United States v. Robert W. Launder

of NEPA Region- the history of the in the point At this considerations inject tension environmental least a clear “to Act, is at there al agency decision-making charge agency’s to the the federal NEPA’s into between upon public the that an of action inform the process” the effects and “to evaluate environment and the command of the Re- con environmental agency has considered gional place Act that the contracts be in decision-making process.” Id. cerns in its NEPA, passage. within 21 months of its 201; 40 C.F.R. see also however, flexibility allows for in rem- some Report” BPA’s “Environmental 1502.1. edy because mandated com- has analysis to sufficiently detailed was not a pliance procedures with NEPA “to the full- public of the BPA and the environ inform possible.” est extent Faced with reconcil- repre consequences of the choices mental Act, Regional NEPA and the we con- less inform by the contracts. Even sented injunction operation clude that an of significant im finding no ative was the of inappropriate. the contracts themselves is (FONSI) BPA filed in connec pact Society, National See Audubon Inc. v. the contract amendments of Octo tion with Watt, (D.C.Cir.1982) 678 F.2d 309-10 ber, Only im 1982.6 a full environmental (NEPA give Secretary does not of Inte- BPA, inform its cus pact statement will put rior unlimited discretion to off con- tomers, Regional and the Council development project struction of a water consequences of all the environmental authorized, statutorily relying that was guide fu the contracts and serve as Morton, Corporation Oil v. Gulf therefore, must, per ture actions. BPA (9th Cir.1973)). F.2d an EIS on the contracts. form operation enjoin Our decision not to panel retain It is so ordered. The will of the contracts render the does not case proceedings jurisdiction over further deprive plaintiffs any meaning- moot or to enforcement of this order. related ful relief. The contracts will be in force years. for seventeen more Provisions in contemplate contracts themselves

changes in terms. All the contracts allow

periodic adjustment of rates. All the con- setting

tracts contain a clause forth the

procedures impor- for amendment. Most purposes, for NEPA

tant all the contracts language “by parties include which the ... America, UNITED STATES agree negotiate pow- amendments to the Plaintiff-Appellee, contracts, necessary” er sales to coordi- conservation, resource, nate the renewable LAUNDER, Robert W. provisions and fish and wildlife with the Defendant-Appellant. regional plan. Fed.Reg. Thus, completed the contracts are not No. 83-1291. projects longer for which an no EIS will United States Appeals, Court of Rather, they agreements are useful. Ninth Circuit. flexibility ongoing, accommodate BPA, changing relationship among its cus- Argued May Submitted 1984. tomers, represented interest Sept. Decided Regional Council established under § 839b(a). the Act. 16 U.S.C. Supreme pointed out

As Court Hawaii, Action 454 U.S. at

Catholic attempted argue separately challenge in this action 6. Forelaws them or amend its October, complaint amendments 1982 contract action to include them within required the amendments ninety days Act, an EIS. Because provided by the chal- meaning within the a "final action” lenge were is time barred. Act, Regional Forelaws and because Choy, Judge, dissented and Circuit opinion.

filed Heurlin, Repp,

Bruce Tuc- R. Rhonda L. son, Ariz., plaintiff-appellee. for Leon, Tucson, Ariz., for de- Francisco fendant-appellant. CHOY, PREGERSON, RE-

Before INHARDT, Judges. Circuit REINHARDT, Judge: Circuit Appellant Robert W. Launder was con- violating victed provides That [wjhoever, having fires, although kindled ... a fire in or do so when there is a high upon any near fire hazard. ... lands ... of the United ... leaves said fire Shortly signal fire, after Launder lit his same, totally extinguishing without gust ignited of wind the fire and permits or suffers said fire to burn or four smaller fires in the area around him. spread beyond his or or leaves attempted extinguish He to these smaller unattended, suffers said fire to burn fires but was unable to do so and the fire shall be fined not more than $500 escaped spread quick- his control. The fire imprisoned months, not more than six ly and rapid- became a wild fire which came

