USA v. Judah

Filing 17

Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA

3:11-po-032-JDR
3:11-po-033-JDR

Plaintiff,
vs.

MEMORANDUM OPINION

SCOTT C. JUDAH,

Trial by Court

Defendant.

Defendant SCOTT C. JUDAH was named in two violation notices
charging (1) that on or about March 1, 2011 in the Mystery Creek Road System in
the Kenai National Wildlife Refuge he did attempt to trap wolverine after the season
closed in violation of 5 AAC 84.270(14)1, and (2) using a cubby set after the close
of lynx season.2 The two charges were tried to the court on January 11, 2012. Upon
due consideration of the evidence adduced and arguments of the parties the court
finds Judah guilty of attempting to trap wolverine after the season closed and not
guilty of using a cubby set after the close of lynx season.
1

Violation Notice No. 0735789.

2

Violation Notice No. 0735790.

Findings of Fact
On March 1, 2011, Gary Titus, a officer with the Kenai National Wildlife
Refuge was patrolling with Officer Jim Hillgren in the Mystery Creek area within the
Kenai National Wildlife Refuge in Game Management Unit 15. During the patrol he
observed tracks going to a stream. Officer Titus followed those tracks and observed
what he described as a “cubby set” placed into a bank with a 330 Conibear trap
placed at the entrance. (Hereinafter Trap No. 1). Officer Titus described the trap
setting as a cubby covered with some cut material and other dead material going
into a hole into the bank. It had a Conibear trap set at the entrance with a tunnel
leading back and bait at the rear of the tunnel. The back of the tunnel was built into
the bank, a natural hole.
As the officers continued their patrol south on the Mystery Creek
pipeline to another stream bed they observed footprints leading down stream. There
they observed a “cubby” built into the bank with a 330 trap placed at the entrance.
(Hereinafter Trap No. 2). The 330 trap is shaped in a square with a trigger in the
center, springs coming off the side, and tie wires to hold it onto a cross piece. Both
traps were removed from site and seized for evidence.

The officers took

photographs of the trap settings. Officer Titus did not smell any bait or scent at either
of the two sets.

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As the officers were leaving they notice a snow machine heading in their
direction. The driver stopped his snow machine in front of the officers. Scott Judah
jumped off the snow machine and started talking very rapidly to the officers. He
stated he knew the season for wolverine was closed and “they were in violation.” He
also stated that he was trapping with Mike Crawford. He said they had four sets out
for wolverine and he had already picked up one set.
The traps had tags on them with the name Mike Crawford. Scott Judah
and Mike Crawford trapped together using the same trap tags.

The officer

considered both Judah and Crawford responsible for the sets because their Special
Use Trapping Permits identified those tag markings to be used by each of them.
Scott Judah signed a Special Use application and received a trapping
permit for the year 2011 which he also signed.

Judah is accused in the first

Violation Notice of violating Special Condition No. 1 of his Special use Permit by
“attempting to trap wolverine out of season.” Special Condition No. 1, (State and
Federal Requirements) reads: “Trapping will be done in compliance with State game
laws and regulations, and may be further restricted by general and special conditions
of the Refuge Trapping Permit. Permittees will also comply with all other regulations
and conditions affecting access to and use of the Kenai National Wildlife Refuge.”
The second Violation Notice alleges a violation of Special conditions
specific to the Kenai National Wildlife Refuge No. 7 which provides: “Cubby and flag

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sets are not allowed when the lynx season is closed.” The officer explained that the
purpose of this Permit condition is to prevent the capture of lynx when the lynx
season is closed. Lynx season closed February 15, 2011 and wolverine season
closed February 28, 2011.
Officer Titus described a flag set as a different type of set from a cubby.
He stated: “It can be just a flag or CD hanging with a trap placed underneath it.”
Trial Transcript, 26. In the officers’ opinion using a cubby set on its own (without a
flag) could still capture a lynx. He stated that cubby sets are used for trapping lynx
and wolverine.
Officer Titus stated that for a trapper to learn more about a cubby set,
the trapper would need to go to books, magazines, internet and a variety of materials
published about trapping. Some of the materials referenced by the officer such as
the Alaska Trapper’s Manual (September 2003), depicted a Conibear style cubby set
for trapping lynx, marten or wolverine (p.61) and a leg hold cubby set for catching
lynx, marten or wolverine (P.62). Both of these diagrams depict an “attractor,”
sometimes called a “flag.” On page 68 of that Manual is a diagram and discussion
of a cubby set with a tip up pole for trapping marten. This cubby set shows no
attractor. The Trapper’s Manual is not required reading for trappers using the
refuge.

