dissenting:

With all due respect, I fear that the majority has fallen into error, in part because it is deciding a different case from the one that was presented to the district court. This case was tried to the district judge on stipulated facts. The defense Kent presented to the district court was that her occupancy of National Forest lands was authorized because she had individual aboriginal title to the land. As the majority correctly decides, the district court properly rejected that contention. See United States v. Dann, 865 F.2d 1528, 1533-36 (9th Cir. 1989).

On appeal, Kent virtually abandoned her claim of individual aboriginal title. Instead, she argued that her occupancy was authorized by law because she had a certificate of eligibility for an allotment in Forest lands, and because the Forest Act of 1910, 25 U.S.C. § 337 , contemplated occupancy of Forest lands by Indians prior to the Secretary’s issuing them an allotment. This contention raises complex questions of statutory interpretation that would be difficult to decide on this undeveloped record.

The majority has chosen, therefore, to decide the ease on a third ground. It is that, in light of Kent’s certificate of elibility and the provisions of the Forest Act of 1910, she could not have had adequate notice that her possession was illegal; the regulation outlaws only occupancy that is not “otherwise authorized by Federal law or regulation.” 36 C.F.R. § 261.10 (b). In so ruling, the majority necessarily decides two issues of law, upon which supplemental briefing was ordered: first, it decides that section 261.10 does not create a strict liability offense and, second, it decides that the requisite scienter is knowledge on the part of the violator that her conduct is unlawful. Finally, the majority decides a question of fact: namely, that Kent lacked the requisite knowledge. In my view, the first two issues are incorrectly decided, and the third should not be decided at all on this record.

The first issue, whether section 261.10 defines a strict liability offense, is the most difficult. We held, however, in United States v. Wilson, 438 F.2d 525 (9th Cir.1971), that 36 C.F.R. § 261.6 (a), which prohibits cutting and removing timber in a National Forest without a permit, defined a strict liability crime. It was no defense that the violators were unaware that they had strayed onto a National Forest. I find it difficult to see why one who wanders onto a National Forest and cuts trees should be held strictly liable when one who wanders on and establishes a residence is not.

It is true that strict criminal liability is strong medicine, however. We have accordingly construed 36 C.F.R. § 261.7 (a) to require criminal intent. United States v. Semenza, 835 F.2d 223 (9th Cir.1987). That regulation prohibits “allowing unauthorized livestock to enter or be in the National Forest System.” We construed “allowing” as implying a mental element, and required the government to prove that the violator willfully allowed or willfully failed to prevent the cattle from entering the Forest. Id. at 224-25 . See also United States v. Launder, 743 F.2d 686, 689 (9th Cir.1984) (statute making it a crime to “permit” or “suffer” a fire to spread out of control in National Forest requires proof of a willful act or willful failure to act). In my view, Kent’s case is not controlled by Semenza or Launder because section 261.- *283 10 contains no similar language implying a requisite state of mind. I therefore would consider myself constrained by Wilson and would resolve this issue differently from the majority. I concede, however, that the question is a debatable one.

I disagree more strongly with the majority’s ruling that Kent could not be convicted of violating section 261.10 unless she knew that her conduct was unlawful. In the first place, the majority is mistaken in concluding that the information, which alleged that Kent “knowingly” set up her residence in the Forest, imposes a requirement of knowledge even if the statute or regulation does not. If there is no mental element in the statutory or regulatory crime, the allegation of knowledge in the information is mere surplusage, and can be ignored in the absence of unfair surprise to the defendant. See United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir.), cert. denied, 479 U.S. 855 , 889, 107 S.Ct. 192 , 288, 93 L.Ed.2d 125 , 262 (1986). The majority’s reliance on United States v. Morrison, 536 F.2d 286 (9th Cir.1976), is misplaced. In Morrison , intent was clearly an element of the crime, even though not recited in the statute; the indictment or information therefore was required to allege intent.

But even if knowledge were an element of the crime, it should be sufficient that Kent knew that she was establishing her residence in the National Forest and knew that she did not have a permit. She need not have known that her action was unlawful.

