Ortiz v. United States
| Decision Date | 15 November 2022 |
| Docket Number | PO 21-0021 JB |
| Parties | CARLOS ORTIZ, Appellant, v. UNITED STATES OF AMERICA, Appellee. |
| Court | U.S. District Court — District of New Mexico |
Alexander M. M. Uballez United States Attorney Rumaldo R Armijo Louis C. Mattei Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Appellee
Billy R. Blackburn Billy Blackburn Law Office Albuquerque, New Mexico and Kevin Garden The Garden Law Firm, P.C. Alexandria Virginia Attorneys for the Appellant
THIS MATTER comes before the Court on the Defendant's Notice of Appeal, filed December 24, 2021 (Doc. 35), in which Appellant Carlos Ortiz appeals the Judgment in a Criminal Case, filed December 13, 2021 (Doc 34)(“Judgment”). The Court held a hearing on March 10, 2022. See Clerk's Minutes at 1, filed March 10, 2022 (Doc. 47)(“Appeal Hearing Minutes”). The primary issues are: (i) whether the Honorable Kirtan Khalsa, United States Magistrate Judge for the United States District Court for the District of New Mexico, contradicted the prior ruling of the Honorable Jerry H. Ritter, United States Magistrate Judge for the United States District Court for the District of New Mexico regarding the crime's elements, thus denying Ortiz due process of law; and (ii) whether Magistrate Judge Khalsa's ultimate ruling was clear error because, even if the United States charged Ortiz for packing out the bighorn sheep through the Carson National Forest after the hunt, the evidence shows clearly that the Defendant was authorized to conduct such activities. See Appellant's Brief at 3, filed February 4, 2022 (Doc. 41)(“Ortiz' Brief'). The Court concludes that: (i) Magistrate Judge Khalsa adhered to Magistrate Judge Ritter's prior ruling, and thus did not violate Ortiz' due process rights; and (ii) Magistrate Judge Khalsa's conclusion that Ortiz was unauthorized to conduct commercial activity on the Carson Forest is not clearly erroneous. Accordingly, the Court will affirm Magistrate Judge Khalsa's ruling.
In August, 2017, the United States Forest Service issued to Ortiz' outfitting company, Reaper Backcountry Outfitters, LLC, a special use permit for outfitting and guiding in the “Coyote, Cuba, Jemez, Pecos-Las Vegas, & Espanola Ranger Districts, including use in the San Pedro Parks and Pecos Wilderness areas of the Santa Fe National Forest.” Special Use Permit for Outfitting and Guiding at 10 (dated August 31, 2017), filed February 4, 2022 (Doc. 41-1)(“Special Use Permit”). The Special Use Permit requires Ortiz to submit a trip itinerary to the Santa Fe National Forest's Recreation and Lands Staff Officer that identifies specifically the game which Ortiz will be hunting, the location of any camps, and where he will be entering and exiting the Santa Fe Forest. See Special Use Permit at 10. On August 4, 2020, Ortiz submitted to the Santa Fe Forest a Hunting Guide/Trip Itinerary to guide four people on a hunt for bighorn sheep in the Santa Fe Forest from August 7, 2020, through August 11, 2020. See Hunting Guide/Trip Itinerary at 1, filed February 4, 2022 (Doc. 41-1)(“Itinerary”). See Transcript of Proceedings at 49:18-20 (taken November 30, 2021), filed February 4, 2022 (Doc. 41-3)(“November 30 Tr.”)(Olsson); id. at 202:4 (Carrell). In his Itinerary, Ortiz indicates that his party will use the “Serpent Lake Trail,”[1] that “[t]rail riders will be hunting by Jicarita Peak,”[2] that he “[plans] on five nights max if needed to camp,” and that the latitude and longitude location for the campsite is “36.04196, -105.54239.” Itinerary at 1. The Serpent Lake Trail, Jicarita Peak, and the campsite's latitude and longitude are all located in the Carson Forest. See Map of Serpent Lake Vicinity at 2 (dated March 11, 2021), filed February 4, 2022 (Doc. 41-1)(“Serpent Lake Map”). See also “Ortiz' Brief' ( )). The Itinerary also indicates that Ortiz has a signed contract with his clients and will earn a gross revenue of $3,800.00 from the trip. See Itinerary at 1.
August 7, 2020, was the first day of bighorn sheep hunting season in the Pecos Wilderness.[3]See November 30 Tr. at 49:23-50:1 (Mattei, Olsson). The New Mexico Department of Game and Fish issued only five bighorn sheep tags for Game Management Unit 45 that week.[4] Accordingly, United States Forest Service Law Enforcement Officer Terry K. Olsson and New Mexico Department of Game and Fish Sergeant Shawn Carrell planned to patrol the Pecos Wilderness on August 7, 2020, and during the week that followed. See November 30 Tr. at 49:16-22 (Olsson). After Olsson and Carrell planned the patrol, Carrell called Olsson to inform him that Ortiz had submitted a trip itinerary, and Carrell expressed “concerns with the landmarks that were listed on the trip itinerary.” November 30 Tr. at 50:10-13 (Olsson). Olsson noted that the locations on the itinerary are within in the Carson Forest. See November 30 Tr. at 58:21 (Olsson). Through further research, Olsson learned that Ortiz had a Special Use Permit to conduct guided hunts in the Santa Fe Forest, but that he did not have a permit to conduct guided hunts in the Carson Forest. See November 30 Tr. at 59:4-7 (Olsson).
