Step into the Yellowstone Zone of Death, if you dare.
Yellowstone National Park's 260 square miles in Montana and 50 square miles in Idaho beckon with recreation, rugged terrain and wildlife.
But as the only place where a federal court district extends beyond state lines, it offers visitors and criminals a potential legal no man's land.
Closing the loophole would be fairly simple, but the law professor who first analyzed the problem said it will require the political will to act while the crimes are still minor, like poaching elk, before someone tries to get away with murder.
In December 2005, Montana resident Michael David Belderrain killed an elk standing in Gallatin County, Mont., decapitated it and dragged the head to his truck inside Yellowstone National Park, he said during a change of plea in federal court in Casper on Wednesday.
Belderrain had unsuccessfully tried to persuade Chief Wyoming U.S. District Court Judge William Downes his trial should not be held in Wyoming, but in Montana because that's where he committed the crime.
Belderrain probably faces between 30 months and 57 months imprisonment. His sentencing is scheduled for Nov. 21.
Regardless of Belderrain's sentence, the legal system is coming to grips with a collision of three factors: the creation of Yellowstone National Park; the borders of Wyoming, Montana and Idaho; and the demands of Article III Section 2 of the U.S. Constitution and the Sixth Amendment.
Setting up 'The Perfect Crime'
The Constitution requires trials be held in the state - "venue" - where the alleged crimes were committed, Brian C. Kalt wrote in "The Perfect Crime," published in the January 2005 Georgetown Law Journal.
The Sixth Amendment guarantees "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and the district wherein the crime shall have been committed."
The place where jurors are from is known as "vicinage," wrote Kalt, an associate professor at the Michigan State University College of Law.
In 1872, Congress created the Yellowstone National Park - the world's first national park - as a federal enclave and not subject to state law, Kalt wrote.
In 1889 and 1890, Congress admitted Montana, Idaho and Wyoming into the Union.
But Congress erred by putting the entire Yellowstone National Park under the jurisdiction of the Wyoming U.S. District Court, an action that was and is incompatible with the U.S. Constitution, he wrote.
All that seems arcane until someone gets arrested for going on a crime spree in the Idaho portion of the park, Kalt wrote.
The defendant rightly would claim Article III Section 2 requires the federal government to try him in Idaho where the crime occurred, he wrote.
"But the Sixth Amendment then requires that the jury be from the state (Idaho) and the district (Wyoming) in which the crime was committed," Kalt wrote. "In other words, the jury would have to be drawn from the Idaho portion of Yellowstone National Park, which, according to the 2000 Census, has a population of precisely zero."
The law establishing the park makes it impossible to satisfy the requirements of both venue and vicinage, he wrote. "Assuming that you do not feel like consenting to trial in Cheyenne, you should go free."
Kalt isn't encouraging anyone to commit crimes, but he'd like Congress to fix the problem before somebody gets hurt, he said.
Montana's piece of Yellowstone has about 40 residents, but empaneling a jury would still be hard, Kalt said.
Even so, Michael David Belderrain's public defender Robert Rogers applied Kalt's reasoning and cited his article in a motion to dismiss the charges against his client for being a felon in possession of a firearm, two counts of witness tampering and two counts of game violations.
Despite the inconvenience, Belderrain had a right to be tried in Montana and not by jurors from Wyoming, Rogers wrote.
"If the only practical solution is for the Court to dismiss the charges, so it must be, because neither the statute creating the District of Wyoming, nor the criminal statutes involved may trump the Constitution," he wrote.
Downes didn't buy Kalt's or Rogers' arguments.
"The Court recognizes the Georgetown Law Review article for its interesting esoteric value, however, it is of little practical value to this Court," Downes wrote.
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He acknowledged the conundrum caused by the literal interpretations of Article III Section 2 and the Sixth Amendment, but he had nothing else to go on for his decision, he wrote.
