U.S. v. Larson, 84-1382-SD
| Citation | 746 F.2d 455 |
| Decision Date | 19 October 1984 |
| Docket Number | No. 84-1382-SD,84-1382-SD |
| Parties | UNITED STATES of America, Appellee, v. Harold LARSON, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Reed C. Richards, Deadwood, S.D., for appellant.
Reed Rasmussen, Rapid City, S.D., for appellee.
Before ARNOLD, FAGG, and BOWMAN, Circuit Judges.
On November 18, 1983, Harold Larson was charged with three counts of allowing unauthorized livestock to trespass on National Forest Service land under 36 C.F.R. Sec. 261.7 and 16 U.S.C. Sec. 551. The charges arose from three separate incidents in which Larson's cattle were observed on Forest Service land by Forest Service employees. Larson was tried on January 31, 1984 and found guilty on all three counts. The District Court 1 sentenced Larson to six months imprisonment and a $500 fine. Larson was placed on unsupervised probation for five years in lieu of the prison sentence.
Larson appeals his conviction to this Court on two grounds. First, he contends that his due process rights were violated when the United States Government charged him with criminal violation of 36 C.F.R. Sec. 261.7, instead of administratively recovering costs relating to the unauthorized trespass as it previously had done. Second, Larson contends that the trial court erred in not accepting his defense of necessity to the trespass charge because a snowstorm destroyed and the Forest Service removed fences which normally kept his cattle enclosed.
Larson raises his constitutional claims for the first time in this Court and we need not decide them on appeal. United States v. Surridge, 687 F.2d 250, 255 (8th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 614 (1982). Nevertheless, we note that the regulation in question is not void for vagueness since it clearly prohibits "allowing unauthorized livestock to enter or be in the National Forest System ...." 36 C.F.R. Sec. 261.7(a). Nor could Larson have a legitimate expectation that he would not be criminally prosecuted for the wanderings of his cattle. The regulations clearly provide for criminal penalties "of not more than $500 or imprisonment for not more than six months or both ..." for violations of 36 C.F.R. Sec. 261.7. 36 C.F.R. Sec. 261.1b. Larson does not contend that the Forest Service indicated to him in any way that he would not be criminally prosecuted other than through its previous forbearance. Nor does Larson contend that he was prosecuted for an illegal or improper reason. The Forest Service had repeatedly warned Larson that he was in violation of 36 C.F.R. Sec. 261.7. That statute clearly provides criminal penalties for trespass by unauthorized cattle. In such circumstances, the initiation of criminal proceedings is not a deprivation of due process.
Larson also claims that the trial court erred in not accepting his defense of necessity to the trespass charge. In support of his contention, he cites 75 Am.Jur.2d. Trespass Sec. 42, which provides that a person traveling on a valid easement may, if it becomes temporarily impassable, pass the obstruction on adjoining land...
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U.S. v. Unser
...E.g., United States v. Kent, 945 F.2d 1441, 1446 (9th Cir.1991)(unauthorized occupancy of National Forest land); United States v. Larson, 746 F.2d 455, 456 (8th Cir.1984) (trespass by cattle); United States v. Wilson, 438 F.2d 525 (9th Cir.1971) (cutting wood); United States v. Northwest Pi......
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...courts have held that intent is not an essential element of cattle intruding on Forest Service Land. See, United States v. Larson, 746 F.2d 455, 456 (8th Cir.1984). The location of the horses on June 27 and July 3-4, 1998 was noted by government witnesses Chess and Hagan and later verified ......
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...United States v. Bamberg, 478 F.3d 934, 937 (8th Cir. 2007). The Eighth Circuit addressed a very similar regulation in United States v. Larson, 746 F.2d 455, 456 (1984). In Larson, the defendant challenged 36 C.F.R. § 261.7(a) as being unconstitutionally vague. That regulation prohibits ind......
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U.S. v. Osguthorpe, 2:97-CR-252B.
...is particularly helpful in the present case. The Forest Service urges this Court to adopt the reasoning employed in United States v. Larson, 746 F.2d 455 (8th Cir.1984). The court in Larson, faced with defendant's argument that "the evidence at trial was insufficient to show that [defendant......