United States v. Millis

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10134
Plaintiff-Appellee,
v.  D.C. No.
4:08-CR-01211-CKJ
DANIEL J. MILLIS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted
March 2, 2010—Las Vegas, Nevada

Filed September 2, 2010

Before: Sidney R. Thomas, M. Margaret McKeown, and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Sidney R. Thomas;
Dissent by Judge Bybee

13289
 UNITED STATES v. MILLIS 13291

COUNSEL

William G. Walker, Tucson, Arizona, for the appellant.

Ann L. DeMarais, Tucson, Arizona, for the appellee.

OPINION

THOMAS, Circuit Judge:

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 immi-
grants crossing into the United States. Millis concedes that he
placed water on refuge trails, but argues that his actions did
13292 UNITED STATES v. MILLIS
not violate § 27.94(a). We have jurisdiction under 28 U.S.C.
§ 1291 and reverse Millis’s conviction.

I

On February 22, 2008, United States Fish and Wildlife Ser-
vice 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 volun-
teers from “No More Deaths,” an organization that provides
humanitarian aid to migrants. One such service is the place-
ment 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 indi-
cated that they had also picked up discarded empty bottles.
Kirkpatrick responded that the group’s actions constituted lit-
tering and requested that the group retrieve the bottles. Kirk-
patrick 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 appli-
cation to place gallon-sized plastic bottles of water on the ref-
uge would be denied. According to his testimony, refuge
 UNITED STATES v. MILLIS 13293
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 res-
cue 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 sus-
pected 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 fol-
lowed. 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. Mil-
lis testified that they had picked up several bottles at this loca-
tion 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
13294 UNITED STATES v. MILLIS
water. Millis produced a notebook that detailed the volun-
teers’ water drop route. The notebook included GPS coordi-
nates for each drop off spot and a numbering system. The
numbers listed in the notebook corresponded to numbers writ-
ten on the bottles alongside the date “2/22/08.” In total, offi-
cers retrieved seventeen bottles of water from refuge trails
and seized several more from the back of the 4Runner, for a
total of twenty-five.

At his bench trial, Millis admitted that he had placed the
bottles of water on the refuge. However, he testified that leav-
ing water out for illegal immigrants constitutes humanitarian
aide and that “humanitarian aide is never a crime.”

The magistrate judge found Millis guilty of the charge and
imposed a suspended sentence. Millis appealed to the district
court, contending that the placement of bottles of purified
water on a national wildlife refuge does not violate § 27.94(a)
as a matter of law. The district court affirmed Millis’s convic-
tion.

II

[1] We review questions of law de novo. United States v.
Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003) (en banc).
The regulation under which Millis was convicted, 50 C.F.R.
§ 27.94, is entitled “Disposal of Waste” and provides that:

(a) The littering, disposing, or dumping in any man-
ner of garbage, refuse sewage,1 sludge, earth, rocks,
or other debris on any national wildlife refuge except
at points or locations designated by the refuge man-
ager, or the draining or dumping of oil, acids, pesti-
cide wastes, poisons, or any other types of chemical
wastes in, or otherwise polluting any waters, water
1
The term “refuse sewage” is not separated by a comma. See 41 Fed.
Reg. 9166, 9171 (March 3, 1976).
 UNITED STATES v. MILLIS 13295
holes, streams or other areas within any national
wildlife refuge is prohibited.

(b) Persons using a national wildlife refuge shall
comply with the sanitary requirement established
under the provisions of this Subchapter C for each
individual refuge; the sanitation provisions which
may be included in leases, agreements, or use per-
mits, and all applicable Federal and States laws.

Millis concedes that he placed water on refuge trails, but
argues that his conduct did not violate § 27.94(a) because the
bottles of purified water did not constitute “garbage, refuse
sewage, sludge, earth, rocks, or other debris” within the
meaning of the regulation. The United States counters that the
bottles constitute “garbage.”2

