NCLA to Fifth Circuit: BASE Jumpers Need Not Risk Prison to Challenge NPS Criminal Ban in Court
BASE Access, Jedd Cowser, Lisa DeMusis, Catherine Hansen, Ryan Kempf, Charley Kurlinkus, and Marshall Miller v.
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Washington, D.C., Aug. 11, 2026 (GLOBE NEWSWIRE) — Congress unconstitutionally delegated criminal lawmaking power to the National Park Service (NPS), allowing the agency to decide what constitutes a criminal offense within the 85 million acres of public land it oversees. For decades, NPS has used this power to criminalize a variety of activities in the national parks, including some as innocuous as roller skating or using a metal detector, and the entire sport of BASE jumping. As a result, the New Civil Liberties Alliance’s clients—a group of working professionals and dedicated athletes—face arrest and criminal penalties, including a $5,000 fine, a permanent criminal record, and even imprisonment, simply for engaging in a legitimate, internationally recognized sport in our national parks.
NCLA’s 100th case, BASE Access, et al. v. NPS, challenges that criminal scheme, arguing, among other things, that it violates the Vesting Clause in Article I of the Constitution, which reserves criminalization and all other lawmaking power for Congress alone and does not allow legislators to transfer it elsewhere. Since BASE jumping was invented, NPS has unlawfully wielded its “Aerial Delivery Rule” against BASE jumpers. The decades-old Rule predates the sport’s existence, and, by its plain terms, regulates unauthorized cargo drops and aerial deliveries from aircraft, as opposed to any form of recreational activity. The agency has transformed this inapplicable regulation into an outright ban on BASE jumping, constituting a violation of BASE jumpers’ Fifth Amendment right to due process of law and an arbitrary and capricious action defying the Administrative Procedure Act.
Yet the U.S. District Court for the Southern District of Texas wrongly dismissed the lawsuit, claiming NCLA’s clients did not have standing. NCLA has filed its principal appellant brief urging the U.S. Court of Appeals for the Fifth Circuit to reverse that error and allow the suit to continue.
The district court acknowledged that NCLA’s clients have demonstrated a serious intent to BASE jump in national parks and face a credible threat of criminal prosecution if they do so. Under established law, that showing of serious intent and credible threat are enough to establish an injury-in-fact. The district court nevertheless denied standing, holding that NCLA’s clients failed to allege an injury-in-fact because they did not claim there is a freestanding constitutional right to BASE jump. That novel, additional requirement for pre-enforcement standing appears nowhere in Article III and that cannot be reconciled with controlling precedent.
Further, the district court wrongly characterized Plaintiffs’ injury as the inability to BASE jump wherever and whenever they choose, free of any government regulation. That is not what Plaintiffs seek. Rather, they challenge the sole legal provisions that expose them to arrest, prosecution, and imprisonment for engaging in an otherwise lawful recreational activity. Because those provisions provide the sole basis for criminal punishment, a favorable ruling would eliminate the criminal threat and directly redress Plaintiffs’ injury. The district court also dismissed the Administrative Procedure Act claim without any explanation, let alone the claim-specific standing analysis that Article III requires.
NCLA released the following statements:
“Under the district court’s rule, whenever a criminal law targets conduct that is not independently protected by the Constitution, people must violate that law—committing a federal crime and risking punishment—before a court may even consider whether it is constitutional. The Fifth Circuit should reject that dangerous theory and let the plaintiffs’ claims be heard.”
— Casey Norman, Litigation Counsel, NCLA
“The district court incorrectly held that every pre-enforcement challenge must involve conduct arguably affected with a constitutional interest to satisfy Article III standing. That rigid requirement misses the crux of pre-enforcement analysis: the concreteness and imminence of the injury—established here through a credible threat of prosecution—not the nature of the regulated conduct.”
— Faith Scrivo, Constitutional Litigation Fellow, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
Joe Martyak New Civil Liberties Alliance 703-403-1111 joe.martyak@ncla.legal
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