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According to Officer Titus all cubbies have one entrance. Cubbies can
vary in shapes, sizes and coverings. It can be natural or constructed.
In his experience as a trapper Officer Titus trapped for lynx using a legholder trap at the entrance of a cubby placed on a snow shoe trail without an
attractant. The officer stated he did not need an attractant because he placed a
scent at the back of the cubby.
According to Officer Titus the two sets were not commonly used to
catch larger animals such as wolf or coyote because rarely will such an animal would
stick its head into a cubby with a 330 trap at the entrance. He explained that lynx
is attracted to a small space such as a cubby with bait at the back, whereas a wolf
is a very leery animal generally suspicious of anything not natural.
Discussion
Attempting to Trap Wolverine After Season Closed
The first violation, charging attempting to trap out of season, is
governed by three legal sources. The first is 16 U.S.C. § 668dd. This is the catchall general provision governing the National Wildlife Refuge system. Subsection (a)
governs refuge lands in Alaska. Subsection (f) addresses penalties.
The second source is Title 50 of the Code of Federal Regulations
“Wildlife and Fisheries.” Subchapter C governs “The National Wildlife Refuges.”
50 C.F.R., Subpart D, includes 36.32 the “Taking of Fish and Wildlife and states:

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“The following provision shall apply to any person while engaged in the taking of fish
and wildlife within an Alaska National Wildlife Refuge:
(1) Trapping and sport hunting.
(i) Each person shall secure and possess all
required State licenses and shall comply with the
applicable provisions of State law unless further restricted
by Federal law;
(ii) Each person shall comply with the
applicable provisions of Federal law;
(iii) In addition to the requirements of
paragraphs (a) and (b) of this section, each person shall
continue to secure a trapping permit from the appropriate
Refuge Manager prior to trapping on the Kenai . . . Refuge
[ ].
50 C.F.R. 26.22 gives general exceptions for entry and (b) states:
(b) A permit shall be required for any person entering a
national wildlife refuge, unless otherwise provided under
the provisions of subchapter C. The permittee will abide by
all the terms and conditions set forth in the permit.
50 C.F.R. 28.31 is entitled “General Penalty Provisions” and applies to “any person
who violates any of the provisions, rules, regulation, posted signs, or special
regulations of this subchapter C . . . .” See 50 C.F.R. 28.31(a). Both 36.32 and
26.22 fall under Subchapter C. Section 28.31(b) states:
(b) Failure of any person, utilizing the resources of any
national wildlife refuge or enjoying any privilege of use
thereon for any purpose whatsoever, to comply with any
of the provisions, conditions, restrictions, or requirements
of this subchapter C or to comply with any applicable
provisions of Federal or State law may render such person
liable to:

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(1) The penalties as prescribed by law. ( Sec. 4, 76 Stat.
654, 16 U.S.C. 460k-3; Sec. 4, 80 Stat. 927, as amended,
16 U.S.C. 668dd(e); Sec. 7, 60 Stat. 1080, 16 U.S.C.
666a; Sec. 6, 40 Stat. 756, as amended, 16 U.S.C. 707;
Sec. 7, 48 Stat. 452, 16 U.S.C. 718g; Sec. 2, 33 Stat. 614,
as amended, 18 U.S.C. 41.). (Emphasis added).

The cited U.S. Code Section bolded above (16 U.S.C. § 460K-3) contains the
following language:
The Secretary may establish reasonable charges and fees
and issue permits for public use of national wildlife
refuges, game ranges, national fish hatcheries, and other
conservation areas administered by the Department of the
Interior for fish and wildlife purposes. The Secretary may
issue regulations to carry out the purposes of this
subchapter. A violation of such regulations shall be a
misdemeanor with maximum penalties of
imprisonment for not more than six months, or a fine
of not more than $500, or both. The provisions of this
subchapter and any such regulation shall be enforced by
any officer or employee of the United States Fish and
Wildlife Service designated by the Secretary of the
Interior. (Emphasis added).
Violation Notice 0735789 alleges that Judah attempted to trap wolverine
outside of the trapping season in Game Management Unit 15. AS 16.05.255
provides in pertinent part: “(a) The Board of Game may adopt regulations it
considers advisable in accordance with AS 44.62 (Administrative Procedure Act) for
. . . (2) establishing open and closed seasons and areas for the taking of game.
Under Alaska law “trapping” is defined as “The taking of mammals
declared by regulation to be furbearers.” AS 16.05.940(36). “Take” is defined as
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“taking . . . trapping . . . or attempting to take . . . trap, or any manner capture or kill
. . . game.” AS 16.05.940(34).
The third relevant legal source is 5 A.A.C. 84.270 which gives the
trapping seasons for legally hunting furbearers including wolverine in the different
game units in Alaska. Subsection 270(14) set the season for wolverines in Game
Unit 15 to run from November 10 - February 28 with no bag limit. Judah is alleged
to have attempted to trap wolverine on March 1, 2011. That regulation is made
applicable by 5 AAC 84.260 which provides: “It is lawful to trap a furbearer only in
a game management unit or a portion of a unit open to trapping in accordance with
the open season and bag limit prescribed in 5 AAC 84.270. Bag limits and open
seasons are based upon the regulatory year.” 5 AAC 84.270. Thus, trapping a
furbearer out of season in Game Unit 15 is unlawful under Alaska law.
Judah with the help of his trapping partner Michael Crawford, attempted
to trap fur bearing animals within the Refuge by setting the two traps seized by
Officer Titus on March 1, 2011, in the Mystery Creek Road System within the
boundaries of the Kenai National Wildlife Refuge, Game Management Unit 15. The
traps were set to catch wolverine or any other furbearer in season. Trapping for
wolverine in this area with a permit during the open season is not prohibited by the
law.

