The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
Defendant SCOTT C. JUDAH was named in two violation notices charging (1) that on or about March 1, 2011 in the Mystery Creek Road System in the Kenai National Wildlife Refuge he did attempt to trap wolverine after the season closed in violation of 5 AAC 84.270(14)*fn1 , and (2) using a cubby set after the close of lynx season.*fn2 The two charges were tried to the court on January 11, 2012. Upon due consideration of the evidence adduced and arguments of the parties the court finds Judah guilty of attempting to trap wolverine after the season closed and not guilty of using a cubby set after the close of lynx season.
On March 1, 2011, Gary Titus, a officer with the Kenai National Wildlife Refuge was patrolling with Officer Jim Hillgren in the Mystery Creek area within the Kenai National Wildlife Refuge in Game Management Unit 15. During the patrol he observed tracks going to a stream. Officer Titus followed those tracks and observed what he described as a "cubby set" placed into a bank with a 330 Conibear trap placed at the entrance. (Hereinafter Trap No. 1). Officer Titus described the trap setting as a cubby covered with some cut material and other dead material going into a hole into the bank. It had a Conibear trap set at the entrance with a tunnel leading back and bait at the rear of the tunnel. The back of the tunnel was built into the bank, a natural hole.
As the officers continued their patrol south on the Mystery Creek pipeline to another stream bed they observed footprints leading down stream. There they observed a "cubby" built into the bank with a 330 trap placed at the entrance. (Hereinafter Trap No. 2). The 330 trap is shaped in a square with a trigger in the center, springs coming off the side, and tie wires to hold it onto a cross piece. Both traps were removed from site and seized for evidence. The officers took photographs of the trap settings. Officer Titus did not smell any bait or scent at either of the two sets.
As the officers were leaving they notice a snow machine heading in their direction. The driver stopped his snow machine in front of the officers. Scott Judah jumped off the snow machine and started talking very rapidly to the officers. He stated he knew the season for wolverine was closed and "they were in violation." He also stated that he was trapping with Mike Crawford. He said they had four sets out for wolverine and he had already picked up one set.
The traps had tags on them with the name Mike Crawford. Scott Judah and Mike Crawford trapped together using the same trap tags. The officer considered both Judah and Crawford responsible for the sets because their Special Use Trapping Permits identified those tag markings to be used by each of them.
Scott Judah signed a Special Use application and received a trapping permit for the year 2011 which he also signed. Judah is accused in the first Violation Notice of violating Special Condition No. 1 of his Special use Permit by "attempting to trap wolverine out of season." Special Condition No. 1, (State and Federal Requirements) reads: "Trapping will be done in compliance with State game laws and regulations, and may be further restricted by general and special conditions of the Refuge Trapping Permit. Permittees will also comply with all other regulations and conditions affecting access to and use of the Kenai National Wildlife Refuge."
The second Violation Notice alleges a violation of Special conditions specific to the Kenai National Wildlife Refuge No. 7 which provides: "Cubby and flag sets are not allowed when the lynx season is closed." The officer explained that the purpose of this Permit condition is to prevent the capture of lynx when the lynx season is closed. Lynx season closed February 15, 2011 and wolverine season closed February 28, 2011.
Officer Titus described a flag set as a different type of set from a cubby. He stated: "It can be just a flag or CD hanging with a trap placed underneath it." Trial Transcript, 26. In the officers' opinion using a cubby set on its own (without a flag) could still capture a lynx. He stated that cubby sets are used for trapping lynx and wolverine.
Officer Titus stated that for a trapper to learn more about a cubby set, the trapper would need to go to books, magazines, internet and a variety of materials published about trapping. Some of the materials referenced by the officer such as the Alaska Trapper's Manual (September 2003), depicted a Conibear style cubby set for trapping lynx, marten or wolverine (p.61) and a leg hold cubby set for catching lynx, marten or wolverine (P.62). Both of these diagrams depict an "attractor," sometimes called a "flag." On page 68 of that Manual is a diagram and discussion of a cubby set with a tip up pole for trapping marten. This cubby set shows no attractor. The Trapper's Manual is not required reading for trappers using the refuge.
According to Officer Titus all cubbies have one entrance. Cubbies can vary in shapes, sizes and coverings. It can be natural or constructed.
In his experience as a trapper Officer Titus trapped for lynx using a leg-holder trap at the entrance of a cubby placed on a snow shoe trail without an attractant. The officer stated he did not need an attractant because he placed a scent at the back of the cubby.
According to Officer Titus the two sets were not commonly used to catch larger animals such as wolf or coyote because rarely will such an animal would stick its head into a cubby with a 330 trap at the entrance. He explained that lynx is attracted to a small space such as a cubby with bait at the back, whereas a wolf is a very leery animal generally suspicious of anything not natural.
Attempting to Trap Wolverine After Season Closed The first violation, charging attempting to trap out of season, is governed by three legal sources. The first is 16 U.S.C. § 668dd. This is the catch-all general provision governing the National Wildlife Refuge system. ...