U.S. v. Mowat
| Decision Date | 18 July 1978 |
| Docket Number | Nos. 77-2944,77-3096,77-3097 and 77-3284,s. 77-2944 |
| Citation | 582 F.2d 1194 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Karl Anthony MOWAT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Francis N. KAUHANE, Jr. and Charles K. Warrington, Jr., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Rae Mei-Ling CHANG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter RITTE, Jr. and Richard Sawyer, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barbara Lee Melvin (argued), Honolulu, Hawaii, for defendants-appellants.
Thomas Morrison (argued), Honolulu, Hawaii, for plaintiff-appellee.
On Appeal from the United States District Court for the District of Hawaii.
Before MERRILL, CUMMINGS * and SNEED, Circuit Judges.
In February 1977, defendant Karl Mowat was indicted for going upon a military reservation on the Hawaiian Island of Kahoolawe as prohibited by Instruction 5510.35 1 issued by the Commandant of the Fourteenth Naval District in San Francisco on January 14, 1976. This was said to violate 18 U.S.C. § 1382. 2 Subsequent criminal informations charged defendants Ritte, Sawyer, Chang, Warrington and Kauhane with similar violations. The alleged trespasses occurred in January and February 1977.
On April 22, 1977, defendants Kauhane and Warrington filed a motion to dismiss the information against them on the ground that Instruction 5510.35 had not been published in the Federal Register and therefore was not lawfully promulgated. They also asserted that the Instruction violated the Free Exercise clause of the First Amendment and the Due Process clause of the Fifth Amendment and that it does not apply to the beaches and trails on Kahoolawe Island. The other defendants joined in this motion but Judge King filed a decision and order denying it.
Five of the defendants received a bench trial before Judge Thompson commencing on June 21 and were convicted. Kauhane and Warrington were sentenced to 60 days' imprisonment, but their sentence was suspended and they were placed on probation for three years providing they pay a fine of $500 and not return to Kahoolawe without permission of the court. Ritte and Sawyer were each sentenced to six months' imprisonment and fined $500, and Chang was placed on probation for three years provided that she should pay a fine of $250 and not return to Kahoolawe without permission of the court.
Defendant Mowat's bench trial occurred before Judge Thompson on June 24, 1977. He also was convicted and received a six-months' prison term, with two months to be spent in a jail-type or treatment institution and the other four months suspended. In addition, he was placed on probation for three years and not allowed to return to Kahoolawe without the court's permission. We affirm all six convictions.
The Island of Kahoolawe is the smallest of the eight major Hawaiian Islands and comprises an uninhabited area of approximately 45 square miles. According to Judge King, this island was given by King Kamehameha III to the Hawaiian Kingdom as Government Land and was transferred to the United States upon annexation of the Hawaiian Islands in 1898. On February 20, 1953, President Eisenhower issued Executive Order 10436 placing the entire island under the jurisdiction of the Secretary of the Navy, except for 23.5 acres set aside for the Coast Guard for lighthouse purposes in 1928. 3 The Executive Order reserved this land for naval purposes and provided that when there was no longer a military need, notice should be given to the Territory of Hawaii and then upon request the area should be rendered "reasonably safe for human habitation" by the Department of the Navy. Since 1953, the island has been used for a target range.
The Instruction then stated that any unauthorized person entering the island would be deemed to be in violation of 18 U.S.C. § 1382.
The Instruction was distributed through the military community, the local federal law enforcement agencies, and government departments within the State of Hawaii. It was also posted on Entry Prohibited signs on the island but was not published in the Federal Register. On an almost weekly basis, the Navy sent news releases to media sources throughout the state advising that entry on Kahoolawe was prohibited. The Navy also sent almost weekly notices to the director of the Fish and Game Division of the Hawaiian Department of Land and Natural Resources to the same effect. Consequently, the notification appeared in Fish and Game notices posted throughout Hawaii.
During 1976, there was considerable publicity given to Kahoolawe and its use by the Navy as a target complex through the Protect Kahoolawe Ohana organization ("Ohana"). There was also publicity about defendant Sawyer's April 1976 acquittal and Dr. Emmett Aluli's September 1976 acquittal for allegedly trespassing on Kahoolawe. (The grounds for those acquittals are not material here.) In 1976, they, defendants Mowat and Ritte and other Ohana members filed a civil suit against the Navy concerning its use of the island.
On January 30, 1977, defendants Ritte, Sawyer, Warrington and Kauhane entered Kahoolawe by boat at night and without advance consent. Warrington and Kauhane were picked up by marine helicopter on February 2, and Ritte and Sawyer were located and removed on March 5.
On February 6, 1977, defendant Mowat entered the island without consent by swimming part way at night. He was removed by helicopter on February 9.
On February 27, a marine helicopter spotted defendant Chang on a Kahoolawe beach without consent, and she was removed on the same date.
On appeal, the various defendants raise a number of arguments that can be consolidated into five groups: (1) the notice of the Instruction afforded the defendants violated the Administrative Procedure Act or due process; (2) conviction under Section 1382 requires specific intent; (3) the Instruction and the statute in prohibiting the defendants' conduct violate due process and the First Amendment; (4) the Navy had insufficient control and ownership over Kahoolawe to prevail under Section 1382; and (5) at least one of the defendants' conduct was justified under principles of necessity. Because of our conclusion that these arguments are without merit, the six convictions will stand.
Because the violation for which they were punished was defined at least in part in an unpublished Instruction, defendants argue that their convictions violate the Administrative Procedure Act or the Due Process clause. In response, the Government offers two contentions, only the second of which we find persuasive: first, the Government argues that the Act does not require publication of the Instruction and alternatively it argues that defendants can be punished consistent with both the Act and the due process clause because they had actual knowledge of the prohibition against unauthorized entry upon
Kahoolawe. A. The Failure to Publish COMFOURTEEN INSTRUCTION
Admittedly COMFOURTEEN INSTRUCTION 5510.35 was not published in the Federal Register until January 4, 1978 (43 FR 785). The Administrative Procedure Act requires each agency to publish "substantive rules of general applicability" in the Federal Register (5 U.S.C. § 552(a)(1)(D)). The Government urges that this Instruction is not a substantive rule of general applicability, so that defendants may not take refuge in that portion of the Administrative Procedure Act which provides that a person may not be "adversely affected by, a matter required to be published in the Federal Register and not so published" (5 U.S.C. § 552(a)(1)). Both under its own regulations and under the applicable case law the Government's arguments are unpersuasive.
First, in implementing the requirements of the Administrative Procedure Act, the Department of the Navy has adopted in 32 C.F.R. § 701.56(b)(4)(i) the definition of "general applicability" contained in 1 C.F.R. § 1.1. In pertinent part, 1 C.F.R. § 1.1 defines "general applicability" as follows:
" 'Document having general applicability and legal effect' means any document issued under proper authority prescribing a penalty or course of conduct, conferring a right, privilege, authority, or immunity, or imposing an obligation, and relevant or applicable to the general public, members of a class, or persons in a locality, as distinguished from named individuals or organizations * * *."
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