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United States v. Kenner

United States District Court, D. Nebraska

February 28, 2017

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

          MEMORANDUM, ORDER, AND FINDINGS PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 23(C)

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         I do not like the decision I make in this case. But my likes or dislikes, of course, are not relevant. My job is to apply the law whether I like it or not. When I do, I find and conclude that Paul Kenner is “guilty” of the four petty “crimes” set forth in the superseding information because he was negligent.

         This decision follows a non-jury trial pursuant to the consent of the parties. It was tried over two days in North Platte, Nebraska. Briefs were subsequently submitted.

         The prosecutor and the defense lawyer are among the best trial lawyers I have been privileged to observe. I thank them for their civility and professionalism and compliment them on their zealous advocacy.

         SUMMARY OF SUPERSEDING INFORMATION

         Condensed and summarized, the government alleges that Defendant, a Nebraska rancher, allowed 300 head of his cattle to graze on land of the Valentine National Wildlife Refuge (Refuge) without paying the required fee and that a motorized vehicle was used in the process. The United States Fish and Wildlife Service (USFWS) operates the Refuge. The Refuge is bordered on three sides by Defendant's land, and he claims that his cattle entered the Refuge because of a faulty fence, which was to be maintained by the Refuge.

         Specifically, the government has charged the defendant with:

(1) permitting 300 head of cattle to enter the Valentine National Wildlife Refuge without authorization;
(2) using a motorized vehicle on the Refuge;
(3) disturbing, injuring, and destroying plants on the Refuge; and
(4) conducting a commercial enterprise (cattle grazing) on the Refuge without authorization.

         RELEVANT STATUTES AND REGULATIONS

         A statute, 16 U.S.C. § 668dd(c)-part of the National Wildlife Refuge System Administration Act of 1996-details prohibited and permitted activities on the lands that comprise the National Wildlife Refuge System, and it expressly provides: “No person shall disturb, injure, cut, burn, remove, destroy, or possess any real or personal property of the United States, including natural growth, in any area of the System . . . or enter, use, or otherwise occupy any such area for any purpose . . . .” The government claims that Kenner violated the statute in four ways. The government has also alleged a violation of 18 U.S.C. § 2, the aiding and abetting statute.

         The penalty for one “who knowingly violates or fails to comply with any of the provisions of this Act or any regulations issued thereunder shall be fined under Title 18 or imprisoned for not more than 1 year, or both.” 16 U.S.C. § 668dd(f)(1) (italics added). However, the penalty for one “who otherwise violates or fails to comply with any of the provisions of this Act (including a regulation issued under this Act) shall be fined under Title 18 or imprisoned not more than 180 days, or both.” 16 U.S.C. § 668dd(f)(2) (italics added).

         The government proceeds only under (f)(2) of the penalty provision. Thus, it is relieved of proving a “knowing” violation beyond a reasonable doubt.

         The regulations issued pursuant to the Act that Defendant is charged with violating provide as follows:

•50 C.F.R. § 26.21 (COUNT 1): Except as specifically authorized:
“No person shall trespass, including but not limited to entering, occupying, using, or being upon, any national wildlife refuge . . . .” 50 C.F.R. § 26.21(a).
“No unconfined domestic animals, including but not limited to . . . cattle, shall be permitted to enter upon any national wildlife refuge or to roam at large upon such an area . . . .” 50 C.F.R. § 26.21(b).
•50 C.F.R. § 27.31 (COUNT 2):
“Travel in or use of any motorized or other vehicles, including those used on air, water, ice, snow, is prohibited on national wildlife refuges except on designated routes of travel . . . .”
•50 C.F.R. § 27.51 (COUNT 3):
“Disturbing, injuring, . . . destroying, . . . or attempting to disturb, injure, . . . destroy . . . any plant or animal on any national wildlife refuge is prohibited ...

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