both. ly toward him. In per- an effort to avoid injury, sonal he ran from the fire north- by Launder was sentenced the district along ridge, approximately 1,000 ward a years probation court to three and was yards. perform ordered to 400 hours of communi- ty service at Coronado National Forest. Approximately twenty later, minutes incorrectly Because the district court held helicopter circling Launder saw a the fire necessary that criminal intent is not a attempted ele- below. He to attract the atten- § 1856, ment of an under 18 tion of helicopter’s occupants by offense U.S.C. wav- failed, we reverse. his shirt and arms. When this ignited he cleared an area and a second appeal disputed. The facts in this are not sighted fire. He by helicopter was Launder and friends two traveled from helicopter and crew landed nearby to Tucson, Arizona, Lemmon, to Mount a Upon readily rescue him. rescue he admit- in nearby recreational area Coronado helicopter operators ted to the and later to They camped National overnight Forest. suppression specialist the fire of the United Spencer Canyon Campground. States Forest Service that he had set the day, approximately The next at p.m., 1:00 signal first fire as a fire when he became Launder decided to hike camp- around the lost. ground persuade area. Unable to either of The United States filed an information him, his accompany friends to he left his charging violating Launder with campsite intending to hike for one or two the information related to prior returning camp- hours to to the only. pro- first fire Launder elected to ground. food, water, camp- He took no ceed to trial before the United States Dis- ing gear him. with argued trict Court. He at beginning very Launder soon found himself in a the trial that the evidence would show that rough area with which he was unfamiliar. he leaving had no criminal intent in He lost track of time and distance. At everything first fire and possi- that he approximately p.m. 6:00 he realized that he ble to it. The United States way was unable to find his back to either argued require the statute did not campsite his or Tucson. In order to attract proof of criminal intent. attention, light signal he decided to a requesting After considering ledge approxi- He cleared an area on a rock trial briefs on the issue of whether criminal and, mately using ten feet five to across intent is an element of the offense under 18 fuel, twigs, grass small leaves and as lit a § 1856, ultimately the district court signal fire. guilty. entered a verdict of The district danger The risk of fire in the Coronado agreed court United States that significant day National Forest was on the offense set forth 18 U.S.C. 1856 is question. Notices of this hazardous fire not, a offense does under posted highway condition had been on the Morissette v. However, (1952),

