Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding D.C. No. 4:08-CR-01211-CKJ.
The opinion of the court was delivered by: Thomas, Circuit Judge
Argued and Submitted March 2, 2010 -- Las Vegas, Nevada
Before: Sidney R. Thomas, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.
Opinion by Judge Sidney R. Thomas; Dissent by Judge Bybee
Daniel Millis challenges his conviction under 50 C.F.R. § 27.94(a) for placing full, gallon-sized plastic bottles of water on trails in the Buenos Aires National Wildlife Refuge to help alleviate exposure deaths among undocumented immigrants crossing into the United States. Millis concedes that he placed water on refuge trails, but argues that his actions did not violate § 27.94(a). We have jurisdiction under 28 U.S.C. § 1291 and reverse Millis's conviction.
On February 22, 2008, United States Fish and Wildlife Service Officers Allen Kirkpatrick and Scott Kozma observed four individuals in a Toyota 4Runner while patrolling in the Buenos Aires National Wildlife Refuge. As Kirkpatrick approached the vehicle, he noticed several gallon-sized plastic bottles of water through the lowered back window; the back window was then remotely raised.
In the 4Runner were Daniel Millis and three other volunteers from "No More Deaths," an organization that provides humanitarian aid to migrants. One such service is the placement of water in the desert along frequently traveled routes for unlawful entrants into the United States. Millis, the driver of the 4Runner, later testified that he had placed water on the refuge on at least several dozen occasions. He also testified that he had raised the back window when Kirkpatrick approached to make visible his "NoMoreDeaths.org" decal.
Upon questioning, Millis admitted that the volunteers had been placing plastic bottles of water on refuge trails, but indicated that they had also picked up discarded empty bottles. Kirkpatrick responded that the group's actions constituted littering and requested that the group retrieve the bottles. Kirkpatrick later testified that litter problems had placed the refuge on a list of the ten most imperiled national wildlife refuges in the country. According to his testimony, the refuge remains the last habitat in the United States for the masked bobwhite quail and houses other endangered plant and animal species.
Kirkpatrick also informed Millis that special permits were required to leave water on the refuge and that a permit application to place gallon-sized plastic bottles of water on the refuge would be denied. According to his testimony, refuge managers had granted another organization, Humane Borders, a special use permit to keep large water drums on the refuge. One of these drums was located less than two miles away. Also in close proximity was a United States Border Patrol rescue beacon.
After the volunteers retrieved three bottles of water on a nearby trail, the officers drove off in an eastbound direction on Brown Canyon Road. Soon, Kirkpatrick noticed fresh tire marks on the side of the road alongside another trail and suspected the volunteers had left bottles in that area as well. Kirkpatrick exited the car to recover the bottles and instructed Kozma to stop the 4Runner if it passed, which he did. The witnesses gave differing accounts of the conversation that followed. Kozma testified that he told the volunteers to meet him on the next trail where they had placed water. Millis testified that Kozma told the volunteers to meet him on the next trail where they had placed water that would be easy to retrieve.
The officers again drove eastbound on Brown Canyon Road, expecting to meet the volunteers at the next trail that had bottles of water. They noticed fresh tracks and stopped and recovered bottles from the next two trails. However, the volunteers did not stop. Believing that the volunteers had not complied with their instructions and were leaving the refuge, the officers decided to locate them and issue a citation.
The officers encountered the 4Runner and its occupants for the third time further east on Brown Canyon Road. Millis and the three passengers were standing outside the 4Runner. Millis testified that they had picked up several bottles at this location and believed themselves to have complied with Kozma's instructions.
The officers disagreed. Kirkpatrick issued Millis a citation for "Disposal of Waste" on a national wildlife refuge, as a first offense, in violation of 50 C.F.R. § 27.94(a) and asked Millis for the location of any remaining plastic bottles of water. Millis produced a notebook that detailed the volunteers' water drop route. The notebook included GPS coordinates for each drop off spot and a numbering system. The numbers listed in the notebook corresponded to numbers written on the bottles alongside the date "2/22/08." In total, officers ...