Oregon v. Belay
In Winter 2006–2007, people around the country learned about one of Oregon’s most scenic and deadly sites—Mount Hood—due to two nationally reported climbing accidents. Mount Hood is one of the most climbed mountains in the United States, but for all of the foot traffic it receives, it is still a dangerous trek. Indeed, the last count suggests that over thirty-five climbers have perished on Mount Hood in the past two and a half decades. 1 In December of 2006, three experienced out-of-state climbers lost their lives while trying to summit the peak during heavy snowstorms with winds over 100 mph. After several days of rescue attempts and a clearing of the weather, rescuers from the National Guard found one body in snow cave, but the whereabouts of the other two climbers remain unknown. Two short months later another rescue was necessary. Three climbers and their dog were separated from their climbing group when they tried to descend in near white-out conditions from above 7,000 feet. There were many differences in these two scenarios, including the route selected and the weather conditions; however, the second group had a locator beacon with them, and that assisted the rescuers.
After these two high-profile events, the Governor convened a task force to discuss public policy options open to the state. Given the popularity of Mount Hood for mountaineering, more expensive rescue missions2—and deaths would be inevitable. The task force submitted a report to the Governor, and its recommendation was subsequently introduced as a bill in the Oregon House of Representatives. The legislation, dubbed the Mountaineering Accountability and Safety Act (MASA), would require all climbers on any Oregon peak topping 10,000 feet to utilize personal locator beacons. If climbers did not already own an approved safety device, they could rent one. Locator beacons could be turned on in the event of an accident and rescue workers could use the coordinates (GPS) from the beacon to locate the missing and injured climbers. While personal locator beacons can be costly, the proponents of the bill noted that the cost is quite small in comparison to the loss of life, the costs of mountaineering equipment in general, and in the cost of the rescue efforts that place stress on limited local law enforcement budgets.
MASA passed with overwhelming support in both houses of the Oregon legislature. “The Governor signed the bill into law in an outdoor ceremony near Trillium Lake with Mount Hood standing grandly in the background. “This law”, stated the governor, “offers a simple solution to a simple problem. We here in Oregon are providing the ultimate safety precaution for our citizens and visitors who choose to climb, and our citizens tasked with rescuing lost climbers.” The penalty for breaking this new law was a $500 fine and liability for any rescue efforts, regardless of success.
Mount Hood is located within the Mount Hood National Forest—an area containing over a million acres of forest, river, high lakes, and mountain ranges. There are 189,200 acres of designated wilderness within this large acreage and the largest portion is the Mt. Hood Wilderness. This wilderness area includes the mountain’s peak and upper slopes. The U.S. Forest Service, housed within the Department of Agriculture, manages the Wilderness area, in addition to 190 million acres of federal land throughout the United States. The Forest Service designates which areas are open to activity and it limits the types of activity allowed (climbing, hiking, motorized vehicles [ATVs or snow mobiles], fishing etc). The Forest Service issues permits and passes for individuals or groups using the Wilderness. For anyone who wishes to climb the mountain, the Forest Service requires a wilderness permit, and limits the size of the group to twelve; climbers are supposed to sign in and out with the Rangers. The Service also makes several recommendations on its Mount Hood website, including designating someone to call 911 if a climber or hiker does not return as scheduled—and renting a locator beacon. 3
The act became law in December 2008. Bob and Betty Belay had planned a trip to Oregon to climb Mount Hood in January of 2009. Their adventure climb would be documented for their upcoming Discovery Channel series “Living on the Edge—Climbing through the Elements.” The series would follow their adventures as they climbed some of the toughest peaks in the United States. The Belays were known for climbing without guides; they traveled lightly, braving the potential dangers with only their knowledge of survival and elite climbing skills. Carrying a locator beacon would violate the premise of the show and the ethos of the Belays’ climbing style. If they could not climb Mount Hood without a beacon, they would lose the time and money they had put into planning the episode and the payment from the Discovery Channel for completing it. Frustrated, Bob asked, with reporters around, “How can the state of Oregon require you to carry a beacon on Mount Hood?” The Belays then signed up for their wilderness permit to climb the next day, but also let it be known that they refused to carry a beacon. The sheriff of Hood River County met the Belays at the base of Mount Hood the next morning and issued them a citation. By the time this process was completed, the Belays had missed their opportunity to climb Mount Hood safely. 4
The Belays then challenged the law by suing for damages. Damages included the money that the Belays had spent to plan the climb and travel to Oregon and the lost revenue from the series. In total, they sued for the $5,000 already spent in preparation for the climb, for the $10,000 salary lost when the episode was cancelled, and the $10,000 in advertising revenue that the Discovery Channel lost by not airing the Mount Hood episode. 5 The Belays argued that MASA went beyond the scope of the state’s powers. The federal government owns the land and regulates the land. The state has no business placing additional restrictions on the use of the lands in question. Therefore the fine and the law are unconstitutional. The state of Oregon rebutted the challenge by noting that this is an area of concurrent powers; the state is in charge of all rescue missions—not the federal government—and therefore the state has the ability to set limits or provide for the safety of the climbers within its borders. The powers of the state under the Tenth Amendment are active and the state has an important interest.