[2] We begin by noting that the rule of lenity “requires
courts to limit the reach of criminal statutes to the clear
import of their text and construe any ambiguity against the
government.” United States v. Romm, 455 F.3d 990, 1001 (9th
Cir. 2006); see also United States v. Miranda-Lopez, 532 F.3d
1034, 1040 (9th Cir. 2008). The rule of lenity applies “only
where ‘after seizing every thing from which aid can be
derived, the Court is left with an ambiguous statute.’ ” United
States v. Nader, 542 F.3d 713, 721 (9th Cir. 2008) (quoting
Smith v. United States, 508 U.S. 223, 239 (1993)). In such a
case, fundamental principles of due process mandate that “no
individual be forced to speculate, at peril of indictment,
2
We would have no problem affirming Millis’s conviction if, as the dis-
sent contends, § 27.94 prohibited “ ‘littering’ in a wildlife refuge or dis-
posing of or dumping ‘garbage, refuse sewage, sludge, earth, rocks, or
other debris.’ ” However, that is not the text of the regulation. Rather than
generally prohibiting littering, § 27.94 governs “Disposal of Waste.” In
subsection (b), it requires compliance with applicable “sanitation provi-
sions.” In subsection (a), it prohibits specifically the ‘littering . . . of gar-
bage, refuse sewage, sludge, earth, rocks, or other debris.”
13296 UNITED STATES v. MILLIS
whether his conduct is prohibited.” Nader, 542 F.3d at 721
(citation and internal quotation marks omitted).

[3] We next turn to the language of the regulation. When
construing a word, we generally construe the term in accor-
dance with its “ ‘ordinary, contemporary, common mean-
ing.’ ” Cleveland v. City of L.A., 420 F.3d 981, 989 (9th Cir.
2005) (quoting San Jose Christian Coll. v. City of Morgan
Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). To that end, we
may consider a dictionary definition. See id.; see also Mac’s
Shell Serv., Inc. v. Shell Oil Prods. Co., ___ U.S. ___, 2010
WL 693684, *5 (2010) (using dictionary definitions to inform
statutory construction of words). Webster defines “garbage”
as “food waste” or “discarded or useless material.” Webster’s
Collegiate Dictionary 480 (10th ed. 1996).3 “Discard,” in turn
is defined as “1: to get rid of, esp. as useless or unpleasant.”
Id. at 330. Applying those definitions in the present context,
the text of § 27.94(a) is ambiguous as to whether purified
water in a sealed bottle intended for human consumption
meets the definition of “garbage.”4,5
3
Other dictionaries are in accord. See, e.g., Random House Webster’s
Collegiate Dictionary 540 (2000) (defining “garbage” as “1. discarded ani-
mal and vegetable matter, as from a kitchen. 2. any matter that is no longer
wanted or needed; trash. 3. anything that is contemptibly worthless, infe-
rior, or vile”); Oxford English Dictionary, vol. 6, at 363-64 (2d ed. 2001)
(defining garbage as “2. Refuse in general; filth”).
4
The Supreme Court’s decision in United States v. Standard Oil Co.,
384 U.S. 224 (1966), does not compel a different result. At issue in Stan-
dard Oil was a “broad and inclusive” statute prohibiting the depositing in
a body of water of “any refuse matter of any kind or description whatev-
er.” Id. at 229. In deciding the case, the Supreme Court observed that
“[m]ore comprehensive language would be difficult to select.” Id. The reg-
ulation at issue here is decidedly more narrow.
5
Nor do we, contrary to the assertion of the dissent, settle upon a defini-
tion of “garbage” that turns on an item’s value, rather than whether it was
discarded. Under either interpretation, application of the regulation to Mil-
lis’s conduct involves significant ambiguity. See, e.g., Waste Mgmt. of the
Desert, Inc. v. Palm Springs Recycling Ctr., Inc., 869 P.2d 440, 442-43
(Cal. 1994) (considering the notion of value in construing the term “dis-
carded” to interpret California’s Waste Management Act) (citations omit-
ted).
 UNITED STATES v. MILLIS 13297
[4] A second fundamental canon of construction is that
words must be read in their context, with a view to their place
in the overall regulatory scheme, and to “ ‘fit, if possible, all
parts into an harmonious whole.’ ” FDA v. Brown & William-
son Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting FTC
v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)). There is lit-
tle doubt that the overarching purpose of the underlying stat-
ute and implementing regulations is the conservation,
management, and restoration of wildlife and natural habitats.
Pursuant to the 1997 Refuge Improvement Act:

The mission of the [National Wildlife Refuge] Sys-
tem is to administer a national network of lands and
waters for the conservation, management, and where
appropriate, restoration of the fish, wildlife, and
plant resources and their habitats within the United
States for the benefit of present and future genera-
tions of Americans.

