USA v. Crawford

Filing 23

Order on Motion to Dismiss

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
MICHAEL B. CRAWFORD,

3:11-cr-105-JDR
ORDER
REGARDING
MOTION TO DISMISS
(Docket No. 3)

Defendant.

Defendant Michael Crawford moves to dismiss the charges against
him on grounds that he did not violate the terms of his special use permit and there
is no legal definition of a “cubby set,” which is a term of varied definition and subject
to arbitrary and capricious enforcement. Docket 3. The government filed an
opposition at Docket 9.

An evidentiary hearing was conducted on

Order on Motion to Dismiss

December 29, 2011. Docket 16. For reasons stated below, the court concludes that
the Motion to Dismiss lacks merit and is hereby DENIED.
This case was initiated by the issuance of two violation notices:
Violation Notice No. 0735791 charging Crawford with attempting to trap wolverine
after the season closed, and Violation Notice No. 0735788, charging that he used
a cubby set after the close of lynx season. These tickets were superseded by an
Information filed November 18, 2011. Docket 1.
Count 1 of the Information charges trapping out of season, namely, that
on or about March 1, 2011, within the Alaska National Wildlife Refuge in the Mystery
Creek Road System within the boundaries of the Kenai National Wildlife Refuge,
Crawford did attempt to trap wolverine after the wolverine trapping season closed,
on the last day of February 2011, in violation of 16 U.S.C. § 668dd, 50 C.F.R.
§ 36.32(c)(1)(i), 5 AAC 84.270(14). Count 2 of the Information charges that on the
same date Crawford did not abide by the terms of his National Wildlife Trapping
Permit, Permit No. KEN 11-T23: (1) by attempting to trap wolverine out of season
in violation of Special Condition No. 1 of his permit; (2) failing to make every effort
to prevent the capture of non target species in violation of Special Condition No. 6
of his permit; and (3) operating a cubby set after the lynx season closed on February
15, 2011 in violation of Special Condition specific to the Kenai National Wildlife
Refuge No. 7 of his Permit, in violation of 16 U.S.C. § 668dd, 50 C.F.R. § 26.22(b).

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The first ground in the Motion to Dismiss asserts that the defendant did
not violate the terms of his special use permit as alleged. This ground raises factual
issues which are reserved for the trial of the case. There is no summary judgment
in a criminal case and this ground does not raise an issue that is properly decided
on a pretrial motion to dismiss. Accordingly, defendant’s Motion is DENIED as to
the request for dismissal on ground one.
The second ground of the Motion to Dismiss, while not dispositive of
Count 2 of the Information, does place in issue whether the government can rely
upon the alleged violation of Special Condition No. 7 of the Permit issued to
Crawford. Special Use Permit No. KEN 11-T23 contains a set of ten special
conditions, plus eight special conditions specific to the Kenai National Wildlife
Refuge and four special conditions for beaver trapping on the Kenai National Wildlife
Refuge. It also contains a notice regarding marten and fox trapping.
Special Condition No. 7 of those conditions specific to the Kenai
National Wildlife Refuge reads as follows: “Cubby and flag sets are not allowed
when the lynx season is closed.” Crawford maintains that the terms “cubby and flag
sets” is subject to arbitrary and capricious enforcement because there “are no
definitions of these terms in the federal regulations or statutes[, or] or in Alaska
Statutes or regulations.” Memorandum in Support of Motion to Dismiss, Docket 4,
p.2.

Crawford further argues that the reference to “cubby and flag sets” is

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ambiguous because it is not clear whether the special condition prohibits “cubby
sets” and “flag sets”, or only a setup that includes both a cubby and a flag. Viewing
this issue from the perspective of a motion to dismiss, the court considers the
context of the prohibited conduct which is contained in the special use permit for
trapping. The purpose for the limitations on trapping, is to prevent over trapping of
certain species of fur bearing animals. The court concludes that Special Condition
No. 7 provides adequate notice that cubby sets, flag sets, and cubby and flag sets
are prohibited during the closed season.
Crawford argues that the challenged terms should have read “cubby or
flag sets” if the language was meant to prohibit just a cubby set. Alternatively it
might have been clearer for the language to read “cubby and/or flag sets.”
Nevertheless, to read Condition No. 7 as prohibiting only trapping sets that include
both a cubby and a flag but not a cubby set without a flag or flag set without a cubby,
would clearly thwart the conservation purpose of the limitation as contained in the
applicable regulations, special use permit and mandatory snaring seminar imposed
by the permit. Through pretrial discovery the government has advised Crawford for
purposes of trial preparation that it intends to present proof that he had a cubby set
and not a cubby and flag set that violated his permit.
The government argues that Special Condition No. 7 sufficiently defines
the conduct prohibited without being arbitrary and vague. The Ninth Circuit Court

