Wyoming v. Livingston

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: McConnell
• Citation: Wyoming v. Livingston, 443 F.3d 1211 (10th Cir. 2006)
• Decision Date: 06 April 2006
• Docket Number: No. 04-8085.,No. 04-8087.,04-8085.,04-8087.
• Parties: State of WYOMING, Plaintiff-Appellant, v. Wesley O. LIVINGSTON, Defendant-Appellee. State of Wyoming, Plaintiff-Appellant, v. Michael David Jimenez, Defendant-Appellee.

443 F.3d 1211

State of WYOMING, Plaintiff-Appellant, v. Wesley O. LIVINGSTON, Defendant-Appellee.

State of Wyoming, Plaintiff-Appellant, v. Michael David Jimenez, Defendant-Appellee.

No. 04-8085.

No. 04-8087.

United States Court of Appeals, Tenth Circuit.

April 6, 2006.

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Bryan A. Skoric, Park County and Prosecuting Attorney, Cody, WY, for Plaintiff-Appellant State of Wyoming.

Michael S. Messenger, Messenger & Jurovich, P.C., Thermopolis, WY, for Defendant-Appellee Livingston.

Michael C. Johnson, Assistant United States Attorney (John W. Suthers, United States Attorney for the District of Colorado, with him on the brief), Denver, CO, for Defendant-Appellee Jimenez.

Before O'BRIEN, McCONNELL, and ANDERSON, Circuit Judges.

McCONNELL, Circuit Judge.

This case involves a seldom-litigated corner of the constitutional law of federalism known as Supremacy Clause immunity. Supremacy Clause immunity governs the extent to which states may impose civil or criminal liability on federal officials for alleged violations of state law committed in the course of their federal duties. These disputes permit of no easy answers, because while state criminal law provides an important check against abuse of power by federal officials, the supremacy of federal law precludes the use of state prosecutorial power to frustrate the legitimate and reasonable exercise of federal authority. The doctrine has played a part in some of the most dramatic clashes between states and the federal government in U.S. history, such as Mississippi's prosecution of a federal marshal for breach of the peace for using tear gas to control riots erupting over the admission of the first African American student to its state university;¹ California's prosecution of a federal marshal for killing a former justice of the state supreme court who he thought was about to assassinate Supreme Court Justice Stephen Field;² and, more recently, Idaho's prosecution of a federal agent for killing an unarmed woman (and a pet dog) in connection with the notorious raid on a cabin at Ruby Ridge.³ This case involves the highly charged issue of federal reintroduction of wolves in Wyoming. The question is whether the State may prosecute the federal agent in charge of the wolf reintroduction program and a federal contractor assisting him for alleged violations of the Wyoming laws against trespass and littering, when the defendants unknowingly entered private property in the course of tranquilizing and installing collar monitoring devices on wolves that had strayed from their proper territory.

I. Background

In 1995, decades after the native population of gray wolves disappeared from Wyoming, the United States Fish and Wildlife Service ("USFWS") embarked on a program of reintroduction of the animal to the State. Not surprisingly for a State heavily dependent on livestock for its economic well-being, the decision to reintroduce wolves met with vehement local opposition, which is well documented in the record. The USFWS recognized that the success of the reintroduction program would depend, in large measure, on its ability to control livestock predation by the reintroduced wolves. The USFWS uses radio telemetry to monitor and manage the wolves. USFWS staff capture the wolves and outfit them with radio collars, which reveal the location of wolf packs to the USFWS and enable the agency to use radio-signaled light and siren scare devices to harass the wolves away from livestock and back to their designated territory. The USFWS also provides the radio frequencies to local ranchers to alert them when wolf packs are near.

Radio collaring wolves is not an easy process. Typically, a fixed wing aircraft spots a wolf pack and ascertains whether any members of the pack lack collars. If so, the pilot directs a helicopter team to the pack. When the pack hears the helicopter, the wolves have a tendency to disperse in all directions. The helicopter pursues the wolves at low altitude to enable the gun operator to fire a tranquilizer dart at a wolf from a distance of less than twenty yards. Once struck by a dart, a wolf can still travel up to a mile before the tranquilizer takes effect. This, along with the initial dispersion, means that collaring operations can be spread over several square miles. When practicable, the helicopter will land to pick up each immobilized wolf and take it to a central place where it can be processed with other wolves; however, if landing is not possible, a team member will hike to the wolf and either carry it to the central location or process it on the spot. The tranquilized wolves require close attention. The tranquilizers prevent the wolves from effectively regulating their body temperature, so capture teams have to move the wolves into open or shady areas as conditions dictate. The wolves also have trouble closing their eyes and regulating incoming light while under effect of the drugs.

