United States District Court, W.D. Michigan, Northern Division
OPINION AND ORDER
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE.
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). 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).
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
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
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.
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.
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. 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.
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.
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.
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.
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.
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).
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),
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.”
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
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