                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1861
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                    Kevin Jay Mast

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                           Submitted: February 14, 2019
                            Filed: September 16, 2019
                                  ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

      In 2010, Kevin Jay Mast came up with a plan to install drain tile to drain water
from certain areas of his property in Brookings County, South Dakota, so as to make
it more suitable for farming. He requested approval of his drainage project from the
U.S. Natural Resources Conservation Service (NRCS). The NRCS noted that Mast’s
property was subject to an easement that the U.S. Fish and Wildlife Service (FWS)
had acquired from a previous property owner in 1973, and it instructed Mast to seek
permission from the FWS for his drainage project. The FWS easement prohibited
draining of “small wetland or pothole areas suitable for use as waterfowl production
areas.” The FWS created a map of the wetland areas on the property and sent it to
Mast, explaining that his proposed drainage project would violate the terms of the
easement and suggesting alternate locations on the property where drain tile could be
installed without interfering with the identified wetland areas. Nearly two years later,
in response to Mast’s 2010 request for approval, the NRCS sent Mast another map
identifying “wetland locations and setback distances” in which drain tile could not
be installed, which differed from the areas identified on the FWS map.

       In the fall of 2013, Mast installed drain tile on his property in a manner
consistent with the NRCS map but inconsistent with the FWS map. The government
charged Mast with knowingly disturbing property within the National Wildlife
Refuge System (NWRS), in violation 16 U.S.C. § 668dd(c) and (f)(1). At trial, the
district court instructed the jury on both the charged offense and the lesser-included
offense of otherwise disturbing NWRS property, in violation of § 668dd(c) and (f)(2).
The jury found Mast not guilty of the greater offense but guilty of the lesser offense.

       Mast appeals his conviction and sentence. He raises many issues on appeal,
but we need address only one: whether the jury was properly instructed on the mental
state required by the lesser offense. Jury instructions are usually reviewed for abuse
of discretion, but where, as here, “statutory interpretation is required, ‘it is an issue
of law that we consider de novo.’” United States v. Carlson, 810 F.3d 544, 551 (8th
Cir. 2016) (quoting United States v. Petrovic, 701 F.3d 849, 858 (8th Cir. 2012)).

       “[D]etermining the mental state required for commission of a federal crime
requires construction of the statute and inference of the intent of Congress.” Staples
v. United States, 511 U.S. 600, 605 (1994) (cleaned up). We begin with the statute
itself. See id. 16 U.S.C. § 668dd(c) prohibits “disturb[ing]” NWRS property,

                                          -2-
including land subject to easements such as the easement at issue here.1 Criminal
penalties are set out in subsection (f), which provides:

      (1) Knowing violations

      Any person who knowingly violates or fails to comply with any of the
      provisions of this Act or any regulations issued thereunder shall be fined
      under Title 18 or imprisoned for not more than 1 year, or both.

      (2) Other violations

      Any person who otherwise violates or fails to comply with any of the
      provisions of this Act (including a regulation issued under this Act)
      shall be fined under Title 18 or imprisoned not more than 180 days, or
      both.

Mast was charged with a knowing violation under subsection (f)(1).

       When fashioning the jury instructions for Mast’s trial, the district court
correctly noted that the sole difference between (f)(1)’s greater offense and (f)(2)’s
lesser offense is the requisite mental state. The district court instructed the jury that
the greater offense required proof beyond a reasonable doubt “that Mast knew the
wetlands at issue were subject to an easement,” whereas the lesser offense did not.
In other words, it instructed the jury as if subsection (f)(2) were a strict liability
offense, one that does not require proof of any kind of mental state.

      But our system of law acknowledges the “universal,” “persistent” principle that
“wrongdoing must be conscious to be criminal.” Elonis v. United States, 135 S. Ct.
2001, 2009 (2015) (quoting Morissette v. United States, 342 U.S. 246, 250, 252


      1
       “No person shall disturb, injure, cut, burn, remove, destroy, or possess any real
or personal property of the United States . . . unless such activities are performed by
persons authorized . . . or unless such activities are permitted” by law. Id.

                                          -3-
(1952)). Thus, courts generally interpret criminal statutes to require, at a minimum,
proof that the defendant knew “the facts that make his conduct fit the definition of the
offense,” even when the statute does not explicitly include such a requirement. Id.
(quoting Staples, 511 U.S. at 608 n.3). Only when the statute indicates, expressly or
through implication, that Congress intended “to dispense with mens rea as an element
of a crime” is it appropriate to treat the statute as setting out a strict liability offense.2
Staples, 511 U.S. at 606.

       Here, neither subsection (c) nor subsection (f)(2) expressly or implicitly
indicates that Congress intended to dispense with a mental state requirement.
Subsection (c) does not explicitly refer to any mental state, but “silence on this point
by itself does not necessarily suggest that Congress intended to dispense with a
conventional mens rea element.” Id. at 605. The phrase “otherwise violates” within
subsection (f)(2), in combination with its lesser penalties, implicitly requires a less
culpable mental state than subsection (f)(1)’s “knowing violations.” But because
subsection (f)(2)’s penalties are still relatively severe—a fine of up to $5,000 or six
months imprisonment, or both, as compared to subsection (f)(1)’s fine of up to
$100,000 or 1 year imprisonment, or both—we do not read it to depart so

       2
        Excepted from this rule are “public welfare” statutes that lack an explicit
mental state requirement and “regulate potentially harmful or injurious items.”
Staples, 511 U.S. at 606–07. The Court has “reasoned that as long as a defendant
knows that he is dealing with a dangerous device of a character that places him in
responsible relation to a public danger, he should be alerted to the probability of strict
regulation, and [it has] assumed that in such cases Congress intended to place the
burden on the defendant to ascertain at his peril whether his conduct comes within the
inhibition of the statute.” Id. at 607 (cleaned up). Section 668dd(c) does not regulate
an inherently harmful or dangerous item, and therefore we must “presume a scienter
requirement in the absence of express contrary intent.” United States v. X-Citement
Video, Inc., 513 U.S. 64, 71–72 (1994) (explaining that the federal child pornography
statute “is not a public welfare offense [because p]ersons do not harbor settled
expectations that the contents of magazines and film are generally subject to stringent
public regulation”).

                                             -4-
significantly from subsection (f)(1)’s mental state requirement as to abandon the
requirement entirely. See id. at 616–19 (“[A] severe penalty is a further factor
tending to suggest that Congress did not intend to eliminate a mens rea
requirement.”). Instead, subsection (f)(2) encompasses violations committed with all
“other” mental states. See United States v. Bailey, 444 U.S. 394, 403–04 (1980)
(listing “a hierarchy of culpable states of mind . . . in descending order of culpability,
as purpose, knowledge, recklessness, and negligence”).

       We next turn to the legislative history. Cf. X-Citement Video, 513 U.S. at
469–72 (reviewing a statute’s legislative history when determining its required mental
state). The National Wildlife Refuge System Improvement Act of 1998 amended 16
U.S.C. § 668dd to include subsections (f)(1) and (f)(2). Pub. L. No. 105–312, sec.
206, 112 Stat. 2956. An earlier version of § 668dd provided a single penalty for
anyone “who violates or fails to comply with” subsection (c), which at that time
prohibited “knowingly disturb[ing]” NWRS property. § 669dd(c) & (e) (1996). The
statute was amended two years later to provide for certain penalties for “knowing
violations” and lesser penalties for “other violations.” National Wildlife Refuge
System Improvement Act of 1998 sec. 206. A committee report indicates that the
amendment was meant to provide more stringent penalties when “the person acted
‘knowingly,’ that is, acted voluntarily and intentionally, not through ignorance,
mistake, or accident,” and “lower[]” penalties “for unintentional violations (those not
‘knowingly’ committed).” S. Rep. No. 105-310, at 3 (1998), 1998 WL 596837. Just
as with the statutory language, the legislative history does not indicate, expressly or
implicitly, an intent to dispense with a mental state requirement entirely.

