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United States v. Corbin Farm Servs.

Citation: 8 ELR 20333
No. No. S-77-179, 444 F. Supp. 510/12 ERC 1257/(E.D. Cal., 01/23/1978)

The court denies defendants' motions to dismiss an indictment based on the death of migratory waterfowl as a result of the aerial application of a pesticide to farmland. Defendants were charged with misdemeanor violations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), for applying the pesticide contrary to the instructions on its warning label, and the Migratory Bird Treaty Act (MBTA), for the death of ten American widgeon, a species protected under the MBTA. The court rejects defendants' motions to dismiss the FIFRA counts because the statutory provision prohibiting use of a pesticide in a manner inconsistent with its labeling and the label, which warned against application where waterfowl are "known to repeatedly feed," adequately described the prohibited conduct and thus were not unconstitutionally vague. On the MBTA counts, the court dismisses the multiple counts and leaves standing only one charge for all the bird deaths. Because the legislative history is ambiguous on this issue, the courtapplies a rule of lenity whereby multiple offenses from a single transaction results in only one charge. The court holds, however, that the MBTA prohibition against killing includes death by poisoning. Furthermore, scienter is not a required element for conviction. The court analogizes to cases of hunting over baited fields, where the principle has developed that scienter is not required. In this instance, where there is a threatening situation, defendants must exercise reasonable care to try to prevent damage. The court also upholds the bringing of separate counts under FIFRA and the MBTA for the same act because they address separate offenses for which different evidence is required.

Counsel for Plaintiff
Richard W. Nichols, Chief Ass't U.S. Attorney
650 Capitol Mall, Sacramento CA 95814
(916) 440-2331

Counsel for Defendants
Donald Cole Byrd
Geis, Meckfessel & Hopkins
109 S. Butte St., Willows CA 95988
(916) 934-4685

O. Douglas Memmott
Hubbard, Van Patten & Memmott
110 S. Plumas St., P.O. Box 908, Willows CA 95988
(916) 934-3324

Francis E. Coats
Hewitt, McBride, Kenward & Coats
547 Second St., Yuba City CA 95991
(916) 673-6215