UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA Plaintiff,

vs. DOUG FREDERICK Defendant.

A03-230 MI (JDR) 

MEMORANDUM ORDER

Doug Frederick is charged in a violation notice with construction of buildings or other facilities (bridging) within Wrangell-St. Elias National Park and Preserve on or about April 30, 2003 without a permit in violation of 36 C.F.R. 5.7. [1] This cause was tried to the court on December 9, 2003. Upon due consideration of the evidence and arguments adduced, I find the defendant guilty as charged.

[1] This offense is a Class B misdemeanor.

Factual Findings

The Defendant, Doug Frederick was born in Alaska and has lived in the Nabesna area his entire life. In 2001 he took over operations of the Sportsman Paradise Lodge which was built by his parents. The lodge is completely surrounded by the Wrangell -St. Elias National Park and Preserve in Alaska. This Park is the largest unit in the National Park System with just over 13.2 million acres containing massive glaciers, tall mountain peaks, rivers, boreal forests and arctic tundra. Frederick has a cabin and boat rentals at Copper Lake which is accessible by land only by use of an unauthorized trail in the Park.

July 2002 Meeting

On July 24, 2002 a meeting authorized by the Superintendent of Wrangell-St. Elias National Park and conducted by Asst. Superintendent Hunter Sharp was held at the Slana School gym. One purpose of this meeting was to discuss access within the Wrangell-St. Elias National Park including use of an authorized trail which had come, into existence in early Spring, 2002. The discussion addressed in part what the community might do to work with the National Park Service (NPS). There was no discussion about whether anyone would need a park permit before taking any action to ameliorate the problem.

This meeting was video taped. It lasted about one and a half hours, and was attended by about 85 people including Doug Frederick and Richard Shultz. The topics of discussion included damage to the Park caused by all-terrain vehicles particularly to wetlands. Chief Ranger Sharp expressed his concern that the trail was getting larger. He indicated that the (NPS) did not have the dollars in their budget to repair the trail. Ranger Sharp asked people for their input as to what should be done to deal with the trail.

Defendant Doug Frederick voiced his opinion that the local people could help fix the trail. The ranger stated that NPS would not be able to authorize the people to go out and work on the trail. He did not talk specifically about the need for a permit. Mr. Frederick said that the local people could fix the mud holes one at a time and make them look nice. Someone at the meeting said that "we could all get together and fix the trail." Ranger Sharp responded: "That's one way to approach it." Mr. Sharp stated that he was not looking to write a ticket for damages (already done), but just limit the damage. He told the group he recognized that there are problems (with the trail) and the NPS is looking for alternatives regarding the Tanada Lake trail. He added that he did not know the answer to the problem.

At this meeting one lady asked if she could build a bridge over the mud by cutting trees. Someone else asked can you volunteer to go out and fix things up. Ranger Sharp responded that he would not give a blanket yes. He advised "You cannot go cut spruces, that has an impact" Ranger Sharp also stated words to the effect that ". . . we have never gotten that picky. On an official level I cannot approve repairs. If you are trying to do the right thing I will not jump on your case." At one point Mr. Frederick mentioned that when the Caribou Creek Trail washed out the people needed to get Park permission to repair it. Ranger Sharp made no comment to that statement.

August 2002 Meeting

On August 30, 2002 Rangers Sharp and Gary Candelaria met with Doug Frederick at the Slana Ranger Station at the request of U.S. Senator Murkowski's office. NPS would not allow Frederick's friends to attend this meeting since the Park officials only wanted to talk to Frederick. The purpose of that meeting was to explain to Frederick the procedures and requirements regarding NPS's closure of the "illegal route" from Nabesna Road to Copper Lake [2]. The condition of the unauthorized trail was discussed as well as what procedures should be followed including work permits and environmental assessments. Mr. Frederick asked how the community could be involved. Ranger Sharp responded that an environmental study and permits were needed. He added, "We need to look at proposals and what permits may be needed." At this meeting the participants discussed ways the unauthorized trail could be handled or improved to protect the trail from further erosion. Ranger Sharp talked about some of the citizens partnering with NPS to address the problem. No specific proposals were discussed.

