U.S. v. Knauer

Decision Date14 July 2009
Docket NumberNo. 07-MJ-1193 (MDG).,07-MJ-1193 (MDG).
Citation635 F.Supp.2d 203
PartiesUNITED STATES of America, v. Richard KNAUER, Defendant.
CourtU.S. District Court — Eastern District of New York
635 F.Supp.2d 203
Richard KNAUER, Defendant.
No. 07-MJ-1193 (MDG).
United States District Court, E.D. New York.
July 14, 2009.

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Carolyn Pokorny, Deborah Sue Mayer, Robert Lloyd Capers, United States Attorneys Office, Brooklyn, NY, for United States of America.

David J. Klem, New York, NY, for Defendant.


GO, United States Magistrate Judge:

Defendant Richard Knauer is charged with engaging in commercial fishing in violation of 36 C.F.R. § 2.3(d)(4) and harming/harassing wildlife in violation of 36 C.F.R. § 2.1(a)(1)(i) for harvesting horseshoe crabs from the waters of Jamaica Bay, a unit of Gateway National Recreation Area ("Gateway"). By notice of motion filed on November 13, 2007, defendant moved to dismiss the charges, arguing that he engaged in lawful "commercial fishing" and "fishing" at Gateway. See ct. doc. 3. Following oral argument and supplemental briefing by the parties, this Court issued an electronic order on April 21, 2008 denying the motion and indicating that the rulings would be set forth in a separate order or rulings on the record.

At the conclusion of a bench trial held on April 23, 2008, the defendant made an oral motion for a judgment of acquittal on the commercial fishing charge because horseshoe crabs are not "fish" within the meaning of 36 C.F.R. § 1.4(a). This Court reserved judgment. After consideration of the evidence and law, this Court makes the

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following findings of fact and conclusions of law.


The following findings of fact are based on the exhibits admitted and testimonies of the witnesses presented at trial, all of whom I found to be credible. The government called Kim McKown, a unit leader of the New York State Department of Environmental Conservation ("DEC"), and four employees of the United States Park Service working at Gateway: Donna Harding, a budget analyst in the Jamaica Bay Unit; Park Service Officers Timothy Cosgro and Christopher Pickel; and Lisa Eckert, Superintendent of the Jamaica Bay Unit of Gateway National Recreation Area. Defendant, who waived his attendance at trial but participated by telephone, called Dr. William Velhager, Assistant Professor of Biology at New York University.

Gateway National Recreation Area consists of the "lands, waters, marshes, and submerged lands in the New York Harbor area" extending from Jamaica Bay in the southern part of Queens and Brooklyn, along the southern side of Staten Island to Sandy Hook, New Jersey. 16 U.S.C. § 460cc(a). The Jamaica Bay Unit of Gateway includes "the islands, marshes, hassocks, submerged lands, and waters in Jamaica Bay, Floyd Bennett Field," and "the lands within one-fourth mile of the mean low water line" in "the area of Jamaica Bay to the shoreline of John F. Kennedy International Airport." 16 U.S.C. §§ 460cc(a)(1) and (6).

Defendant Richard Knauer resides in Sheepshead Bay, Brooklyn and was the holder of a commercial fishing permit issued by New York State that is valid through December 31, 2009 and permits the commercial harvesting of crabs, including horseshoe crabs.

On May 29, 2007, United States Park Police Officers Timothy Cosgro and Christopher Pickel saw Knauer on a fishing boat within the federal waters of Jamaica Bay, approximately one mile from state waters to the east and two miles from state waters running in a channel to the west, taking horseshoe crabs out of the Bay with a gaff. After they pulled alongside and boarded Mr. Knauer's vessel, the officers saw that the vessel was filled with over 70 horseshoe crabs piled several layers deep on the boat bottom. Explaining to Officer Cosgro that he was a commercial fisherman "just trying to make a living," Knauer produced a New York State Commercial Fishing License. Officer Cosgro advised that the permit was not valid in the federally protected waters of Jamaica Bay and directed the defendant to throw the horseshoe crabs overboard. Although Officer Cosgro proceeded to write out two summonses, the defendant did not remove any horseshoe crabs from the boat.1 After he completed writing, Officer Cosgro handed the two summonses to Mr. Knauer and explained what the defendant had to do. The defendant then headed away in his boat in a northerly direction.

Prior to May 29, 2007, neither Officer Cosgro nor Donna Harding had ever observed people engaged in commercial fishing or the harvesting of horseshoe crabs or other wildlife in Jamaica Bay.

Animals commonly known as fish are classified with other vertebrates under phylum chordata. Fish are further classified within this phylum into classes known as Agnatha, Osteichthyes (bony fishes such

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as eels and goldfish) and Chondrichthyes (cartilaginous fish such as sharks and rays). Mollusks, which include snails, clams and squid, are in phylum Mollusca while crustaceans such as shrimp and lobsters are in a subphylum of phylum Arthropoda. Horseshoe crabs, which are more closely related to spiders and scorpions, are classified in subphylum Chelicerata of phylum Arthropoda. Although horseshoe crabs are not scientifically classified as crustaceans, Ms. McKown testified that the DEC, the agency in New York State responsible for regulating wildlife, manages horseshoe crabs as crabs.

Superintendent Eckert testified that the taking of wildlife or hunting is prohibited at Gateway. Prior to May 29, 2007, Superintendent Eckert had issued a compendium further regulating use and conduct at the Jamaica Bay Unit in exercise of her discretionary authority under the governing statutory and regulatory scheme. The Compendium provided that "hunting ... [and] the taking of ... horseshoe crab are prohibited throughout the Jamaica Bay Unit."2 Further, the informational brochure for the Gateway National Recreation Area, which included a map of the park and was available at all the park's visitor center offices, included a warning that "[a]ll natural and cultural resources, including wildlife, rocks, plants and structures are protected by federal law. Do not disturb or destroy." Govt.'s Exh. 12.



