Unpublished Disposition, 927 F.2d 611 (9th Cir. 1986)

MEMORANDUM^** 

On May 5, 1986, appellant Ernest Downs ("Downs") was charged with seven counts of violating United States Forest Service regulations authorized under 16 U.S.C. § 551. Downs moved to dismiss the information on July 22, 1986. The district court denied the motion, after a hearing, on July 28, 1986. After a court trial, Downs moved for a judgment of acquittal which the court denied in part and granted in part. Downs was found guilty on counts one through six and sentenced to one year probation. Downs appeals.

FACTS AND PROCEEDINGS BELOW:

Downs is the owner and operator of a located mining claim on National Forest System land. In 1981 the Forest Service approved a plan of operations for Downs's claim pursuant to 36 C.F.R. Secs. 228.4, 228.5. The plan permitted Downs to remove ore bearing material from the claim on existing roads. The plan did not authorize the operation of a core driller, the building of new roads, construction of a gate, the discharge of sewage, the removal of vegetation, or occupation of the land for residential purposes.

In September, 1985, Downs submitted a letter of intent stating that he purchased a core drill for use on the property and is permitting two men to stay on the property in a trailer to run the core drill. The letter also stated that refuse will be carried out daily and entrance and exit will be by an existing road. The Forest Service rejected the new activities as not in accordance with the plan of operation. On October 4, 1985, Forest Service Officers Holl and Thompson visited the claim and observed trailers, vegetation removed from the area surrounding the trailer and the road, and waste water running from the trailer. Downs informed Holl that he refused to remove the trialer without a court order. Holl and Thompson visited the claim on October 15 and found a chain link fence across the road into the claim. On October 28, 1985, Downs informed the Forest Service of his use of the trailers (as a place for his workers to stay), the chain-link fence, and the core drill. Holl and Thompson testified that on November 6, 1985, they observed the recent construction of road, additional clearing of vegetation and trees, and more waste water from the trailer. Downs agreed to prepare a new plan of operations, but no such plan was ever submitted.

On May 5, 1986, Downs was charged with seven counts of violating Forest Service regulations. He was charged with violating: 36 C.F.R. Sec. 261.6(a) (the unauthorized cutting and damaging of vegetation) (two counts); id. Sec. 261.11(d) (unlawfully discharging sewage and waste water material on Forest Service lands) (two counts); id. Sec. 261.10(j) (unlawful use and occupation of Forest Service lands); and id. Sec. 261.10(a) (unlawful construction, placement, and maintenance of an improvement) (two counts). Downs moved to dismiss the charges on the grounds that the Forest Service regulations were enacted after the Surface Resource Act which applies only to claims located after 1955. The district court denied the motion. A court trial was held and Downs moved for a judgment of acquittal. This motion was denied as to counts one through six and granted as to count seven.¹  The court found Downs guilty on six of the seven counts and sentenced him to one year of probation on each count. The sentences to run concurrently. Downs filed a timely appeal.

DISCUSSION:

I. Motion to Dismiss.

We review the sufficiency of the information de novo. United States v. Tuohey, 867 F.2d 534, 536 (9th Cir. 1989). Downs was charged with six counts of violating 16 U.S.C. § 551 and Forest Service regulations under 36 C.F.R. Part 261. In his motion to dismiss and on appeal, Downs argues that his mining claim originated in 1954 and the Surface Resource Act, 30 U.S.C. § 612, applies only to mining claims made after the Act's enactment in 1955. Downs presents no argument, however, that the statute and regulations he is charged with violating do not apply to him. Regardless of the applicability of 30 U.S.C. § 612 to Downs, he is subject to 16 U.S.C. § 551 and the regulations authorized under that section.²  The district court, therefore, did not err in denying the motion to dismiss.

II. Sufficiency of the Evidence.

We review claims that the conviction is not supported by the evidence under the sufficiency of evidence test. United States v. Spears, 631 F.2d 114, 117 (9th Cir. 1980). There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 473, 495 (9th Cir. 1988) (citation omitted). Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir. 1989).

Downs argues that there is insufficient evidence to prove that he or his agents performed the unlawful activity. We disagree. Regarding the two counts of unlawfully cutting or damaging vegetation on Forest Service lands (first and sixth count of the information), the district court heard the testimony of Holl and Thompson that they observed vegetation and trees cut down around the trailer and the road. The court also had evidence of a bulldozer clearing the land near the road. Although there are no direct observations of Downs clearing the vegetation, there is sufficient circumstantial evidence to support the inference that Downs was responsible for the cutting.

There is also sufficient evidence to support the court's finding that Downs unlawfully discharged sewage and waste water under count two. Waste water was seen flowing from the trailer. The trailer belonged to Downs and his employees were living in it. As with the counts discussed above, direct evidence that Downs discharge the sewage and waste water onto the property is not required. The inference is supported by the evidence.

Regarding count three of unlawful occupation of Forest Service lands, in two letters Downs informed the Forest Service that his employees will be occupying the trailer. In one letter he states that two men "will be staying there for the duration of the drilling." The second letter states that the trailer is necessary to "provide a place for a twenty-four (24) hour guard to stay." This is sufficient evidence to support the conviction on this count.

In response to a Forest Service inquiry, Downs stated, "Regarding the Chain-Link Gate: Currently, the gate is not locked. When it is, I will be more than happy to furnish your office with a key." The conviction on count four, unlawfully constructing and maintaining a gate on the property is thereby supported by the record.

There is also sufficient evidence to support the conviction on count five, the unlawful construction of a road. The district court heard testimony about the construction of the road and viewed photographic evidence of a bulldozer preparing a road "across what appears to be virgin land." There is no evidence that the road was preexisting.

CONCLUSION:

For the foregoing reasons, the judgment of the district court is

AFFIRMED.