[2] The Nabesna Road was built in 1934 by the Alaska Road Commission so that owners of the Nabesna nine could transport gold by truck to the port of Valdez. It remains a gravel road.

May 2003 Meeting

On May 17, 2003 Doug Frederick sent an e-mail to Rob Arnberger, Regional Director over all of the Alaska National Parks. The e-mail solicited Mr. Arnberger's thoughts about an attached photograph (Deft's Exhibit B). Mr. Arnberger responded the next day as follows: "It might offer some temporary solutions. I hope your meeting will discuss details such as this." The meeting referred to in his response was the one that took place May 28 and 29, 2003.

On May 26, 2003, Hunter Sharp as Chief District Ranger for the Wrangell-St. Elias National Park was concerned about possible road work which had been done on a trail designated as "unauthorized trail" in Exhibit 1. [3] He flew from Copper Lake north to observe the trail. About midway between the Nabesna Road and Tanada Lake he saw some wooden structures which caught his attention. After the plane landed at Duffy's Tavern he joined Ranger Pete Dalton. Chief Ranger Sharp asked Ranger Dalton, Nabesna District Ranger for the Wrangell-St. Elias National Park, to view those structures from the ground. On June 7, 2003 Dalton took photographs of several of the bridge structures. Some of these photographs were offered into evidence. See Exhibits 3 through 7. The bridge like structures consisted of pallets of hard wood tied together, using screws and t-bars. While on this trip inspecting and photographing the bridges, Ranger Dalton used one or more of the bridges to traverse wet mud holes. The bridges in question at the time of trial were still at their locations in the Wrangell-St. Elias National Park.

[3] The parties have stipulated that this trail is within the boundaries of the WrangellSt. Elias National Park.

On May 28, 2003 a meeting requested by the Superintendent took place at the Sportsman's Paradise Lodge to discuss access to the Wrangell-St. Elias Park and options for trail improvement. The meeting was attended by Mr. Frederick and some of his friends as well as Ranger Sharp. The topic of bridges in the Park came up. The suggestion of a temporary solution referred by Arnberger in his e-mail response was also a topic at the meeting. Mr. Frederick showed Ranger Sharp some pictures of bridges using a topographical map to locate where the bridges had been constructed earlier in this year. Possible solutions to the illegal trail were discussed, but the Park Service did not ask for any help in trail construction. This meeting was a public hearing conducted by NPS to assess the potential impact if the unauthorized trail were closed. NPS indicated that an impact statement under the National Environment Impact Assessment Act (NEPA) would be required before NPS could formally declare the trail opened. Ranger Sharp indicated that he did not want to close the route, just stop the damage. He indicated that he could not authorize anyone to fix the trail but added . . . "if I don't know about it, I don't know about it." There was no discussion about what parts of the trail would be open or closed. One of the local participants said that there is enough talent (in the community) to fix the trail. Mr. Frederick showed Ranger Sharp a stack of pallets near the lodge.

The May 28, 2003 meeting extended to May 29, 2003. At the close of the May 29, 2003 meeting, Superintendent Gary Candelaria told Mr. Frederick that he needed a permit to do any construction work in the Park. He told Mr. Frederick not to put him in a spot by constructing anything without a permit.

Title 36 Code of Federal Regulation 5.7 requires a permit to build a structure in the National Park. Federal law provides that NPS must conduct a compliance review including an environmental study on a proposed project. If NPS can issue a finding of "no significant impact," then it will issue a special use permit which may or may not include stipulations about construction of a structure. Mr. Frederick admitted to placing the structures depicted in Defendant's Exhibit B and C. It is undisputed that Doug Frederick had not been issued a permit to erect any bridge structure(s) in Wrangell-St. Elias National Park relevant to this litigation. [4] Mr. Frederick never asked NPS for an environmental impact statement or a permit to construct the bridge structures photographed by Ranger Dalton.

