http://laws.findlaw.com/9th/9830158.html

U.S. 9th Circuit Court of Appeals

USA v GRIEFEN, ET AL
9830158

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-30158
v.
D.C. No.
ZACHERY K. GRIEFEN; FORREST
CR-96-00076-EJL
GRAY; MICHAEL BOWERSOX;
RACHAEL LYNN WARNS; SEAN                              OPINION
ETHAN GALE,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding

Argued and Submitted
July 14, 1999--Coeur d'Alene, Idaho

Filed January 12, 2000

Before: Edward Leavy, Stephen S. Trott, and
Thomas G. Nelson, Circuit Judges.

Opinion by Judge Trott

_________________________________________________________________

COUNSEL

Gerald R. Smith, Federal Defenders of Eastern Washington
and Idaho, Spokane, Washington, for the defendants-
appellants.

Barry McHugh, Assistant United States Attorney, Coeur d'
Alene, Idaho, for the plaintiff-appellee.

OPINION

TROTT, Circuit Judge:

The Nez Perce National Forest is located in north central
Idaho east of Grangeville. It is part of our cherished national
forest system and managed by the United States Forest Ser-
vice through its Red River Ranger District. In accordance
with government contracts, the validity of which are not
involved in this case, logging and associated road building
activities were scheduled to occur in the Forest during 1996.
Those approved activities were part of the Jack Timber Sale
and to be conducted by Shearer Lumber Products and High-
land Enterprises. The removal of forest trees -- or logging --
was the primary purpose of this project, and the construction
of roads was to facilitate that purpose. Highland's contract
called for new road construction at the end of the existing
Jack Creek road system to access the trees that were to be har-
vested.

Because of a wet spring and adverse soil conditions, how-
ever, Highland was not able to attend to its contractual road
building responsibilities until late in the summer. When the
time came to begin construction, and because of previous
activities of persons opposed to road building and logging in
the Nez Perce Forest, on July 15, 1996, officials of the Forest
Service flew over the area to observe the end of the roadway
where the new Jack Creek construction was to take place.
They observed recent damage consisting of obstructive
trenches dug across the existing roadbed, removed and
plugged culverts, and a pit in the road containing large
amounts of human waste. The trenches, which were hand-
dug, had been hooked up to dams designed to divert water
into them. Water was seen running across the road. The offi-
cials also observed barriers on the roadbed consisting of piles
of slash logs, debris, and large pole and log structures. The
officials observed numerous protestors in the area. The offi-
cials considered the damage they observed to be violations of
Forest Service Regulations as well as impediments to the con-
struction project that was about to begin.

Because of the obvious implications of the damaged condi-
tion of the roadbed, the trenches, and the presence of protest-
ors with respect to commencement of the new construction,
on August 3, 1996, government officials procured from Forest
Supervisor Coy G. Jemmett, a Special Restriction pursuant to
36 C.F.R. S 261.50 for an area limited to the immediate site
of the planned new road construction and the repair of the
existing roadbed and culverts. This Special Restriction is
known as a "closure order," and it specified on its face -- as
explicitly provided for in the Regulations -- that its purposes
were for public health and safety and to protect property. The
precise authority for such an order came from Part 261 of 36
C.F.R. entitled "Prohibitions," and from Subpart B of that
Part entitled, "Prohibitions in Areas Designated by Order" --
not from Part 251 entitled, "Land Uses." As District Ranger
Robert Wood testified, "[t]he closure order was designed spe-
cifically to allow the contractor to enter the area and conduct
road building activities without interference and in a safe
manner." ER at 257. The closure order exempted (1) persons
with a permit specifically authorizing entry, (2) law enforce-
ment, rescue, or firefighting officers in the performance of an
official duty, and (3) Shearer Lumber Products and Highland
Enterprises' employees and officials while performing their
contractual obligations.

The closure order was tailored to cover just the area of
scheduled construction activities. The order extended only to
one hundred fifty feet from each side of the center of con-
structed and unconstructed portions of (1) Forest Roads 9553,
9553A, 9553C, 9555, 9555A, and (2) Forest Road 9550 from
its junction with Forest Road 421 for a distance of 2,150 feet
in a specified direction, and (3) certain relevant spurs and
extensions thereof. The order was understood to expire when
the construction was completed by the contractor and
accepted by the Forest Service, which turned out to be a
period of 45 days from the date of the closure.

