United States v. F/v Repulse, in Rem, and Arnie Kjarstad, Claimant-Appellant

Ninth Circuit

United States v. F/v Repulse, in Rem, and Arnie Kjarstad, Claimant-Appellant

688 F.2d 1283, 13 Envtl. L. Rep. (Envtl. Law Inst.) 20554, 18 ERC (BNA) 1680, 1982 U.S. App. LEXIS 25252, 18 ERC 1680

CourtCourt of Appeals for the Ninth Circuit

DecidedSeptember 28, 1982

Docket81-3182

StatusPublished

Cited by6 cases

This text of 688 F.2d 1283 (United States v. F/v Repulse, in Rem, and Arnie Kjarstad, Claimant-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. F/v Repulse, in Rem, and Arnie Kjarstad, Claimant-Appellant, 688 F.2d 1283, 13 Envtl. L. Rep. (Envtl. Law Inst.) 20554, 18 ERC (BNA) 1680, 1982 U.S. App. LEXIS 25252, 18 ERC 1680 (9th Cir. 1982).

Pincite

Opinion

NELSON, Circuit Judge:

The claimant Arnie Kjarstad, as master of the vessel, appeals from the district court’s in rem judgment assessing a $15,000 civil penalty against the fishing vessel Repulse pursuant to 16 U.S.C. § 1376(b) for the “unlawful taking of a marine mammal.” Kjarstad argues that the action and the penalty are more criminal than civil in nature, and thus, the trial court erred in applying the preponderance of the evidence standard rather than either the beyond a reasonable doubt or intermediate clear and convincing standards of proof.

The preponderance of the evidence standard applies in civil cases, including civil penalty cases. Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1978). See also United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). The few exceptions are very limited and include only those cases involving fraud or possible loss of individual liberty, citizenship, or parental rights. Santosky v. Kramer, -U.S.-, 102 S.Ct. 1388, 1396, 71 L.Ed.2d 599 (1982); Addington v. Texas, 441 U.S. at 424, 99 S.Ct. at 1808; Woodby v. Immigration Service, 385 U.S. 276, 87 S.Ct. 483,17 L.Ed.2d 362 (1966). “The interests at stake in those cases are deemed to be more substantial than the mere loss of money . . . . ” Addington v. Texas, 441 U.S. at 424, 99 S.Ct. at 1808. The penalty in the present case calls only for loss of money.

Congress expressly labelled the sanction in 16 U.S.C. § 1376(b) a “civil penalty.” Moreover, in the preceding section, 16 U.S.C. § 1375(b), Congress provided for criminal penalties. The specific “civil” label and juxtaposition with criminal penalties indicate Congress’ clear intent to establish § 1376(b) as a civil penalty. United States v. Ward, 448 U.S. at 248-49, 100 S.Ct. at 2640-2641. The civil penalty is not so punitive as to negate that intent. Id.; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963).

The statute and penalty in this case are neither criminal nor quasi-criminal in nature. Consequently, preponderance of the evidence was the proper standard of proof.

AFFIRMED.

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NELSON, Circuit Judge:

The claimant Arnie Kjarstad, as master of the vessel, appeals from the district court’s in rem judgment assessing a $15,000 civil penalty against the fishing vessel Repulse pursuant to 16 U.S.C. § 1376(b) for the “unlawful taking of a marine mammal.” Kjarstad argues that the action and the penalty are more criminal than civil in nature, and thus, the trial court erred in applying the preponderance of the evidence standard rather than either the beyond a reasonable doubt or intermediate clear and convincing standards of proof.

The preponderance of the evidence standard applies in civil cases, including civil penalty cases. Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1978). See also United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). The few exceptions are very limited and include only those cases involving fraud or possible loss of individual liberty, citizenship, or parental rights. Santosky v. Kramer, -U.S.-, 102 S.Ct. 1388, 1396, 71 L.Ed.2d 599 (1982); Addington v. Texas, 441 U.S. at 424, 99 S.Ct. at 1808; Woodby v. Immigration Service, 385 U.S. 276, 87 S.Ct. 483,17 L.Ed.2d 362 (1966). “The interests at stake in those cases are deemed to be more substantial than the mere loss of money . . . . ” Addington v. Texas, 441 U.S. at 424, 99 S.Ct. at 1808. The penalty in the present case calls only for loss of money.

Congress expressly labelled the sanction in 16 U.S.C. § 1376(b) a “civil penalty.” Moreover, in the preceding section, 16 U.S.C. § 1375(b), Congress provided for criminal penalties. The specific “civil” label and juxtaposition with criminal penalties indicate Congress’ clear intent to establish § 1376(b) as a civil penalty. United States v. Ward, 448 U.S. at 248-49, 100 S.Ct. at 2640-2641. The civil penalty is not so punitive as to negate that intent. Id.; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963).

The statute and penalty in this case are neither criminal nor quasi-criminal in nature. Consequently, preponderance of the evidence was the proper standard of proof.

AFFIRMED.

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688 F.2d 1283, 13 Envtl. L. Rep. (Envtl. Law Inst.) 20554, 18 ERC (BNA) 1680, 1982 U.S. App. LEXIS 25252, 18 ERC 1680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fv-repulse-in-rem-and-arnie-kjarstad-ca9-1982.

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