U.S. v. Armstrong, 99-1190

• Decision Date: 12 May 1999
• Docket Number: 99-1191,No. 99-1190,99-1190
• Citation: 186 F.3d 1055
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. HAROLD M. ARMSTRONG, ALSO KNOWN AS "BO," APPELLANT. State of Minnesota; Amicus on Behalf of Appellant, Voyageurs Region National Park Association; The Wilderness Society; The National Parks and Conservation Association. Amici on Behalf of Appellee. UNITED STATES OF AMERICA, APPELLEE, v. CARL E. BROWN, APPELLANT. State of Minnesota; Amicus on Behalf of Appellant, Voyageurs Region National Park Association; The Wilderness Society; The National Parks and Conservation Association. Amici on Behalf of Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1055

186 F.3d 1055 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. HAROLD M. ARMSTRONG, ALSO KNOWN AS "BO," APPELLANT.

State of Minnesota; Amicus on Behalf of Appellant,

Voyageurs Region National Park Association; The Wilderness Society; The National Parks and Conservation Association. Amici on Behalf of Appellee.

UNITED STATES OF AMERICA, APPELLEE, v. CARL E. BROWN, APPELLANT.

State of Minnesota; Amicus on Behalf of Appellant,

Voyageurs Region National Park Association; The Wilderness Society; The National Parks and Conservation Association. Amici on Behalf of Appellee.

No. 99-1190, 99-1191

U.S. Court of Appeals, Eighth Circuit

Submitted: May 12, 1999

Filed: July 28, 1999

Rehearing and Rehearing En Banc

Denied in No. 99-1191 Sept. 10, 1999.

Appeals from the United States District Court for the District of Minnesota.

William P. Pendley, Denver, CO, argued, for Appellant Carl E. Brown.

Charles H. LeDuc, International Falls, MN, argued, for Appellant Harold M. Armstrong.

William A. Szotkowski, Asst. Atty. Gen., St. Paul, MN, for Amicus State of Minnesota.

Clifford B. Wardlaw, Asst. U.S. Atty., Minneapolis, MN, argued, for Appellee.

Elizabeth H. Schmiesing, Minneapolis, MN, for Amici National Parks & Wilderness Society.

Before McMILLIAN, Heaney, and Fagg, Circuit Judges.

Heaney, Circuit Judge.

Carl Brown and Harold "Bo" Armstrong were convicted in the United States District Court for the District of Minnesota for violating a National Park Service (NPS) regulation that prohibits conducting business operations on Rainy Lake in Voyageurs National Park (VNP) without a permit. We affirm their convictions and the sentences imposed, except that the sentence imposed on Carl Brown must be modified on remand with respect to that portion of his sentence that prohibits him from entering VNP for any purpose.

I. Background

The VNP concept dates back to 1891 when the Minnesota Legislature requested that the President of the United States establish a national park in Minnesota between Crane Lake on the east and Lake of the Woods on the west. See 1891 Minn. General Laws 402-03. Progress was slow, with no significant action occurring on the request until 1960 when the state asked the NPS to study the possibility of establishing a national park within the same area. See S. Rep. No. 91-1513 (1970), reprinted in 1970 U.S.C.C.A.N. 5965, 5966-67. In 1964, the area was recommended for national park designation by the NPS. See id. In 1968, Representative John A. Blatnik introduced enabling legislation to establish VNP in the House of Representatives. The bill died that year but was revived in 1969. See Voyageurs Is First Water-Based Park, Duluth News-Tribune, Jan. 24, 1971.

The establishment of VNP was authorized by the Voyageurs National Park bill (" the bill") and made contingent upon the donation by Minnesota to the Secretary of the Interior of some 25,000 acres of state-owned land lying within the boundaries of the 219,000 acre park (comprised of 139,000 acres of land and 80,000 acres of water). See S. Rep. No. 91-1513 (1970), reprinted in 1970 U.S.C.C.A.N. 5965, 5965, 5967. The bill was passed by the House on October 5, 1970, by the Senate with minor changes on December 21, 1970, and received final approval by Congress on December 29, 1970, when the House approved the Senate's changes. See 116 Cong. Rec. 34,798, 34,806, 43,248, 43,773 (1970). Congressman John A. Blatnik of Chisholm, Minnesota, who first introduced the bill in Congress in 1968, was the principal author of the legislation in the House of Representatives and Walter F. Mondale was the principal author in the Senate. The legislation was signed into law as Public Law 91-661 by President Richard M. Nixon on January 8, 1971. See Nixon Signs Voyageurs Park Bill, Duluth News-Tribune, Jan. 9, 1971.