Four days after Jemmett signed the Special Restriction, in
the early morning of August 7, 1996, Forest Service Special
Agent Mike Merkley went to the area of the closure with a
group of enforcement agents, posted a copy of the order,
handed copies of it to most of the protestors, and asked them
to move, in a reasonable time, 150 feet away from the center
of the roadbed. Merkley asked his officers to work with the
protestors to gather their equipment and move from the closed
area. Most of the protestors complied with the order, but not
all. Those who did not were arrested and charged with crimes.

The defendants -- now appellants -- describe themselves
as protestors who engage in activity aimed at the conduct,
policies, and practices of the United States Forest Service and
of the logging and trucking companies that carry out opera-
tions in the Nez Perce National Forest. They do not seriously
challenge the government's factual presentation of what hap-
pened in the Forest on August 7, 1996. In this respect, the
record shows each to have behaved, after being advised of the
closure order, in the following manner:

Defendant Gale, who was in a raised structure over the
roadbed, refused to leave both the structure and the closed
area and had to be removed hours later with the help of a
piece of machinery with a hydraulic attachment called a
"cherry picker."

Defendant Griefen, who refused to leave another raised
structure in the closed area, a structure defended by nails, was
brought to earth by the removal of the legs of the structure.

Defendant Warns was similarly situated and had to be forc-
ibly removed from her perch after she positioned herself in it
so it could not be dismantled without injuring her.

Defendant Gray had to be partially cut out of a metal con-
coction into which he had inserted his arm and of which he
would not let go. Halfway through the extraction process,
Gray finally released his hold when told he could be charged
with a felony for destroying government property if he did
not.

Defendant Bowersox was arrested when, notwithstanding
numerous warnings to leave, he insisted on entering and
remaining in the closed area.

After a trial before Magistrate Judge Williams, each defen-
dant was convicted of violating 16 U.S.C. S 551 and 36
C.F.R. S 261.53 for being in "an area closed for the protection
of (e) public health or safety [and] (f) property." Id. Defen-
dants Griefen, Warns, and Gale were also convicted of violat-
ing 36 C.F.R. S 261.10(a) and 16 U.S.C. S 551 for
maintaining a structure on National Forest system land with-
out authorization. They appealed their convictions to then
Chief District Judge Lodge. Judge Lodge affirmed Judge Wil-
liams's Memorandum Decision of November 12, 1996 and
Order of March 25, 1997. This timely appeal followed. We
affirm.

I

The defendants' appeals boil down to two colorable claims.
First, that the closure order, both as applied and on its face,
violated the First Amendment by operating as a prior restraint
on free speech; and second, that as a matter of law, Griefen,
Warns, and Gale did not "maintain" the structures that they
occupied immediately before their arrests. The remainder of
their claims require no discussion.1
II

First Amendment

A.

[1] "[W]hen expressive conduct occurs on public grounds,
like a national forest, the government can impose reasonable
time, place, and manner restrictions." United States v.
Johnson, 159 F.3d 892, 895 (4th Cir. 1998) (citing Ward v.
Rock Against Racism, 491 U.S. 781, 789  (1989)). Such
restrictions are constitutionally valid if they are (1) content-
neutral, (2) narrowly tailored to serve a significant govern-
mental interest, and (3) leave open "ample alternatives for
communication." United States v. Linick, 195 F.3d 538, 543
(9th Cir. 1999) (quoting Forsyth County v. Nationalist
Movement, 505 U.S. 123, 129 -30 (1992)). As Justice Roberts
said in Hague v. Committee for Industrial Organization, 307
U.S. 496 (1939):

       The privilege of a citizen of the United States to use
       the streets and parks for communication of views on
       national questions may be regulated in the interest of
       all; it is not absolute, but relative, and must be exer-
       cised in subordination to the general comfort and
       convenience, and in consonance with peace and
       good order; but it must not, in the guise of regula-
       tion, be abridged or denied.

Id. at 515-16.

