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United States v. Kenner

United States District Court, D. Nebraska

October 12, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL KENNER, Defendant.

          FINDINGS AND RECOMMENDATION

          Cheryl R. Zwart United States Magistrate Judge

         This 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.

         BACKGROUND

         The 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.

         Certain 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 by Defendant.

         On 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.

         Two 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 VNWR.
III. Kenner disturbed, injured, and destroyed plants on the VNWR.
IV. Kenner conducted cattle grazing on the VNWR without authorization to do so.

         Defendant 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 Congress's authority.

         ANALYSIS

         The 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 ...


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