        Because neither the statutory language nor the legislative history indicates an
intent to dispense with a mental state requirement as an element of § 668dd(f)(2),
courts may not treat the statute as setting out a strict liability offense; some mental
state is required. As noted, the statute’s language does not identify the precise mental
state necessary to sustain a conviction under subsection (f)(2). But the language of

                                           -5-
the committee report indicates that, in distinguishing between the two types of
violations, Congress intended for subsection (f)(2) to proscribe negligent violations.3
See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988) (explaining that the
words “‘voluntary,’ ‘deliberate,’ and ‘intentional’ [are] generally understood to refer
to conduct that is not merely negligent”). “Negligence requires only that the
defendant should have been aware of a substantial and unjustifiable risk . . . .”
Elonis, 135 S. Ct. at 2015 (Alito, J., concurring in part and dissenting in part)
(cleaned up) (quoting Model Penal Code § 2.02(2)(d) (Am. Law. Inst. 1985)). Thus,
we conclude, based on the statutory language, the legislative history, and the strong
preference that criminal statutes require some minimal mens rea, that subsection
(f)(2) requires the government to prove beyond a reasonable doubt that Mast should
have known that there was a substantial risk that his actions would “violate[] or fail[]
to comply with any of the provisions of th[e] Act or any regulations issued
thereunder”—as relevant here, subsection (c).

       We find this construction “particularly appropriate” because “to interpret the
statute otherwise would be to criminalize a broad range of apparently innocent
conduct.” Liparota v. United States, 471 U.S. 419, 426 (1985). Unless Mast knew
or should have known that carrying out a drainage project on his own land would
disturb NWRS property, his conduct was innocent. Indeed, as we have noted, this
offense “is considered malum prohibitum rather than malum in se and cannot be
regarded as a serious moral offense.” United States v. Seest, 631 F.2d 107, 109 (8th



      3
        The few district courts to have considered this question have reached the same
conclusion. See United States v. Kenner, 238 F. Supp. 3d 1157, 1163–64 (D. Neb.
2017); United States v. Best, No. 11-cr-414, 2012 WL 3027544, at *4–5 (N.D. Cal.
July 24, 2012); see also United States v. Crawford, No. 11-cr-105, 2012 WL
1028912, at *7 & n.1 (D. Alaska Mar. 23, 2012) (holding that proof of negligence
satisfies subsection (f)(2) and declining to address the government’s argument that
subsection (f)(2) does not require any culpable mental state).

                                          -6-
Cir. 1980), abrogated on other grounds by United States v. Johansen, 93 F.3d 459,
463–65 (8th Cir. 1996).4

       Mast cites United States v. Peterson, 632 F.3d 1038, 1041 (8th Cir. 2011), for
the proposition that subsection (f)(2) requires proof “that the defendant knew that the
parcel was subject to a federal easement.” But this portion of Peterson is dicta, as the
outcome of the issue on appeal—whether the statute’s mental state requirement
applies to the scope of the easement—did not depend on the precise mental state
required under subsection (f)(2). See id. at 1043. We also note that Peterson relied
on Johansen, 93 F.3d at 467, which concerned an earlier version of § 668dd, one that,
as discussed above, provided a single penalty for anyone “who violates or fails to
comply with” subsection (c).5 § 668dd(e) (1996). Peterson does not affect our
conclusion.




      4
         The dissent asserts that our reliance on Elonis is misplaced because, in that
case, the Court concluded that “negligence is not sufficient to support a conviction
under Section 875(c).” Elonis, 135 S. Ct. at 2013. We disagree. Elonis reiterated the
basic rule that “mere omission from a criminal enactment of any mention of criminal
intent should not be read as dispensing with it.” Id. at 2009 (quoting Morissette, 342
U.S. at 250) (cleaned up). The Court was then tasked with deciding what mental state
was required under the statute. Here, however, we are tasked with deciding whether
the statute at issue requires a mental state at all. Courts should be “reluctant to infer
that a negligence standard was intended in criminal statutes,” Elonis, 135 S. Ct. at
2011 (quoting Rogers v. United States, 422 U.S. 35, 47 (1975)), but they should be
equally, if not more, reluctant to conclude that a criminal statute requires no mens rea
at all, see Staples, 511 U.S. at 606 (“[O]ffenses that require no mens rea generally are
disfavored.”).
      5
       Neither party challenges the district court’s instruction on the mental state
required by subsection (f)(1), so we do not address whether Rehaif v. United States,
139 S. Ct. 2191 (2019), in conjunction with the 1998 amendment, affects Johansen’s
formulation of the mental state requirement.

