United States v. Saul , 955 F. Supp. 1076 ( 1996 )

955 F. Supp. 1076 (1996)

UNITED STATES of America, Appellee,
v.
Harry James SAUL, Ronny Snead, Appellants.

Nos. LR-CR-95-97(2), LR-CR-95-134(1).

United States District Court, E.D. Arkansas, Western Division.

October 2, 1996.

William C. Adair, Asst. U.S. Atty., Little Rock, AR, for U.S.

Brad J. Beavers, Sharpe, Beavers & McGill, Forrest City, AR, Timothy O. Dudley, Little Rock, AR, for Appellants.

ORDER

GEORGE HOWARD, Jr., District Judge.

Appellants, Harry James Saul and Ronny Snead, appeal their convictions by the Magistrate Judge of violation of 7 U.S.C. § 136j(a)(2)(G) and 18 U.S.C. § 2. Harry James Saul is part owner and operator of Harry Saul Minnow Farm, Inc.; Ronny Snead is an employee of the minnow farm. Appellants were convicted of using a restricted pesticide in a manner inconsistent with the label on the pesticide. The Court will uphold the Magistrate Judge's factual findings unless clearly erroneous, but reviews his application of those facts to the law de novo. United States v. Rollins, 706 F. Supp. 742, 743 (D.Idaho 1989). See Fed. R.Crim. Pr. 58(g).

The parties filed stipulations of fact in the case. They establish the following: On August 31, 1992, Saul purchased five gallons of Furadan 4F insecticide-nematicide, for the purpose of killing blackbirds and white egrets. Furadan 4F is a restricted use pesticide.

Saul and Snead, thereafter, caused on one or more occasions, Furadan 4F to be mixed with a gallon of water in a five gallon bucket containing minnows. These minnows, along with grain, corn chops, that had been treated with Furadan were spread on a levee on the minnow farm for the purpose of killing blackbirds and white egrets.

On or about April 8, 1993, a Special Agent with the United States Department of the Interior, Fish and Wildlife Service, along with the assistance of two Refuge Officers, discovered on the lands of the minnow farm three piles of minnows, a dead possum, two or three dead raccoons, a dead great horned owl, and lots of dead blackbirds on the shore of one of the minnow ponds or close to it. Analysis of the dead animals revealed that they contained carbofuran.

An Amended Information filed on July 27, 1995, charged appellants with using or causing to be used

a restricted use pesticide, Furadan 4F, an insecticide consisting of the chemical carbofuran, to be used as a poisoned bait to be placed on levees adjacent to minnow ponds to kill birds and mammals that prey upon minnows in the ponds, and to fish tanks to kill undesirable fish. The labeling on Furadan 4F containers advises of environmental hazards and warns:

It is a violation of federal law to use this product in a manner inconsistent with its labeling.

The Magistrate Judge found appellants' conduct violated the statutes and imposed fines on each of the appellants.

Appellants argue that the term "inconsistent with the label" means that the conduct which the label specifically prohibits. Thus, according to appellants, the statute does not prohibit use of a pesticide to eradicate pests not mentioned on the label. If such meaning is given the terms, then appellants argue that their conduct did not violate the statute.

Furadan 4F is a restricted use pesticide. See 7 U.S.C. § 136a(d) Its use is restricted to only those uses specifically permitted by its approved label and supplement. "The term ``to use any registered pesticide in a manner inconsistent with its labeling' means to use any registered pesticide in a manner not permitted by the labeling ..." 7 U.S.C. § 136(ee) (emphasis added). The statute then lists six exceptions, none of which apply in this case.

The Magistrate Judge found, after reviewing the label and supplement, that appellants' conduct was not permitted by the label. The Court agrees with the Magistrate Judge's finding and with his interpretation of the statute.

There can be no doubt that appellants used the pesticide in a manner inconsistent with its labeling. Appellants used the pesticide to kill blackbirds and egrets. The pesticide is labeled as an insecticide nematicide.^[1] Nowhere does the label permit use of the pesticide as a chemical to control birds. Appellants also mixed and applied the pesticide in a manner inconsistent with the label. Furadan 4F is an extremely toxic poison whose use is restricted to a diluted mixture as provided on its label for the control of insects and pests listed on the label. Appellants' indiscriminate use of this pesticide violates 7 U.S.C. § 136j(a)(2)(G).

Furthermore, adoption of appellants' analysis that the statute is a "prohibited use" statute is contrary to the plain language of the statute which speaks in terms of "permitted use" and contrary to the legislative purpose.

Accordingly, the convictions and sentenced imposed by the Magistrate Judge are affirmed.

NOTES

[1] An insecticide is a chemical used to control insects. A nematicide, is a chemical used to control nematodes, which are small, slender colorless roundworms that live saprophytically in soil or water or as parasites of plants, animals, or fungi." See Exhibit 16, Glossary)