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Law Offices of Ronald W. Rutz
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June 27, 2000: Bobcat Fire; Complications of Elian Gonzalez

Q: A composite of a number of questions: I heard on the radio and also read in one of the Denver papers that if someone did cause the Bobcat Fire, he or she could only be charged with a misdemeanor which carries a fine of $50 and some community service, but no jail time

A: Do not bet that this is a ballgame where the State can only make one pitch and then the game is over. But I want to be general since this matter is still unfolding legally.

The actual criminal charges, along with prosecutorial discretion, will depend completely on the circumstances that surrounded this incident, such as the intent of the alleged perpetrator, location of the act, knowledge and reasonable foreseeability, how other such acts have been handled in Larimer County and Colorado, etc.

Naturally the Larimer County District Attorney's office does not wish to pre- disclose possible charges but rest assured, if warranted, legal counts are possible besides the one that you heard and read about, depending of course on how the facts unfold.

On the civil side, notwithstanding any criminal liability, a negligent recreator can be held liable for part or all of the cost to fight the fire, the destruction of federal and/or state property (trees, animals, habitat, etc.) and restoration costs, and the loss of private property.

Now obviously a person's assets and possible insurance coverage would probably not begin to cover the foregoing, so any civil judgment obtained could prove to be meaningless.

One person asked if there was a program for those causing fires like the arrangement where the costs of search and rescue are paid by a state fund, if the person had a hiker's license or a hunting or fishing license.

I was informed that there is no similar program set up for reimbursement for fighting fires.

Thus, any of us could have our lives completely turned upside down by the simple act of being in the woods and starting a fire.

Q: I appreciated your column on Elian because the events over the last few months now make sense. But then I became confused again because some law school professor apparently said the Supreme Court would never hear this case because there was neither conflicting decision among federal judicial circuits nor diversity of citizenship. But everything I read prior to his comments suggested that an appeal to the Supreme Court was possible.

A: The Elian column has evoked more responses than almost any other column, except those on water. By the time you read this, he may be back in Cuba. But the legal issues and background are still interesting.

To be certain that there was not something I had missed in my general day- to-day reading of the unfolding events, I telephoned my old law school professor who also has experience at the State Department and the United Nations. I also talked with two colleagues who are still involved in this area and pay attention to this stuff.

Basically two general issues were argued custody and then political asylum for a minor.

Concerning custody, diversity existed because on one side were U.S. citizens (the child's relatives) and the Cuban father was on the other side. There were also strong elements of international law present. So if the Supreme Court wanted, it certainly could have taken this "hot potato."

The professor is believed to have referred to the asylum plea and was perhaps technically correct at one level of thought, but even here four of the Supreme Court Judges could vote to take the appeal but in order to give the Court time to hear the matter, five judges would have had to vote to stay (freeze) the lower court's order, which in effect would have permitted Elian to leave in order to give the Court time to hear the matter.

In following these matters in the future, in general, remember if the Supreme Court wants to hear a matter badly enough, it can find a way. If the Court does not, or is luke warm, then arguments will be accepted which suggest no jurisdiction. And yes, there are the Constitution, laws, and procedures that need to be followed, but attorneys are paid to find the right door to the Court.

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