Closure Violation & Consequences

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Closure Violation & Consequences

Postby GroundquestMSA » Apr 5, 2012 10:46 am

Have there been many examples of fines or prosecution for violaters of cave closures? Specifically of ungated caves on publically or governmentally owned land?

It seems that the real feelings on the WNS issue of those responsible for closure would be reflected in the way they enforce closures. I know that total enforcement is far from possible. However, closures are ignored constantly and blatantly, and I have heard little news of fining. It would be very easy to nab scores of violaters and lay down the law, thus providing a real deterrent. Are those closing caves content to make a public pronouncement and then let people do whatever they want? If so, aren't they clearly admitting that they too view humans as a slight or non-threat?
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Re: Closure Violation & Consequences

Postby PYoungbaer » Apr 5, 2012 1:31 pm

I am aware of a group in Washington or Oregon that violated a cave closure order. My understanding is that they were lectured to, but not fined.

Just last week, the NSS(through its Preserve manager) banned two cavers from one of its NY preserves for one year for violating the winter closure. The lead caver in this instance is well known, well aware of the closure order, and decided to go in anyway and brag about it. The cave is protecting surviving bats.
Last edited by PYoungbaer on Apr 5, 2012 3:10 pm, edited 1 time in total.
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Re: Closure Violation & Consequences

Postby hewhocaves » Apr 5, 2012 2:18 pm

Interesting argument -

Peter, is there legal precedence for challenging a law that is completely unenforced? That is, is an agency which prohibits an act then legally obligated to enforce the act that it is prohibiting? And if it only enforces it selectively - say only when a grotto announces a trip to closed cave X - is the agency prosecutable for discrimination or profiling or et cetera?

Note - I am not condoning any act of trespass or violation. This is strictly a whimsical thought experiment.

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Re: Closure Violation & Consequences

Postby PYoungbaer » Apr 5, 2012 3:47 pm

John,

I'm not an attorney, nor did I stay at a Holiday Inn Express last night, so I won't even venture a guess. I have seen contract language that says that lack of enforcement of a provision on occasion doesn't negate that provision. Prosecution, such as criminal fine and jail time, is generally at the discretion of the prosecutor. However, a pattern of selective enforcement, such as might be motivated by race, disability, gender, etc, might be a cause for action. But, for a law that's "completely" unenforced? Who knows?
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Re: Closure Violation & Consequences

Postby BrianC » Apr 5, 2012 3:51 pm

A $6,000.00 fine for persons is the consequence for this action. The legal issue here is, Does the State, Fed, local jurisdiction have a legal defense? All closures are due to hypothetical science, not reality. It would appear that no agency wants to fight a loosing battle against someone with good intentions.
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Re: Closure Violation & Consequences

Postby NZcaver » Apr 5, 2012 4:10 pm

BrianC wrote:The legal issue here is, Does the State, Fed, local jurisdiction have a legal defense? All closures are due to hypothetical science, not reality. It would appear that no agency wants to fight a loosing battle against someone with good intentions.

I would say that a person who knows a cave is closed but decides to enter on a recreational trip anyway - especially during hibernation time - would not be considered as having 'good intentions.'

Playing Devil's Advocate for a moment, I suspect a person's legal defense is more likely to succeed or fail based on their own motives and the circumstances of the incident, rather than by trying to challenge the science (or lack thereof) behind the closure orders overall. But I'm no lawyer either, nor did I stay at a Holiday Inn Express last night.
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Re: Closure Violation & Consequences

Postby BrianC » Apr 5, 2012 5:00 pm

NZcaver wrote:
BrianC wrote:The legal issue here is, Does the State, Fed, local jurisdiction have a legal defense? All closures are due to hypothetical science, not reality. It would appear that no agency wants to fight a loosing battle against someone with good intentions.

I would say that a person who knows a cave is closed but decides to enter on a recreational trip anyway - especially during hibernation time - would not be considered as having 'good intentions.'

Playing Devil's Advocate for a moment, I suspect a person's legal defense is more likely to succeed or fail based on their own motives and the circumstances of the incident, rather than by trying to challenge the science (or lack thereof) behind the closure orders overall. But I'm no lawyer either, nor did I stay at a Holiday Inn Express last night.


Exactly the point , a challenge of the science would make some reluctant to try a case.
Years ago an old road had been closed by the new owner of the property. The road had been established for 100 years and had been traveled on and off the entire time. The beauty of the area is enchanting for family outings. My family and friends had been escorted off the road by an officer after he had been called by the new owner. I did everything short of committing another crime, to have the officer arrest me. He would not fall for it and we did leave only because I didn't want the potential conscience issues on me, because the property had become a drug hangout and the locals were becoming uneasy with many of the people congregating there.
I HAD considered trespassing a closed cave (obviously a non bat cave) only after alerting the media of the trespass before and during the trip, just to cement the reason for the occupancy. It would be a legal battle that would have had a reasonable outcome if it had happened near the start of the closings, but probably would have no good outcome now.
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Re: Closure Violation & Consequences

Postby Indymonkey » Apr 5, 2012 8:45 pm

If it falls under trespassing, in Indiana you would first have to be told by a police officer not to come back. Then if you did or did not leave you would be charged with trespass.
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Re: Closure Violation & Consequences

Postby GroundquestMSA » Apr 5, 2012 9:09 pm

I fully understand the letter of the law. And I've had three incidents with local police involving tresspassing.
My question deals more with the message sent by those who choose not to enforce their own rules.
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