[4] The record reveals that NPS permits have previously been issued to Mr. Frederick for other purposes.

June 2003 Activity

On June 12, 2003, Ranger Sharp called Mr. Frederick on the telephone. He asked "Do you have a permit?" Frederick told the ranger that he did not apply for a permit because he didn't think he would get one or need one. Ranger Sharp asked for his address and then said he was issuing Frederick a citation that would be mailed to him. On June 15, 2003 NPS removed some of the new bridges, but the "bridges" in issue for the citation remained in place.

Application of Law

Congress created the National Park Service by enacting the National Park Service Organic Act, 39 Star. 535 (1916), codified as amended at 16 U.S.C. 1, et seq. (1992). The Act delegates part of Congress's constitutional power to the Secretary of the Interior, authorizing the Secretary to "make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service." 16 U.S.C. 3. [5] The park service "has broad discretion in determining which avenues best achieve the Organic Act's mandate." National Wildlife Federation v. National Park Serv., 669 F.Supp. 384, 390 (D. Wyo. 1987). Under this mandate, all park areas must be managed "with resource protection the overarching concern." Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1453 (9' Cir. 1996). The Secretary of the Interior has made rules "for the proper use, management, government, and protection of persons, property, and natural and cultural resources within areas under the jurisdiction of the National Park Service." 36 C.F.R. 1.1 (a) (2000), including 36 C.F.R. 5.7, which reads:

Constructing or attempting to construct a building or other structure, boat dock, road, trail, path, or other way, telephone line, telegraph line, power line, or any other private or public utility, upon, across, over, through or under any park areas, except in accordance with provisions of a valid permit, contract, or other written agreement with the United States, is prohibited.

[5] Under the United States Constitution, Congress has the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Constitution, Art. IV, 3, c1.2. See, Federal Power Comm'n v. Idaho Power Co., 344 U.S. 17, 21 (1952).

Defendant Frederick does not challenge the promulgation of the regulation. The park service general regulations "apply to all persons entering, using, visiting or otherwise within ... [t] he boundaries of federally owned lands and waters administered by the National Park Service." 36 CTR. 1.2(a)(1) (2000).

Frederick argues that the materials placed over the mud hole did not constitute a "structure" as that word is used in 36 C.F.R. 5.7. The regulations do not define "structure" as referenced in that section. The dictionary definition of "structure" includes "something made up of a number of parts that are held or put together in a particular way; the way in which parts are arranged or put together to form. a whole; something constructed." American Heritage College Dictionary p. 1347 (3d ed. 1997).

The photographs of the bridges introduced at trial together with the testimony adduced show that the bridges consisted essentially of planking or pallets held together by screws and T-posts. They would support a four-wheel recreational vehicle traversing a wet area or mud hole so that the vehicle would not sink in the mud. I conclude that the bridges constituted a structure or construction for which an individual is required to obtain a permit or other prior approval of the National Park Service within the meaning of 5.7. The park service's reading of "structure" in 5.7 does not appear to be arbitrary, capricious or plainly erroneous. [6] Pursuant to 36 C.F.R. 5.7 any improvement or even maintenance of an existing right-of-way is subject to the prior submission of plans for evaluation in light of the National Environmental Policy Act ("NEPA") and the purposes of the Park.

[6] Although not an issue in this case, the application of 36 C.F.R. 5.7 might be set aside if it were shown to be "arbitrary, capricious, or not in accordance with law," in a challenge brought under 5 U.S.C. 706, the Administrative Procedures Act. There is no claim here that the park service has acted in excess of statutory jurisdiction, authority, or limitations under its statutory authority.

It is uncontroverted that Mr. Frederick did not request or receive authorization from the park service for the specific work performed on or about May 15, 2003- Such prior authorization was required regardless whether the trail was. an established right-of-way or an unauthorized trail on park land. The defendant stipulated with the government that the trail in question is within the boundaries of the Wrangell-St. Elias National Park.

