United States of America, Plaintiff-appellee, v. Jay Baron Kaisserman, Defendant-appellant, 105 F.3d 667 (9th Cir. 1996)
Annotate this CaseBefore: BROWNING, SKOPIL, and BRUNETTI, Circuit Judges
MEMORANDUM**
We affirm the conviction of Jay Kaiserman for residing in the Coronado National Forest without special use authorization in violation of 36 C.F.R. § 261.10(b).
Kaiserman was required to abide by 36 C.F.R. § 261.10(b) whether or not he was engaged in prospecting or mining activities. As this court held in United States v. Doremus, 888 F.2d 630, 632 (9th Cir. 1989), "s 261.1(b) is merely a recognition that mining operations 'may not be prohibited nor so unreasonably circumscribed as to amount to a prohibition.' " Section 478 of 16 U.S.C., which Kaiserman argues gives him the right to enter the national forest to engage in prospecting, states " [s]uch persons must comply with the rules and regulations covering such national forests." The common law doctrine to which Kaiserman refers does not override the explicit mandates of the U.S. Code.
The evidence was sufficient to convict Kaiserman of residing on a national forest without permission in violation of 36 C.F.R. § 261.10(b). Two witnesses testified Kaiserman admitted he was living in the Coronado National Forest. Two witnesses testified he was living elsewhere, but " [i]n cases of conflicting testimony where credibility is necessarily at issue, we must be 'especially reluctant' to set aside the findings of the trial court." Gibbs v. Pierce County Law Enforcement Support, 785 F.2d 1396, 1402 (9th Cir. 1986).
AFFIRMED.
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