“I Think the Critical Term Here Is” Littering Prolonged Mental Harm

Here’s how our crack 9th Circuit Judge Jay Bybee played word games so as to consider bottles of water left for migrants traversing the Arizona desert “litter” even if they weren’t “garbage.” (h/t Balkinization)

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.”


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.”

Mind you, when the issue was whether waterboarding someone constituted prolonged mental harm, Bybee was not really a stickler for precise meanings.

Which I guess means Bybee is consistent: he has the remarkable ability to read a phrase with that meaning that will cause the utmost pain to brown people.

  1. bobschacht says:

    Justices do spend a lot of time on language trivia, but that is done in order to discern the original intent of the legislation. Bybee’s obsession with this particular tree results in his becoming lost in the forest. He has no clue about where he is.

    Bob in AZ

    • readerOfTeaLeaves says:

      You meanie. If he ever read EW’s threads, he’d be alerted to the fact that there’s a forest. Darnit, you let that cat out of the bag ;-))

  2. skdadl says:

    I don’t agree with his editorial fix. First, if there’s no comma after “dumping,” he’s wrong to say the entire series applies to the prepositional phrase following. It’s ok for “littering” to sit there on its own. I see, though, that it’s a problem for “disposing” to sit there on its own, unconnected to the prepositional phrase, so the sensible fix would be “littering, or disposing or dumping of …” I have no idea why he thinks the “of” is proper after “disposing” but not after “dumping.” (It’s kind of an awful construction, but this is legalese, eh?)

    So he’s a judge, eh? For life, you say.

    • fatster says:

      Here’s a marvelous mini-essay on split infinitives (from Merriam Webster).

      “The split infinitive was discovered and named in the 19th century. 19th century writers seem to have made greater use of this construction than earlier writers; the frequency of occurrence attracted the disapproving attention of grammarians, many of whom thought it to be a modern corruption. The construction had in fact been in occasional use since the 14th century; only its frequency had changed. Even though there has never been a rational basis for objecting to the split infinitive, the subject has become a fixture of folk belief about grammar. You can hardly publish a sentence containing one without hearing about it from somebody. Modern commentators know the split infinitive is not a vice, but they are loath to drop such a popular subject. They usually say it’s all right to split an infinitive in the interest of clarity. Since clarity is the usual reason for splitting, this advice means merely that you can split them whenever you need to.”

      So, knock yourself out!

  3. DeadLast says:

    One good thing about Bybee’s opinion is that he claims that plastic bottles constitute waste, something I am sure his (and Bush’s) petroleum industry backers disagree on.

    His opinion raises a very interesting legal question, had it prevailed: it could be used to argue that companies disposing of toxic materials as a “benign” input into another product (think heavy metals that are “disposed” of as a “non-waste” ingredient in fertilizer that are used on most of our industrial American farms today). If a harmful byproduct is an input into another useful product (regardless of whether it is actually beneficial), it is not subject to federal laws dealing with the disposal of toxic wastes, because technically it is not being “disposed of”.

    So, a conviction for littering should stand if only that “waste” logic were extended to ALL similar situations defining waste and beneficial use. Because, as Republican like to remind us again and again, the only lives that are beneficial are those of the rich, religious, and unborn.

  4. Mary says:

    I’m not big on grammar, but isn’t the easier explanation that yes, the of is there bc it needs to be, bc it is the littering of garbage, as opposed to littering in general of other kinds of thing. Litter can be a lot of things, it’s only in one definition that it more interchangeable with garbage or refuse, as opposed to being a reference to just a haphazard or chaotice collection or pile of things – or, for that matter, creation of lol katz.

    So littering “of garbage” – as opposed to, of camping supplies, of apparel in the heat, of DOJ OLC memoranda, etc. – is a clarifier. Ok – on reflection, maybe one of those examples is also garbage. But still.

    I was waiting for him to get a bit more out there, and explain that the statute is actually an attempt to prevent birthing of twins and triplets etc. in the desert. ;)

    • skdadl says:

      It’s true that my fix partly backs Bybee up because it allows him to isolate littering, and you could have a workaround there. It’s not elegant, but it’s logical.

      Even if littering is isolated, though, it appears to me that judges are allowed to run on the “common meaning” of a term, and I don’t think that leaving useful things in the open is how most of us understand littering. Litter is stuff that you just cast aside. Who just casts aside perfectly good bottles of water?

      • serge says:

        Why, did he go to Catholic school in the sixties? He probably couldn’t diagram a sentence if it bit him in the knob (though he might like that). He’s proven himself to be quite unintelligent as a judge, and way too willing to be swayed by people like David Addington, one of the most arrogant pricks ever to “testify” before Congress, not to mention ever to live. His open contempt was palpable. Someone like Bybee couldn’t stand up to that force, so he caved.

        Bybee, the dumb fuck, is with us for a lifetime (his) of this kind of non-reasoning prattle. It’s terrifying. Wait ’til he gets the Prop 8 appeal.

          • serge says:

            Mormon, that’s so much better and even funnier: now I have this image of the missus showing her husband how to diagram sentences in the family kitchen! I’m sorry…I’m being facetious.

