McClure
United States v. McClure
Opinion
Opinion
Kellison, J.
ORDER
Defendant’s Motion to Dismiss the citation/violation notice [Violation] pursuant to Rule 12(b)(2) & (3) of the Federal Rules of Criminal Procedure came on regularly for hearing on January 18, 2005, before the Honorable Craig M. Kellison, United States Magistrate Judge. R. Dabney Eastham appeared for and on behalf of Defendant, Terry Lee McClure; and Assistant U.S. Attorney Samantha S. Span-gler appeared on behalf of the United States of America [Government].
Defendant moves to dismiss the Violation on the ground that it fails to state an offense. The gravamen of Defendant’s argument is that Defendant is charged with using National Forest System land without special-use authorization, when the alleged activity that he is charged with doing (gold mining) does not require “special-use authorization”. 36 C.F.R. 251.50(a).
Based on the very specific language in § 251.50(a) exempting such activity; and the court’s ruling in Unites States v. Lex, 300 F.Supp.2d 951, 960-61 (E.D.Cal.2003) [Lex & Waggener ], this Court agrees.
On September 1, 2004, the Defendant was charge with violating 36 C.F.R. 261.10(k) which prohibits use of National Forest System land in the absence of…