Submitted: February 10, 2017
from United States District Court for the District of South
Dakota - Rapid City
LOKEN, COLLOTON, and KELLY, Circuit Judges.
a bench trial before a magistrate judge, Thomas McDill, who
represented himself, was convicted of two violations of 36
C.F.R. § 261.3(c), which prohibits "[t]hreatening,
intimidating, or intentionally interfering with any Forest
officer . . . while engaged in, or on account of, the
performance of duties for the protection, improvement, or
administration of the National Forest System or other duties
assigned by the Forest Service." He appeals those
convictions. We reverse.
McDill owned property abutting Black Hills National Forest
near Custer, South Dakota. On May 20, 2013, McDill visited
the office of the United States Forest Service's Hell
Canyon Ranger District, which manages part of the Black Hills
National Forest. He spoke with Todd Gohl, a support services
specialist for the district, about slash piles (piles of
debris from trimming bushes and trees) on forest land. Gohl
testified at trial that he was unable to answer all of
McDill's questions and suggested McDill file a Freedom of
Information Act (FOIA) request. Gohl then referred McDill to
timber staff officer Patricia Hudson because Gohl thought she
might be able to answer more of McDill's questions.
Hudson testified that she and McDill spoke for about
forty-five minutes. According to Gohl, McDill later returned
to the office with a FOIA request. Gohl testified that
although this was not the proper way to file a FOIA request,
the Forest Service initiated action on the request.
morning of June 11, 2013, McDill visited the office of the
Black Hills National Forest Supervisor and spoke with Gregory
McGranahan, a timber sale contracting officer. McGranahan
testified at trial that McDill asked him about removing some
beetle-infested trees on forest land near his property.
McGranahan explained that McDill would need to obtain a
permit from the district office, and arranged for McDill to
meet a Forest Service employee at that office at 1:30 p.m. At
around 11:30 a.m., McDill arrived at the district office.
When he arrived, Gohl was at the office. Gohl testified that
McDill asked him for a letter permitting his friend to remove
the beetle-infested trees. Gohl told McDill that no one with
the authority to provide such a letter was available, because
the other Forest Service employees were at an internal
district safety meeting. Gohl informed McDill that someone
would be available to speak with him around 1:00 p.m., after
the meeting had concluded. McDill asked where the meeting
was, and Gohl told him it was at the local high school.
proceeded to the high school, where the safety meeting was
coming to a close. Hudson had attended the meeting, and
McDill approached her as she was leaving. Hudson testified
that she recognized McDill from their prior interaction, and
that she was startled to see him at the high school because
the safety meeting was not public. Hudson told him she was
going to lunch, and would meet with him between 1:30 and 2:00
p.m. that day. McDill told her that he did not want to wait.
Hudson asked him what she could help him with, and McDill
asked her about cutting down beetle-infested trees near his
land. Hudson said it was too late in the season, and the
Forest Service would not issue a permit. McDill asked what
would happen if he cut them anyway, and Hudson said he would
be issued a fine. At this point, Hudson testified, McDill was
moving into her space and speaking in an aggressive tone, and
she felt uncomfortable and intimidated. She eventually told
McDill that she would not discuss the matter any further, and
McDill left. Another employee, Kelly Honors, testified that
she heard Hudson use an uncharacteristically loud voice to
respond to McDill, and that Hudson remained "very
shaken" after McDill left.
contacted Forest Service law enforcement officer Eric Nelson,
and explained what happened. She told him that she thought
McDill would come to her office and that she did not want to
meet with him. Nelson testified that he encountered McDill in
the district office parking lot around 1:30 p.m. that day.
McDill explained to Nelson that he wanted a permit to cut
down the beetle-infested trees. He also told Nelson that he
wanted to start a business to remove slash piles from forest
land. Nelson issued a citation to McDill for
"intentionally interfering w USFS employee in process of
her duties" in violation of 36 C.F.R. § 261.3(c)
for his conduct toward Hudson after the safety meeting.
Nelson also gave McDill a letter acknowledging receipt of the
FOIA request McDill had given Gohl. Nelson told McDill that
they would be willing to work with McDill after his FOIA
request was fully processed and returned, but that in the
meantime, McDill was to have no contact with other Forest
letter Nelson gave McDill indicated that a Forest Service
employee named Matt Spring would contact McDill to provide
him with information regarding the slash piles. McDill
discovered that Spring worked at the Forest Service's
fire management office in Custer and decided to visit the
office to speak to Spring. When he arrived, Gwen Lipp, the
district fire management officer, was leaving the building.
She testified at trial that she was surprised to see McDill
because she was not expecting any visitors to the office.
Lipp informed McDill that Spring was not at work that day,
and offered to assist him instead. Lipp testified that McDill
seemed angry and frustrated. They went inside the building
and sat in her office. Because she felt nervous about being
alone with McDill, she asked another fire management employee
to remain in the office next to hers. She testified that she
and McDill spoke for about forty minutes, and that he had a
"roller-coaster" demeanor and would not stay calm.
According to Lipp, McDill told her that he was upset because
he had been arrested for harassing a Forest Service employee,
when he had simply been trying to obtain information.
Eventually, Lipp and McDill agreed on a plan for Lipp to help
him find the information he sought. After McDill left, Lipp
contacted Forest Service law enforcement and explained what
happened. Nelson then issued a second citation to McDill for
"harassment interference w/ USFS employee in process
of her duties" in violation of 36 C.F.R. § 261.3(c)
for his conduct toward Lipp.
close of trial, the magistrate judge orally convicted McDill
of both counts, and imposed fines and processing fees
totaling $650. McDill appealed pro se to the district court,
and the district court denied the appeal. McDill appealed pro
se to the Eighth Circuit, and we appointed an attorney, who
filed a supplemental brief.
C.F.R. § 261.3(c) prohibits "[t]hreatening,
intimidating, or intentionally interfering with any Forest
officer, volunteer, or human resource program enrollee while
engaged in, or on account of, the performance of duties for
the protection, improvement, or administration of the
National Forest System or other duties assigned by the Forest
Service." The two citations McDill received from Nelson
listed his offenses as "intentionally interfering w USFS
employee in process ...