United States v. Miltenberger
| Decision Date | 16 March 2015 |
| Docket Number | No. 1:14-PO-08177-JPH,1:14-PO-08177-JPH |
| Court | U.S. District Court — District of Washington |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BRADLEY C. MILTENBERGER, Defendant. |
This petty offense matter came on regularly for bench trial on February 20, 2015 before the undersigned United States Magistrate Judge. Legal Intern, Tyler Rube, supervised by Assistant United States Attorney Tyler Tornabene appeared on behalf of the United States of America ("Government"). Defendant, Bradley C. Miltenberger, appeared pro se.
Defendant, a resident of Oregon, is charged by Violation Notice with entering a closed portion of a national wildlife refuge in violation of 50 C.F.R. 25.21, in the Umatilla National Wildlife Refuge ("UNWR"). At the trial, the Government offered the testimony of U.S. Fish and Wildlife Services Officer Christopher David and Regional Land Surveyor David Hills. Defendant offered hisown testimony and the testimony of his wife, Chavonne Miltenberger. In addition, a number of exhibits were admitted into evidence. (ECF No. 20, Ex. 2). Based on the evidence submitted at the trial, the arguments of counsel and the Defendant, the Court makes the following Findings of Fact and Conclusions of Law.
1. The alleged violation occurred on the afternoon of August 16, 2014, a Saturday. The Defendant and his family had stopped their boat on the shore of the Columbia River at Little Blalock Island, set up a shade canopy and chair on a sand bar at the shallow water's edge, and allowed the children to swim. The Defendant was located on a mud flat or sand bar, in the shore zone below the present day high-water mark and above the water's edge.
2. The Columbia River consists of waters of exceptional cultural, economic, commercial, navigational, recreational, and ecological significance to the area. The Columbia River is the largest river in the Pacific Northwest region and forms the interstate boundary between Washington and Oregon. Its navigability is stipulated. The river contains 14 hydroelectric dams, including the John Day Dam which is located 216 miles upriver from where the river empties into the Pacific Ocean.
3. The construction of the John Day Lock and Dam Project commenced in the late 1950s and completed in 1971. The reservoir within the Columbia River created by the construction of the John Day Dam is Lake Umatilla. David Hills testified that Blalock Island is a large island in the Columbia River. After the flooding behind the John Day Dam, only areas of higher ground remained creating a cluster of smaller islands (see Ex. 1), including what is today referred to as "Little Blalock Island." Water levels at Little Blalock Island are regulated by operation of the dam by the United States Army Corps of Engineers.
4. As part of the John Day Dam project, the United States acquired title by condemnation to large tracts of riparian land lying within and along the Columbia River. Government's Exhibit 9 is a "title opinion" letter dated January 4, 1966 from the U.S. Attorney General to the U.S. Secretary of the Army regarding his examination of the title evidence for Blalock Island, 3,596 acres referred to as "Tract 1203." The letter states the United States obtained valid title to Tract 1203 in condemnation proceedings after final judgment (entered June 11, 1965) and payment of the award of $87,250 plus interest. The letter states the estate acquired was "[t]he fee simple title, subject, however to existing easements for public roads, and highways, for public utilities, railroads and pipelines." (Ex. 9).
5. Government's Exhibit 10 is a Certificate of Title for Blalock Island ("Tract 1203") dated July 30, 1963 and prepared by Puget Sound Title InsuranceCompany. The boundary between land and the parcels bordering water was described as "the line of ordinary high water of the Columbia River." (Ex. 10 at 4). The Certificate of Title states that title to the property was "indefeasibly vested in fee simple of record in: United States of America as of the 30th day of July 1963..."
6. Although the natural riverbed beneath Lake Umatilla has not been surveyed, David Hills testified that he relied upon historical imagery and GIS software to determine that the pre-dam ordinary high-water level of the Columbia River at Blalock Island was approximately elevation 240 above sea level. With the construction of the dam and creation of Lake Umatilla the water level rose by approximately 20 feet.
