Govtresponsetrespassownershipnotdefense

Case 3:16-cr-00051-BR

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BILLY J. WILLIAMS, OSB #901366 United States Attorney District of Oregon ETHAN D. KNIGHT, OSB #992984 GEOFFREY A. BARROW CRAIG J. GABRIEL, OSB #012571 Assistant United States Attorneys ethan.knight@usdoj.gov geoffrey.barrow@usdoj.gov craig.gabriel@usdoj.gov 1000 SW Third Ave., Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1000 Attorneys for United States of America

UNITED STATES DISTRICT COURT DISTRICT OF OREGON UNITED STATES OF AMERICA

3:16-CR-00051-BR

v.

JASON PATRICK, DUANE LEO EHMER DYLAN ANDERSON SEAN ANDERSON SANDRA LYNN ANDERSON DARRYL WILLIAM THORN, and JAKE RYAN,

GOVERNMENT’S RESPONSE TO DEFENDANTS’ MOTION RE: AFFIRMATIVE DEFENSE TO TRESPASS—DISPUTED OWNERSHIP (#1673)

Defendants.

The United States of America, by Billy J. Williams, United States Attorney for the District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel, Assistant United States Attorneys, hereby responds to defendants’ Motion re: Affirmative

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Defense to Trespass – Disputed Ownership (ECF No. 1673) and the supporting Memorandum (ECF No. 1674), filed by defendant Thorn on behalf of all February 2017 trial defendants.

I.

Government’s Position Defendants assert that the filing of the trespassing charge requires the government to

prove that it has legal ownership of the land comprising the Malheur National Wildlife Refuge.

(Defs.’ Mem. 2.)

To the contrary, in order to prove a violation of 50 C.F.R. § 26.21(a), the

government is required to prove that defendants: (1) entered the Malheur National Wildlife Refuge; (2) should have reasonably recognized that their conduct would cause an invasion of an interest of another, and (3) that defendants’ entry was not authorized.

The government is not

required to prove that it has the legal authority to own land. Defendants’ belief that the federal government cannot properly own land generally and the Malheur National Wildlife Refuge specifically is not a defense to the crime of trespass under 50 C.F.R. 26.21(a).

Accordingly,

defendants’ Motion Re: Affirmative Defense to Trespass – Disputed Ownership, should be denied.

II.

Legal Argument Defendants are charged by Information with Trespassing in violation of 50 C.F.R.

§§ 26.21(a) and 28.31 and Title 16, United States Code § 460K-3, a Class B misdemeanor.

The

government has found only one case that sets forth the elements of Trespassing under 50 C.F.R. § 26.21(a). In United States v. Best, No. 5:11-CR-414, 2012 WL 3027544 (N.D. Cal. July 24, 2012), the court thoroughly analyzed the proof required for a violation of 50 C.F.R. § 26.21(a).

In Best, the government alleged that there was no mens rea required. The court disagreed.

It

found that the mens rea applicable to § 26.21(a) when charged as a Class B misdemeanor is Government’s Response to Defendants’ Motion re: Affirmative Defense to Trespass—Disputed Ownership (#1673)

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simple negligence. Best, 2012 WL 3027544, at *5.

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The court concluded that the essential

elements of § 26.21(a) are: “(1) Appellant entered the refuge, (2) that Appellant should have reasonably recognized that his conduct would cause an invasion of an interest of another, and (3) that Appellant’s entry was not authorized.” Id. Defendants cannot challenge the government’s ownership of federal lands or the Malheur National Wildlife Refuge because their beliefs about federal land ownership are not an affirmative defense to the trespass charge.

None of the elements of the offense require the

government to prove that it has the authority to acquire and maintain federal lands.

Defendants have not cited any authority to support their position that they can challenge the government’s authority to own the Refuge as a defense to criminal trespass. cases they rely upon involve disputes between competing property claims.

The state civil

For example, Steele

v. Walker, 128 So. 2d 264, 265 (La. Ct. App. 1 Cir. 1961), involved a dispute between neighboring landowners. The plaintiff filed suit after the defendant cut timber on land that the defendant claimed to own. Id. Similarly, Watson v. Suggs, 437 S.E.2d 172 (S.C. Ct. App. 1993) involved a dispute over ownership of property in which both parties claimed ownership of the land in question. Id. at 173.

Meadow Point Properties, Inc. v. Nick Mazzaferro & Sons,

219 N.Y.S.2d 908 (1961), involved a motion for judgment on the pleadings under New York state law. The dispute clearly involved competing claims to a right of way and the court found that the civil complaint was deficient.

Finally, Dugal Logging, Inc. v. Arkansas Pulpwood Co.,

988 S.W.2d 25 (Ark. Ct. App. 1999) is a civil case involving two competing interests in timber lands. /// Government’s Response to Defendants’ Motion re: Affirmative Defense to Trespass—Disputed Ownership (#1673)

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Defendants’ reliance on Hann v. State of Texas, 771 S.W.2d 731 (Tex. Crim. App. 1989) is also misplaced.

In Hann, the court reviewed the sufficiency of the evidence supporting a

conviction for trespassing under Texas state law.

One element of the Texas trespass was “entry

on the property of another without effective consent.” Id. at 732. The case involved a longstanding property dispute between the defendant and a private party that had been the subject of civil litigation. The defendant claimed to have an easement to access his property.

In reviewing the sufficiency of the evidence, the court found that “any rational trier of the facts could not have found beyond a reasonable doubt that appellant’s entry on the property was without effective consent.” Id. at 734.

Unlike all of the cases they rely upon, defendants in this case do not claim that they have an ownership interest in the property or that their entry was authorized.

Instead, defendants

have asserted that the federal government cannot permanently own property or that the state of Oregon did not consent to the transfer of the land to the federal government.

If such beliefs

were a cognizable defense to trespass on federal lands, it would render the charge unenforceable.

Any trespasser could merely allege that he or she did not believe the government could properly own the land.

Finally, as this Court has noted, there is no genuine dispute that the federal government owns the Malheur National Wildlife Refuge and that it owned and controlled the property at the time of the occupation. /// /// /// Government’s Response to Defendants’ Motion re: Affirmative Defense to Trespass—Disputed Ownership (#1673)

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III.

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Conclusion For these reasons, the Court should preclude the defendants from arguing their beliefs

regarding federal land ownership as a cognizable defense to the trespass charge.

Dated this 13th day of January 2017.

Respectfully submitted, BILLY J. WILLIAMS United States Attorney

s/ Geoffrey A. Barrow ETHAN D. KNIGHT, OSB #992984 GEOFFREY A. BARROW CRAIG J. GABRIEL, OSB #012571 Assistant United States Attorneys

Government’s Response to Defendants’ Motion re: Affirmative Defense to Trespass—Disputed Ownership (#1673)

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