VERNON STRATTON, PETITIONER V. UNITED STATES OF AMERICA No. 90-6624 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 2-4) is unreported. JURISDICTION The judgment of the court of appeals was entered on September 28, 1990. Pet. App. 2-4. A petition for rehearing was denied on November 7, 1990. Pet. App. 9. The petition for a writ of certiorari was filed on December 26, 1990. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the jury's determination that petitioner caused the unauthorized destruction of surface resources within the Black Hills National Forest was supported by sufficient evidence. 2. Whether the jury's determination that petitioner's actions were willful was supported by sufficient evidence. 3. Whether the Due Process Clause permits prosecution of petitioner for willfully destroying federal property through unauthorized mining operations notwithstanding petitioner's claim that statutes and regulations governing such mining operations could reasonably be read to allow his actions. 4. Whether the district court properly measured the loss caused by petitioner's activities for purposes of determining the severity of his offense under Sentencing Guideline 2B1.1(b). STATEMENT On October 4, 1989, petitioner Vernon Stratton was convicted by a federal jury of violating the federal malicious mischief statute, 18 U.S.C. 1361. /1/ Petitioner was found guilty of willfully damaging the surface resources of the Black Hills National Forest through unauthorized mining operations. The district court sentenced petitioner to fifteen months' imprisonment to be followed by two years' supervised release. Pet. App. 6-7. The district court also directed petitioner to pay $27,000 for restoration of the damaged area or, in the alternative, to restore the area to the satisfaction of the Forest Service. Pet. App. 7. 1. The statute under which petitioner was convicted, 18 U.S.C. 1361, provides for the imposition of a fine and term of imprisonment on anyone who "willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof * * *." Willfulness, in this context, has been interpreted as "the intent on the part of the accused to commit the proscribed acts with knowledge that they were volating the statute." United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970). Conduct that injures surface resources within a national forest does not violate 18 U.S.C. 1361 if it is undertaken with the authorization of the United States Forest Service. The Forest Service promulgates regulations governing private uses of the national forests under the Organic Administration Act of 1897, 16 U.S.C. 478 and 551. See California Coastal Commission v. Granite Rock Co., 480 U.S. 572, 582 (1987). In the case of mining, Forest Service regulations must accommodate certain rights conferred by federal mining law. The Mining Act of 1872, 30 U.S.C. 22 et seq., provides that mineral deposits on public lands, except deposits that are specifically withdrawn from mining, "shall be free and open to exploration and purchase." 30 U.S.C. 22. The Organic Administration Act, therefore, empowers the Forest Service to manage surface resources, but not the underlying mineral resources. /2/ See 36 C.F.R. 228.1; United States v. Goldfield Deep Mines Co. of Nevada, 644 F.2d 1307, 1309 (9th Cir. 1981), cert. denied, 455 U.S. 907 (1982); see also Granite Rock, 480 U.S. at 582. To meet its responsibility to prevent waste of the surface resources of the national forests without unduly inhibiting mineral exploitation, the Forest Service requires miners to conform their activities to site-specific mine operating plans. See 36 C.F.R. 228. Under these regulations, mining operations on Forest Service land that are likely to cause a "significant disturbance of surface resources" must conform to an approved operating plan. 36 C.F.R. 228.4(a). Before beginning work of this nature, a miner must submit a proposed plan that describes the scope of the intended activity and the measures that will be implemented to minimize environmental harms. 36 C.F.R. 228.4(c), 228.8; see United States v. Brunskill, 792 F.2d 938, 940 (9th Cir. 1986) (affirming injunction requiring removal of buildings and equipment for failure to obtain operating plan); Goldfield Deep Mines, 644 F.2d at 1307 (affirming injunction against operations on unpatented national forest claim until miner complied with operating plan regulations). After a final operating plan has been approved, operations must conform to its terms. 36 C.F.R. 228.4(b), 228.5(a); see United States v. Doremus, 888 F.2d 630 (9th Cir. 1989) (affirming misdemeanor conviction for violating terms of operating permit), cert. denied, 111 S. Ct. 751 (1991). /3/ The operating plan regulations provide two procedures for modifying plans. "(I)f the development of a plan for an entire operation is not possible at the time of preparation of a plan," an operator may file an initial plan describing operations "to the degree reasonably foreseeable at the time." This initial plan is then augmented by "a supplemental plan or plans whenever it is proposed to undertake any significant surface disturbance not covered by the initial plan." 36 C.F.R. 228.4(d). A separate mechanism for modifying plans comes into play when mining operations cause "unforeseen significant disturbance of surface resources." In this circumstance, the Forest Service may require an operator, provided certain conditions are met, to submit a revised plan setting forth "reasonable means" of minimizing the unforeseen disturbances. 