In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by Litigation Counsel Casey Norman to discuss NCLA’s appeal in BASE Access v. National Park Service, now before the U.S. Court of Appeals for the Fifth Circuit.

For decades, the National Park Service has treated BASE jumping as a federal crime in national parks. But Congress never passed a law specifically criminalizing BASE jumping. Instead, the Park Service relies on a 1965 regulation prohibiting the “delivery” of people or objects by parachute or other airborne means—a rule adopted roughly 13 years before BASE jumping emerged in the United States.

Casey explains NCLA’s argument that Congress unconstitutionally transferred criminal lawmaking power to the executive branch and why the Park Service’s decades-old regulation does not actually apply to people who enter a park normally, climb to a jumping point, and parachute to another location within the park.

But before those arguments can even be decided, NCLA must overcome the district court’s ruling that the BASE jumpers lack standing. The court concluded that a pre-enforcement challenge requires an interest in exercising a specific constitutional right—even though several plaintiffs have previously been prosecuted for BASE jumping and want to do it again. Casey explains why NCLA says that standard would effectively force Americans to break the law, risk prosecution, and potentially go to prison before they can challenge an unconstitutional criminal prohibition.

John and Casey also discuss NCLA’s Fifth Amendment vagueness and Administrative Procedure Act claims, the Park Service’s refusal to conduct the planning process it says is necessary to permit BASE jumping, and why NCLA is asking the Fifth Circuit to revive the case.