Appeal from the United States District Court for the District of Hawaii. D.C. No. CR 91-00811-ACK. Alan C. Kay, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: James R. Browning, William A. Norris, and Stephen Reinhardt, Circuit Judges. Opinion by Judge Reinhardt; Dissent by Judge Browning.
AMENDED OPINION AND ORDER
REINHARDT, Circuit Judge:
David Hayashi appeals his conviction of taking a marine mammal in violation of 16 U.S.C. § 1372(a)(2)(A). We hold that the Marine Mammal Protection Act (MMPA) and the regulations implementing the act do not make it a crime to take reasonable steps to deter porpoises from eating fish or bait off a fisherman's line. Therefore, we conclude that insufficient evidence supported Hayashi's conviction, and we reverse.
On the morning of January 24, 1991, Hayashi, a part-time commercial fisherman, and his son were fishing for Ahi off the coast of Waianae, Hawaii. A group of four porpoises began to eat the tuna off Hayashi's and his son's lines. Hoping the impact of the bullets hitting the water would scare the porpoises away from their catch, Hayashi fired two rifle shots into the water behind the porpoises. The shots did not hit the porpoises. When the Hayashis reeled in their lines, they discovered that a porpoise had in fact eaten a part of at least one of the tuna.
A state enforcement officer reported to the National Marine Fisheries Service (NMFS) that occupants of Hayashi's vessel had fired at dolphins. In February 1991, NMFS agents interviewed Hayashi and his son, taking written statements from each. An April 22, 1991 information charged Hayashi with knowingly taking a marine mammal in violation of the MMPA, 16 U.S.C. § 1372(a)(2)(A).
The parties consented to proceed before a magistrate Judge. In July 1991, after denying Hayashi's motion to dismiss the information for unconstitutional vagueness, the magistrate Judge tried and convicted Hayashi on stipulated facts. The submitted facts consisted of the Hayashis' statements, and an NMFS agent's report and notes on the interviews of the father and son. Hayashi appealed to the district court, renewing his vagueness argument and raising a claim of insufficient evidence. In December 1991, without oral argument, the district court affirmed the conviction by written order. Hayashi appeals on grounds of unconstitutional vagueness and insufficiency of the evidence. We agree that his conviction must be reversed.*fn1
The MMPA declares it unlawful for any person to "take" a marine mammal in United States waters. See 16 U.S.C. § 1372(a)(2)(A). "The term 'take' means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(13). The MMPA prescribes both civil and criminal penalties, but the latter apply only to persons who "knowingly" violate any provision of the act. See 16 U.S.C. § 1375(b).
The government agrees that the only definition of "take" with possible application to Hayashi is "to harass" or "attempt to harass." The statute itself fails to define "harass." Various agencies of the federal government have promulgated regulations implementing the MMPA.*fn2 The regulations applicable to porpoises, issued by the NMFS, do not define "harass" but further define "take" as including:
The collection of dead animals, or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild.
50 C.F.R. § 216.3.*fn3 The "disturbing or molesting" example is the only regulatory definition potentially applicable to Hayashi's act of firing a rifle into the water behind a group of porpoises to scare them away from his fishing lines.*fn4 We conclude that the regulation does not reach the conduct underlying Hayashi's conviction.
Initially, we note that two substantial errors infected the proceedings before the magistrate Judge and the district court. First, both parties, the magistrate Judge, and the district court all employed the incorrect regulatory definition of the charged crime. Second, the district court's affirmance rested, in part, upon the erroneous belief that negligent acts are criminally punishable under the MMPA.
In opposing Hayashi's motion to dismiss, the government suggested using the definition of "harass" set forth in 50 C.F.R. § 17.3, "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include . . . breeding, feeding, or sheltering." At oral argument, the government did submit for the magistrate Judge's consideration the regulatory definition in section 216.3. Nonetheless, in answering Hayashi's appeal to the district court, the government again argued that section 17.3 was the appropriately-controlling regulatory definition. Hayashi acquiesced in and promoted this view.*fn5
As a result of the parties' briefing, both the magistrate Judge at trial and the district court on appeal employed the regulatory definition in 50 C.F.R. § 17.3, which does not define the crime with which Hayashi was charged.*fn6 The regulation differs from the definition of "take" in 50 C.F.R. § 216.3, particularly in the former's specific reference to disruption of "feeding." Section 17.3, issued by a different agency in a different federal department from the NMFS, implements an entirely separate statute, the Endangered Species Act.*fn7 In effect, the district court entirely ignored the appropriate regulatory definition set out in section 216.3. Hayashi's conviction and its affirmance rest upon application of the wrong regulatory definition.*fn8
Consistent with the MMPA criminal penalty scheme, the information charged Hayashi with "knowingly" taking a marine mammal. Under the MMPA, no criminal penalty can attach for negligent conduct. However, in referring the district court to the regulatory definition in section 17.3, which includes negligent acts, the parties failed to inform the court of this statutory requisite of "knowing" conduct for criminal liability to attach. Indeed, in briefing his appeal to the district court, Hayashi argued that the MMPA specifies no mens rea element. In answering Hayashi's brief, the government took no steps to draw the district court's attention to 16 U.S.C. § 1375(b), and its explicit "knowledge" requirement.
Apparently unaware of this clear statutory command, the district court, relying upon 50 C.F.R. § 17.3, concluded that a criminal violation of the MMPA could rest upon either negligent or intentional conduct.*fn9 In addressing Hayashi's insufficiency claim, the district court held that, "firing the rifle in waters containing porpoises was a negligent act that created a likelihood of injury to the porpoises." Although it went on to suggest that the evidence also showed an intentional attempt to stop the porpoises from eating, the district court's erroneous belief that negligence could support an MMPA criminal conviction tainted its consideration of Hayashi's ...