U.S. v. Strong

• Decision Date: 08 December 1995
• Docket Number: No. 95-30113,95-30113
• Citation: 79 F.3d 925
• Parties: 96 Cal. Daily Op. Serv. 2012, 96 Daily Journal D.A.R. 3387 UNITED STATES of America, Plaintiff-Appellee, v. Jerry STRONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 925

79 F.3d 925

96 Cal. Daily Op. Serv. 2012, 96 Daily Journal

D.A.R. 3387

UNITED STATES of America, Plaintiff-Appellee, v. Jerry STRONG, Defendant-Appellant.

No. 95-30113.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 8, 1995. ^*

Decided March 26, 1996.

Gregory A. Jackson, Jackson & Rice, Helena, Montana, for defendant-appellant.

Kris A. McLean, Assistant United States Attorney, Helena, Montana, for plaintiff-appellee.

Appeal from the United States District Court For the District of Montana; Charles C. Lovell, District Judge, Presiding.

Before D.W. NELSON, JOHN T. NOONAN, Jr., Circuit Judges, and TANNER, District Judge. ^**

D.W. NELSON, Circuit Judge:

Jerry Strong appeals his conviction for violating 36 C.F.R. § 261.10(c), which prohibits commercial activity on National Forest lands without special use authorization. He contends that there was insufficient evidence to support this conviction. We agree, and we therefore reverse.

I. FACTS AND PROCEEDINGS BELOW

Strong is a licensed outfitter and holder of a United States Forest Use Permit. In January, 1992, Strong contracted with three hunters from Virginia, Blevins, Poe and Snavely (the "Virginians"), to outfit and guide them on a hunt which was to take place in the Bob Marshall Wilderness during two weeks in September, 1992. Strong made the arrangements with Blevins, who was a long-time friend. Because Montana law required the Virginians to make a deposit to be eligible for special hunting licenses available to out-of-state hunters sponsored by a Montana-licensed outfitter, Strong accepted Blevins' offer of a horse in lieu of cash. On February 8, 1992, Blevins signed a bill of sale to Strong for the horse, and Strong eventually took delivery in the spring of 1993. Around mid-March, 1992, Strong procured the licenses from the Montana Department of Fish, Wildlife and Parks ("MDFWP"); the licenses were "out of state big game combination" licenses which indicated that the hunters were "outfitter-sponsored."

While at the time of this booking the Virginians intended their guided hunt to be in the Bob Marshall Wilderness, scheduling conflicts required them to abandon this plan. The Virginians rescheduled their outfitted/guided hunt to take place on the Missouri River Breaks ("MRB") for only one week during the second week of the general hunting season. They decided, however, to come to Montana a week before their scheduled hunt on the MRB to hunt on their own. Blevins thus asked Strong if he would assist them by indicating where he personally hunted and fished, and Strong agreed to do so. Strong and the Virginians finalized their plans in June, 1992.

The Virginians arrived in Montana around October 20, 1992. They brought their own vehicle, equipment, and enough supplies to last them through the first week. Strong took them sight-seeing, drove them to places in the Helena National Forest ("HNF") where they might find game, reviewed maps with them, helped them obtain permission to cross private land to gain access to public land, allowed them to hunt on property which he leased, and introduced them to his friends.

The Virginians hunted on their own that week while Strong was otherwise occupied. While hunting in the HNF, they encountered an MDFWP employee. When the Virginians mentioned Strong's name, the MDFWP employee asked whether Strong was their outfitter. The Virginians answered in the affirmative. As a result, the MDFWP employee contacted the Montana game warden to report illegal outfitting because no outfitting was permitted in the area where the Virginians were hunting. The game warden then contacted an officer with the United States Forest Service ("USFS") because the Virginians had been on national forest lands.

After this incident, one of Strong's friends took Blevins flying to locate elk. Strong went along, advising Blevins of potential hunting areas, but fuel costs were paid by the Virginians. Later, Blevins was successful in killing an elk. When he went to Strong's house to tell his friend of the success, Strong's wife invited the Virginians to stay for dinner.

