John B. Salemi
Assistant Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F98-0027 CR (JDR)
)
Plaintiff, )
) MEMORANDUM OF LAW IN
vs. ) SUPPORT OF MOTION TO
) DISMISS INFORMATION
xxxxxxxxxxx, ) UNDER THE DOCTRINE OF
) COLLATERAL ESTOPPEL
Defendant. )
__________________________________________)
Mr. xxxxxx is charged with 43 CFR §2920.1-2 which states that any use, occupancy or development of the public lands, other than casual use without authorization shall be considered a trespass. The government alleges that Mr. xxxxxx's campsite on the Fortymile River near Dead Man's Island is on federally regulated land; and therefore, he must have a permit to camp there. Mr. xxxxxx maintains that his campsite is located below the ordinary high water mark (OHWM) which is used to determine the boundary between state owned and federally owned land in river corridors. Therefore, because his campsite is on state land, it is exempt from the permit requirement. The issue of whether Mr. xxxxxx's campsite is located on federally regulated land has been fully litigated and decided. Hence, under the doctrine of collateral estoppel as applied through the double jeopardy clause of the Fifth Amendment, the government should be prohibited from re-litigating the issue.
Statement of Facts
Upon admission to the Union, the state of Alaska acquired title to the beds of navigable bodies of water within the state, up to the OHWM. On October 2, 1968, Congress enacted the Wild and Scenic Rivers Act. Under the Alaska Native claims Settlement Act of 1971, the Secretary of the Interior was directed to withdraw up to 80 million acres of public lands in Alaska for possible addition or creation as units in the National Park, National forest, National Wildlife Refuge, and National Wild and Scenic Rivers system. In 1972, the Fortymile River and the land adjacent thereto above the OHWM was designated as a component of the Wild and Scenic River System, thereby making the land above the OHWM subject to federal regulations set out by the Bureau of Land Management (BLM). Mr. xxxxxx set up his current camp on the Fortymile River in 1980. His camp has remained in the same location since that time. (Attachment A) In 1984, The BLM implemented a permitting system in accordance with 43 CFR § 8351.2-1 regulating camps on the Fortymile Wild and Scenic River. In 1986, BLM contacted Mr. xxxxxx and requested that he apply for a permit. Mr. xxxxxx claimed that he did not need to obtain a permit for his camp because it was located below the OHWM; and therefore, was not subject to the permit requirement of the BLM. In August of 1986, Mr. xxxxxx was issued a citation for failing to obtain a permit for his camp. On January 26, 1987, Judge Andrew J. Kleinfeld conducted a bench trial regarding the charge. (Attachment A) Mr. xxxxxx's sole defense was that his campsite was below the OHWM which was state land and outside of the jurisdiction of the BLM. Judge Kleinfeld acquitted Mr. xxxxxx of any wrongdoings, that because his tent was pitched below the escarpment of the river bank he was below the OHWM (Attachment B). In August of 1987, a BLM survey team visited xxxxxx's camp and established a temporary meander line which BLM claimed to represent the OHWM. Mr. xxxxxx's camp was located above the meander line. In September of 1987, the BLM District Manager issued a decision that Mr. xxxxxx's camp was under the jurisdiction of the BLM and ordered Mr. xxxxxx to remove his camp. Mr. xxxxxx appealed the District Manager's decision. A hearing was held on March 27, 1991. On April 21, 1992, Administrative Law Judge Harvey C. Sweitzer affirmed the District Manager's decision ruling that Mr. xxxxxx's campsite was above the OHWM and subject to jurisdiction of the BLM pursuant to the Wild and Scenic Rivers Act. Mr. xxxxxx continued to maintain his campsite at the same location despite the administrative ruling. On July 22, 1997, Mr. xxxxxx was issued a violation notice pursuant to 43 CFR 2920.1-2 which lead to the case at hand.
Argument
Based on the prior holding of the District Court which concluded that Mr. xxxxxx's campsite was not on federal land, the charges against him should be dismissed under the doctrine of collateral estoppel. Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgement, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970). Under the doctrine of collateral estoppel, "matters actually litigated and decided in an earlier prosecution are not subject to dispute in a second prosecution, even for a separate offense." United States v. Stearns, 707 F 2d 391, 394 (9th Cir. 1983). The fifth amendment guarantee against double jeopardy encompasses the doctrine of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L. Ed. 2d 469 (1970); United States v. Crooks, 804 F. 2d 1441 (9th Cir. 1986); United States v. Hernandez, 572 F. 2d 218 (9th Cir. 1978).