36 C.F.R. 228.4(e). 2. In February 1987, North American Accounts, Inc., leased the rights to three unpatented mining claims, including the Big Whale Claim, located in the Custer Ranger District of the Black Hills National Forest in South Dakota, from Pacer Corporation. Petitioner, who served as the President, Treasurer, Director, and Registered Agent of North American Accounts, signed the lease on behalf of his company. See Gov't C.A. Br. App. 8, 15. Petitioner and one of his employees had dealt repeatedly with the ranger for the Custer District in connection with other North American Accounts operations. Tr. 26-27. The lease authorized North American Accounts to mine, remove and sell any mineral found on the Big Whale Claim. Gov't C.A. Br. App. 5. It called for North American Accounts to sell its production of certain ores to Pacer at "mutually negotiated" prices and for North American Accounts to pay Pacer specified royalties. The lease also obligated North American Accounts to "apply for and pay for any permits and * * * post any bond required by law to secure the Reclamation of the Lands," and "to abide by all mining laws and regulations of the United States of America and the State of South Dakota. Gov't C.A. Br. App. 6, 8. The lease provided that North American Accounts and its employees would be "in no sense the employees" or agents of Pacer. Gov't C.A. Br. App. 6. North American Accounts did not submit an operating plan to the Forest Service. However, two years prior to the execution of the lease, in September 1985, Pacer had submitted an operating plan for the Big Whale Claim and obtained approval from the Forest Service. Tr. 11, 41; Pet. C.A. Br. App. 1-9. That operating plan called for the excavation of a pit approximately 60 feet long, 40 feet wide, and 20 to 40 feet deep. See Tr. 15; Pet. C.A. Br. App. 6. Spoil from the site was to be deposited at a small adjacent dump site, depicted on the plan's hand-drawn map as a bank roughly 100 feet long and 10 to 20 feet high. The map also portrayed a second mining site, the "Old Mine Site," which contained an existing excavation approximately 100 feet long, 30 feet wide, and up to 30 feet deep. The plan did not call for additional mining at this site. Tr. 16; Pet. C.A. Br. App. 6. On March 8, 1988, Forest Service inspectors discovered Bill Wagner, an employee of North American Accounts, conducting unauthorized mining operations at the Big Whale Claim. Tr. 16, 167-168, 175-177. The inspectors found excavations at two unauthorized locations and a large, eroding mound of mining spoil. The larger excavation site, a substantial enlargement of the Old Mine Site shown on the operating plan sketch, was now approximately 250 feet long, 60 feet wide and 100 feet in depth. Tr. 87; Pet. C.A. Br. App. 15. Spoil from this excavation had been deposited at a dump site that was larger than and entirely separate from the site depicted in the Pacer operating plan. Tr. 91. Detailed measurements later showed that operations at the Big Whale Claim had destroyed surface resources over an area of 4.6 acres, more than twice the area authorized in the Pacer operating plan. Tr. 107, 120. Only about one acre of the disturbed area was within the area designated for mining operations in the 1985 plan. Tr. 120. The Forest Service notified Pacer Corporation of the violations and directed Pacer to reclaim the areas where unauthorized disturbance had occurred. Tr. 25, 77. Pacer submitted an amended operating plan on March 21, 1988. Tr. 25, 62-63; Pet. C.A. Br. App. 13-15. Mining operations on the Big Whale ceased shortly after this amended plan was submitted. Tr. 23. In November 1988, Pacer showed the 1987 lease to the Forest Service, pointing out North American Accounts' agreement to assume responsibility for permits and reclamation. At this time, Pacer informed the Forest Service that it would not accept responsibility for North American Accounts' unauthorized mining. Tr. 25, 87-88. The Forest Service interpreted this notification as an effective withdrawal of Pacer's amended operating plan. Tr. 87; Gov't Exh. 21. Following these communications with Pacer, Forest Service employees had several conversations with petitioner about the future of the Big Whale Claim. In three of these conversations, District Ranger Frank Cross and petitioner discussed operating plan regulations in general and the controversy surrounding operations at the Big Whale Claim in particular. Tr. 18-21. Petitioner, according to the District Ranger, indicated that he was determined "to fight the Forest Service on the Big Whale thing." Tr. 19. Cross also talked to petitioner about reclamation requirements for the Big Whale Claim. Cross testified that he and petitioner "didn't see eye to eye as far as what was needed to reclaim the site." Tr. 23. In addition, a Forest Service resource protection specialist for the district in question testified that petitioner personally "(came) in and discussed filing an operating plan" for resuming operations on the Big Whale Claim. Tr. 123. 