The Circuit Court of Multnomah County agreed with the state and sustained the fine, noting that that “MASA is a safety regulation and Oregon has an important interest in securing the safety of both citizens and visitors to the mountain.” The Belays appealed to the Oregon intermediate appellate court; this court reversed the lower court ruling, noting that in addition to the federalism issue there are serious Commerce Clause concerns presented here. If states are able to set different standards for the use of federal lands, then travel and tourism on federal lands will be affected. The Attorney General of Oregon issued a statement after the defeat, “This is about more than mountaineering safety. This case is about states’ rights and the limiting of our police powers. This case gets to heart of state power to regulate based upon their police powers. Also at issue are the mounting costs of rescue efforts on federal lands that are draining state coffers. The lower courts misinterpreted the dividing line between federal and state power in this area and that state sovereignty demands respect. The states must be allowed to regulate under its police powers for both citizens’ and visitors’ safety. There is no federalism issue or a Commerce Clause problem.”
The state appealed to the Oregon Supreme Court; this court did not take up the case. Oregon then appealed to the United States Supreme Court. The Supreme Court granted certiorari. In addition to the briefs of the petitioner and respondent, the Supreme Court received several amicus curiae briefs. The states of California, Washington, Colorado, and Maine supported Oregon. The Hood River, Government Camp, Bend, and Portland Oregon Chambers of Commerce filed a brief in support of the Belays, as did the Yosemite Climbing Association, the Mazamas, and the Southern Sierra Climbers Association.
- NLRB v. Jones & Laughlin Steel (1937) (in text)
- Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission (1983) (in text)
- Pennsylvania v. Nelson (1956) (in text)
- Garcia v. SAMTA (1985) (in text)
- U.S. v. Lopez (1995) (in text)
- United States v. Morrison (2000) (in archive)
- Crosby v. National Foreign Trade Council (2000) (in text)
- Board of Trustees of the University of Alabama v. Garrett (2001) (in archive)
- Solid Waste Agency of Northern Cook County v. United States Corps of Engineers (2001) (in archive)
- FMC v. SCSPA (2002)
1. These numbers do not include the injured nor do they account for the injury or death of rescuers. For example, in 2002 a rescue attempt by the military went horribly wrong and a helicopter crashed, resulting in injuries to several crewmembers and the destruction of an expensive military vehicle.
2. Total costs for rescue missions are hard to compile since the missions often combine efforts of the local sheriff’s department, volunteers, and the local National Guard, who often classifies their participation as training. Cost estimates for the average rescue mission range from between $2,000 and $8,000 per day. Climbers or their surviving families are not billed or charged for these rescue operations.
3. While Mount Hood is the highest peak in Oregon topping out at over 11,000 feet, the Three Sisters (South, Middle, and North), Mount Jefferson, and Hodge Crest also top 10,000 feet. Mount Jefferson is in the Mount Jefferson Wilderness; the Three Sisters and Hodge Crest are in the Three Sisters Wilderness. All five of these peaks are located in the Willamette National Forest.
4. This was the third attempt for the Belays; foul weather had prevented one attempt and an injury scrubbed another attempts. This climb was the last opportunity for the Belays to complete their climb in time for production and payment.
5. Oregon law and precedent allow suits for these types of damages.