                                          -7-
       In Mast’s case, the jury was erroneously instructed that the lesser offense was
a strict liability crime when, in fact, the lesser offense requires proof of the
defendant’s negligence. In our view, the evidence presented at trial would have been
sufficient to allow a reasonable juror to convict Mast under the proper formulation
of the lesser offense. See United States v. Keys, 721 F.3d 512, 519 (8th Cir. 2013).
But given the jury’s acquittal of Mast on the greater offense—which differed from the
lesser offense only in its mental state requirement—we cannot say that the evidence
of Mast’s culpable mental state was so overwhelming that it rendered the erroneous
instruction harmless. See United States v. Pereyra-Gabino, 563 F.3d 322, 328–29
(8th Cir. 2009). Thus, we vacate Mast’s conviction and remand the case for further
proceedings consistent with this opinion.

COLLOTON, Circuit Judge, dissenting.

      Federal crimes are created by statute, and whether to include a mens rea
element is a policy decision for Congress. A fair reading of the National Wildlife
Refuge System Improvement Act of 1998 shows that Congress established certain
misdemeanor criminal violations in 16 U.S.C. § 668dd(f)(2) that do not require proof
of mens rea. In our system of separated powers, I would respect that choice and
affirm the judgment.

       The statute in question defines certain “[p]rohibited and permitted activities.”
Id. § 668dd(c). Appellant Mast’s charged activities were prohibited: “No person
shall disturb . . . any real . . . property of the United States, including natural growth,
in any area of the [National Wildlife Refuge] System.” Id.

       The statute creates two misdemeanor criminal offenses set forth in a subsection
entitled “Penalties”:




                                           -8-
      (1) Knowing violations

      Any person who knowingly violates or fails to comply with any of the
      provisions of this Act or any regulations issued thereunder shall be fined
      under Title 18 or imprisoned for not more than 1 year, or both.

      (2) Other violations

      Any person who otherwise violates or fails to comply with any of the
      provisions of this Act (including a regulation issued under this Act)
      shall be fined under Title 18 or imprisoned not more than 180 days, or
      both.

Id. § 668dd(f).

        A straightforward reading of the two subsections shows that Congress
established proof of an offender’s knowledge as an element of the more serious
offense, but declined to require any mens rea for the lesser offense. The court
construes subsection (f)(2) to encompass violations committed “with all ‘other’
mental states,” ante, at 5, but the statute does not say that. Subsection (f)(2) applies
to all “other violations,” not all “other mental states.” A person “knowingly violates”
the Act by knowingly disturbing System property; a person “otherwise violates” the
Act by disturbing System property without the knowledge required under subsection
(f)(1). Unlike mere silence, the text and structure of this statute provide the necessary
“indication of congressional intent, express or implied, . . . to dispense with mens rea
as an element of [the] crime.” Staples v. United States, 511 U.S. 600, 606 (1994).

      To justify reading a mens rea element of “negligence” into subsection (f)(2),
the court, ante, at 3, cites the “universal” and “persistent” principle that “wrongdoing
must be conscious to be criminal.” Elonis v. United States, 135 S. Ct. 2001, 2009

                                          -9-
(2015) (quoting Morissette v. United States, 342 U.S. 246, 250, 252 (1952)). But that
principle does not support construing subsection (f)(2) to require proof of negligence.
Elonis itself rejected a mens rea of “negligence” in 18 U.S.C. § 875(c), because it was
inconsistent with the “universal” principle that the court here invokes. 135 S. Ct. at
2011. The court necessarily concedes that Congress in subsection (f)(2) departed
from the principle that “wrongdoing must be conscious to be criminal,” for it
concludes that the subsection does not require a mens rea of knowledge or even
recklessness. The effort to derive a negligence element from the “basic principle”
that negligence is insufficient is thus an unconvincing mismatch.

       To be sure, the “background rules of the common law” are sometimes stated
in a way that suggests a broader presumption—for example, “[t]he existence of a
mens rea is the rule of, rather than the exception to, the principles of Anglo-American
criminal jurisprudence.” Staples, 511 U.S. at 605 (alteration in original) (internal
quotation marks omitted). But again, these expressions trace back to common-law
rules that knowledge or intent are usually essential elements of a crime. See United
States v. United States Gypsum Co., 438 U.S. 422, 436-37 (1978) (citing Blackstone’s
statement that to constitute any crime there must first be a “vicious will”); Morissette,
342 U.S. at 250-51 (same); Dennis v. United States, 341 U.S. 494, 500 (1951) (listing
mental states of “knowingly,” “maliciously,” “wilfully,” “with the purpose of,” and
“with intent to”). Where, as here, Congress plainly has eschewed the common-law
rule by “creating an offense new to general law,” see Morissette, 342 U.S. at 262, and
dispensing with knowledge as an element of the crime defined in subsection (f)(2),
the traditional background rules do not aid our interpretation. We are left instead
with the ordinary meaning of a text that encompasses any person who “otherwise
violates” the Act by disturbing System property.

