30):
respect to this case that we just filed, the National
Park Service has basically criminalized the entire sport of base jumping.
So our clients are base jumpers, you know, they're also
you know, working professionals, military service members, generally, you know,
while abiding citizens who happen to enjoy base jumping in
the national parks, which are some of the safest places
(01:51):
kind of in the world to practice this sport. And
if they do it in the national parks, this government
agency is threatening them with criminal penalties, including five thousand
dollars fines, a permanent criminal record, and even imprisonment. One
of our plaintiffs actually was in prison simply for base
jumping in one of the national parks. So that's kind
(02:11):
of our case and a gist here.
Speaker 3 (02:13):
Okay, So just to be a little bit.
Speaker 1 (02:16):
Legally nerdy, and I'm not an attorney, but I really
enjoy reading and thinking about constitutional law, appellate law, and
Supreme court stuff. So is the is the key objection
here that the kind of legal power that the National
Park Service is attempting to wield is they're trying to
(02:40):
fit it in under criminal law rather than under civil
something or other like you might expect from you know.
Speaker 3 (02:47):
The SEC or the EPA if they.
Speaker 1 (02:49):
Had a problem with somebody.
Speaker 2 (02:52):
I think it's an important distinction. But we would argue
that any delegation, when you're talking about legislative power to
write law, that's how or rests solely with Congress and
not with these agencies, like I said, you know, composed
of unelected, unaccountable bureaucrats. And I think when you're talking
about criminal penalties it makes it all the more more
serious and more egregious because you're talking about you know,
(03:14):
someone's life and liberty, the potential of going to prison
and having this permanent record, which you know impacts your future,
your career prospects, and all of that. So either way,
I would say that it's unconstitutional for Congress to kind
of forfeit its exclusive powers and to grant it to
some unaccountable agency. But yeah, here, being criminal it is
even worse.
Speaker 1 (03:35):
Okay, So I'll play devil's advocate a little bit, even
though I'm you know, I'm on your side as far
as the macro issue, right, I'm I'm disgusted by how
much Congress delegates, And partly I think they delegate because
they don't want the responsibility and they can just claim
to be well intended and then blame some bureaucrats that
(03:55):
nobody will ever see or be able to fire or unelect. Well,
Donald Trump might fire a fire these people now. But
isn't it very common for the for Congress to delegate
powers like this to many agencies?
Speaker 3 (04:16):
Is there?
Speaker 1 (04:17):
And that doesn't I'm not trying to less than the
importance of your case.
Speaker 3 (04:21):
Is there something that is really different.
Speaker 1 (04:23):
About this case than like any other kind of delegation
or is this just is this an example of a
delegation and if you win this then it could be
it could be a precedent to overturn lots of other
kinds of delegation.
Speaker 2 (04:39):
Yeah, no, that's a great question. I mean, I think
Congress does delegate its power far too often. But this
case is definitely distinguishable from a lot of the other
forms of delegation we've seen. And I think that's mainly
because if you look at this statute at issue here
at the organic act. It doesn't provide the agency, the
National Park Service, with any kind of guiding intelligible principle,
(05:00):
any specific direction or instruction. It's more of these kind
of aspirational, vague capacience statements of you know, you can
create any criminal regulation agency that you wish, that you
think is necessary or proper for the management or use
of the National parks. You know, it doesn't say specifically,
you know, to prevent the force from you know, being
(05:20):
burned down or destroyed. There's no there's no real specific
guidance or or, as the court's always say, an intelligible principle.
So we're arguing that here it's just far too vague,
far too capacious of a delegation of authority, where basically
this agency is getting carte blanche to run wild and
just regulate, you know, whatever conduct it feels is necessary
(05:41):
or proper. And again we're talking about criminal penalties here,
so pretty severe consequences.
Speaker 1 (05:48):
Okay, So what would it make you feel any better?
And I don't want I don't want to give the
nanny state ors any ideas, but would it make you
Would it make you feel any better if the law
were changed to say National Service you can do anything
you want to restrict an activity that has a high
(06:08):
chance of severe injury or death.
Speaker 2 (06:12):
I think that would be better. As I said, you know,
the statute as it reads right now gives no specific
instructions at all, and I think we'd have a harder
argument to make. And I think there's kind of two
parts to this answer. One, I think that the line
of case precedent right now that pertains to how much
authority Congress can delegate. I think, you know, we're probably
(06:32):
going to see some cases making it up to the
Supreme Court where they rule I hope that that it's
just too broad. And two capacis of authority that these
agencies are currently being you know, delegated. So I think
even the way that you phrased it to me that
is problematic. I think in the course right now, it's
a harder argument to make if you do have some
specific direction or instructions like that. But we're hoping to
(06:55):
kind of change that and you know, maybe even make
it up to the Supreme Court to see whether we
can make some progress on this front.
Speaker 3 (07:01):
How many clients do you have on this case?
Speaker 2 (07:04):
We have, so we have six individual base Jumper clients.
