Feathered Bastard

Ninth Circuit Overturns Dan Millis' Conviction for "Littering" on BANWR

The 9th Circuit Court of Appeals today reversed the 2008 conviction of No More Deaths activist Dan Millis for placing gallon jugs of drinking water on the Buenos Aires National Wildlife Refuge in southern Arizona.

Millis was cited for "littering" in February of 2008 by U.S. Fish and Wildlife officers after he and group of humanitarians encountered them on the refuge. The activists had been putting water on the trails that migrants take when trekking through BANWR.

Two days before, Millis had discovered the decomposing body of a 14 year-old Salvadoran girl in a rocky canyon, not far from BANWR. The find of Josseline Hernandez's remains made Millis even more determined to leave water out for those traversing the Arizona desert on foot.

So, instead of paying the $175 ticket, Millis went to court, arguing that "humanitarian aid is never a crime," and risking a possible $5,000 fine and six months in prison.

Millis and his lawyer William Walker contested the government's view that Millis had been littering. In a bench trial, federal Magistrate Bernardo Velasco found Millis guilty, and gave him a suspended sentence.

Walker and Millis appealed, and in its 2-to-1 ruling today, the 9th Circuit reversed Millis' conviction and essentially found that the full water jugs could not be considered "garbage" under the statute in question. (You can read the decision,here.)

Citing definitions given in various dictionaries, the court stated that the law "is ambiguous as to whether purified water in a sealed bottle intended for human consumption meets the definition of `garbage.'"

Millis, 31, was pleasantly surprised by the ruling. He told me that he would welcome the government's taking the case to the U.S. Supreme Court, if it chose to do so.

Such an appeal would bring even more attention to the humanitarian crisis on Arizona's southern border, which has resulted in the discovery of 214 human remains so far in this fiscal year.

Asked if the ruling meant Millis and others would continue to put water out on BANWR, Millis left no doubt.

"Volunteers have continued to provide humanitarian aid in whatever way we feel is most effective," he stated, "and whenever we feel it's necessary. So the short answer is, `Yes.'"

Millis, who currently works for the Sierra Club in Tucson, noted that several other activists have been cited for putting water out on BANWR, but that most of the cases have been dismissed.

Seminary student Walt Staton was convicted last year in a jury trial for leaving water on BANWR, and received 300 hours of community service. He is appealing his conviction, and would likely be affected by today's judgment.

Recently, BANWR completed a review that will allow for more stationary water outlets on the refuge. Three such stations consisting of two 55-gallon water drums each are currently permitted on BANWR.

Fish and Wildlife spokesman Jose Viramontes told me he had not yet seen today's court ruling, but that one gallon jugs of water are prohibited under Fish and Wildlife guidelines.

He took pains to say that Fish and Wildlife wanted to work with local humanitarians. But he commented that even if people could not be cited for littering for leaving out water jugs, there were other options such as citations for trespassing or operating without the necessary permit.

"It's absolutely not our goal to use those," said Viramontes. "Actually, we're rather hopeful we won't have to."

Activists have long argued that the kind of water stations Fish and Wildlife allows are not sufficient to meet the humanitarian need, and that water should be available on the actual trails migrants use.

Interestingly, the dissenting opinion in today's 9th Circuit ruling came from none other than Judge Jay Bybee, the infamous signer of the so-called "torture memos" during the Bush administration that authorized the use of water-boarding and other techniques that have been denounced and abandoned by the Obama administration.

Following the release of the torture memos in 2009, there were calls for Bybee's impeachment.

In his dissent, Bybee asserted that jugs of water could rightfully be considered garbage and that in his view Millis was guilty of littering. The corpses of thousands who have lost their lives crossing the Sonoran desert argue otherwise.

I called the Arizona U.S. Attorney's office to ask if it intended to petition for a Supreme Court review of the case. I have yet to receive a reply.

(For more on Millis and No More Deaths' efforts to assist migrants, please see my February cover story, "Blood's Thicker Than Water.")

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons