United States v. Kevin Jay Mast (8th Cir. September 2019)
Jury Instructions/Mental State – Offense of “otherwise violating” wildlife regulations was not a strict liability offense, but rather had a mens rea element requiring proof of negligence, despite the statute’s silence and an alternative provision criminalizing “knowingly” violating the regulations.
Kevin Mast was charged with “knowingly disturbing property within the National Wildlife Refuge System” under 16 U.S.C. § 558dd(c) after he installed a drain tile on his property that interfered with a government easement.
The key evidence at trial showed that the U.S. Natural Resources Conservation Service and U.S. Fish and Wildlife Services had sent Mast two different maps of his property showing where the government’s easement operated, and thus where he was prohibited from installing a drainage tile. Ultimately, Mast installed a drainage tile that complied with the former’s map, but not the latter.
Subsection (f) of § 558dd provides penalties for disturbing NWRS property. The statute provides separate penalties for “knowingly” violating the statute and “otherwise” violating the statute. At the conclusion of the trial, the jury acquitted him of the charged offense but convicted him of the lesser-included offense of “otherwise” violating the statute after the judge instructed the jury that the lesser-included offense did not require any knowledge of the government’s easement and was a “strict liability offense.”
On appeal, the Court reversed the conviction for the lesser-included offense. The Court noted the “universal, persistent principle that wrongdoing must be conscious to be criminal” and interpreted § 558(f)(2) to require proof that a defendant acted negligently in that they “should have known that there was a substantial risk that his actions would violate or fail to comply with” § 558dd(c). The Court reasoned that the statutory framework for § 558dd(c) does not expressly or implicitly dispense of a mens rea element given the gravity of the available penalties, and neither does the legislative history indicate Congress’s intention to dispense of the mens rea element. Nor is § 558dd a “public welfare” statute that allows strict liability because it regulates “potentially harmful or injurious items.”
Dissenting, Judge Colloton argued that Congress would have specified a mens rea element if the statute was intended to require a particular mental state. He argued that “otherwise” opens the door to strict liability and that “mens rea reform” was an undertaking for Congress, not courts.
Appeal from the District of South Dakota
Opinion by Kelly, joined by Loken
Dissent by Colloton