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United States v. Hinkson

United States District Court, W.D. Michigan, Northern Division

June 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROY P. HINKSON, Defendant.

          OPINION AND ORDER

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE.

         Roy P. Hinkson is not the typical criminal defendant in federal court. He is a 69-year-old, retired, Purple Heart recipient, who has never faced any criminal charges in his life. That changed, however, on November 15, 2014, when the U.S. Forest Service charged Hinkson with constructing a camp on National Forest System land without obtaining the necessary authorization in violation of 36 C.F.R. § 261.10(a).[1] The charged offense is a Class B misdemeanor and is punishable by a fine not more than $500 or by imprisonment for not more than six months or both. 36 C.F.R. § 261.1b. After a bench trial on May 31, 2017, the Court took the charge under advisement. For the reasons stated below, the Court finds that Hinkson is not guilty of violating 36 C.F.R. § 261.10(a).

         At first glance, the facts in this case seem straightforward. Hinkson appears to be an owner of a camp that is located on Hiawatha National Forest land-approximately 200 feet away from his private property. However, to truly understand the relevant circumstances of this case, it is necessary to go back sixty-five years to consider how the camp ended up being built in this location. During the 1950s, Alfred Repp owned a forty acre parcel of land located in Schoolcraft County, Michigan. The parcel was completely surrounded by the Hiawatha National Forest. At some point in the 1950s, Repp mistakenly built a small hunting cabin across his private property boundary line and on Hiawatha National Forest land. Although Hinkson and his parents did not have any ownership interest in the cabin or parcel of land, Hinkson's parents were close friends with Repp, and the Hinksons often used the cabin during deer hunting season. Specifically, Hinkson remembers using the cabin for deer hunting after he returned home from serving in the Vietnam War in the late 1960s.

         In the fall of 1976, a fire destroyed the original hunting cabin. Many people, including Hinkson, helped clear the debris from the fire. Notably, Hinkson testified that several members of the U.S. Forest Service assisted in cleaning the debris. In addition to Hinkson's testimony, photographs admitted during trial depict at least ten U.S. Forest Service employees-wearing yellow jackets that have the U.S. Forest Service patch on the shoulder-working at the cabin site shortly after the fire. During the clean-up, members of the U.S. Forest Service asked Repp to rebuild the cabin twenty-five feet east of where the original cabin was erected to ensure that the new cabin was squarely on private property. Following those instructions, in 1978, Repp built the new cabin east of the original cabin site. This cabin-erected in 1978-is the same cabin that is at issue in this case.[2]

         Since 1978, the cabin has been frequently used without anyone suspecting that it encroaches on National Forest System land. In order to access the cabin, one must drive on a road that is also on National Forest System land. Over the years, a gate was built on this road. The gate has a locking mechanism and one of the keys was provided to the U.S. National Forest Service. Hinkson testified that the key should still be hanging in the Manistique Ranger District office.

         In June 2014, while using Google Earth in his office, National Forest Officer David Tembruell noticed that the cabin appeared to be located on National Forest System land. On July 20, 2014, Officer Tembruell and another officer went to investigate the cabin with GPS trackers. The officers discovered the cabin, the road with the gate, a “no trespassing” sign, and six hunting blinds. After plugging in the GPS coordinates, the officers determined that the property was likely on National Forest System land. Shortly thereafter, Officer Tembruell requested a survey, and a surveyor subsequently confirmed that the cabin encroached National Forest System land.

         Instead of notifying the owner by leaving a note or sending a letter in the mail, the U.S. National Forest Service set up a sting-like operation for the opening day of deer hunting season. On the morning of November 15, 2014, officers from both the U.S. National Forest Service and the Michigan Department of Natural Resources swarmed the deer hunting blinds and subsequently brought the hunters back to the camp.[3] Hinkson was one of the hunters. When Hinkson arrived back at the camp, Officer Tembruell informed Hinkson that the camp was on National Forest System land.