16 U.S.C. § 668dd(a)(2). In administering the System, the
Secretary is instructed to “ensure that the mission of the Sys-
tem . . . and the purposes of each refuge are carried out,” id.
at § 668dd(a)(4)(D); “plan and direct the continued growth of
the System in a manner that is best designed to accomplish
the mission of the System,” id. at § 668dd(a)(4)(C); and to
“ensure that the biological integrity, diversity, and environ-
mental health of the System are maintained for the benefit of
present and future generations of Americans,” id. at
§ 668dd(a)(4)(B). Additional uses of System areas are permit-
ted only if the Secretary of the Interior “determines that such
uses are compatible with the major purposes for which such
areas were established.” Id. at § 668dd(d)(1)(A); see also 50
C.F.R. § 26.41. As the district court correctly noted, therefore,
the intent of the regulatory scheme is to prevent the disposal
or abandonment of unauthorized property on refuge land.

[5] However, the structure of the regulatory scheme
achieves that end in a number of ways. Section 27.94(a), as
13298 UNITED STATES v. MILLIS
we have noted, forbids the “littering, disposing, or dumping
in any manner of garbage, refuse sewage, sludge, earth, rocks,
or other debris.” Another provision prohibits “[a]bandoning,
discarding, or otherwise leaving any personal property in any
national wildlife refuge.” 50 C.F.R. § 27.93. A third provision
anticipates that some property might be placed in the refuge
upon receipt of a special use permit. 50 C.F.R. § 25.41; see
also 50 C.F.R. § 25.42 (requiring the exhibition of permits
upon request). The structure of the regulatory scheme thus
suggests that § 27.94(a) was not intended to be a comprehen-
sive implementation of the Congressional mandate to mini-
mize human impact on wildlife refuges; rather, it formed part
of a larger regulatory scheme.6 Indeed, as the government
concedes, special use permits have been granted to allow the
placement of water drums within the refuge for humanitarian
purposes.

[6] The narrow question we consider today is whether the
term “garbage” within the context of the regulation was suffi-
ciently ambiguous that the rule of lenity would apply in this
case. Here, given the common meaning of the term “garbage,”
coupled with the regulatory structure, we conclude that
§ 27.94(a) is sufficiently ambiguous in this context that the
rule of lenity should apply. Millis likely could have been
charged under a different regulatory section, such as abandon-
ment of property or failure to obtain a special use permit.
However, that is not the question presented here. The only
question is whether the rule of lenity should be applied to the
offense charged. We conclude that it does apply, and we
reverse the judgment of the district court.

REVERSED.
6
Thus, we do not hold that “any number of objects (for example, sleep-
ing bags, packaged food, clothing, flashlights, plastic bags, or shoes) can
be left in the wildlife refuge.” The abandonment of such items may well
be prohibited by other regulations applicable to refuge lands, including 50
C.F.R. § 27.93, § 25.41, and § 25.42.
 UNITED STATES v. MILLIS 13299
BYBEE, Circuit Judge, dissenting:

Daniel Millis, motivated by humanitarian concerns, scat-
tered plastic gallon-size water bottles with bright blue caps
throughout the Buenos Aires National Wildlife Refuge in
southern Arizona. When Millis failed to pick up all of the bot-
tles after Fish and Wildlife Service employees asked him to
do so, he was cited for littering on a national wildlife refuge.
50 C.F.R. § 27.94(a). After a bench trial, a magistrate judge
found Millis guilty of the charge, and the district court
affirmed his conviction. The majority overturns his conviction
on the grounds that the common meaning of the term “gar-
bage” is “sufficiently ambiguous” to require invocation of the
rule of lenity. I believe that the rule of lenity does not apply
here because leaving plastic bottles in a wildlife refuge is lit-
tering under any ordinary, common meaning of the word.