"For practical purposes, any cause of action occurring within Yellowstone National Park, whether in Wyoming, Idaho, or Montana, must result in a jury trial in the District of Wyoming, and jurors selected from a pool of Wyoming citizens. To adopt a different position would create a virtual no man's land. Since there is no case law that states otherwise, this Court must dismiss Defendant's objection to a Wyoming jury panel," Downes wrote.
The judge set a Nov. 21 sentencing date for Belderrain, who may be imprisoned between 30 months and 57 months. The two witness tampering counts are expected to be dismissed during the sentencing.
Belderrain cannot appeal his case based on where jurors are from according to the plea agreement, prosecutor Assistant U.S. Attorney John Barksdale said.
Despite Downes' comments, the matter won't go away, Rogers and Barksdale said after Belderrain's change of plea hearing.
"The issue has not been definitely decided," Barksdale said. "It really is a fascinating subject."
Rogers took issue with Downes' comment on Kalt's article.
"Judge Downes called it 'esoteric,'" Rogers said. "I don't know if that will be the view of other judges."
The Denver-based 10th U.S. Circuit Court of Appeals, if not the U.S. Supreme Court, will need to rule on the loophole, he said.
Downes, Kalt said, was wrong to dismiss Belderrain's motion to dismiss the case.
"Because Chief Judge Downes' opinion is so thin, I am concerned that criminals might still be tempted to use the loophole," Kalt said.
If the issue ever reaches the higher courts, the courts should declare unconstitutional the law defining the U.S. District of Wyoming, he said.
That would light a fire under Congress to fix the problem, Kalt said.
"So all they have to do is make the District of Wyoming just like every other district in the country," he said.
"The legislation would be very simple. If the Idaho portion of the park was in the District of Idaho, and the Montana portion in the District of Montana, then there would be no loophole. Guys like Belderrain would get a Montana trial before a Montana jury," Kalt said.
U.S. Sen. Mike Enzi is one of the few people in Washington who's taken seriously the loophole problem, Kalt said.
Enzi has had conversations with the U.S. Department of Justice, the U.S. Attorney's office, and recently with Attorney General Alberto Gonzales, Enzi spokeswoman Elly Pickett said in an e-mail.
"Sen. Enziï¿½s inquiries have been productive but they have also shown there is no simple fix to this situation and it warrants further study. Senator Enzi has not received an official opinion from the DOJ because the Department doesnï¿½t look into hypothetical scenarios."
Reach Tom Morton at (307) 266-0592, or at Tom.Morton@casperstartribune.net.
In C.J. Box's latest novel, the Cheyenne author writes about low-life lawyer Clay McCann who brutally shoots and kills four campers on Yellowstone Park land in Idaho west of the Bechler Ranger Station, and later shoots two people riding in his car in the same area.
McCann brags about his crimes and gets away with murder because he appeals to a legal loophole that makes it impossible to try him in federal court, Box writes in "Free Fire," his latest tale about game warden Joe Pickett.
Box was promoting his 2005 novel "Trophy Hunt" when friends told him about an article in the Georgetown Law Journal, he said in an e-mail interview.
Brian C. Kalt, associate professor at the Michigan State University College of Law, wrote about a loophole that creates a "no man's land" of legal consequences.
"I'd always wanted to do a Yellowstone book but didn't quite know the angle, and Professor Kalt's article was perfect," Box said.
"I printed off the article and showed it to (U.S. District Court Judge Alan) Johnson and while he didn't say there was a 'free-fire zone' he did say that the jurisdiction questions could pose an effective defense."
Warden Pickett, who investigates the murders in Box's book, explains the loophole to his falconer friend Nate Romanowski.
"'The federal prosecutors in charge of the case couldn't get around the loophole in the law, and still can't,'" Pickett tells Romanowski. "'It was never an issue before, and there is no precedent to bypass it. The only thing that can be done is to change the district or change the Constitution, and I guess there is going to be legislation to do that. But even if it's passed…"
"Nate finished for Joe, 'Clay McCann still walks. Because they can't create a law after the fact and then go back on the guy.'"]]->
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