The opinion of the court was delivered by: Go, United States Magistrate Judge
Defendant Richard Knauer is charged with engaging in commercial fishing in violation of 36 C.F.R. § 2.3(d)(4) and harming/harassing wildlife in violation of 36 C.F.R. § 2.1(a)(1)(i) for harvesting horseshoe crabs from the waters of Jamaica Bay, a unit of Gateway National Recreation Area ("Gateway"). By notice of motion filed on November 13, 2007, defendant moved to dismiss the charges, arguing that he engaged in lawful "commercial fishing" and "fishing" at Gateway. See ct. doc. 3. Following oral argument and supplemental briefing by the parties, this Court issued an electronic order on April 21, 2008 denying the motion and indicating that the rulings would be set forth in a separate order or rulings on the record.
At the conclusion of a bench trial held on April 23, 2008, the defendant made an oral motion for a judgment of acquittal on the commercial fishing charge because horseshoe crabs are not "fish" within the meaning of 36 C.F.R. § 1.4(a). This Court reserved judgment. After consideration of the evidence and law, this Court makes the following findings of fact and conclusions of law.
The following findings of fact are based on the exhibits admitted and testimonies of the witnesses presented at trial, all of whom I found to be credible. The government called Kim McKown, a unit leader of the New York State Department of Environmental Conservation ("DEC"), and four employees of the United States Park Service working at Gateway: Donna Harding, a budget analyst in the Jamaica Bay Unit; Park Service Officers Timothy Cosgro and Christopher Pickel; and Lisa Eckert, Superintendent of the Jamaica Bay Unit of Gateway National Recreation Area. Defendant, who waived his attendance at trial but participated by telephone, called Dr. William Velhager, Assistant Professor of Biology at New York University.
Gateway National Recreation Area consists of the "lands, waters, marshes, and submerged lands in the New York Harbor area" extending from Jamaica Bay in the southern part of Queens and Brooklyn, along the southern side of Staten Island to Sandy Hook, New Jersey. 16 U.S.C. § 460cc(a). The Jamaica Bay Unit of Gateway includes "the islands, marshes, hassocks, submerged lands, and waters in Jamaica Bay, Floyd Bennett Field," and "the lands within one-fourth mile of the mean low water line" in "the area of Jamaica Bay to the shoreline of John F. Kennedy International Airport." 16 U.S.C. §§ 460cc(a)(1) and (6).
Defendant Richard Knauer resides in Sheepshead Bay, Brooklyn and was the holder of a commercial fishing permit issued by New York State that is valid through December 31, 2009 and permits the commercial harvesting of crabs, including horseshoe crabs.
On May 29, 2007, United States Park Police Officers Timothy Cosgro and Christopher Pickel saw Knauer on a fishing boat within the federal waters of Jamaica Bay, approximately one mile from state waters to the east and two miles from state waters running in a channel to the west, taking horseshoe crabs out of the Bay with a gaff. After they pulled alongside and boarded Mr. Knauer's vessel, the officers saw that the vessel was filled with over 70 horseshoe crabs piled several layers deep on the boat bottom. Explaining to Officer Cosgro that he was a commercial fisherman "just trying to make a living," Knauer produced a New York State Commercial Fishing License. Officer Cosgro advised that the permit was not valid in the federally protected waters of Jamaica Bay and directed the defendant to throw the horseshoe crabs overboard. Although Officer Cosgro proceeded to write out two summonses, the defendant did not remove any horseshoe crabs from the boat.*fn1 After he completed writing, Officer Cosgro handed the two summonses to Mr. Knauer and explained what the defendant had to do. The defendant then headed away in his boat in a northerly direction.
Prior to May 29, 2007, neither Officer Cosgro nor Donna Harding had ever observed people engaged in commercial fishing or the harvesting of horseshoe crabs or other wildlife in Jamaica Bay.
Animals commonly known as fish are classified with other vertebrates under phylum chordata. Fish are further classified within this phylum into classes known as Agnatha, Osteichthyes (bony fishes such as eels and goldfish) and Chondrichthyes (cartilaginous fish such as sharks and rays). Mollusks, which include snails, clams and squid, are in phylum Mollusca while crustaceans such as shrimp and lobsters are in a subphylum of phylum Arthropoda. Horseshoe crabs, which are more closely related to spiders and scorpions, are classified in subphylum Chelicerata of phylum Arthropoda. Although horseshoe crabs are not scientifically classified as crustaceans, Ms. McKown testified that the DEC, the agency in New York State responsible for regulating wildlife, manages horseshoe crabs as crabs.
Superintendent Eckert testified that the taking of wildlife or hunting is prohibited at Gateway. Prior to May 29, 2007, Superintendent Eckert had issued a compendium further regulating use and conduct at the Jamaica Bay Unit in exercise of her discretionary authority under the governing statutory and regulatory scheme. The Compendium provided that "hunting . . . [and] the taking of . . . horseshoe crab are prohibited throughout the Jamaica Bay Unit."*fn2 Further, the informational brochure for the Gateway National Recreation Area, which included a map of the park and was available at all the park's visitor center offices, included a warning that "[a]ll natural and cultural resources, including wildlife, rocks, plants and structures are protected by federal law. Do not disturb or destroy." Govt.'s Exh. 12.
DISCUSSION AND CONCLUSIONS OF LAW
Mr. Knauer is charged with violating two provisions contained in Chapter I to Title 36 of the Code of Federal Regulations (the "regulations"), which govern, inter alia, conduct within "[t]he boundaries of federally owned lands and waters administered by the National Park Service." See 36 C.F.R. § 1.2(a)(1). The terms used in Chapter I are defined in section 1.4(a), unless otherwise modified by a particular part or regulation. Id. Under section 1.4(a), the term "fishing" is defined as "taking or attempting to take fish." "Fish" are defined as any member of the subclasses Agnatha, Chondrichthyes, or Osteichthyes, or any mollusk or crustacean found in salt water. "Wildlife" is defined as "any member of the animal kingdom and includes a ...