[00:00:00] Speaker 03:
23-1074, United States versus Lesh.

[00:00:03] Speaker 03:
Mr. Samp, you may proceed.

[00:00:05] Speaker 02:
Good morning.

[00:00:06] Speaker 02:
My name is Richard Samp.

[00:00:07] Speaker 02:
I am here representing the appellant, David Lesh.

[00:00:10] Speaker 02:
I'd like to reserve two minutes for rebuttal.

[00:00:13] Speaker 02:
Mr. Lesh is appealing his conviction for violating two Forest Service regulations.

[00:00:19] Speaker 02:
There are five separate reasons why the conviction must be overturned.

[00:00:24] Speaker 02:
First, the government's evidence is insufficient

[00:00:28] Speaker 02:
to sustain either conviction.

[00:00:31] Speaker 02:
On count one, there is no... That's me.

[00:00:35] Speaker 03:
$50 fine, sorry.

[00:00:37] Speaker 02:
There is no evidence under count one that the government ever posted the requisite snowmobiling map prior to the incident in question here.

[00:00:49] Speaker 01:
Can I ask you to clarify your argument on that point?

[00:00:52] Speaker 01:
And I know you have four other reasons, but is your argument challenging the magistrate judges, the correctness of the magistrate judge's decision to take judicial notice?

[00:01:07] Speaker 02:
Not in the sense that it's improper to take judicial notice of official maps.

[00:01:12] Speaker 01:
Of an undated map.

[00:01:13] Speaker 02:
Right.

[00:01:14] Speaker 02:
In other words, undated or dated.

[00:01:15] Speaker 02:
Undated, so there's no challenge to the... What we challenge is that what he provided doesn't provide the requisite evidence.

[00:01:22] Speaker 01:
Even assuming it was properly taken judicial notice.

[00:01:24] Speaker 02:
Right.

[00:01:25] Speaker 02:
All this map shows is that he was able, through his own research and without getting any notice to the parties,

[00:01:31] Speaker 02:
to discover that as of late 2021, there was a map in evidence.

[00:01:36] Speaker 02:
But this case concerns events in April of 2020, and there is no evidence whatsoever that as of that date, a map had been posted.

[00:01:46] Speaker 01:
And you have preserved that argument because how?

[00:01:50] Speaker 02:
Because at the trial, we preserved it by raising that issue as our principal defense on the motion for a judgment of acquittal.

[00:02:03] Speaker 02:
After the trial and in closing arguments, we raised the argument.

[00:02:08] Speaker 02:
In our district court brief, we raised the argument.

[00:02:11] Speaker 02:
It was very clear to the district court that we raised the argument and to prosecutors because the prosecutor responded to that argument in his brief.

[00:02:20] Speaker 01:
And by that argument, you mean whether the map, the undated map could satisfy that element?

[00:02:26] Speaker 02:
No.

[00:02:27] Speaker 02:
The question in the case is whether there was evidence that a map existed.

[00:02:34] Speaker 02:
And what we argued was there was no such evidence.

[00:02:38] Speaker 02:
And in response, the district judge recognized that that encompassed the argument about the map of which the magistrate took judicial notice because the judge specifically said that yes, there was evidence because the map provided the necessary evidence and that was properly admitted to evidence.

[00:03:02] Speaker 02:
And then of course we again, and that issue was ruled on by the district judge, so even if we hadn't raised it, which we did, the fact that the district judge ruled on the issue means that the issue is preserved for this court.

[00:03:19] Speaker 03:
But a reasonable person would have known, you know, here going through the ropes, burrowing through snow to get into the terrain park,

[00:03:30] Speaker 03:
wouldn't a reasonable person know that that's a trespass under... Yes.

[00:03:36] Speaker 02:
I think there's no question that first of all, under the enabling statute, the Department of Agriculture has the right to adopt a regulation that prohibits trespassing.

[00:03:45] Speaker 02:
And secondly, there was probably sufficient evidence at trial to convict my client of trespassing, but that's not the charge he faces.

[00:03:52] Speaker 02:
And in fact, he would never have faced such a charge because

[00:03:56] Speaker 02:
The evidence at trial was that there are trespassers on this property every day and when they are discovered, they are asked politely to leave and if they do, nothing further occurs.

