ELR Citation: ELR 20852
No(s). 93-10462 (9th Cir. Dec 5, 1994)

The court affirms the felony convictions and sentence of a prospector/miner for unauthorized logging of federal timber and damaging a U.S. Forest Service access road in violation of 18 U.S.C. §§641 and 1361. The court first rejects the miner's argument that the district court should have applied the doctrine of primary jurisdiction to stay criminal proceedings pending collateral review of the patent application by the Bureau of Land Management, because the miner failed to raise the issue until after trial. The court next rejects the miner's argument that the United States did not have legal title to the trees or the access road. At the time of the unauthorized timber harvest, the land on which the trees were cut was an unpatented mining claim. Until a patent is issued, the government has broad authority to manage public lands. The court holds that the government was not required to prove that the unauthorized logging was not "reasonably incident" to legitimate mining operations under the Surface Resources and Multiple Use Act of 1955, 30 U.S.C. §612. The court next holds that the evidence was sufficient to prove that the land is subject to post-1955 surface U.S. surface rights. A prior patent holder's pre-1955 surface rights were extinguished pursuant to 30 U.S.C. §613(a), and that individual never disputed that the land was under National Forest jurisdiction.

The court holds that the district court did not abuse its discretion by allowing witnesses to describe the unauthorized logging as a "clear-cut" in "Spotted Owl habitat." Evidence that the miner had clear-cut a nine-acre patch of the land was relevant to refute his claim that the timber was harvested for mining purposes, and evidence that the land is a spotted owl preserve was not clearly irrelevant and prejudicial. The court also holds that the district court did not abuse its discretion in excluding evidence in the form of photographs depicting a Forest Service clear cut offered to prove that clear-cutting is not necessarily forbidden, because the evidence was marginally relevant. The court next holds that the district court did not err in instructing the jury regarding the government's burden of proof and the defendant's criminal intent. The court holds that the district court did not err in calculating the amount of loss to the government based on the miner's gross profits from the logging. The district court was not required to subtract his logging expenses. The court upholds the district court's two-level sentence enhancement for reckless endangerment under §3C1.2 of the U.S. Sentencing Guidelines. The miner was taken into custody after a 12-hour standoff with up to 70 law enforcement officers. By arming and barricading himself inside a house, the miner knowingly created a grave risk that someone would be injured or killed. The court also holds that the upward enhancement did not violate the prohibition against double jeopardy. The elements of the state statute under which the man was prosecuted for the standoff incident are not identical to the elements of the reckless endangerment enhancement.

Counsel for Plaintiff
Rayna S. Becker, Ass't U.S. Attorney
U.S. Attorney's Office
3305 U.S. CtHse., 650 Capitol Mall, Sacramento CA 95814
(916) 551-2700

Counsel for Defendant
Charles M. Bonneau
2631 K St., Sacramento CA 95816
(916) 444-2349

Before Goodwin, O'Scannlain, and Kleinreid, JJ.: