U.S. v. Osguthorpe, 2:97-CR-252B.
| Decision Date | 11 August 1998 |
| Docket Number | No. 2:97-CR-252B.,2:97-CR-252B. |
| Citation | 13 F.Supp.2d 1215 |
| Parties | UNITED STATES of America, Plaintiff, v. D.A. OSGUTHORPE, Defendant. |
| Court | U.S. District Court — District of Utah |
Leisha Lee-Dixon, Salt Lake City, UT, for Plaintiff.
Glen Davies, Salt Lake City, UT, for Defendant.
This matter comes before the Court on defendant's appeal of the magistrate judge's decision and sentencing entered August 11, 1997. For the following reasons the magistrate judge's decision is reversed.
Defendant D.A. Osguthorpe is a 76 year old veterinarian who has been involved in the sheep ranching business for over 40 years. Defendant has routinely put his sheep out to summer pasture in Summit County on private ground located in the mountains above Park City, Utah. This private ground borders the Wasatch-Cache National Forest. There is no indication that, during the relevant time period, Osguthorpe ever held a permit to graze his sheep in the neighboring National Forest. In late 1994, the Forest Service issued a Notice of Violation against Osguthorpe for "placing or allowing unauthorized livestock to enter or be in the National Forest" pursuant to 36 C.F.R. § 261.7(a). Osguthorpe did not contest this Notice of Violation and was subsequently sentenced by the magistrate judge to one year unsupervised probation and fined $65.00.
In November and December of 1996, the Forest Service issued a total of three additional Notices of Violation pursuant to 36 C.F.R. § 261.7 alleging that Osguthorpe was guilty of allowing his livestock to enter or be in the National Forest and failing to remove the livestock when requested by a forest officer. On January 16, 1997, Osguthorpe appeared before the magistrate judge and moved the Court for an order consolidating all three Notices of Violation into a single case. The magistrate judge granted defendant's motion and Osguthorpe entered a plea of not guilty.
On March 5, 1997, Osguthorpe filed a Motion to Determine Legal Standard for Violation of 36 C.F.R. § 261.7(a) — specifically regarding whether § 261.7(a) requires a showing of mens rea in order to find a violation. Following a hearing on May 1, 1997, the magistrate judge found that mens rea is not required for a violation of 36 C.F.R. § 261.7(a). The magistrate judge determined that the Forest Service could prove its case by simply proving that the defendant's sheep were on Forest Service lands without authorization. Following the magistrate judge's ruling, Osguthorpe and the United States Attorney, representing the Forest Service, entered into a conditional plea agreement. Osguthorpe changed his plea to guilty on one of the Notices of Violation and the Forest Service agreed to dismiss the other two Notices of Violation. However, the agreement was conditioned on defendant's retaining the right to appeal the magistrate judge's interpretation of 36 C.F.R. § 261.7(a). If successful on appeal, Osguthorpe may withdraw his guilty plea and proceed to trial. In that event, the Forest Service will be entitled to reassert the other Notices of Violation against Mr. Osguthorpe. On June 2, 1997, the magistrate judge accepted the conditional plea bargain and two months later sentenced Osguthorpe to five years supervised probation, conditioned upon spending 30 days in a halfway house, and imposed a fine of $5,000.00. Defendant appeals both the magistrate judge's decision that mens rea is not required under 36 C.F.R. § 261.7(a) and the sentence imposed following defendant's conditional plea of guilty.
The issue raised on appeal centers on the interpretation of one word: allowing. 36 C.F.R. § 261.7(a) prohibits "placing or allowing unauthorized livestock to enter or be in the National Forest System or other lands under Forest Service control." The Forest Service contends, and the magistrate judge agreed, that "placing or allowing" does not require any mens rea and the statute is one of strict liability. Defendant argues that the regulation in question does not eliminate a mens rea requirement. This Court finds that 36 C.F.R. § 261.7(a) is not one of strict liability and does require a showing of mens rea.
It has long been true that "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). Despite this general rule, however, there are criminal statutes that have no intent requirement. Failure to stop at a stop sign is a common example of such a strict liability violation. The question in the instant case is whether 36 C.F.R. § 261.7(a) fits in the strict liability category.
As in all cases of statutory interpretation, we begin with the actual language employed by the regulation in question. The words themselves must be scrutinized to determine whether the legislature has eliminated any mens rea requirement. The words, of course, are to be given their common and ordinary meaning. Indeed,
[c]ourts should be slow to impart any other meaning than their commonly understood meanings to terms employed in the enactment of a statute, and it is the policy of the courts to avoid giving statutory phraseology a new, curious ... unusual, unnatural, strained or forced, artificial ... or subtle meaning. To the contrary, it is a general rule of statutory construction that words of a statute will be interpreted in their ordinary acceptation and significance, and the meaning commonly attributable to them.
73 Am.Jur.2d., Statutes § 206, at 401.
The dictionary definitions of the terms placing and allowing are helpful in interpreting the meaning of § 261.7(a). According to The Random House Dictionary of the English Language (2d ed.1987) the term placing means "to put or set in a particular place, position, situation, or relation." Allowing is defined as "to give permission to or for ...; to permit by neglect; ... to approve [or] sanction; ... to permit something to happen or to exist." Id. The root word allow is a synonym of the word permit which denotes "granting or conceding the right of someone to do something." Id. The common and ordinary meanings of both placing and allowing indicate that some volition must be present. While placing signifies more active participation, allowing equally requires some permissiveness, acquiescence or approval. Thus, looking at the plain language of the Act, and applying ordinary definitions to the words employed, it is apparent that the statute does not altogether dispense with the mens rea element. To "allow" one's livestock to be on forest service property requires some level of involvement on the part of the owner. A sheep rancher has not "allowed" his sheep to be on forest service property, for example, if his sheep were released from the owner's locked pen by the action of a third party unknown to the owner and thereafter the sheep moved onto the government's property.
If the Department of Agriculture had wanted to write a strict liability regulation it could have easily done so. "Any person's sheep found on Forest land is guilty of an offense," would be a strict liability regulation. The present regulation is not.
Pointing to the legislative history, the Government argues that any mens rea requirement that may have existed in the regulation was removed in the 1977 amended version of 36 C.F.R. § 261.7(a). Prior to 1977, the regulation prohibited "[w]illfully allowing livestock to enter upon or to be upon such lands ...." 35 F.R. 3165 (1970) (emphasis added). The amendment replaced "willfully allowing" with the words "placing or allowing." As drafters of the regulation, the Department of Agriculture did not, however add words to indicate that the statute was to be one of strict liability. Therefore, the question is whether the elimination of the word willfully did away with any mens rea, or intent, requirement and made the statute one of strict liability. The Supreme Court has made it clear that the "mere omission from [a criminal statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced." Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952). In United States v. United States Gypsum, Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854 (1978) the Supreme Court held that "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." Id. (emphasis added). See also United States v. Kent, 912 F.2d 277, 280 (9th Cir.1990) (). Furthermore, the Supreme Court provided additional guidance in this area when it stated that "[w]hile strict-liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements, the limited circumstances in which Congress has created and this Court has recognized such offenses, attest to their generally disfavored status." Id. Accordingly, this Court is reluctant to dispense with a mens rea requirement without a clear indication that the drafters of the regulation intended such a result. The removal of the word willfully from 36 C.F.R. § 261.7(a) does not create strict liability. In order to prevail, the Forest Service must show that the defendant acted with the necessary mens rea.
Having held that § 261.7(a) is not a strict liability statute, it is left for this Court to determine the appropriate level of...
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