[00:04:07] Speaker 02:
The reason the criminal case was brought here was because they wanted to argue that snowmobiling was specifically prohibited by a map on the date of the snowmobiling here and there simply was no such evidence.

[00:04:24] Speaker 02:
Our second point is that on count two, there is no evidence that any consideration was given to Mr. Lesh for his activities on National Forest Service land.

[00:04:38] Speaker 02:
And that is the requirement under section 26110C.

[00:04:43] Speaker 02:
That was the requirement imposed by the strong decision and the strong decision was adopted by this court in the Brown decision.

[00:04:52] Speaker 02:
And the government wants to change that.

[00:04:56] Speaker 02:
They say, oh, really, Brown overruled Strong, but in fact, Brown adopted Strong.

[00:05:02] Speaker 02:
And what it says is you have to have some sort of evidence of consideration.

[00:05:11] Speaker 02:
It doesn't actually have to be money.

[00:05:12] Speaker 02:
For example, in the Brown case, the consideration consisted of the client provided a credit card and promised to pay $200 and the snowmobiles were then delivered on National Forest Service land.

[00:05:30] Speaker 03:
Consideration is sufficient to show a work activity, but not necessary, not required?

[00:05:38] Speaker 02:
No, I think it is required.

[00:05:41] Speaker 02:
That's what the strong case held.

[00:05:43] Speaker 03:
I guess the question is, did Mr. Lesch obtain some commercial benefit from what he did?

[00:05:53] Speaker 03:
And the government's argument is that he trespassed on

[00:05:59] Speaker 03:
Forest Service Land, took these photographs, leveraged them onto his Instagram account, increased his followers, and sold more of his apparel line, apparently.

[00:06:11] Speaker 03:
I mean, why is it, that's not a very unusual chain of services.

[00:06:16] Speaker 02:
I think that it is unusual, and to show how unusual it is, the government has failed to come up with a single case that's even remotely similar to that, and we've done a similar search and found no such case.

[00:06:29] Speaker 02:
If this were true, that you could bring that sort of criminal prosecution.

[00:06:34] Speaker 02:
For example, if Jennifer Lawrence were to decide to climb up a mountain, you can be sure that her publicist would print a picture of that.

[00:06:44] Speaker 02:
And it's part of the job of a movie star to get lots of publicity and be out there.

[00:06:49] Speaker 02:
And I am sure that the fact that she is a well-known figure means that she's more likely to get future jobs in movies.

[00:06:56] Speaker 03:
And by the same token, how about if her publicist paid her

[00:06:59] Speaker 03:
go to the top of Keystone and get a photograph.

[00:07:03] Speaker 02:
Well yes, if in fact, if she received compensation for activities on National Forest Service Land, that would be sufficient.

[00:07:14] Speaker 02:
And in this case, there is no such evidence.

[00:07:17] Speaker 02:
The evidence here is that he was not paid.

[00:07:20] Speaker 02:
He made no effort to sell his photographs.

[00:07:23] Speaker 02:
Instead, he printed them for free on his Instagram account.

[00:07:26] Speaker 02:
He has hundreds of thousands of followers on his Instagram account, and maintaining that requires putting lots of

[00:07:32] Speaker 02:
of interesting pictures up on his account, and the result of being a famous individual is he gets given discounts on ski gears, and so yes, he knows it's to his long-term advantage, but to say that there's any direct causal relationship between his activities here and increase in sales in any of his multiple companies is simply not in the record.

[00:08:01] Speaker 03:
What's the line that you're asking us to draw?

[00:08:03] Speaker 03:
Is it consideration, not consideration, or vagueness?

[00:08:10] Speaker 03:
What's the legal rule that you're asking us to adopt?

[00:08:13] Speaker 02:
We're asking that the regulation be interpreted as it was and strong, saying that consideration is required.

[00:08:20] Speaker 02:
If the government is correct that somehow we should be repudiating that standard and saying that any sort of

[00:08:30] Speaker 02:
of potential profit that could be derived, then yes, we would say there would be a serious void for vagueness problem because it would be impossible for a reasonable person to determine what activity is permitted and what is not.

[00:08:42] Speaker 01:
I thought that your argument had to do with the government's inability to satisfy the primary purpose component of commercial activity.

[00:08:53] Speaker 01:
Is that not your argument?

