United States v. Jan E. True Fred B. Roth Thomas E. O'Dell Timothy D. Moran Barry M. Geiken

946 F.2d 682 UNITED STATES of America, Plaintiff-Appellee, v. Jan E. TRUE; Fred B. Roth; Thomas E. O'Dell; Timothy D. Moran; Barry M. Geiken, Defendants-Appellants. No. 90-30067. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 10, 1990. Decided Oct. 7, 1991. David Atkin, Eugene, Or., for defendants-appellants. Jim Kauble, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before CANBY and TROTT, Circuit Judges, and LEGGE, * District Judge. CANBY, Circuit Judge: 1 Jan True and four other individuals appeal their convictions for being present in an area of a National Forest closed to the public. We find that the closure order on which their convictions were based was invalid for failure adequately to describe its scope, as required by Forest Service regulations. Accordingly, we reverse. FACTS AND PROCEEDINGS BELOW 2 Appellants were arrested in an area of the Siuslaw National Forest 1 which the National Forest Service maintains was closed pursuant to 36 C.F.R. § 261.50 . After a bench trial based on stipulated facts, appellants were convicted of "[b]eing in a Closure Area in…

Jan True and four other individuals appeal their convictions for being present in an area of a National Forest closed to the public. We find that the closure order on which their convictions were based was invalid for failure adequately to describe its scope, as required by Forest Service regulations. Accordingly, we reverse.

FACTS AND PROCEEDINGS BELOW

Appellants were arrested in an area of the Siuslaw National Forest 1 which the National Forest Service maintains was closed pursuant to 36 C.F.R. § 261.50 . After a bench trial based on stipulated facts, appellants were convicted of “[b]eing in a Closure Area in violation of 36 C.F.R. 261.-53(e).... ” That regulation states: “When provided in an order, it is prohibited to go into or be upon any area which is closed for the protection of: ... (e) Public health or safety.”

The order purportedly closing the area in question was issued by the Forest Supervisor of Siuslaw National Forest. That order provided as follows:

Attachment A described the closed area as follows:

There was no subsequent closure order or clarification by the Forest Supervisor supplementing this order. Each of the gates on the main roads leading into the area…

dissenting:

I respectfully dissent.

The majority concludes that the closure order was invalid because it did not adequately describe its scope, as required by the Forest Service regulations. The problem with the closure order is its description of the closed area. The majority holds that the Note at the end of the closure order, under which the application of the closure order to specific areas could be modified, so conditioned the order as to make it unenforceable. It is that holding with which I respectfully differ.

The closure order was issued pursuant to 36 C.F.R. § 261.50 (1990) by the national forest supervisor. The parties stipulated that the forest supervisor was vested with authority to do so. They also stipulated that the closure order was posted at the Waldport and Corvalis offices. The order described the area that was subject to the order. The Note was an attempt to moderate the impact of closing the entire area, by limiting it to only those areas required at a particular time for purposes of public health and safety. The Note was a disre-tional exercise of the power not to enforce the full scope of the closure order. I believe that the exercise of that discretion…