UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DEFENDANT S MOTION TO DISMISS AND [PROPOSED] PRE-TRIAL MEMORANDUM

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1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : v. : DOCKET NO. W MICHAEL B. DUPUY, : Defendant : DEFENDANT S MOTION TO DISMISS AND [PROPOSED] PRE-TRIAL MEMORANDUM This case concerns interpretation of federal and state wildlife laws and permits. The facts are largely undisputed. The law does not support the prosecution s claim that Defendant Mike Dupuy possessed one more raptor than his permits allowed, so Mr. Dupuy respectfully moves to dismiss. This memorandum is also his proposed pre-trial memorandum. 1 Mr. Dupuy is concurrently submitting an unopposed motion to continue the trial of this petty offense charge now set for October 15, 2014 as part of the Central Violations Bureau docket. SUMMARY As described below, Mr. Dupuy self-reported to the Pennsylvania Game Commission his possession of three Goshawks captured from the wild, requesting bands to identify the birds (raptors). That self-reporting led to the filing of this case. Because Mr. Dupuy holds a falconry permit, two of the captures were authorized by the falconry rule, 50 CFR The prosecution has not pressed charges for those two captures. In additional to practicing falconry Mr. Dupuy also propagates raptors. Because Mr. Dupuy also holds permit authority to propagate raptors, his possession of the third captured Goshawk (the one in dispute in this case) was authorized by the propagation rule, 50 CFR The case must therefore be dismissed. 1 See Mr. Dupuy s motion for leave to submit pre-trial memorandum. 1

2 INTRODUCTION A. Background. Mr. Dupuy is classified as a master falconer under federal and state falconry rules that implement the Migratory Bird Treaty Act, 16 U.S.C. 701, et seq. ( MBTA ). The MBTA makes it unlawful to possess a migratory bird (including domestic raptors) except in compliance with rules adopted under the MBTA by the U.S. Fish and Wildlife Service ( FWS ). 16 U.S.C. 703, 707. FWS delegated to the Pennsylvania Game Commission ( PGC ) the authority to issue MBTA permits allowing capture and possession for falconry. 50 CFR In addition to holding a state falconry permit under the MBTA, Mr. Dupuy holds federal and state permits for raptor propagation. Propagation is caring for and breeding wildlife, with the objective of increasing the population of the species or its availability for human use. FWS adopted 50 CFR to regulate propagation of raptors under the MBTA. Pennsylvania also regulates propagation. 34 Pa. Cons. Stat In some circumstances, raptors to be used in propagation may be obtained by capture from the wild. 50 CFR 21.30(f); 58 Pa.Code B. The Charge. The charging documents allege that Mr. Dupuy on June 17, 2014 possessed one more Goshawk than allowed by his permits. See Violation Notice W (alleging possession without permit authorization [of] (1) Goshawk. ) and a July 17, 2014 letter mailing the Violation Notice ( This charge is the result of your possession of a Goshawk in excess of your permitted allowance. ). These charging documents are supplied as Ex. A. The case is charged as a petty offense, as it was brought by Notice of Violation. Fed.R.Crim.P. 58(b)(1). 2