The court has developed the following three-step process in analyzing collateral estoppel in the context of a criminal case:
(1) an identification of the issues in the two actions for the purpose of determining whether the issue are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine;
(2) an examination of the record of the prior case to decide whether the issue was 'litigated' in the first case; and
(3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case. United States v. Schwartz, 785 F. 2d 673, 681 (9th Cir. 1986); United States v. Hernandez, 572 F. 2d 218, 220 (9th Cir. 1978).
Using this three-prong analysis, the court has ruled that a defendant cannot be prosecuted for a crime when one of the elements making up the offense has already been litigated and found in favor of the defendant. In United States v. Barragan-Cepeda, 29 F. 3d 1378 (9th Cir. 1994), the court held that after the defendant's acquittal of a prior charge of unlawful entry based on the sole issue of alienage, the government was collaterally estopped from relitigating the same issue at trial on a subsequent unlawful reentry charge. Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 469 (1970) involved a defendant who was charged with robbing six men who were playing poker. Ashe was tried and acquitted for robbing one of the six men. The state then tried and convicted him for robbing a second poker player. The Court reversed holding that the federal rule of collateral estoppel, embodied in the fifth amendment guarantee against double jeopardy, precluded relitigation of any ultimate fact necessarily decided in an earlier trial. After reviewing the record of the first trial, the Court concluded that the only disputable issue was identity. In acquitting Ashe, the jury determined that he was not the robber; therefore, the state was prohibited from prosecuting him for any of the other robberies arising out of the same incident because the ultimate issue, identity, had been decided
The issue in Mr. xxxxxx's prior case and the case at hand is exactly the same: Was Mr. xxxxxx's camp on land regulated by the Bureau of Land Management? In the 1987 bench trial, jurisdiction was the only issue litigated. Mr. xxxxxx did not deny that the campsite was his; he did not deny that his camp was on the 40 mile river; he did not deny that it was a permanent campsite; he did not dispute that the 40 mile river was subject to the Wild and Scenic Rivers Act; he did not dispute the fact that if he were on federal lands, he would need a permit. The sole issue was whether his campsite was on federal land as determined by the existence of the ordinary high water mark forming the boundary between the state owned land and the federally owned land. The exact same issue must be determined in the case at hand. Hence, the first prong of the analysis is satisfied.
The issue of whether Mr. xxxxxx's camp was located on land regulated by the BLM was litigated in a bench trial in front of District Court Judge Kleinfeld. Mr. xxxxxx was afforded all of his constitutional rights associated with a criminal prosecution. He was represented by appointed counsel who effectively put forth his case to the court. Both the defense and the government called expert witnesses to testify as to the location of the ordinary high water mark. The trial culminated with an oral decision from the judge stating that Mr. xxxxxx's campsite was not on federal land because it was located below the OHWM.
In this case, unlike cases in which a jury renders a verdict, the reasoning behind the final judgement of acquittal is readily apparent. The judge ruled that, "I think I have to find that the high water mark is the visible mark formed by the escarpment. " (Attachment C) Because Mr. xxxxxx's camp was located below the escarpment, the judge found that it was not on land regulated by the Bureau of Land Management and therefore, Mr. xxxxxx was not required to obtain a permit. There is no question that the issue was "necessarily decided" by Judge Kleinfeld's ruling.
Conclusion
The District Court of the District of Alaska has previously ruled that the location Mr. xxxxxx's campsite is not under the jurisdiction of the BLM, but is on state property. Therefore, Mr. xxxxxx is not subject to the regulations found in 43 CFR §2920.1-2. The government should be precluded from re-litigating this issue under the theory of collateral estoppel as it applies to criminal proceedings through the protection of the double jeopardy clause of the Fifth Amendment.
For all these reasons, the information must be dismissed.
DATED at Anchorage, Alaska this ___ day of September, 1998.
FEDERAL DEFENDER FOR
THE DISTRICT OF ALASKA
__________________________________
JOHN B. SALEMI
Assistant Federal Defender
I hereby certify that on the _____ day
of September, 1998, I mailed a copy of
MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO DISMISS
INFORMATION UNDER THE
DOCTRINE OF COLLATERAL ESOPPEL
to Stephen Cooper, Assistant U.S. Attorney,
U.S. Attorney's Office, 101 12th Avenue,
Fairbanks, Alaska 99701.
_____________________________
Judy Fulton