The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
This case was tried to the court on a two count Information charging Michael Crawford with attempting to trap wolverine out of season (Count 1) and violating the terms and conditions of his permit (Count 2). For reasons discussed below the court finds the defendant guilty as charged in Count 1 and guilty under the first alternative charged in Count 2. Count 1 alleges that:
On or about March 1, 2011, within the District of Alaska, within an Alaska National Wildlife Refuge, in the Mystery Creek road system within the boundaries of the Kenai National Wildlife Refuge, Game Management Unit 15, the defendant, MICHAEL BYERS CRAWFORD, did attempt to trap wolverine after the wolverine trapping season closed on the last day of February 2011. All of which is in violation of 16 U.S.C. § 668dd, 50 C.F.R. § 36.32(c)(1)(i), 5 AAC 84.270(14).
On or about March 1, 2011, within the District of Alaska, in the Mystery Creek road system within the boundaries of the Kenai National Wildlife Refuge, the defendant, MICHAEL BYERS CRAWFORD, did not abide by the terms of his National Wildlife Trapping permit, Permit Number KENll-T23, by attempting to trap wolverine out of season in violation of Special Condition number 1 of his permit, failing to make every effort to prevent the capture of non-target species in violation of Special Condition number 6 of his permit, and 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 number 7 of his permit. All of which is in violation of 16 U.S.C. § 668dd, 50 C.F.R. § 26.22(b).
The Special Use Application and Permit issued to Crawford on November 6, 2010 contains ten special conditions, eights special conditions specific to the Kenai National Wildlife Refuge, and four special conditions for beaver trapping on the Kenai National Wildlife Refuge. These permit conditions are set forth in the discussion infra at p.15.
On March 1, 2011, while traveling on a snowmobile in the Kenai National Wildlife Refuge, Refuge Officer Gary Joe Titus observed foot prints leading to a stream bed. He parked his snowmobile and following the tracks to what he describes as a cubby set, erected into the bank with a 330 Conibear trap at the entrance of a tunnel leading to a piece of salmon. The tunnel was about 24 inches long. Cut green branches covered the tunnel and there were twigs on top. A larger stick held the Conibear trap in place. Officer Titus detected no smell near the cubby set. According to Officer Titus this trap set was commonly used to catch lynx and wolverine. It had no flag or attractor on it. This trap set is designated as Trap No. 1. According to Crawford, Trap No. 1 used tainted salmon heads for bait together with "gusto" (a commercially based skunk scent lure), and beaver castor. This bait and scent would attract a wolverine or other predators. The hole went underneath the log at one end with space underneath the log leading to an area where the bait was located. There was more than one way in or out to this.
The officer concluded that because the trap could catch a wolverine it should have been removed on the day wolverine season closed even if the trap could legally catch other animals. The trapping seasons for wolf, coyote and beaver were still open at the close of the season for wolverine. On March 1, 2011, the trapping season was not open for lynx or wolverine. Titus had never seen this type of set used for wolves or coyote. Though a Conibear 330 could catch a coyote, Titus stated it would be better to use a 220 or a 280. A smaller trap would have been used to trap marten or mink. The 330 Conibears were very commonly used for a lynx set or a wolverine set.
When Officer Titus traveled about another 30 minutes down the trail he observed more foot prints in the snow. He discovered another 330 trap set at the entrance to a tunnel which was about 18 inches long. This tunnel led to a natural hole in the back. Branches were used to form the sides and top of the tunnel. There was no flag and a piece of fish was located in the back of the tunnel. Officer Titus did not smell anything at the trap set at trial but he readily admitted at trial that his sense of smell was not good. This trap set is designated as Trap No. 2.
Both trap sets had tags with the name of Crawford on them. The Refuge Officer's registry indicated that Michael Crawford and Scott Judah were trapping in 2010-11 season as partners using traps with the name Crawford on them.
In order to hold or use a permit for trapping in the Kenai Refuge the trapper needs a current State Trapping License and must attend a three and one half hour orientation class offered by U.S. Fish and Wildlife Service at the Refuge headquarters. The trapping permit for the Refuge is free.
In Game Unit 15, where the traps were set, lynx season closed February 15, 2011. Pursuant to Special Condition No. 7 of the Permit "cubby and flag sets" are not allowed when lynx season is closed. In the opinion of Officer Titus, a person using a cubby and flag set after February 15 would violate Permit Conditions 6 and 7 because this type of set is used to trap lynx. Official records showed that in the past three years with more than 300,000 trappers registered, only four wolves had been taken from over two million acres of land in the Refuge. Crawford used snares and leg hold traps for wolves. A Conibear 330 is not a typical wolf trap.
