Friday, September 3, 2010
Court Tosses Littering Conviction for Leaving Water in the Desert
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday threw out the littering conviction of a man who left gallon-sized plastic bottles of water in the southern Arizona desert for undocumented migrants crossing into the United States.
A split three-judge panel ruled that Daniel Millis did not violate federal law prohibiting “littering, disposing, or dumping…garbage,” because the term “garbage” was sufficiently ambiguous that the rule of lenity should apply.
U.S. Magistrate Judge Bernardo Velasco of the District of Arizona, who presided over a 2008 bench trial, found Millis guilty of violating 50 C.F.R. § 27.94(a) by placing the bottles on trails in the Buenos Aires National Wildlife Refuge, but gave him a suspended sentence.
Millis is a member of “No More Deaths,” a faith-based humanitarian aid group that provides undocumented migrants with water, food and medicine to alleviate deaths related to exposure. He and three other volunteers were stopped by officers of the U.S. Fish and Wildlife Service when the officers noticed the bottles of water in the back of their Toyota 4Runner.
Millis admitted placing the bottles along trails in the refuge, and told the officers he was also picking up empty bottles. The officers directed Millis to remove the bottles he had placed, but later cited him for “Disposal of Waste” and seized a total of 25 bottles of water amid a dispute over whether he fully complied with their orders.
One of the officers later testified that litter problems had placed the refuge on a list of the 10 most imperiled national wildlife refuges in the United States, and that it remained the last habitat in the country for the masked bobwhite quail, in addition to housing other endangered plants and animals. He also said that another organization, Humane Borders, held a permit to keep large water drums on the refuge, including one less than two miles away, and that a U.S. Border Patrol rescue beacon was located nearby.
Millis testified that leaving water out for illegal immigrants constituted humanitarian aid and that such aid “is never a crime.”
U.S. District Judge Cindy K. Jorgenson affirmed Millis’ conviction, but the Ninth Circuit reversed in an opinion by Judge Sidney R. Thomas.
Noting the rule of lenity, which requires courts to limit the reach of criminal statutes to the clear meaning of their text and to construe ambiguities against the government, Thomas opined that the regulation was “ambiguous as to whether purified water in a sealed bottle intended for human consumption meets the definition of ‘garbage.’ ”
He also wrote that the regulatory scheme—which also prohibits “littering, disposing or dumping…refuse sewage, sludge, earth rocks, or other debris”—was intended to prevent the disposal or abandonment of unauthorized property on refuge land, and pointed out that the government allows for placement, albeit by special permit, of water drums for humanitarian purposes.
“Millis likely could have been charged under a different regulatory section, such as abandonment of property or failure to obtain a special use permit,” Thomas commented. “However, that is not the question presented here.”
Judge M. Margaret McKeown joined Thomas in his opinion, but Judge Jay S. Bybee dissented, writing:
“[T]he rule of lenity does not apply here because leaving plastic bottles in a wildlife refuge is littering under any ordinary, common meaning of the word.”
The case is United States v. Millis, 09-10134.
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