dissenting:
I agree with the majority that the district court properly ruled that Lavon R. Kent had no individual aboriginal right to the disputed parcel of land on Sandy Bar Creek. But I would reverse Kent’s convic*1447tion for unauthorized residential occupancy of national forest land for two reasons. First, the government failed to prove that Kent had the mens rea necessary to violate 36 C.F.R. § 261.10(b). Second, because the relevant statutes and regulations did not give Kent sufficient notice that her conduct might have been unlawful, due process will not permit her conviction to stand.1 I therefore respectfully dissent.
I
The information charging Kent with violating 16 U.S.C. § 551 and 36 C.F.R. § 261.-10(b) alleged that Kent “did knowingly take possession of, occupy and otherwise use National Forest System lands for residential purposes without a special-use authorization, or as otherwise authorized by Federal law or regulation....” (Emphasis added).2 “Knowingly” requires the government to prove as an element of the offense that Kent “voluntarily and intentionally and not by accident or mistake” engaged in the prohibited conduct. United States v. Jewell, 532 F.2d 697, 699 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); 1 Devitt and Blackmar, Federal Jury Practice and Instructions, § 14.04 (3d ed. 1977). In the present case, unresolved ambiguities in the law (discussed below) relating to allotments of national forest system land to Indians preclude a finding that Kent knew her occupancy of the site at Sandy Bar Creek was not “authorized by Federal law or regulation.” 36 C.F.R. § 261.10(b).
Kent’s certificate of eligibility, issued by the Department of the Interior, states that Kent is eligible “to receive land ... in a national forest under Section 31 of the [Forest Allotment Act].” Section 31 of the Forest Allotment Act, 25 U.S.C. § 337,3 states that the government is authorized to make allotments “to any Indian occupying, living on, or having improvements on land included within any such national forest_” (Emphasis added). This language contemplates that an Indian will occupy land within a national forest before applying for an allotment.
Despite the plain language of the statute, the government interprets the Forest Allotment Act to mean that occupancy of national forest land before applying for an allotment is prohibited by 16 U.S.C. § 551 and 36 C.F.R. § 261.10(b) unless the Indian can trace continuous ancestral occupancy of the site back to 1910. According to the government’s interpretation, because Kent cannot trace continuous familial occupancy of the site in question back to 1910, she may not occupy the land before receiving an allotment, even if she is ultimately entitled to one. The government makes these *1448arguments even though the Forest Allotment Act and related regulations do not state that continuous occupancy is required and even though Kent has been certified as eligible to receive an allotment of land in a national forest.
No reported cases have interpreted 25 U.S.C. § 337 to determine which Indians are in fact entitled to an allotment or whether occupancy before applying for an allotment is allowed or required by the statute. It is not necessary to decide these issues here; rather it is sufficient to note that they are open questions. Given the current unsettled state of the law and the information available to Kent, she could reasonably believe that she was permitted by federal law to settle on the land at Sandy Bar Creek. The stipulated facts in this case and the government’s unsupported interpretation of the applicable laws cannot sustain a finding beyond a reasonable doubt that Kent had the requisite mens rea to be convicted of unauthorized residential occupancy of national forest system land.
In supplemental briefing, the government argues that 36 C.F.R. § 261.10(b) sets forth a strict liability offense, despite the fact that the information alleged that the offense was “knowingly” committed. The government bases its argument on the lack of an explicit mens rea requirement in section 261.10(b). Criminal offenses requiring no mens rea, however, are generally disfavored. Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985). “[C]ertainly far more than the simple omission of the appropriate [mens rea] from the statutory definition is necessary to justify dispensing with an intent requirement_” Id. (quoting United States v. United States Gypsum Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854 (1978)).
To avoid a construction of the regulation that would “criminalize a broad range of apparently innocent conduct,” Liparota, 471 U.S. at 426, 105 S.Ct. at 2088, I read section 261.10(b) to “require[] a showing that the defendant knew [her] conduct to be unauthorized” by the regulation before criminal punishment is imposed. Id. at 425, 105 S.Ct. at 2088; see also United States v. Nofziger, 878 F.2d 442, 454 (D.C.Cir.) (interpreting an ambiguous subsection of the Ethics in Government Act as requiring the government to demonstrate that the defendant had knowledge of the facts that made his conduct criminal), cert. denied, 493 U.S. 1003, 110 S.Ct. 564, 107 L.Ed.2d 559 (1989); United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir.1988) (rule of lenity requires that “[w]here the language of a penal statute admits of more than one interpretation, courts should choose least harsh construction”).
I disagree with the majority’s contention that section 261.10(b) requires application of a strict liability standard because it is a “public welfare offense,” i.e., one which “render[s] criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community’s health or safety.” Liparota, 471 U.S. at 433, 105 S.Ct. at 2092. Occupation of Forest Service lands is not an inherently dangerous activity, and the government has not submitted any evidence that Kent’s occupancy endangered the public.
