United States of America v. Timothy Sullivan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY SULLIVAN,
Defendant-Appellant.
No. 17-15346
D.C. No. 3:16-cv-00078-LRH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted February 15, 2018**
San Francisco, California
Before: HAWKINS and TALLMAN, Circuit Judges, and MURPHY,*** District
Judge.
* 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).
*** The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
FILED
FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Defendant Timothy Sullivan appeals his misdemeanor conviction for
violating a federal Bureau of Land Management (BLM) temporary closure order
by driving without a license as the order required. We have jurisdiction under 28
U.S.C. § 1291 and affirm.
The 2015 “Burning Man” arts festival on Nevada’s Black Rock Desert playa
anticipated approximately 70,000 paid participants. The BLM manages Nevada’s
Black Rock Desert,1 and it properly implemented a temporary closure order (the
“Closure Order”) on the playa from August 10, 2015 to September 21, 2015. See
43 C.F.R. 13 § 8364.1(a); 43 U.S.C. § 1701. The Closure Order provided that an
individual operating a motor vehicle “must possess a valid driver’s license,” and
that noncompliance could result in penalties. See 43 C.F.R. § 8364.1(d).
Around 10:00 p.m. on August 26, 2015, BLM Ranger Keith McGrath pulled
Sullivan over on the entrance road to Burning Man because his rear lights were
inoperative. Sullivan admits he did not have a driver’s license and McGrath cited
Sullivan for violating 43 C.F.R. § 8364.1(d).
A magistrate judge found Sullivan guilty of the offense after a bench trial,
and imposed a $100 fine and a $25 filing fee. The district court affirmed the
magistrate judge’s sentence and denied Sullivan’s motion for reconsideration. On
1 See Nevada National Conservation Lands,
https://www.blm.gov/programs/national-conservation-lands/nevada (last visited
December 21, 2017).

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appeal, Sullivan argues that the evidence was insufficient to uphold his
misdemeanor conviction.
The district court correctly found that the BLM had the authority to require a
valid driver’s license to operate a motor vehicle. See 43 C.F.R. 13 § 8364.1(a).
Based on the evidence presented, a rational trier of fact could find beyond a
reasonable doubt that Sullivan violated the Closure Order. See United States v.
Kaplan, 836 F.3d 1199, 1211 (9th Cir. 2016). The Closure Order prohibited
driving without a license and Sullivan admitted to driving without one. Sufficient
evidence existed to support Sullivan’s misdemeanor conviction. Id.
Sullivan maintains, however, that the BLM lacked authority to require a
valid driver’s license when state law allegedly would not require it. The argument
fails for several reasons. First, the plain language of the Closure Order required any
person operating a motor vehicle to possess a valid driver’s license without
reference to any state law. Second, Sullivan presents no authority suggesting that
the BLM lacked the authority to regulate land within its jurisdiction. Third, this
case involves a prosecution in federal court under a federal regulation. It is thus
irrelevant, as Sullivan avers, that if the case were “prosecuted in state court under
the relevant state statute, relative to driving on the precise area of the Black Rock
playa,” the charge would be dismissed.
Finally, Sullivan argues that the Closure Order violates the Assimilated

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Crimes Act (“ACA”), 18 U.S.C. § 13, and other BLM regulations. The ACA does
not apply. The ACA fills gaps in federal law. Here, no gap exists in the federal
regulation requiring that motorists possess a valid driver’s license on the Desert
Rock playa during Burning Man. Nevada law did not apply, and McGrath did not
enforce Nevada law when issuing Sullivan a citation. Neither does 43 C.F.R.
§ 8365.1-7(a) provide relief. Section 8365.1-7(a) provides that state law shall apply
and be enforced by state authorities except as provided by federal law or
regulation. Again, McGrath enforced a federal regulation, not state law. Sullivan’s
reliance on 43 C.F.R. § 8341.1(e) is also misguided. The regulation requires a
person operating a vehicle off-road on public lands to have a valid state operator’s
license pursuant to state or federal law. Here, the controlling federal regulation
required Sullivan to possess a valid driver’s license when operating a motor
vehicle.
AFFIRMED.

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