U.S. v. Lowry

• Decision Date: 16 January 2008
• Docket Number: No. 06-10469.,06-10469.
• Citation: 512 F.3d 1194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Karen LOWRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

512 F.3d 1194

UNITED STATES of America, Plaintiff-Appellee, v. Karen LOWRY, Defendant-Appellant.

No. 06-10469.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 2007.

Filed January 16, 2008.

Monica Knox, Assistant Federal Public Defender, Sacramento, CA, for the appellant.

Samantha Spangler, Assistant United States Attorney, Sacramento, CA, for the appellee.

Appeal, from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Senior Judge, Presiding. D.C. No. CR-05-00399-LKK.

Before: ALFRED T. GOODWIN, JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.

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? We hold that the occupant claiming individual aboriginal title bears the burden of demonstrating such title as an affirmative defense. Applying that standard, we conclude that the defendant in this case failed to meet this burden, and we affirm the judgment of the district court upholding the defendant's convictions.

I

Congress has charged the Secretary of Agriculture with "regulat[ing] the[ ] occupancy and use" of the national forests by "rules and regulations." 16 U.S.C. § 551. Any person violating such regulations may be tried before a magistrate judge and, if convicted, punished. Id. Under the Secretary's regulations, no one may "possess[] ... occupy[], or otherwise us[e] National Forest System lands for residential purposes without a special-use authorization, or as otherwise authorized by Federal law or regulation." 36 C.F.R. § 261.10(b). Section 261.10(k) similarly prohibits the "[u]se or occupancy of National Forest System land or facilities without specialuse authorization when such authorization is required."

There are effectively three ways that a claimant may be authorized to occupy national forest lands. First, a claimant may receive special-use authorization. See 36 C.F.R. §§ 251.50, 251.52, 251.55. Second, she may claim authorization under the Forest Allotment Act, which permits Indians who are "not entitled to an allotment on any existing Indian reservation, or for whose tribe no reservation has been provided" to apply for an allotment. 25 U.S.C. § 337. The Secretary of the Interior may grant such allotment if the Secretary of Agriculture finds that the land is more valuable for agricultural or grazing purposes than for the timber. Id.; see 43 C.F.R. §§ 2533.1, 2533.2. Third, she may claim individual aboriginal title to the land under the authority of the Supreme Court's decision in Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622 (1923). See United States v. Dann, 873 F.2d 1189 (9th. Cir.1989).

The Karuk people have occupied the Oak Bottom area of the Klamath National Forest in northern California from time immemorial. Karen Lowry, a Karuk Indian has resided on property located in the Oak Bottom area since approximately 1983. Lowry has not received a specialuse authorization, nor has the Secretary of Interior granted Lowry an Indian allotment of land on this site. Oak Bottom encompasses a large area, including a Forest Service campground and work center, a 6.5 acre parcel known as Indian Allotment 280, and Lowry's current residence, comprising about five acres. Indian Allotment 280, which is approximately fifty yards from Lowry's residence, was granted to Oak Bottom Jack, one of Lowry's relatives, and has passed to relatives other than Lowry. Lowry's great-great-grandfather, Nupas, resided in the Oak Bottom area at least until 1900. Her great-great-grandmother, Mahkhawa'da, resided in a o-story log cabin located on the property now occupied by Lowry. The dates of Mahkhawa'da's residence are unclear, but it appears that she was forced off the property by white miners at some point in the early 1900s. Mahkhawa'da later returned to the property after the miners left.

Lowry's paternal grandmother, Bessie Tripp, was born in the area in the 1870s. Bessie was not raised on the land currently occupied by Lowry, but in a "house up at the upper end." Bessie left the area to attend school and subsequently got married, though she returned on the weekends and during some summers. In 1926, Bessie took up permanent residence on Indian Allotment 280. Lowry resided with Bessie on Indian Allotment 280 until Lowry was eleven years old, when she was placed in foster care. Lowry occasionally returned to Oak Bottom to visit Bessie, although Lowry did not take up residence on the property she currently occupies until about April 1983, after Bessie's death on December 6, 1982.

