From the pages of
Sublette Examiner
Volume 6, Number 3 - April 13, 2006
brought to you online by Pinedale Online

Jimenez, Livingston immune from prosecution

by Cat Urbigkit

A three-justice panel of the Tenth Circuit Court of Appeals issued a decision last week upholding a lower court’s decision to grant immunity from prosecution to U.S. Fish and Wildlife Service wolf project leader Mike Jimenez and Wes Livingston of Hawkins and Powers Aviation, a contractor working with Jimenez to capture and collar wolves in the Meeteetse area in 2004.

In February 2004, ranch foreman Randy Kruger found the two men, along with four sedated wolves, on private ranchland near Meeteetse. Although Park County Attorney Bryan A. Skoric filed charges against the men for trespassing and littering (by placing wolves on private property), federal courts have refused to consider the case.

The federal panel concluded last week: “Granting immunity in this case serves the purposes for which Supremacy Clause immunity was developed. The record evidence supports the suspicion that the prosecution of Mr. Jimenez and Mr. Livingston was not a bona fide effort to punish a violation of Wyoming trespass law, which requires knowledge on the part of a trespasser... but rather an attempt to hinder a locally unpopular federal program.”

The court explained the context of the constitutional question at issue: “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; 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; 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. 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.”

The court noted that in accordance with FWS procedure, it was Jimenez’ practice to fied to depart or to not trespass.” Notice may be provided by either personal communication to the person by the owner or occupant, or his agent, or by a peace officer; or through the posting of signs reasonably likely to come to the attention of intruders.

The court wrote, “A reasonable person operating on what might be private land in the State of Wyoming would presumably be on alert for these two types of notice, and would interpret their absence as an indication he was not trespassing.”

The court ruled: “Our review of the evidence presented to the district court demonstrates that while the defendants were attempting to fulfill their federal duty to monitor the wolves through a capture-and-collar operation, they confined their acts to an objectively reasonable view of the scope of their authority. Thus, the district court correctly granted immunity to the defendants and correctly dismissed the indictment.”

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