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of Appeals holds that in an as-applied challenge, outside the context of the First
Amendment, “a statute is void for vagueness (and thus unconstitutional under due
process) if the statute (1) does not define the conduct it prohibits with sufficient
definiteness and (2) does not establish minimal guidelines to govern law
enforcement. United States v. Wyatt, 408 F.3d 1257, 1260 (9th Cir. 2005). A
criminal statute “cannot be so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.” United States v.
Hockings, 129 F.3d 1069, 1072 (9th Cir. 1997). The Court of Appeals further
instructs that where the statute is ambiguous, “the rule of lenity must be applied to
restrict criminal statutes to conduct clearly covered by those statutes.” Hockings,
at 1072.
The government acknowledges that under the rule of lenity, when a
criminal statute is ambiguous, courts interpret the statute in favor of the defendant.
Wyatt, at 1262. However, the United States Supreme Court has rejected the
contention that the rule of lenity is invoked merely because a different reading of the
statute is possible. In Moskal v. United States, 498 U.S. 103, 108 (1990), the Court
stated:
Because the meaning of language is inherently contextual,
we have declined to deem a statute ‘ambiguous’ for
purposes of lenity merely because it was possible to
articulate a construction more narrow than that urged by
the Government . . . . Instead, we have always reserved
lenity for those situations in which a reasonable doubt
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persists about a statute’s intended scope even after resort
to ‘the language and structure, legislative history, and
motivating policies’ of the statute.
Additionally, ”[p]erfect clarity and precise guidance have never been required even
of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491
U.S. 781, 794 (1989).
Count 2 contains citations to two legal sources. The first is 16 U.S.C.
§ 668dd. This is the catch-all general provision governing the National Wildlife
Refuge System. Subsection (a) governs refuge lands in Alaska. The second, 50
C.F.R. § 26.22(b) General Exception for Entry, covers exceptions for entry in a
national wildlife refuge (of which the Kenai Refuge is a part). The relevant portion
of the Code is as follows:
(b) A permit shall be required for any person entering a
national wildlife refuge, unless otherwise provided under
the provisions of subchapter C. The permitee will abide by
all the terms and conditions set forth in the permit.
The C.F.R. Regulations in Title 50 (Wildlife and Fisheries) that apply to
The National Wildlife Refuge System contain some relevant Regulations.
50 C.F.R. § 25.31, General provisions (Part 25 relates to Administrative
Provisions; Subpart C relates to Public Notice) provides:
Whenever a particular public access, use or recreational
activity of any type whatsoever, not otherwise expressly
permitted under this subchapter, is permitted on a national
wildlife refuge or where public access, use, or recreational
or other activities previously permitted are curtailed, the
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public may be notified by any of the following methods, all
of which supplement this Subchapter C:
(a) Official signs posted conspicuously at appropriate intervals
and locations;
(b) Special regulations issued under the provisions of § 26.33 of
this Subchapter C;
(c) Maps available in the office or the refuge manager, regional
director, or area director,
(d) Other appropriate methods which will give the public actual
or constructive notice of the permitted or curtailed public access,
use, or recreational activity. (Emphasis added).
Section (d) is notable because the Special Use Permit requires attendance at a
seminar by the permitee.
50 C.F.R. § 26.33, Special Regulations (Part 26 relates to Public Entry
and Use; Subpart C regards Public Use and Recreation) states:
(a) Special regulations shall be issued for public use,
access, and recreation within certain individual national
wildlife refuges where there is a need to amend, modify,
relax or make more stringent the regulations contained in
this subchapter C. The issued special regulations will
supplement the provisions in this part 26.
(b) Special recreational use regulations may contain the
following items:
(1) Recreational uses authorized.
(2) Seasons, period, or specific time of use.
(3) Description of areas open to recreation.
(4) Specific conditions or requirements.
(5) Other provisions.
(6) Special regulations for public use, access, and recreation are
published in the daily issue of the Federal Register and may be
codified in the Code of Federal Regulations. They shall be
issued in compliance with procedures contained in the
Department Manual. (Emphasis added).
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In accordance with this section of the C.F.R. the Government is required to give
notice of what types of traps can be used and when and what constitutes a cubby
set. How the agency provides that notice is not limited to language in statutes and
regulations.
The applicable criminal statute provides that “a permit shall be required
for any person entering a national wildlife refuge, unless otherwise provided under
the provisions of sub-chapter C. The permitee will abide by all the terms and
conditions set forth in the permit.” 50 C.F.R § 26.22(b). The regulation requires the
permitee to abide by all the terms and conditions set forth in the permit. A permitee
is thus expected to learn the terms and conditions of the permit imposed upon him
to lawfully enter the national wildlife refuge. The regulation or permit need not define
a word or terms that are generically understood without a special definition.
Webster’s Third New International Dictionary Unabridged (2002) at
page 550 defines “cubby” as “a confined space (as for hiding)”1 The dictionary also
indicates that cubby may refer to a “cubby pen.” A “cubby pen” is defined in the
dictionary as a small baited enclosure (as of upright sticks or sometimes stones) with
traps so arranged that an animal cannot reach the bait without being caught by a
trap.”