In the late 1980s, the Forest Service accused Lowry of trespassing on Forest Service lands and encouraged her to obtain an Indian allotment for the land she occupied. She applied for an allotment in 1987.¹ On July 13, 1990, a Forest Service Supervisor determined that the land was not available for allotment because of its location within the Wild and Scenic River corridor of the. Salmon River. The Supervisor also noted several other reasons that an allotment could not be granted, including Lowry's statutory ineligibility and her failure to substantiate the agricultural uses of the land. When Lowry requested that the Supervisor permit her to reopen the proceedings, the Supervisor refused, citing the lack of any new information that would result in issuance of the allotment. California Indian Legal Services sent the Supervisor a "Notice of Appeal" on Lowry's behalf, which the Supervisor denied because the governing regulations did not permit an administrative appeal in Lowry's case. Lowry sought no further relief.

On August 8, 2003, the government charged Lowry with occupancy of Forest Service land in violation of 36 C.F.R. §§ 261.10(b) and (k).² Prior to trial, the government filed a motion in limine to exclude evidence that the government's denial of Lowry's application for an Indian allotment was arbitrary and capricious. The magistrate judge granted this motion and precluded evidence related to Lowry's application. Before the magistrate judge, Lowry claimed a right to aboriginal title under Cramer, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622, because her family had resided in the area since at least the late 1800s.

On August 30, 2005, after a two-day trial, the magistrate judge found Lowry guilty of unlawful occupancy. He rejected. Lowry's argument that she was authorized to occupy the land, holding that authorization is an affirmative defense as to which Lowry had not met her burden of proof. The magistrate judge also considered Lowry's challenges to the denial of her allotment application. Ultimately, he determined that the court lacked jurisdiction pursuant to 25 U.S.C. § 345 to consider the denial of the allotment application and further found that Lowry was not deprived of due process because she had voluntarily opted not to pursue an action in the district court following the denial. He then issued a sentence that required Lowry to leave the disputed land by April 30, 2006.

On July 25, 2006, the district court issued a detailed opinion affirming Lowry's conviction, but on different grounds. The district court held that authorization was an element of the offense for which the government bore the burden of proof. However, the court then held that any error caused by the magistrate judge's incorrect rule was harmless because the government had met its burden of proof. The district court also affirmed the magistrate judge's exclusion of the evidence of Lowry's Indian allotment application and the determination that the magistrate judge lacked jurisdiction to consider Lowry's, challenge to the Forest Service's denial of that application.

II

Lowry appeals her convictions for unauthorized residential occupancy of land in a national forest, see 36 C.F.R. § 261.10(b), and for unauthorized use or occupancy of land or facilities in a national forest, see 36 C.F.R. § 261.10(k). She raises two issues. First,' Lowry contends that the magistrate judge erroneously shifted the burden of proof and that the government failed to prove each element of the crime. Specifically, she alleges that the government has the burden of proving that she did not have authorization based on a claim of individual aboriginal title to occupy the Oak Bottom area. Second, Lowry asserts that the magistrate judge precluded her from presenting a defense by excluding evidence that the denial of her Indian allotment application was arbitrary and capricious, because, had the application been granted, would have provided an alternate means of authorization to occupy the land. We address each of Lowry's arguments in turn.

III

Lowry claims that she has individual aboriginal title to the National Forest Service lands she now occupies. Preliminarily, she disputes the burden of proof applied by the magistrate judge as to the authorization requirements in 36 C.F.R. §§ 261.10(b) and (k). Lowry contends that the government has the burden to prove all elements of the crime as defined in the regulations, and to do so, it must establish a negative—that she lacked authorization to occupy the land in question. Consequently, she asserts that the magistrate judge erred by requiring her to establish that she held individual aboriginal title to occupy the land. With respect to the district court's ruling, Lowry does not challenge the burden of proof applied, but disputes that the government provided sufficient evidence to negate her authorization to occupy the land. The government contends that authorization operates as an affirmative defense, such that an occupant must raise and prove some right to possession.³

Our analysis is complicated by the fact that although Lowry challenges the...