"The crucial question is whether the manner of expression
is basically incompatible with the normal activity of a particu-
lar place at a particular time." Grayned v. City of Rockford,
408 U.S. 104, 116  (1972); see also Wright v. Chief of Transit
Police, 558 F.2d 67, 68 n.1 (2d Cir. 1977) ("Whether or not
a particular forum is a `public forum' akin to a public street
is merely a variant of the compelling interest test.").

[2] A searching review of the record in this case reveals
that the disputed S 261.50 closure order satisfies each of the
three prongs of this First Amendment test. First, a thorough
de novo review of the facts, see Tucker v. California Dep't of
Educ., 97 F.3d 1204, 1209 n.2 (9th Cir. 1996), leaves no
doubt that the closure order was content-neutral. The disputed
area was open fully to the public and the protestors until
August 7, 1996, the day the contractor requested access to
begin work required by a government contract. The area was
closed to enable that work to take place, work which required
the use of potentially dangerous heavy construction equip-
ment. The clear purpose of the order, as explained for the For-
est Service by witnesses Wood and Murphy, was for reasons
of health and safety, and for the protection of property, rea-
sons which are authorized in S 261.53 and which hold up
when tested by the rest of the record. These are compelling
reasons related to needs arising from proper forest manage-
ment practices, and certainly represent significant government
interests. As the Supreme Court explained in Clark v. Com-
munity for Creative Non-Violence, 468 U.S. 288 (1984), a
restriction on expressive activity is content-neutral if it is jus-
tified, i.e., based on a non-pretextual reason divorced from the
content of the message attempted to be conveyed. We find
this to be the case here. The restriction was for the specific
purposes of honoring contractual obligations and permitting
the safe construction of the road, not to silence the protestors.
It excluded all members of the general public, not just the
protestors. Moreover, the protestors had already shown by
their destructive conduct that they presented a clear and pres-
ent danger to the safe completion of the construction project,
both to other persons as well as to themselves.

[3] Second, as just explained, the closure order was issued
to advance significant government interests. It was also nar-
rowly tailored. The closure order was limited to the immedi-
ate construction area, and 150 feet on each side of the zone
-- which we conclude was imminently reasonable. The prote-
stors were not ejected from the forest or even from the vicin-
ity of the construction site, only from 150 feet to each side of
the center of the work zone. Moreover, the restriction was not
imposed until work was ready to begin, and it lasted for only
45 days, or until the project was completed.

[4] Finally, and as we have indicated, given the spatial and
temporal scope of the closure, it is clear that the protestors
could continue their protest, but at a distance of 150 feet from
the construction site. This tailoring left them with ample
opportunities in the Nez Perce Forest and elsewhere lawfully
to express their views, even though their illegal trench digging
and other physically obstructive activities obviously could not
continue.

The appellants cite Bay Area Peace Navy v. United States,
914 F.2d 1224 (9th Cir. 1990), to support their claim that this
closure order was not narrowly tailored. In Bay Area Peace
we concluded that a 75 yard, or a 225 foot, safety zone
between demonstrators and a scheduled parade of Navy ships
failed the "narrowly tailored" test because it was wider than
necessary to accomplish its purpose. See id. at 1228. How-
ever, we made clear that a central reason for our conclusion
was the absence of any evidence whatsoever of a threat to
security sufficient to render the size of the security zone rea-
sonable. Id. We relied on United States v. Grace, 461 U.S.
171 (1983), which we described as standing for the proposi-
tion that,

        when there is no evidence of obstruction, threat-
       ened injury or interference with orderly administra-
       tion, a ban on carrying a sign or banner on public
       sidewalks surrounding the Supreme Court building
       fails substantially to serve the stated purpose of
       "protect[ing] persons and property or [ ] maintain-
       [ing] proper order and decorum within the Supreme
       Court grounds."

Bay Area Peace, 914 F.2d at 1228. We also said, however,
that should circumstances change and provide evidence of "a
tangible threat to security," id. at 1228-29, the 75 yard secur-
ity zone approved by the district court could be modified.

[5] In the instant case, not only was the zone more narrow
than in Bay Area Peace, but an actual threat posed by the
protestors and the appellants clearly existed. If anything, Bay
Area Peace supports the position taken by the government.
Faced with a clear and present threat to health and safety and
property, the Forest Service appropriately established a lim-
ited security zone around the danger area. It did not close the
forest, just a small part of it. This was exactly the kind of law-
ful security zone we had in mind in Bay Area Peace.