at the of Mount Lemmon. require base 96 L.Ed. 288 a step the Forest had not taken showing Service intent. We review the prohibiting campers lighting camp- statutory interpretation district court’s de Mehrmanesh, ting” “suffering” clearly require novo. United States Cir.1982). (9th F.2d to willful act or willful failure act in the opportunity clear face of a do so.1 Moris- Supreme Court As the stated (5th Dictionary Black’s Law 1979) ed. States, de sette v. United inju- suffer, “permit” contention that fines as follows: “To al “[t]he only ry can amount to a crime when inflict- low, consent, let; give license; leave or provincial or transient by intention is no ed by acquiesce, prevent, failure to or to persistent It is as universal and notion. agree to the expressly doing assent systems mature of law belief freedom an act.” Id. at 1026. “Suffer” is defined consequent ability human will and Dictionary Law Black’s as follows: duty of the normal individual choose admit, allow, permit. “To or to It in good and evil.” The Morissette between knowledge cludes what is to done made clear that strict crimes court under sufferance. To suffer an to act be exception legal system an in our and are permit done or a condition to exist is to or crimes can are restricted to be it; it, approve to consent to of not and offenses,” i.e., “public stat- termed welfare implies knowledge, willing it. It hinder a regulation is of utes whose “indus- responsible ness the time and control of trades, tries, properties or activities that prevent.” ability or to Id. at 1284 (cita health, safety or welfare.” affect omitted; added). emphasis tions 254, 72 Id. at Moris- at 245. But the S.Ct. emphasized that courts sette court further The Court in Morissette specifi interpreting reluctant when should be most cally that cautioned rea re- mens dispense to with a statutes legislative clear inten- quirement absent a Congress where borrows terms of art to do so: tion legal which are accumulated the tradition spirit The of the doctrine which denies to meaning practice, of it centuries of power judiciary federal to create the presumably adopts the cluster knows and forthrightly that crimes admonishes we to of that were attached each bor- ideas enlarge not the reach of enacted should body learning in the from rowed word by constituting any- from crimes them meaning taken and the which it was thing incriminating compo- less than the convey judicial mind un- use will to the contemplated by nents the words used less otherwise instructed. the statute. 263, 72 249. In includ- at S.Ct. (footnote Id. at 249 omit- “permits” the terms and “suffers” ted). Congress its inten- section 1856 evidenced language The 18 U.S.C. culpable tion a not found that defendant be Congress way suggests that intended in no government under the the statute unless liability. impose strict criminal It is willingness part has on shown his Congress in section 1856 significant that beyond allow or at the fire burn lighting make the act of not choose to the least that he failed to make all reason- per se land fire in United States able the fire. More- efforts to Rather, Congress in that illegal. statute over, “per- think the of the terms we use impose liability when individual chose general mits” and “suffers” illustrates the “permits or said fire to burn or suffers Congress respect intent the en- (emphasis beyond spread his control ...” Congress tire intended that language of is not the supplied). That legal “permit showing that a of criminal intent be re- liability. The terms strict igniting although prohibition clear the mere where it is that We note that will, more, permitting suffering prohibited fire to against fire result in the or without fire, against setting act, do not may it can be well that intent established requisite never be that hold alone. from that act setting In cases found act of regardless appellant violating, was accused of quired of which clause of particular provides in a ease.2 that statute is invoked [wjhoever, willfully and without authori- government argues that sec timber, underbrush, ty, sets on fire there tion 1856is a offense and grass or inflammable material criminal intent fore there is no upon any domain or lands under the statute. While there is no doubt partial, or leased owned under the after Morissette that under certain circum concurrent, jurisdiction exclusive stances a criminal statute need not contain States the United ... shall be fined not requirement, passages mens rea $5,000 imprisoned than more not more quoted above make it clear Morissette years, five or both. than liability that strict criminal statutes remain system, exception in our criminal law Under section Moreover, appears gets not to matter if a not the rule. Morissette fire way accepted control or if holding in no alters modes of out of the defendant allows get statutory applied in fire to out of construction to be de control—it is suffi wilfully termining the standard of which cient defendant started fact, not, however, Congress That is intends. In the Morissette the fire. the statute specifically charged court warned that courts under which Launder was in this impose government should construe statutes so as to As the action.3 stated liability only argument strict criminal when at oral admits “[t]he clearly expresses its intent that such a appellant any by that did not violate law prevail: standard starting An this fire.” additional act was required, language an act that the Consequences general of a abolition willing, ingredient intent crimes statute indicates must be as an serious voluntary or intentional. responsible aroused the concern of have penology. disinterested students that We conclude section 1856 does course, they justify judicial Of would not dispense customary require not with the disregard of a clear command to that ment that criminal intent be established. Congress, they effect from but do ad- Here, government the does not claim that assuming monish us to caution in that willingly Launder left the fire without ex Congress, expression, without clear in- it, ability tinguishing that he had the or tends instance to do so. spreading power to the fire from at 254 n. 72 at 245 n. 14 Id. S.Ct. control, any way beyond his that he added). (emphasis requisite had the criminal intent under 18 § 1856. Launder was lost and tired We note that the statute under which signal charged Launder is is not one makes and lit a fire as a last resort out of safety. igniting grave the mere act of on concern over his When the fire United' began escape property illegal fire to his Launder States and that there vigorously are other sections of Title 18 of the tried to combat it. Launder im United liability mediately responsibility impose per States Code that do confessed his se setting the rescue team and the United for intentional acts of fires on Unit- both States helped example, forest land. For the Forest Service. Launder even the ed States put signal second immediately precedes section that the one authorities out the dropped. argument example, on At oral 2. For the term “leaves” as used in section 1855 was voluntary government dropped other clauses in the statute connotes the the stated that it count leaving by defendant and does not embrace proceed because it decided to on a misdemean- by involuntary departure compelled events However, felony charge. or rather than a the defendant has no control. over which government § also said that under 1855 crimi- required nal intent is and that it feared the facts government original complaint, al- 3. In its support under here would not a conviction that leged that Launder violated both 18 U.S.C. section for that reason. and U.S.C. 1856. In the later infor- § 1855 18 government the count based mation filed Balint, United v. States do not lend themselves to Such activities 301, 302, engaged in 66 L.Ed. Launder S.Ct. the view that will- (1922). Courts will sometimes infer leaving extinguish- a fire without that ful act of dispense did not intend to ing fire “permit[ted] it suffer[ed] [a] intent beyond his even to burn control.” though specific does not include acknowledge readily protecting that We language of intent. See Morissette v. year every forests from fires which ravish States, 342 U.S. acres of forest lands the Unit- invaluable 240, 249, (1952). 96 L.Ed. 288 But when legitimate ed States is a concern. How- government police power exercises its ever, the Forest Service has United States statute for to enact social order, prohibit, by fires authority all betterment, will infer that the legis- courts given in a area circumstances whenever dispense with the lature intended intent 36 C.F.R. 261.52 warrant such action. Morissette v. United requirement. government conceded at trial (cit- 72 S.Ct. at 247-48 not that had exercised Forest Service Balint, United States U.S. at authority prohibit kindling of all 302). particular, In 42 S.Ct. at area fires the Mount Lemmon recreation [Wjhere a federal criminal statute omits day question, on the Launder’s mention of where seems to starting signal fire action in did not basically poli- involve what is a matter of constitute a crime. is, cy, imposed where the standard under sought Because the has not circumstances, reasonable and adher- prove that Launder committed a viola- properly expected per- ence thereto of a § 1856, tion of as that statute son, relatively small, penalty where the construed, must reverse his convic- gravely where does not conviction bes- tion. mirch, statutory crime is where the REVERSED. law, taken common one over from the purpose is congressional sup- and where CHOY, Judge, dissenting. Circuit porting, the statute can be construed as intent. requiring one not criminal today wrongly majority The infers a criminal into Freed, 601, United States v. 401 U.S. 613 requiring 1856 by 4, 4, 1112, 28 n. 91 1120 n. L.Ed.2d S.Ct. willingness part show a on the defendant’s (1971) (quoting Holdridge v. United 356 beyond to allow the fire to burn States, (8th control 302, Cir.1960)); 282 F.2d 310 a failure to make all reasonable efforts to States, see also Morissette v. United 342 Congress the fire. Because 256, 246; 72 U.S. at S.Ct. at W. LaFave & clearly expressed impose intent to strict Scott, Law 31 at Criminal A. 219-20 “permits” or on one who “suffers” (1972). spread, regardless a fire to of the defend- determining legislative In intent of willingness permit ant’s fire’s 1856, majority compare section failed to prevent it from reasonable efforts language Congress used this section spreading, respectfully I dissent. language surrounding with used sec Legislative tions. Section not contain any intent controls whether a 1856 does proof language evidencing congressional requires criminal of criminal impose Bailey, v. intent to criminal intent United States requirem intent. 444 U.S. 632, 394, 406, 624, surrounding The 62 L.Ed.2d 575 ent.1 sections 100 S.Ct. section describing lighting argues “permits” majority that the terms construed the act of a fire 1. The it, failing unwillingly, "clearly require a and burning even and willful act or a from "suffers” spreading face a clear out of willful to act in the of failure however, knowledge majority, possible danger. Accordingly, opportunity The to do so.” context, "permit" Congress’ "permits” interpreted use in another reads into have too much may knowledge.” reasonably be or "suffer” to mean "with Forres- Those terms "suffers.” 692