The majority concludes that a Ninth Circuit case, which construed a different Forest Service regulation (26 C.F.R. § 261.-6(a)), controls this case. See United States v. Wilson, 438 F.2d 525 (9th Cir.1971). I disagree. In Wilson, we held that the Forest Service’s regulation prohibiting the cutting of timber in the national forests is a strict liability offense. The cutting of timber, however, is a “public welfare offense” that causes irreparable harm to our national forests. On the other hand, a mere occupier of land like Kent does not “seriously threaten the community’s health or safety” and can be ejected in a civil action.
II
Even if section 261.10(b) is interpreted as a strict liability offense, I believe Kent’s conviction cannot stand. As applied to Kent, the relevant statutes and regulations did not provide sufficient notice that her occupancy of the site in question may be *1449illegal. Due process requires that a penal statute give fair warning of what the law “commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). “A defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the rule in question.” United States v. Hogue, 752 F.2d 1503, 1504 (9th Cir.1985). Cf. Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743 (1979) (Supreme Court’s “long-established practice of resolving questions concerning the ambit of a criminal statute in favor of lenity ... is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited”) (citations omitted) (emphasis added).
Section 261.10(b) in clear language exempts anyone “otherwise authorized under Federal law” from the prohibition against occupying national forest land for residential purposes. As discussed above, this exception may reasonably be understood to apply to Kent. She has a certificate of eligibility which states that she is eligible for an allotment of land in a national forest. Moreover, the plain language of the Forest Allotment Act encourages Kent to occupy the site as a condition to obtaining an allotment of national forest land.
Neither the allotment statute nor the corresponding regulations state that there is a time limit within which an Indian must apply for an allotment after receiving a certificate of eligibility. Nor do they state that continuous ancestral occupancy of the site since 1910 is required before an Indian is eligible to receive an allotment of land in a national forest. I find that the confused and contradictory information available to Kent, statutory and otherwise, failed to provide her with sufficient notice that her conduct might be criminally unlawful. Thus, her occupancy of Sandy Bar Creek cannot be used as the basis for a criminal prosecution under 16 U.S.C. § 551 and 36 C.F.R. § 261.10(b).
Ill
The underlying questions regarding the rights conferred by Kent’s certificate of eligibility and the meaning of the Forest Allotment Act should be resolved before Kent is held criminally responsible for unauthorized residential occupancy. The present criminal prosecution is essentially a land dispute between Kent and the Forest Service. Such a dispute should be adjudicated as a civil matter, where the meaning of the relevant statutes and regulations can be fully examined and where Kent’s ultimate right to occupy the land can be determined. See United States v. Miller, 659 F.2d 1029, 1030 (10th Cir.1981) (“criminal process should not be used for the purposes of settling a land dispute, and upon that basis we reverse the conviction”); United States v. Esposito, 754 F.2d 521, 524 (4th Cir.1985) (“civil rather than criminal proceedings are appropriate to adjudicate disputes between holdover tenants and the government”).
The government indicated at oral argument that it knew of no other reported case in which an Indian has been criminally prosecuted for violating 36 C.F.R. § 261.-10(b). Given this history, one wonders why the government instituted criminal proceedings in this case, especially since less drastic civil measures were available. See, e.g., United States v. Langley, 587 F.Supp. 1258, 1265 (E.D.Cal.1984) (Forest Service regulations may be enforced by injunction, as well as by criminal action). If Kent now applies for an allotment, the issue can be resolved in those proceedings. Alternatively, if she fails to apply for an allotment, the government can bring a civil action that will lead to a proper resolution of the underlying land dispute.
. "The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). Although she did not raise these issues before the trial court, to “prevent a miscarriage of justice,” United States v. Greger, 716 F.2d 1275, 1277 (9th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984), I would exercise our discretion to address Kent’s fully-briefed, legal arguments that (1) 36 C.F.R. § 261.10(b) includes a mens rea element and (2) the applicable statutes and regulations provided insufficient notice that her conduct was prohibited.
. The information thus specified the element of criminal intent that was not supplied by 36 C.F.R. § 261.10(b). See United States v. Morrison, 536 F.2d 286, 288 (9th Cir.1976) (indictment must specify intent if statute fails to do so).
.25 U.S.C. § 337 states in full:
The Secretary of the Interior is authorized, in his discretion, to make allotments within the national forests in conformity with the general allotment laws, to any Indian occupying, living on, or having improvements on land included within any such national forest who is not entitled to an allotment on any existing Indian reservation, or for whose tribe no reservation has been provided, or whose reservation was not sufficient to afford an allotment to each member thereof. All applications for allotments under the provisions of this section shall be submitted to the Secretary of Agriculture who shall determine whether the lands applied for are more valuable for agricultural or grazing purposes than for the timber found thereon: and if it be found that the lands applied for are more valuable for agricultural or grazing purposes, then the Secretary of the Interior shall cause allotment to be made as herein provided.
(Emphasis added).