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United States v. Billie

ELR Citation: 18 ELR 20209
Nos. No. 87-8038-Cr-Paine, 667 F. Supp. 1485/(S.D. Fla., 08/24/1987)

The court holds that the Endangered Species Act (ESA) applies to noncommercial hunting of the endangered Florida panther by Indians on the Seminole reservations, and the ESA's prohibition against possession of the endangered Florida panther does not unconstitutionally infringe upon a Seminole Indian's right to free exercise of his religion. The court first rules that the ESA applies to noncommercial hunting of endangered species by Indians on reservations. Indian fishing and hunting treaty rights are not absolute, and do not extend to the point of extinction. The legislative history and the Act's plain language, taken together, clearly indicate Congress' intent not to exclude Indians from the Act's prohibitions. The ESA is comprehensive in its protection of listed species, Indians are included within the definition of "person," and the limited exceptions provided for Alaskan subsistence hunting demonstrate that Congress considered Indian interests and balanced them against conservation needs.

The court next rules that the mens rea required for criminal violations of the ESA is general intent. The definition of the word "knowingly," particularly in regulatory statutes, is that an act is done voluntarily and intentionally. In the context of the ESA, knowledge of the particular subspecies being taken is not necessary. The court holds that the applicability of the ESA to hunting on reservations is not vague or highly debatable, rejecting defendant's argument that his intent to violate the Act could thus not be proved. Intent to violate the law is not an element of a criminal violation under the ESA. Even if it were, defendant should have been on notice that the law applied to him, since the Act applies to any person within the jurisdiction of the United States. The court holds that the charges need not be dismissed for multiplicity. Although defendant cannot be charged with a single offense in more than one count, the government has not done so since the ESA's prohibitions against the taking and possession of endangered species are distinct from each other.

The court holds that the ESA, on its face, does not violate the First Amendment's protection of religious rights. The court also holds that the Act does not violate the First Amendment as applied to defendant. Not all burdens on religion are unconstitutional, and the ESA both regulates conduct rather than belief and has a secular purpose and effect. The governmental interest in protecting the Florida panther on the Seminole reservations is compelling, considering the extremely small number of panthers remaining in the wild and their presence on the reservations. Defendant's asserted interest in the possession of the panther, on the other hand, does not appear to be indispensable to the practice of his religion, since he has not shown that the possession of panther parts is material to an important religious ceremony or that panther parts are essential.

Counsel for Plaintiff
Donald A. Carr, James C. Kilbourne, Charles W. Brooks
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7352

Counsel for Defendant
Bruce S. Rogow
Professor of Law
Nova University
2097 SW 27th Terrace, Ft. Lauderdale FL 33312
(305) 524-2465