Traps No. 1 and No. 2 were set before the wolverine trapping season had

closed.

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To “attempt” an offense means wilfully to do some act, in an effort to
bring about or accomplish something the law forbids to be done. Devitt and
Blackmore Jury Instructions, Section 14.21. A conviction for an attempt requires
proof of both “culpable intent” and “conduct constituting a substantial step toward
commission of the crime that is in pursuit of that intent.” United States v. Buffington,
815 F.2d 1292, 1301 (9th Cir. 1987); United States v. Snell, 627 F.2d 186, 187 (9th
Cir. 1980), cert. denied 450 U.S. 957 (1981). The evidence establishes the existence
of both elements. A “substantial step” is “conduct strongly corroborative of the
firmness of the defendant’s criminal intent.” Id. “Culpable intent” can be inferred
from a particular defendant’s conduct and from the surrounding circumstances.
Buffington at 1302.
Judah clearly intended the trap sets to attract a wolverine regardless of
whether the settings constituted a cubby as argued by the government. The season
was still open to trap a coyote, beaver or wolf. As Judah admitted, when confronted
by Officer Titus, the sets were for wolverine and he knew the season for trapping
wolverine had closed.
By leaving the traps in place after February 28, 2011, he negligently
engaged in trapping wolverine out of season in violation of Alaska State law. Proof
that Judah knew the traps remained set after the close of the wolverine season for

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Game Unit 15, satisfies the mens rea element under § 668dd(f)(2).3 Judah failed to
comply with applicable State law in violation of 50 C.F.R. 26.22(b) and 28.31(b).
See Orr-Hickey v. State 973.P.2d 612 (Ak. App. 1999) (hunting sheep in a closed
area), citing State v. Rice, 626 P.2d 104, 110 (Alaska 1981) (civil negligence is the
culpable mental state that governs hunting offenses under Alaska State law). Judah
is guilty of attempting to trap wolverine after the season closed as charged in
Violation Notice 0735789.

Violation of Special Use Permit
Using a Cubby Set After Close of Lynx Season
Violation Notice 0735790, charges that Judah used a cubby set after
close of lynx season by violating Special Condition specific to the Refuge, number 7
of his permit and 50 C.F.R. 26.22(b). Title 50 C.F.R. § 26.22(b) entitled 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 § 26.22 is as follows:
(b) a permit shall be required for any person entering the
National Wildlife Refuge, unless otherwise provided under
the provisions of subchapter C. The permittee will abide
by all the terms and conditions set forth in the Permit.

3

The government argues that the offenses charged invoke a strict liability
and there is no other culpable mental state required. Under the evidence
presented the government has proved criminal negligence.
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Special Condition No. 7 (specific to the Kenai National Refuge) reads:
“Cubby and flag sets are not allowed when the lynx season is closed.” Lynx season
for the Refuge closed February 15, 2011. The parties disagree as to the definition
of a cubby set as used in Special Condition No. 7 and whether Judah had a trap set
up after the close of lynx season that is prohibited by that Permit limitation. Refuge
Officer Titus interprets Special Condition No. 7 to prohibit a cubby set, a flag set, or
a cubby and flag set.
Cubby sets are used to catch a variety of furbearers. The basic
description of a cubby addresses the structure of the tunnel or cave like inclosure
designed to lead the animal past a trap to reach bait. “The main idea behind a
cubby is to make a structure that will guide the animal into an area where you have
placed bait and lure. The cubby provides cover for the trap and bait as well.” Alaska
Trappers Manual, Exhibit 10, p.61. The Alaska Trapper’s Manual suggests using the
330 Conibear style trap for lynx or wolverine and recommends a different size for
marten. Id. at 61.
The government concedes that Trap No. 1 displayed in Exhibits 1 - 3,
did not constitute a cubby because the setting had a second tunnel under a log by
which an animal could enter and retreat without passing by or through the (conibear)
trap. The basic description of a cubby addresses the structure of the tunnel or cave
like enclosure designed to lead the animal past a trap to reach bait. The second trap

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discovered by Officer Titus arguably met the definition of a cubby set.

