In United States v. Obendorf, ___ F.3d ___, No. 16-30188 (9th Cir. July 9, 2018), a panel of the U.S. Court of Appeals for Ninth Circuit affirmed the conviction of an Idaho man who had been charged with a violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703-712, which, among other things, prohibits the baiting of migratory birds to facilitate hunting them. The indictment charged that the defendant, a farmer, had directed one of his corn fields to be harvested by strip-combining, in which alternating corn rows were left untouched, and such that excessive amounts of corn were left on the ground. This was in apparent contrast to the defendant’s other corn fields that had been “neatly combined and fully harvested.” Slip op. at 4.In the trial court, the defendant argued that his activities were not subject to prosecution due to a regulation that excepted from the “taking” prohibition of the MBTA the “taking” of migratory birds on or over lands with, inter alia, standing crops or seeds or grains having been scattered solely as a result of normal agricultural practice. See 50 C.F.R. § 20.21(i)(1)(i). The government had made reference in the indictment to this provision as one of the “Relevant Laws and Regulations,” slip op. at 5-6, and undertook during the trial to prove that this exception did not apply on its facts, id. at 7-8. However, the government changed positions on appeal and argued that the exception did not apply in the first place as a matter of law.
While noting the “‘general rule’ against entertaining arguments on appeal that were not presented or developed before the district court,'” the Ninth Circuit found the argument could be considered on appeal because it involved a pure question of law. Slip op. at 11. On the merits of the argument, the court found that the regulatory exception did not apply by its own terms because it was an exception to the MBTA “taking” prohibition and baiting was a separately prohibited activity (albeit an activity that is done for the purpose of “taking” by facilitating hunting):
The parties agree that § 20.21(i)(1) permits hunting over agricultural lands that might otherwise be off-limits. What they disagree about — and what we must decide — is whether § 20.21(i)(1) also modifies the MBTA’s ban on unlawful baiting. We conclude that it does not. … In sum, we conclude that 50 C.F.R. § 20.21(i)(1) does not create a so-called Agricultural Practice Exception to the MBTA’s ban on unlawful baiting; it instead permits hunting over certain lands that would otherwise be off-limits. Consequently, we conclude that § 20.21(i)(1) was not relevant to the baiting charges Obendorf faced.
Slip op. at 16-17. The court noted that this result potentially conflicted with an unpublished opinion of the Fourth Circuit. Id. at 16 n.4.
In response to the defendant’s argument that “he was prejudiced because the government effectively invited him to construct a defense theory around a regulatory safe harbor that it now maintains does not apply,” the court stated that, while it was “leery of the government’s shift in position and note that its legal error surely added to the expense, effort and time required to litigate this case,” the court concluded nonetheless that “our review of the record convinces us that this error did not affect the verdict.” Id. at 19. This was so, according to the court, because of the “extremely strong ” evidence establishing the elements of illegal baiting. Id.