1856, however, Congress require specific language contain omit the intent intent, “intent,” regulatory criminal such as words ment in a statute for social bet States, See “wantonly,” “willfully.” 18 terment. Morissette v. United 342 §§ 1851-53, 1855, Congress would I con U.S. at 72 S.Ct. at 247-48. language in have included similar section Congress intentionally omitted clude require proof 1856 it intended to had language specific of intent lan willful conduct. The absence of such Congress en 1856 for social betterment. guage Congress not in indicates that predecessor as a acted the to section 1856 include intent as an ele tend to measure, public to further the ment of a section 1856 violation. See Unit by protecting legis welfare forests.2 The 164, (9th Gray, 448 F.2d ed States v. 168 lature stated: Cir.1971) (where Congress employs a term committee, judgment In the another, place it in one excludes penal enforcement of the statutes strict excluded), imply court should not it where contained in said bill the United States denied, 926, 974, cert. 405 U.S. 92 S.Ct. 30 annually Courts will save millions of feet v. Pena-Cabanillas L.Ed.2d 798 great preserve extent of lumber States, 785, (9th United 394 F.2d 789-90 public upon the forests domain. Cir.1968) (court require no intent found 1976, H.R.Rep. Cong., No. 54th 1st Sess. ment the relevant section omitted because Supreme acknowledged 1897.3 Court intent, language of and related sections predecessor pre this statute’s “to Commonwealth language); contained such vent forest fires which have been one of Koczwara, 397 Pa. 575, 825, v. 155 A.2d great economic misfortunes of the denied, (1959), 848, cert. 829 363 U.S. 80 Alford, States v. country.” United 274 (1960) (same); 4 L.Ed.2d 1731 S.Ct. 264, 267, 597, 598, 71 L.Ed. Lamb, see also United States 150 (1927).4 (N.D.Cal.1957) (first F.Supp. enacted section 1856 for requires clause of related section no purpose. same Forest fires continue to be proof of criminal intent because it contains misfortunes, country’s great intent), one of this sub specific language no aff'd nom., still, prevention as it Magnolia Logging Motor & v.Co. of which was (9th Cir.), Because cert. welfare. Con- 264 F.2d 950 denied, gress 1856 for social 4 L.Ed.2d enacted section better- ment, require- I would not infer an intent Foodliner, Inc., ter v. Roth’s I.G.A. 646 F.2d other inflammable material domain, shall, (9th Cir.1981). breaking camp before or leav- fire, totally Any said the same. "Permitting” “suffering” a fire to burn be- person failing guilty be deemed to do so shall control, therefore, yond necessarily is not and, misdemeanor, upon conviction willfully permitting beyond same burn any thereof in district court of the United strong policy control. Given the reasons for same, having jurisdiction here, of the shall be States finding liability strict criminal we should than one fined in a sum not more thousand Congress’ "permit” use of infer imprisoned imposing dollars or be for a term of not “suffer” that it was requirement. a criminal intent year, more than one or both. government prove If the does not a willful Ch. Stat. act, majority failure to would excuse the government shows that he defendant unless the incorrectly argues leg- 3. The defendant that the steps prevent take all failed to reasonable history's "penal islative reference to statutes” nothing spreading. I find in the stat- fire from suggests punish that the statute's was to majority ute or in the authorities cited regulate public rather than to forests for the supports this which statement. statutes, regula- welfare. All criminal whether otherwise, and, carry penalties tory or in that originally part of act 2. Section 1856 was sense, penal are statutes. fires on the entitled "An Act To forest Act, part, stated: domain.” That in amended version involved an 4. Alford campfire, original passed any person in 1897. See 274 U.S. shall build a That who forest, timber, fire, in or near 598. other ment, beyond fire his control in courts in other contexts have to burn violation just as into infer such a refused to of section 1856. designed protect forests. statutes other Although I realize the difficult situation Minnesota, Shevlin-Carpenter v.Co. See himself, in which Launder found and the 663, 666-667, 57, 69-70, 30 here, culpability lack of serious these con- States v. Wil- L.Ed. 930 siderations should not alter our decision

