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United States v. Armstrong

ELR Citation: 29 ELR 21470
Nos. No. 99-1190, 186 F.3d 1055/(8th Cir., 07/28/1999)

The court affirms the criminal convictions of two tour boat operators for violating the National Park Service (NPS) regulation that prohibits the solicitation of business without a permit in Minnesota's Voyageurs National Park (VNP). The court first holds that NPS has jurisdiction over waters within the VNP. Minnesota ceded jurisdiction of the waters within VNP to the United States when it passed to NPS the lands that make up VNP. Thus, Minnesota consented to NPS' exercise of jurisdiction over business operations, including the operation of tour boats. Moreover, legislative history indicates that Minnesota was placed on notice of NPS' authority to regulate commercial operations in international waters within VNP.

The court next holds that Congress properly authorized NPS to promulgate and enforce regulations concerning activities on or relating to waters located within the national park system. Therefore, the regulation requiring tour boat operators within VNP to obtain a business permit is within NPS' authority. The court additionally holds that the regulation of tour boats in VNP does not violate the Root-Bryce Treaty or the Webster-Ashburton Treaty, both of which require all navigable boundary waters to remain free and open for commercial purposes. Under the treaties, both the United States and Canada may adopt laws and regulations not inconsistent with the privileges of free navigation, so long as the laws and regulations are applied in a nondiscriminatory manner. Requiring a tour boat operation in a national park to obtain a permit is neither unreasonable nor inconsistent with the privileges of free navigation. Moreover, the regulations are applied in a nondiscriminatory manner because they apply equally to American and Canadian citizens who seek to operate a business in VNP.

Last, the court holds that the fine and sentence received by one operator constituted cruel and unusual punishment. It is not a violation of either the U.S. Constitution or the sentencing guidelines to require the operator to submit to the permitting process if he wishes to operate a business within VNP. However, it is cruel and unusual punishment to make it a condition of the operator's probation that he not enter VNP to pursue the same nonbusiness activities that other visitors to VNP pursue.

Counsel for Appellee
Clifford B. Wardlaw
U.S. Attorney's Office
600 U.S. CtHse.
300 S. 4th St., Minneapolis MN 55415
(612) 664-5600

Counsel for Appellant
Jerrod A. Shermoen
Shermoen & Leduc
345 6th Ave., International Falls MN 56649
(218) 283-4494

Before McMillian and Fagg, JJ.