[6] The area occupied by the protestors, and from which
they were ejected, was an area temporarily subject to con-
struction and repair. The immediate area of a construction
zone is not an area that has the attributes of a public forum,
or even a limited public forum, where people are entitled to
exercise their rights of free speech. As the Supreme Court
observed in Perry Education Association v. Perry Local Edu-
cators' Association, 460 U.S. 37 (1983), "[t]he existence of a
right of access to public property and the standard by which
limitations upon such a right must be evaluated differ depend-
ing on the character of the property at issue." Id. at 44.

Case law informs us with examples of analogous situations
where courts have held that it was proper for a government
entity to close an area normally available for public expres-
sion. Most recently, we held that Oregon State University
could close its campus to a person covered by court-issued
stalking orders, secured by two university students who were
his stalking targets. Souders v. Lucero, No. 98-35527, 1999
WL 1029498 (9th Cir. November 15, 1999). We upheld the
exclusion order on the ground that it had been issued "for the
valid purpose of protecting its students, and not for conduct
protected by the Constitution." Id. at *5.

In so holding, we relied on United States v. Albertini, 472
U.S. 675 (1985). In Albertini, the Court approved of an exclu-
sion order from a military base during an open house for
Armed Forces Day of a person who was previously barred
from the base, and who had previously been convicted of con-
spiracy as a protestor to injure government property on the
base. Id. at 687. The Court noted that vandalism can hardly
be characterized as activity protected by the First Amend-
ment. Id. at 686. The Court also reiterated its holding in
United States v. O'Brien, 391 U.S. 367 (1968), that applica-
tion of a facially neutral regulation that incidentally burdens
speech satisfies the First Amendment if it " `furthers an
important or substantial governmental interest; if the govern-
mental interest is unrelated to the suppression of free expres-
sion; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the fur-
therance of that interest.' " Id. at U.S. at 687-88 (quoting
O'Brien, 391 U.S. at 377).

[7] The closure order here satisfies all aspects of this test.
Although the closure order certainly put a stop to the specific
expressive and obstructive activities of the defendants, it was
minimally intrusive on their legitimate right to protest. Hav-
ing to move 150 feet from a construction area made danger-
ous by illegal destructive behavior did not substantially
burden the appellants' rights. As the Court said in Community
for Creative Non-Violence, "reasonable time, place, or man-
ner regulations normally have the purpose and direct effect of
limiting expression but are nevertheless valid." 468 U.S. at
294. Thus, we hold that the closure order was a valid time,
place, and manner restriction that did not run afoul of the First
Amendment, and the appellants' first challenge to the order
rendering them criminally liable fails.

B.

The appellants attack the closure order on yet another
ground. They claim it was unconstitutional because Forest
Service officials had too much discretion in issuing and
administering it. Such latitude, they argue, runs afoul of
Supreme Court cases holding that decisions about permits for
parades and demonstrations cannot be left to the unbridled
discretion of public officials. This attack is necessarily an
attack on the facial validity of the order because the defen-
dants did not apply for authorization to enter the closed area
and thus may not argue that the scheme is unconstitutional as
applied to them.

Appellants rely on cases involving the authorization and
issuance of permits by government entities. These cases, how-
ever, are distinguishable and inapposite. The permit cases
dealt with venues generally open for expressive activity, but
only with the prior permission of a government licensor, or a
gatekeeper, whose discretion was unbridled and unfettered.
Such a permit system has been determined to be constitution-
ally defective with respect to areas available for expressive
activity for two reasons. First, as a prior restraint, the permit
process "intimidate[s] parties into censoring their own speech,
even if the discretion and power are never actually abused."
City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750,
757 (1988). Second, it empowers a governmental entity's
licensing officials "to roam essentially at will, dispensing or
withholding permission to speak, assemble, picket, or parade
according to their own opinions regarding the potential effect
of the activity in question on the `welfare,'`decency,' or
`morals' of the community." Shuttlesworth v. Alabama, 394
U.S. 147, 153 (1969).

