However, "the general presumption that some guilty purpose is required is not applicable to what have been termed public welfare offenses, which typically impose penalties to serve as an effective means of regulation." United States v. Unser, 165 F.3d 755 (10th Cir. 1999) (citing Morisette). The Tenth Circuit recently addressed this issue in the context of unlawful possession and operation of a motor vehicle within a National Forest Wilderness Area in violation of 16 U.S.C. § 551 and 36 C.F.R. § 261.16 (a). See id. The Court held that the violation was a public welfare offense and, thus, required no mens rea for conviction.

Holdridge, 282 F.2d at 310; (ii) United States v. Unser, 165 F.3d 755 (10th Cir. 1999)(“Unser”), which “adopted the two-prong approach of, first, determining Congressional intent in authorizing Forest Service regulations and, second, assuring due process compliance,” Elements Order at 4-5 (citing Unser, 165 F.3d at 762); and (iii) United States v. Ellison, 112 F.Supp.2d 1234 (D. Colo. 2000)(Babcock, C.J.), which applies the Unser interpretation of Holdridge in determining that a different subsection of the same regulation at issue in this case, 36 C.F.R. § 261.10(l), does not require an intent element, see United States v. Ellison, 112 F.Supp.2d. at 1237-38.

However, there are established exceptions to this general practice depending in part on the offense charged and the nature of the affirmative defense. See, e.g., United States v. Unser, 165 F.3d 755, 765 (10th Cir.) (holding that the defendant must prove a necessity defense to a charge of unlawful possession and operation of a motor vehicle in a National Forest Wilderness Area, in violation of 16 U.S.C. § 551, which Tenth Circuit concluded is a strict liability offense), cert. denied, 130 S.Ct. 40 (1999); United States v. Willis, 38 F.3d 170, 179 (5th Cir. 1994) (holding that the defendant must prove by a preponderance of the evidence the common law affirmative defense of duress to a § 924(c)(1) charge); United States v. Dominguez-Mestas, 929 F.2d 1379, 1384 (9th Cir. 1991) (deciding that the defendant has "the burden of proving duress by a preponderance of the evidence as a defense to a charge of unlawful importation of merchandise [in violation of 18 U.S.C. § 545]"). See, e.g., United States v. Alvarez, 755 F.2d 830, 842 (11th Cir. 1985) (in the context of a charge of assaulting a federal officer under 18 U.S.C. § 111, stating that absence of self-defense must be proven beyond a reasonable doub

The Government does not bear the burden of disproving that a defendant's knowing possession of a firearm was legally justified, unless that justification would negate an essential element of the offense. See United States v. Unser, 165 F.3d 755, 764-65 (10th Cir. 1999). And our Supreme Court has recently concluded that the defenses of duress and necessity do not negate a defendant's criminal state of mind when the applicable offense requires a defendant to have acted knowingly or willfully.

Because Shenise represented that he owned the BLM land; because he refused to consider an exchange of use permit; because he refused to fence in his horses; because of previous warnings, and because he become hostile and abusive when confronted, the court finds that the grazing trespasses on both dates charged was willful. Moreover, in United States v. Unser, 165 F.3d 755 (10th Cir. 1999), a panel of the Tenth Circuit analyzed a regulation promulgated by the Secretary of Agriculture applicable to National Forest lands which was silent on a mens rea element because it was a "public welfare offense." The court found a guilty purpose not required for public welfare offenses, relying upon the test set forth in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) and subsequent cases, which to date have dealt with Secretary of Agriculture regulations applicable to Forest Service lands.

” Courts may occasionally lose perspective about what such sums mean outside the courthouse walls. U.S. v. Unser (10th Cir. 1999) 165 F.3d 755, is an example. The Unser court ruled that a federal offense carrying a potential fine of $5,000 may be categorized as a strict liability offense with no culpable mental state because the potential fine is a relative pittance.

"The necessity defense may excuse an otherwise unlawful act if the defendant shows that `(1) there is no legal alternative to violating the law, (2) the harm to be prevented is imminent, and (3) a direct, causal relationship is reasonably anticipated to exist between defendant's action and the avoidance of harm.'" United States v. Unser, 165 F.3d 755, 764 (10th Cir. 1999) (quoting Meraz-Valeta, 26 F.3d at 995). The defense "`does not arise from a "choice" of several courses of action.

A necessity defense excuses an otherwise unlawful act when a defendant proves three elements: “‘(1) there is no legal alternative to violating the law, (2) the harm to be prevented is imminent, and (3) a direct, causal relationship is reasonably anticipated to exist between defendant's action and the avoidance of harm.'” United States v. Al-Rekabi, 454 F.3d 1113, 1121 (10th Cir. 2006) (quoting United States v. Unser, 165 F.3d 755, 764 (10th Cir. 1999)).

At the conclusion of the bench trial, this Court informed the parties that it would issue a Memorandum of Decision and Order containing specific findings of fact consistent with the provisions of Federal Rule of Criminal Procedure 23(c). (D. 89, pp. 247-48); see United States v. Unser, 165 F.3d 755, 760 n.3 (10th Cir. 1999).

As a preliminary matter, the court notes the parties' agreement that Defendant Merrill has been charged with a strict liability offense. In United States v. Unser, 165 F.3d 755 (10th Cir. 1999), the Tenth Circuit held that mens rea is not a required element for a "public welfare offense." The court in Unser concluded that proof of criminal intent is not required