{"id":55,"date":"2018-07-09T16:30:59","date_gmt":"2018-07-09T20:30:59","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=55"},"modified":"2018-07-12T09:45:59","modified_gmt":"2018-07-12T13:45:59","slug":"court-affirms-duck-baiting-conviction","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2018\/07\/09\/court-affirms-duck-baiting-conviction\/","title":{"rendered":"Court Affirms Duck Baiting Conviction"},"content":{"rendered":"

By John M. Simpson<\/a><\/p>\n

In United States v. Obendorf<\/em>, ___ F.3d ___, No. 16-30188 (9th Cir. July 9, 2018)<\/a>, a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the conviction of an Idaho man who had been charged with a violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. \u00a7\u00a7 703-712, which, among other things, prohibits the baiting of \u00a0migratory birds to facilitate hunting them.\u00a0 The indictment charged that the defendant, a farmer, had directed one of his corn fields to be harvested by\u00a0strip-combining, in which alternating corn rows were left untouched, and such that excessive amounts of corn were left on the ground.\u00a0 This was in apparent contrast to the defendant’s other corn fields that had been “neatly combined and fully harvested.”\u00a0 Slip op. at 4.In the trial court, the defendant argued that his activities were not subject to prosecution due to a regulation\u00a0that excepted from the “taking” prohibition of the MBTA the “taking” of migratory birds on or over lands with, inter alia<\/em>, \u00a0standing crops or seeds or grains having been scattered solely as a result of normal agricultural practice.\u00a0 See<\/em> 50 C.F.R. \u00a7 20.21(i)(1)(i).\u00a0 The\u00a0government had made reference in the indictment to this provision as one of the “Relevant Laws and Regulations,”\u00a0slip op. at 5-6, and\u00a0undertook during the trial to prove that this exception did not apply on\u00a0its facts, id<\/em>. at 7-8.\u00a0 However, the government changed positions on appeal and argued that the exception did not apply in the first place as a matter of law.<\/p>\n

While noting the “‘general rule’ against entertaining arguments on appeal that were not presented or developed before the district court,'” the Ninth Circuit found the argument could be considered on appeal because it involved a pure question of law.\u00a0 Slip op. at 11.\u00a0 On the merits of the argument, the court found that the regulatory exception did not apply by its own terms because it was an exception to the MBTA “taking” prohibition and baiting was a separately prohibited activity (albeit an activity that is done for the purpose of “taking” by facilitating hunting):<\/p>\n

The parties agree that \u00a7 20.21(i)(1) permits hunting over agricultural lands that might otherwise be off-limits.\u00a0 What they disagree about — and what we must decide — is whether \u00a7 20.21(i)(1) also modifies the MBTA’s ban on unlawful baiting.\u00a0 We conclude that it does not. … In sum, we conclude that 50 C.F.R. \u00a7 20.21(i)(1) does not create a so-called Agricultural Practice Exception to the MBTA’s ban on unlawful baiting; it instead permits hunting over certain lands that would otherwise be off-limits.\u00a0 Consequently, we conclude that \u00a7 20.21(i)(1) was not relevant to the baiting charges Obendorf faced.<\/p><\/blockquote>\n

Slip op. at 16-17.\u00a0\u00a0 The court noted that this result potentially conflicted with an unpublished opinion of the Fourth Circuit.\u00a0 Id<\/em>. at 16 n.4.<\/p>\n

In response to the defendant’s argument that “he was prejudiced because the government effectively invited him to construct a defense theory around a regulatory safe harbor that it now maintains does not apply,” the court stated that, while\u00a0it was “leery of the government’s shift in position and note that its legal error surely added to the expense, effort and time required to litigate this case,” the court\u00a0concluded nonetheless that “our review of the record convinces us that this error did not affect the verdict.”\u00a0 Id<\/em>. at 19.\u00a0 This was so, according to the court, because of the “extremely strong ” evidence establishing the elements of illegal baiting.\u00a0 Id<\/em>.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

By John M. Simpson In United States v. Obendorf, ___ F.3d ___, No. 16-30188 (9th Cir. July 9, 2018), a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the conviction of an Idaho man who had been charged with a violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. \u00a7\u00a7 … <\/p>\n

Continue reading “Court Affirms Duck Baiting Conviction”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[39,5,41,40,25],"ppma_author":[697],"class_list":["post-55","post","type-post","status-publish","format-standard","hentry","category-general","tag-baiting","tag-john-simpson","tag-mbta","tag-migratory-bird-treaty-act","tag-taking"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","author_category":"","last_name":"Simpson","first_name":"John M.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/johnmsimpson.html","description":"Read John's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/55","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=55"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/55\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=55"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=55"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=55"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=55"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}