The case before us, however, does not deal with the use of
a portion of a forest generally open for public expression, but
one temporarily and lawfully closed for repair and construc-
tion. Simply put, this is not a typical permit case. If a closure
of a public forum is for a valid rather than a disguised imper-
missible purpose, the potential for self-imposed or govern-
ment censorship discussed in City of Lakewood  does not exist.
The Forest Service's regular forest use permit system as pro-
vided for in 36 C.F.R. Part 251, Land Uses, therefore, is irrel-
evant.

[8] We have no doubt that a government entity may close
areas of public forests under construction and repair, as it
could temporarily close for good reasons a forest during a for-
est fire, a washed-out road or bridge, a crime scene during an
official investigation, a street engulfed in a riot or an unlawful
assembly, a terrorist-bombed public square, or the plaza sur-
rounding the Washington Monument while the Monument is
undergoing refurbishing. We also have no doubt that areas of
a national forest may be closed to the public for reasons per-
taining to the normal management requirements of a national
forest as well as to honor contracts, the execution of which is
temporarily incompatible with expressive behavior. The
appellants' arguments amount to a claim that they be allowed
to continue their activities during construction in the construc-
tion area. To articulate their proposition in this way is to
reveal its lack of reason.

As the Supreme Court has said,

       Civil liberties, as guaranteed by the Constitution,
       imply the existence of an organized society main-
       taining public order without which liberty itself
       would be lost in the excesses of unrestrained abuses.
       The authority of a municipality to impose regula-
       tions in order to assure the safety and convenience of
       the people in the use of public highways has never
       been regarded as inconsistent with civil liberties but
       rather as one of the means of safeguarding the good
       order upon which they ultimately depend. The con-
       trol of travel on the streets of cities is the most famil-
       iar illustration of this recognition of social need.
       Where a restriction of the use of highways in that
       relation is designed to promote the public conve-
       nience in the interest of all, it cannot be disregarded
       by the attempted exercise of some civil right which
       in other circumstances would be entitled to
       protection. One would not be justified in ignoring
       the familiar red traffic light because he thought it his
       religious duty to disobey the municipal command or
       sought by that means to direct public attention to an
       announcement of his opinions. As regulation of the
       use of the streets for parades and processions is a tra-
       ditional exercise of control by local government, the
       question in a particular case is whether that control
       is exerted so as not to deny or unwarrantedly abridge
       the right of assembly and the opportunities for the
       communication of thought and the discussion of
       public questions immemorially associated with
       resort to public places.

Cox v. New Hampshire, 312 U.S. 569, 574  (1941) (emphasis
added).

[9] A highway, a bridge, a public plaza, or any similar loca-
tion that is occupied by bulldozers, cranes, roadgraders, earth-
moving equipment, scaffolding, and other construction
paraphernalia need not be open to the public during construc-
tion and repair, period, for expressive purposes or otherwise.
The First Amendment does not command public entry under
such circumstances. Indeed, for the government to allow the
public into a dangerous area would be clearly a violation of
the duty to protect the public from known risks. The repair of
a public facility, the construction of a new one, and the pro-
tection of citizens from dangers are manifestly valid and
important purposes.

[10] Thus, because the First Amendment concerns animat-
ing the permit cases cited by the Appellants do not exist here,
the teaching of those cases is not apposite. Cessante ratione
legis, cessat et ipsa lex (The reason of the law ceasing, the law
itself also ceases). In First Amendment terms, the fact that
discretion to authorize entry to a closed area may be unfet-
tered during construction is of no concern. The process of
granting authority to enter a lawfully closed zone differs
markedly from the process of licensing expressive activity.

Such a process does not "engender identifiable risks to free
expression . . . ." City of Lakewood, 486 U.S. at 757.

[11] Based on the foregoing, including our determination
that the closure order was valid, we conclude that the appel-
lants' facial challenge to this closure order on First Amend-
ment grounds simply because Forest Service officials had
broad discretion in deciding who could enter the closed area
must fail. City of Lakewood distinguishes carefully "laws that
are vulnerable to facial challenge from those that are not." Id.
at 759. The test that distinguishes the two categories is
whether the statute, or the law, raises the specter of (1) self-
censorship, or (2) difficulties of detecting, reviewing, and cor-
recting content-based censorship. Id. "Therefore, a facial chal-
lenge lies wherever a licensing law gives a government
official or agency substantial power to discriminate based on
the content or viewpoint of speech by suppressing disfavored
speech or disliked speakers . . . . The law must have a close
enough nexus to expression, or to conduct commonly associ-
ated with expression, to pose a real and substantial threat of
the identified censorship risks." Id. We do not find such a
nexus in a closure order context where the closure order itself
is non-pretextual and otherwise passes constitutional muster.

