The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
ORDER REGARDING MOTION TO DISMISS
Defendant Michael Crawford moves to dismiss the charges against him on grounds that he did not violate the terms of his special use permit and there is no legal definition of a "cubby set," which is a term of varied definition and subject to arbitrary and capricious enforcement. Docket 3. The government filed an opposition at Docket 9. An evidentiary hearing was conducted on December 29, 2011. Docket 16. For reasons stated below, the court concludes that the Motion to Dismiss lacks merit and is hereby DENIED.
This case was initiated by the issuance of two violation notices: Violation Notice No. 0735791 charging Crawford with attempting to trap wolverine after the season closed, and Violation Notice No. 0735788, charging that he used a cubby set after the close of lynx season. These tickets were superseded by an Information filed November 18, 2011. Docket 1.
Count 1 of the Information charges trapping out of season, namely, that on or about March 1, 2011, within the Alaska National Wildlife Refuge in the Mystery Creek Road System within the boundaries of the Kenai National Wildlife Refuge, Crawford did attempt to trap wolverine after the wolverine trapping season closed, on the last day of February 2011, in violation of 16 U.S.C. § 668dd, 50 C.F.R. § 36.32(c)(1)(i), 5 AAC 84.270(14). Count 2 of the Information charges that on the same date Crawford did not abide by the terms of his National Wildlife Trapping Permit, Permit No. KEN 11-T23: (1) by attempting to trap wolverine out of season in violation of Special Condition No. 1 of his permit; (2) failing to make every effort to prevent the capture of non target species in violation of Special Condition No. 6 of his permit; and (3) operating a cubby set after the lynx season closed on February 15, 2011 in violation of Special Condition specific to the Kenai National Wildlife Refuge No. 7 of his Permit, in violation of 16 U.S.C. § 668dd, 50 C.F.R. § 26.22(b).
The first ground in the Motion to Dismiss asserts that the defendant did not violate the terms of his special use permit as alleged. This ground raises factual issues which are reserved for the trial of the case. There is no summary judgment in a criminal case and this ground does not raise an issue that is properly decided on a pretrial motion to dismiss. Accordingly, defendant's Motion is DENIED as to the request for dismissal on ground one.
The second ground of the Motion to Dismiss, while not dispositive of Count 2 of the Information, does place in issue whether the government can rely upon the alleged violation of Special Condition No. 7 of the Permit issued to Crawford. Special Use Permit No. KEN 11-T23 contains a set of ten special conditions, plus eight special conditions specific to the Kenai National Wildlife Refuge and four special conditions for beaver trapping on the Kenai National Wildlife Refuge. It also contains a notice regarding marten and fox trapping.
Special Condition No. 7 of those conditions specific to the Kenai National Wildlife Refuge reads as follows: "Cubby and flag sets are not allowed when the lynx season is closed." Crawford maintains that the terms "cubby and flag sets" is subject to arbitrary and capricious enforcement because there "are no definitions of these terms in the federal regulations or statutes[, or] or in Alaska Statutes or regulations." Memorandum in Support of Motion to Dismiss, Docket 4, p.2. Crawford further argues that the reference to "cubby and flag sets" is ambiguous because it is not clear whether the special condition prohibits "cubby sets" and "flag sets", or only a setup that includes both a cubby and a flag. Viewing this issue from the perspective of a motion to dismiss, the court considers the context of the prohibited conduct which is contained in the special use permit for trapping. The purpose for the limitations on trapping, is to prevent over trapping of certain species of fur bearing animals. The court concludes that Special Condition No. 7 provides adequate notice that cubby sets, flag sets, and cubby and flag sets are prohibited during the closed season.
Crawford argues that the challenged terms should have read "cubby or flag sets" if the language was meant to prohibit just a cubby set. Alternatively it might have been clearer for the language to read "cubby and/or flag sets." Nevertheless, to read Condition No. 7 as prohibiting only trapping sets that include both a cubby and a flag but not a cubby set without a flag or flag set without a cubby, would clearly thwart the conservation purpose of the limitation as contained in the applicable regulations, special use permit and mandatory snaring seminar imposed by the permit. Through pretrial discovery the government has advised Crawford for purposes of trial preparation that it intends to present proof that he had a cubby set and not a cubby and flag set that violated his permit.
The government argues that Special Condition No. 7 sufficiently defines the conduct prohibited without being arbitrary and vague. The Ninth Circuit Court of Appeals holds that in an as-applied challenge, outside the context of the First Amendment, "a statute is void for vagueness (and thus unconstitutional under due process) if the statute (1) does not define the conduct it prohibits with sufficient definiteness and (2) does not establish minimal guidelines to govern law enforcement. United States v. Wyatt, 408 F.3d 1257, 1260 (9th Cir. 2005). A criminal statute "cannot be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." United States v. Hockings, 129 F.3d 1069, 1072 (9th Cir. 1997). The Court of Appeals further instructs that where the statute is ambiguous, "the rule of lenity must be applied to restrict criminal statutes to conduct clearly covered by those statutes." Hockings, at 1072.
The government acknowledges that under the rule of lenity, when a criminal statute is ambiguous, courts interpret the statute in favor of the defendant. Wyatt, at 1262. However, the United States Supreme Court has rejected the contention that the rule of lenity is invoked merely because a different reading of the statute is possible. In Moskal v. United States, 498 U.S. 103, 108 (1990), the Court stated:
Because the meaning of language is inherently contextual, we have declined to deem a statute 'ambiguous' for purposes of lenity merely because it was possible to articulate a construction more narrow than that urged by the Government . . . . Instead, we have always reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to 'the language and structure, legislative history, and motivating policies' of the statute.
Additionally, "[p]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989).
Count 2 contains citations to two legal sources. The first is 16 U.S.C. § 668dd. This is the catch-all general provision governing the National Wildlife Refuge System. Subsection (a) governs refuge lands in Alaska. The second, 50 C.F.R. § 26.22(b) General Exception for Entry, covers exceptions for entry in a national wildlife ...