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U.S. v. LAW BRIAN LEE MCKINNON
August 18, 2003
UNITED STATES OF AMERICA, PLAINTIFF,
LAW BRIAN LEE MCKINNON, DEFENDANT
The opinion of the court was delivered by: Vaughn Walker, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendant has been charged in a one-count superseding indictment with a violation of 18 U.S.C. § 844 (f)(1) and (f)(2), malicious damage and destruction to property of the United States by fire creating a substantial risk of harm to one or more persons. Doc #34. On July 29, 2003, with the consent of the government and approval of the court, defendant waived his right to a jury trial pursuant to FRCrP 23(a). Doc # 71. The case was tried to the court on July 30, 2003. The court herein makes its findings of fact and conclusions of law: [ Page 2]
1. The parties have stipulated that the following
facts shall be deemed proved beyond a reasonable
a. On September 21, 2002, in Humboldt
County/Northern District of California,
defendant set fire to grasses in several
locations off Big Hill Road, using fusees and
b. Defendant set the fires (the Big Hill fires) as
a conscious intentional act done knowingly and
with a design to do an intentionally wrongful
act injurious to the property of others, without
lawful reason, cause or excuse, and not by
accident or involuntarily;
c. The Big Hill fires damaged standing timber and
other live vegetation growing within the
boundaries of the Hoopa Valley Indian
Reservation, in those portions of the
reservation visually depicted in Composite
Exhibit One (Doc # 72, Exh # 1), the pages of
which are Bates stamped 082 and 083, which were
excerpted from the "Emergency Stabilization and
Rehabilitation Plan, Hoopa Valley Indian
Reservation, September, 2002;"
d. The portions of land depicted in Composite
Exhibit One are legally described as:
T 8 N, R 4 E, Humboldt Meridian
Sec 12: Portions of Lots 2-4;
Sec 13: Portions of Lot 18; and
T 8 N, R 5 E, Humboldt Meridian
Sec 7: Portions of Lots 2-4, SE1/NW1/4,
E1/2SW1/4 and W1/2SE1/4;
e. The land depicted in Composite Exhibit One and
described in paragraph d above was on September
21, 2002, held in trust by the United States for
benefit of the Hoopa Valley Tribe.
Doc # 72. [ Page 3]
2. The Hoopa Valley Reservation, as currently
constituted, was created by act of Congress
in 1988. See 25 U.S.C. § 1300i-1(b).
3. Unallotted trust lands and assets of the Hoopa
Valley Reservation are held in trust by the United
States for the benefit of the Hoopa Valley Tribe.
See 25 U.S.C. § 1300i-l(b).
4. Section 1300i-l(b) of Title 25 of the United States
Code does not, by its terms, provide for the
retention by the United States of any ownership
interest in the land comprising the Hoopa valley
Reservation or the timber and vegetation thereon.
5. Unallotted trust lands are lands held in trust by
the United States for an Indian tribe as a whole;
allotted trust lands are lands held in trust by the
United States for individuals (or families) to whom
Congress has assigned ownership rights in specific
parcels of land.
6. The timber and vegetation burned by the Big
Hill fires was growing on unallotted trust land
of the Hoopa Valley Reservation.
7. The United States has no possessory or leasehold
interest in the timber or vegetation burned by the
Big Hill fires.
8. The United States' duties as trustee of unallotted
trust lands on the Hoopa Valley Reservation include
obligations to regulate sales of timber from
unallotted trust lands. See, e g, 25 U.S.C. § 406
and 407 (regulating timber sales on land held in
trust for Indian tribes).
9. The regulatory and fiduciary duties of the United
States neither create nor imply an ownership
interest in the United
[ Page 4]
States in the timber growing on unallotted
reservation lands on the Hoopa Valley Reservation.
See United States v. Algoma Lumber Co. 305 U.S. 415,
420 (1939) ("Under the provisions of the treaty
[creating the Klamath Reservation] and established
principles applicable to land reservations created
for the benefit of the Indian tribes, the Indians
are beneficial owners of the land and the timber
standing upon it and of the proceeds of their
sale, subject to the plenary power of control by
the United States, to be exercised for the benefit
and protection of the Indians." (internal citation
omitted); see also United States v. Shoshone Tribe
of Indians of Wind River Reservation in Wyoming.
304 U.S. 111 116 (1938).
II. CONCLUSIONS OF LAW
1. To prove a violation of 28 U.S.C. § 844(f)(1),
the government must prove beyond a reasonable
doubt the following elements: that defendant
(1) maliciously (2) damaged or destroyed or
attempted to damage or destroy (3) by means of
fire or an explosive (4) any building, vehicle,
or other personal or real property in whole or
in part owned or possessed by, or leased to,
the United States, or any department or agency
thereof, or any institution or organization
receiving Federal financial assistance.
2. The facts to which the parties have stipulated
satisfy the government's burden regarding the
first three elements of the charged offense.
[ Page 5]
3. The United States' reversionary interest in the
land of the Hoopa Valley Reservation — i.e.,
its ability to extinguish the reservation and
reclaim title to the land — is not an
ownership interest in unallotted Hoopa Valley
Reservation lands or the timber and vegetation
growing on such lands. See Shoshone, 304 US at 116
("[T]he United States granted and assured to the
tribe peaceable and unqualified possession of the
land in perpetuity. Minerals and standing timber
are constituent elements of the land itself. For
all practical purposes, the tribe owned the land.
Grants of land subject to the Indian title by the
United States, which had only the naked fee, would
transfer no beneficial interest." (internal
4. The United States' fiduciary and regulatory duties
as trustee of the Hoopa Valley Reservation land do
not create in the United States an ownership
interest in the land of the Hoopa Valley
Reservation land or the timber and vegetation
5. The government has not proved beyond a reasonable
doubt that the United States had, at the time
defendant set the Big Hill fires, any ownership
interest in the timber and vegetation burned by
6. The government has conceded that it neither has
charged nor can prove that the United States
had any possessory or leasehold interest in the
timber and vegetation burned by the Big Hill
fires at the time defendant set those fires.
[ Page 6]
7. Accordingly, the government has not proved beyond a
reasonable doubt that the united States in part or
in whole owned the timber or vegetation burned in
the Big Hill fires as of the date defendant set the
8. Because the government has failed to prove
beyond a reasonable doubt the jurisdictional
element of the charged offense, the court must
find defendant NOT GUILTY of a violation of
28 U.S.C. § 844(f)(1) and (f)(2).
The court directs the clerk to enter a verdict of NOT GUILTY on the sole count of the superseding indictment, to enter judgment for defendant, to terminate all pending motions and to close the file. Having been found not guilty of the charge against him, defendant is ORDERED released from federal custody.
[EDITOR'S NOTE: THIS PAGE CONTAINED "CERTIFICATION OF SERVICE."]
In pursuant to Findings of Fact and Conclusions of Law filed August 15, 2003, a NOT GUILTY verdict on the sole ...
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