3 On June 17, 2014, the date of the alleged violation, Mr. Dupuy reported to PGC by that he had three Goshawks and needed bands for them. 2 He asked that some of the Goshawks be applied to his propagation permit and the rest to his falconry permit. Thus this is a case in which the Defendant self-reported to authorities the actions that are alleged to be a crime. The falconry rules authorized Mr. Dupuy to possess up to two raptors a year obtained by capture from the wild for falconry purposes using his falconry permit issued by PGC. 50 CFR 21.29(e)(2). PGC on September 26, 2014 issued Mr. Dupuy bands recognizing his possession under the falconry rules of the first two of the three Goshawks. See Ex. B (September 23, 2014 PGC announcing it would issue falconry bands, which it then did). While this may have used up his annual two-bird falconry allowance under Rule 21.29(e)(2), it did not use up his separate two-bird annual propagation allowance under Rule 21.30(f). Whether Mr. Dupuy lawfully possessed the third Goshawk turns on whether the federal propagation rule (50 CFR 21.30) and propagation permit authorized that action. See Ex A (charging possession of one Goshawk without permit). The charge is explained in more detail in a June 20, from the PGC, which is working with FWS on the prosecution. See Ex. C. The first claim is that Paragraph D of Mr. Dupuy s federal raptor propagation permit restricted him to propagating one type of raptor, Harris Hawks, and so he was not authorized to propagate Goshawks. Id. The second claim is that Mr. Dupuy failed to comply with Paragraph F of the federal propagation permit. Id. Paragraph F states 2 More specifically, Mr. Dupuy reported by that he needed three bands for Goshawks, implying he had obtained three Goshawks captured from the wild. Ex. C to this memorandum is the PGC s response, which includes Mr. Dupuy s June 17, in the chain. In response to a request for clarification from PGC, Mr. Dupuy confirmed that he possessed three Goshawks captured from the wild and needed bands for them. Bands identify the individual raptors. PGC issues bands after capture occurs. In issuing bands, the regulator checks for compliance with the rules governing falconry and propagation. 3

4 that, before capturing raptors from the wild for propagation, Mr. Dupuy must secure from PGC a written authorization to capture raptors from the wild, and provide it to FWS. As demonstrated below, the prosecution misconstrues the rules and permits. The third capture (the one in dispute) was lawful under the propagation rule and permit. Mr. Dupuy s tworaptor falconry quota and two-raptor propagation quota are sufficient to cover the three birds. C. The Case is Suitable for Resolution Through a Motion to Dismiss. Analysis of the federal and state propagation rules and associated written permits present legal issues that are appropriate for the Court to consider on a Fed.R.Crim.P. 12 motion to dismiss. The charging documents (Ex. A) discuss Mr. Dupuy s permit authorizations, so permits, permit applications, and permit instructions (supplied as Exs. D, E, and F, H and I) may be considered. The other exhibits to this memorandum are government s to Mr. Dupuy (Exs. B, C, and J), the contents of which are not in dispute. Excerpts from rules and statutes regarding propagation of raptors are supplied as Ex. G for the Court s convenience. ARGUMENT A. 50 CFR Authorized Mr. Dupuy to Possess the Third Captured Goshawk. The governing regulation does not support the prosecution s arguments that Mr. Dupuy was only authorized to conduct propagation activities with respect to one type of raptor, Harris Hawks, and was prohibited from capturing any raptors from the wild for propagation. The federal rule governing raptor propagation, 50 CFR 21.30, does not limit Mr. Dupuy to propagating Harris Hawks, and in fact affirmatively authorizes him to propagate Goshawks: (b). Species available for raptor propagation. If you have a raptor propagation permit, you may attempt to propagate any species of raptor listed in of this chapter, with the following exceptions: bald eagles golden eagles threatened or endangered raptor species. 4

5 50 CFR 21.30(b) (emphasis added). Goshawks are listed in 50 CFR and so are among any species of raptor Mr. Dupuy may propagate. Goshawks are not eagles and are not listed as threatened or endangered species, so no exceptions apply. The unqualified nature of the authorization to propagate Goshawks granted by this rule must be considered before turning in the next section of this brief to the allegedly limiting conditions written on the federal permit. Rule 21.30(a) also allowed permit holders such as Mr. Dupuy to capture raptors from the wild for purposes of propagation, rather than just breed them in captivity: (ii) You must have a Federal raptor propagation permit before you may capture from the wild, possess, transport, import, purchase, barter, or offer to sell, purchase, or barter any raptor, raptor egg, or raptor semen for propagation purposes. Your State may require that you also have a State permit. 50 CFR 21.30(a)(1)(ii) (emphasis added). The rule then in unequivocal terms authorizes federal propagation permit holders to capture up to two raptors from the wild per year for propagation, subject to a requirement that authorization from the State be obtained: (f). Taking and transferring raptors from the wild to use in propagation. You may take no more than two raptors or raptor eggs from the wild each year to use in propagation. (1). The State must authorize you to take the raptor(s) or egg(s) from the wild. (2). You must comply with all State laws in taking raptor(s) or egg(s) from the wild. 50 CFR 21.30(f) (emphasis added). Assuming for purposes of this motion to dismiss that Mr. Dupuy did indeed possess a Goshawk captured from the wild (and not covered by the falconry rule and permit) as alleged in the charging documents (Ex A) and PGC s explanation of the charge (Ex. C), Mr. Dupuy has the State authorization needed to utilize the federal propagation permit to capture a raptor from the wild and possess it for propagation. The governing State rule prohibits capture from the wild for propagation of any wildlife except raptors: Stock used for the propagation of wild birds and wild animals, except raptors, may not be birds or animals which have been removed from the wild. 5