son, 438 F.2d (9th Cir.1971) 525-26 Congress im- this case. When decides to curiam). (per pose liability, strict it has concluded that all Holdridge fac of the other Consideration engage prohibited those who behav- supports my position that tors also we ior, intent, even those without criminal require should not infer further must be convicted to punishment The ment into section 1856. Congress welfare. Once has made this de- violating not severe. It for section 1856 is cision, are it. bound follow imprisonment, a cannot exceed six months $500, Moreover, a violation fine of or both. result

of section fires, consequence. Fur a serious

ther, potential violators of section 1856 are steps pre

capable taking reasonable spreading Finally, of fires. no

vent crime, similar to a section

common law offense, showing requires a of crimi BURRUS, Robert James nal intent.5 Petitioner-Appellee, majority does not consider these only general sup- rules to points but cites that 1856 is not a port position TURNBO, Warden, Charles “public They argue statute. welfare” Respondent-Appellant. liability “strict criminal statutes remain No. 83-1951. system, exception in our criminal not the rule,” holding Morissette and that “the Appeals, United States Court way accepted statutory alters modes of no Ninth Circuit. applied determining construction to be Argued Jan. 1984. the standard of however, Submitted Jan. 1984. generalities, contends.” Such expressions cannot the clear override Sept. Decided congressional intent in this case to enact section 1856 as a statute for the

preservation of forests. should, therefore, affirm the district

We

court’s conviction because the evidence committed the act of

showed that Launder

kindling a fire or near a forest lands, permitted the fire beyond his control. Launder had

to burn spread- ability the fire from necessity lighting or to avoid Launder, therefore, permitted the distinguishable judicial respect, this case is decision in In this all constituent states of Morissette, Supreme holding where the Court in- the Union intent inherent in this class offense, into the ferred a criminal intent expressed even when not in a stat- embezzling, stealing statutory or con- crime of ute." 342 U.S. at 72 S.Ct. at 248-49. verting, was "an unbroken course where there

Case Details

Case Name: United States v. Robert W. Launder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 25, 1984

Citation: 743 F.2d 686

Docket Number: 83-1291

Court Abbreviation: 9th Cir.