Mr. Knauer is charged with violating two provisions contained in Chapter I to

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Title 36 of the Code of Federal Regulations (the "regulations"), which govern, inter alia, conduct within "[t]he boundaries of federally owned lands and waters administered by the National Park Service." See 36 C.F.R. § 1.2(a)(1). The terms used in Chapter I are defined in section 1.4(a), unless otherwise modified by a particular part or regulation. Id. Under section 1.4(a), the term "fishing" is defined as "taking or attempting to take fish." "Fish" are defined as any member of the subclasses Agnatha, Chondrichthyes, or Osteichthyes, or any mollusk or crustacean found in salt water. "Wildlife" is defined as "any member of the animal kingdom and includes a part, product, egg or offspring thereof, or the dead body or part thereof, except fish." By these definitions, all members of the animal kingdom are categorized as either "fish" or "wildlife."

It is undisputed that horeshoe crabs are in the subphylum Chelicerata rather than in any of the categories listed in the definition of "fish" in section 1.4(a). Thus, I find for purposes of Title 36, Chapter I, that horseshoe crabs are classified as "wildlife" and not as "fish." In fact, Lisa Eckert, the Superintendent of the Jamaica Bay Unit and a government witness, concurred with this classification.

"Commercial Fishing" Charge

Section 2.3 of the regulations contains provisions which, inter alia, regulate practices, methods and locations for fishing. See 36 C.F.R. § 2.3. Mr. Knauer is charged with violating section 2.3(d)(4), which prohibits "[c]ommercial fishing, except where specifically authorized by Federal statutory law." Since "fishing" is defined in section 1.4(a) as the "taking or attempting to take fish" and since, as discussed above, horseshoe crabs are not "fish," I conclude that the government has not proved that the defendant took any fish or engaged in "fishing," as regulated under section 2.3.

The government argues that the broader definition of "commercial fishing" provided in section 7.45(c) applies here. See 36 C.F.R. § 7.45(c)(3) (defining "commercial fishing" as taking or harvesting any form of "fresh or salt water aquatic life for the purpose of sale or barter"). However, section 7.45 clearly applies only to Everglades National Park. See Lesoeur v. U.S., 21 F.3d 965, 968 (9th Cir.1994) ("regulations in Part 7 of Chapter 36 are special regulations for specific park areas"); 36 C.F.R. § 1.2(c). Alternatively, the government argues that the broader state law definition of "commercial fishing" should be incorporated into section 2.3(d)(4). Under the Supremacy Clause, federal law supercedes conflicting state law.3 See U.S. v. Brown, 552 F.2d 817, 823 (8th Cir.1977). The Secretary of the Interior has provided that only non-conflicting state laws are permitted to be incorporated into section 2.3. See 36 C.F.R. § 2.3(a). The state law definition of "commercial fishing" clearly conflicts with the definitions of "fish" and "fishing" in section 1.4(a) and cannot apply here.

Since the government has not offered a persuasive argument for reading the definitions of "fish" and "fishing" in section 1.4 out of the phrase "commercial fishing" as used in section 2.3(d)(4), I find that defendant did not take fish. Accordingly, I

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grant defendant's motion for a judgment of acquittal on the charge that he engaged in commercial fishing in violation of section 2.3(d)(4).

Before trial, defendant moved to dismiss this charge principally on the ground that he was engaging in permissible commercial fishing, which is not banned by the enabling statute for Gateway. Although I denied defendant's motion in an electronic order and stated that a written opinion would be forthcoming, I now deny that motion as moot.

Harming/Harassing Wildlife Charge

Section 2.1...

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7 cases
  • U.S.A v. Knauer
    • United States
    • U.S. District Court — Eastern District of New York
    • April 20, 2010
    ...Judge Go with a copy of the Compendium dated May 25, 2007. On July 14, 2009, Magistrate Judge Go issued a decision. United States v. Knauer, 635 F.Supp.2d 203 (E.D.N.Y.2009). She acquitted Knauer of the commercial fishing charge, finding that horseshoe crabs are not fish for purposes of fed......
  • Dawkins v. Biondi Educ. Ctr.
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    • U.S. District Court — Southern District of New York
    • February 10, 2016
    ...F. , 199 F.3d at 107, but these regulations are also a matter of which judicial notice may be taken, see United States v. Knauer , 635 F.Supp.2d 203, 206 n.2 (E.D.N.Y.2009) (noting “courts may take judicial notice of the rules and regulations of an administrative agency”); cf. Anglisano v. ......
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    • U.S. District Court — Eastern District of New York
    • January 4, 2017
    ...406, 425 (2d Cir. 2008)) (taking judicial notice of the Federal Register and Code of Federal Regulations); United States v. Knauer, 635 F. Supp. 2d 203, 206 n.2 (E.D.N.Y. 2009) ("[I]t is long established that courts may take judicial notice of the rules and regulations of an administrative ......
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    • U.S. District Court — Eastern District of California
    • May 9, 2018
    ...take judicial notice of the rules and regulations of an administrative agency, including in criminal cases." United States v. Knauer, 635 F. Supp. 2d 203, 206 n. 2 (E.D.N.Y. 2009) (discussing Gateway's Superintendent's Compendium and stating "[j]udicial notice of such documents may be taken......
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