238 F. Supp. 3d 1157
D. Neb.2017Background
- Defendant Paul Kenner, a Nebraska rancher, admitted ~300 of his cattle entered Unit 35C of the Valentine National Wildlife Refuge for ~10 days in 2015 and were removed when notified.
- Unit 35C boundary fencing is USFWS-owned; a segment adjacent to a small, seasonally fluctuating lake had only three strands with a large gap above receded water; cattle had breached this fence in 2012 and 2014.
- Kenner’s ranch hand, Wyatt Johnson, drove an all-terrain vehicle (ATV) through a gate (which lacked refuge signage) onto Unit 35C to place mineral tubs with cattle at Kenner’s instruction.
- Charges: four counts under 16 U.S.C. § 668dd(c) and implementing regulations — unauthorized entry/trespass by cattle, use of a motorized vehicle on the refuge, disturbing plants, and conducting a commercial enterprise (grazing) without authorization; government proceeded under the lesser (f)(2) penalty provision that lacks a knowing mens rea requirement.
- Court considered whether Congress intended strict liability or required some mens rea for § 668dd(f)(2), examined legislative history and precedent, and conducted a bench trial; judge concluded statute requires proof of simple negligence rather than strict liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Mens rea required under 16 U.S.C. § 668dd(f)(2) | No knowledge/intent element needed; government may convict under the statute/regulations as written | Court should require a mens rea (knowledge or negligence); strict liability is disfavored | Court adopts simple negligence standard (reasonable-person risk of causing invasion) rather than strict liability or specific intent |
| 2. Unauthorized entry/trespass (cattle on refuge) | Kenner’s cattle entered refuge; statutory/regulatory prohibition met; conviction appropriate without proof of knowledge | Kenner lacked actual knowledge; fence maintained by USFWS; entry was inadvertent | Guilty: Kenner was negligent in failing to take reasonable precautions despite prior breaches and unsuitable fence conditions |
| 3. Use of motorized vehicle on refuge (ranch hand’s ATV) | ATV entered refuge at Kenner’s direction; violates vehicle prohibition | Ranch hand lacked awareness of refuge signs at gate; gate lacked signage; Kenner lacked intent | Guilty: Kenner liable under aiding-and-abetting for directing employee to enter with ATV and was negligent in instruction/supervision |
| 4. Disturbing plants / conducting commercial grazing without permit | Cattle grazing disturbed/destroyed refuge vegetation and constituted unauthorized commercial use | Any disturbance was temporary and inadvertent; minimal/no lasting damage; Kenner lacked intent | Guilty: Disturbance occurred; negligence standard satisfied; damages limited given no permanent harm |
Key Cases Cited
- United States v. Semenza, 835 F.2d 223 (9th Cir. 1987) (courts should be reluctant to dispense with a mens rea requirement when statute is silent)