U.S. v. Moon Lake Electric Ass'n, Inc., No. 98-CR-228-B.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBabcock
Citation45 F.Supp.2d 1070
PartiesUNITED STATES of America, Plaintiff, v. MOON LAKE ELECTRIC ASSOCIATION, INC., Defendant.
Docket NumberNo. 98-CR-228-B.
Decision Date20 January 1999
45 F.Supp.2d 1070
UNITED STATES of America, Plaintiff,
v.
MOON LAKE ELECTRIC ASSOCIATION, INC., Defendant.
No. 98-CR-228-B.
United States District Court, D. Colorado.
January 20, 1999.

Page 1071

Joseph Mackey, United States Attorney's Office, Criminal Division, Denver, CO, for plaintiff.

Peter R. Nadel, Gorsuch, Kirgis LLP, Denver, CO, Mark R. Gaylord, Suitter Axland, Salt Lake City, UT, for defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.


On June 9, 1998, the United States of America ("the government") filed an Information charging defendant, Moon Lake Electric Association, Inc. ("Moon Lake"), with seven violations of the Bald and Golden Eagle Protection Act ("the BGEPA"), 16 U.S.C. § 668 (1997), and six violations of the Migratory Bird Treaty Act ("the MBTA"), 16 U.S.C. §§ 703 & 707(a) (1997) (collectively, "the Acts"). in connection with the deaths of 12 Golden Eagles, 4 Ferruginous Hawks, and 1 Great Horned Owl. Moon Lake moves for dismissal of the charges, arguing that the Acts do not apply to unintentional conduct that is not the sort of physical conduct normally exhibited by hunters and poachers. Moon Lake also argues that § 707(a) of the MBTA is unconstitutional as applied under the circumstances of this case. The issues are fully briefed and the parties presented oral argument on November 13, 1998. For the reasons set forth below, I deny Moon Lake's motion.

I. BACKGROUND

I glean the following from the parties' briefs and oral arguments. Moon Lake is a "rural electrical distribution cooperative" that provides electricity to customers in northeastern Utah and northwestern Colorado. At issue in this case is Moon Lake's supply of electricity to an oil field near Rangely, Colorado. The electricity is conveyed by power lines strung across 3,096 power poles. The oil field is located near the White River in an area that is home to several species of protected birds, including Bald Eagles, Golden Eagles, Ferruginous Hawks, and Great Horned Owls. The oil field is mostly treeless, making Moon Lake's power poles preferred locations for perching, roosting, and hunting by birds of prey. The government alleges that Moon Lake has failed to install inexpensive equipment on 2,450 power poles, causing the death or injury of 38 birds of prey during the 29 month period commencing January 1996 and concluding June 1998.

As noted above, the Information charges Moon Lake with causing the deaths of 12 Golden Eagles, 4 Ferruginous Hawks, and 1 Great Horned Owl. Specifically, the Information alleges that Moon Lake did "take and kill" those 17 protected birds.

II. LEGAL STANDARDS APPLICABLE TO MOTIONS TO DISMISS UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 12(b)

Rule 12(b) states that "[a]ny defense, objection, or request which is capable of

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determination without the trial of the general issue may be raised before trial by motion." Fed.R.Crim.P. 12(b). An information or indictment is deemed constitutionally sufficient if it: (1) contains the essential elements of the offense intended to be charged; (2) sufficiently apprises the accused of what he must be prepared to defend against; and (3) enables the accused to plead an acquittal or conviction as a bar to any subsequent prosecution for an identical offense. Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Walker, 947 F.2d 1439, 1441 (10th Cir. 1991). Courts should test the sufficiency of an information or indictment by considering solely the allegations made, which allegations should be accepted as true for purposes of Rule 12(b). United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). Generally, the strength or weakness of the government's case, or the sufficiency of the government's evidence to support a charge, may not be challenged by pretrial motion. United States v. King, 581 F.2d 800, 802 (10th Cir.1978). When a pretrial motion raises questions of fact intertwined with issues involving the merits, courts should defer determination of that matter until trial. United States v. Knox, 396 U.S. 77, 83, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); United States v. Self, 2 F.3d 1071, 1082 (10th Cir.1993). Likewise, courts may defer determination of a constitutional question if the production of evidence will materially aid its determination. See, generally, WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2d § 194 (1982 & Supp.1998).