I

The Buenos Aires National Wildlife Refuge is located in
Arizona on the border between the United States and Mexico.
In 1985, the Fish and Wildlife Service (“the Service”) pur-
chased the area in order to restore the area’s grasslands and
to protect endangered animals such as the pronghorn and the
masked bobwhite quail. U.S. Fish & Wildlife Service, Buenos
Aires National Wildlife Refuge, http://www.fws.gov/
southwest/refuges/arizona/buenosaires/history.html (last vis-
ited Aug. 5, 2010). Among other things, under the Refuge
Improvement Act, 16 U.S.C. § 668dd(a)(4), the Service must
(1) “provide for the conservation of fish, wildlife, and plants,
and their habitats”; (2) “ensure that . . . the environmental
health of the System [is] maintained”; (3) “contribute to the
conservation of the ecosystems”; and (4) “ensure that the mis-
sion of the System . . . and the purposes of each refuge are
carried out.” 16 U.S.C. § 668dd(a)(4)(A), (B), (C), (D). The
Refuge Act also states that “[n]o person shall disturb, injure,
cut, burn, remove, destroy, or possess any real or personal
property of the United States, including natural growth, in any
13300 UNITED STATES v. MILLIS
[refuge]; or . . . enter, use, or otherwise occupy any such area
for any purpose; unless such activities are performed by per-
sons authorized” to do so. Id. § 668dd(c). In furtherance of
this prohibition, the Service issued a regulation prohibiting
anyone from “littering, disposing, or dumping in any manner
of garbage, refuse sewage, sludge, earth, rocks or other debris
on any national wildlife refuge.” 50 C.F.R. § 27.94(a).

In my view, the regulation readily encompasses the act of
scattering water bottles in a wildlife refuge. Although the reg-
ulation is poorly drafted, it can be understood by persons of
ordinary intelligence. The regulation forbids “littering” in the
wildlife refuge or disposing of or dumping “garbage, refuse
sewage, sludge, earth, rocks, or other debris.”1 Id. § 27.94(a).
I see no need to invoke the rule of lenity.

The rule of lenity is founded on the policy that “a fair warn-
ing should be given to the world in language that the common
world will understand, of what the law intends to do if a cer-
tain line is passed.” United States v. Bass, 404 U.S. 336, 348
(1971). We use the rule to aid us in interpreting an ambiguous
statute by resolving doubt in favor of the defendant. See id.
at 348-49. The rule of lenity only applies “when, after con-
sulting traditional canons of statutory construction, we are left
with an ambiguous statute.” United States v. Hayes, 129 S. Ct.
1079, 1089 (2009). “The simple existence of some statutory
ambiguity . . . is not sufficient to warrant application of th[e]
1
The regulation suffers from several grammatical challenges. The regu-
lation begins with three gerunds listed in series—“littering, disposing, or
dumping”—followed by an object introduced by a preposition—“of gar-
bage, refuse sewage, sludge, earth, rocks or other debris.” 50 C.F.R.
§ 27.94(a). “Littering,” however, does not really match the phrase that
follows—it makes little sense to say “the littering . . . of garbage, refuse
sewage, sludge, earth, rocks, or other debris.” We don’t ordinarily think
of littering in terms of sewage, sludge, or rocks. Moreover, the “of” before
“garbage” doesn’t make sense; neither “littering” nor “dumping” requires
it. The regulation was probably intended to read: “[L]ittering, or disposing
of or dumping garbage, refuse sewage, [etc.] . . . is prohibited.”
 UNITED STATES v. MILLIS 13301
rule [of lenity], for most statutes are ambiguous to some
degree. . . . To invoke the rule, we must conclude that there
is a grievous ambiguity or uncertainty in the statute,” such
that “after seizing everything from which aid can be derived,
we can make no more than a guess as to what Congress
intended.” Muscarello v. United States, 524 U.S. 125, 138-39
(1998) (quotation marks, omission, and citations omitted).

Largely ignoring the term “littering,” the majority focuses
instead on the term “garbage,” which it defines as “food
waste” or “discarded or useless material” Maj. Op. at 13296.
The majority concludes that because the water in the bottles
is “intended for human consumption,” the bottles have value,
and, therefore, are not garbage. Maj. Op. at 13296. The major-
ity holds that “given the common meaning of the term ‘gar-
bage,’ . . . § 27.94(a) is sufficiently ambiguous in this context
that the rule of lenity should apply.” Maj. Op. at 13298.

I think the critical term here is not “garbage,” but “litter-
ing.” Millis’s citation was not for dumping garbage but for
“littering in a National Wildlife Refuge.” Millis testified that
wildlife refuge workers told them that leaving “water jugs on
that trail . . . constituted litter,” and that he was “going to be
cited for littering.” Officer Kirkpatrick similarly testified:

I told [Millis] that placing water out on the refuge
was littering. I explained to him that under the
National Wildlife System Administration Act that
was a class B misdemeanor and he could face up to
six months in jail and/or five thousand dollars in
fines for littering on a national wildlife refuge.

