Opinion
Editor’s Note: This case shows how overreaching federal power threatens hunters, hikers, and anyone who loves the outdoors. Sunseri’s prosecution over a well-worn trail highlights how easy it is to run afoul of vague rules. For AmmoLand readers, it’s a reminder: big government and endless regulations can turn ordinary people into criminals overnight.
When mountain runner Michelino Sunseri climbed and descended Grand Teton in record time last September, he posted information about his route on social media.
According to the National Park Service and the Justice Department, Sunseri thereby implicated himself in a federal misdemeanor punishable by up to six months in jail.
Although the NPS later reconsidered its recommendation that Sunseri should be prosecuted for his seemingly inadvertent use of an unapproved trail, the U.S. Attorney’s Office in Wyoming tried Sunseri anyway. Two members of the House Judiciary Committee recently decried that baffling decision, saying it appears to be “a prime example of the problem of overcriminalization“ — a problem that President Donald Trump is avowedly keen to address.
Sunseri’s bench trial concluded on May 21, and U.S. Magistrate Judge Stephanie Hambrick has not announced her verdict yet. But Reps. Harriet Hageman (R-Wyo.) and Andy Biggs (R-Ariz.) want to know why federal prosecutors decided to pursue the case, especially in light of Trump’s May 9 executive order urging restraint in deploying criminal penalties for regulatory violations.
That order expressed concern about “technical and unintentional regulatory violations that may expose individuals to criminal penalties for conduct they did not know was prohibited,” Hageman and Biggs noted last week in a letter to Stephanie Sprecher, the acting U.S. attorney for Wyoming. “President Trump instructed all federal prosecutors to prioritize civil and administrative remedies over criminal enforcement where conduct was unintentional, non-harmful, or gained no advantage.”
The fact that Sunseri advertised his route strongly suggests he did not realize he was breaking the law. And as WyoFile noted after Sunseri’s trial, the path that the NPS said he should not have taken, known as “the old climbers’ trail,” is “a historic trail so well-used that it’s become a skinny singletrack.”
In fact, Cato Institute legal fellow Mike Fox notes, “Record holders before Sunseri had used the same trail, and tour guides who charge hefty sums frequently lead hikers up the same route. Only two tiny and ambiguous signs inform the public that the trail is off-limits.”
One of those signs, at the top of the trail, said “shortcutting causes erosion.” The other sign, at the bottom of the trail, said “closed for regrowth.”
Ed Bushnell, one of Sunseri’s attorneys, argued that his client was not “shortcutting,” since he was using a long-established trail. Bushnell added that it was unclear whether the “closed” notice referred to the area around the sign or the trail beyond it.
“There is no clear prohibition there,” Bushnell said. “This is not conspicuous signage.”
After Sunseri was cited for using a prohibited trail, Hageman and Biggs say, he “took responsibility for his actions, expressed regret, and volunteered to help officially close the alternate path, which receives regular foot traffic.”
The U.S. Attorney’s Office filed criminal charges anyway.
The government’s subsequent plea-deal offers were onerous given the nature of Sunseri’s violation. In a May 19 email, Frank Lands, deputy director for operations at the NPS, described one of those proposals, which entailed a fine combined with a five-year ban from Grand Teton National Park, as “overcriminalization based on the gravity of the offense.”
The NPS “is withdrawing its criminal prosecution referral,” Lands wrote. But that did not faze federal prosecutors.
Hageman and Biggs want to know why. They asked Sprecher for “all documents and communications” regarding that decision, “the amount of taxpayer funding and department resources” devoted to Sunseri’s prosecution, cases that the U.S. Attorney’s Office has declined to prosecute since bringing charges against Sunseri, and any other steps the office has taken to comply with Trump’s order.
Sunseri’s case illustrates the traps set by a code of federal regulations so vast and obscure that even experts can only guess at the number of criminal penalties it authorizes — at least 300,000, they think. While tackling that thicket of prohibitions is a daunting task, the least federal prosecutors can do in the meantime is exercise some common-sense discretion.
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About Jacob Sullum
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. During two decades in journalism, he has relentlessly skewered authoritarians of the left and the right, making the case for shrinking the realm of politics and expanding the realm of individual choice. Jacobs’ work appears here at AmmoLand News through a license with Creators Syndicate.
The assumption under English and American law is that everything which is not forbidden is allowed. The Progressive assumption is that everything which is not allowed is forbidden.
I’ve seen this on BLM land in AZ south of Phoenix. There was a parking area and a large sign saying that beyond the gate was closed due to erosion and habitat regrowth efforts due to people driving off of the trail.
I’d park and the dog and I would trek out. The big surprise was how many off road tire tracks there were, and I’m talking recent. That would mean BLM or Border Patrol was traipsing off road in a restricted area. Rules for thee…
Don’t spend money so it creates a problem then make a law to prosecute people where you spend more than it would have cost to fix the trail.
Government in a nutshell
IMOA, the guy should be required to repair authorized trails and give newcomers a briefing not to wonder off the trails and why. Unfortunately, too many buffoons will ruin our wild places if left unchecked. Visited Mount Rainier National Park while visiting family, the park is breathtaking, and the park staff do a great job keeping the area wild as possible. We parked near the Paradise Inn and hiked a few of the well-marked trails at the base of the mountain. They had rewilding and keep off the vegetation signs located on trails made by visitors that didn’t want to… Read more »
The bigger issue is criminalizing a regulation. Only the legislature can make law. Regulations are not laws.
Subject violated the proven axiiom…”Do what you want, STFU.”
Hey, I have an idea. Rather than spending thousands of dollars on a case in court regarding an individual enjoying the outdoors, which belong to all of us, why don’t you spend that money on restoring the trail so it can continue to be used. I am tired of the government locking us out of the forests, grasslands, mountains and deserts that our elders paid for and that we paid and continue to pay for. Using the excuse of erosion, some stupid owl, some stupid frog, some stupid flower, over hunting or grazing, Serria club Subaru driving hikers leaving their… Read more »
goobers need to be fired, if trails need less use close parking lots close to them make people walk in