Congress has extensive power under the property clause of the constitution. The property clause gives Congress power over lands "to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them . . . ." United States v. Vogler, 859 F.2d 638, 641 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989). See also, Kleppe v. New Mexico, 429 U.S. 529, 540 (1976). The Secretary of Interior has exercised that power in promulgating 36 C.F.R. 5.7.

Mr. Frederick does not contest the park service's power and duty to protect park lands by performing environmental assessments required by NEPA and applicable regulations or to formulate less burdensome alternatives to any actions proposed by the general public that may degrade the park resources or impair park values or the visitor experience. The application of 36 C.F.R. 5.7 does not depend upon the well-meaning of a person who proceeds without prior authorization or a permit. This case is not about whether the Park Service land has been "disturbed" in any significant way. The defendant is not charged with disturbing the trail or park service lands; adding a "structure" to the park service lands itself precipitates the need for prior authorized permission or a permit from NPS. The need for a prior permit or authorization from the park service is not excused by a claim that Mr. Frederick was not trespassing upon park service land on May 15, 2003, when the bridges were placed on the trail.

Section 5.7 of 36 C.F.R. originated in 1941 as part of a regulation affecting "private operations." The current version of the rule was issued in 1966 as a part of a major revision and recodification of the general Park Service Regulations intended to "clarify and bring up to date" the regulations applicable to Park Service lands and "bring them into conformity with the basic policies of the Department of the Interior relating to administration and preservation of natural resources in areas of the National Park system." 31 Fed. Reg. 12,750 (Sep. 29, 1966). There is no dispute that the word "person" means an individual, society, partnership, or private or public body." 48 Fed. Reg. 30,252, 30,275 (June 30, 1983), codified at 36 C.F.R. 1.4. The 1986 revision applied the general regulations, including Part 5 and 5.7, to "all persons entering, using, visiting or otherwise within . . . the boundaries of federally owned lands" administered by the Park Service 36 C.F.R. 1.2(a)(1) (2000).

Thus, Mr. Frederick cannot escape responsibility for compliance with 5.7 because he may have been acting on behalf of or at the insistence of other members of local communities who share his interest in having the so-called unauthorized. trail maintained for use until a final decision has been made by the NPS regarding its existence for future use.

To the extent that the defendant impliedly argues that the bridges were de minimis such that 5.7 was not triggered, I conclude that the park lands, resources and values in the Wrangell-St. Elias National Park were impacted by the work performed on or about February 15, 2003, when the structures were added to the trail in the park. In order for 5.7 to apply the court need not make any findings regarding whether the structure placed on the park service land is, or is not, environmentally significant. I have considered, but reject, any suggestion that the placement of the bridges was of such little consequence that no action, participation, or acquiescence by the park service was required or warranted. Arguably, the placement of the bridges support the creation or maintenance of an identifiable route by use over time, whereas the evidence indicates that the trail had not been authorized by the park service. The trail in its entirety may or may not become an authorized trail or approved access to the Tanada Creek or Copper Lake. To the extent that the construction or placement of bridges over wet areas goes beyond preserving what is already there, such improvement triggers the application of 36 C.F.R. 5.7 and may trigger the application of study requirements under NEPA, an issue which goes beyond the parameters of this prosecution.

The court finds that the construction of the bridges as a structure was done without permit or other prior approval by the National Park Service. Ranger Sharp testified that he specifically checked the records to see whether any permit application had ever been filed. Mr. Frederick acknowledged that he never made an application for such a permit, and there is no evidence that anyone else requested or received a permit for the structure(s) in question.

Estoppel and Unlawful Inducement

Mr. Frederick argues that the "improvement" or stabilization of the trail was "reasonable and necessary" to maintain the trail as a right-of-way. He contends that he needed no additional approval or authority from the park service before commencing the work based upon prior meetings held and conducted by the park service in his local area. One of these meetings referred to extensively in the testimony was video recorded. Curiously, neither side chose to place in evidence a copy of the video recording to show what was said at that meeting. Instead, the testimony consists of persons who attended such a meeting testifying to their impressions of what did or did not happen at the meetings. The May 28 and 29, 2003 meetings occurred after the bridges were constructed or placed on the park service trail earlier that month.

Essentially, Mr. Frederick argues that the government should be estopped by its conduct from prosecuting him for constructing or helping to place those bridges on park service land without prior authorization. Alternatively, he argues that the statements of Park Service representatives, particularly Ranger Sharp, "induced" him to place the bridges on the trail without requesting or obtaining a permit with the "blessings" of park service authorities who impliedly agreed to look the other way until a permanent solution to the continued existence and state of condition of the trail could be determined.

A person is "induced" to take a course of action "by influence or persuasion." See, definition of "induce," The American Heritage College Dictionary, p.693 (3d ed. 1997). For example, a drug may be used to induce labor. An "inducement" is "something that helps bring about an action or a desired result; an incentive." See, definition of "inducement," The American Heritage College Dictionary, p.693 (3d ed. 1997). Mr. Frederick argues that his actions, if violative of 5.7, should be excused because they were brought about by the statements of the park service authorities conduct through the encouragement of the participation of local members of the public providing input to address the problems with the trail leading from the Nabesna Road east of the approved trail past the Tanada Lake to the vicinity of Copper Lake. No legal authority is provided to support this argument.

Federal law is clear that government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute. On the other hand, the fact that government employees or officers merely afford an opportunity for the commission of an offense does not defeat the prosecution. United States v. PoehIman, 217 F.3d 692 (9th Cir. 2000).

The first question in this regard is whether the government agents induced Mr. Frederick to violate 36 C.F.12. 5.7, namely to place a structure on park service land without a permit. Pursuant to Poehlman, the incentive "can consist of anything that materially alters the balance of risks and rewards bearing on defendant's decision whether to commit the offense, so as to increase the likelihood that he will engage in the particular criminal conduct including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship." 217 F.3d 698. Even where the government induces the crime, the defendant can still be convicted if the trier of fact determines that he was predisposed to commit the offense. Id. Predisposition is a defendant's willingness to commit the offense prior to being contacted by government agents, together with the means to do so. See, United States v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir . 1994), (en banc). Once a defendant introduces evidence from which a rational fact-finder could find that he was induced to commit the crime but was not otherwise predisposed to do so, the burden of persuasion then shifts to the government to prove beyond a reasonable doubt that the defendant was not entrapped. Id.

In determining whether a defendant was predisposed to commit a crime, the court considers the following factors: (1) the defendant's character or reputation; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant showed reluctance; and (5) the nature of the inducement. See, United States v. Thomas, 134 F.3d. 975 (9th Cir. 1998). Although none of the five factors is controlling, the defendant's reluctance to engage in a criminal activity is the most important. To succeed in claiming entrapment as a matter of law, Frederick must point to undisputed evidence establishing that he was induced to commit the crime, and lacked a predisposition to do so. United States v. Cruz, 127 F.3d 791, 797 (9th Cir. 1997); United States v. Lorenzo, 43 F.3d 1303, 1305 (9th Cir. 1995). Inducement results from government conduct creating a substantial risk that an otherwise law-abiding person would commit a crime.

Clearly, Mr. Frederick was not entrapped as a matter of law. Viewing the evidence I find in favor of the government as to inducement or lack of predisposition. There is no evidence that Park Service employees used psychological pressure to bring about a "fix" to the trail during their attempted friendly town meeting to discuss the problems with the existing trail. The fact that some attendees at the Park Service meetings, inferred from comments made at those meetings that the Park Service might relax its formal requirements for seeking prior authorization or a permit for any construction or improvements on the trail by citizens is insufficient in my judgment to create a substantial risk that the reasonably prudent law-abiding citizen would have so concluded. The evidence at trial does not suggest that the park service representatives themselves invited the local citizens to "fix," "maintain," or "improve" the trail without government participation. Indeed, if the defendant were to prevail on the evidence presented, then the outcome of this case would discourage the government in holding public meetings and public hearings to receive input from the public on the issues affecting the preservation and oversight of a national park.

