U.S.A v. Knauer

Decision Date20 April 2010
Docket NumberNo. 09-CR-586 (ILG).,09-CR-586 (ILG).
Citation707 F.Supp.2d 379
PartiesUNITED STATES of America,v.Richard KNAUER, Defendant.
CourtU.S. District Court — Eastern District of New York


Robert Lloyd Capers, United States Attorneys Office, Brooklyn, NY, for United States of America.

David J. Klem, New York, NY, Deirdre Dionysia Von Dornum, Brooklyn, NY, for Defendant.


GLASSER, Senior District Judge:

Defendant appeals a criminal conviction imposed after a bench trial before Magistrate Judge Marilyn D. Go. For the reasons stated below, defendant's conviction is vacated and a judgment of acquittal is entered.


Defendant Richard Knauer (Knauer) is a fisherman with a valid New York State commercial fishing permit which allows the commercial harvesting of horseshoe crabs. On May 25, 2007, Knauer was engaged in the harvesting of horseshoe crabs within the waters of the Jamaica Bay Unit of the Gateway National Recreation Area (“Gateway”). After receiving a phone call reporting Knauer's activities, two United States Park Police Officers approached Knauer's fishing boat in their own vessel. After witnessing Knauer catching horseshoe crabs, and observing some 50 to 80 crabs already in his boat, they informed him that his activities were illegal. They then issued Knauer two misdemeanor summonses: commercial fishing in violation of 36 C.F.R. § 2.3(d)(4) and harming or harassing wildlife in violation of 36 C.F.R. § 2.1(a)(1)(i).


On April 23, 2008, a bench trial was held before Magistrate Judge Go. At his trial, Knauer did not dispute the government's description of his actions on May 25, 2007, but rather challenged the legal authority under which he had been charged. First, Knauer argued that, under federal law, horseshoe crabs are not technically fish, and thus he could not be guilty of commercial fishing. Second, he argued that there was no regulation which actually prohibited the taking of horseshoe crabs in Jamaica Bay. At the conclusion of trial, Knauer made a motion for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing that, on the basis of the evidence presented at trial, he could not be found guilty of commercial fishing. Magistrate Judge Go reserved judgment on this motion.

On May 7, 2008, Magistrate Judge Go requested from the government a copy of the version of the Jamaica Bay Unit Compendium, a collection of regulations issued by the Jamaica Bay Unit of the Gateway National Park, in effect on May 29, 2007. Knauer promptly objected to this request on the grounds that it was an impermissible reopening of the trial and that the court could not take judicial notice of the Compendium. The government subsequently provided Magistrate 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 federal law,2 but found Knauer guilty of harming or harassing wildlife, relying primarily on a regulation found in the Compendium banning the hunting of horseshoe crabs, and imposed a $275 fine. On August 19, 2009, Knauer appealed this conviction, and, on April 9, 2010, oral argument was heard.


Knauer raises several arguments in support of his appeal. He first argues that the Compendium on which the magistrate judge relied was not properly admitted into evidence, was not subject to judicial notice, and thus could not properly provide the basis for his conviction. He then argues that, assuming the Compendium was properly considered, the regulation which banned the hunting of horseshoe crabs was not lawfully promulgated and was therefore invalid. Finally, he argues that, in the absence of the Compendium, there is no statutory or regulatory authority which would ban the harvesting of horseshoe crabs in Jamaica Bay.

The government argues that the Compendium was properly before the court and that its regulations were valid and thus supported Knauer's conviction. The government further argues, however, that even if the Compendium cannot be considered federal law independently prohibits the activity Knauer was engaged in. The government has not challenged Knauer's acquittal on the commercial fishing charge.

1. Standard of Review

This Court has jurisdiction over Knauer's appeal under Rule 58(g)(2)(B) of the Federal Rules of Criminal Procedure. In an appeal of a criminal conviction by a magistrate judge, “the scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge.” Fed.R.Crim.P. 58(g)(2)(D). The court of appeals “review [s] de novo the district court's legal conclusions and accept[s] its factual determinations, unless clearly erroneous, viewing those facts in the light most favorable to the government.” United States v. Gandia, 424 F.3d 255, 261 (2d Cir.2005).

