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United States v. Obanion

United States District Court, D. Colorado

January 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAN OBANION Defendant.

          ORDER REGARDING DEFENDANT'S MOTION TO DISMISS ALL CHARGES FOR ABSENCE OF FEDERAL JURISDICTION (ECF #132) TERMED "MOTION 3"

          Gordon P. Gallagher United States Magistrate Judge

         This matter comes before the Court on Defendant's motion to dismiss (ECF #132)[1] and the Government's response (ECF # 135). The Court has reviewed each of the aforementioned documents and any attachments. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. Oral argument is not necessary to resolve this discrete issue. For the following reasons, I DENY the motion.

         Defendant moves the Court to dismiss this action for two reasons:

         1. Defendant claims that the acts charged did not occur on federal land and that the Court thus has no jurisdiction; and

         2. Defendant claims that one of the offenses with which he is charged, the alleged violation of the Archeological Resources Protection Act (ARPA) 16 U.S.C. § 470ee(a), does not apply for two sub-reasons:

a. The 100 year time frame in ARPA began on the date the statute took effect and does not roll forward; and
b. The nature of the mining claim upon which the alleged crime occurred is removed from ARPA jurisdiction.

         The Court must construe the motion liberally because Defendant is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110.

         The requirement of occurrence on federal land:

Defendant is charged with one violation of 16 U.S.C. § 470ee(a) an element of which crime requires proof that the crime occurred on either "public lands" or "Indian lands." Id. This is an element which must be established, to the satisfaction of the jury, beyond a reasonable doubt. No further proof is required in this pre-trial posture as this is an element which must be proven at trial. Defendant is also charged with two counts of violating 36 C.F.R. § 261.9. For purposes of conviction, the Government must prove that the crime occurred on National Forest System Land. See 36 C.F.R. § 261.1. As with the first count, this is a factual issue for the jury, not fodder for pre-trial dismissal.

         ARPA

         Defendant first argues that ARPA is being incorrectly applied due to a misconstruction of the 100 year requirement which states "No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age." 16 U.S.C. § 470bb(1).

         ARPA took effect in 1979. See Pub.:. 96-95, § 3, Oct. 31, 1979, 93 Stat. 721. Essentially, Defendant argues that the 100 year mark for ARPA for all time is to be dates back (to 1879) and remains fixed at that time. Thus, without future legislation, no matter the length of our Republic, items are only protected by ARPA if they pre-date 1879.

         The stated purpose of ARPA is "to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands ...


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