Mr. Frederick was aware that the park service issued permits for conduct or construction occurring on National Park Service property. He had previously applied for and received permits. When asked by a ranger whether he had sought any permit for placement of the bridges, he responded that he had not because be did not think they would issue him a permit. Regardless of what impressions other attendees received at the meetings, Mr. Frederick was aware of the permit process by the park service. As owner of an indwelling surrounded by Wrangell-St. Elias National Park and as an entrepreneur wanting to engage in recreation at the lakes, he had previously sought and obtained permits from the park service. In his testimony, Frederick did not describe any particular statement made by the chief ranger or any government agent that might have induced him to participate in placing bridges on the trail.

The defense emphasizes that the park service participants at the meeting did not state that one would need a permit to help "fix" the trail. The defendant cites no authority for a requirement that the government remind people that they need a permit to construct something in the park. Of significance is the fact that the ranger never said any helper would not need a permit. When someone at the meeting suggested a specific remedy such as cutting down spruce trees to place over the wet areas, Ranger Sharp was prompt to indicate that cutting down trees in the park would cause environmental damage that was not permitted. The fact that the ranger stated at a meeting that he was not looking to write tickets or punish anyone, but just "fix" the problem, is not an invitation to a citizen to fix the problem on his own without park service participation. None of the statements attributed to the ranger, individually or collectively, created a substantial risk that a law-abiding citizen could ignore the applicable regulations.

An improper inducement goes beyond an ordinary opportunity to commit a crime. An inducement consists of an opportunity plus something else--typically excessive pressure by the government upon the defendant or the government's taking advantage of an alternative, non-criminal type of motive. United States v. Gendron,18 F.3d 955, 961 (1st Cir. 1994), quoting Jacobson v. United States, 503 U.S. 540, 550 (1992). I cannot conclude under the facts and circumstances of this case that the park service employed a form of suasion that materially affected what Justice Frankfurter called the "self-struggle [to] resist ordinary temptations." Sherman v. United States, 356 U.S. 369, 384 (1958). Mr. Frederick had a personal interest in having the trail open and usable to Copper Lake. His participation in the repair to the trail arguably supported his position that the trail was frequently used and should be approved by the park service. That interest does not excuse the need to comply with 5.7.

Entrapment by estoppel occurs when an official mistakenly misleads a person into a violation of the law. See United States v. Tallmadge, 829 F.2d 767, 773 (9th Cir. 1987). To succeed under this theory, a defendant has to show that the government affirmatively told him that the proscribed conduct was permissible, and that he reasonably relied upon the government's statement. Raley v. Ohio, 360 U.S. 423, 438 (1959). The defendant must do more than show that the government made vague or contradictory statements. Id. The evidence does not support any claim that the government affirmatively misrepresented that Frederick or anyone else could lawfully improve or maintain the unapproved trail without prior approval of the park service. The defense of entrapment by estoppel is not applicable in this case.

Frederick relies in part upon his response from Arnberger to his e-mail in May 2003 attaching a photograph of a bridge made from pallets and placed over a wetland. Mr. Arnberger's response leaves open for interpretation whether the park service would endorse the approach of using a wooden bridge in wetland areas to allow light traffic such as a fourwheeler to use the unapproved trail until the matter could be more thoroughly studied for a final determination. The deficiency of this argument is that the bridges in question already had been placed in the Wrangell-St. Elias National Park, and the Frederick's response did not inform Mr. Arnberger that the example in the photograph was then existing on park service land.