3. At trial the government introduced, in addition to the preceding evidence of petitioner's involvement with the Big Whale Claim, evidence of two previous incidents, one in 1981 and one in 1986, in which petitioner was charged with damaging natural forest resources without authorization. See Tr. 142-144, 169-171, 179-180. The 1981 incident, which involved illegal operations at the Tip Top Mine in the Black Hills National Forest, resulted in petitioner's misdemeanor conviction for violating a Forest Service regulation. See 36 C.F.R. 228.9(a); 16 U.S.C. 551; see also supra note 3. At the completion of the prosecution's case, petitioner moved for a judgment of acquittal, arguing, among other things, that the prosecution's evidence was insufficient to go to the jury on questions of petitioner's personal involvement and intent. Tr. 193-197. Following the district court's denial of this motion (Tr. 199-200), the defense elected not to call any witnesses and the case was submitted to the jury. The jury returned its verdict of guilty on October 4, 1989. Tr. 264-266. Petitioner then filed a motion for judgment notwithstanding the verdict, which was denied. Pet. C.A. Br. App. 1-2. The district court convened a sentencing hearing on December 11, 1989. At the conclusion of that hearing, the district court sentenced petitioner to 15 months' imprisonment, the minimum term in the range of sentences provided by the Sentencing Guidelines based on the severity of petitioner's offense and his criminal history. That sentence is to be followed by two years' supervised release. See Sentencing Transcript (hereafter "S. Tr.") 71-83; Pet. App. 5-8. The district court also directed petitioner to pay restitution in the amount of $27,000, or, in the alternative, to restore the area that was illegally disturbed to the Forest Service's satisfaction. S. Tr. 83; Pet. App. 7. 4. Petitioner appealed both his conviction and his sentence. Petitioner argued that the government had presented insufficient evidence of his involvement in North American Accounts' operations at the Big Whale Claim and his intent to cause unauthorized damage to the national forest, and that malicious mischief prosecutions for exceeding the terms of an operating plan are barred by the Due Process Clause. He also argued that the district court had erred in valuing the government's loss at $27,000 for purposes of measuring the severity of his offense under the Sentencing Guidelines. On September 28, 1990, the court of appeals rejected each of these challenges in an unpublished opinion. Pet. App. 2-4. ARGUMENT 1. Petitioner incorrectly perceives a conflict between the Eighth Circuit's determination that there was sufficient evidence of his personal involvement in the unauthorized destruction of government property by North American Accounts and other appellate decisions concerning the proof of personal involvement by corporate officials. He relies primarily (Pet. 8-10) on two prior Eighth Circuit cases, United States v. Richmond, 700 F.2d 1183 (8th Cir. 1983), and United States v. Wrehe, 628 F.2d 1079 (8th Cir. 1980). Even if petitioner were correct that Richmond and Wrehe conflict with the Eighth Circuit's decision in this case, an intra-circuit conflict would not warrant further review by this Court. Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam). In any event, the Eighth Circuit's fact-bound determination that there was sufficient evidence for conviction in this case does not conflict with its prior decisions in Richmond and Wrehe. In Richmond, the court of appeals overturned a conviction of two brothers for conspiring to defraud the federal government, on the ground that the record in that case showed no evidence that the two defendants were "significantly involved in the firm's billing process" -- where the fraud had been carried out -- and strong support for the proposition that each brother was responsible for "a separate aspect of the business and that there was very little overlap." 700 F.2d at 1191. The court rejected the attempt to establish a conspiracy based on "familial or business association without more." Id. at 1190. Wrehe overturned the conspiracy, mail fraud, and wire fraud convictions of a bookkeeper in a loan brokerage business, who was also a stockholder and the firm's Secretary-Treasurer. The court found "no evidence that (the bookkeeper) played any part in substantive decisionmaking" (628 F.2d at 1084), no evidence that he had taken action that could have foreseeably resulted in fraudulent uses of the mails (id. at 1085), and no evidence beyond mere association for the conspiracy conviction. Ibid. The proof against petitioner was significantly stronger than the proof that was adduced against the defendants whose convictions were overturned in Richardson and Wrehe. As President, Treasurer, Director, and Registered Agent of North American Accounts, petitioner occupied a far more prominent position than the Richardson and Wrehe defendants occupied in their corporations. Moreover, the prosecution here, contrary to petitioner's account (Pet. 7) of the proceedings below, did not rely solely on petitioner's position within North American Accounts. The prosecution showed that petitioner signed the lease under which North American Accounts