Unpublished Disposition, 875 F.2d 319 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Bennie SINERIUS, Defendant-Appellant.

No. 87-3164.

United States Court of Appeals, Ninth Circuit.

Submitted March 27, 1989.Decided May 16, 1989.

Before TANG, NELSON and REINHARDT, Circuit Judges.


Bennie Sinerius (Sinerius) appeals pro se his conviction for maintaining a road on National Forest system land without authorization, in violation of 36 C.F.R. Secs. 261.10(a) & (b). He contends that his conviction should be reversed because (1) he was denied his right to a jury trial; (2) he was convicted under ex post facto laws; and (3) the Secretary of Agriculture exceeded his constitutional authority in promulgating the regulations under which Sinerius was convicted. We affirm.


On September 21, 1987, the United States filed an information in the District Court of Montana, charging Bennie Sinerius (Sinerius) with maintaining a road on National Forest system land without a special use authorization, contract or approved operating plan in violation of 36 C.F.R. Secs. 261.10(a) and 261.10(b). A bench trial was held on November 9, 1987 in which Sinerius represented himself. The evidence showed that Sinerius had mining claims in the Helena National Forest. Sinerius had previously been issued a special use permit for the road in question, but that permit had been terminated. The district ranger had written to Sinerius to tell him that he had to submit a plan of operations for his mine. Sinerius was charged with violations of forest service regulations when the ranger found that Sinerius had attempted to maintain the road to his mining claim with a piece of heavy equipment without an approved plan of operations. At the trial, Sinerius did not deny maintaining the road without a plan of operations. His defense appeared to be that because of his mining claim the forest service did not have authority to regulate his use of the road in question. The district court found Sinerius guilty as charged. On November 24, 1987, judgment was entered and Sinerius was sentenced to ten days imprisonment, with the execution of the sentence stayed pending appeal. Sinerius timely appeals.


* Constitutional Authority of Secretary

Sinerius appears to contend that the Secretary of Agriculture did not have the authority to promulgate the regulations under which he has been charged and convicted. This contention lacks merit.

Congress' authority to enact laws affecting the public lands is derived from the Property Clause of the Constitution, Art. IV Sec. 3, cl. 2. United States v. Weiss, 642 F.2d 296, 297 n. 1 (9th Cir. 1981) (citing Kleppe v. New Mexico, 426 U.S. 529, 535 (1976)); 16 U.S.C. §§ 478, 551. In exercise of its constitutional authority, Congress enacted 16 U.S.C. §§ 478 and 551 and gave the Secretary of Agriculture the authority to make rules and regulations for the protection and preservation of the national forest, and persons entering upon national forest lands must comply with those regulations. Under this authority, the Secretary may enact reasonable rules and regulations which do not impermissibly encroach upon the rights of use and enjoyment under the mining laws. See Weiss, 642 F.2d at 299.

36 C.F.R. Sec. 261.10 was enacted pursuant to the Secretary's authority under 16 U.S.C. §§ 472 and 551. United States v. Nordwick, 673 F. Supp. 397, 399 (D. Mont. 1987). The Secretary of Agriculture therefore did not act outside its constitutional authority in enacting the regulations under which Sinerius was convicted.


Ex Post Facto Law

Sinerius contends that he was unconstitutionally convicted under ex post facto laws. This contention has no merit.

A law violates the ex post facto clause of the Constitution if it " 'changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed.' " Wallace v. Christensen, 802 F.2d 1539, 1553 (9th Cir. 1986) (quoting Calder v. Bull, 3 U.S. 386, 390 (3 Dall.1798).

Here, the regulations under which Sinerius was charged were enacted in 1977 and 1981. See 36 C.F.R. Secs. 261.1b, 261.10. Sinerius was charged with violating these regulations in 1987. Accordingly, he has not been convicted under ex post facto laws. See Wallace, 802 F.2d at 1553.


Jury Trial

Sinerius contends that the district court erred in denying him a jury trial.

This court reviews the denial of a jury trial de novo. United States v. Stansell, 847 F.2d 609, 611 (9th Cir. 1988). The sixth amendment right to a jury trial does not extend to "petty" offenses. Id. The general rule is that an offense is a petty offense if the maximum penalty provided does not exceed six months imprisonment, a $500 fine, or both. Id.

Violations of 36 C.F.R. Secs. 261.10(a) & (b) are petty offenses, because the maximum penalty provided is $500 fine or six months imprisonment or both. See 36 C.F.R. Sec. 261.1b; 16 U.S.C. § 551; Stansell, 847 F.2d at 611. The district court did not err in denying a jury trial. See Stansell, 847 F.2d at 611.



The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3