Summary
In Winnett, the court held there was no necessity defense available to a defendant who violated the law by killing federally protected wildlife in order to protect his own chickens.
Summary of this case from United States v. O'DowdOpinion
CRIMINAL ACTION NO. 02-10272-RBC
June 23, 2003
Nadine Pellegrini, United States Attorney's Office, Boston, MA., for USA (Plaintiff).
Michael J. Zeman, Bronspiegel Zeman, New Bedford, MA., for John M. Winnett (Defendant).
MEMORANDUM AND ORDER ON DEFENDANT'S CLAIM THAT HE CAN RAISE THE DEFENSE OF PROTECTION OF PROPERTY TO THE CRIME CHARGED IN THE INFORMATION
I. INTRODUCTION
On September 14, 2003, the United States Attorney filed an Information against the defendant, John Winnett ("Winnett"), charging him with violating the Migratory Bird Treaty Act ("MBTA"), Title 16, United States Code, Sections 703 and 707(a), Title 50, Code of Federal Regulations, Section 21.11 on or about February 3, 2002 by taking and possessing a red-tailed hawk.
At the Initial Status Conference on November 13, 2002, Winnett indicated his desire to interpose the defense of protection of property against the charge of killing a federally protected bird without the requisite permission. In response to the Court's invitation to brief the issue of whether the defense of property is available as a defense in this case, Winnett filed a Memorandum in Support of the Availability of the Defense of Protection of Property (#16) on January 17, 2003. The Government filed a Response in Opposition to Defendant's Request to Present a Defense of Property to a Violation of the Migratory Bird Treaty Act (#18) on February 19, 2003. The issue is ripe for decision.
II. THE FACTS
The facts relative to the proposed defense are that Winnett raises poultry as a hobby on his property in the Town of Middleboro, Massachusetts. (#16, p. 1). At some time in the beginning of 2002, he noticed his chickens were disappearing, and he attributed the disappearances to an unknown predator. On February 3, 2002 he saw a large bird fly into his chicken coop and attack his chickens. He chased the bird into a tree and then attempted unsuccessfully to scare the bird away from his property.
Unable to frighten the bird away, Winnett went into his house, retrieved his licensed hand gun and shot the bird. The bird, identified by the Government as a federally protected red-tailed hawk (Buteo jamacensis), was killed.
III. THE LAW
In response to the proffered defense, the Government raises two main points. First, the Government contends that there is no statutory or legal authority in federal law for the proposition that a defense of necessity with respect to property may be raised as a defense to a charge of violation of the federal wildlife protection statutes. (#18, p. 16) Second, assuming arguendo that such authority exists, the Government asserts that Winnett has failed to present sufficient evidence to satisfy the legal standards of a necessity defense. (Id. at pp. 11-15)
A. Is the Defense of Necessity Properly Interposed to a Charge of Violating the MBTA?
While there is no definitive case law regarding the legal authority of federal courts to allow a defense of protection of property against violations of the MBTA, the legislative history and relevant case studies suggest that such a defense may not be properly raised. The MBTA "committed this nation to the conservation of migratory birds" and was "designed to reduce the take of migratory birds on an international basis." H.R. Rep. No. 105-542, at 2 (1998). The Congress' resolve to protect migratory birds has been shown throughout the long history of the MBTA. Beginning with its passage in 1918, the MBTA has been amended on several occasions in order to reflect adequately the original purpose of the Act. For instance, in 1960 the MBTA, 16 U.S.C. § 707(a), was amended to include subsections (b) and (d), which increase the penalties for taking "any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird." 16 U.S.C. § 707(b). As noted in the Senate Report accompanying the 1960 amendment, "[t]he basic need for the legislation is the necessity to better protect our migratory game birds." S. Rep No. 86-1779, at 3459 (1960).
Furthermore, as noted by the United States Court of Claims nearly fifty years ago:
. . . [T]he general right of the Government to protect wild animals is too well established to be now called into question. Their ownership is in the state in its sovereign capacity, for the benefit of all the people. Their preservation is a matter of public interest. They are a species of natural wealth which without special protection would be destroyed.
Wherever protection is accorded, harm may be done to the individual. Deer or moose may browse on his crops; mink or skunks kill his chickens; robins eat his cherries. In certain cases the Legislature may be mistaken in its
belief that more good than harm is occasioned. But this is clearly a matter which is confided to its discretion. It exercises a Governmental function for the benefit of the public at large, and no one can complain of the incidental injuries that may result.
Bishop v. United States, 126 F. Supp. 449, 452-3 (Ct. Claims, 1954), cert. denied, 349 U.S. 955 (1955), quoting Barret v. State, 220 N.Y. 423, 116 N.E. 99 (1918).
In addition, there is a lack of authority for a federal constitutional right to defend property from protected wildlife. See United States v. Darst, 726 F. Supp. 286, 288 (D.Kan., 1989). The Tenth Circuit examined this issue in a case involving property damage by wild horses and burros protected by the Wild Free-Roaming Horses and Burros Act. See Mountain States Legal Foundation v. Hodel, 799 F.2d 1423 (10 Cir., 1986), cert. denied, 480 U.S. 951 (1987). Since no federal cases had addressed whether a federal right to defend property against protected wildlife existed and the Endangered Species Act contains only a defense of bodily injury, the court in Mountain States determined that there is no right under the United States Constitution to kill protected wildlife in defense of property. Mountain States, 799 F.2d at 1428. The Ninth Circuit agreed with the holding in Mountain States when it was confronted with a case involving owners of sheep who contended that, due to provisions in the Endangered Species Act, they were unable to protect their sheep from grizzly bears. Christy v. Hodel, 857 F.2d 1324, 1326 (9 Cir., 1988), cert. denied sub nom., Christy v. Lujan, 490 U.S. 1114 (1989). The court in Christy held that "[t]he U.S. Constitution does not explicitly recognize a right to kill federally protected wildlife in defense of property [and furthermore] . . . federal courts should refrain from divining new fundamental rights from the due process clauses of the fifth and fourteenth amendments, at least when the claimed right is neither `implicit in the concept of ordered liberty,' or `deeply rooted in this Nation's history and tradition.'" Christy, 857 F.2d at 1330.
The Supreme Court has also examined the issue of whether federal courts ever have authority to recognize a necessity defense not provided by statute. In the case of United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001), the Court wrote that:
Even at common law, the defense of necessity was somewhat controversial. And under our constitutional system, in which federal crimes are defined by statute rather than by common law, it is especially so. As we have stated: `Whether, as a policy matter, an exemption should be created is a question for legislative judgment, not judicial interference
Oakland Cannabis Buyers' Coop., 532 U.S. at 490 (citations omitted).
However, the Court then went on to say that "we recognize that this Court has discussed the possibility of a necessity defense without altogether rejecting it." Id. Therefore, while there are no holdings definitively stating that a necessity defense can never by used in a case involving the taking of federally protected wildlife, the precedents strongly lean toward prohibiting it.
In addition to the lack of federal authority for presenting a protection of property defense in cases involving federally protected wildlife, courts are also wary of reading more into a statute than what was intended by the legislature. In a case involving a defendant convicted of selling migratory birds in violation of the MBTA, the First Circuit was unwilling "either to read into a statute a word that Congress purposely omitted, or, on our own initiative, to rewrite Congress' language by ascribing to one word a meaning traditionally reserved for a different word." United States v. Pitrone, 115 F.3d 1 (1 Cir., 1997).
Furthermore, in Center for Biological Diversity v. Pirie, 201 F. Supp.2d 113 (D.D.C., 2002) the court granted an environmental organization a preliminary injunction against the United States military to prevent live fire training exercises that harmed migratory birds in violation of the MBTA. In finding for the plaintiffs, the court determined that "[t]he United States asks this Court to go beyond the scope of this Court's discretion and allow it to continue violating these statutes with impunity. This Court has no authority to read into a criminal statute such as the MBTA an exception for national security or military activities where none exists. Id. at 115 (citation omitted). The Court further elucidated the point by stating "[j]ust as Congress decided not to recognize a medical necessity defense in the Controlled Substances Act, Congress decided not to recognize a national security necessity defense to the MBTA. This Court can not and will not read into the MBTA an exception that Congress has included in the statute." Id. at 121-122.
In the Oakland Cannabis Buyer' Coop case, the Supreme Court wrote that it ". . . need not decide . . . whether necessity can ever be a defense when the federal statute does not expressly provide for it. In this case, to resolve the question presented, we need only recognize that a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act." Oakland Cannabis Buyers' Coop, 532 U.S. at 491. However, the Court did state that "[u]nder any conception of legal necessity, one principle is clear: The defense cannot succeed when the legislature itself has made a `determination of values.'"
The legislature made such a determination when it enacted the MBTA in 1918. The cases illustrate just how reluctant federal courts are to go beyond the scope of either federal statutes or the federal Constitution. This hesitation, coupled with the deeply imbedded history of taking federally protected wildlife standards quite seriously, causes Winnett's proposed protection of property defense to be unavailable.