The

illustrations and the materials admitted at trial as exhibits show a simpler structure
as a cubby.
Considering the evidence adduced at trial the ambiguity of the language
in Special Condition No. 7 becomes apparent. There appears to be a wide disparity
among the trapping community and the wildlife officers as to what constitutes a
cubby set. A trapper can have a cubby set without a flag. A trapper may have a flag
set without the use of a cubby. Or, a trapper may use a cubby and flag set to trap
furbearing animals.
It is undisputed that Special Condition No. 7 is intended to protect the
lynx population. Thus, use of a “cubby and flag set” on the Kenai National Wildlife
Refuge is conditioned upon whether the lynx season is closed. In this case the lynx
season closed February 15, 2011.
The reference to “cubby and flag sets” in Special Condition No. 7 is
ambiguous with respect to the meaning of those words. This Special Condition is
unconstitutional because its language is so vague as to whether a cubby without a
flag is prohibited that it permits arbitrary enforcement. Prohibited use of a cubby set
for the entire year when lynx season is closed would preclude significant trapping in
that area for lawfully trapping other fur bearing animals.

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A lynx hunts primarily by vision which is why trappers place an attractor
or a flag at a trap site to attract the attention of the lynx. Judah’s second trap did not
have a flag or an attractor. Moreover, the evidence indicates that scent had been
placed at the trap to attract a wolverine.
If the phrase “cubby and flag set(s)” is read as a single requirement then
Judah’s second trap did not fall within the prohibition of Special Condition No. 7,
because there was no flag. If Special Condition No. 7 was meant primarily to protect
lynx it could have specified that “cubby and flag sets or flag sets” are not allowed
after the close of lynx season. If the condition was meant to prohibit the use of a
cubby for any furbearer after the close of lynx season it could have so stated, for
example: Use of a cubby set with or without a flag is not allowed when the lynx
season is closed.
The meaning of “cubby and flag set” has been debated frequently at
recent annual trappers association meetings in Kenai, Alaska attended by the
Refuge officer. Officer Titus agreed that the phrase needs to be clarified. Judah
argues that the language of the Special Condition No. 7 is unconstitutionally vague.
As the language exists in the Permit it is subject to vagueness because it allows
persons, including law enforcement officers, trappers, and orientation instructors to
construe the language differently. A statute is unconstitutionally vague as applied
if it does not provide the defendant adequate notice of what conduct is prohibited.

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Rojas-Garcia v. Ashcroft, 339 F.3d 814, 822 (9th Cir. 2003). This constitutional
principle applies with equal force to the language of a permit where the government
seeks criminal enforcement of proscribed conduct in that permit. A statute is void
for vagueness if it “(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. Ayala 35 F.3d 423, 424-25 ((9th Cir. 1994).
For purposes of criminal enforcement the language “cubby and flag set”
in Condition No. 7 is too vague to pass constitutional muster under a void-forvagueness challenge. Under the facts of this case The language is too indefinite to
prohibit a cubby without a flag after lynx season. Wherefore, the court concludes
that the government has failed to prove beyond a reasonable doubt that Mr. Judah
violated Special Condition No. 7 of his Permit specific to the Kenai National Refuge.
Summary
The government has met its burden to prove beyond a reasonable
doubt that Judah attempted to trap wolverine after the wolverine trapping season
had closed as charged in the first violation notice.4 The government has not met its
burden of proof with respect to using a cubby set after the close of lynx season as
charged in the second Violation Notice.5 The government concedes that Trap No. 1

4

Violation No. 0735789, 11-po-032-JDR.

5

Violation No. 0735790, 11-po-033-JDR.

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did not constitute a cubby. The government has not proved a violation of Special
Condition No. 7 of the defendant’s trapping Permit as charged because the language
of the Permit does not clearly indicate the meaning of the language “cubby and flag
sets are not allowed when lynx season is closed.”

That language is

unconstitutionally vague as applied to the facts of this case. Under separate cover
a date and time will issue for imposition of sentence in 11-po-032-JDR.

DATED this 23rd day of March, 2012, at Anchorage, Alaska.

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

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