Lesh found guilty of illegal snowmobiling on forest lands
No date set yet for sentencing in Keystone Resort case
The Aspen Times
David Lesh’s love of media attention finally caught up with him and played a role Friday in his conviction on two federal petty offenses.
Lesh was found guilty of riding a snowmobile illegally at a terrain park at Keystone Resort on April 24, 2020, and of undertaking an unauthorized commercial venture on national forestland.
A one-day trial took place in U.S. District Court in Grand Junction on Aug. 5 before U.S. Magistrate Judge Gordon Gallagher. Lesh wasn’t entitled to a jury trial because the charges are petty offenses. Gallagher wrote in his ruling that he will sentence Lesh after it is determined if there is a dispute over restitution.
Lesh’s posting of pictures of himself undertaking or faking activities on national forest land played a role in the conviction, according to the judge’s ruling. Lesh posted two photos of himself snowmobiling at Keystone after the ski area was closed during the early days of the COVID-19 pandemic.
Lesh also posted photos of himself seemingly defecating in Maroon Lake southwest of Aspen on Oct. 21, 2020, and walking on a log on Hanging Lake in Glenwood Canyon on June 10, 2020. Lesh said the lake images were digitally altered and the government didn’t argue their authenticity. However, Assistant U.S. Attorney Peter Hautzinger, the prosecutor in the case, said those photos showed a pattern of Lesh promoting his business, a small outerwear company called Virtika, with controversial images of him on public lands. That led to the petty offense charge that Lesh was “selling or offering for sale any merchandise or conducting any kind of work activity or service without authorization upon lands administered by the United States Forest Service.”
The judge determined Lesh’s social media campaign with photos on or pretending to be on public lands constituted a commercial venture.
“The advertisement and marketing campaign with which Defendant embarked, beginning with the Keystone Resort photographs, was one that relied upon social media trolling as a way to stir up controversy and free press while using NFS lands as the location or backdrop,” Gallagher wrote.
Lesh’s interview for an extensive Jan. 11, 2021 article in The New Yorker, “Trolling the Great Outdoors,” also played into his conviction on the sale or attempted sale of merchandise. In the article, Lesh bragged about how his actions, the public backlash and the government’s efforts to prosecute him were boosting his company’s sales.
The judge wrote in his decision: “Defendant assisted the Government in proving his motive, opportunity, and intent when he stated in The New Yorker article, ‘[t]he more hate I got, the more people got behind me, from all over the world. It was an opportunity to reach a whole new group of people — while really solidifying the customer base we already had.’”
The judge also noted that Lesh said his legal troubles had boosted sales.
“Thus, the Court finds that Defendant’s activity while trespassing at the Keystone Resort was commercial in nature and that the activity was on lands encompassed by the regulation and without a special use authorization,” the ruling said.
The New Yorker article and an unrelated podcast also played into the conviction for illegal snowmobiling at Keystone. The judge wrote that the government provided persuasive evidence that no Keystone workers made the snowmobile tracks in the terrain park at the closed ski area. Resort employees found the tracks on April 25, the same day that Lesh posted two photos on his social media account that purported to be him snowmobiling at Keystone.
The author of The New Yorker article wrote that Lesh posted the photos of himself snowmobiling off jumps in the terrain park. In a podcast after the article came out, Lesh said “nothing that (the author) said was untrue or unfair.”
The judge wrote: “The question is whether Defendant manifested an adoption or belief in the truth of the statements in The New Yorker article. This Court finds that he did.”
Later in the ruling, Gallagher wrote, “With the combination of circumstantial evidence plus Defendant’s adoption or belief in the truth of the article’s statements, this Court finds beyond a reasonable doubt that Defendant possessed or operated an over-snow vehicle on NFS lands on or about April 24, 2020, that such operation or possession of an over-snow vehicle was outside of the roads, trails, and areas designated for over-snow vehicle use because the Keystone Resort was closed due to the COVID-19 pandemic and the terrain park was not a designated route, and that defendant’s conduct did not fall within any of the regulatory exemptions.”
Lesh’s attorney, Eric Faddis, attempted to show during the trial that Lesh couldn’t be identified from the photographs as the person riding the snowmobile at Keystone.
Faddis also attempted to block admittance of The New Yorker article at the trial because he said it was hearsay and couldn’t be verified.
Faddis contended at the trial that the government was going after Lesh because he is a “controversial figure.”
Lesh first popped into the limelight in Aspen in July 2019 when he was spotted riding his snowmobile in an off-limits area near the Upper Lost Man trailhead on Independence Pass. Forest Service investigators tracked him down by using photos Lesh posted of himself on social media.
Lesh reached the federal court equivalent of a deferred judgment in the Independence Pass case. He didn’t admit guilt but paid a $500 fine and served 50 hours of community service.
In the Keystone case, the judge has wide latitude in sentencing. Lesh is currently banned from entering national forestlands.
Gallagher ruled that the U.S. Attorney’s Office must file a request for restitution, if any is sought, by Nov. 15. Lesh will have 14 days to respond. If the amount is disputed, either party can request a hearing.
“The Court will later set a sentencing date after the parties have determined whether restitution is at issue,” the judge wrote.
Faddis couldn’t be reached for comment Saturday on the ruling or the possibility of an appeal. The judge wrote in the ruling that a final judgment won’t be entered until the day of sentencing. The window for appeal will start when the final judgment is entered.