Trespassing or freedom of speech?
New Civil Liberties Alliance represents controversial social media influencer
In April 2020, a former pro skier notorious for committing online antics in natural places, allegedly snowmobiled onto Keystone Resort to jump his machine in the terrain park. He posted photos on his personal Instagram account with the caption: “Solid park sesh, no lift ticket needed. #f***vailresorts.” Not only was Keystone Resort closed to visitors at the height of the COVID-19 pandemic, motorized vehicles weren’t allowed on Forest Service lands without a permit. Keystone is operated by Vail Resorts.
The face, hidden behind a snowmobiling helmet, belonged to Denver resident David Lesh. This was not his first outlandish and illegal activity. During his skiing career, Lesh created an outdoor apparel company called Virtika. He had made a name for himself performing outdoor stunts, and allegedly defying laws protecting natural resources to gain viewers, thus potential buyers, to his apparel brand.
This January, a federal judge sentenced Lesh to six months’ probation, 160 hours of community service and a $10,000 fine for the Keystone incident. Lesh had been convicted of two petty charges: trespassing to illegally operate a snowmobile and illegally using national forest land for financial gain to promote his company, since he had publicly stated that Virtika sales had increased due to publicity. Lesh is appealing the case, United States v. David Lesh, with the New Civil Liberties Alliance representing him.
The alliance is a Washington, D.C., based nonpartisan, nonprofit civil liberties group formed to “protect constitutional freedoms from the Administrative state.” On June 2, the alliance released a video entitled “U.S. Forest Service Says It’s a Federal Crime to Post a Photo of Yourself on Public Land.” The video is available on their website, NCLALegal.org, and YouTube.
In the video, the alliance argues that “Congress has unlawfully divested itself of the power to write criminal laws related to the management of national forest lands. The agency has also failed to take into consideration Mr. Lesh’s First Amendment right to post a photo to his Instagram account.”
“I never in a million years thought that I would be charged with 12 federal crimes for posting content to my Instagram,” Lesh states in the video. “If this sets a precedent that anyone who owns any company can’t post a picture of themselves in a national park or national forest … it’s really a dangerous and slippery slope.”
Representatives from the alliance think the precedent being set is personal.
“It’s our impression the government is doing this because he’s considered a nuisance or provocateur,” said Jenin Younes, New Civil Liberties Alliance litigation counsel and Lesh’s attorney. “This is selective prosecution against David. … This is unlawful for a couple of reasons. First of all, because Congress should be making the laws, and so an agency having the authority to enact regulations that end up with someone having a criminal prosecution, particularly one for which they could be facing jail time … violates our separation of powers.”
The alliance argues that since Lesh’s face is covered by his helmet in the Keystone Instagram post, there is no proof he is the actual offender.
The alliance is also contesting Lesh’s charge of profiting from use of national forest land.
“Congress only gave the U.S. Forest Service authority to enact regulations to prevent physical trespass of the land. The law in question had nothing to do with someone incidentally profiting because he was charged with a federal offense,” said Younes. “Yet, a federal magistrate found him guilty of …conducting unauthorized work or sale on federal lands.”
Lesh is not a Colorado native, but moved here 17 years ago to pursue a career in skiing. Lesh’s parents raised him in India, worlds away from Colorado’s vast wildlands and groomed, exclusive resorts. Lesh’s thirst for outdoors sports led him to the Rocky Mountains. In the alliance’s video, Lesh states, “I think Colorado is a great place for me. It’s in the mountains; there’s a lot of active outdoorsy things to do.”
Many Colorado residents, environmentalists, and lovers of nature would disagree the state is a “great place” for Lesh, believing that his activities are detrimental to fragile natural resources and that he flouts rules in place to protect those resources.
Lesh has stirred the ire of the public, yet also gained the respect of rebellious fans, with several activities previously posted to social media. In July 2020, Lesh and another snowmobiler rode into designated wilderness area at Independence Pass, Colorado, disturbing the fragile tundra by kicking up grass where there was no snow. Then, when his Keystone case was ongoing, Lesh made two more inflammatory Instagram posts in Colorado settings. In June 2020, he posted a photo of himself standing on a log in Hanging Lake. The picturesque lake with its bright blue water is protected by the Forest Service because human contact can disrupt its fragile biome. Then in October, Lesh posted a photo of himself defecating in the lake at Maroon Bells, another iconic spot in the towering Rocky Mountains.
Both photos led to investigations. Lesh then turned the tables. He posted an Instagram video of himself digitally creating the Hanging Lake and Maroon Bells images through photoshop, to show how quickly the investigation had taken off without physical proof. He captioned the video: “not everything on the internet and news is real.”
During his trial, he claimed he had never been to Hanging Lake or Maroon Bells, having faked the photos. U.S. Magistrate Judge Gordon Gallagher stated that, regardless of the photos’ authenticity, Lesh’s behavior showed disregard for the judicial system and laws protecting nature.
In turn, Lesh has argued that his mostly-photoshopped activities appearing to harm nature pale in comparison to damage caused by megacorporations feigning care for the environment to gain customers. There is a term for this: “greenwashing,” or the false impression of offering environmentally-friendly products or services.
“These multimillion-dollar ski areas like Vail desecrate the wilderness more than one snowmobile can. They chop down trees, use water and electricity to make snow, and build lodges, lifts, and parking lots,” Lesh stated in a 2021 interview with The New Yorker. “Here I am — or supposedly me — with one misdemeanor, in a terrain park, and everyone goes nuts. It’s absolutely ridiculous.”
Regardless of the results of the appeal, it is unlikely Lesh will go quietly into the night. Lesh’s livelihood is based in the open spaces and wilderness of Colorado, whether they are backcountry trails or terrain parks.
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