III. WHETHER DEFENDANT'S ALLEGED CONDUCT CONSTITUTES A VIOLATION OF THE MBTA OR THE BGEPA

Moon Lake argues that the electrocutions, even if they occurred as alleged, do not constitute violations of the MBTA or the BGEPA because the electrocutions were unintentional and not caused by the sort of conduct normally exhibited by hunters and poachers. Moon Lake contends that, in proscribing the taking or killing of protected birds, Congress intended to target only poaching, hunting, trapping, and other "intentionally harmful" acts directed toward protected birds. In contending that its alleged conduct was unintentional, Moon Lake focuses on the mens rea, or mental state, required for conviction. By arguing that Congress intended to punish only conduct normally exhibited by hunters and poachers, Moon Lake directs my attention to the actus reus, or the physical act, required for conviction.

When courts interpret statutes, the initial inquiry focuses on the language of the statute itself. United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 92 L.Ed.2d 483 (1986); Southern Ute Indian Tribe v. Amoco Production Co., 151 F.3d 1251, 1257 (10th Cir.1998) (en banc); F. Frankfurter. Some Reflections on the Reading of Statutes 16 (1947) ("Though we may not end with the words in construing a disputed statute, one certainly begins there."). Courts do not, however, read specific statutory language in isolation: courts "`must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.'" Southern Ute, 151 F.3d at 1257 (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988)). If congressional will "`has been expressed in reasonably plain terms, "that language must ordinarily be regarded as conclusive."'" Id. (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980))). Courts should assume Congress intended the words to be given their ordinary meaning, which may be discovered through the use of dictionaries. United

Page 1073

States v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673, 1677, 137 L.Ed.2d 1001 (1997). While contemporaneous dictionary definitions of words in a statute are relevant, the existence of alternative dictionary definitions may themselves indicate that the statute is ambiguous. Southern Ute at 1257 (citing Smith v. United States, 508 U.S. 223, 228-229, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), and National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 418, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992)). Only if statutory language is ambiguous do courts resort to legislative history as an interpretive aid. Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991); United States v. Simmonds, 111 F.3d 737, 742 (10th Cir.1997).

The MBTA states, in relevant part:

Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or in part, of any such bird or any part, nest, or egg thereof....

16 U.S.C. § 703. "Take" is defined as to "pursue, hunt, shoot, wound, kill, trap, capture, or collect." 50 C.F.R. § 10.12 (1997). Moon Lake does not argue that the Department of Interior's definition of the word "take" is arbitrary, capricious, or manifestly contrary to the MBTA. Accordingly, I defer to the Department of Interior's definition of "take" as a reasonable interpretation of the MBTA's plain language. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

The BGEPA states, in relevant part:

Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as provided in this subchapter, shall knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles, or whoever violates any permit or regulation issued pursuant to this subchapter, shall be fined not more than $5,000 or imprisoned not more than one year or both....

16 U.S.C. § 668. "Take" under the BGEPA "includes also pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or disturb...." 16 U.S.C. § 668c.

a. Whether the Acts Proscribe Only "Intentionally Harmful" Conduct

The plain language of the Acts belies Moon Lake's contention that the Acts regulate only "intentionally harmful" conduct. In United States v. Corrow, 119 F.3d 796 (10th Cir.1997), cert. denied, ___ U.S....

