Independence Pass snowmobiler faces trial on second alleged rogue incident
Attorneys spar over First Amendment violation or ‘pattern of conduct’ in case around Keystone terrain park
Self-styled bad boy David Lesh’s penchant for publicity came back to bite him Thursday in a trial over his alleged abuse of rules in the White River National Forest.
Lesh went to trial in U.S. District Court in Grand Junction on charges of suspicion of illegal use of a snowmobile at a terrain park at Keystone ski area in April 2020 and using national forest to sell merchandise without a proper permit. Both are petty offenses.
U.S. Magistrate Judge Gordon Gallagher denied a request by Lesh’s attorney to dismiss the charges after the prosecution presented its case. Gallagher said a combination of social media posts, an article in The New Yorker and a video podcast where Lesh gave a “ratification” of the New Yorker article provided sufficient reason to proceed with the trial.
The case is a bench trial by the judge. A defendant in a petty offense case in the federal court system is not entitled to a jury trial.
Assistant U.S. Attorney Peter Hautzinger and Lesh attorney Eric Faddis clashed throughout Thursday over the strength of the evidence. Hautzinger tried to show that Lesh has engaged in a “pattern of conduct” that showed disregard for rules in the national forest. Hautzinger said Lesh has repeatedly posted pictures of himself undertaking or faking alleged illegal activities in the forest.
“He put us in the position where we had to pursue federal charges against him,” Hautzinger said in his closing argument after a full-day trial.
Faddis countered that a social media influencer such as Lesh shouldn’t be penalized for the pictures and words he posts. He said it constituted government overreach that raises First Amendment issues.
Faddis also suggested Lesh was targeted for actions he has taken as a provocateur.
“Part of that motivation (for the charges) is they just don’t like him,” Faddis said of federal officials. “He’s a controversial figure.”
Lesh popped into the limelight in Aspen in July 2019 when he was spotted riding his snowmobile in an off-limits area near the Upper Lost Man trailhead on Independence Pass. Forest Service investigators tracked him down after he posted photos on social media of himself riding his sled and identifying the area as Independence Pass.
Lesh reached the federal court equivalent of a deferred judgment in the Independence Pass case. He didn’t admit guilt but paid a $500 fine and served 50 hours of community service.
Before the ink was dry on that case, Lesh made waves with an Instagram post of himself allegedly defecating in Maroon Lake outside of Aspen and perching on a log in Hanging Lake in Glenwood Canyon. Entry into the lakes is illegal.
Forest Service investigators determined the Maroon Lake photo was likely fake and the Hanging Lake photo was questionable. Charges weren’t pursued in the Maroon Lake case and were withdrawn in the Hanging Lake incident. However, the Forest Service came calling again after Lesh posted photos of a snowmobiler jumping off a snow pile in the Keystone terrain park. His post said, “Solid park sesh. No lift ticket needed.”
The entire ski area was closed at the time by order of Colo. Gov. Jared Polis because of the COVID-19 pandemic. In addition, the terrain park isn’t a designated route for snowmobiles. Signs posted by Keystone during the closure ordered people to stay off the ski area trails.
Hautzinger said Lesh’s actions add up to a “pattern of conduct.”
Faddis countered that the government had no evidence that the snowmobiler in the Keystone terrain park was Lesh. The snowmobiler in the picture is covered in clothing and gear, so everything from age to gender is concealed.
“From the photo itself, you can’t tell who the person on the snowmobile is, correct?” Faddis asked the prosecution’s key witness, U.S. Forest Service special agent Benjamin Leach.
“I can’t tell 100% that’s him,” Leach acknowledged.
Faddis called two witnesses who testified that Lesh posted pictures of them while on snowmobiling adventures elsewhere in national forests. He was trying to prove the point that Lesh’s posts weren’t necessarily of himself, so the feds were making a faulty assumption that Lesh was posting photos of himself at Keystone.
But Hautzinger relied heavily on information that Lesh supplied to other media to build the prosecution’s case. In the article in The New Yorker, Lesh embraced the bad-boy stance. He noted that after he posted the picture of him in Hanging Lake, the sales of his company, Virtika Outerwear, shot up 30%.
The article also noted that Lesh was charged with federal offenses for allegedly riding his sled in the Keystone terrain park.
In a video podcast that followed the article, Lesh was asked if he was treated fairly in the piece.
“Nothing he said was untrue or unfair,” Lesh said, “but it only captures one side of my life.”
Faddis objected to admittance of the article as evidence because he said it was hearsay that couldn’t be verified. Gallagher initially determined it couldn’t be admitted, but he reversed himself after investigating case law on media coverage.
“Upon further review, I think that ruling was wrong,” he said.
Hautzinger said Lesh follows a business model of posting photos of himself doing “crazy things” on and off the national forest as a way of drawing attention to his company. It’s part of his branding effort, the prosecutor suggested.
Companies or individuals who use the national forest for commercial gain are supposed to obtain a special-use permit and, in some cases, a commercial photography or video permit is required.
Faddis said the government failed to provide evidence that shows Lesh ever refers to Virtika in the social media posts. Therefore, he said, his client cannot be found guilty of failing to get proper authorization.
Lesh declined to testify at the trial. Both sides presented their cases in full Thursday. Gallagher said he would rule in the case within the next few weeks.
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