United States v. Sherbondy, 865 F.2d 996, 1002 (9th Cir.1988). See also United States v. International Minerals & Chemical Cory., 402 U.S. 558, 559-62 , 91 S.Ct. 1697, 1698-1700 , 29 L.Ed.2d 178 (1971) (statute that punishes person who “knowingly violates any such regulation” requires proof only of knowing commission of prohibited acts; it does not require proof of knowledge of regulation). Here the majority accepts the proper definition of knowledge, requiring Kent to have “ ‘voluntarily and intentionally and not by accident or mistake’ engaged in the prohibited conduct,” but then misapplies it. There is no doubt in this case that Kent knew she was residing in a National Forest without a permit. The majority, however, requires the- government to prove that she knew her conduct was unlawful.

The majority relies upon Liparota v. United States, 471 U.S. 419 , 105 S.Ct. 2084 , 85 L.Ed.2d 434 (1985), which does create an exception to the usual rule that ignorance of the law is no excuse. There the Supreme Court construed a statute that provided for the punishment of anyone who “knowingly uses, acquires, alters or possesses” federal food stamps in manner not authorized by statute or regulation. The Court held that Congress intended “knowingly” to require knowledge that a regulation was being violated. Liparota , however, involved a felony statute, and the Court feared that any other interpretation “would be to criminalize a broad range of apparently innocent conduct.” Id. at 426 , 105 S.Ct. at 2088 . The Court stated:

Id. at 426-27 , 105 S.Ct. at 2088-89 . This catalog of innocent conduct is distinguishable, in my'view, from the kind of a deliberate act that is involved in setting up a residence in a National Forest. Moreover, Liparota involved potential penalties of five years imprisonment and a $10,000 fine. We deal instead with a misdemeanor with a maximum of six months incarceration and a $500 fine.

*284 The most important point about Liparo-ta, however, is that the Supreme Court was interpreting the congressional intent behind the use of the word “knowingly” in the statute. Even in dealing with other statutes containing that term, we have regarded Liparota as creating a narrow exception. See United States v. Moncini, 882 F.2d 401, 404-05 (9th Cir.1989) (crime of knowingly mailing child pornography does not require proof of knowledge of illegality); United States v. Aguilar, 883 F.2d 662, 672-73 (9th Cir.1989) (persons charged with knowingly harboring illegal alien may defend on ground that they did not know of alien’s illegal status, but not on ground that they erroneously believed applicable law of asylum to be other than it was). Here, there is no reason to conclude that Congress or the agency intended a broader-than-usual requirement of “knowledge” because neither the statute nor the regulation contains the term.

Finally, the majority necessarily concludes that Kent has not been shown to have possessed the requisite knowledge that her occupancy was unlawful. The issue is one of fact, and the government’s failure, if failure there was, is not surprising. Kent’s only defense in district court was that she had a valid claim of individual aboriginal title to the land. It is difficult now to determine whether the district court, as trier of fact, might properly have inferred from the stipulated facts that Kent knew her occupancy was unauthorized; the district court was never called upon to make that determination.

Central to the majority’s decision is the notion that Kent’s occupancy may have been lawful under the Forest Act of 1910, as that of a potential allottee, even though she had never shown any inclination to apply for an allotment. Also implicit in the majority’s decision is the idea that Kent’s certificate of eligibility for an allotment in National Forest lands might entitle her to the particular tract in issue. I question the soundness of these combined propositions. See 43 C.F.R. § 2533.1 (before allotting National Forest land, Secretary must determine that tract in question is more valuable for agriculture or grazing than for timber); cf. Hopkins v. United States, 414 F.2d 464, 467-68 (9th Cir.1969) (General Allotment Act did not give Indian vested right to allotment of land simply by his selecting and settling upon it; Secretary must determine that lands can support settler by grazing or agriculture before approving allotment).

I recognize that this is a sympathetic case. 1 But in extricating Kent from her conviction, the majority has adopted, I fear, an interpretation of section 261.1 that will impose too great a burden on the Forest Service in its attempts to control others who might wish to establish residences in the National Forests. It has also unwisely, and I think incorrectly, suggested that its strict knowledge requirement is based on due process. Liparota itself grounded its requirement of knowledge of illegality on congressional intent alone, not constitutional compulsion. 471 U.S. at 426-27 , 105 S.Ct. at 2088-89 . And we have rejected a contention that due process requires that ignorance of the law be a defense for a foreigner charged with violating our laws. United States v. Moncini, 882 F.2d at 405-06 .

In light of the severe legal and practical problems that flow from interpreting the regulation as one must in order to give relief to Kent, I would affirm the judgment of the district court on the only ground presented to it — that Kent’s defense of individual aboriginal title was insufficient.

. The district judge also recognized this fact. He offered to give Kent probation if she moved off the land. The offer was refused.