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Sometimes You Can Challenge An Agency Action In A Criminal Case, Says The Ninth Circuit

Ours is a large and complicated government. Much of it isn’t run by statutes or cases, but by regulations.

Violating a regulation can be a crime – depending on the regulation.

Regulations are strange animals. They can be challenged under the Administrative Procedures Act. If you don’t like what an agency does, the APA gives you a mechanism to complain about it to a judge.

1389337_mount_hood.jpgWhat happens if you’re prosecuted for violating a regulation that can be enforced with a criminal penalty, and you think the regulation is no good? Can you complain about it in your criminal case?

The Ninth Circuit answered that, in United States v. Blacklund, with a resounding maybe.

Mr. Blacklund’s Choice of Residence

Mr. Blacklund and his wife lived on a mine in a national forest. [FN1]

It was in the Umpqua National Forest in Oregon.

If you want to live on a mine in a national forest, you have to get the permission of the United States Forest Service.

The Forest Service will only give you permission to build a place to live on your mining site in a national forest if it’s necessary to the mining operations to have a year-round residence in the forest.

As to the Blacklund’s residence, the Forest Service determined that “year round occupation of the permanent camp trailer with the added room, roof, porch and fire wood storage area, is excessive even during the mining season.”

The Blacklunds took exception to this decision, and things went back and forth with the Forest Service. Eventually, the Blacklunds appealed to the final level of administrative appeal within the Forest Service.

For those with an admin law background, they “exhausted their administrative remedies.”

They did not then go to federal court to challenge the agency’s determination.

Criminal Charges Are Brought

The U.S. Attorney’s Office in Oregon then brought a misdemeanor criminal information against Mr. Blacklunds for violating 16 U.S.C. § 551 and 36 C.F.R. § 261.10(b).

Mr. Blacklund indicated that he intended to challenge the agency’s action, as he would if he brought a suit against them through the APA. Mr. Blacklund wanted to assert that challenge as an affirmative defense.

The district court shut him down, preventing him from making such an affirmative defense.

He entered a guilty plea that preserved his ability to challenge the district court’s decision.

The Administrative Procedures Act, Criminal Charges, And the Ninth Circuit

The Ninth Circuit reversed his conviction. It held that a person charged with a crime based on an agency action is able to challenge the agency’s decision as an affirmative defense under certain circumstances.

The Ninth Circuit noted that there is a six-year statute of limitations for bringing a suit in federal court to challenge an agency action.

So, anytime during that six-year period, if the person exhausted their administrative remedies by previously challenging things with the agency, the person could bring a lawsuit to challenge the agency’s action.

As the Ninth Circuit held,

We therefore hold that the APA affords a person in Blacklund’s position at least two options for obtaining judicial review of the disputed agency action. He may file suit in federal district court under the APA, or he may challenge the agency’s decision in a subsequent criminal proceeding. In either case, he must act within the six-year time limit.

Because a district court’s erroneous decision to preclude a defense requires reversal unless the error is harmless, the conviction was vacated and the case was sent back.

What Happens Next?

One thing I don’t understand from this is how the agency’s action is challenged in the trial.

Normally, the legality of an agency’s action is a question that a judge resolves. Normally, affirmative defenses are resolved by the jury.

Does the jury have to make the determination of whether the Forest Service’s action complied with, say, the authorizing statute? Are they to be given jury instructions in Chevron deference?

[FN1] – There are mines in national forests? Huh?

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