As you may or may not know I'm involved in a federal case currently at the district court level. Below are two previous diaries: the first outlines things, the second was my response to the government's motion to dismiss the case. That motion was denied, and my opening brief is due by June 30. Today I'm posting the first part of the brief. If anyone has time to comment, comments are welcome. The second part which I'll be working on for the next day or two will follow.
1. http://www.dailykos.com/...
2. http://www.dailykos.com/...
Here's the first part of the brief. Nothing is set in stone, so if anyone thinks they see a flaw(s), please point it out. I'll probably tone down the attitude in regards to asking for a letter of apology from the NPS, but what do you think? Is it clear what's going on? What I argue? Any lawyers out there with any suggestions as to language and/or format are of course welcome.
A review of the transcript to this case reveals actionable offenses and violations of the oath of office by both National Park Service employees and the U.S. Attorneys involved. Critical distinctions about this case have been overlooked. I hope to make clear these issues for the court.
Since this is an unusual case, I understand the previous offenses, and if I was judge and jury I’d let most of them slide--until now. From here I’ll remind Thomas P. O’Brien, Christine C. Ewell, Sharon McCaslin, and Mark Williams that federal law regulating oath of office by government officials is divided into four parts along with an executive order which further defines the law for purposes of enforcement. 5 U.S.C. 3331, provides the text of the actual oath of office required before assuming office. 5 U.S.C. 3333 requires an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of office during their tenure of office as defined by the third part of the law, 5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for anyone employed in the United States Government to "advocate the overthrow of our constitutional form of government". The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement and/or a fine.
I imagine U.S. Attorneys O’Brien, Ewell, McCaslin, and Williams will balk if not laugh at the idea that in attempts to prosecute me in this case they’re also advocating the overthrow of our constitutional form of government, but I assert this to be the truth, so I ask them to pay close attention to all of the following.
Let’s first deal with the National Park Service, its attitude in this case, its duplicity, and its contradictions.
It’s established that I visited the Channel Islands National Park and committed the misdemeanors of memorialization and tampering. On page 16, line 5 of the trial transcript Ranger Nelson declares that the "wreck" was from an airplane that crashed on Santa Cruz Island March 2, 1949. A distinction needs to be made here: we’re not talking about a wreck, but a debris field. A wreck and debris from a wreck are not one in the same. Presumably the military removed the wreck shortly after the crash occurred, but did not bother to clean up the resultant debris.
On page 19, starting at line 13, Nelson, upon viewing the sculpture built out of debris, states he was "...taken aback by the fact that the plane crash site no longer looked as it had for years." But as established in testimony, page 82, starting at line 19, pieces of debris were blown off the field and down onto the cliffs and ravine lining its south side. The site in question was not static, but changing and deteriorating with time. "I can’t believe he ruined a whole chapter in history," Nelson recounts on page 36, line 4: in other words, what he considered a chapter in history, he was allowing to be scattered to the wind on his watch. Nelson initially charged me with disturbing a historic site even though the site did not nor could ever meet the criteria to be considered such.
On page 70, starting at line 24, Ranger Morales states: "...we get questions about that debris field all the time. People, if they do happen to see it, will ask about it. And it’s part of the history of that island. That aircraft had crashed, the pilot that lost his life. People are interested in that story in itself." Yet a review of the Santa Barbara News Press from March 5, 1949 shows the plane crash occurring on March 2, 1949 happened on the opposite end of the island. So the reality of the situation was, we had park rangers walking around the island providing the public with the information that the site was historic, dating to March of 1949, neither of which was true.
Let’s discuss the duplicity of both Nelson and Morales. On page 64, starting at line 19, I asked: "Is it possible that someone could cut themselves on any of [the pieces of debris]." The reply, line 21: "Yes."
Morales, on page 63, line 10, says: "...but these rocks here (referring to photo) also could be considered hazards. People trip." This was a disingenuous assertion, or a failure to make a critical distinction: the island is rock, so you can’t remove that, but you can remove pieces of hazardous debris.
When asked by the prosecution whether the sculpture posed more of a hazard than before it was created, both rangers replied in the affirmative--Nelson on page 47, line 5: "Absolutely," and Morales on page 74, line 18: "Yes, I do." Yet, we’re talking about pieces of aircraft-grade metals which were ripped and torn and hazardous. So how is it that sharp pieces of metal gathered into on spot, clearly visible, are more dangerous than strewn across a field, hidden in grass? It’s absolute nonsense, and the rangers should be reprimanded for asserting such at trial in a federal court.
Let’s point out the contradiction of the NPS and Department of Interior in regards to their actions after the incident occurred. The debris field was part of the history of Santa Cruz Island, a park visitor took that debris and built it into a sculpture. Whatever the opinion of the rangers, the NPS, or the Department of Interior, the acts committed were in fact a new chapter in the history of that debris. An officer for the Department of Interior, upon reaching the site, began to dismantle the sculpture, and then later the park rangers did more of the same. The NPS and the Department of Interior sought to prosecute for disturbing part of the park’s history, and then turned around and did exactly what they condemned. It doesn’t matter whether they liked the sculpture or not, it was then history. As to the assertion the sculpture was an "attractive nuisance" it posed no danger to other park visitors, as a cliff or remote lake might. It was a relatively small structure in the middle of a large, open field.
One of the goals I had sought to accomplish with this act was to point out to the NPS that they could turn debris fields of hazardous and/or unsightly materials into park resources by putting the call out to local sculptors and assigning them to gather those materials into something of value. In other words, proper management of the parks would include turning hazardous/unsightly debris into new park resources. They could establish criteria for such sculptures, and note them in their literature--including the history of how such debris came to be part of a park’s history. Out of this case I’d hope the court could recommend that to the NPS.
I was order to pay $3,194.73 to the NPS for costs incurred in the prosecution of this case. Since it was established at trial the debris was hazardous and strewn across a field, none of it marked on site, nor noted in park literature, to warn of its hazards, the rationale behind my prosecution can be construed to be nothing less than the NPS attempting to save face after their neglect and dereliction was exposed. The NPS should recognize I quite probably prevented a future injury and/or lawsuit in addition to alerting them to their oversight in cleaning the mess up, and/or to their failure to initiate steps to have the debris registered as historic (which was impossible in this case based on the criteria set by the National Historic Registry). The NPS should be instructed to consider this matter as a fortuitous act from which their stewardship can benefit in that it revealed a failure and neglect without any tragedy attached to it. No restitution should be required and I find it unfortunate the Government and the NPS would attempt to maintain the pretense that what I did was harmful, and instead not view this matter as nothing less than a blessing in disguise. I ask the court to order a letter of apology from the NPS to myself for the manner in which they handled this incident.