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U.S. v. Lesh

CASE: U.S. v. David Lesh

STATUS: Active

NCLA ROLE: Counsel

COURTS HEARD IN: 10th Cir., D. Colo.

ORIGINAL COURT: The U.S. District Court for the District of Colorado

DECIDING COURT: U.S. Court of Appeals for the Tenth Circuit

OPENED: December 14, 2021

AGENCIES: United States


Administrative Speech Controls

The Administrative State tries to squelch speech, especially through licensing, speech bans, and speech mandates. Licensing requires one to get the government’s permission prior to speaking. Nothing was more clearly forbidden by the First Amendment than prior restraints on speech, but such controls are now commonplace.

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Accomplished skier and Virtika apparel company owner David Lesh posted two photographs on his personal Instagram account in April 2020 that depicted a snowmobiler performing a jump at Colorado’s Keystone Ski Resort. The resort on U.S. Forest Service-administered land was closed at the time due to Covid-19. Mr. Lesh’s post did not mention Virtika or promote its products. Nevertheless, a federal magistrate judge convicted him of violating one regulation prohibiting operating a snowmobile outside of a designated route and another banning unauthorized “work activity or service” on USFS lands. Mr. Lesh was sentenced to six months’ probation, 160 hours of community service, and a $10,000 fine. 

Mr. Lesh seeks to overturn the snowmobiling-outside-designated-routes conviction by showing that prosecutors failed to show that the Forest Service ever designated where snowmobiling was and was not permitted. His conviction for unauthorized work directly violates his First Amendment free speech right, and it was upheld on the tortured theory that posting the photos meant he was performing commercial activity without proper authorization. He was effectively punished for posting photos on his personal Instagram, which is protected speech. 

Both regulations Mr. Lesh was convicted of violating were promulgated under a statute that purports to grant the Secretary of Agriculture practically unfettered legislative authority, violating the Vesting Clause of Article I of the Constitution. That provision places “All legislative Powers” in Congress, so agencies like USFS can only act if Congress provides an “intelligible principle” to guide their application of the law. The statute authorizing the Secretary of Agriculture’s criminal rulemaking provides none. 

Because these regulations each carry a prison term of six months or less, Mr. Lesh never received a jury trial, violating his Sixth Amendment rights. The petty offense exception ahistorically diverges from the right to trial by jury, directly conflicting with constitutional guarantees to criminal defendants. 

David Lesh, Defendant

Kara Rollins
Litigation Counsel
Jenin Younes
Litigation Counsel

Order Affirming Convictions

March 10, 2023 | Read More

Defendant-Appellant’s Reply Brief

November 21, 2022 | Read More

Defendant-Appellant’s Opening Brief in the United States District Court District of Colorado

August 23, 2022 | Read More

Memorandum of Decision and Order

October 21, 2021 | Read More

Order Denying Defendant’s Motion to Dismiss for Violation of Nondelegation Doctrine

May 12, 2021 | Read More


U.S. Forest Service Illegitimately Created Crimes, Prosecuted Skier over Instagram Post, NCLA Says

June 9, 2023 | Read More

Influencer Appeals Conviction for Posting Instagram Pic of Allegedly Illicit Snowmobiler on USFS Land

August 23, 2022 | Read More

WATCH: U.S. Forest Service Says It’s a Federal Crime to Post a Photo Using Public Lands

June 2, 2022



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