[00:08:56] Speaker 02:
That certainly is part of it.

[00:08:59] Speaker 01:
There's a definition in the regulations that says commercial user activity is an entry or participation fee is charged or where the primary purpose is the sale of a good or service

[00:09:11] Speaker 01:
regardless of whether it's intended to be.

[00:09:14] Speaker 01:
I just want to make sure I understand your argument.

[00:09:16] Speaker 01:
I thought that's where we were in that component.

[00:09:19] Speaker 01:
We were evaluating that question.

[00:09:23] Speaker 02:
And the difficulty, of course, with that is that primary purpose is in the eyes of the beholder.

[00:09:27] Speaker 02:
It wasn't even held by the magistrate.

[00:09:29] Speaker 02:
He made no finding whatsoever that it was the primary purpose.

[00:09:32] Speaker 02:
And instead, what courts have done is to say in determining whether it's the primary purpose, we're going to see was there some sort of money or other consideration.

[00:09:41] Speaker 02:
That's what Strong held, that's what Bartels held, and that is a understandable standard that would allow a reasonable person to figure out

[00:09:53] Speaker 02:
what he did or didn't do is prohibited by section 261.1.

[00:09:58] Speaker 01:
I'm not sure I follow because how that understanding of primary purpose helps you because there was evidence in this case that profits increased over the photo.

[00:10:07] Speaker 02:
No, there is not.

[00:10:08] Speaker 02:
The only evidence about profits increasing was the statement he made that another photo that was photoshopped that was not taken on

[00:10:17] Speaker 02:
National Forest Service lands, but which in fact he initially was charged criminally for until the government had to admit it made a mistake.

[00:10:25] Speaker 01:
So the keystone photo, no profits.

[00:10:27] Speaker 02:
There is no evidence of that whatsoever.

[00:10:30] Speaker 02:
And the idea that one particular Instagram posting out of the thousands that Mr. Lesch makes would make a significant difference.

[00:10:40] Speaker 03:
The more hate he got, the larger his customer base.

[00:10:45] Speaker 03:
So even though it's one, it's part of his business model.

[00:10:50] Speaker 03:
Why doesn't attracting attention or controversy increase the sales potential?

[00:10:57] Speaker 03:
What's wrong with that?

[00:10:58] Speaker 02:
Well, just the Jennifer Lawrence's publicity when she climbs a mountain and takes a picture, that certainly increases her ability to get films made, but that sort of highly attenuated causal relationship.

[00:11:10] Speaker 03:
But you just told me that if her publicist paid her to do it, that that would be

[00:11:14] Speaker 03:
satisfied the regulator?

[00:11:16] Speaker 02:
Oh, sure.

[00:11:17] Speaker 02:
If she received compensation, that would be a form of consideration.

[00:11:22] Speaker 02:
But the evidence here is that there was no consideration.

[00:11:25] Speaker 02:
And furthermore, this brings me to my next arguments.

[00:11:29] Speaker 02:
And the reason why my organization got involved in this case, it raises serious First Amendment problems to say that activities which clearly would not have been chargeable, if all he had ever done

[00:11:40] Speaker 02:
was to snowmobile and to take pictures of it.

[00:11:43] Speaker 02:
That by itself, nobody would argue is commercial.

[00:11:46] Speaker 02:
What makes it arguably commercial is that he later posted the pictures for free on his Instagram account.

[00:11:53] Speaker 02:
If what you're saying is that that speech is what makes it a crime, we contend that that's a serious First Amendment problem because the result is that the action that he is being charged with

[00:12:08] Speaker 01:
is his speech and it is content-based.

[00:12:18] Speaker 01:
apparel account?

[00:12:19] Speaker 02:
Well, that certainly would make the causal relationship closer.

[00:12:22] Speaker 02:
The fact that it wasn't on his business account, the fact that he wasn't wearing any sort of vertical apparel or doing anything to directly suggest that, you know, watch me ski and by the way, please buy my apparel, it just shows how remote the causal relationship is in this case.

[00:12:42] Speaker 02:
Before I leave and ask for two minutes of rebuttal, let me mention that we think there is a serious Sixth Amendment problem here.

[00:12:52] Speaker 02:
Obviously, the Supreme Court has ruled on that issue.