Unbeknownst to them, Strong and the Virginians were under surveillance that night by the game warden and the USFS official. After dinner, these officials followed the Virginians back to their campsite and confronted them regarding possible illegal outfitting by Strong. The Virginians told the officials that they were hunting on their own and were not paying Strong to outfit or guide them that week. They further maintained that Strong was outfitting them for a hunt the following week, but mistakenly told the officials that they had not paid Strong a deposit. The game warden and the USFS officer subsequently confronted Strong and accused him of illegal outfitting/guiding, which Strong denied.

Strong then left with the Virginians for the planned outfitted hunt on the MRB. All three hunters paid Strong for this hunt at his customary rate pursuant to their contract. After this hunt, the Virginians hunted a few more days on their own before returning east.

In March, 1993, Strong was charged with violating 36 C.F.R. § 261.10(c), which prohibits the "[s]elling or offering for sale any merchandise or conducting any kind of work activity or service unless authorized by Federal law, regulation, or special-use authorization" in the National Forest System. Strong pled not guilty. Trial was held before the United States magistrate, and the court found Strong guilty of illegal guiding. On November 17, 1993, Strong was sentenced to one year of probation and fined $1,000. The district court affirmed the judgment and sentence.

II. STANDARD OF REVIEW

The standard of review when challenging the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Moreover, this court must assume that the district court resolved all evidentiary conflicts in favor of the judgment. United States v. Alzate-Restreppo, 890 F.2d 1061, 1064 (9th Cir.1989).

III. DISCUSSION

The magistrate concluded that to find Strong guilty of violating 36 C.F.R. § 261.10(c), the government must prove both of the following elements beyond a reasonable doubt: 1) that Strong conducted some kind of work activity or service on National Forest lands, and 2) that Strong was not authorized by federal law, regulation or special use authorization to conduct that activity. The government attempted to prove that Strong provided commercial outfitting/guiding services to the Virginians for the first week of the hunting season, beginning October 25, 1992, in the HNF. ¹

The magistrate found that certain sections in the USFS Special Uses Handbook governed this case. Specifically, he relied on definitions provided in USFS Special Uses Handbook 2709.11 Section 41.53, which states in part, "[e]xamples of outfitting/guiding services which require a special use authorization include packing [and] hunting." He also relied on Subsection 41.53c, which defines guiding as "[p]roviding, for pecuniary remuneration or other gain, services ... or otherwise assisting individuals or groups in their pursuit of a natural resource based outdoor activity." ² Accordingly, the magistrate held that the government would have to show that Strong engaged in an activity covered by 36 C.F.R. § 261.10(c) "for pecuniary remuneration or other gain," i.e., for consideration.

We agree that 36 C.F.R. § 261.10(c) prohibits the specified activities only when they are engaged in for consideration. Like the magistrate, we base this conclusion in part on the aforementioned provisions of the USFS Handbook. We give deference to the specific policy determinations of an administrative agency unless they are arbitrary, capricious or manifestly contrary to statute. ABF Freight System, Inc. v. N.L.R.B., --- U.S. ----, ----, 114 S.Ct. 835, 839, 127 L.Ed.2d 152 (1994). Moreover, we "must give substantial deference to an agency's interpretation of its own regulations." Thomas Jefferson Univ. v. Shalala, --- U.S. ----, ----, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994). This standard does not afford us the liberty of choosing which among several interpretations best serves the regulatory purpose. Id. Thus, Section 261.10(c) must be construed consistently with the USFS Handbook, and we therefore conclude that it reaches only those activities performed for consideration.

USFS Special Uses Handbook 2079.11 Section 41.53b ³ also supports our conclusion that 36 C.F.R. § 261.10(c) does not target noncommercial or gratuitous activities. The policy statement of Section 41.53b...