6 58 Pa. Code (emphasis added). Goshawks are raptors. This State rule is worded as a prohibition on removing non-raptor species from the wild for propagation purposes, but the unmistakable import of its raptor exception is that raptors may lawfully be removed from the wild (i.e. captured) for propagation under Pennsylvania state law. Certainly the rule must be read this way to comply with the constitutional fair notice doctrine, which prohibits prosecution for violation of unclear laws. See U.S. v Daniel, 518 F.3d 205, (3 rd Cir. 2008)(suggesting prosecution must establish its reading of the law beyond a reasonable doubt ); U.S. v. Schiff, 602 F.3d 152, (3 rd Cir. 2010) ( high corporate officers has too much grey area ). Moreover, Mr. Dupuy s state propagation permit (Ex. E) supplies a second authorization under State law to possess raptors captured from the wild for propagation purposes. Mr. Dupuy was not required to obtain a state raptor propagation permit. 34 Pa. Cons. Stat. 2930(a) requires that a permit be obtained only if the raptor is propagated for the purpose of sale, barter, gift or other transfer of possession, and there is no allegation that Mr. Dupuy engaged in sale, barter, gift, or other transfer of these Goshawks. See Ex. A. However, Mr. Dupuy does hold a state propagation permit, which provide a second State authorization. See Ex. E. 3 The state permit instructions explain that the holder is authorized to TAKE ANY RAPTOR : PRIVILEGE GRANTED BY PERMIT AUTHORIZES HOLDER TO TAKE, POSSESS, TRANSPORT, IMPORT, PURCHASE, BARTER, OR OFFER TO SELL ANY RAPTOR FOR PROPAGATON PURPOSES. 3 The effect (if any) of the SPECIES Harris Hawk, Harris Hawk, Harris Hawk (2), Harris Hawk, Harris Hawk Harris Hawk language printed on the face of the state propagation permit (Ex E) is discussed in note 8 below. While it appears the language is in the nature of an inventory of raptors already possessed for propagation purposes, that debate is of limited relevance to the case because: (a) 58 Pa. Code allows capture from the wild for propagation purposes, and so provides by rule the state authorization required by 50 CFR 21.30(f), making the state propagation permit non-essential, and (b) 34 Pa. Cons. Stat. 2930(a) requires a state propagation permit only if the propagator wants to sell, barter, give, or otherwise transfer, which is not alleged here, so no state propagation permit was required. 6

7 Raptor Propagation Information Sheet Accompanying State Propagation Permit, Ex. H. (emphasis added). Take is statutorily defined to include capture. 34 Pa. Cons. Stat B. The Permit Terms Do Not Deprive Mr. Dupuy of the Authority to Obtain Goshawks Through Capture from the Wild Granted by 50 CFR and 58 Pa. Code The real dispute is whether Paragraphs D and F written on Mr. Dupuy s federal propagation permit (Ex. D) effectively carve back the authority granted by Rule The general permit rules in 50 CFR Part 13 require that permit holders adhere to permit conditions. 1. Federal Propagation Permit Paragraph D. The current federal propagation permit references 50 CFR and the general permit rules in 50 CFR Part 13 and state a set of Conditions and Authorizations. Paragraphs D and I in the Conditions and Authorizations address species: D. Authorized to possess the following species of raptors for propagation purposes: Harris hawks and/or hybrids thereof. I. Not authorized to take Peregrine Falcons from the wild in the U.S. Federal Propagation Permit (Ex. D). There are three reasons why the prosecution errs in contending that Paragraph D makes propagating any species other than Harris Hawks a crime. First, Permit Paragraph D when read with Permit Paragraph I does not clearly override the grant in Rule 21.30(b) of authority to conduct propagation with respect to any species listed in Rule Under the fair notice requirement, even if arguendo a permit limitation could lawfully override a published rule, the overriding would at least need to be clear. Daniel, supra; see U.S. v. Harriss, 347 U.S. 612, 617 (1954) (law must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden before criminal conviction can occur). 7