gained access to the Big Whale Claim and expressly assumed responsibility for complying with all permit and reclamation requirements. Gov't C.A. Br. App. 7-8. There was in addition some direct testimony from the government's chief witness that petitioner was mining at the Big Whale Mine at the time that the illegal mining took place. /4/ Further, there was testimony that the District Ranger for the Custer District had dealt with petitioner previously in connection with other North American Accounts operations (Tr. 26-27), and that petitioner initiated discussions with the Forest Service about reclamation requirements at the Big Whale Claim and about the possibility of North American Accounts' continuing operations under a revised operating plan. Tr. 18-21, 123. Richardson and Wrehe recite no analogous evidence of personal involvement on the part of the defendants in those two cases. The evidence here, though circumstantial, was adequate as a matter of law to sustain petitioner's conviction. See United States v. Younger, 906 F.2d 615, 619 (11th Cir. 1990); see also Glasser v. United States, 315 U.S. 60, 80-81 (1942) (existence of conspiracy may be proven by circumstantial evidence). /5/ 2. Petitioner also contends (Pet. 12-16) that the evidence was insufficient to support the jury's verdict on the issue of whether his destruction of surface resources was "willful." He asserts that even if his actions caused unauthorized surface damage, he acted in the reasonable belief that "when mining occurred beyond an operating plan, the situation would be 'resolved' with the Forest Service." Pet. 14. This challenge to the jury's finding of willfulness disregards the prosecution's evidence of petitioner's past history of violating Forest Service regulations, as well as petitioner's own failure to make any showing at trial that he actually relied on the implausible reading of the regulations that he now advances. /6/ In any event, it was not unreasonable for the jury to reject petitioner's hypothetical account of how he might have entertained the notion that operating plans are nothing more than non-binding guidelines. 3. Petitioner also asserts (Pet. 16-21) that in view of miners' "broad statutory and regulatory authorization to conduct mining operations on public land" (Pet. 19), 18 U.S.C. 1361 fails to provide fair notice that deviations from operating plans are illegal. Petitioner's claim is based on a plain misreading of the Forest Service regulations. The Mining Act of 1872 gives miners rights over "the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth," but only "so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States." 30 U.S.C. 26. Relevant laws of the United States include Forest Service regulations, validly promulgated under 16 U.S.C. 478, that require miners to obtain and adhere to operating plans as a condition of engaging in operations that are "likely to cause significant disturbance of surface resources." 36 C.F.R. 228.3(a); see 16 U.S.C. 478. a. Citing the direction that operating plans identify the "approximate location and size of areas where surface resources will be disturbed" (36 C.F.R. 228.4(c)(3)), petitioner asserts (Pet. 18-19) that as long as an operating plan authorizes some form of mining activity on the claim in question, a miner cannot be prosecuted for exceeding the scope of operations described in the plan. However, Subsection 228.4(c), while referring to "approximate" locations, also calls for "(a) map or sketch showing information sufficient to locate the proposed area of operation on the ground" (36 C.F.R. 228.4(c)(2)) and "(i)nformation sufficient to describe or identify the type of operations proposed and how they would be conducted" (id. at 228.4(c)(3)). A separate provision of the regulations states unequivocally that "(o)perations shall be conducted in accordance with an approved plan of operations." Id. at 228.5(a) (emphasis supplied). These provisions undermine petitioner's attempt to assign mere precatory force to operating plans. Moreover, the reference to approximation requires, at most, a measure of leniency toward technical or de minimis deviations from operating plan descriptions. Petitioner obtains no benefit from this kind of limitation, because his excavation and dumping, which covered more than twice the area of the excavation and dumping depicted in the 1985 plan, cannot be said to have "approximated" the operations described in the plan. b. Petitioner is also incorrect in suggesting (Pet. 19) that Subsection 228.7(b) contributes to the supposed confusion over the legality of disregarding operating plan terms. Subsection 228.7(b) provides that if "an operator fails to comply with the regulations or his approved plan of operations and the noncompliance is unnecessarily or unreasonably causing injury, loss or damage to surface resources," the Forest Service will serve the operator with a notice of noncompliance that describes the violation, the action required to comply, and the time within which compliance is to be achieved. Nothing in this provision purports to excuse willful deviations from operating plans or to preclude the United States from prosecuting such violations under 18 U.S.C. 1361. Cf. Doremus, 888 F.2d at 635 (rejecting argument that Subsection 