B. Assuming Arguendo that the Defense of Necessity is Available, Has the Defendant Offered Sufficient Evidence to Sustain the Defense?
Even assuming that Winnett could interpose a protection of property defense, the facts of this case do not fit the test laid out by numerous federal courts. Initially, "when the proffer in support of an anticipated affirmative defense is insufficient as a matter of law to create a triable issue, a district court may preclude the presentation of that defense entirely." United States v. Maxwell, 254 F.3d 21, 26 (1 Cir., 2001) (citation omitted). Additionally, "[b]ecause the elements of the necessity defense are conjunctive, the defense may be precluded entirely if proof of any one of the four prongs is lacking." United States v. Sued-Jimenez, 275 F.3d 1, 6 (1 Cir., 2001), cert. denied sub nom, Sued-Jimenez v. United States, 535 U.S. 1019 (2002) (citation omitted). Finally, "the defendant must present `more than a scintilla of evidence' that demonstrates that he can satisfy the legal requirements for asserting the proposed defense." United States v. Tokash, 282 F.3d 962, 967 (7 Cir., 2002), cert. denied sub nom., Tokash v. United States, 535 U.S. 1119 (2002) (citation omitted). And "where the evidence proffered in response to the motion in limine is insufficient as a matter of law to support the affirmative defense a pre-trial ruling precluding the presentation of the defense at trial is appropriate." Tokash, 282 F.3d at 967 (citation omitted).
In order for Winnett to meet the minimum standards of a necessity defense he would need to "show that he 1) was faced with a choice of evils and chose the lesser evil, 2) acted to prevent imminent harm, 3) reasonably anticipated a direct causal relationship between his acts and the harm to be averted, and 4) had no legal alternative but to violate the law." Maxwell, 254 F.3d at 28 (citation omitted). The initial three prongs need not be examined because Winnett has clearly failed to proffer sufficient evidence to meet prong four of the test outlined above.
"[T]he necessity defense does not arise from a defendant's choice of a preferred course of action from among a universe of possible courses of action (some legal, some not), but from an emergent crisis that, as a practical matter, precludes all principled options but one. In other words, the defendant's act must be necessary, not merely desirable." Maxwell, 254 F.3d at 28 (citation omitted). In Maxwell, the First Circuit concluded that the defendant had not exhausted his many legal options to work toward nuclear disarmament because the defendant could have, among many activities, used the electoral process, made speeches in public places or distributed his message through the media. Id. at 28. Furthermore, the court found that "[t]he fact that Maxwell is unlikely to effect the changes he desires through legal alternatives does not mean, ipso facto, that those alternatives are nonexistent." Id. at 29 (citation omitted).
In this case, Winnett has offered no concrete evidence that he exhausted all of the legal alternatives available to him prior to shooting and killing the hawk threatening his chickens. Winnett claims that he "tried and failed using means of protecting his chickens other than killing the depredating hawk." Def. Memorandum at 10. However, Winnett has not provided this court with an affidavit or any other form of evidence which specifies any of the "means of protecting his chickens other than killing the hawk." Id. For example, as illustrated in Government Attachment Number Four, the United States Fish and Wildlife Service offers suggestions for preventative measures such as constructing fenced enclosures, utilizing overhead netting or eliminating perch sites. See U.S. Fish and Wildlife Service Notice ADC 110, Hawk and Owl Damage.
Furthermore, the U.S. Fish and Wildlife Service has authority under the MBTA to issue depredation permits. A depredation permit allows an approved applicant to "take, possess or transport migratory birds for damage control purposes, such as protection of personal or public property . . ." U.S. Fish and Wildlife Service, Authorized Activities Involving Migratory Birds, at http://birds.fws.gov/Permits-Fact-Sheet.pdf.
Winnett argues that the permit process was not reasonable in this case because it is a "fairly complex and obviously time-consuming ordeal . . ." Def. Memorandum at 10. However, given the wide-range of alternatives available to Winnett and the absence of any evidence to suggest that he exhausted these alternatives, it appears as though any measure short of a "shot-gun" solution would have been too complex and time-consuming for the defendant. His impatience is unacceptable given the weight of statutory history and case law that requires defendants to explore all available legal alternatives before resorting to the most convenient course of action.
IV. ORDER
For the reasons stated it is ORDERED that Winnett's request that he be permitted to interpose the defense of property at the trial of the charge contained in the Information be, and the same hereby is, DENIED.