U.S. Forest Service Says It’s a Federal Crime to Post a Photo of Yourself on Public Land

Colorado resident David Lesh faces six months’ probation, 160 hours of community service, and a $10,000 fine for posting a photo on his personal Instagram account that allegedly depicted him snowmobiling over a jump at a closed ski resort. Mr. Lesh, who owns an outdoor apparel company, was charged pursuant to an overbroad delegation by Congress, that allows the U.S. Forest Service to make it a crime to sell merchandise or engage in commercial activity on its land without authorization.

NCLA is arguing that Congress has unlawfully divested itself of the power to write criminal laws related to the management of national forest lands. The agency has also failed to take into consideration Mr. Lesh’s First Amendment right to post a photo to his Instagram account.

The legislative delegation at issue, which authorized the Secretary of Agriculture to make rules to prevent trespasses and regulate the use of occupancy of national forest lands, is impermissibly vague, as Mr. Lesh’s case demonstrates. The reason the Government charged him with unauthorized sale is that Mr. Lesh had stated, in an interview with the New Yorker Magazine, that his sales had unexpectedly increased as a result of the publicity that the case had received.

Congress only gave the U.S. Forest Service authority to enact regulations to prevent physical trespass of the land. The law in question had nothing to do with someone incidentally profiting because he was charged with a federal offense. Yet, a federal magistrate found him guilty of operating a snowmobile off of a designated route, and conducting unauthorized work or sale on federal lands.

Beyond the serious constitutional concerns raised here, the Government also lacks sufficient proof to support the charges. There was no evidence that Mr. Lesh was the person in the photo, as the face of the individual cannot be discerned. There was also no evidence whatsoever that Mr. Lesh sold merchandise or conducted any work activity upon lands administered by the U.S. Forest Service. NCLA is asking the U.S. District Court for the District of Colorado to reverse the magistrate’s determination and vacate the sentence.

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