         According to Officer Tembruell, the hunters had committed at least 30 different violations. However, the officers only issued three tickets-Hinkson was issued two CVB Tickets, and Hinkson's son was issued a CVB Ticket for having a permanent deer blind on federal property. CVB Ticket 3653364 charged Hinkson with “Camp Constructed on NFSL” in violation of 36 C.F.R. § 261.10(a). Within the next day, Hinkson and the other hunters removed most of the temporary structures. However, the cabin, a permanent structure, still remains in the same location.[4]

         Pursuant to the authority in 16 USC § 551, the Secretary of Agriculture has promulgated rules and regulations to control the occupancy and use of National Forest lands. See 36 C.F.R. Part 261. Here, Hinkson is charged with violating 36 C.F.R. § 261.10(a), which prohibits:

Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement on National Forest System lands or facilities without a special-use authorization, contract, or approved operating plan when such authorization is required.

         According to the plain language of the regulation, the Government must prove beyond a reasonable doubt that (1) Hinkson constructed, placed, or maintained the camp, (2) the camp was located on National Forest System lands, and (3) there was no special-use authorization, contract, or approved operating plan if such authorization was required.

         The parties dispute whether the Court should imply a mens rea requirement to this regulation. Hinkson argues that without a mens rea requirement, the regulation would criminalize a broad range of apparently innocent conduct. Thus, Hinkson urges the Court to imply a “reckless” scienter requirement to the regulation. The Government maintains that the regulation is a strict liability offense.

         The traditional rule is that proof of a guilty mind is required to convict a person of a crime. See Staples v. United States, 511 U.S. 600, 605-06 (1994) (citing United States v. Balint, 258 U.S. 250, 251-53 (1922)). “Relying on the strength of the traditional rule, [the Supreme Court has] stated that offenses that require no mens rea generally are disfavored, . . . and have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Id. (citations omitted). However, the courts have found statutes or regulations do not require a mens rea element when they are considered public welfare offenses. See Morissette v. United States, 342 U.S. 246, 255 (1952).

         In United States v. Kent, 945 F.2d 1441, 1445 (9th Cir. 1991), the Ninth Circuit considered whether the language in a similar regulation, 36 C.F.R. § 261.10(b), [5] implied a mens rea element. The case involved an Indian who established her residence on national forest land and claimed that she had authorization under federal law. Id. at 1442-43. Despite initially issuing an opinion that held the regulation implied a mens rea element, the court withdrew its prior opinion and held that the regulation was a strict liability offense. Id. at 1443. Although the court acknowledged that “[s]trict criminal liability is strong medicine, ” it determined that the language of the regulation did not imply a requisite state of mind. Id. at 1446. The court also relied on a previous decision in which it held that the regulation that prohibits cutting and removing timber from a national forest did not imply a mens rea requirement. Id. (citing United States v. Wilson, 438 F.2d 525, 525 (9th Cir. 1971)). Based on Wilson, the court stated: “We do not see how one who wanders onto a national forest and cuts trees can be held strictly liable when one who wanders on and establishes a residence is not.” Id.

         The dissenting opinion in Kent criticized the majority's interpretation of § 261.10(b) and stated that it would “‘criminalize a broad range of apparently innocent conduct[.]'” Id. at 1449 (Pregerson, J., dissenting) (quoting Liparota v. United States, 471 U.S. 419, 426 (1985)). Thus, the dissent would have interpreted the regulation as requiring the defendant to know that her conduct was unauthorized. Id. at 1448 (Pregerson, J., dissenting). The dissent further explained that § 261.10(b) was not a public welfare offense because “[o]ccupation of Forest Service lands is not an inherently dangerous activity, and the government ha[d] not submitted any evidence that [the defendant's] occupancy endangered the public.” Id. at 1448 (Pregerson, J., dissenting). To distinguish the holding in Wilson, the dissent stated:

In Wilson, we held that the Forest Service's regulation prohibiting the cutting of timber in the national forests is a strict liability offense. The cutting of timber, however, is a “public welfare offense” that causes irreparable harm to our national forests. On the other hand, a mere occupier of land like Kent does not “seriously ...

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