United States v. Larry B. Semenza

Larry D. Semenza was convicted of two counts of allowing unauthorized livestock to trespass on National Forest Land in violation of 36 C.F.R. § 261.7 (a). 644 F.Supp. 780 . That regulation prohibits “[p]lacing or allowing unauthorized livestock to enter or be in the National Forest System or other lands under Forest Service control.” The regulation was promulgated pursuant to 16 U.S.C. § 551 (1982).

Semenza’s cattle had been sighted repeatedly on National Forest Lands. Forest Service employees had made positive identifications on each of the dates charged in the indictment. Semenza did not have a permit to graze his cattle. Semenza had the sole legal responsibility for restraining his livestock from entering and remaining on Forest Service lands. Semenza contends that he cannot be convicted of violating the regulation unless there is some evidence of a purposeful action or inaction by him resulting in the livestock’s unauthorized presence. Alternatively, he urges that he is entitled to a new trial on the basis of new evidence. We reverse.

The first issue we must resolve is whether § 261.7(a) requires a criminal intent. The interpretation of a regulation raises a question of law…

dissenting.

I respectfully dissent. I believe that the regulation in question imposes strict liability on Semenza for the unauthorized entry of his cattle onto National Forest Land. See United States v. Larson, 746 F.2d 455, 456 (8th Cir.1984). As the evidence clearly shows that Semenza’s cattle had repeatedly entered onto National Forest Lands and that he had no permit, I would affirm his conviction.

The majority opinion cites Morissette v. United States, 342 U.S. 246 , 72 S.Ct. 240 , 96 L.Ed. 288 (1952) for the proposition that courts should be reluctant to dispense with a mens rea requirement. While the Court so held with respect to crimes “incorporated from the common law,” id. at 262 , 72 S.Ct. at 249 , the Court carefully distinguished “regulatory measures ... where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.” Id. at 258-59, 72 S.Ct. at 247 . Justice Brennan elaborated on this distinction in United States v. Freed, 401 U.S. 601 , 91 S.Ct. 1112 , 28 L.Ed.2d 356 (1971), saying:

401 U.S., n. 4 at 613, 91 S.Ct., n. 4 at 1115 (Brennan, J., concurring) (quoting Holdridge…

835 F.2d 223 UNITED STATES of America, Plaintiff-Appellee, v. Larry B. SEMENZA, Defendant-Appellant. No. 86-3190. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 1, 1987. Decided Dec. 30, 1987. Kris A. McLean, Butte, Mont., for plaintiff-appellee. K. Dale Schwanke, Great Falls, Mont., for defendant-appellant. Appeal from the United States District Court for the District of Montana. Before POOLE, FERGUSON and CANBY, Circuit Judges. CANBY, Circuit Judge: 1 Larry D. Semenza was convicted of two counts of allowing unauthorized livestock to trespass on National Forest Land in violation of 36 C.F.R. Sec. 261.7(a). 644 F.Supp. 780 . That regulation prohibits "[p]lacing or allowing unauthorized livestock to enter or be in the National Forest System or other lands under Forest Service control." The regulation was promulgated pursuant to 16 U.S.C. Sec. 551 (1982). 2 Semenza's cattle had been sighted repeatedly on National Forest Lands. Forest Service employees had made positive identifications on each of the dates charged in the indictment. Semenza did not have a permit to graze his cattle. Semenza had the sole legal responsibility for restraining his livestock from…