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23 practice notes
  • U.S. v. Friday, No. 06-8093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 8, 2008
    ...company whose wires had killed 38 eagles, without proof of intent or even of negligence. United States v. Moon Lake Elec. Ass'n, Inc., 45 F.Supp.2d 1070 (D.Colo.1999); see Larry Martin Corcoran & Elinor Colbourn, Shocked, Crushed and Poisoned: Criminal Enforcement in Non-Hunting Cases Under......
  • Patterson v. State, S15G1303
    • United States
    • Supreme Court of Georgia
    • July 14, 2016
    ...for some of the activities seemingly embraced within the sweeping statutory definitions.”); United States v. Moon Lake Elec. Assn., 45 F.Supp.2d 1070, 1084 (III) (b) (D. Colo. 1999) (“While prosecutors necessarily enjoy much discretion, proper construction of a criminal statute cannot depen......
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    • United States District Courts. United States District Court (Columbia)
    • March 14, 2014
    ...the Indictment, ... [killed migratory] birds were found in tanks owned by [the defendants].”); United States v. Moon Lake Elec. Ass'n, 45 F.Supp.2d 1070, 1071 (D.Colo.1999) (“The government alleges that Moon Lake has failed to install inexpensive equipment on 2,450 power poles, causing the ......
  • Pub. Emps. for Envtl. Responsibility v. Beaudreau, Civil Action No. 10–1067
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 14, 2014
    ...the Indictment, ... [killed migratory] birds were found in tanks owned by [the defendants].”); United States v. Moon Lake Elec. Ass'n, 45 F.Supp.2d 1070, 1071 (D.Colo.1999) (“The government alleges that Moon Lake has failed to install inexpensive equipment on 2,450 power poles, causing the ......
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19 cases
  • U.S. v. Friday, No. 06-8093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 8, 2008
    ...company whose wires had killed 38 eagles, without proof of intent or even of negligence. United States v. Moon Lake Elec. Ass'n, Inc., 45 F.Supp.2d 1070 (D.Colo.1999); see Larry Martin Corcoran & Elinor Colbourn, Shocked, Crushed and Poisoned: Criminal Enforcement in Non-Hunting Cases Under......
  • Natural Res. Def. Council, Inc. v. U.S. Dep't of the Interior, 18-CV-4596 (VEC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 11, 2020
    ...Cty. Wildlife Ass'n v. U.S. Forest Serv. , 113 F.3d 110, 115 (8th Cir. 1997) (same); United States v. Moon Lake Elec. Ass'n, Inc. , 45 F. Supp. 2d 1070, 1077 (D. Colo. 1999) (discussing proximate cause in the context of the MBTA); cf. Hemi Grp., LLC v. City of New York , 559 U.S. 1, 9, 130 ......
  • Patterson v. State, S15G1303
    • United States
    • Supreme Court of Georgia
    • July 14, 2016
    ...for some of the activities seemingly embraced within the sweeping statutory definitions.”); United States v. Moon Lake Elec. Assn., 45 F.Supp.2d 1070, 1084 (III) (b) (D. Colo. 1999) (“While prosecutors necessarily enjoy much discretion, proper construction of a criminal statute cannot depen......
  • Fund for Animals v. Norton, No. 04 Civ. 959(PKC).
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    • March 28, 2005
    ...June 23, 2003) (describing MBTA as reflecting Congress's "resolve to protect migratory birds"); United States v. Moon Lake Elec. Ass'n, 45 F.Supp.2d 1070, 1079 (D.Colo.1999) ("the legislative history of the MBTA supports differing interpretations," and the statute "is capable of supporting ......
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  • Rapanos v. United States: Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles
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    • Environmental Law Reporter Nbr. 40-12, December 2010
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    ...causation principles to the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§703-712. See United States v. Moon Lake Electric Ass’n Inc., 45 F. Supp. 2d 1070, 1085 (D. Colo. 1999) (stating that proximate cause is an “important and inherent limiting feature” to the MBTA). would not? Justice Ken......
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  • A Pendulum Seldom Stops in the Middle: Shifting Views on 'Take' of Raptors and Other Migratory Birds
    • United States
    • Environmental Law Reporter Nbr. 48-7, July 2018
    • July 1, 2018
    ..., e.g. , United States v. FMC Corp., 572 F.2d 902, 905, 8 ELR 20326 (2d Cir. 1978). 75. United States v. Moon Lake Elec. Ass’n, Inc., 45 F. Supp. 2d 1070, 1083 (D. Colo. 1999). Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli......
  • THE OBSOLESCENCE OF BLUE LAWS IN THE 21ST CENTURY.
    • United States
    • Stanford Law & Policy Review Vol. 33 Nbr. 2, June 2022
    • June 22, 2022
    ...347 F. Supp. 2d 626, 629 (E.D. Wis. 2004) (declining to allow a defense of desuetude); United States v. Moon Lake Elec. Ass'n, Inc., 45 F. Supp. 2d 1070, 1083 (D. Colo. 1999) (assuming the doctrine's vitality but finding it inapplicable on the merits); State ex rel. Canterbury v. Blake, 584......

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