[00:12:54] Speaker 02:
You are bound by that decision, but I would ask that you look very carefully at the materials that we have cited.

[00:13:00] Speaker 02:
and to potentially, in your opinion, to suggest that while you are bound by the Supreme Court's decision in Lewis, that you issue some sort of dubitante opinion that indicates your skepticism about that ruling.

[00:13:17] Speaker 02:
I'd like to reserve the remainder of my time.

[00:13:19] Speaker 03:
Thank you.

[00:13:35] Speaker 00:
May it please the court, I'm Kyle Brenton for the United States.

[00:13:40] Speaker 00:
David Lesch told the New Yorker that posting photographs of himself on his personal Instagram account, doing provocative things on National Forest System lands, allowed him to solidify his customer base and reach a whole new audience, and that after posting the second such photo, his sales went up 30%.

[00:13:59] Speaker 00:
Now to stage the first of those photos, he jumped his snowmobile off a feature in the Keystone Terrain Park

[00:14:05] Speaker 00:
which was closed to snowmobiles and the entire resort was closed for COVID.

[00:14:09] Speaker 00:
Now this evidence was sufficient to convict Mr. Lesch on both of these counts.

[00:14:15] Speaker 00:
Turning first to count one, Your Honor, I think we have very significant waiver issues as I think the court's questions have made clear.

[00:14:25] Speaker 00:
I think that Mr. Lesch has made a couple of specific arguments about the map that the magistrate judge took judicial notice of, and I think Judge Rochman's questions go directly to this.

[00:14:36] Speaker 00:
I really see two arguments that he's making on appeal.

[00:14:40] Speaker 00:
One is a sufficiency of the evidence argument about the lack of a date on the map.

[00:14:46] Speaker 00:
And he's saying, well, regardless of whether it was proper to take notice of the map or not, the map doesn't have a date, so it doesn't tell us

[00:14:54] Speaker 00:
that it had been posted when he performed these actions.

[00:14:59] Speaker 00:
So it's insufficient.

[00:15:00] Speaker 00:
The other argument is the judicial notice argument.

[00:15:03] Speaker 00:
whether it was appropriate.

[00:15:04] Speaker 01:
Before you go on, it seems there's a predicate argument that he made in front of Judge Gallagher, which is there was no map at all presented by the government.

[00:15:12] Speaker 00:
That's absolutely correct, Your Honor.

[00:15:13] Speaker 01:
So before we even get to the date, the reason, if I understand correctly, the reason that there was insufficient evidence on that element was because you presented evidence of trespass, not evidence in support of what the regulation would ordinarily require you to prove that element.

[00:15:28] Speaker 00:
Certainly, Your Honor.

[00:15:29] Speaker 00:
And he certainly, there's no question from the outset, he argued a map is a required element of this offense.

[00:15:36] Speaker 00:
And we don't contend otherwise.

[00:15:39] Speaker 00:
But the argument that he is making on appeal is different.

[00:15:41] Speaker 00:
Both of the arguments he's making on appeal are different.

[00:15:45] Speaker 00:
These arguments are both specifically about the map that the magistrate judge took judicial notice of.

[00:15:52] Speaker 00:
Now, in his briefing to the district court, that map was utterly ignored.

[00:15:57] Speaker 00:
There is not one mention of that map in his opening brief to the district court.

[00:16:01] Speaker 01:
Well, there was a mention of it by Judge Domenico, wasn't there?

[00:16:04] Speaker 01:
Judge Domenico concluded that Judge Gallagher properly took judicial notice of the map.

[00:16:08] Speaker 00:
Yes, Your Honor, and those four words, properly took judicial notice, are the sum total of Judge Domenico's discussion of this issue.

[00:16:18] Speaker 00:
It's a description of what the magistrate judge did.

[00:16:21] Speaker 00:
It's not an analysis of the question of the propriety of taking judicial notice.

[00:16:26] Speaker 01:
Doesn't it suggest that the district court understood the argument and resolved it?

[00:16:29] Speaker 00:
No, absolutely not.

[00:16:31] Speaker 00:
In that brief discussion of the arguments on count one,

[00:16:38] Speaker 00:
There's no discussion in Judge Domenico's order about, for example, you know, is this a fact capable of ready determination?

[00:16:45] Speaker 00:
Is it appropriate to take, you know, does the map have to be dated?