After Mills and those with him failed to pick up the jugs they
had deposited, Officer Kirkpatrick “explained to them that
[he] was going to cite them for littering at that point because
[he] felt they had no intention of complying with [the Ser-
vice’s] regulations.” Littering is not the same thing as dump-
ing garbage. The two terms are sometimes used
13302 UNITED STATES v. MILLIS
interchangeably, but (as long as we are using dictionaries)
“littering” means “to strew with scattered articles,” and the
example cited refers to one who “litters the scene with papers,
boxes, [and cans.]” WEBSTER’S THIRD INTERNATIONAL
DICTIONARY 1322 (2003). Such items may constitute garbage,
but strewing an area with papers, boxes, and cans may be evi-
dence of mere untidiness or, more appropriately here, items
that—in context—are valuable to someone, but not to the per-
son or entity controlling the area.

The First Amendment handbill cases supply a good exam-
ple. We have struck down regulations that prohibited solicit-
ing or leafleting in public fora on First Amendment grounds,
despite the government’s position that such regulations were
aimed at preventing littering. See Schneider v. State, 308 U.S.
147 (1939); S.O.C., Inc. v. County of Clark, 152 F.3d 1136
(9th Cir. 1998). But we have never questioned the legitimacy
of the government’s position that discarded leaflets were lit-
ter, no matter their potential First Amendment value. As the
Supreme Court stated in Schneider, “the guarantee of freedom
of speech . . . [does not] deprive a municipality of power to
enact regulations against throwing literature broadcast in the
streets. . . . There are obvious methods of preventing littering.
Amongst these is the punishment of those who actually throw
papers on the streets.” Schneider, 308 U.S. at 150-51. Simi-
larly, we observed in S.O.C. that “[c]ities and counties have
a substantial interest in protecting the aesthetic appearance of
their communities by avoiding visual clutter,” but found that
this interest could not curb the protected activity of handing
out pamphlets in public fora. S.O.C., 152 F.3d at 1146. The
entity controlling the public forum has the authority to deter-
mine what constitutes litter, no matter its potential use to any-
one else. See City of Fredonia v. Chanute Tribune, 638 P.2d
347, 351 (Kan. Ct. App. 1981) (conviction for littering after
a shopper paper was thrown on the lawn of a resident who had
notified the paper he did not want to receive it: “Insofar as the
complaining witness was concerned, however, the paper was
worthless to him and when thrown on his lawn contrary to his
 UNITED STATES v. MILLIS 13303
expressed desire, it constituted ‘paper’ and ‘litter’ which he
was compelled to dispose of.”). Likewise, the Service has the
authority to determine what items, strewn in the underbrush
of the wildlife refuge, are litter.

There is nothing remotely ambiguous about a regulation
prohibiting littering in a wildlife refuge. Any item—whether
a handbill advertising a land auction or a new high definition
TV—brought into the wildlife refuge without the Service’s
permission is litter, whether it has intrinsic value or not. It
doesn’t belong on the wildlife refuge. The Service couldn’t
have been more clear on this. There are no refuse containers
on the wildlife refuge. Visitors to the area must abide by a
familiar “pack in, pack out” policy, meaning that the Service
expects visitors to pack out all of their personal belongings,
including trash, when they leave the area. See Public Use
Regulations: Buenos Aires National Wildlife Refuge,
http://www.fws.gov/southwest/refuges/arizona/buenosaires/
PDFs/Regulations%20Flyer2006.pdf (last visited Aug. 5,
2010).

The anti-littering regulation applies whether the items were
deposited intentionally or left inadvertently. Millis was inten-
tionally depositing water jugs on trails in the wildlife refuge
for illegal immigrants crossing into Arizona who were ill-
prepared for the rigors of a desert crossing. But it wouldn’t
matter if the items were really nice sleeping bags forgotten by
the inattentive scouts of Troop 101. In the context of the wild-
life refuge, plastic water bottles and sleeping bags are litter
and inconsistent with conservation in the Buenos Aires
National Wildlife Refuge.