7. In 1969, the Umatilla National Wildlife Refuge was established to mitigate habitat loss due to flooding caused by the construction of the John Day Dam. (Ex. 126). The UNWR encompasses over 20,000 acres and a 20-mile stretch of the Columbia River which includes "open water, shallow marshes, backwater sloughs, croplands, islands, and shrub-steppe uplands." (Ex. 125; Ex. 1).
8. Public recreation, including boating, hunting, and fishing, is allowed within the UNWR. For decades, Little Blalock Island was "classified for recreational use" and excepted from UNWR management. (Ex. 17). This changed in July 1995 when the Army Corps of Engineers transferred management authorityover Little Blalock Island to the U.S. Fish and Wildlife Service (FWS). The FWS designated Little Blalock Island an area closed to the public.
9. In the afternoon of August 16, 2014, FWS Officer Christopher David received notice from two Oregon State Fish and Wildlife officers that people were on Little Blalock Island. Officer David and three other officers boated to the Island. As Officer David approached the group, he observed a boat anchored at the shoreline and a shade canopy "a short distance" from the boat on the shore. Defendant was located in area at times covered by water, above the pre-dam high-water mark, but below the present day high-water mark.
The Defendant explained to Officer David his belief that he high a right to recreate in the navigational river channel below the high-water mark. Officer David issued the Defendant Violation Number 4397031 for entering a closed portion of the UNWR.
10. The FWS maintains "Island Closed" signs on stakes and posts on Little Blalock Island. (Exs. 2, 4). The FWS maintains different signs elsewhere in the UNWR to designate boundaries. The Government entered into evidence several photographs showing the Island Closed signs. The evidence shows the closest sign to the Defendant on the day in question was a single small white sign on a post approximately 25 feet upland from the location of the incident. See also, ECF No. 1 (Statement of Probable Cause). Defendant admits noticing the distant sign. Thereis no evidence that the Defendant ever approached or accessed any land beyond a UNWR sign.
Defendant is charged with failing to comply with a refuge regulation, 50 C.F.R. § 25.21, which provides in pertinent part as follows:
Except as provided below, all areas included in the National Wildlife Refuge System are closed to public access until and unless we open the area for a use or uses in accordance with the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee), the Refuge Recreation Act of 1962 (16 U.S.C. 460k-460k-4) and this subchapter C...We may open an area by regulation, individual permit, or public notice, in accordance with § 25.31 of this subchapter.
50 C.F.R. § 25.21. A violation of this regulation is a petty offense. The provision § 25.21 references, subchapter § 25.31, provides:
50 C.F.R. § 25.31 (emphasis added).
The mission of the National Wildlife Refuge System "is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States." 16 U.S.C. § 668dd(a)(2). Public recreation was recognized by Congress as a legitimate use in the National Wildlife Refuge System. 16 U.S.C. § 460k. The Secretary of Interior was authorized to "administer such areas or parts thereof for public recreation when in his judgment public recreation can be an appropriate incidental or secondary use" and "to curtail public recreation use generally or certain types of public recreation use within individual areas or in portions thereof whenever he considers such action to be necessary...." Id.
The Government must prove the Defendant's guilt beyond a reasonable doubt. To prove the Defendant guilty, the Government must prove that on August 16, 2014,
(1) the United States held an unencumbered title to the shore of Little
Blalock Island;
(2) the shore of Little Blalock Island was part of the Umatilla National Wildlife Refuge System;
(3) the shore was closed to public access; and
(4) the Defendant was not authorized to be on the shore of Little Blalock Island.
The Government must prove beyond a reasonable doubt that the Defendant was within the bounds of the UNWR. The Government contends the UNWR boundary here is coterminous with its legal boundary for title purposes over Blalock Island. In this case, the Government contends that Blalock Island's property...
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