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

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…