On the morning of August 7, 2020, Olsson and Carrell began their patrol by traveling on horseback up Serpent Lake Trail. See November 30 Tr. at 60:5-16 (Olsson). Olsson and Carrell followed the Serpent Lake Trail, and, at around 8:00 a.m., encountered a campsite very near the GPS coordinates that Ortiz provided on his Itinerary. See November 30 Tr. 66:11-25 (Olsson). The campsite is in the Carson Forest, approximately two miles from the boundary between the Santa Fe and Carson Forests. See Serpent Lake Map at 2; November 30 Tr. at 101:21-25 (Mattei, Olsson). Olsson and Carrel continued up the Serpent Lake Trail to an overlook point where they could look down on Serpent Lake and Serpent Lake Basin.[5]See November 30 Tr. at 68:19-23 (Olsson). When they got to the overlook, between 9:00 a.m. and 10:00 a.m., Olsson and Carrell saw a small group of people processing a bighorn sheep in the basin, approximately 800 to 1,000 yards away.[6] See November 30 Tr. at 69:11-15 (Olsson); id. at 70:4-5 (Olsson); Id. at 214:11-21 (Carrell); id. at 215:5-18 (Mattei, Carrell). Carrell used binoculars and recognized one of the people in the group as Ortiz. See November 30 Tr. at 214:22-215:23 (Carrell). Serpent Lake and the surrounding basin, including the area where the group was processing the bighorn sheep, are in the Carson Forest. See November 30 Tr. at 69:9-10 (Olsson); Id. at 94:13-23 (Olsson); Serpent Lake Map at 2.
At around 11:00 a.m., Olsson and Carrell encountered Ortiz and his hunting party at the campsite the two had identified earlier that morning. See November 30 Tr. at 70:13-19 (Mattei, Olsson). The encounter with Ortiz lasted just under twenty minutes. See November 30 Tr. at 71:18-20 (Mattei, Olsson). During the encounter, Ortiz showed Olsson a digital copy of the trip itinerary that he had submitted previously, and a copy of the contract between Ortiz and his hunting party. See November 30 Tr. at 75:8-9 (Olsson); id. 78:17-23 (Mattei, Olsson). At that time, there was a harvested bighorn ram's head, including the horns and part of the cape -- the ram's shoulders and neck hide -- hanging on the back of the hunting party's horse. See November 30 Tr. at 84:2185:16 (Mattei, Olsson). Olsson and Carrell then left the campsite and, referencing landmarks and the vantage point from which they had seen Ortiz and his hunting party processing a sheep earlier that day, located the remains of a bighorn sheep. See November 30 Tr. at 90:13-91:3 (Mattei, Olsson); id. 94:17-23 (Mattei, Olsson). The remains were consistent with a freshly killed bighorn sheep. See November 30 Tr. at 94:24-95:11 (Mattei, Olsson). The remains were located in the Carson Forest. See November 30 Tr. at 94:14-16 (Mattei, Olsson). Based on his observations in the Carson Forest, mapping, and an investigation into Ortiz' permit status, Olsson issued Ortiz a citation on September 11, 2020. See November 30 Tr. at 151:20-22 (Mattei, Olsson); id. at 152:1221 (Mattei, Olsson).
On September 11, 2020, Olsson issued Ortiz a citation charging Ortiz with a violation of 36 C.F.R. § 261.10(c) for “[s]elling or offering for sale any merchandise or conducting any kind of work activity or service unless authorized by special-use-authorization.” United States District Court Violation Notice at 1, filed March 24, 2021 (Doc. 1)(“Citation”). The Citation requires Ortiz to “PAY [$530.00] OR APPEAR IN COURT.” Citation at 1 (capitalization in original). Appellee United States of America filed the United States' Opposed Motion In Limine to Determine Elements of the Offense, filed June 4, 2021 (Doc. 8)(“Elements Motion”), in which the United States requests that the Magistrate Court determine the elements of a 36 C.F.R. § 261.10(c) violation. See Elements Order at 1. Specifically, the United States proposes that the Magistrate Court adopt a strict liability standard for a § 261.10(c) violation, with the following elements: (i) “[t]he defendant was conducting any kind of commercial activity”; (ii) “[o]n lands encompassed by the regulation”; and (iii) “[w]ithout special-use authorization.” Elements Motion at 8-9.
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