II

Even if I thought that the key regulatory term was “gar-
bage,” I would find the majority’s application of the dictio-
nary definition to be problematic. The majority defines
garbage as “discarded or useless material,” Maj. Op. at 13296,
13304 UNITED STATES v. MILLIS
but it focuses only on whether the bottles are “useless materi-
al.” The idea that garbage is “discarded,” however, comports
with the everyday, common meaning of the term “garbage”
and is essential to its definition because it avoids a purely sub-
jective inquiry into the material’s usefulness.2 When Millis
abandoned the water bottles in the wildlife refuge, he “dis-
carded” the bottles according to the ordinary, everyday mean-
ing of the word. The bottles are garbage because they are
“discarded material,” no matter the bottles’ potential value.

The Supreme Court analyzed whether material with value
could be considered “refuse” in United States v. Standard Oil
Co., 384 U.S. 224 (1966). In Standard Oil, the government
prosecuted the company for accidently discharging oil into a
river under a statute that prohibited depositing “any refuse
matter of any kind or description” in a body of water. Id. at
225. The district court dismissed the indictment, reasoning
that because the oil was valuable it could not be considered
“refuse material” under the statute. The Supreme Court
rejected the “narrow, cramped reading” of the term “refuse
material” by the district court, and defined “refuse” as “any-
thing which has become waste, however useful it may earlier
have been.” Id. at 226, 229. The Court concluded, “[o]il is oil
and whether useable or not by industrial standards it has the
2
Two courts that have had the occasion to define “garbage” or “waste”
in a statute have emphasized the concept of the item being “discarded”
over the item’s value. In Waste Management Of the Desert, Inc. v. Palm
Springs Recycling Center, Inc., 869 P.2d 440 (Cal. 1994), the California
Supreme Court interpreted “waste” for the purposes of the California Inte-
grated Waste Management Act of 1989 and held that “property is not
‘waste’ until it is discarded.” Id. at 442. In Northern Illinois Service Com-
pany v. EPA, 885 N.E.2d 447 (Ill. App. Ct. 2008), the Illinois court found
that uprooted, dead trees were within the definition of litter under the Illi-
nois Environmental Protection Act. The Act prohibited “the open dumping
of any waste in a manner” that results in “litter,” and defined waste as
“any garbage . . . or other discarded material.” Using this definition, the
court found that even though the trees had market value they were “other
discarded material” under the Act and observed that “[w]hether an item
has value has no bearing on whether it is discarded.” Id. at 452.
 UNITED STATES v. MILLIS 13305
same deleterious effect on waterways . . . There is nothing
more deserving of the label ‘refuse’ than oil spilled into a
river. That seems to us to be the common sense of the matter.
The word ‘refuse’ includes all foreign substances and pollu-
tants.” Id. at 226, 229-30. Similarly, “the common sense of
the matter” here is that the bottles are “foreign substances and
pollutants” in an area devoted to the conservation of habitats
and the protection of delicate ecosystems. Once Millis aban-
doned the bottles in the wildlife refuge, they became garbage
“whether useable or not” because the bottles were “deleteri-
ous” to the wildlife refuge.3 Id. at 226.

The majority suggests that the bottles are not garbage
because the water in the bottles was “intended for human con-
sumption.” Maj. Op. at 13296 (emphasis added). But whether
an item is “intended” to be useful is not a valid basis for
determining whether the item is in fact useful.4 Under the
majority’s definition, any number of objects (for example,
sleeping bags, packaged food, clothing, flashlights, plastic
bags, or shoes) can be left in the wildlife refuge without incur-
ring liability under § 27.94(a) merely because someone
3
If the Service did nothing to prevent the wildlife refuge from turning
into an informal Goodwill donation center, it could be liable for failing to
comply with the Refuge Act’s statutory requirement to protect the habitat,
environmental health, and ecosystem of the area. See 16 U.S.C. § 668dd.
4
Millis’s intent, as benevolent as it may have been, is irrelevant to the
validity of his conviction. He was convicted under a portion of the Refuge
Act that does not require any proof of the defendant’s intent to violate the
littering regulation. Penalties under the Refuge Act are divided into two
groups. Any person who “knowingly” violates the Act, or a regulation
promulgated under the Act, is fined or imprisoned for up to a year or both.
16 U.S.C. § 668dd(f)(1). “Any person who otherwise violates” the regula-
tion, or who, for example, violates the regulation unknowingly, is fined or
imprisoned for up to 180 days or both. Id. § 668dd(f)(2). Millis was con-
victed for “otherwise violat[ing]” the littering regulation. Even if he did
not think that the bottles were garbage or that he was littering, he could
still be convicted of violating the regulation under the Act. There was no
need to prove that he intended to litter in the wildlife refuge or that he
intended the bottles to be garbage.
13306 UNITED STATES v. MILLIS
thought that the discarded item might be useful to the next
person passing through.5 Even if we focus on the term “gar-
bage,” there is nothing particularly ambiguous about the
meaning of the regulation.

