Lowry

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-10469 Plaintiff-Appellee, v.  D.C. No.

CR-05-00399-LKK

KAREN LOWRY,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior Judge, Presiding

Argued and Submitted June 15, 2007—San Francisco, California

Filed January 16, 2008

Before: Alfred T. Goodwin, Jay S. Bybee, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Bybee

551 554 UNITED STATES v. LOWRY

COUNSEL

Monica Knox, Assistant Federal Public Defender, Sacra- mento, California, for the appellant.

Samantha Spangler, Assistant United States Attorney, Sacra- mento, California, for the appellee.

OPINION

BYBEE, Circuit Judge:

In this case we are presented with a question of first impression: Who bears the burden of proof when a defendant is charged with occupation of Forest Service land in violation of 36 C.F.R. §§ 261.10(b) and (k)? Must the prosecution prove that the defendant does not have individual aboriginal title, or is the claim an affirmative defense?…