228.7(b) limits enforcement to cases of departures from plans that "unnecessarily or unreasonably caus(e) damage"). c. Finally, petitioner's position (Pet. 19) that the operating plan regulations permit wholesale departures from operating plans as "unforeseen disturbances" under Subsection 228.4(e) is also untenable. The Forest Service's authority to request modification of an operating plan in light of unforeseen disturbances cannot be viewed as a guarantee, express or implied, that willful departures from operating plan terms will be condoned. Moreover, the regulations contain separate provisions for intentional changes initiated by miners. Subsection 228.4(d) requires the operator to "file a supplemental plan or plans whenever it is proposed to undertake any significant disturbance not covered by the initial plan." 4. Petitioner also challenges (Pet. 21-24) the manner in which the district court applied the Sentencing Guidelines to arrive at his sentence. He contends that the district court improperly increased the severity of his offense by accepting the government's overstatement of the harm that his offense caused. The district court adopted $27,000, the government's estimate of the cost of rehabilitating the Big Whale Claim, as a valid measure of the government's "loss" under Sentencing Guideline 2B1.1. See S. Tr. 72-75. Petitioner asserts that this approach to the measurement of the loss is precluded by the Sentencing Commission's commentary to the Guideline in question, which states that in cases of damaged property the loss "is the cost of repairs, not to exceed the loss had the property been destroyed." Sentencing Guideline 2B1.1(b), application note 2. /7/ Petitioner's argument rests on misconceptions about both the import and the meaning of the commentary in question. Commentaries that accompany a Sentencing Guideline do not impose binding standards. In Sentencing Guideline 1B1.7, the Sentencing Commission itself expressly addresses the significance of its own commentary. This Guideline states that a court's failure to follow a commentary that "interpret(s) a guideline or explain(s) how it is to be applied * * * could constitute an incorrect application of the guidelines." Ibid. (emphasis supplied). The commentary to this Guideline elaborates as follows: In stating that failure to follow certain commentary "could constitute an incorrect application of the guidelines," the Commission simply means that in seeking to understand the meaning of the guidelines, courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of the drafter. Sentencing Guideline 1B1.7, commentary; see, e.g., United States v. Watt, 910 F.2d 587, 591 (9th Cir. 1990) ("the application notes have the force of legislative history"). The district court's approach to the commentary on measuring loss was fully consistent with the Sentencing Commission's instructions on the significance to be accorded such commentary. The district court determined that in drafting application note 2 to Sentencing Guideline 2B1.1 the Commission did not consider the case of damage to surface resources in a national forest. S. Tr. 72-73. The terms of the application note support this view. One does not normally speak of "repairing" land, and land cannot be "destroyed." Moreover, the market value of a five-acre tract of national forest land represents an inadequate measure of the loss to the public if incomplete restoration efforts leave behind erosion, safety, and aesthetic problems that degrade the utility of nearby areas as well. Thus, the district court had sound reasons for determining that the application note did not control the situation at hand. Treating this commentary as the equivalent of policy guidance or legislative history, the district court properly determined the commentary to be inapposite and adopted the cost of restoration as a reasonable measure of the loss caused by unauthorized damage to the surface resources of a national forest. S. Tr. 73-74. Even if petitioner were correct in regarding the commentary as binding authority, the district court's valuation of the loss caused by petitioner's offense still would stand. As the court of appeals indicated (Pet. App. 4), the district court's assessment of the public's loss can be reconciled with application note 2. Contrary to petitioner's position, the application note does not insist on fair market value as the only measure of loss in the event of total destruction (which serves as the ceiling for losses in the event of damage). While the loss for the destruction of property is "(o)rdinarily * * * the fair market value of the particular property at issue," it is recognized that this may be "inadequate to measure the harm of the victim." Thus, the commentary acknowledges that courts may sometimes be required to "measure loss in some other way, such as reasonable replacement cost to the victim." Ibid. The measure of loss adopted by the district court is consistent with the flexibility permitted by the application note. /8/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General RICHARD B. STEWART Assistant Attorney General MARTIN W. MATZEN JEFFREY P. KEHNE Attorneys FEBRUARY 1991 /1/ The indictment in this case, which was filed on March 29, 1989, charged petitioner with two counts of