Defendant Michael David Jimenez, Appellee in No. 04-8085, has been the project leader of the USFWS Wyoming Wolf Recovery Project since 1999. His prior experience includes participation in a capture team that radio collared 47 wolves in Yellowstone Park and supervision of a team that radio collared another 28 wolves. Defendant Wesley O. Livingston, Appellee in No. 04-8087, an experienced wolf handler, was an employee of Hawkins and Powers Aviation, Inc. working with Mr. Jimenez as a federal contractor to support the wolf monitoring program.

On February 13, 2004, a fixed wing aircraft spotted the Washakie pack, a troublesome group of gray wolves, near Meeteetse, Wyoming, far outside their normal range. This Court is familiar with the Washakie pack on account of earlier litigation in which Wyoming ranching interests sought to compel the USFWS to undertake greater efforts to control the pack. See Gordon v. Norton, 322 F.3d 1213, 1215 (10th Cir.2003). The core of the Washakie pack's territory is north of Dubois, Wyoming in the Dunoir Valley. It is difficult for the USFWS to control the pack through helicopter operations in the Dunoir Valley because of rugged terrain, extensive forest cover, and frequent windy conditions. The spotting of the pack outside of its normal range presented an opportunity to collar the wolves. Mr. Jimenez sought and received authorization from his supervisor, Edward Bangs, to begin a capture operation. On February 14, 2004, Mr. Jimenez, Mr. Livingston, and a helicopter pilot began the operation.

In accordance with USFWS procedure, it was Mr. Jimenez's practice to secure permission from land owners if he thought he would need to go on private land. Of the members of the capture team, Mr. Jimenez was least familiar with the Meeteetse area. Before the helicopter flight, Mr. Jimenez spoke with the fixed-wing pilot and the helicopter pilot; they both indicated their belief that the wolves were located on federal land managed by the Bureau of Land Management (BLM). The area in which the wolves were spotted is a jumble of federal, state, and private land; it is difficult from the air (and often from the ground) to determine the ownership of the land, even with the assistance of maps. Determining the ownership of the land during the operation was all the more difficult because the doors of the helicopter were removed to allow operation of the dart and net guns; this made map reading impossible during flight because of the wind blowing through the helicopter. The helicopter was equipped with a global positioning system (GPS) that allowed the pilot to lock in coordinates whenever a dart or net was fired. Later examination of GPS coordinates indicated that, at the time when darts or nets were discharged from the helicopter, the target wolves were on private land.

The operation successfully captured and collared five wolves. One wolf was net gunned, physically restrained, radio collared, and released. Three wolves were net gunned and then immobilized with darts and another wolf was darted on a rocky slope where it was unsafe to land. The helicopter harassed this last wolf down a hill toward a gravel road where it was safe for the helicopter to land. After dropping Mr. Jimenez off on the road, the helicopter went to retrieve the three other darted wolves. Mr. Jimenez walked up a hill to retrieve the immobilized wolf. He carried this wolf down the slope to a shaded patch of snow near the road. Later examination by state surveyors revealed that this spot was outside the county road right of way, on private land owned by the Larsen Ranch. The helicopter returned with the three other wolves, which Mr. Jimenez and Mr. Livingston moved to the patch of snow where the other darted wolf had been deposited. At this point the helicopter left to refuel while Mr. Jimenez and Mr. Livingston examined the wolves for injuries, took blood samples, and placed radio collars on them. The wolves were released. A monitoring flight on February 19, 2004 revealed that the Washakie pack had traveled about 15 miles southwest of the processing spot; by March 4, 2004 the pack had returned to its traditional range in the Dunoir Valley.

In his declaration, Mr. Jimenez states that there were no fences, cattle, notices of private property, or other postings at the site where he and Mr. Livingston processed the wolves. He states that he was not familiar with the road and no one had informed him that the area adjacent to the road was private property. As Mr. Jimenez and Mr. Livingston were attending to the wolves, Randy Kruger, a shareholder and employee of the Larsen Ranch Company, owner of the property, drove up the road. He stopped his vehicle and asked Mr. Jimenez what he was doing. Mr. Jimenez explained his purpose. Mr. Kruger never informed Mr. Jimenez that he was on private land and never asked Mr. Jimenez to leave Larsen Ranch property or to remove the wolves from ranch property. Mr. Kruger had a camera and took several photographs of Mr. Jimenez and the wolves,...