FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 09-10134 Plaintiff-Appellee,

D.C. No.

v.  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
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 immigrants crossing into the United States. Millis concedes that he

placed water on refuge trails, but argues that his actions did

UNITED STATES v. MILLIS 13291
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 Service 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 volunteers from “No More Deaths,” an organization that provides

humanitarian aid to migrants. One such service is the placement 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 indicated that they had also picked up discarded empty bottles.

Kirkpatrick responded that the group’s actions constituted littering and requested that the group retrieve the bottles. Kirkpatrick 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 application to place gallon-sized plastic bottles of water on the refuge would be denied. According to his testimony, refuge

13292 UNITED STATES v. MILLIS
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 rescue 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 suspected 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 followed. 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. Millis testified that they had picked up several bottles at this location 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

UNITED STATES v. MILLIS 13293
water. Millis produced a notebook that detailed the volunteers’ water drop route. The notebook included GPS coordinates for each drop off spot and a numbering system. The

numbers listed in the notebook corresponded to numbers written on the bottles alongside the date “2/22/08.” In total, officers 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 leaving 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 conviction.

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 manner 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 manager, or the draining or dumping of oil, acids, pesticide wastes, poisons, or any other types of chemical

wastes in, or otherwise polluting any waters, water

1The term “refuse sewage” is not separated by a comma. See 41 Fed.

Reg. 9166, 9171 (March 3, 1976). 

13294 UNITED STATES v. MILLIS
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 permits, 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,

2We would have no problem affirming Millis’s conviction if, as the dissent contends, § 27.94 prohibited “ ‘littering’ in a wildlife refuge or disposing 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 provisions.” In subsection (a), it prohibits specifically the ‘littering . . . of garbage, refuse sewage, sludge, earth, rocks, or other debris.” 

UNITED STATES v. MILLIS 13295
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 accordance with its “ ‘ordinary, contemporary, common meaning.’ ” 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

3Other dictionaries are in accord. See, e.g., Random House Webster’s

Collegiate Dictionary 540 (2000) (defining “garbage” as “1. discarded animal and vegetable matter, as from a kitchen. 2. any matter that is no longer

wanted or needed; trash. 3. anything that is contemptibly worthless, inferior, or vile”); Oxford English Dictionary, vol. 6, at 363-64 (2d ed. 2001)

(defining garbage as “2. Refuse in general; filth”). 

4The 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 Standard Oil was a “broad and inclusive” statute prohibiting the depositing in

a body of water of “any refuse matter of any kind or description whatever.” Id. at 229. In deciding the case, the Supreme Court observed that

“[m]ore comprehensive language would be difficult to select.” Id. The regulation at issue here is decidedly more narrow. 

5Nor do we, contrary to the assertion of the dissent, settle upon a definition of “garbage” that turns on an item’s value, rather than whether it was

discarded. Under either interpretation, application of the regulation to Millis’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 “discarded” to interpret California’s Waste Management Act) (citations omitted). 

13296 UNITED STATES v. MILLIS
[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 & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting FTC

v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)). There is little doubt that the overarching purpose of the underlying statute 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] System 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 generations of Americans.

16 U.S.C. § 668dd(a)(2). In administering the System, the

Secretary is instructed to “ensure that the mission of the System . . . 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 environmental 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 permitted 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

UNITED STATES v. MILLIS 13297
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 comprehensive implementation of the Congressional mandate to minimize 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 sufficiently 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 abandonment 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.

6Thus, we do not hold that “any number of objects (for example, sleeping 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. 

13298 UNITED STATES v. MILLIS
BYBEE, Circuit Judge, dissenting: 

Daniel Millis, motivated by humanitarian concerns, scattered 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 bottles 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 “garbage” 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 littering 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”) purchased 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 visited 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 mission 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

UNITED STATES v. MILLIS 13299
[refuge]; or . . . enter, use, or otherwise occupy any such area

for any purpose; unless such activities are performed by persons 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 regulation 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 warning should be given to the world in language that the common

world will understand, of what the law intends to do if a certain 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 consulting 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]

1The regulation suffers from several grammatical challenges. The regulation begins with three gerunds listed in series—“littering, disposing, or

dumping”—followed by an object introduced by a preposition—“of garbage, 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.” 

13300 UNITED STATES v. MILLIS
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 majority holds that “given the common meaning of the term ‘garbage,’ . . . § 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 “littering.” 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 Service’s] regulations.” Littering is not the same thing as dumping garbage. The two terms are sometimes used

UNITED STATES v. MILLIS 13301
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 evidence of mere untidiness or, more appropriately here, items

that—in context—are valuable to someone, but not to the person or entity controlling the area. 

The First Amendment handbill cases supply a good example. We have struck down regulations that prohibited soliciting 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 litter, 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. Similarly, 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 determine what constitutes litter, no matter its potential use to anyone 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

13302 UNITED STATES v. MILLIS
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 intentionally depositing water jugs on trails in the wildlife refuge

for illegal immigrants crossing into Arizona who were illprepared 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 wildlife 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 “garbage,” I would find the majority’s application of the dictionary definition to be problematic. The majority defines

garbage as “discarded or useless material,” Maj. Op. at 13296,

UNITED STATES v. MILLIS 13303
but it focuses only on whether the bottles are “useless material.” 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 subjective inquiry into the material’s usefulness.2

 When Millis

abandoned the water bottles in the wildlife refuge, he “discarded” the bottles according to the ordinary, everyday meaning 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 “anything 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

2Two 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 Integrated Waste Management Act of 1989 and held that “property is not

‘waste’ until it is discarded.” Id. at 442. In Northern Illinois Service Company 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 Illinois 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. 

13304 UNITED STATES v. MILLIS
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 pollutants.” 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 abandoned the bottles in the wildlife refuge, they became garbage

“whether useable or not” because the bottles were “deleterious” 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 consumption.” 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 incurring 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.

4Millis’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 regulation, 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 convicted 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. 

UNITED STATES v. MILLIS 13305
thought that the discarded item might be useful to the next

person passing through.5 Even if we focus on the term “garbage,” there is nothing particularly ambiguous about the

meaning of the regulation.

III

Even if I thought there was some wiggle room in understanding 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 statute. 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 unconstitutionally vague regulation.6

5At 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.” 

6States have summarily dismissed the argument that the terms “litter,”

“garbage,” “waste,” or “refuse” are too vague to pass constitutional muster. 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,

13306 UNITED STATES v. MILLIS
The rule of lenity “induce[s] Congress to speak more

clearly and keeps courts from making criminal law in Congress’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 “cannot 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 wildlife refuge,” 50 C.F.R. § 27.94(a), and would affirm his conviction. 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 prohibited people from “dispos[ing] of litter” was not unconstitutionally

vague). 

UNITED STATES v. MILLIS 13307