And then we also have one nonprofit. Here's a client
called Base Access and they basically they represent hundreds, not
thousands of base jumpers across the world who try and
they try to work with governments governments, you know, both local, state,
and federal to legally and safely based jump. So they've
(07:26):
been trying to work with NPS for decades now and
you know, with very little luck.
Speaker 1 (07:32):
So we have just about a minute here, So if
how of your six clients, how many of them have
been punished by NPS for base jumping, and how many
of them are on the lawsuit because they want to
base jump and are being prevented from doing so.
Speaker 2 (07:46):
So it's exactly fifty to fifty. Three of them have
already faced penalties, one of them, like I mentioned, has
even been imprisoned for base jumping, and three of them
just you know, they wish to lossily jump in the
national parks, like I mentioned, they're the safest place in
the country read the base jump.
Speaker 3 (08:00):
How long was that? How long was that person in prison?
Speaker 2 (08:04):
He was in prison for seven days?
Speaker 1 (08:07):
Okay, crazy, absolutely crazy, I agree. And then okay, just
last quick thing, what's the what's the timing here? What's
the next step, when's a hearing. What's going on?
Speaker 2 (08:17):
Yes, so we just foiled the complaint yesterday, and my
guess is the government is going to file a motion
to dismiss at some point within this next couple of months.
We got to serve them first and then we'll go
from there.
Speaker 3 (08:29):
All right, Well, let's uh, let's keep in touch on this.
Speaker 1 (08:32):
I hope you win, and just generally, I always, I
always hope you win cases where you're pushing back against
excessive delegation of authority from the legislature to unaccountable bureaucrats.
Casey Norman is Litigation Council at n c l A.
The website is n c l A legal dot org.
Thanks so much for being here, Casey, appreciate it. Thanks
(08:54):
Ros
Very pleased to welcome to the show, Casey Norman, who
is litigation counsel at NCLA, and we've had multiple NCLA
guests on the show. That is the New Civil Liberties
Alliance NCLA Legal dot org. And I got this in
an email from NCLA and I just thought it was
a very interesting legal question about the National Park Service
(00:25):
and what they can and can't do. So rather than
my explaining the story, we'll let Casey do it. Hi, Casey,
welcome to KOA.
Speaker 2 (00:32):
Hi, thank you for having me on.
Speaker 3 (00:33):
Very glad to do it.
Speaker 1 (00:34):
So tell us what the National Park Service is doing
that you believe is unconstitutional.
Speaker 2 (00:42):
Sure, So, in this case that we just filed yesterday,
it's called base Access, the National Park Service, NCLA is
challenging Congress's unconstitutional delegation of criminal lawmaking power to the
National Park Service, which of course is an executive branch agency.
And they did this by means of a statue called
the Organic Act, which created the agency NPS, and it
(01:06):
also delegated the power to the agency to issue whatever
regulations it decides are necessary or proper to manage or
use the National Parks. So we're talking about eighty five
million acres of public lands across the country, and you
have this agency composed of unelected bureaucrats who are deciding
what conduct constitutes a crime on these lands. So, with
(01:30):
respect to this case that we just filed, the National
Park Service has basically criminalized the entire sport of base jumping.
So our clients are base jumpers, you know, they're also
you know, working professionals, military service members, generally, you know,
while abiding citizens who happen to enjoy base jumping in
the national parks, which are some of the safest places
(01:51):
kind of in the world to practice this sport. And
if they do it in the national parks, this government
agency is threatening them with criminal penalties, including five thousand
dollars fines, a permanent criminal record, and even imprisonment. One
of our plaintiffs actually was in prison simply for base
jumping in one of the national parks. So that's kind
(02:11):
of our case and a gist here.
Speaker 3 (02:13):
Okay, So just to be a little bit.
Speaker 1 (02:16):
Legally nerdy, and I'm not an attorney, but I really
enjoy reading and thinking about constitutional law, appellate law, and
Supreme court stuff. So is the is the key objection
here that the kind of legal power that the National
Park Service is attempting to wield is they're trying to
(02:40):
fit it in under criminal law rather than under civil
something or other like you might expect from you know.
Speaker 3 (02:47):
The SEC or the EPA if they.
Speaker 1 (02:49):
Had a problem with somebody.
Speaker 2 (02:52):
I think it's an important distinction. But we would argue
that any delegation, when you're talking about legislative power to
write law, that's how or rests solely with Congress and
not with these agencies, like I said, you know, composed
of unelected, unaccountable bureaucrats. And I think when you're talking
about criminal penalties it makes it all the more more
serious and more egregious because you're talking about you know,
(03:14):
someone's life and liberty, the potential of going to prison
and having this permanent record, which you know impacts your future,
your career prospects, and all of that. So either way,
I would say that it's unconstitutional for Congress to kind
of forfeit its exclusive powers and to grant it to
some unaccountable agency. But yeah, here, being criminal it is
even worse.
Speaker 1 (03:35):
Okay, So I'll play devil's advocate a little bit, even
though I'm you know, I'm on your side as far
as the macro issue, right, I'm I'm disgusted by how
much Congress delegates, And partly I think they delegate because
they don't want the responsibility and they can just claim
to be well intended and then blame some bureaucrats that
(03:55):
nobody will ever see or be able to fire or unelect. Well,
Donald Trump might fire a fire these people now. But
isn't it very common for the for Congress to delegate
powers like this to many agencies?
Speaker 3 (04:16):
Is there?
Speaker 1 (04:17):
And that doesn't I'm not trying to less than the
importance of your case.
Speaker 3 (04:21):
Is there something that is really different.
Speaker 1 (04:23):
About this case than like any other kind of delegation
or is this just is this an example of a
delegation and if you win this then it could be
it could be a precedent to overturn lots of other
kinds of delegation.
Speaker 2 (04:39):
Yeah, no, that's a great question. I mean, I think
Congress does delegate its power far too often. But this
case is definitely distinguishable from a lot of the other
forms of delegation we've seen. And I think that's mainly
because if you look at this statute at issue here
at the organic act. It doesn't provide the agency, the
National Park Service, with any kind of guiding intelligible principle,
(05:00):
any specific direction or instruction. It's more of these kind
of aspirational, vague capacience statements of you know, you can
create any criminal regulation agency that you wish, that you
think is necessary or proper for the management or use
of the National parks. You know, it doesn't say specifically,
you know, to prevent the force from you know, being
(05:20):
burned down or destroyed. There's no there's no real specific
guidance or or, as the court's always say, an intelligible principle.
So we're arguing that here it's just far too vague,
far too capacious of a delegation of authority, where basically
this agency is getting carte blanche to run wild and
just regulate, you know, whatever conduct it feels is necessary
(05:41):
or proper. And again we're talking about criminal penalties here,
so pretty severe consequences.
Speaker 1 (05:48):
Okay, So what would it make you feel any better?
And I don't want I don't want to give the
nanny state ors any ideas, but would it make you
Would it make you feel any better if the law
were changed to say National Service you can do anything
you want to restrict an activity that has a high
(06:08):
chance of severe injury or death.
Speaker 2 (06:12):
I think that would be better. As I said, you know,
the statute as it reads right now gives no specific
instructions at all, and I think we'd have a harder
argument to make. And I think there's kind of two
parts to this answer. One, I think that the line
of case precedent right now that pertains to how much
authority Congress can delegate. I think, you know, we're probably
(06:32):
going to see some cases making it up to the
Supreme Court where they rule I hope that that it's
just too broad. And two capacis of authority that these
agencies are currently being you know, delegated. So I think
even the way that you phrased it to me that
is problematic. I think in the course right now, it's
a harder argument to make if you do have some
specific direction or instructions like that. But we're hoping to
(06:55):
kind of change that and you know, maybe even make
it up to the Supreme Court to see whether we
can make some progress on this front.
Speaker 3 (07:01):
How many clients do you have on this case?
Speaker 2 (07:04):
We have, so we have six individual base Jumper clients.
And then we also have one nonprofit. Here's a client
called Base Access and they basically they represent hundreds, not
thousands of base jumpers across the world who try and
they try to work with governments governments, you know, both local, state,
and federal to legally and safely based jump. So they've
(07:26):
been trying to work with NPS for decades now and
you know, with very little luck.
Speaker 1 (07:32):
So we have just about a minute here, So if
how of your six clients, how many of them have
been punished by NPS for base jumping, and how many
of them are on the lawsuit because they want to
base jump and are being prevented from doing so.
Speaker 2 (07:46):
So it's exactly fifty to fifty. Three of them have
already faced penalties, one of them, like I mentioned, has
even been imprisoned for base jumping, and three of them
just you know, they wish to lossily jump in the
national parks, like I mentioned, they're the safest place in
the country read the base jump.
Speaker 3 (08:00):
How long was that? How long was that person in prison?
Speaker 2 (08:04):
He was in prison for seven days?
Speaker 1 (08:07):
Okay, crazy, absolutely crazy, I agree. And then okay, just
last quick thing, what's the what's the timing here? What's
the next step, when's a hearing. What's going on?
Speaker 2 (08:17):
Yes, so we just foiled the complaint yesterday, and my
guess is the government is going to file a motion
to dismiss at some point within this next couple of months.
We got to serve them first and then we'll go
from there.
Speaker 3 (08:29):
All right, Well, let's uh, let's keep in touch on this.
Speaker 1 (08:32):
I hope you win, and just generally, I always, I
always hope you win cases where you're pushing back against
excessive delegation of authority from the legislature to unaccountable bureaucrats.
Casey Norman is Litigation Council at n c l A.
The website is n c l A legal dot org.
Thanks so much for being here, Casey, appreciate it. Thanks
(08:54):
Ros
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