FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-30316 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00036-

JOEL ANDREW WYATT, aka DWM/LBE

“Lupine”; REBECCA KAY SMITH,

OPINION Defendants-Appellants. 

Appeal from the United States District Court

for the District of Montana (Missoula)

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

February 8, 2005—Seattle, Washington

Filed May 26, 2005

Before: Diarmuid F. O’Scannlain, M. Margaret McKeown,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

5801
COUNSEL

David C. Avery, Federal Defenders of Montana, argued the

cause for the appellant. John Rhodes and Jon Wilson, Federal

Defenders of Montana, were also on the briefs. 

Joshua S. Van De Wetering, Office of the U.S. Attorney,

argued the cause for the appellee. William W. Mercer, Office

of the U.S. Attorney, was also on the brief. 

UNITED STATES v. WYATT 5803
OPINION

BEA, Circuit Judge: 

Joel A. Wyatt and Rebecca Kay Smith (collectively “defendants”) appeal their convictions for (1) using, or aiding and

abetting the use of, a hazardous or injurious device on federal

land with the intent to obstruct a timber harvest; and (2) maintaining an unauthorized structure on National Forest land. We

have jurisdiction under 28 U.S.C. § 1291. We consider below

whether 18 U.S.C. § 1864(a), which in part prohibits the use

of hazardous or injurious devices on federal land with the

intent to obstruct or harass the harvesting of timber, is unconstitutionally vague as applied here to visible and unmodified

ropes strung above a proposed helicopter landing site.1 We

conclude the statute is not unconstitutionally vague as

applied, and thus we affirm. 

FACTS

On July 8, 2002, defendants Wyatt and Smith, members of

Wild Rockies Earth First!, ascended and occupied separate

elevated platforms in two trees as part of a “tree-sitting” protest in the Bitterroot National Forest in Montana. Smith’s platform was forty-five feet up in a tree, and Wyatt’s platform

was eighty to ninety feet up in a tree. Defendants occupied the

platforms for several weeks to protest logging. The protest

site was on National Forest Service land. 

The protest site had earlier been designated as (1) a proposed logging helicopter landing site, and (2) an emergency

medical helicopter landing site. At the time of the protest,

however, the site could not yet be used for logging helicopters; safety standards required an expanded site, which in turn

1We decide defendants’ remaining contentions by memorandum disposition filed concurrently with this opinion. 

5804 UNITED STATES v. WYATT
required the removal of about five trees.2

 A “natural opening”

existed at the site, however, that would allow emergency

medical helicopters, or other helicopters, to land (e.g., if the

helicopters suffered engine failure). 

A blue climbing rope was strung between the defendants’

platforms, and four yellow polypropylene ropes were strung

from the trees. The yellow ropes were not suitable for climbing. The ropes were tied within reach of the platforms occupied by defendants. The ropes were repositioned during the

time defendants occupied their respective platforms, although

the testimony did not identify by whom. 

Donald Polanski, a U.S. Forest Service law enforcement

officer, testified the purpose of the yellow ropes was to interfere with helicopters operating at the site, and thus prevented

logging activity there. Bret Daugherty, a forester with Carson

Helicopters, testified the use of the ropes interfered with logging activities because the landing site could not be used.

Specifically, the yellow ropes would interfere with logging

helicopters because the 200-foot line used by the helicopters

could entangle with the yellow ropes. The yellow ropes could

also entangle with a helicopter’s rotors, air intake, or fuselage,

and thus cause a crash. 

Both defendants stated that when they volunteered to participate in the tree sit, they knew the protest site was chosen

to prevent helicopters from landing. They knew the purpose

of the lines and wires was to interfere with helicopter operations at the site, knew that their presence in the trees by itself

would hinder helicopter landings in the protest area, and were

in a position to assert control over the yellow ropes. Further,

there was evidence the ropes were tied to the trees occupied

2Logging helicopters attach a 200-foot line to logs and then deposit the

logs into the landing site. The logging helicopter does not actually land at

the site, but instead lowers the log where it is grasped by loggers working

on the ground. 

UNITED STATES v. WYATT 5805
by defendants, within reach of defendants (themselves four to

nine stories above the ground), and that the ropes were

adjusted during the time defendants were stationed in their

respective trees. 

Wyatt eventually descended from his platform on July 29,

2002, but Smith remained in the tree until August 6, 2002,

when the U.S. Forest Service removed her from her platform.

The government charged defendants with four counts; only

Count 1 is relevant to this opinion. Count 1 alleged defendants, “with the intent to obstruct or harass the harvesting of

timber, used, or aided and abetted the use of, a hazardous or

injurious device capable of causing bodily injury or damage

to property, to wit: lines or wires, on Federal land, in violation

of 18 U.S.C. § 1864 and 18 U.S.C. § 2.” After a consolidated

trial, the jury returned a guilty verdict on Count 1. Defendants

timely appealed. 