violating 18 U.S.C. 1361. The second count, which concerned activities on a separate mining claim, was dismissed without prejudice at the government's request on September 21, 1989. /2/ The management of national forest mineral resources is the responsibility of the Department of Interior's Bureau of Land Management. The principal regulations governing the location and development of hardrock minerals on public land appear at 43 C.F.R. 3830, 3860, and 3870. /3/ In Doremus, two miners received misdemeanor convictions under 16 U.S.C. 551 for conducting mining operations outside the terms of their operating plan. Each was convicted of violating regulatory prohibitions against "(d)amaging any natural feature or other property of the United States" without authorization (see 36 C.F.R. 261.1(b), 261.9(a)) and against "(v)iolating any term or condition of a special-use authorization, contract or approved operating plan" (see 36 C.F.R. 261.10(k)). /4/ For example, Forest Service Agent Cross testified that "North American accounts, Mr. Stratton" were doing the mining in March, 1988. Tr. 28. In response to questions from the judge concerning whether "Mr. Stratton was operating under the Pacer plan," Agent Cross testified that the agents "knew he was operating, but whether he was operating under their plan or not, we really weren't sure." Tr. 84. In the same exchange, Agent Cross testified that "Pacer told us that he (Mr. Stratton) was working for them." Ibid. Agent Cross also responded affirmatively to the court's inquiries as to whether the Forest Service "would have negotiated with (Mr. Stratton)" concerning an amended plan (Tr. 85) and whether "prior to the indictment (Agent Cross) knew that Mr. Stratton was proceeding under the Pacer plan." Tr. 86. Agent Cross did testify on cross-examination that he "ha(d) no idea" whether Mr. Stratton "was (mining the Big Whale Mine) personally and individually." Tr. 58. The jury, however, reasonably could have taken that answer to establish only that Cross did not know whether Mr. Stratton was physically operating the machinery at the mine site, and the testimony is thus irrelevant to the question whether Mr. Stratton had directed the illegal mining and profited from its proceeds. /5/ Petitioner asserts (Pet. 10-12) that the Eighth Circuit improperly relied on his 1981 conviction for mining without an operating plan and on his 1986 dispute with the Forest Service, which also involved violations of operating plan requirements, as evidence of his involvement in the violations at the Big Whale Claim. The Eighth Circuit's opinion does refer to the 1981 and 1986 incidents (Pet. App. 2), but this reference comes immediately after the court's statement that there was "ample evidence that the defendant knowingly, actively, and intentionally participated in unauthorized mining activities." Pet. App. 3 (emphasis supplied). The opinion goes on to describe some of the circumstantial evidence summarized above of petitioner's involvement in operations on the Big Whale Claim. Ibid. There is no indication that the court of appeals viewed petitioner's prior acts as evidence of his active participation, rather than merely as evidence of his state of mind when he participated. Moreover, even if the opinion had improperly relied on petitioner's prior bad acts, the court of appeals' mistake would not affect the validity of the jury's verdict. /6/ Petitioner's failure to provide evidentiary support for this defense may be attributable to the inherent difficulty of arguing to a jury both that he did not destroy government property and that if he did he acted in the sincere belief that the destruction was legal. Cf. Mathews v. United States, 485 U.S. 58, 65-66 (1988). /7/ The application note upon which petitioner relies became effective on June 15, 1988, three months after the violations at the Big Whale Claim were discovered and brought to a halt. The original commentary to Guideline 2B1.1 stated that "(l)oss is to be based upon replacement cost to the victim or market value of the property, whichever is greater." Sentencing Guideline 2B1.1, application note 2 (Oct. 1987); see United States v. Scroggins, 880 F.2d 1204, 1214-1215 (11th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990). /8/ Petitioner also suggests that $27,000 is an unreasonably high estimate of reclamation costs since reclamation bonds generally were no higher than $1,000 per acre when petitioner's unauthorized operations occurred. Pet. 22; see Tr. 120-121. This objection, however, goes to the district court's resolution of a disputed factual issue. Under 18 U.S.C. 3742(e), the courts of appeals are bound to "accept the findings of fact of the district court(s) unless they are clearly erroneous" in appeals under the Sentencing Guidelines. See, e.g., United States v. Mejia-Orosco, 867 F.2d 216, 219-221 (5th Cir.), cert. denied, 109 S. Ct. 3257 (1989). In any event, it should not be surprising that the cost of rehabilitating a site that was mined without regard to operating plan limitations can greatly exceed the amount that ordinarily would be required as a reclamation bond for mining expected to take place in compliance with an operating plan. There was no clear error in the district court's resolution of this factual issue.