[00:16:49] Speaker 00:
None of the issues that he's asking this court to rule based on, on the sufficiency point or the judicial notice points were made to Judge Domenico and, you know, four words from the district court

[00:17:01] Speaker 00:
simply recounting what the magistrate judge did is not sufficient to save a party from their own waiver of an issue that was clearly there to be made.

[00:17:11] Speaker 00:
I mean, the magistrate judge took judicial notice of the map in the conviction order.

[00:17:16] Speaker 00:
The district court appeal completely ignored us.

[00:17:18] Speaker 01:
So you're saying that the argument made in the district court in front of Judge Gallagher was evidence insufficient, no map.

[00:17:26] Speaker 01:
And that is the only argument we have that's preserved on appeal.

[00:17:30] Speaker 01:
Is that your position?

[00:17:31] Speaker 01:
That now we're evaluating the argument as, well, the objection was there was no map.

[00:17:37] Speaker 01:
Now there is a map.

[00:17:38] Speaker 00:
That's correct, Your Honor.

[00:17:39] Speaker 00:
I mean, the argument preserved before the magistrate judge was a map is required.

[00:17:44] Speaker 01:
Do you think there's any problem with a trial court after trial satisfying the government's burden of proof for it?

[00:17:53] Speaker 00:
Well, first, Your Honor, I don't agree with Mr. Lesch that

[00:17:58] Speaker 00:
providing the posted map was an element of this offense.

[00:18:01] Speaker 00:
So I disagree with the predicate of that question.

[00:18:05] Speaker 00:
I think to the extent that is an issue, I think that that would be an issue that the defendant would need to bring to the court's attention.

[00:18:11] Speaker 00:
And he certainly has cited no case that it is inappropriate for a court to take judicial notice on an element that the prosecution has the burden of proof on.

[00:18:21] Speaker 00:
It's not in the briefs, obviously, but there is a line of case law, and I'll point the court to United States versus Williams, which is 442 Federal Third, 1259, which is a case about the nature of a prior state conviction, in which the court said, you know, sometimes we can do that with things like legislative facts, things like status facts, that sometimes that's okay.

[00:18:41] Speaker 00:
But again, I think that's Leche's burden.

[00:18:44] Speaker 00:
Yeah, the key is sometimes, Your Honor, but I think that if he wanted to argue that that was reversible error, it was his burden to do so.

[00:18:51] Speaker 00:
So I think that largely deals with the map.

[00:18:56] Speaker 00:
To the extent the court, certainly judicial notice is not preserved, to the extent the court wants to talk about sufficiency and date, I think we're on a sufficiency standard, which is could any rational trier of fact have reached the conclusion that the magistrate judge did?

[00:19:10] Speaker 00:
And here, the magistrate judge looked at an official government map that was available online as of October of 2021.

[00:19:19] Speaker 00:
The question then is it irrational to infer that that same map was available in April of 2020 when the regulation requiring the designation and the map to be posted was promulgated in 2015 when the testimony at trial was that the terrain park was not designed for snowmobiles to be operated in and where, as Judge Timkovich pointed out,

[00:19:46] Speaker 00:
ample notice that there's actual notice to the defendant that this area was closed to snowmobiles.

[00:19:51] Speaker 00:
So we would submit that it is a reasonable inference or at least not an irrational inference for the court to assume that that map, to infer that that map was also posted in April of 2020.

[00:20:05] Speaker 00:
So let's, I'll turn to count two, which is the conviction for conducting work activity

[00:20:10] Speaker 00:
Now, we've had a lot of discussion about what the appropriate standard is, and we submit that the standard is from this court's decision in Brown.

[00:20:18] Speaker 00:
It's the only published 10th Circuit decision addressing this issue.

[00:20:22] Speaker 00:
And what the court said in Brown is that it is activity conducted, commercial activity, which is to say, activity motivated by the prospect of commercial gain.

[00:20:35] Speaker 00:
Now, we have some discussion of the strong case from the 9th Circuit.

[00:20:39] Speaker 00:
Now, obviously the Brown Court did.

[00:20:41] Speaker 01:
Before you move on to strong.

[00:20:42] Speaker 01:
Absolutely.

[00:20:43] Speaker 01:
What is the government's position on what our definition of commercial activity is?

