Convictions for Entering Navy "Danger Zone" Vacated

U.S. v. Zenon-Encarnacion, 387 F.3d 60 (1st Cir. 2004).

Ronni Stuckey, 2L, the University of Mississippi School of Law

In October, the First Circuit vacated the convictions of three individuals charged with illegally entering a Navy-designated “danger zone” around Vieques, Puerto Rico. The court found that the district court erred by denying the defendants’ request for an evidentiary hearing to determine whether the danger zone regulation complies with a food fishing proviso.

Background
On April 9, 2002, the U.S. Navy was conducting a training exercise in Vieques. South Salinas Bay, by virtue of its designation as a danger zone, was closed to the public during such training exercises. During the exercise, the defendants entered the bay in two small boats. The naval exercise was halted and the defendants instructed to leave the area. The defendants refused and were charged with criminal trespass in violation of 18 U.S.C. § 1382. The defendants were found guilty and sentenced by a magistrate judge in November 2002. One defendant received one year probation and forty-five days of incarceration and two received one year probation and four months of incarceration. The defendants appealed the conviction and the district court affirmed. They then appealed to the U.S. Court of Appeals for the First Circuit.

“Danger Zone” Designation
18 U.S.C. §1382 makes it illegal to enter “any military, naval, or Coast Guard reservation, post, fort, . . . or installation for any purpose prohibited by law or lawful regulation.” South Salinas Bay is “open to navigation at all times except when firing is being conducted.”1 When firing is underway, people and surface vessels, except for those on patrol, are prohibited from entering or remaining in the danger area. The defendants violated §1382 by entering South Salinas Bay during firing.

The defendants challenged their convictions on several grounds. First, they argued that the Navy lacked the authority to designate the area as a danger zone because the Navy was operating under an expired National Pollutant Discharge Elimination System (NPDES) permit at the time. The Navy’s permit expired in 1989, at which time it applied to the EPA for a new permit. At the time of the arrests the EPA had deemed the permit application complete, but had not issued a new permit. Under 40 C.F.R. §122.6(a), however, the EPA’s failure to act simply resulted in the permit remaining in force despite its expiration.

The defendants contended that even if the permit had not expired, the Clean Water Act required state certification that the Navy’s actions would meet state water quality standards. Puerto Rico denied the Navy’s application for a water quality certificate (WQC) in February 2000. As a result, appellants claimed, the Navy’s NPDES permit was no longer in force because the EPA could not issue a NPDES permit without a WQC. The First Circuit disagreed. At the time of the arrests, the EPA had yet to revoke or terminate the permit nor had it denied the Navy’s application. On April 9, 2002, the Navy’s permit was administratively still in force.

Trial Before a Magistrate Judge
The defendants also urged the court to vacate their convictions because their trial was held before a magistrate judge, even though the case involved misdemeanors for which they received imprisonment as opposed to petty offenses. Under 28 U.S.C. § 636(a)(4), magistrate judges have the authority to enter sentences for petty offenses. A person charged with a misdemeanor, other than a petty offense, however, may elect to be tried in district court.2 The defendants claimed they were not charged with petty offenses and that their consent was required before they could be tried by a magistrate for a misdemeanor. A petty offense is defined in 18 U.S.C. §19 as “a Class B misdemeanor, a Class C misdemeanor, or an infraction, for which the maximum” penalty is no greater than $5,000 or 6 months imprisonment. The defendants were charged with violating §1382 which provides for a fine and a maximum prison sentence of six months. Their crime therefore fell within the definition of a petty offense and their consent was not required to be tried or sentenced by a magistrate judge.

Food Fishing Proviso Defense
Finally, the defendants claimed the illegal entry into a danger zone may only be prosecuted under 33 U.S.C. § 3, the statutory authority for the designation of danger zones. In the present case, the government prosecuted the defendants under 18 U.S.C. § 1382. The court readily dismissed the defendants’ argument as § 1382 clearly applies to individuals who violate the law by trespassing onto a naval installation. The court held that the Navy’s designation of South Salinas Bay as a danger zone prohibited the defendants’ entry into the bay during firing and subjected them to § 1382 liability.

The defendants also argued that the government’s prosecution under § 1382 prevented them from asserting a valid jurisdictional defense under 33 U.S.C. § 3. They claimed that § 3 entitled them to an evidentiary hearing on whether the Navy’s creation of a “danger zone” causes unreasonable interference or restriction of the food fishing industry.3 The court agreed with the defendants that they were entitled to an evidentiary hearing, but not because the government brought charges under § 1382. The First Circuit held that the food fishing proviso applies to charges brought under either § 3 or § 1382. The court found that the district court had improperly denied the defendants an evidentiary hearing due to its reliance on U.S. v. Zenon-Rodriguez. In Zenon-Rodriguez, the First Circuit held that an evidentiary hearing was not required in a § 1382 case for the violation of a danger zone regulation promulgated under 33 U.S.C. § 1. Section 1, unlike § 3, lacked a food fishing proviso.

Conclusion
The court remanded the case for an evidentiary hearing and instructed that the convictions should stand if the district court finds the Navy’s danger zone regulation in compliance with the food fishing proviso. As a final note, two concurring justices questioned the soundness of the majority’s decision. If the defendants thought the danger zone unreasonably impacted commercial fishing in the area they could have directly challenged the validity of the regulation in district court under established judicial precedent. Instead, the defendants offer the invalidity of the regulation as a defense against prosecution. Justices Boudin and Lynch “question whether [given the opportunity for a direct challenge] either a fishermen or a protester should be allowed to sail deliberately into a known restricted military zone and then challenge the regulation by way of defense in a criminal case”4 and suggest that the direct remedy should be an exclusive means of relief in such situations.

Endnotes
1. 33 C.F.R. § 334.1470(b)(1).
2. 18 U.S.C. § 3401
3. The powers of the Department of the Army to restrict the use and navigation of navigable waters during target practice “shall be so exercised as not unreasonably to interfere with or restrict the food fishing industry.” 33 U.S.C. § 3.
4. U.S. v. Zenon-Encarnacion, 387 F.3d 60, 67 (1st Cir. 2004).