US v. Billie

• Decision Date: 24 August 1987
• Docket Number: No. 87-8038-Cr-Paine.,87-8038-Cr-Paine.
• Parties: UNITED STATES of America, Plaintiff, v. James E. BILLIE, Defendant.
• Court: U.S. District Court — Southern District of Florida

667 F. Supp. 1485

UNITED STATES of America, Plaintiff, v. James E. BILLIE, Defendant.

No. 87-8038-Cr-Paine.

United States District Court, S.D. Florida.

August 24, 1987.

F. Henry Habicht, II, Asst. Atty. Gen., and Donald A. Carr, James C. Kilbourne, and Charles W. Brooks, Attys., U.S. Dept. of Justice, Washington, D.C., for U.S.

Bruce Rogow, Fort Lauderdale, Fla., and Michael L. Kobiolka, Davie, Fla., for defendant.

MEMORANDUM AND ORDER ON MOTIONS TO DISMISS

PAINE, District Judge.

This cause came before the court on defendant's motion to dismiss based upon the invalidity of the Endangered Species Act as applied to acts without a commercial purpose on the Seminole Indian Reservation (DE 20), the Government's response (DE 27), and defendant's reply (DE 34). Also before the court was defendant's "omnibus" motion to dismiss (DE 19), the Government's response (DE 28), and defendant's reply (DE 35). By this motion the defendant asks the court to determine the requisite mens rea to sustain a conviction and argues that (1) the Government has selectively prosecuted him on the basis of national origin and has "failed to use the least restrictive means" of accomplishing its goal of protecting endangered species, (2) the information must be dismissed for multiplicity, and (3) the possession count of the information violates his right to freedom of religion under the First Amendment.

The court held a hearing on August 13, 1987 and received evidence on the motions to dismiss based on First Amendment and selective prosecution grounds (DE 19). The court denied the selective prosecution motion at the hearing, finding that defendant had not carried his burden of proof.¹ On August 14, the court issued an order (DE 42) denying the remaining motions to dismiss (DE 19, 20) and stating that the court would set forth its reasons in a separate order to be entered forthwith. In accordance with that promise, and having considered the submissions of the parties, the testimony of the witnesses, and the items received in evidence as well as the pertinent authorities, the court renders the following memorandum and order.

I. BACKGROUND

On April 14, 1987, James Billie was charged in a two count information with the taking and subsequent possession, carrying, and transportation of a Florida panther, in violation of the Endangered Species Act, 16 U.S.C. § 1531 et seq. (1982) (the Act); see id. §§ 1538(a)(1)(B), 1538(a)(1)(D), 1540(b)(1). The felis concolor coryi or Florida panther is a particular subspecies of panther listed as "endangered" pursuant to the Act. The defendant is a member and chairman of the Seminole Indian Tribe, which has approximately 1,700 enrolled members. All of the acts complained of in the information were committed in December 1983 on the Big Cypress Seminole Indian Reservation in the Southern District of Florida (DE 1, 12).

II. APPLICABILITY OF ENDANGERED SPECIES ACT TO SEMINOLE INDIAN RESERVATIONS

Billie first moves to dismiss the information on the ground the Act does not apply to non-commercial hunting on the Seminole Indian Reservations (DE 20). He argues that the Act evinces no Congressional intent to abrogate or modify his traditional right to hunt and fish on the reservation. The Government disagrees, maintaining that the Act is a reasonable, necessary, and nondiscriminatory conservation statute which has limited Indian rights to take or possess species to the extent those rights are inconsistent with the Act. In United States v. Dion, 476 U.S. 734, 106 S.Ct. 2216, 2223, 90 L.Ed.2d 767 (1986), the Supreme Court expressly left unresolved the question whether the Act abrogates Indian hunting rights. Although the Eighth Circuit's en banc opinion in Dion held that the Act did not apply to Indians exercising non-commercial hunting rights on Indian land, see United States v. Dion, 752 F.2d 1261, 1270 (8th Cir.1985) (en banc), rev'd on other grounds, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986), that decision is not binding on this court. Accordingly, Billie's motion to dismiss presents a question of first impression in the Eleventh Circuit.

