U.S. v. Wheeler, 4:98CR3044.
| Decision Date | 22 March 1999 |
| Docket Number | No. 4:98CR3044.,4:98CR3044. |
| Citation | 44 F.Supp.2d 1030 |
| Parties | UNITED STATES of America, Plaintiff, v. Rex G. WHEELER, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Alan L. Everett, Assistant United States Attorney, Lincoln, NE, for plaintiff.
Steven E. Achelpohl, Omaha, NE, for defendant.
When does a river channel cease to become a part of the river? This case presents that interesting question in the context of a criminal prosecution.
The United States has charged Rex G. Wheeler with violating the Lacey Act. See 16 U.S.C. § 3371, et seq. The United States claims that Wheeler unlawfully guided Georgia hunters during a deer hunt on a state game refuge. The boundaries of the game refuge are: "All that portion of the State of Nebraska on the North Platte River and for twenty rods1 back of the banks of said stream on the land side in Garden County, Nebraska, and, except for the repair for existing alterations, future alterations in the banks by the damming of such streams shall not be recognized as effecting legal changes of such refuge boundary." Neb.Rev.Stat. § 37-412 (Michie 1995).2 The parties waived a jury trial.
The government argues that the boundaries of the game refuge extend 20 rods north of the Midland-Overland channel. The defendant argues that since the channel remains open only because of the long standing maintenance by an irrigation company, the water course no longer constitutes a river channel. If the government is correct, Wheeler may be guilty.3 If the defendant's position is adopted, he is innocent.
Applying the rule of lenity to the Nebraska statute that forms the predicate for the charges, I find and conclude that Wheeler is not guilty of the government's accusations.4 In so ruling, I do not decide the boundaries of the refuge. Rather, I decide that Wheeler must be given the benefit of the statutory doubt. My reasons for this decision are set forth briefly below. See Fed.R.Crim.P. 23(c).
I first describe facts that are basic to an understanding of this case. I then examine the text, structure and legislative history of the statute defining the boundaries of the refuge. I also review other interpretative aids.
The defendant was charged with four felony counts of violating 16 U.S.C. §§ 3372(a)(2)(A) and 3373(d)(1)(B). This statutory scheme makes it unlawful for any person to sell in interstate commerce wildlife taken in violation of the laws or regulations of a state. Guiding a hunter for a fee is deemed to be a sale under federal law. 16 U.S.C. § 3372(c)(1). The Nebraska law alleged to have been violated is Neb.Rev.Stat. § 37-418 (Michie 1995) (making it unlawful to hunt game animals within the boundaries of a game refuge). Neb.Rev.Stat. § 37-412 (Michie 1995) defines Garden County refuge.5
Wheeler is a former chief deputy county sheriff in Garden County, Nebraska. Garden County is intersected by the North Platte river. The area is rich in wildlife, including deer. In addition to his law enforcement duties, Wheeler ran a guide service. Along the banks of the North Platte river is a game refuge known as the Garden County Game Refuge. Although the refuge is protected by state law, the land is privately owned.
During deer hunting season in November of 1997, Wheeler guided three hunters from Georgia. He was paid $4000 for the hunt. He used a portion of the money to rent land upon which the hunters could hunt, and he kept the rest. Some of the land rented by Wheeler was the Beam property located immediately north of a portion of the Garden County Refuge.
The hunters shot and killed four deer. Everyone agrees that they shot the deer at locations suggested by Wheeler. It is also undisputed that Wheeler prepared "deer stands" in the trees at those locations. At Wheeler's suggestion, the hunters stood on the stands for the purpose of shooting the animals. Wheeler agrees that the deer stands are within 20 rods of the north bank of the Midland-Overland water course. Furthermore, Wheeler knew that the deer stands and the hunting activity was going to and did take place within 20 rods of that area. In contrast, it is also undisputed that the deer stands and the hunting activity occurred far beyond 20 rods from the north bank of the main channel of the North Platte river.6
In the relevant area, the North Platte River generally flows south and east. The river has various channels and it has a sandy bottom. The location of the numerous banks of the river change over time. New river channels are constantly being made by the course of the river and old channels are filled by sediment deposits. When that occurs, the channel no longer carries river water.
