US v. Gillis, 95-1468M.

• Decision Date: 03 October 1995
• Docket Number: No. 95-1468M.,95-1468M.
• Citation: 899 F. Supp. 507
• Parties: UNITED STATES of America, Plaintiff, v. Michael GILLIS, Defendant.
• Court: U.S. District Court — District of Colorado

899 F. Supp. 507

UNITED STATES of America, Plaintiff, v. Michael GILLIS, Defendant.

No. 95-1468M.

United States District Court, D. Colorado.

October 3, 1995.

Larry Dean Allen, Cañon City, CO, for defendant.

Gary Begun, Special Asst. U.S. Atty., for U.S.

MEMORANDUM OPINION AND ORDER

BORCHERS, United States Magistrate Judge.

THIS MATTER came before the Court in Colorado Springs, Colorado for trial on September 15, 1995. Plaintiff was represented by Gary Begun, Special Assistant United States Attorney, and Defendant was represented by Larry Dean Allen. The Court heard the testimony of witnesses for both sides and received exhibits from the parties. The matter then was taken under advisement.

I.

Defendant is a professional outfitter and guide. His business is located in Florence, Colorado, which is in Fremont County in the south central part of the state. As an outfitter, Defendant is retained by individuals who wish to hunt wild game. Defendant apparently specializes in hunting for bear and mountain lions.

The evidence at trial indicated that Defendant has applied on a yearly basis for a special permit with the Bureau of Land Management (BLM). This special permit allows Defendant to take clients onto land administered by BLM to hunt for wildlife. On January 12, 1995, the date germane to this case, Defendant had been issued a special permit by the BLM office in Cañon City, Colorado.

The evidence presented to the Court is not in dispute. On January 12, 1995, Defendant and other individuals travelled north of Cañon City, Colorado to what is known as the "Shelf Road." This road is a former roadbed for a narrow gauge railroad that once ran to Cripple Creek and Victor, Colorado. The road is narrow and difficult to maneuver on at certain parts.

Defendant was driving in his truck and pulling a horse trailer. In the horse trailer were several horses. Some dogs also were along with the group, as the dogs were to be used for trailing mountain lions. Defendant had been hired by an individual to lead the search for a mountain lion, but Defendant was not to be paid by the client unless a mountain lion was killed.

Defendant travelled for some time and came to a fork in the road. There was a parking area next to this road, and Defendant pulled into the parking area with his truck and horse trailer. Defendant testified, and the Court so finds, that the "Shelf Road" was too narrow to allow continuation with the truck and horse trailer.

This parking area was adjacent to the "Shelf Road", which is a Fremont County maintained road. This parking area is apparently on BLM administered land, though Defendant testified that he thought he had parked on land owned by John Wilson. The testimony of Ranger Jack Hagen of the BLM indicated that the "Shelf Road" and the surrounding area are a mosaic of lands privately owned and lands administered by various governmental agencies.

After parking his truck, Defendant and the other individuals unloaded the horses and headed up the "Shelf Road" on horseback. The dogs accompanied the group. Defendant testified, and the Court so finds, that he and others hunted that day on property owned by John Wilson. Defendant testified that he has a working arrangement with Mr. Wilson concerning fees to be charged for use of the land. Defendant testified that the group hunted for mountain lion until mid-afternoon, when the hunting dogs became tired.

The group left Mr. Wilson's property and headed back down the "Shelf Road." When the group arrived at the parking area, Ranger Hagen was present. The Ranger talked with Defendant and then issued two violation notices. The charges against the Defendant were for failing to contact BLM personnel before entering government land and in not displaying a copy of the special permit when directed to do so by Ranger Hagen.

Defendant appeared before the Court for arraignment and entered a plea of not guilty. Plaintiff then consented to a trial before a Magistrate Judge, but waived his right to a jury trial. Any additional facts necessary for resolution of this case will be set forth in the next section.

II.

Defendant was charged with two violations of 43 C.F.R. § 8372.0-7(a)(2). This regulation was promulgated by the Secretary of the Interior pursuant to 43 U.S.C. § 1733. The regulation states as follows:

(a) Prohibited acts. On all public lands and related waters, it is prohibited to: (1) Fail to obtain a permit and pay any fee required by this subpart; (2) violate stipulations or conditions of a permit issued under the authority of this subpart; (3) participate knowingly in an event or use subject to the permit requirements on this subpart where no such permit has been issued; (4) fail to post a copy of any commercial or competitive permit where all participants have the opportunity to read it; and (5) fail to show a copy of the special recreation permit to a Bureau of Land Management employee or a participant upon request.

(b) Penalties. (1) Any person convicted of committing any prohibited act in this subpart, and violators of regulations or permit terms or stipulations, may be subject to a fine not to exceed $1,000 and/or imprisonment not to exceed 12 months. (2) Authorized as well as unauthorized users may be subject to civil action for unauthorized use of the public lands or related waters and their resources, or violations of the permit terms or stipulations.

Defendant applied for and secured a permit from the BLM office in Cañon City, Colorado. The permit held by Petitioner on January 12, 1995 was issued on December 19, 1994. The permit was issued by L. Mac Berta, Area Manager for BLM. The permit (Exhibit 3) reads, in part, as follows:

Under the authority of the Code of Federal Regulations subpart 8372.5 Terms: section (4)(b) Stipulations, "A special recreation permit will contain such stipulations as the authorized officer (Area Manager) considers necessary to protect the land and resources and the public interest in general."

The following stipulations as imposed by the authorized officer will be placed on your 1995 Lion/Bear Special Recreation Permit and will remain in effect throughout the duration of the permit.

1. A legible copy of the enclosed Special Recreation Application and Permit (Form 8370-1) must be in the possession of all authorized representatives of your company. Failure to meet this stipulation may result in permit cancellation.

2. Your application for a 1995 Colorado State Outfitters License should be received by the State Outfitter Registration Office by Monday, January 30, 1995. The Colorado State Outfitters Office will be contacted to ensure a renewal application has been submitted. In addition, you are required to mail this office a copy of your 1995 State Outfitters License. Failure to meet this stipulation will void your 1995 Special Recreation Permit.

3. You should contact the BLM Resources Area you are permitted to hunt/guide in before entering public lands. At this contact, the permittee or permittee's guide will indicate the specific public lands being entered, the number of clients, and the number of days for this trip.

There is no dispute that Defendant did not have a copy of the permit with him when contacted by Ranger Hagen on January 12, 1995. There is disputed evidence as to whether contact was attempted with the BLM office on January 12, 1995.

Defendant has maintained that no violation of the permit occurred, because he and his group did not hunt on BLM land on January 12, 1995. Defendant maintains further that the permit stipulations were not applicable, as he simply parked his truck and trailer and then rode by horseback up the "Shelf Road" to the John Wilson property. Plaintiff's position is that the permit stipulations were in effect and had to be followed by Defendant.

The Court has not found any published or unpublished cases dealing with 43 C.F.R. 8372.0-7(a). Neither side in this case has pointed to any applicable or analogous case law. The Court will need to examine the regulation in conjunction with cases decided concerning similar regulations promulgated by other governmental agencies.

There is little question that the United...