United States District Court, D. Nebraska
MEMORANDUM, ORDER, AND FINDINGS PURSUANT TO FEDERAL
RULE OF CRIMINAL PROCEDURE 23(C)
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
OF SUPERSEDING INFORMATION
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.
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
(4) conducting a commercial enterprise (cattle grazing) on
the Refuge without authorization.
STATUTES AND REGULATIONS
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.
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).
government proceeds only under (f)(2) of the penalty
provision. Thus, it is relieved of proving a
“knowing” violation beyond a reasonable doubt.
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
“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