Alaska Employment Law

A pilot who fished near his fly-in passengers on restricted federal property was charged with illegal guiding.  U. S. Magistrate John Roberts has acquitted the pilot, after trial.

Roberts’ now-published opinion sets up the issue this way:

Kenneth A. Bellows is named in a two count Information with “conducting any kind of work activity or service [on National Forest System Lands] unless authorized by federal law, regulation, or special-use authorization” in violation of 36 C.F.R. § 261.10(c). The information charges that the offenses occurred on or about May 18, 2007 and May 22, 2007. The gravamen of the government’s claim is that Bellows conducted guiding activities on federal lands without authorization. Trial by Court occurred on March 20, 21, April 17, 18, 2008. For reasons stated below the court concludes that the government has not met its burden of proof as to either count.

After reviewing the facts and discussing the deference due an agency interpretation of its own regulation, Roberts concludes:

Remaining within the proximity of the clients does not alone render the activity a service requiring a permit. The Forest Service special uses administrator, Ms. Emerick, testified that a pilot could fish while his clients fished without a permit if the pilot receives no remuneration for remaining there. The evidence is insufficient that Bellows was paid monies specifically to remain with the Wallaces while they were fishing at Politofski Creek. The evidence is insufficient to prove that Bellows offered tutorage as to how to fish or where specifically to catch the fish in the creek. The hand gesture that Mr. Lambeth described in his testimony and which he attributes to demonstrating how to fly cast does not prove that Bellows provided interpretive services beyond a reasonable doubt particularly in the absence of any corroborating evidence such as testimony from the Wallaces.

The Forest Service Guidelines do not define the breath [sic] of competitive point-to-point transportation rates for a given location or describe how the competitive point-to-point transportation rate is determined. The monies paid by Dr. Wallace for the services of Mr. Bellows are consistent for a competitive point-to-point rate for air transportation even though no itemized billing was produced as to the Wallace’s fishing trip.
By steel head fishing in the same creek as the Wallaces, Mr. Bellows created the appearance, if not an apparent expectation on the part of the Wallaces, that he was supervising their fishing. Such expectation may justify the issuance of a citation but it is insufficient by itself under the facts shown to constitute proof beyond a reasonable doubt that Bellows conducted work activity or service on National Forest system lands without a special use authorization permit. Wherefore, the court finds that Kenneth Bellows is not guilty of the charges contained in the information.

U. S. v. Bellows, 2008 WL 2852318 (D.Alaska Mem. Dec. of July 21, 2008)

Kimberly R. Sayers-Fay, Anchorage AUSA, represented the government.   James McGowan of Sitka represented the pilot.