A popular bowhunting couple who make hunting videos did not have their Tenth Amendment rights violated when they were charged with Lacey Act violations earlier this year, according to a detailed 15-page reply filed late last week by Assistant U.S. Attorney Donald J. Kline.
This latest development indicates the Feds will proceed with what is likely to be a jury trial against the Ohio couple, who have been charged with multiple Lacey Act violations in connection with hunts with Hidden Hills Outfitters near Broken Bow, Nebraska, from 2015 to 2017.
Previously, the attorney for the Bowmars asked the U.S. District Court of Nebraska to dismiss all criminal charges against them and suppress all of the evidence gathered in the investigation.
READ MORE: BACKGROUND ON BOWMAR CASE
Citing numerous case studies, Kline concluded that “no basis exists to dismiss the indictment, because the government’s investigation and resultant charges do not violate the Tenth Amendment.”
According to the Government’s reply to Bowmars’ motion to dismiss,
“In late 2015 the Nebraska Game and Parks Commission (NGPC) received a tip that HHO was engaged in illegal hunting activity. NGPC began an investigation of HHO, its owners, and clients. Given the magnitude of the HHO operation, the interstate nature of HHO’s likely clients, and because HHO’s owner was on Federal Probation for a prior Lacey Act conviction, in February 2016 NGPC requested investigative assistance from the United States Fish and Wildlife Service (USFWS). The NGPC and USFWS jointly investigated HHO and its clients for illegal federal and state hunting activities. …
“…On or about July 23, 2020, an Information was filed in the District of Nebraska 3 charging Defendants JOSH BOWMAR, SARAH BOWMAR, and BOWMAR BOWHUNTING, LLC each with various Federal Lacey Act violations for illegally trafficking in interstate commerce wildlife taken in violation of Nebraska state laws and regulations. Defendants JOSH BOWMAR, SARAH BOWMAR, and BOWMAR BOWHUNTING, LLC have not been charged with violating Nebraska state laws and regulations. …
“…Among other things, the Lacey Act makes it unlawful for any person to transport in interstate commerce any wildlife, or parts thereof, that were taken, possessed, transported, or sold in violation of any state law or regulation. 16 U.S.C. § 3372(a)(2)(A). The Lacey Act is directed at controlling the “transportation or acquisition in interstate commerce of wildlife” which was taken in violation of state, tribal, and federal wildlife law. The Information alleges Defendants violated the Lacey Act by purchasing, transporting, receiving, and acquiring, in interstate commerce, wildlife that was taken in violation of Nebraska state law and regulation.
“In their Motion, Defendants wrongly claim that application of the Lacey Act improperly enhances state law and commandeers Nebraska state law enforcement in violation of the Tenth Amendment. Defendants also erroneously claim that the use of the Lacey Act is a general federal police power which infringes on state sovereignty in violation of the Tenth Amendment.
“…the Lacey Act charges in the Information are predicated upon violations of Nebraska law and the anticommandeering provisions of the Tenth Amendment do not apply to the facts of this case. Likewise, the Lacey Act does not create a general federal police power which infringes on state sovereignty in violation of the Tenth Amendment. Accordingly, no grounds exist to dismiss the Information.
“…Defendants have erroneously raised an anticommandeering defense suggesting state law enforcement will be forced into the Federal Government’s service. There is no evidence in this case that the United States has compelled state officials to enact and enforce a federal regulatory program or law. The United States has not subjected the State of Nebraska or its agents into the Federal Government’s service. The United States has not forced, required, or compelled Nebraska state law enforcement officers to make arrests, file charges, or engage in law enforcement efforts they were not agreeable and willing to take. To the contrary, federal law enforcement became involved in the investigation of HHO, and ultimately the Defendants, only after the NGPC’s request for federal assistance. In 2017 the USFWS and NGPC even entered into a mutual and voluntary Agreement, which outlined their joint and cooperative efforts to enforce state and federal fish and wildlife laws. The USFWS and NGPC have worked jointly on this investigation and prosecution and will continue to do so through its completion.
“While the Government anticipates calling state law enforcement officers at trial as witnesses, there is no evidence before this Court that state law enforcement officers were, or will be, forced, commanded, or compelled to enact and enforce a federal regulatory program or “impressed in to service” as is incorrectly suggested by the Defendants. NGPC leadership does not require subpoenas for their state officers to testify at trial and NGPC intends to continue assisting the USFWS with this case where needed.
“On a daily basis, the United States works hand in hand with local and state law enforcement officials to investigate and prosecute law violations. Regularly, state law enforcement officers are subpoenaed into federal court to testify at hearings and at trials involving violations of federal law. Oftentimes those federal laws overlap with similar state laws. The assertion that the NGPC’s assistance with prosecution of the Defendants for violations of the Lacey Act would be in violation of the Tenth Amendment’s anticommandeering clause, simply because the statute of limitation expired on a predicate uncharged state law violation, is wrong.”