When mountain runner Michelino Sunseri climbed and descended Grand Teton in record time last September, he posted information about his route on social media. According to the National Park Service (NPS) and the Justice Department, Sunseri thereby implicated himself in a federal misdemeanor punishable by up to six months in jail.
Although the NPS later reconsidered its recommendation that Sunseri should be prosecuted for his seemingly inadvertent use of an unapproved trail, the U.S. Attorney’s Office in Wyoming tried Sunseri anyway. Two members of the House Judiciary Committee recently decried that baffling decision, saying it “appears to be a prime example of the problem of overcriminalization”—a problem that President Donald Trump is avowedly keen to address.
Sunseri’s bench trial concluded on May 21, and U.S. Magistrate Judge Stephanie Hambrick has not announced her verdict yet. But Reps. Harriet Hageman (R–Wyo.) and Andy Biggs (R–Ariz.) want to know why federal prosecutors decided to pursue the case, especially in light of Trump’s May 9 executive order urging restraint in deploying criminal penalties for regulatory violations.
That order expressed concern about “technical and unintentional regulatory violations that may expose individuals to criminal penalties for conduct they did not know was prohibited,” Hageman and Biggs noted last week in a letter to Stephanie Sprecher, the acting U.S. attorney for Wyoming. “President Trump instructed all federal prosecutors to prioritize civil and administrative remedies over criminal enforcement where conduct was unintentional, non-harmful, or gained no advantage.”
The fact that Sunseri advertised his route strongly suggests he did not realize he was breaking the law. And as WyoFile noted after Sunseri’s trial, the path that the NPS said he should not have taken, known as “the old climber’s trail,” is “a historic trail so well-used that it’s become a skinny singletrack.”
In fact, Cato Institute legal fellow Mike Fox notes, “record holders before Sunseri had used the same trail, and tour guides who charge hefty sums frequently lead hikers up the same route. Only two tiny and ambiguous signs inform the public that the trail is off-limits.”
One of those signs, at the top of the trail, said “shortcutting causes erosion.” The other sign, at the bottom of the trail, said “closed for regrowth.”
Ed Bushnell, one of Sunseri’s attorneys, argued that his client was not “shortcutting,” since he was using a long-established trail. Bushnell added that it was unclear whether the “closed” notice referred to the area around the sign or the trail beyond it.
“There is no clear prohibition there,” Bushnell said. “This is not conspicuous signage.”
After Sunseri was cited for using a prohibited trail, Hageman and Biggs say, he “took responsibility for his actions, expressed regret, and volunteered to help officially close the alternate path, which receives regular foot traffic.” The U.S. Attorney’s Office filed criminal charges anyway.
The government’s subsequent plea-deal offers were onerous given the nature of Sunseri’s violation. In a May 19 email, Frank Lands, deputy director for operations at the NPS, described one of those proposals, which entailed a fine combined with a five-year ban from Grand Teton National Park, as “overcriminalization based on the gravity of the offense.”
The NPS “is withdrawing its criminal prosecution referral,” Lands wrote. But that did not faze federal prosecutors.
Hageman and Biggs want to know why. They asked Sprecher for “all documents and communications” regarding that decision, “the amount of taxpayer funding and department resources” devoted to Sunseri’s prosecution, cases that the U.S. Attorney’s Office has declined to prosecute since bringing charges against Sunseri, and any other steps the office has taken to comply with Trump’s order.
Sunseri’s case illustrates the traps set by a code of federal regulations so vast and obscure that even experts can only guess at the number of criminal penalties it authorizes—at least 300,000, they think. While tackling that thicket of prohibitions is a daunting task, the least federal prosecutors can do in the meantime is exercise some common-sense discretion.
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