City of Lakewood cites Kovacs v. Cooper , 336 U.S. 77
(1949), and Saia v. New York, 334 U.S. 558 (1948), as con-
trasting examples of First Amendment cases illustrating (1)
the differences between prohibition cases (Kovacs) and
licensing cases (Saia); and (2) when a facial challenge is
proper (Saia), and when it is not (Kovacs). City of Lakewood
confirmed the validity of Kovacs' holding that -- the First
Amendment notwithstanding -- certain types of expressive
activities, i.e., sound trucks, may be barred altogether, even
though those activities are a means of expression. Id. at 755-
56. In Kovacs, the court quoted extensively from Schneider v.
State of New Jersey, 308 U.S. 147 (1939):

        Municipal authorities, as trustees for the public,
       have the duty to keep their communities' streets
       open and available for movement of people and
       property, the primary purpose to which the streets
       are dedicated. So long as legislation to this end does
       not abridge the constitutional liberty of one right-
       fully upon the street to impart information through
       speech or the distribution of literature, it may law-
       fully regulate the conduct of those using the streets.
       For example, a person could not exercise this liberty
       by taking his stand in the middle of a crowded street,
       contrary to traffic regulations, and maintain his posi-
       tion to the stoppage of all traffic; a group of distribu-
       tors could not insist upon a constitutional right to
       form a cordon across the street and to allow no
       pedestrian to pass who did not accept a tendered
       leaflet; nor does the guarantee of freedom of speech
       or of the press deprive a municipality of power to
       enact regulations against throwing literature broad-
       cast in the streets. Prohibition of such conduct would
       not abridge the constitutional liberty since such
       activity bears no necessary relationship to the free-
       dom to speak, write, print or distribute information
       or opinion.

Kovacs, 336 U.S. at 89 n.13 (quoting Schneider, 308 U.S. at
160-61). On the other hand, Saia held that an ordinance sub-
jecting the use of sound trucks to a standardless permit system
is amenable to a facial challenge because of the attendant risk
of censorship, both self-imposed and official. See Saia, 334
U.S. at 562.

[12] The C.F.R. regulatory scheme associated with entry to
closed areas in national forests does not pose substantial risks
of censorship, nor does it raise the real possibility of disguised
action. Unlike the statute in City of Lakewood, periodic
renewals of permits is not an issue in this case, and the autho-
rization process with respect to a closed area does not threaten
lawful expressive activity. Once the forest is closed, it is
closed to the ordinary uses of the forest. Forest closure laws
easily fit the category of "laws of general application that are
not aimed at conduct commonly associated with expression
and . . . carry with them little danger of censorship." City of
Lakewood, 486 U.S. at 760-61. This case does not involve our
usual concerns about licensing based on unbridled and stan-
dardless discretion.

Our holding does not imply that an order that closes a pub-
lic forum is sacrosanct. Should it appear that the true purpose
of such an order was to silence disfavored speech or speakers,
or that the order was not narrowly tailored to the realities of
the situation, or that it did not leave open alternative avenues
for communication, the federal courts are capable of taking
prompt and measurably appropriate action. Anyone aggrieved
by such an order, or for that matter by any order infringing on
free speech, has immediate access to the federal courts to
advance his or her grievances. Bay Area Peace  illustrates the
availability of an adequate judicial forum to resolve these dis-
putes, and of the standard legal tools -- such as temporary
restraining orders and injunctions -- we use to enforce our
rulings. See Bay Area Peace, 914 F.2d at 1228. Here, if the
appellants had a legal problem with the scheduled road build-
ing or the logging, the rule of law provided them with an ave-
nue to do something about it. Moreover, they could have
continued on August 7, 1996 and immediately thereafter to
protest and to take their case to the public, to the newspapers,
to their legislators, and even to the onsite loggers and road
construction workers -- they just could not do so in the path
of tractors and earth movers.

