United States v. Ernest Jablonsky ( 2019 )

FILED
NOT FOR PUBLICATION
SEP 09 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30136
Plaintiff-Appellee, D.C. No.
6:17-cr-00017-CCL-1
v.
ERNEST JABLONSKY, DBA Montana MEMORANDUM*
Big Game Pursuits,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Submitted August 28, 2019**
Seattle, Washington
Before: HAWKINS, McKEOWN, and BYBEE, Circuit Judges.
Appellant, Ernest Jablonsky, was prosecuted for violating the Lacey Act, 16
U.S.C. §§ 3371–78, which in relevant part governs the taking and transport of wild
animals. He moved to dismiss Count II of the indictment, claiming that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
mountain lion was legally taken because the hunter-client had all the necessary
permits to hunt. Hence, he argues, there was no illegal taking to serve as a
predicate for a crime under the Lacey Act. The district court denied Appellant’s
motion because Appellant did not have the necessary special-use permit to engage
in outfitting services on federal land. Appellant then entered a conditional plea
agreement, reserving his right to appeal the district court’s ruling. This appeal
followed. We affirm.
The Lacey Act makes it unlawful “to import, export, transport, sell, receive,
acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or
sold in violation of any law, treaty, or regulation of the United States.” 16 U.S.C.
§ 3372(a)(1). The Act treats “outfitting” as a “sale” of wildlife. Id. §
3372(c)(1)(A); see United States v. Atkinson, 966 F.2d 1270, 1273 (9th Cir. 1992).
Here, Appellant failed to obtain a necessary special-use permit before outfitting the
hunt on National Forest Service lands. 36 C.F.R. § 251.50(a).
Appellant’s assertion that no crime was committed because his hunter-client
had the necessary permits to hunt mountain lions on federal land is unavailing.
Appellant concedes that he outfitted the hunt and that he failed to obtain a special-
use permit, as required by 36 C.F.R. § 251.50. Thus, despite his client’s having all
the necessary permits to hunt, the fact remains that Appellant had no legal
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authority to provide the commercial outfitting for a hunt on National Forest
Service land. The illicit commercial outfitting constituted an illegal sale under
§ 3372(c) of the Lacey Act. 16 U.S.C. § 3372(c); 36 C.F.R. § 251.50.
AFFIRMED.
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