1

A copy of this Dictionary is found in the Court Library in the James F.
Fitzgerald Federal Building and U.S. Courthouse in Anchorage.
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At an evidentiary hearing on the motion to dismiss, Gary Titus, Refuge
Officer, explained the permitting process which requires the permitee to attend an
orientation class that last three to four hours. The course covers topics such as trap
preparation, types of traps for the Kenai Peninsula and special use permits. The
officer’s presentation at the seminar provides pictures through a Power Point
depicting and describing a cubby set. Refuge officers use the definition of a cubby
as a natural or constructed tunnel shape with one entrance with some type of trap
set at the entrance. Transcript of Evidentiary Hearing, p.29
A “flag set” refers to the use of an item to attract the animal to the
entrance of the set. Cubby sets and flag sets may be used separately to trap lynx.
A cubby has an entrance with a tunnel to lead the animal to the bait. The cubby may
be naturally formed or man made. Although the terms “cubby set” and “flag set” may
not be known to the average person, a reasonably intelligent permitee would be
familiar with the terms whether learned from literature, mentors, or orientation
seminars.
Because a cubby set may vary greatly in its components, size and
shape they are often discussed through illustrations or pictures. For example the
Alaska Trappers Manual created in a joint effort by the Alaska Trappers Association
and the Alaska Department of Fish and Game (Exhibit 3 of the Evidentiary Hearing)
describes a “baited snare set” for lynx on page 60, a conibear style cubby set for

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lynx, marten or wolverine on page 61, a leghold cubby set for lynx, marten or
wolverine on page 62, and a “cubby set” with a top up pole for marten on page 68.
Each of these pages contain an illustration of a cubby. The manual states that
“snares are very effective for lynx even at a cubby.” It then discusses how to build
a cubby. Page 61 states that “cubby sets are used to catch a variety of fur bearers.”
It discusses the main idea behind a cubby and the illustration depicts what is called
an “attractor” to hang above or near the cubby. The manual provides information
such as the style of traps to use for particular fur bearing animals and warns against
using live sticks because they attack snow shoe hares. Page 62 illustrates a cubby
with an attractor that is essentially depicted as a ribbon like attractor above the set.
Another publication that depicts and describes trap sets depicting
cubbies is the Yukon Kuskokuim Region Trappers Handbook (Exhibit 4 to the
Evidentiary Hearing). On Page 36, Section IV, of this handbook, it describes making
a cubby under bushy spruce to protect from the weather when setting up a trap for
lynx or wolverine.
It was incumbent upon Crawford as permitee to abide by the terms and
conditions of his permit. A first time permitee could learn about the concept and
purpose for trapping using a cubby set by attending the mandatory seminar. The
evidence indicates that Crawford has in the past been an instructor at one or more
of these seminars. As used in the Special Use Permit the phrase “cubby and flag

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sets” is not void for vagueness as applied to Crawford. In his permit the question
whether the permitee has attended the mandatory seminar is answered in the
affirmative. Permit No. KEN 11-T23, p.2.
A cubby set is a form of trapping generally known to trappers and used
in literature addressing the trapping of fur bearing animals. The term is not so vague
as to provide that persons of common intelligence must necessarily guess at its
meaning or understand what conduct is prohibited with sufficient definiteness. In
order to prevail on Count 2 at trial under the theory that Crawford violated Special
Condition No. 7, the government must prove beyond a reasonable doubt that
Crawford used a cubby set after the close of lynx season which was prohibited by
his Special Use Permit.
Summary
Because the violation of a permit on the Kenai National Wildlife Refuge
constitutes a criminal violation the void for vagueness doctrine applies to the terms
of the permit. The defendant has not met his burden of showing that Special
Condition No. 7 of his permit is impermissibly vague as applied to him. Rojas-Garcia
v. Ashcroft, 339 F.3d 814, 822 (9th Cir. 2003). The mere fact that a cubby set can
be formed in many different ways does not make the term ambiguous. No where
else in the permit or regulations is there a suggestion that any form of cubby sets are

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allowed out of lynx season. Wherefore, the Motion to Dismiss, Docket 3 is hereby
DENIED.

DATED this 6th day of January, 2012, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

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