8 Goshawks are neither Harris Hawks whose possession is expressly authorized by Paragraph D nor Peregrine Falcons whose capture from the wild (and resulting possession) is expressly prohibited by Paragraph I. Reading Paragraph D as authorizing propagation activities only with respect to Harris Hawks would turn Paragraph I, the prohibition regarding taking Peregrine Falcons from the wild for propagation, into surplus words that serve no purpose, and so is not a favored result under the canons of construction. Further, Paragraph D lacks restrictive words such as only that might convert the confirmation in Paragraph D that possession of Harris Hawks is allowed into a prohibition on propagating any species of raptors other than Harris Hawks. By contrast, reading Paragraph D as providing a specific confirmation that Mr. Dupuy may propagate Harris Hawks, rather than as prohibition on propagating other species covered by Rule 21.30(b), would result in both Paragraphs D and I serving a purpose. The official application for a first-time federal propagation permit asks the applicant to identify the specific species the applicant intends to propagate, and Mr. Dupuy listed Harris Hawks in his answer when he filed that application in See Ex. I. Paragraph D thus appears to confirm that the specific species that Mr. Dupuy forecast propagating in his permit application is one that he may propagate. The application and permit, however, do not clearly lock the applicant into that original forecast for the life of the permit, or clearly waive the right under Rule 21.30(b) to propagate any species listed in Rule See Exs. D and I. Thus, Paragraph D confirms that propagation of Harris Hawks as forecast in the original application is lawful. Paragraph I prohibits propagating Peregrine Falcons through taking them from the wild, while leaving open the option of propagating Peregrine Falcons from captive stock. 8

9 Paragraphs D and I together leave all other raptor species governed solely by Rule 21.30(b), which authorizes propagation of Goshawks, a species listed in 50 CFR Second, even if Paragraph D were read as clearly prohibiting Mr. Dupuy from propagating any species other than Harris Hawks, a permit condition is a lesser legal authority than the rule published in the Federal Register. Thus the permit condition cannot override the published rule, which here declares without qualification that: if you have a raptor propagation permit, you may attempt to propagate any species of raptor listed in CFR 21.30(b) (emphasis added). Permit conditions issued to implement a rule may supplement or clarify limitations established in a rule, but they cannot contradict the governing rule by taking back authority that the rule grants without qualification. 5 This is particularly so in a criminal prosecution, where the constitutional fair notice rule discussed above applies. Third, even if Paragraph D were held to have clearly and lawfully overrode the any raptor listed in language in Rule 21.30(b), Mr. Dupuy cautiously checked with FWS Region Headquarters in Massachusetts before the Goshawk capture at issue.. Under U.S. v. Stewart, 185 F.3d 112, 124 (3 rd Cir 1999), his reliance on the following written advice he received in a May, from FWS Permits Examiner Linda McKenna bars prosecution: 4 A further indication that Paragraph D does not effectively prohibit propagating species other than Harris Hawks is that Mr. Dupuy s related state falconry permit falconry permit (also issued pursuant to the MBTA) also contains a reference to Harris Hawks. The State falconry permit provides: Species: Harris Hawks. Ex. F. The prosecution has not brought a claim that this reference to a single species on the falconry permit means that this is the only species with respect to which Mr. Dupuy can conduct falconry activities, and PGC has issued band recognizing Mr. Dupuy s possession of the two Goshawks captured for falconry. See Ex. B. The Harris Hawk reference on the state falconry permit appears to result from Mr. Dupuy reporting that he possessed Harris Hawks on falconry permit renewal applications. 5 In Frost v. Railroad Commission of State of Cal. 271 U.S. 583, 594 (1926), the Court held that a State could not impose permit conditions contrary to the Constitution or laws of the United States. By the same logic, a federal agency cannot impose permit conditions that directly contravene its own published rules, which are part of the laws of the United States. The rules can be changed by the federal agency through the rulemaking process if the agency sees a need to do so. 9