Several irrigation companies divert water from the river. The Midland-Overland irrigation company is one of those companies. The predecessors of the Midland-Overland company began operating prior to 1900 by diverting water from the river at points relatively near the site of the dispute. The farmers who contract with the Midland-Overland company use the water exclusively for the purpose of irrigating crops.
The Midland-Overland irrigators have been diverting water from the river at the specific site known as the Bennet sand dam since at least 1948.7 The water is diverted by the Bennet sand dam from a part of river. The water runs into the disputed channel due to the obstruction caused by the Bennet sand dam.8 However, not all the river water is diverted by the Bennet sand dam. The river, and the remaining water, continues to the south and east at the Bennet sand dam while the disputed channel runs in a more easterly direction.
In the fall, the Bennet dam is breached by Midland-Overland irrigation company.9 Most of the water then flows in the river as opposed to flowing into the disputed channel. However, after the dam is breached, the disputed channel sometimes carries water over some or all of its length. At other times the disputed channel is dry.
When the Bennet dam is operating, the disputed channel carries the water east to what everyone agrees is an irrigation canal. The path of the disputed channel branches. One branch of the disputed channel becomes the irrigation canal and the other becomes a channel that returns to the river (the "river return"). If the disputed channel is dammed at this branch point, water returns to the river rather than into the irrigation canal. Thus, the Midland-Overland company can "spill" excess water back to the river. The disputed channel, the "river return" and the irrigation canal appear to be nearly identical in physical character; that is, the channel, return and canal are depressions in the soil rather than fabricated structures. With the exception of a "head gate" and a measuring device at the beginning of the canal, there is very little to distinguish the disputed channel from the canal.
The deer were killed in an area adjacent to and north of the disputed channel. The Bennet dam is west of this spot. The river return and the canal are located east of the area where the deer were shot. In other words, the area where the deer were killed is between the Bennet dam on the one hand and the river return and canal on the other hand.
Except for the disputed channel, there is presently no water course between the main channel of the river and the area where the deer were killed.10 In the past, there were other watercourses directly south of where the deer were killed. These watercourses lay between the main river channel and the disputed channel. Those watercourses are shown in aerial photographs taken in 1965 and 1939. However, they have now disappeared and are covered by trees and vegetation. Thus, at this time, there are only two watercourses directly south of the spot where the deer were killed.
In addition to constructing the Bennet dam on a yearly basis and maintaining the irrigation canal, the Midland Overland company annually maintains the disputed channel between the Bennet dam and the canal. For example, each spring, since approximately 1948, heavy equipment is operated in the channel to clear it of sediment and other debris. The disputed channel is much smaller in width than compared to the river. From the air, it also has a different appearance than the river.11
J. Michael Jess testified as an expert witness retained by the defense. For nearly 18 years, and until January of 1999, Jess was the Director of the Nebraska Department of Water Resources (DWR). Before that, he was deputy director of DWR for about six years. Among other things, DWR is responsible for formulating Nebraska's water policy. It also regulates the diversion of water from rivers, including where, when and how such diversions may take place.
Jess holds both a bachelors and masters degree in civil engineering. He is a licensed professional engineer. As the Director of DWR, Jess was responsible for the regulation of all of Nebraska's rivers, including the North Platte River. He oversaw the regulation of diversions of water from the North Platte River by irrigation companies, including the Midland-Overland company. In this regard, he administered the Nebraska portion of North Platte River in accordance with a decree of the United States Supreme Court. See, e.g., Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945). Everyone acknowledges that Jess is a preeminent authority on hydrologic, civil engineering and regulatory matters concerning the North Platte River.
Jess testified that the disputed channel, while once a channel of the river, had long ago ceased to be a part of it. It was his opinion that but for annual construction of the Bennet dam, and the associated maintenance of the channel by the Midland-Overland irrigation company, the disputed channel would have been blocked and filled by sediment. If that had happened, then the channel would have ceased to exist as a water course of any kind. Relying upon his training and experience, two...
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Scofield v. State, Dnr
...also allege that the use of the Canal to establish a boundary for the refuge is "contrary to prior legal precedent," in particular, U.S. v. Wheeler,2 an opinion of the U.S. District Court for the District of Second, the Scofields assert that under the Nebraska and federal Constitutions, the......