A. The Endangered Species Act

The Supreme Court has described the Endangered Species Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 2294, 57 L.Ed.2d 117 (1978). The Act empowers the Secretary of the Interior (the Secretary) to list species as either "endangered" or "threatened" based on any of the following factors: present or threatened destruction of a species' habitat or range; its overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other factors affecting its continued existence. 16 U.S.C. § 1533(a)(1). An endangered species is one "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). The Florida panther, whose historic range is listed as in the United States from Louisiana and Arizona east to South Carolina and Florida, has been listed as endangered since 1967. 50 C.F.R. § 17.11 (1986).

The Act's prohibitions are set forth in 16 U.S.C. § 1538. Included within these prohibitions are the taking of any endangered species within the United States, the possession of any illegally taken endangered species, and the sale or offer for sale of any endangered species in interstate or foreign commerce. Civil and criminal penalties may be imposed for violations of the Act. Id. § 1540.

Congress has drawn several extraordinarily narrow exceptions to the Act's prohibitions. Indians, Aleuts, or Eskimos who are Alaskan Natives residing in Alaska and, in some circumstances other non-native permanent residents of Alaskan native villages, may take endangered or threatened species, but only if the taking is primarily for subsistence purposes and only subject to such regulations as the Secretary may issue upon his determination that such takings materially and negatively affect the species. Id. § 1539(e). In addition, the Secretary may permit otherwise prohibited acts for scientific purposes, to enhance the propagation or survival of the affected species, or when the taking is incidental to carrying out an otherwise lawful activity. Such permits may be issued only on the basis of stringent statutory procedures designed to assure that any adverse impact on the particular species will be minimized. Id. § 1539(a).

B. Hunting Rights on the Seminole Indian Reservations

The Seminole Indian Reservations were established pursuant to an Executive Order by which certain lands were "set aside as a reservation for the Seminole Indians in southern Florida." Executive Order No. 1379 (June 28, 1911), reprinted in 3 C. Kappler, Indian Affairs: Laws and Treaties 678-79 (1913).² Although the Executive Order does not expressly mention hunting and fishing rights, those rights were included by implication in the setting aside of the lands as an Indian reservation. See Dion, 106 S.Ct. at 2219 ("As a general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress"); Menominee Tribe of Indians v. United States, 391 U.S. 404, 405-06, 88 S.Ct. 1705, 1707-08, 20 L.Ed.2d 697 (1968) (rights to hunt and fish implied from treaty clause giving lands to Indians "to be held as Indian lands are held"); see also Arizona v. California, 373 U.S. 546, 598, 83 S.Ct. 1468, 1497, 10 L.Ed.2d 542 (1963) (establishment of reservation reserves water rights to Indians, whether reservation established by treaty or executive order). The Seminoles' rights to hunt and fish are part of their larger rights of possession. See United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905); see also Menominee Tribe, 391 U.S. at 406 & n. 2, 88 S.Ct. at 1707 n. 2, F. Cohen, Handbook of Federal Indian Law 441-42 (R. Strickland ed. 1982).

Although the Congress is empowered to abrogate Indian rights, its intent to do so must be clear and plain. In Dion the Supreme Court discussed the different standards it has employed over the years for determining how such an intent must be demonstrated. See Dion, 106 S.Ct. at 2220. An explicit statement by Congress is preferable but not required:

Where the evidence of congressional intent to abrogate is sufficiently compelling, "the weight of authority indicates that such an intent can also be found by a reviewing court from clear and reliable evidence in the legislative history of a statute." Cohen , Handbook of Federal Indian Law, at 223. What is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.

Id. Billie maintains that the Act and its legislative history lack the evidence of congressional intent necessary to abrogate his hunting rights.

C. The Scope of the Right

Before the court can determine whether the Seminoles' rights have been abrogated, however, it must assess the scope of those rights. As a general rule, treaties with the Indians should be interpreted as the Indians themselves would have understood them. Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 1334, 25 L.Ed.2d 615 (1970); Tulee v. Washington, 315 U.S. 681, 684-85, 62 S.Ct. 862, 864-65, 86 L.Ed. 1115 (1942). The Supreme Court has stated that Indian treaties "cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them." Oliphant v. Squamish Indian Tribe, 435 U.S. 191, 206, 98 S.Ct. 1011, 1019, 55 L.Ed.2d 209 (1978).

When the Seminole reservations were set aside in 1911, the Florida pather was not endangered. The court has received no...