DISCUSSION

Defendants contend 18 U.S.C. § 1864(a) is unconstitutionally vague as applied here because the statute “does not supply adequate notice that it is a crime to hang unmodified and

highly visible ropes between trees” because “unmodified and

highly visible ropes” do not fall within the statute’s definition

of a “hazardous or injurious device.” We review de novo

whether a statute is unconstitutionally vague. United States v.

Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004). 

[1] In an as-applied challenge, a statute is void for vagueness (and thus unconstitutional under due process) if the statute “(1) does not define the conduct it prohibits with sufficient

definiteness and (2) does not establish minimal guidelines to

govern law enforcement.” Id. at 953; see United States v.

Hockings, 129 F.3d 1069, 1072 (9th Cir. 1997) (a criminal

statute “cannot be so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its

application.”) (internal quotation marks omitted). As a corol5806 UNITED STATES v. WYATT
lary to the vagueness doctrine, where the statute is ambiguous, “the rule of lenity must be applied to restrict criminal

statutes to conduct clearly covered by those statutes.” Hockings, 129 F.3d at 1072. 

[2] In determining whether 18 U.S.C. § 1864(a) provided

fair warning to defendants that it is a crime to hang “unmodified and highly visible ropes between trees” over a proposed

helicopter landing site, we first look to the statute. 18 U.S.C.

§ 1864(a) provides: 

Whoever— (1) with the intent to violate the Controlled Substances Act, (2) with the intent to obstruct

or harass the harvesting of timber, or (3) with reckless disregard to the risk that another person will be

placed in danger of death or bodily injury and under

circumstances manifesting extreme indifference to

such risk, uses a hazardous or injurious device on

Federal land, . . . without the consent of the United

States shall be punished under subsection (b). 

[3] Only subsection (2) is at issue here. The statute defines

“hazardous or injurious device” generally as “a device, which

when assembled or placed, is capable of causing bodily

injury, or damage to property, by the action of any person

making contact with such device subsequent to the assembly

or placement.” 18 U.S.C. § 1864(d)(3). The definition of

“hazardous or injurious device” also includes “sharpened

stakes, lines or wires, lines or wires with hooks attached,” and

others. 18 U.S.C. § 1864(d)(3) (emphasis added).3

3The full definition of “hazardous or injurious device” reads: “a device,

which when assembled or placed, is capable of causing bodily injury, or

damage to property, by the action of any person making contact with such

device subsequent to the assembly or placement. Such term includes guns

attached to trip wires or other triggering mechanisms, ammunition

attached to trip wires or other triggering mechanisms, or explosive devices

attached to trip wires or other triggering mechanisms, sharpened stakes,

UNITED STATES v. WYATT 5807
[4] For several reasons, section 1864(a) provides fair warning to persons of common intelligence that it is a crime to

hang ropes above a helicopter landing site with the intent to

obstruct or harass the harvesting of timber. See Hockings, 129

F.3d at 1072. First, unmodified and visible ropes strung above

a helicopter landing site meet the general definition of a “hazardous or injurious device”: when “assembled or placed,”

(i.e., strung above the landing site), the ropes are “capable of

causing bodily injury, or damage to property, by the action of

any person making contact with such device subsequent to the

assembly or placement” (i.e., if the helicopter should land

upon or become entangled in the ropes, it is likely to crash).

[5] Second, the definition of a “hazardous or injurious

device” includes “sharpened stakes, lines or wires, lines or

wires with hooks attached,” and others. 18 U.S.C.

§ 1864(d)(3). The term “lines” is generally defined as “[a]

rope, cord, [or] string.” Oxford English Dictionary (2d ed.

1989). Thus, the yellow ropes fall with the “lines or wires”

example. 

[6] Third, the examples listed in the “hazardous and injurious device” definition readily show Congress’ intent was to

prevent interference with logging activities by the use of

devices that might cause “bodily injury” or “damage to property.” For example, the definition of “hazardous or injurious

device” includes inter alia “tree spiking devices.” 18 U.S.C.

§ 1864(d)(3). Legislative history also supports this conclusion. Senator McClure stated 18 U.S.C. § 1864 was intended

to stop ecoterrorists from using “dangerous and deadly” methods to further their goals. 134 Cong. Rec. S16,064-65 (daily

lines or wires, lines or wires with hooks attached, nails placed so that the

sharpened ends are positioned in an upright manner, or tree spiking

devices including spikes, nails, or other objects hammered, driven, fastened, or otherwise placed into or on any timber, whether or not severed

from the stump.” 18 U.S.C. § 1864(d)(3). 