10 Hi Mike, This is the new wording that goes on the permit when it comes up for renewal: D. You are authorized to possess, transport, import, sell, purchase, barter, and capture from the wild raptors (excluding bald eagles and golden eagles), including hybrids thereof, raptor eggs, or raptor semen for propagation purposes, provided your activities are conducted in accordance with 50 CFR and 50 CFR 13. These regulations can be found at Hope this helps. from Linda McKenna, FWS Permits Application Examiner, to Mike Dupuy (May 18, 2012)(emphasis added) (copy supplied as Ex. J.). The renewed federal propagation permit language quoted to Mr. Dupuy by FWS expressly authorizes capture from the wild of raptors other than bald eagles and golden eagles, and so authorizes such possession of captured Goshawks. The alleged violation occurred on June 17, 2014, which was after the permit renewal occurred on April 1, 2014, so Mr. Dupuy followed FWS s advice in waiting until the permit renewed. See Ex. D (renewed federal propagation permit). The from FWS Regional Headquarters (Ex. J) fulfills all requirements for the official government advice defense (referred to as entrapment by estoppel ) set forth in Stewart to apply. The government advice was specific to the subjects of types of raptors that may be propagated and obtained for propagation through capture from the wild. It came from an appropriate government source (the permits examiner at Regional Headquarters). Mr. Dupuy reasonably relied in good faith on that advice. Stewart, 185 F.3d at 124 (elements of defense). 6 The prosecution may contend that Mr. Dupuy should lose the benefit of Stewart because he theoretically could have (1) scrutinized the language on the actual renewed permit dated April 6 See 3rd Cir. Model Jury Inst. Chap 8, p. 26 (noting that the defense is also called reasonable reliance on official statement of the law, and citing Stewart and Model Penal Code 204(3), which confirms the defense applies to all offenses, regardless of whether the offense has an intent element). 10

11 1, 2014, (2) noticed the difference between it and the permit renewal language quoted in Regional Headquarters , and (3) contacted FWS Regional Headquarters a second time to obtain further advice. However, the defense does not require that the defendant in the criminal case chase down every conceivable loose end in the government advice, or else be held to have engaged in unreasonable reliance on that advice. See, e.g., U.S. v. Penn. Indus. Chemical Corp., 411 U.S. 655, (1973)(corporate defendant in pollution prosecution entitled to rely on an old agency rule declaring that statute prohibited only those emissions which hindered navigation, even though the Supreme Court had since construed the statute more broadly to prohibit pollution that did not hinder navigation). FWS did not contact Mr. Dupuy to warn him that the language on his renewed permit differed from the language quoted by Region Headquarters. Further, the Regional Headquarters referred Mr. Dupuy to the FWS rules for more information, rather than to permit conditions and authorizations. See Ex. J. The rules contain the broad grants of authority to propagate Goshawks, including Goshawks capturing from the wild. 50 CFR 21.30(b) and (f). Agency rules can themselves be official government advice barring prosecution, even when contradicted by other authorities. Penn. Indus. Chemical Corp., 411 U.S. at Here those rules declare that Mr. Dupuy may propagate Goshawks and that, with state authorization (supplied by 58 Pa.Code ), Goshawks may be obtained for this purpose by capture from the wild. Mr. Dupuy may reasonably rely on that advice. In short, both the written advice from FWS Regional Headquarters regarding permit language and Rule itself bar prosecution. 2. Federal Propagation Permit Paragraph F Finally, the prosecution also contends that Mr. Dupuy violated Paragraph F of the federal raptor propagation permit, which provides: 11