In the absence of affirmative misconduct, the government normally may not be estopped by representations or misinformation given by its agents. See, e.g., Free Enterprise Canoe Renters Assn of Missouri. v. Watt, 711 F.2d 852 (8th Cir. 1983); Hanley v. Donovan, 734 F.2d 473 (9th Cir. 1984). In Hanley, recipients of overpayments of benefits erroneously made under the Redwood Employee Protection Program appealed from the determination of the Assistant Secretary of Labor that they were liable for the overpayments. The Ninth Circuit Court of Appeals remanded for the district court to determine whether one of the recipients of overpayments of benefits detrimentally relied so as to preclude the Secretary of Labor from recovering the overpayments. Significant factors in that case in determining whether recovery would be inequitable included whether the claimant was ignorant of the overpayments, whether the claimant was at fault for the overpayments, and any detrimental reliance on the benefits.

Several civil cases provide some overview of the law regarding an estoppel claim against the government. In Yerger v. Robertson, 981 F.2d 460 (9th Cir. 1992), Yerger asserted that the Forest Service should be equitably estopped from refusing to renew his use permit because when he acquired the resort, Forest Service employees assured him that the agency would renew his permit when the current term expired. The court of appeals, after noting that a party seeking equitable estoppel against the government carries a heavy burden, stated that the party asserting estoppel must establish affirmative conduct by the government going beyond mere negligence. Id. at 466. Such party must also prove that not applying estoppel would result in serious injustice and that the public would not be unduly burdened by the imposition of estoppel. Id. The appellate court rejected Yerger's argument because he had failed to allege that the Forest Service employees assurances were affirmative acts that go beyond mere negligence; nor had he attempted to prove that in the absence of estoppel a serious injustice would result, or that the public would not be unduly burdened if estoppel were imposed in the case.

In Bolt v. United States, 944 F.2d 603 (9th Cir. 1991), certain claimants were notified by the Bureau of Land Management that their mining claims located in a national park were void due to claimants' late filing of an annual claim recordation. The Interior Board of Land Appeals affirmed that determination and lessee of the mining claimants intervened filing a complaint in federal court for review. The court of appeals held in part that in order for the government to be estopped, there must be affirmative misconduct (not mere negligence) and a serious injustice outweighing the damage to the public interest of estopping the government. 944 F.2d at 609.

In the instant case, the evidence is insufficient to support a claim that Frederick did not know that he was required to have a permit to engage in construction or establishing a structure in the park. Thus, in a civil context Frederick has not shown misconduct as opposed to mere negligence on the part of the park service for the government to be estopped. See, Bolt, at 605.

In Washington Tour Guides Ass'n v. National Park Service, 808 F.Supp. 877 (D.D.C. 1992) tour operators brought an action challenging the enforcement of prohibition against solicitation of business on National Park Service grounds. The district court held in relevant part that the government was not estopped from enforcing the regulation, and tour operators were not entitled to notice that the contract to conduct tours was expiring and would be re-let. The plaintiffs contended that the National Park Service should be estopped from enforcing the prohibition on solicitation based upon representations made by park service officials during various meetings with the plaintiffs over the past several years. 808 F.Supp. at 881. Plaintiffs argued that the park service officials assured them that "as long as the plaintiffs complied with all laws, the National Park Service would not act to interfere with the operation of the plaintiffs' businesses. Id. The district court cited Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917) wherein the Supreme Court stated, "the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit." The district court held that, assuming the park service officials made the representations claimed by plaintiffs, the doctrine of equitable estoppel was inapplicable in the situation. Id. at 882. "The National Park Service is not bound by oral agreements made by its officers when those agreements contravene clear regulatory language. Simply put, the government may not be estopped from enforcing the law, even following an extended period of no enforcement or under enforcement. (Citations omitted.)" Id.

For the foregoing reasons, I conclude that the government has met its burden of proof that Doug Frederick added one or more structures to the National Park Service without prior authorization or a permit as required by 36 C.F.R. 5.7 as alleged in the violation notice. Accordingly, the clerk may notice this case for sentencing.

DATED this 6th day of January, 2004, at Anchorage, Alaska.

John D. Roberts
United States Magistrate Judge