United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
R. Zwart United States Magistrate Judge
matter is before the court on Defendant's Motion to
Dismiss, (Filing No. 7) and the subsequent amendment
thereto, (Filing No. 20). For the reasons set forth
below the motions should be denied.
Valentine National Wildlife Refuge (VNWR) is located in
Cherry County, Nebraska. It was created by executive order in
1935 and is part of the National Wildlife Refuge system. As
such, the VNWR is administered by the United States
Department of the Interior, U.S. Fish and Wildlife Services
and is home to a variety of plants and wildlife.
areas of the VNWR are made available periodically to area
ranchers for livestock grazing purposes. In exchange for
grazing rights, a cattle rancher can pay a fee to the VNWR.
One such area is designated as Unit 35C. A landowner other
than Defendant has contracted with the VNWR to graze his or
her livestock on Unit 35C. Defendant has not contracted with
the VNWR for grazing rights on Unit 35C and has paid no money
to do so. Unit 35C is surrounded on three sides by land owned
October 8, 2015, employees of the VNWR found approximately
400 head of Defendant's cattle grazing in Unit 35C. There
were also six mineral tubs scattered around a portion of Unit
35C. The mineral tubs were not the property of the VNWR. From
the cattle tracks on the property leading to Defendant's
property, the VNWR presumed the cattle belonged to Defendant.
The refuge manager contacted Defendant and instructed him to
remove his cattle from the VNWR. The next day the cattle and
the mineral tubs had been removed from Unit 35C.
agents from the U.S. Fish & Wildlife Service visited
Defendant on October 28, 2015 to discuss the October 8, 2015
incident. Defendant allegedly stated he placed cattle on Unit
35C to graze with the hopes of reducing or removing the risk
of wildfires on his property. (Filing No. 14 at CM/ECF p.
2-3). Defendant allegedly stated the cattle had been grazing
on Unit 35C for approximately 10 days. (Filing No. 14 at
CM/ECF p. 3). The United States filed an Information against
Kenner on June 28, 2016 charging him with four counts related
to the October 2015 grazing incident. Defendant moved to
dismiss the information. (Filing No. 7). The U.S.
subsequently filed as superseding information again,
asserting the following four counts:
I. Kenner did permit approximately 400 head of cattle to
enter upon the VNWR and to roam at large without
authorization to do so.
II. Kenner traveled in and used a motorized vehicle on the
III. Kenner disturbed, injured, and destroyed plants on the
IV. Kenner conducted cattle grazing on the VNWR without
authorization to do so.
has moved to dismiss counts I, II, and IV. In so moving,
Defendant alleges the regulations on which the counts are
based represent an unconstitutional delegation of
National Wildlife Refuge System Administration Act of 1966
(16 U.S.C. §§ 668dd-668ee) (“the Act”)
brought all of the nation's wildlife refuges under the
umbrella of a unified system. The Act sets forth numerous
goals and missions for the wildlife refuge system. See 16
U.S.C. § 668dd. The expressed purposes of the Act
include the conservation of “fish, wildlife, . . . all
lands, waters and interests therein administered by the
Secretary as wildlife refuges.” 16 U.S.C. §
668dd(a)(1). The Act instructs the Secretary to “ensure
that the biological integrity, diversity, and environmental
health of the System are maintained for the benefit of
present and future generations of ...