United States v. Corbin Farm Service

No. 78-1286 (9th Cir. July 12, 1978)

Affirming the lower court's decision, 8 ELR 20333, the Ninth Circuit Court of Appeals adopts the district court's conclusion that multiple bird deaths resulting from a single transaction cannot be separately charged under the Migratory Bird Treaty Act.

For a discussion of recent prosecutions under the Act based on this and another case, see Comment, Courts Hold Scienter Not Required for Conviction under Migratory Bird Treaty Act, 8 ELR 10092 (May 1978).

Counsel are listed at 8 ELR 20333.

Before BROWNING, CARTER and ANDERSON, Circuit Judges.

[8 ELR 20615]

PER CURIAM.

This is an appeal by the United States from a judgment of the district court dismissing nine counts of an information filed against defendants for multiplicity. The sole issue is whether the proper unit of prosecution for the killing of ducks under the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703 et seq., is each duck killed. The district court ruled that multiple bird deaths resulting from a single transaction cannot be separately charged under the MBTA. We affirm.

The defendants were each involved in various capacities with the application of Furadan 4, a registered pesticide, to an alfalfa field which allegedly caused the death of more than 1,000 American Wigeons, a migratory duck. Corbin Farm Service is the dealer/distributor of the Furadan. John Richard Harris is an employee of Corbin who provided pesticide advice to farmers with the expectation that they would purchase from Corbin. Patrick W. Feeney is the owner of the alfalfa field which was sprayed. Frank [8 ELR 20616] H. Michaud, Jr., is the licensed aerial operator who sprayed the field.

The United States, contending it has prosecutorial discretion to charge a violation of the MBTA for each individual duck killed chose ten Wigeons and charged Feeney, Michaud and Harris with their deaths in ten separate counts of a twelve count information. The remaining two counts alleged violations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., but are unrelated to this appeal.

The defendants filed numerous pretrial motions seeking, inter alia, dismissal of nine of the ten MBTA counts for multiplicity.After extensive briefing the district court filed a lengthy opinion disposing of each of the motions. We affirm the district court and adopt its opinion on the issue of multiplicity as our own. The relevant part of the district court's opinion can be found at United States v. Corbin Farm Service, et al., 444 F. Supp. 510, 527-31 (E.D.Cal. 1978) (We adopt the district court's decision beginning with "(1) Multiplicity" at the top of 444 F. Supp. 527 and continuing through the first full paragraph of the second column at 444 F. Supp. 531, ending with the sentence: "Accordingly, nine of the ten counts brought against defendants Harris, Feeney and Michaud under the MBTA are dismissed.").

AFFIRMED.