12 F. Raptors MAY NOT be taken from the wild for propagation purposes, unless permittee has written authorization from the State. Permitee must also submit a copy of this authorization to the Federal issuing office before taking any raptors from the wild. Federal Raptor Propagation Permit (Ex. D). Recall that 50 CFR 21.30(f) requires that the holder of the federal propagation permit secure State authorization before utilizing the federal permit to capture raptors from the wild. Paragraph F purports to add the additional requirement (not expressed in the rule) that the permitee supply a copy of the state authorization to FWS. 7 Mr. Dupuy complied with Paragraph F. As explained above, the applicable State propagation rule prohibits removal of animals except raptors from the wild for propagation purposes, and thus allows removal (capture) of raptors such as Goshawks from the wild for propagation. 58 Pa. Code The state rule is published in the Pennsylvania Bulletin (as well as the Pennsylvania Code). Publication in official registers such as the Federal Register or Pennsylvania Bulletin puts all persons including FWS on notice of the content of the rule. Shiny Rock Min. Corp. v. U.S., 906 F.2d 1362, (9 th Circ. 1990). It would be unreasonable to read Permit Paragraph F as putting the additional burden on each individual permit holder to print and mail a PGC rule to FWS, when Pennsylvania Bulletin publication of the rule is notice. 8 As discussed above, although Mr. Dupuy was not required to hold a state propagation permit because he is not alleged to have sold, bartered, gifted, or otherwise transferred the Goshawks in question, the State raptor propagation permit he does hold is a second state authorization to possess for propagation raptors captured from the wild. The instructions accompanying the State raptor 7 Whether a permit condition can effectively add an additional element to compliance with Rule 21.30(f) not stated in that rule section is debatable under the fair notice doctrine. 8 Reading Paragraph F as requiring that FWS have actual notice of the state authorization would trigger difficult-to-resolve factual disputes over whether FWS got actual notice of the State rule through PGC-to-FWS communication, through FWS s own research, or some other means. 12

13 propagation permit (quoted above) authorize TAKE, a term which includes capture. 9 Ex. H. Given the close interaction between FWS and PGC in implementing the MBTA, FWS must have been aware of the content of the instructions to the State permit. Finally, the official advice / entrapment-by-estoppel defense discussed above in the context of whether Mr. Dupuy could propagate Goshawks applies equally to the issue of whether he could possess raptors captured from the wild. The advice from FWS Regional Headquarters explained that the renewed permit will authorize capture from the wild, Ex. J, as does Rule 21.30(a) and (f). The defense thus bars prosecution even if Mr. Dupuy is held to have violated Permit Paragraph F. Neither the Region Headquarters advice nor Rule 21.30(f) warn of any requirement to forward to FWS a copy of a state authorization for capture from the wild. CONCLUSION Out of the web of regulations and permit conditions, the affirmatives declarations in 50 CFR 21.30(b) and (f) that you may attempt to propagate any species of raptor listed in and that you may take raptors from the wild with state authorization are the highest level of legal authority and must control. Mr. Dupuy acted within those authorizations, and in conformity with the written advice FWS Regional Headquarters provided when he prudently inquired. The Court should dismiss the criminal charge against Mr. Dupuy. 9 The State propagation permit also has a Harris Hawk reference on it, but this was not limiting. The permit in effect on the date of the alleged violation, June 17, 2014, declares: SPECIES Harris Hawk, Harris Hawk, Harris Hawk (2), Harris Hawk, Harris Hawk. (Ex. E). The multiple references to Harris Hawk appear to be an attempt to provide an inventory of raptors in the permitee s possession at the time of permit renewal, rather than a prohibition against propagating raptors of other species during the life of the permit. If the species line instead prohibited propagating any other species, there would be no reason to repeat Harris Hawk multiple times. Further, as discussed above, the State propagation permit instructions authorize taking ANY RAPTOR Ex. H. 13

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