Michael Crawford obtained his first trapping license in 2003 or 2004. He is a life member of the Alaska Trapper's Association and past president of the Kenai Peninsula Trapper's Association. He sat on the Kenai Soldotna Fish and Game Advisory Commission and served as chairman of it for four and one half years. He has been a board member and president of Alaska's Kenai Peninsula Chapter of the Safari's Club International. Crawford taught a portion of the orientation class on the Kenai Refuge for two years.
Crawford started trapping in 2010 on December 1, when the Refuge opened up to snowmobiling. He knew that he needed to remove his flag and cubby sets by February 15, the last day of lynx trapping season. He was aware of the requirements of the Special Permit.
On February 28, 2011, he and Scott Judah had four trap sets out. They intended to remove them before the wolverine season closed because the sets potentially could catch a wolverine. Crawford thought that if a wolverine came down the creek it would likely go into one of his sets. Judah was called out of town the end of February 2011 and he was unable to remove the sets before Officer Titus located them.
The parties disagree over the definition of a cubby and flag set. A cubby set has been a frequent topic of discussion at annual trapping meetings on the Kenai Peninsula. At some of the meetings of the Trappers Association, Officer Titus was called upon to explain the use of cubbies. According to Titus' testimony, the cubby set prohibition against trapping is specific to this particular Refuge.
Officer Titus stated that a cubby set in this particular refuge targets only lynx or wolverine. In his opinion a cubby does not need a flag. He referred to pictures of cubbies in magazines and journals but admitted there was no clear definition of cubby. At one point in his testimony Officer Titus called any type of hole whether natural or covered, a cubby. According to Officer Titus a cubby has a trap at an entrance that forms a tunnel with one way in and one way out. It can vary in size or depth. Officer Titus testified that using a newspaper container with the ends cut off and a Conibear trap in front pushed into a bank would qualify as a cubby and thus be precluded even though a lynx could not squeeze into it. The Officer acknowledged that he has seen cubby sets, flag sets, and cubby sets with some type of attractor. The Officer considers it a violation when a trap is set for a certain type of animal out of season regardless of the trapper's intent. Alaska State law does not prohibit cubby sets and/or flag sets after the close of lynx season.
Ted Spraker testified as an expert trapper for the defense. Mr. Spraker worked for the Alaska Department of Fish and Game for almost 30 years and is a retired wildlife biologist. As a management biologist for the State he conducted surveys on all big game species, furbearers and small game. He is currently serving his fourth term on the Alaska Board of Game. He has trapped the Kenai National Wildlife Refuge almost every year since 1978 and is a long standing member of the Alaska Trappers Association. He admitted that he had no clear understanding of what constitutes a cubby set.
Mr. Spraker stated that the use of a flag or attractor with a cubby is considered a lynx cubby set. According to Spraker a cubby set is almost always associated with catching lynx and if one were going to trap for lynx he would use an attractor such as a wing or piece of ribbon or a CD to attract their attention. Lynx are generally not attracted to bait that gives off an aroma. They are highly skilled predators who prefer snow shoe hares, ptarmigan or grouse. If the set does not have a wing or CD disk, for example, in front of it Spraker would call it a pocket set not a cubby.
If one traps an animal when the season is closed, according to Officer Titus, the trapper has to turn the animal into the Refuge. Officer Titus has never charged anyone with a criminal offense under those circumstances. He testified that he has never heard of anybody turning in an incidentally caught furbearer that was out of season.
In a recorded interview on March 8, 2011, Officer Titus queried Crawford about the four 330 traps. Crawford acknowledged that the traps in question were his. He told the Officer that he did not think his sets were cubby sets. He stated that he had two cubbies in a different area during the lynx season. He described how he made those sets which he called pocket sets. Officer Titus told him that his sets for both Trap No. 1 and Trap No. 2 such formed a cubby which the officer described as any type of hole, natural or covered, that could possibly attract a lynx. Crawford responded that if you are going to call this a cubby we need a better definition of a cubby.
During the interview Crawford stated he intended to remove the traps before they were seized. Crawford stated that Judah was going to pull the two traps on Sunday, February 27; but Judah forgot to pull them. He said that Judah was going to go back Monday, February 28, but he got called out of town for work.
Crawford told Officer Titus that he thought the traps were legal for wolves, coyotes and rabbits. The only animals he caught were two rabbits. Crawford stated "I was worried about catching a wolverine on the last day and having an incidental catch issue." For that reason he was going to pull the traps because "most likely a [wolverine] would have been something that would have been
caught there." Exhibit 10, Recorded Interview of Mike Crawford, p.4.
Crawford calls his sets for Traps No. 1 and 2 "pocket sets" referring to a hole in the bank of a creek with the trap in front of the bait. Such a trap is commonly used for mink. Lynx don't like closed spaces and according to Officer Titus are unlikely to be trapped in a pocket set. The two traps were baited for wolverine using smelly bait. Crawford took no special steps to avoid the capture of a wolverine after wolverine season closed. Mr. ...