Monday, July 09, 2018

U.S. v. Obendorf (9th Cir. - July 9, 2018)

This is not the most monumental Ninth Circuit opinion you'll ever read.  About a misdemeanor conviction, no less.  So you can survive and flourish the rest of your life even if you never come across it.

But if you're a city kid like me, you'll nonetheless learn something if you take a gander.  Since it's abut baiting ducks.  Something I didn't know a lot about before today.

It's a case from Idaho (of course).  It involves the intersection between people who like to kill ducks for sport and federal laws that try to regulate this practice:

"Obendorf’s farm lies just north of the Boise River, near the town of Parma, Idaho. Hundreds of thousands of ducks pass by the farm during their annual migration each fall. One of Obendorf’s fields is about fifteen acres in size and planted with corn. It has come to be known as the duck field . . . .

A few times a year, federal agents from the U.S. Fish and Wildlife Service (FWS) patrol the river valleys of southwestern Idaho by airplane, looking for signs of waterfowl baiting. On November 15, 2013, FWS Special Agent Scott Kabasa and two of his colleagues flew over Obendorf’s farm. Such flights are routine, but Kabasa paid special attention to Obendorf’s farm during the November 15 flight because he had received a number of tips that Obendorf was baiting ducks on his property. As the plane passed over Obendorf’s farm, Kabasa noticed several large piles of corn in the duck field, including a pile near a hunting pit blind. Kabasa also noticed the duck field had been harvested differently from other fields on Obendorf’s farm. Most of Obendorf’s cornfields were fully harvested, but the duck field was “strip combined”—meaning it was harvested in alternating strips such that many rows were left untouched.

That night after dark, Kabasa and Brian Marek, a conservation officer with the Idaho Department of Fish and Game, snuck onto Obendorf’s farm to take a closer look. Kabasa and Marek counted six large piles of loose corn kernels on the duck field, including one “within shot-shell range” of the pit blind. They also inspected the stripcombined rows in the duck field and observed “an exorbitant amount” of corn kernels littering the ground under the stalks. Kabasa later testified that “the vastness of the corn that was on the ground was unbelievable.” The agents walked Obendorf’s other cornfields, which, unlike the duck field, appeared neatly combined and fully harvested."

So the authorities investigate further and eventually charge (and convict) Mr. Obendorf.  Which leads to today's Ninth Circuit opinion by Judge Christen.  Who writes a 23-page opinion about the relevant statutes and regulations that ends with:

"The Migratory Bird Treaty Act regulations do not create a regulatory exception to the MBTA’s ban on unlawful baiting. Obendorf was charged with unlawful baiting, not unlawful hunting, so 50 C.F.R. § 20.21(i)(1) could not have immunized his conduct. Although the parties misapprehended the law below, any error was harmless. Accordingly, Obendorf’s conviction is AFFIRMED."

So slightly safer to be a duck today in Idaho.