[00:20:47] Speaker 01:
Doesn't it come from the regulation?

[00:20:49] Speaker 01:
The four service regulations define commercial user activity.

[00:20:54] Speaker 00:
Your Honor, section 261.2 defines commercial user activity.

[00:21:00] Speaker 00:
Yes, that is correct.

[00:21:02] Speaker 00:
The violation here, though, was under 261.10C, which is not

[00:21:07] Speaker 00:
I don't think that the term in 261.10c is commercial user activity.

[00:21:13] Speaker 00:
It's not.

[00:21:14] Speaker 00:
It is any kind of work activity or service.

[00:21:18] Speaker 00:
I think that the definition of commercial user activity in 261.2 is instructive.

[00:21:24] Speaker 00:
I think particularly the portion at the end about whether it's intended to earn a profit is instructive in the work activity analysis, but I don't think that it is exhaustive.

[00:21:36] Speaker 00:
It is not defining the term work activity.

[00:21:38] Speaker 03:
So work activity or service would be broader than the commercial definition in 261.2?

[00:21:43] Speaker 00:
Yes, I think it absolutely can be broader than that, Your Honor.

[00:21:46] Speaker 03:
Well, it's pretty broad.

[00:21:48] Speaker 03:
If you believe in slippery slopes, I guess a bad pun with the ski area, but there's a lot of slipperiness here to this prosecution.

[00:21:57] Speaker 03:
And the hypotheticals are almost endless about what the government thinks a crime would be on forest service land.

[00:22:08] Speaker 03:
And, you know, Jennifer Lawrence was one example, an influencer goes to the top of the ski lift and gets a photo with the brand

[00:22:19] Speaker 03:
of clothing.

[00:22:20] Speaker 03:
Is that a crime?

[00:22:21] Speaker 03:
Did John Fielder commit a crime every time he took photographs on our national parks and forest lands?

[00:22:30] Speaker 03:
The Patagonia CEO with Patagonia gear at the resort.

[00:22:36] Speaker 03:
I mean, are all those potentially criminal acts?

[00:22:39] Speaker 00:
Well, no, Your Honor.

[00:22:42] Speaker 00:
Good, good.

[00:22:43] Speaker 03:
Tell me why.

[00:22:44] Speaker 00:
Well, I think because the evidence here between the activity performed on the land and Mr. Lesch's commercial motivation, the evidence that showed his commercial motivation was much stronger than any of these hypotheticals, and in fact, much more direct.

[00:23:02] Speaker 00:
So once both the magistrate judge and the district court recognized that these three photographs, the Keystone photo in April of 2020,

[00:23:13] Speaker 00:
The Hanging Lake photo in June of 2020 and the Maroon Lake photo in October of 2020.

[00:23:21] Speaker 03:
The examples I gave are no less powerful on the potential commercial benefit or gain.

[00:23:31] Speaker 03:
I think John Fielder would be committing the crime because he's making millions of dollars selling these photographs.

[00:23:41] Speaker 03:
Well, Your Honor, I think

[00:23:42] Speaker 03:
First of all, I think that there's- In fact, it's more direct than Mr. Lesh's situation.

[00:23:48] Speaker 00:
I think that there is a significant difference between just the photography example.

[00:23:53] Speaker 00:
There are obviously separate regulations addressing still photography.

[00:23:58] Speaker 00:
This case, though, involves the use of these lands to drive attention to his brand.

[00:24:07] Speaker 03:
That's even more nebulous than putting an easel out and painting

[00:24:13] Speaker 03:
the landscape.

[00:24:15] Speaker 03:
I mean, those seem pretty direct to me.

[00:24:17] Speaker 03:
And I guess you're saying there's other regulations that might cover it, but it seems like this regulation makes those activities criminal.

[00:24:24] Speaker 00:
Well, Your Honor, I think we're also engaging in a pretty significant assumption that John Fielder never got a special use permit.

[00:24:30] Speaker 03:
I'll spot you that, but I don't think that, you know, you can imagine another hypothetical that's somebody less famous or has less of an entourage than

[00:24:41] Speaker 03:
than John Fielder?

[00:24:42] Speaker 00:
Well, but I think that that is a significant difference, though, Your Honor, because these regulations don't prohibit conducting these activities.