            • fatster says:

              Aw, shoot. I was just settling into your scene there around the kitchen table, and you abruptly ended it. Wonder if split infinitives were allowed there (see @ 25 above)?

  5. BoxTurtle says:

    Here I thought Bybee really went out into right field with his torture memos. It’s clear that he was there already and has no intention of coming back.

    Boxturtle (And we’re stuck with him)

  6. Jeff Kaye says:

    Actually, Bybee apparently doesn’t understand the meaning of the verb, “to litter”.

    According to Merriam-Webster, to litter means “to strew with scattered articles” or “to scatter about in disorder.” One of the examples given is “a desk littered with paper and old bills”, as if these materials were strewn about the desk, but not necessarily with the implication that they were garbage. Rocks could be said, for instance, to litter the surface of the planet Mars.

    The specification that “littering” is “of garbage” is necessary, as it is not clear what is being littered, that is, cast out or scattered upon the landscape. Hence the key word is “garbage”, not litter, as the majority found.

    Even more to the point, the law that Bybee cites, 50 C.F.R. § 27.94(a), is part of 50 C.F.R., Part 27, titled “Prohibited Acts.” The regulation in question is a sub-part of Section 27, number 94, titled “Disposal of Waste”. Hence it is quite clear what the law here was meant to govern. The judges ruled that fresh water was not waste. Bybee lies and warps the law once again.

    He is a shitty judge.

  7. Garrett says:

    There is the poem as the poet wrote it.
    There is the poem as the reader reads it.
    There is the poem itself as text.

    I like the theories that it is a negotiation.

    But the law is a foreign language, and about rats or mice, it seems to struggle.

    ECO sent Hardesty an email on October 17, 2001, stating that “we do not accept these terms for final payment [but] only partial payment.” Thereafter, ECO endorsed and negotiated Hardesty’s check. On the back of the check ECO wrote “without waiver, rights reserved per our 10/17/01 email.” ECO argues that the reserved negotiation of Hardesty’s check was not an acceptance of payment as required to reach an accord and satisfaction. We disagree.

    ECO v. Hardesty (2003 UT App 148)

    • readerOfTeaLeaves says:

      Hi Garrett, nice to see you —

      Actually, I have linear feet worth of research in my workspace about reading stuff… you may want to google ‘reader-text interaction’.

      We bring to any piece of writing our own experiences, assumptions, beliefs (etc, etc). So yeah, the ‘text’ is supposedly inert, a ‘thing’. But we automatically interpret it distinctively, individually — whether we think that we are biased. Or not.

      Part of why I find the Strict Constructionist judges so crazymaking is that they’re trying to act as if we still live in the era of the sailing ship, before the invention of canned foods, engines, motors, or antibiotics. In other words, they’re clinging to a fantasy. Words change their meaning over time; if they didn’t, IMVHO they would not be nearly so interesting ;-))

      For instance “Poor Richard’s Almanac” is full of all kinds of words and symbols that assumes astrology that are very early-18th century. Read him today and he seems like a real ‘New Ager’.

  8. masaccio says:

    This is the kind of utter nonsense that comes from strict construction of the Rehnquist/Scalia school. In a more reasonable time, lawyers were taught to use rules of statutory construction to figure out the meaning of complex laws. The question was: did Congress mean to cover this action by this statute.

    This new crowd of judicial activists use judicial deconstructionism to accomplish their own social goals. They pick at words, commas and forms of speech and ignore the plain meaning conveyed by a holistic reading.

    No one except the torture justifying Bybee thinks that Congress intended to punish people who leave bottles of water to keep people from dying in the desert

    • masaccio says:

      I should point out that this deconstruction disease is so endemic that the majority only says that the statute is ambiguous in that a person might not know that leaving water for dying people was littering. Disgusting.

  9. onitgoes says:

    Eh – you say tomato, I say tomahto. So yesterday, Bybee was all in favor of waterboarding; hey: full speed ahead on that one. I ‘spose if the “litter” in the deserts was used to dunk the d*mned dirty messicans under & contrive to waterboard ’em in some way, then Bybee would be happy as a lark… and would contrive to “interpret” the legislation differenty.

    Talk about “judicial activism” on steroids: this is what it looks like. But, per usual, if the judicial activism is done on the basis of rightwing bigotry and class warfare: well, that’s fine. But if a somewhat objective judge actually does his/her job correctly, why that’s an outrage!

    We have really reached the bottom of the barrel on all three levels of our fed gov’t. Really sad. Glad I don’t work for the fed courts anymore; wouldn’t want to be tainted by that.

  10. Kassandra says:

    UGH. What a country we live in now. I always say ( well, maybe not ALWAYS)that when a country begins to torture, totalitarianism , for everyone, is not far behind.

  11. freepatriot says:

    “When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

    welcome to the double secret security state, thru the looking glass

    you could look it up …

  12. reddflagg says:

    This person should be in jail along with Bush, Cheney, Yoo and anyone else involved in condoning torture. That he is a sitting judge now is a profound embarrassment to me as an American. Perhaps some day when we are a democracy we can have our own version of the “Judges’ Trial.”