1093          US. v. SMITH

Cite as 866 F.2d 1092 (9th Cir. 1989)


2. Indictment and Information  key 144.-1(1), 196(1)

Defendants’ claim that Paperwork Reduction Act prohibited their prosecution for residing and working on unpatented mining claim without having sought, filed for or having obtained a permit (Plan of Operation) from Forest Service was an affirmative defense that was capable of determination without trial of general issue and as such could be raised before trial by motion but was not waived if not brought before trial. Fed. Rules Cr. Proc. Rule 12(f), 18 U.S.C.A.


3. Criminal Law  key  l028

Permissive pretrial matters which are capable of determination without trial of general issue are subject to general rule that points not raised at trial are waived. Fed. Rules Cr. Proc. Rules 12, 12(b), (b)(1,2), (f), 12 note, 18 U.S.C.A.


4. Criminal Law  key 105, 632(3)

Jurisdictional defenses and permissive pretrial matters are timely if asserted at or before trial.


5. Indictment and Information  key 144

Rule requiring defendant to raise before trial defenses and objections based on defects in institution of prosecution covers prosecutorial decision to commence prosecution and procedures followed in doing so. Fed. Rules Cr. Proc. Rule 12(b)(1), 18 U.S.C. A.


6. Mines and Minerals  key 95

Plan of operations required to be filed in connection with obtaining permit for mining activities was an “information collection request” within meaning of Paperwork Reduction Act and since plan of operations filing requirement lacked current control number as required by Act, holders of unpatented mining claims could not be convicted for failing to file plan of operations with the Forest Service. 44 U.S.C.A. §§ 3502(4, 11), 3512.

See publication Words and Phrases for other judicial constructions and definitions.


Michael G. Karnavas, Federal Public Defender, Anchorage, Alaska and William L. Choquette, Anchorage, Alaska, for defendants-appellants.


Mark R. Davis, Chief Asst. U. S Atty., Anchorage, Alaska, for plaintiff-Appellee.


Appeal from the United States District Court for the District of Alaska.


Before NELSON,** NORRIS and HALL, Circuit Judges.



Appellants Bruce Smith and Roberta Blair had an unpatented mining claim consisting of approximately twenty acres, located on lands open for mining in the 6,000,000 acre Chugach National Forest It is possible to drive a two wheel drive vehicle to within a short walking distance of the claim. The appellants obtained the claim in the winter of 1983 – 84 and recorded it on May 22,1984. On several occasions in May and June of 1984, personnel from the United States Forest Service visited the claim, observed the activities conducted there by the appellants, and had several discussions with the appellants and their colleagues. In the opinion of the Forest Service personnel, the appellants were using sound mining and environmental practices in working their claim.


The Forest Service personnel also believed, however, that the appellants’ activities were significant enough to require the appellants to file a Plan of Operations with the Forest Service pursuant to 36 C.F.R § 228.4 (1984) (unless otherwise noted, all citations in this opinion refer to the 1984 version of the Code of Federal Regulations). On several occasions the Forest Service personnel apprised the appellants of the Forest Service Plan of Operations filing requirement. On or about June 22, 1984, the District Ranger showed the appellants

** Dorothy W. Nelson, United States Cicuit Judge, U.S. Court of Appeals for the Ninth Circuit. was drawn to replace Judge Anderson, who

was on the original panel but died before this opinion was filed.