As an active participant in the creation of VNP, the state of Minnesota passed the necessary land donation legislation required to meet the conditions set forth in Public Law 91-661 and otherwise encouraged the development of the park. See Minn. Stat. §§ 84B. 01-. 10 (1971). That legislation, which donated all state lands within the boundaries of the proposed VNP to the United States for the purpose of creating the park, passed the Minnesota House of Representatives on May 12, 1971, with a 108-26 vote, and the Minnesota Senate on May 16, 1971, on a 49-16 vote. See Einer Karlstrand, Senate Approves Amended Voyageurs National Park Bill, Duluth News-Tribune, May 16, 1971, at 1. On June 4, 1971, Governor Wendell Anderson signed the legislation into state law. See Einar Karlstrand, Voyageurs Bill Signed By Governor, Duluth Herald, June 4, 1971. VNP was officially established by the Secretary of the Interior on April 8, 1975. See 40 Fed. Reg. 15,921-22 (1975).

VNP lies along the international boundary between the United States and Canada, just east of International Falls, Minnesota. See S. Rep. No. 91-1513 (1970), reprinted in 1970 U.S.C. C. A. N. 5965, 5965. The water portion of VNP is dominated by four large lakes, Rainy, Kabetogama, Namakin, and Crane. See Map, Appendix 1. Those four lakes, along with hundreds of smaller lakes, were gouged out of the landscape by the great ice sheets that shaped this entire region thousands of years ago. Taken together, these lakes and the network of connecting waterways make this region a unique and beautiful setting for a national park. See S. Rep. No. 91-1513 (1970), reprinted in 1970 U.S.C. C. A. N. 5965, 5965. The northern boundary of VNP bisects Rainy Lake and also constitutes the border between the United States and Canada. Most of the dry-land surface of VNP is located on, or near, the Kabetogama Peninsula (103,850 acres), with a remaining portion (35,280 acres) lying within the then-bounded Superior National Forest. See id.

The federal legislation creating VNP memorialized the voyageurs who traversed the land and waters along Minnesota's border with Canada:

"The purpose of this subchapter is to preserve, for the inspiration and enjoyment of present and future generations, the outstanding scenery, geological conditions, and waterway system which constituted a part of the historic route of the Voyageurs who contributed significantly to the opening of the Northwestern United States."

16 U.S.C. § 160 (emphasis added).¹

Since at least December 29, 1966 some four and one-half years before the state's donation of the land required by Public Law 91-661 an NPS regulation governing business operations with national parks has been in effect:

"Engaging in or soliciting any business in park areas, except in accordance with the provisions of a permit, contract, or other written agreement with the United States, except as such may be specifically authorized under special regulations applicable to a park area, is prohibited.

36 C.F.R. § 5.3 (1998); see 31 Fed. Reg. 16,660, 16,661 (1966) (same).

As of August 10, 1996, the Secretary had given only one permit for the operation of a tour boat (a business operation) on Rainy Lake Basin. Brown applied for a tour boat permit and was denied the same by the NSP. Armstrong did not make a similar application. Both were arrested on Rainy Lake on August 10, 1996 for operating a tour boat within VNP without a permit. After a trial before a United States Magistrate on December 10-11, 1997, a judgment finding Brown and Armstrong guilty of operating a business on VNP waters without a permit was entered on April 17, 1998. The defendants appealed their convictions to the United States District Court for the District of Minnesota and that court affirmed by written order on January 5, 1999.

Brown was sentenced to 60 days incarceration and a $5,000 fine. The incarceration and the fine were stayed on the condition that Brown not violate any of the terms of his unsupervised probation. One of the terms of Brown's probation barred his presence in VNP except pursuant to an NPS permit for conducting business operations. Armstrong was sentenced to 30 days incarceration and fined $300. His incarceration was also stayed for one year during which time he was placed on unsupervised probation.

Brown contended in the district court and contends on appeal that the Secretary lacked authority to regulate commercial operations on Rainy Lake and that therefore his conviction must be set aside. He also contends that his sentence represented cruel and unusual punishment under the Eighth Amendment. The district court held that his conviction was valid as the NPS has jurisdiction over waters within the boundaries of VNP based on Minnesota's implied cession of jurisdiction over these waters. The court further decided that the NPS citation of Brown was a proper exercise of its jurisdiction under the property and commerce clauses of the United States Constitution. Finally, the court ruled that the regulations respecting permits violated neither the Webster-Ashburton Treaty of 1842 nor the Root-Bryce Treaty of 1909.

Armstrong, a Canadian citizen, challenged his conviction contending, as did Brown, that the NPS did not have authority to regulate commercial operations in international waters within VNP, and that, in any event, the regulations violated the Webster-Ashburton Treaty of 1842 and the Root-Bryce Treaty of 1909. His arguments were also rejected by the district court. Armstrong renews those arguments on appeal.

II. Minnesota's Cession of Jurisdiction to the NPS

In United States v. Brown, 552 F.2d 817, 819 (8th Cir.) (Brown I), cert. denied, 431 U.S. 949 (1977), we decided the United States has jurisdiction to enforce regulations controlling activities on waters within the boundaries of VNP. We reasoned that the state of Minnesota had ceded jurisdiction of the waters within VNP to the United States, and noted that the state "was an active participant in the creation of the Voyageur's National Park," passing enabling legislation and otherwise encouraging the development of VNP. See id. at 821. We called...