5808 UNITED STATES v. WYATT
ed. Oct. 14, 1988). He detailed some of the hazardous “tools

of the ecoterrorist’s trade,” including punji sticks—steel bars

with sharpened nails that can injure unsuspecting hikers—and

tree spikes—spikes driven into trees that shatter saw blades

into dangerous shrapnel. Id. It is clear Congress intended this

statute to prevent the use of those and other devices that are

hazardous and injurious to logging activities. 

[7] In determining whether a statute is void for vagueness,

we also consider whether the statute defines the offense “in

such a manner that does not encourage arbitrary and discriminatory enforcement.” Kolendar v. Lawson, 461 U.S. 352, 357

(1983). A scienter requirement can help a law escape a vagueness problem. Posters ‘N Things, Ltd. v. United States, 511

U.S. 513, 526 (1994). Section 1864 contains just such a

scienter requirement: it does not simply prohibit the use of a

“hazardous or injurious device,” but requires a defendant to

use the device “with the intent to obstruct or harass the harvesting of timber.” See 18 U.S.C. § 1864(a)(2). The intent

requirement thus limits the discretion of law enforcement and

mitigates any perceived vagueness of 18 U.S.C. § 1864. 

Defendants misconstrue section 1864(a) by arguing the

statute does not provide sufficient notice because “unmodified

and highly visible ropes” are not included within the definition of a “hazardous and injurious device” in section

1864(d)(3). The exclusion of unmodified and visible ropes

from this non-exhaustive list does not remove the ropes from

the ambit of the definition of “hazardous and injurious

device.” As noted, the definition begins with a general definition (which, in any event, would encompass the yellow ropes)

and then provides a list of devices “include[d]” under the definition. The use of the word “includes” suggests the list is nonexhaustive rather than exclusive. See Hockings, 129 F.3d at

1071; see also Federal Land Bank v. Bismarck Lumber Co.,

314 U.S. 95, 100 (1941) (“the term ‘including’ is not one of

all-embracing definition, but connotes simply an illustrative

application of the general principle.”). 

UNITED STATES v. WYATT 5809
Defendants also argue that in the “hazardous or injurious

device” definition, the word “sharpened” modifies “stakes”

and “lines or wires.” Thus, because the ropes here were not

“sharpened,” they do not fall within the definition. We disagree. The error of defendants’ argument becomes clear when

the phrase “sharpened stakes, lines or wires, lines or wires

with hooks attached” from 18 U.S.C. § 1864(d)(3) is compared with 21 U.S.C. § 841(d)(1). There, Congress provided

that “[a]ny person who assembles, maintains, places, or

causes to be placed a boobytrap on Federal property where a

controlled substance is being manufactured, distributed, or

dispensed shall be sentenced to a term of imprisonment . . . .”

21 U.S.C. § 841(d)(1). That statute defines “boobytrap” as

“any concealed or camouflaged device designed to cause bodily injury when triggered by any action of any unsuspecting

person making contact with the device. Such term includes

guns, ammunition, or explosive devices attached to trip wires

or other triggering mechanisms, sharpened stakes, and lines

or wires with hooks attached.” 21 U.S.C. § 841(d)(3) (emphasis added). Notably, the unmodified term “lines or wires” is

missing from that statute, which suggests Congress did not

intend in 18 U.S.C. § 1864(d)(3) to modify the term “lines

and wires” with the word “sharpened.” 

[8] Accordingly, we hold that 18 U.S.C. § 1864(a) provides

fair warning to a person of common intelligence that it is a

crime to hang ropes over a helicopter landing site with the

intent to obstruct or harass the harvesting of timber. The statute is thus not unconstitutionally void for vagueness as

applied here. 

[9] For the same reasons, the rule of lenity is inapplicable

here. “Under the rule of lenity, when a criminal statute is

ambiguous, we interpret the statute in favor of the defendant.

However, it applies only when there is grievous ambiguity or

uncertainty in the statute and when, after seizing everything

from which aid can be derived, we can make no more than a

guess as to what Congress intended.” United States v. Phil5810 UNITED STATES v. WYATT
lips, 367 F.3d 846, 857 n.39 (9th Cir. 2004) (internal alterations, citations, and quotation marks omitted). Although 18

U.S.C. § 1864(d)(3) generally focuses upon concealed hazardous or injurious devices, such as tree spikes or trip wires, the

statute is not ambiguous as applied because it is clear how the

yellow ropes could be hazardous or injurious to a helicopter

should a helicopter come into contact with the ropes. 

AFFIRMED.

UNITED STATES v. WYATT 5811