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UPDATED: Case Of Hubbell Trading Post Indian Trader Heard By 9th Circuit Court Of Appeals


During a nearly 45-minute back-and-forth Friday judges of the 9th U.S. Circuit Court of Appeals tried to sort out the details offered by both sides in the case of an Indian trader who lost his job at the Hubbell Trading Post National Historic Site due to questionable actions by the National Park Service.

No immediate ruling was made by the three-judge panel, though their interest seemed to lie primarily in whether the attorneys for Billy Malone had filed their lawsuit against seven now-retired National Park Service personnel before the statute of limitations ran out.

You can listen to the hearing at this site.

Through his appeal, Mr. Malone seeks to have his civil rights lawsuit - known as a Bivens Claim - against the federal defendants reinstated and remanded back to the lower court for trial. Those defendants are: Clyde Yee, Mike Snyder, Steve Martin, Cyd Martin, Patricia Buccello, Brian Smith, and Carl "Chip" Davis.

Other federal employees originally named in the lawsuit included Assistant U.S. Attorney (now federal Magistrate-Judge) Mark Aspey, and Rob Eaton, an attorney in the Department of Interior's Office of the Solicitor. Messieurs Aspey and Eaton were dismissed earlier from the lawsuit, based upon the immunity they enjoy as government attorneys.

The original lawsuit also named the Western National Parks Association, and its top officials at the time, LeAnn Simpson and Jim Babbitt. Those parties reached an out-of-court settlement with Mr. Malone in 2012. 

In the lawsuit, originally filed in February of 2008 and amended in 2009, the Indian trader argued that named parties conspired to violate his 4th Amendment right against unreasonable search and seizure, and other constitutional rights, by illegally seizing a life savings in valuable rugs, jewelry, and other Indian crafts from his Hubbell Trading Post home nearly ten years ago, in 2004, as part of a misguided criminal investigation falsely alleging a long list of crimes.

Those allegations had been brought to the National Park Service's Intermountain Region Office, then headed by Mr. Martin, with Mr. Snyder his deputy, by Mr. Malone's then-employer, the WNPA. The property was seized from Mr. Malone's home adjacent to the trading post when Park Service case agent Clyde Yee and a team of support personnel - including officials employed by the WNPA - executed a search warrant on the morning of June 9, 2004.

That and other property belonging to Malone was retained in both National Park Service and WNPA custody for more than two years. It was later determined that the original search warrant - which did not authorize the seizure of rugs, jewelry, or any other personal property - had been issued based a supporting affidavit containing false statements that had been prepared by Agent Yee, and authorized by Assistant U.S. Attorney Aspey.

The charges against Mr. Malone were never substantiated. Instead, the Park Service conducted an investigation of its own initial Hubbell investigation, and then the Inspector General's office conducted yet another investigation of the investigation. In the end, it's been estimated that more than $1 million was spent by the Park Service on the matter, which ended without any charges brought against Mr. Malone.

Through its investigation, the Inspector General's Office "determined that the NPS failed to protect the confidentiality of the investigation, and we found that an improper relationship existed between NPS and WNPA, a nonprofit organization that operates the Hubbell Trading Post under a cooperative agreement with NPS."

Mr. Malone's property was eventually returned to him when another agent and federal prosecutor took over the investigation.

According to supporting documents submitted by Mr. Malone, the WNPA had partially funded and participated in the Park Service investigation based upon an agreement reached with Park Service officials. In the agreement, the non-profit cooperating association would "benefit" from its financial contribution to the investigation through improved relations with the Park Service and, ultimately, the permanent transfer of "evidence" and other property seized from Mr. Malone, to the WNPA for its own use.

Mr. Malone's lawsuit against the federal defendants was dismissed by the District Court in Phoenix in February 2010. The court found that while the Indian trader's rights may have been violated, he had failed to make a showing of evidence likely to prove at trial the requisite "meeting of the minds" necessary to establish that the various defendants had actually conspired to commit such violation.

Federal law holds that to prevail in civil rights case against federal employees, a plaintiff must not only prove that his or her rights were violated, but that such violation occurred as a the result of a conspiracy.

In January of 2012, Mr. Malone filed a "motion to reconsider" with the 9th Circuit Court of Appeals, arguing that the District Court had erred in its dismissal. Today's hearing was held in response to that motion, allowing both Mr. Malone and the government to present oral arguments.

If Mr. Malone prevails, the civil suit, (which seeks compensatory damages), against some or all of the federal defendants would likely be reinstated and sent back to the District Court for trial.

Mr. Malone's attorneys have not indicated what action they will take if the appeals court denies their motion.  


Let's hope that, somehow, justice may finally prevail.

My knowledge of this case rests basically on the book "The Case of the Indian Trader" by Paul Berkowitz. The book is an excellent read and the issues raised by Mr. Berkowitz, to my knowledge, have never been addressed by the NPS, malfeasance at its best. That said, I agree Lee, the NPS and WNPA actions were simply wrong. I hope that some obscure legal technicality does not hurt Mr. Malone's chances.

I just don't understand why it is so hard for people and organizations to do a mea culpa. In my life it has been most therapeutic for me, and most healing for relationships, when I've looked at a situation and said, "Ya know, I screwed up. You were right. I'm sorry for what that did to you. How can we make this right?" But I don't find other people doing this all that often, let alone groups of people.

We have removed a comment from this thread that went over the line and, in some circles, might be viewed as libelous. While the author of that comment might disagree, like it or not the Traveler is not the vehicle to malicously tar-and-feather individuals, whether they're public officials or not.

Sorry Kurt, I was just pointing out the association of one of those mentioned above as a defendant in this lawsuit to someone else at the center of another recent NPS scandal and how I believe it is indicative of a certain clannishness in the agency that leads to these problems --to put it in more diplomatic terms.

I don't think there was much in the comment that hasn't already been stated in decisions rendered by federal courts.

If you don't mind I will provide this link to a story from the NPS's own internal website that will allow the reader to connect the dots themselves should they choose.!msg/parklandsupdate/Yt7THs5dYsY/j6kv3A...

RickB, I think your post is right on. It is not anyones intent to be vindictive or smear persons. I think, and I know it is easier said then done, to just fessup, things usually work out better than the stonewalling, etc. We are all human, we make mistakes. I was involved in a prescribed fire in a major park that got away from the fire management team. The Park Superintendent at that time was really a personable up front guy. He immediately went to the community groups affected by the incident, and simply stated, we made a mistake, we are here to admit that and make right what we can. What a difference his position made with everyone. He was an excellent example of good leadership.

Rick B, I agree totally and on a much bigger scale than just Park issues. It seems most are so far down their rabbit holes of careers and ideology they don't even know how far offtrack they may be. A universal temptation on all sides but so long as it's rewarded and excepted as the normal, the decline will continue I'm afraid. Those coming up see how their leadership operates and how to succeed but fail miserably in other ways. The few that maintain in good conscience, I'll have to prey for:).
Yep, a mea culpa is good. Is there a Mea Culpa Overlook in the Park Service:)?

I steer to the middle ground. I don't, unlike others who frequent these parts, feel that the NPS or all park management are wrong automatically, and should be required to issue mea culpa's at all occasions. Nor do I think that the NPS as a whole or park managers entirely are without fault. The Red Queen philosophy as a default ["Off with their heads!"] is more destructive than not.

The world is not black and white - it's a symphony of grey. IF someone is wrong, they should say as much. That's IF.

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