[00:24:51] Speaker 00:
They don't prohibit doing those things.

[00:24:52] Speaker 00:
They prohibit doing those things without getting a permit.

[00:24:55] Speaker 00:
And if an individual, a professional photographer, even one significantly less well-known than John Fielder,

[00:25:03] Speaker 00:
wants to go on forest system lands and take photographs to sell for profit, all they have to do is get a special use permit.

[00:25:09] Speaker 03:
Okay, well, it's a notice question then.

[00:25:11] Speaker 03:
And, you know, my Patagonia CEO, Jennifer Lawrence, does the reasonable person know that a Instagram photo on forest service land is a crime?

[00:25:23] Speaker 00:
I don't think an Instagram photo on forest service land is a crime, Your Honor.

[00:25:26] Speaker 00:
I think that that significantly overstates the issue here.

[00:25:29] Speaker 03:
If it's linked somehow to a

[00:25:31] Speaker 00:
work activity or service.

[00:25:34] Speaker 00:
But I think that the work activity or service evidence here is just significantly stronger than any sort of attenuated, the more followers I get the better I do in my career.

[00:25:44] Speaker 01:
Can you be really specific about what your definition is?

[00:25:46] Speaker 01:
Because if it's not, Brown tells us the key is whether the sale or offer of sale of merchandise or the work activity or service is a commercial activity.

[00:25:56] Speaker 01:
Yes.

[00:25:56] Speaker 01:
And then we have the definition in 261.2, but you're saying the government isn't relying on that definition.

[00:26:02] Speaker 01:
That definition is narrower.

[00:26:04] Speaker 01:
So what is the working definition for commercial activity for purposes of the regulation at review here?

[00:26:10] Speaker 00:
Absolutely, Your Honor.

[00:26:11] Speaker 00:
It's what Brown says a little further down in that paragraph, which is activity that is motivated by the prospect of commercial gain.

[00:26:18] Speaker 00:
That is, and obviously the definition of commercial use in 261.2 is relevant, but I think that work activity is broader than commercial use.

[00:26:30] Speaker 00:
And the definition that we would propose the court adopt, or that the court did adopt, frankly, in Brown, is conduct that is motivated by the prospect of commercial gain.

[00:26:40] Speaker 01:
And so what precisely here is the evidence that goes to that?

[00:26:43] Speaker 01:
definition.

[00:26:44] Speaker 00:
The evidence is what he told the New Yorker, what I said at the very beginning of my presentation.

[00:26:47] Speaker 01:
He also told the New Yorker, well, I mean, the New Yorker said he also said, you know, he wanted to poke the bear, which is just as being provocative.

[00:26:55] Speaker 01:
It's not necessarily selling stuff.

[00:26:56] Speaker 00:
But those two things, Your Honor, are inextricably intertwined for Mr. Lesch.

[00:27:01] Speaker 00:
What he said was, when I posted this, when I get a mystery meter in a parade, pardon me, when I get a mystery meter in a terrain park, everybody goes crazy, and I get so much more attention

[00:27:13] Speaker 00:
He says, the more hate I got, the more people got behind me.

[00:27:17] Speaker 00:
It was an opportunity to reach a whole new group of people while really solidifying the customer base we already had.

[00:27:24] Speaker 00:
So he himself has tied together provocation, poking the bear, as you say, your honor, with his own commercial success.

[00:27:33] Speaker 00:
And then he says that after posting the second photo, the Hanging Lake photo, his annual sales went up 30%.

[00:27:40] Speaker 01:
Is that photo, the Hanging Lake photo, fair game for evaluating his conviction?

[00:27:44] Speaker 00:
It's absolutely fair game for evaluating his conviction on count two, because as the magistrate judge and the district court understood, it was taken into account as evidence of his motivation.

[00:27:56] Speaker 00:
And this is not one photo.

[00:27:59] Speaker 00:
This is a series of three photos that both the magistrate judge and the district court recognized as part of a campaign, a campaign to gain attention and sales.

[00:28:09] Speaker 03:
Would the conviction have been improper if the evidence showed no increase in his Instagram followers?

[00:28:16] Speaker 00:
No, absolutely not, Your Honor.

[00:28:18] Speaker 00:
It's a question of his motivation.

[00:28:20] Speaker 00:
What is his motivation?