III

Even if I thought there was some wiggle room in under-
standing the common words “littering” and “garbage,” the
majority has not properly applied the rule of lenity as a
method of statutory construction. The rule of lenity is an aid
to interpreting “grievously ambiguous” statutes and requires
a court to resolve doubt in favor of the defendant. Dean v.
United States, 129 S. Ct. 1849, 1856 (2009). It does not allow
the court to merely reverse the conviction without offering
some workable interpretation of the ambiguous term or stat-
ute. Here, the majority simply concludes, “[t]he only question
is whether the rule of lenity should be applied to the offense
charged. We conclude that it does apply, and we reverse the
judgment of the district court.” Maj. Op. at 13298. Instead of
interpreting the Service’s regulation in a way favorable to
Millis, the majority simply concludes that the regulation is
ambiguous—presumably because the bottles were intended
for human consumption—and overturns the conviction. In
doing so, the majority treats the regulation as if Millis had
challenged it under the Due Process Clause as an unconstitu-
tionally vague regulation.6
5
At trial, Officer Kirkpatrick testified that “there was a great deal of
trash on the refuge,” which consisted of “water bottles, backpacks, . . .
articles of clothing, foodstuffs, vehicles,” and “pretty much anything you
can imagine.”
6
States have summarily dismissed the argument that the terms “litter,”
“garbage,” “waste,” or “refuse” are too vague to pass constitutional mus-
ter. See, e.g., State v. Couch, 288 Wis.2d 659, 659 (Wis. Ct. App. 2005)
(holding that ceramic objects were “solid waste” and the littering statute
was not unconstitutionally vague); State v. Cox, 1993 WL 65457 at
*1(Ohio. Ct. App. 1993) (holding that the definition of litter as “garbage,
trash, waste, or rubbish . . .” was not unreasonably vague); Sliney v. State,
 UNITED STATES v. MILLIS 13307
The rule of lenity “induce[s] Congress to speak more
clearly and keeps courts from making criminal law in Con-
gress’s stead.” United States v. Santos, 128 S. Ct. 2020, 2025
(2008). But the majority would have the Service avoid using
a term as common as “garbage” in its littering regulation. This
is not what the rule of lenity requires. The rule of lenity “can-
not dictate an implausible interpretation of a statute, nor one
at odds with the generally accepted contemporary meaning of
a term.” Taylor v. United States, 495 U.S. 575, 596 (1990).
Here, the rule of lenity doesn’t lead to any interpretation at
all.

In my view, both the Service and Congress have spoken
clearly: Congress prohibited anyone from disturbing wildlife
refuge land in any manner and doing any activity without
authorization from the Service, see 16 U.S.C. § 668dd(c); in
response, the Service promulgated a regulation that prohibited
littering, disposing of, or dumping garbage in any manner in
a wildlife refuge, see 50 C.F.R. § 27.94(a). Section 27.94(a)
provides “a fair warning. . . in language that the common
world will understand,” Bass, 404 U.S. at 348, that littering
plastic bottles throughout a wildlife refuge is prohibited.

*****

I would hold that Millis “litter[ed] . . . on [a] national wild-
life refuge,” 50 C.F.R. § 27.94(a), and would affirm his con-
viction. I respectfully dissent.

391 S.E.2d 114, 115 (Ga. 1990) (holding that the terms “waste,” “litter,”
and “garbage” in a statute forbidding the removal of refuse from a refuse
container were not unconstitutionally vague); State v. Clayton, 492 So.2d
665, 666-67 (Ala. Crim. App. 1986) (holding that a statute using the term
“solid waste” was not vague, ambiguous, or unenforceable); State v. Hood,
600 P.2d 636, 639 (Wash. Ct. App. 1979) (holding that a statute that pro-
hibited people from “dispos[ing] of litter” was not unconstitutionally
vague).