      The court also relies on the language of a Senate committee report to justify
reading a “negligence” element into subsection (f)(2). The Senate Committee on
Environment and Public Works issued a report saying that the 1998 Act “lowers the

                                          -10-
penalty for unintentional violations (those not ‘knowingly’ committed).” S. Rep. No.
105-310, at 3 (1998), 1998 WL 596837. Aside from the ordinary problems with
relying on legislative history—no bicameralism and presentment, focus on “intent”
rather than meaning, unfamiliarity of legislators with the material, and so forth, see
generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 369-390 (2012)—the cited statement does not support the court’s result.
That the Act criminalized violations that are “unintentional” and not “knowingly”
committed means that Congress overrode the background common-law rule that those
elements typically are required. It may be that “intentional” means conduct that is
“not merely negligent,” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988),
see ante, at 6, but the converse of that proposition does not logically follow.
“Unintentional” does not mean “negligent.” One who acts without mens rea, just as
much as one who acts negligently, commits an “unintentional violation” or one that
is “not ‘knowingly’ committed.”

       While the offense defined in subsection (f)(2) is malum prohibitum rather than
malum in se, it is within the province of Congress, in furtherance of interests that it
deems important, to impose criminal penalties for conduct that otherwise would be
innocent. “The definition of the elements of a criminal offense is entrusted to the
legislature, particularly in the case of federal crimes, which are solely creatures of
statute.” Liparota v. United States, 471 U.S. 419, 424 (1985). We may hope and
expect that Congress will dispense with a mens rea requirement only in limited
circumstances, but so-called “strict-liability offenses are not unknown to the criminal
law and do not invariably offend constitutional requirements.” United States Gypsum
Co., 438 U.S. at 437. They may further a legislative goal of deterrence “by inducing
a change in activity level.” Richard A. Posner, An Economic Theory of the Criminal
Law, 85 Colum. L. Rev. 1193, 1224 (1985). The Supreme Court, for example, long
ago held constitutional a statute making it a felony offense to cut timber on state lands
without a permit, despite the absence of a mens rea element. Shevlin-Carpenter v.
Minnesota, 218 U.S. 57, 67-69 (1910). A misdemeanor offense of disturbing the

                                          -11-
National Wildlife Refuge System regardless of mens rea is thus within the scope of
permissible legislative action.

       Without adequate support for his position in statutory text, common-law
background rules, or legislative history, Mast is left with a policy argument against
criminal offenses that lack a mens rea requirement. There is a case to be made for
mens rea reform. See Benjamin Levin, Mens Rea Reform and Its Discontents, 109
J. Crim. L. & Criminology 491, 509-517 (2019) (describing legislative proposals
“designed to address concerns about overcriminalization and statutes without clear
mental state requirements”); John G. Malcolm, Morally Innocent, Legally Guilty:
The Case for Mens Rea Reform, 18 Fed. Soc’y Rev. 40, 42 (2017) (arguing that
legislative reform is warranted because “many criminal laws lack an adequate—or
any—mens rea requirement,” and “innocent mistakes or accidents can become
crimes”); Rachel E. Barkow & Mark Osler, Designed to Fail: The President’s
Deference to the Department of Justice in Advancing Criminal Justice Reform, 59
Wm. & Mary L. Rev. 387, 422 (2017) (observing that “most criminal law scholars
and professional bar associations have lamented for years that strict liability laws
have no place in the criminal sphere”). Judicial distaste for eliminating the
requirement of mens rea in a criminal statute, however, must give way to the
authority of Congress to make that choice. The district court’s jury instruction
accurately reflected the meaning of 16 U.S.C. § 668dd(f)(2), so I would affirm the
judgment.6
                       ______________________________




      6
        Mast raises several other contentions that typically would warrant discussion,
but in light of the court’s disposition, a detailed treatment of those issues in this
separate opinion would be largely academic. I ultimately conclude that none of them
calls for reversing the judgment.

                                        -12-