[00:28:22] Speaker 00:
when he conducted the activity on the land.

[00:28:24] Speaker 00:
So even if he didn't post on Instagram, he committed a crime?

[00:28:29] Speaker 00:
If there is evidence showing his commercial motivation, then yes, because the Instagram post is not the crime.

[00:28:37] Speaker 00:
The crime was breaking into the area.

[00:28:41] Speaker 00:
operating the snowmobile, and taking pictures of it.

[00:28:43] Speaker 00:
The Instagram post shows his motivation.

[00:28:45] Speaker 01:
The motivation is relevant to what type of post it was.

[00:28:49] Speaker 01:
If he had posted from his business account, how are we supposed to think about the fact that this was on his personal Instagram?

[00:28:57] Speaker 00:
Well, I think that the evidence shows that all three of these photos in this campaign were on his personal Instagram.

[00:29:02] Speaker 00:
I think that if you read the New Yorker article, all these things are intimately tied together.

[00:29:10] Speaker 00:
and that he is driving business to his, or driving customer and attention to his business through his personal Instagram.

[00:29:19] Speaker 00:
I don't think it's relevant.

[00:29:20] Speaker 00:
I don't think it makes any sort of dispositive difference that this was on his personal Instagram versus his company account.

[00:29:26] Speaker 00:
Influencers beware.

[00:29:29] Speaker 00:
Influencers who are attempting to use National Forest System lands to drive attention to their companies and not getting a permit for it should be where you're at.

[00:29:39] Speaker 00:
get a permit.

[00:29:40] Speaker 00:
Exactly.

[00:29:41] Speaker 00:
We ask the court to affirm.

[00:29:43] Speaker 00:
Thank you.

[00:29:51] Speaker 02:
Your honor, it's irreparable if the government submitted insufficient evidence of trial on count one and now the

[00:30:02] Speaker 02:
government is trying to argue that well maybe the statute didn't really require a map and I ask you to read the language of 261.14 which says that the prohibition on snowmobiling only kicks in after the map has been posted.

[00:30:15] Speaker 02:
I think that is absolutely clear.

[00:30:19] Speaker 02:
I would like to read what we said from the district court brief and I think it makes it very clear that we did raise the issue of the adequacy of the evidence.

[00:30:28] Speaker 02:
Quote, the government entirely fails to prove an element of the offense.

[00:30:32] Speaker 02:
According to 261.14, the public must be informed of designations via over snow vehicle use map available at the headquarters and on the web.

[00:30:44] Speaker 02:
Here, the government submitted no evidence that the designation had been publicized in any form.

[00:30:50] Speaker 02:
So, regardless of whether or not it took issue with the judicial notice, which we don't take issue with today, we just take issue with the adequacy of that evidence.

[00:31:01] Speaker 02:
If you read that material, which is on

[00:31:05] Speaker 02:
page 91 of the joint appendix, it makes it absolutely clear we raised the issue.

[00:31:09] Speaker 01:
It seems you contended that there was no evidence.

[00:31:12] Speaker 01:
And then the absence of evidence and the adequacy of evidence seemed to me like different things.

[00:31:17] Speaker 01:
It seems like to Judge Gallagher, you were arguing there is no map, so government can't satisfy the element.

[00:31:25] Speaker 01:
And then later, you were arguing something else.

[00:31:29] Speaker 02:
No, we've always argued that there was not adequate evidence and the judicial notice failed to provide that adequate evidence.

[00:31:37] Speaker 02:
It was not evidence at all that the map had been posted two years before this map was located.

[00:31:44] Speaker 02:
And I just, again, finally on the case of Brown, I agree Brown is controlling in this circuit.

[00:31:50] Speaker 02:
Brown cites to the controlling standard of Strong.

[00:31:53] Speaker 02:
Strong says that the way we decide what is commercial activity is, was their consideration.

[00:31:59] Speaker 02:
That is the controlling precedent in this circuit, and there absolutely was no consideration.

[00:32:07] Speaker 02:
Thank you very much.

[00:32:09] Speaker 03:
Thank you, counsel.

[00:32:10] Speaker 03:
Counselor excused, and the case is submitted.

[00:32:12] Speaker 03:
Appreciate your arguments this morning.

[00:32:14] Speaker ?:
Thank you.