United States District Court, D. Montana, Billings Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
CAROLYN S. OSTBY, Magistrate Judge.
Before the Court is Defendant Cameron S. Mayo's motion to dismiss charges stated in the Information filed on April 13, 2015. Mayo's Mtn. to Dismiss (ECF 8). Relying on Rule 12(b)(3), Fed. R. Civ. P.,  Mayo argues that the charges originally asserted in two Violation Notices were dismissed with prejudice, and the United States should not be permitted to proceed on identical charges. For the reasons discussed below, the Court will grant Mayo's motion and dismiss this action.
On September 7, 2014, Officer Bricker issued Violation Notice FBFQ000G charging Mayo with "violating terms and conditions of permit" in violation of 36 C.F.R. § 261.10(1). See U.S. v. Mayo, PO 15-5002-BLG-CSO, Viol. Not. (ECF 1) at 1. The citation alleged that Mayo exceeded the number of stock allowed at a campsite within the Absaroka-Beartooth Wilderness. Id. at 1-2.
On December 13, 2014, Officer Tripp issued Violation Notice FATP0003 charging Mayo with "placing or allowing unauthorized livestock to enter or be in the National Forest System or other lands under Forest Service control, to wit - trespass livestock." US v. Mayo, PO 15-5003-BLG-CSO, Viol. Not. (ECF 1) at 1. The citation alleged that Mayo allowed unauthorized livestock to enter onto National Forest System land in violation of 36 C.F.R. § 261.7(a). Id. at 2.
On February 19, 2015, Mayo, with counsel, appeared before the Court and entered "not guilty" pleas to both charges. PO 15-5002-BLG-CSO (ECF 3); PO 15-5003-BLG-CSO (ECF 3). The Court set the cases for trial to commence on April 16, 2015. Id.
On April 13, 2015, the United States filed motions to dismiss "With Prejudice" the two Violation Notices. ECF 5, 6. In the motions, the United States stated that it had filed an Information that day - the case now before the Court - "that charges Mayo with two counts" and noted in each motion that "[t]he allegations contained in each count [of the Information] are duplicative of those found" in the Violation Notices.
The same day, the Court issued orders in both cases granting the United States' motions and dismissing both cases "with prejudice." See PO 15-5002-BLG-CSO ( ECF 9 ) and PO 15-5003-BLG-CSO ( ECF 7 ).
On April 16, 2015, the Court conducted an arraignment on the Information. ECF 6. Mayo waived personal appearance ( ECF 5 ), and the Court entered a "not guilty" plea on his behalf as to both counts in the Information. ECF 6. The Court also entered a Scheduling Order setting deadlines and a June 11, 2015 bench trial date. ECF 7.
On April 30, 2015, Mayo filed the motion to dismiss now before the Court.
II. Parties' Arguments
Mayo advances two principal arguments for dismissal of Counts 1 and 2 of the Information. First, he argues that the Court, on the United States' motions, already dismissed, with prejudice, the two Violation Notices discussed above. Mayo's Mtn. and Opening Br. (ECF 8) at 2-3. Because those charges have been dismissed with prejudice, Mayo argues, they cannot be refiled in federal court.
Second, Mayo argues that he will suffer prejudice if the case is allowed to proceed. Id. at 3. He argues that it is unknown why the United States moved to dismiss the Violation Notices with prejudice rather than without prejudice, and that he did not take a position on the motions prior to the Court granting them. Id. He also argues that the United States could have sought dismissal without prejudice under Rule 48 but failed to do so. Instead, he argues, the United States moved to dismiss with prejudice only three days before trial.
In response, the United States argues that the Court should deny Mayo's motion to dismiss for three reasons. First, the Information "provided a new vehicle for the charges contained in the [Violation Notices] mentioned above[.]" United States' Resp. Br. (ECF 10) at 3. Although acknowledging that "the charges in the Information [are] identical to those found in [the citations]" ( ECF 10 at 2), the United States argues that the form of each is different because they contain different case numbers and, for a time, were pending simultaneously, albeit in parallel actions. Id. The United States' motion to dismiss the Violation ...