IV

Maintaining a Structure

The district court held that the appellants violated 36 C.F.R.
S 261.10(a). The regulation prohibits:

        (a) Constructing, placing, or maintaining any
       kind of road, trail, structure, fence, enclosure, com-
       munication equipment, or other improvement on
       National Forest system land or facilities without a
       special-use authorization, contract, or approved
       operating plan.

36 C.F.R. S 261.10(a) (emphasis added).

It is undisputed that the incidents occurred on National For-
est land. It is also undisputed that the appellants did not have
authorized permits for the structures as required under the
regulation. However, the appellants argue that their conduct
did not constitute "maintaining a structure" as required under
36 C.F.R. S 261.10(a) because (1) "maintain" requires more
than mere possession of, or occupation of, a structure; and (2)
the word "maintain" is ambiguous and therefore the rule of
lenity and the void-for-vagueness doctrine require reversal.
We respectfully disagree.

[13] The word "maintain" is neither vague nor cryptic. In
any dictionary in common usage it means to continue or carry
on, to preserve or keep in a given condition, and to defend,
as against danger or attack. See Webster's II New Riverside
University Dictionary 717 (1984); see also United States v.
Clavis, 956 F.2d 1079, 1091 (11th Cir. 1992) ("Acts evidenc-
ing such matters as control, . . . acquisition, . . . supervising,
protecting, . . . are . . . evidence of knowingly maintaining the
place . . . .").

The purpose of 36 C.F.R. S 261.10(a) is to prevent the
impeding of Forest Service roads. The district court found that
the appellants were instrumental in the placement of the struc-
tures and of integral parts of the structures, and that their pur-
pose was to maintain the structures so as to impede traffic.
The district court then concluded that the appellants main-
tained the structures "by staying in them after being asked to
leave, thereby preventing the Forest Service officers from
removing the structures." The appellants argue that they sim-
ply occupied the structures but did not maintain them.

In United States v. Scranton, 25 F. Supp. 2d 1131, 1132 (D.
Idaho 1997), a Defendant was charged with maintaining a
structure, specifically a tripod, on Forest Service Road 9553
without proper authorization in violation of S 261.10(a). In a
published opinion, the district court held that "Defendant's
affirmative refusal to leave the tripod `maintained' the struc-
ture under the plain meaning of the word." Id. The court con-
cluded that the "obvious purpose of the Defendant's conduct
was to maintain the position of the structure  in the middle of
the roadway." Id. (emphasis added).

[14] In the instant case, the appellants were asked several
times to leave the structures voluntarily and told they would
be arrested if they did not. They refused and remained in the
structures, defending and protecting them against the law. As
a result, law enforcement officers were forced to remove the
appellants from the structures and disassemble the structures
before logging contractors could safely proceed with their
work. This uncontested evidence establishes that Appellants
were intent on maintaining the positions of the structures to
protest and block the logging operations.

[15] Appellants also argue that the word maintain is ambig-
uous and therefore the rule of lenity mandates reversal. Not
true. The rule of lenity is " `not applicable unless there is a
grievous ambiguity or uncertainty in the language and struc-
ture of the' regulation." Scranton, 25 F. Supp. 2d at 1132
(quoting United States v. Butler, 74 F.3d 916, 924 (9th Cir.)),
cert. denied, 519 U.S. 967 (1996). In Scranton, the district
court held that the language of 36 C.F.R. S 261.10(a) was not
ambiguous. Id. Based on the logic of the decision in Scranton,
which we now adopt, the rule of lenity should not apply. The
regulation's language does not contain a grievous ambiguity,
nor is the purpose of the regulation uncertain.

[16] Finally, the appellants argue that the void-for-
vagueness doctrine bars their conviction because the meaning
of the word "maintain" is not clear. "[T]he void-for-
vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory
enforcement." Kolender v. Lawson, 461 U.S. 352, 357  (1983).
We conclude that this argument fails.

AFFIRMED.
_______________________________________________________________

FOOTNOTES

1 The issues not requiring discussion are that the closure order was a Bill
of Attainder, that the defendants were entrapped by estoppel, that the mag-
istrate judge erred in denying a short continuance to secure the presence
of a peripheral witness, and that the magistrate judge erred in not permit-
ting a defense of necessity. We have examined each of these issues and
find them to be lacking in merit.

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