2. Federal Statutory and Regulatory Provisions
a. Prohibition on Harming or Harassing Wildlife

The government argued at trial and continues to argue in its brief that, even without considering the Jamaica Bay Unit Compendium, Knauer's conduct violated 36 C.F.R. § 2.1(a)(1)(i). According to the government, the regulations implemented by the Secretary of the Interior (“the Secretary”) considered together with the federal statute that established Gateway are sufficient to criminalize the taking of horseshoe crabs within Gateway.

Because there is considerable dispute between the parties regarding the legitimacy and admissibility of the regulations contained in the Compendium, 3 and because the government's argument at trial did not rely on the Compendium,4 the Court first considers whether Knauer's conviction may be upheld even absent the contested Compendium regulation.

Knauer was charged with a violation of 36 C.F.R. § 2.1(a)(1)(i), which provides, in relevant part:

(a) Except as otherwise provided in this chapter, the following is prohibited: (1) Possessing, destroying, injuring, defacing, removing, digging, or disturbing from its natural state: (i) Living or dead wildlife or fish, or the parts of products thereof, such as antlers or nests.

The Secretary, under his authority to administer the national parks, has promulgated a number of regulations which apply to the parks generally, including definitions of various terms used throughout the regulations. The terms “fish,” “wildlife,” “fishing,” and “hunting” are defined as follows:

Fish means any member of the subclasses Agnatha, Chondrichthyes, or Osteichthyes, or any mollusk or crustacean found in salt water.
Wildlife means any member of the animal kingdom and includes a part, product egg or offspring thereof, or the dead body or part thereof, except fish.
Fishing means taking or attempting to take fish.
Hunting means taking or attempting to take wildlife, except trapping.

36 C.F.R. § 1.4(a) (in relevant part, reordered for clarity). Thus, the animal kingdom is divided into two mutually exclusive classes, fish and wildlife, and the taking of fish and the taking of wildlife are classified as fishing and hunting, respectively. As Magistrate Judge Go found, and neither party disputes, horseshoe crabs belong to the subphylum Chelicerata, and not to any of the categories listed in the definition of fish in 36 C.F.R. § 1.4(a). As such, they are properly classified as wildlife rather than fish, and the taking of horseshoe crabs would be classified as hunting, not fishing. 5

The provision Knauer was charged of violating, 36 C.F.R. § 2.1(a)(1)(i), protects both wildlife and fish, and thus would prohibit both hunting and fishing. This prohibition, however, applies [e]xcept as otherwise provided in this chapter.” 36 C.F.R. § 2.1(a)(1)(i). It is necessary then, to consider whether Knauer's activities were otherwise provided for. Hunting is specifically addressed under 36 C.F.R. § 2.2(b), which provides:

(1) Hunting shall be allowed in park areas where such activity is specifically mandated by Federal statutory law.
(2) Hunting may be allowed in park areas where such activity is specifically authorized as a discretionary activity under Federal statutory law if the superintendent determines that such activity is consistent with public safety and enjoyment, and sound resource management principles. Such hunting shall be allowed pursuant to special regulations.

36 C.F.R. § 2.2(b)(1)-(2) (emphasis added).

This provision distinguishes between park areas where hunting is “specifically mandated by Federal statutory law,” id. at (1), and those where it is “specifically authorized as a discretionary activity under Federal statutory law,” id. at (2). In the former, hunting “shall be allowed” as mandated while in the latter, it “may be allowed” if authorized by the park superintendent. Id. at (1)-(2). Thus, the first step in the Court's analysis is to determine the statutory status of hunting in the Jamaica Bay Unit of Gateway.

b. Hunting under the Enabling Act

The Gateway National Recreation Area was created by federal statute, codified at 16 U.S.C. § 460cc et seq. (“Gateway Enabling Act). This statute defines Gateway's boundaries and divides it into several geographic units, including the Jamaica Bay Unit. 16 U.S.C. § 460cc. In addition, it provides for Gateway's administration by the Secretary of the Interior. 16 U.S.C. § 460cc-2. The Secretary is instructed to “utilize such statutory authority available to him for the conservation and management of wildlife and natural resources as he deems appropriate to carry out the purposes of this subchapter.” Id. at (a). The Secretary is further instructed to “administer and protect the islands and waters within the Jamaica Bay Unit with the primary aim of conserving the natural resources, fish, and wildlife located therein and shall permit no development or use of this area which is incompatible with this purpose.” Id.

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