F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v.

S H AW N S. P A R K E R , Defendant-Appellant

. No. 13-30157

D.C. No. 2:12-cr-02089-W F N -1

OPI NI ON

Appeal from the United States District Court for the Eastern District of W a shing ton W m. F remming Nielsen, Senior District J udg e, Presiding

Argued and Submitted J une 4, 2014—Seattle, W ashing ton

F iled J uly 31, 2014

B efore: M. Marg a

ret McKeown and Paul J . W atford, Circuit J udg es, and B arbara J acobs Rothstein, Senior

D istrict J u dg e. *

Opinion by

J udg e McKeown

* T h e Ho n orab le B arb ara J aco bs Ro th stein
, Sen io r District J u d g e f o r th e U.S. District Co u r t f

o r t h e W estern District o f W ash in g to n , sittin g b y d esig n atio n

.U N I T E D S T A T E S V

. P AR K E R 2

SUMMARY * *

Crim inal Law

The p anel a ffirmed a commercial snowmobile operator’s

c o n v i c tion on two c o unts of conducting a “work activity or service” on United States F orest Service land wit h out a special use authoriz ation a nd one count of interfering with a F orest Service offi c e r eng a g ed in the performance of his official duties.

The p a nel held that althoug h the defendant’s c lients cong reg ated on a county road su bject to an e asement, the F orest Service h a d jurisdiction over his activities because, under 36 C.F

. R. § 261.1(a)(2), they “affect[ ed]
, threaten[ ed]
, or endang er[ ed] property of the United States administered by the F orest Service,” and because, under § 261.1(a)(1), they took place “in the National F orest Sy stem.”

The p a nel reje ct ed the d efendant’s contention that the regulatory

framework g overning F orest Service control over roads is unconstitutionally vague.

The pane l h eld that a F orest Service officer’s testimony reg arding t h e absence of a special u se authoriz ation was properly admitted under F ed. R. Evid. 803(10).

The panel rejected the defendant’s sufficien c y -ofevidence challeng e to his conviction on one of the unlawfulwork-activity

counts.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. P AR K E R 3

COUNSEL

K raig Robert Gardner (arg ued), Kirkham L aw Offi c e, Ellensburg , W ashing ton, for Defendant-Appellant.

Tyler H.L

. T o r nabene (arg ued), Assistant United States Attorney
, Michael C. Ormsby
, United States Attorney
, Russell E. Smoot, Assistant U nite d States Attorney
, Katharine B r ereto n, United States Attorney L a w Clerk, Spokane, W a shing ton, for Plaintiff-Appellee.

OP INION

McKEOW

N, Circuit J udg e:

Shaw n Parker, a commercial snowmobile operator, was convicted on two counts of conducting a “work a ctivity o r service” on United States F orest Service land wit h out a special use authoriz ation and one count of interfering w ith a F orest Service officer eng ag ed in the performance of his official duties, both violations of 36 C.F

. R

. Part 261. W e affirm his conviction. Special use pe rm its are required for certain activities, such as commercial v entures, that occur on F orest Service lands or affect such propert y

. A lthoug h Parker’s clients c ong reg ated o n a county road subject to an
ea s e m e n t, the F orest Service had jurisdiction over his activities because they “affect[ ed]
, t h r e a ten[ e d]
, o r endang er[ ed] property of the United States administered b y the F orest Service,” id . § 261.1(a)(2), and because they took place “in the National F orest Sy stem.” Id. § 261.1(a)(1). W e reject Parker’s claim that the regulatory framework g overning F orest Service control over roads is unconstitutionally vague.U N I T E D S T A T E S V

. P AR K E R 4

B A C K G R O UN D

This case focuse s on two separate incidents involving F orest Service Road 4300, also known as Salmon la Sac Hig hway (“the Hig hway”), in t he Okanog an–W enatchee National Fo rest (the “F orest”) in W ashing ton State. I n F ebruary 2011, F orest Service O fficer Steve Roberson was patrolling a stretch of the Hig hway just north of Cooper River J unct i o n , where he e ncountered trucks, trailers, a nd snowmobile e quipment belon ging to Parker, whom he h ad known for fifteen y ears. The H ig hwa y i tself w as b are,

w i t hout snow, but snowmobilers often used the adjace n t g roomed trails for recreational purposes.

Roberson, who arrived in a marked F orest Service vehicle and wearing his duty g ear, saw P a r k er talking with about twelve people, dressed in snowmobile clothing
, standing near fourteen snowmobiles. Roberson reminded Parker, as he h ad in the past, that Parker had no special use authoriz ation, and t o l d P arker that he w as in violation of F orest Service regulations and should turn his e quipment aro u n d

. Parker refused to do so, and told Roberson that h i s c lients “had rented and paid for [ the snowmobiles] ,” and that they “ were g oing to ride and he [ woul] d take the ticke t .” Parker h ad previously b e en cited for violations of the same regulations, but Roberson did not arrest Parker on this occasion because Parker was hostile. Roberson watched as the snowmobiles drove away

.

L ater that y ear, in mid-December, Robers o n ag ain encountered Parker near the Cooper River J unction. A truck f rom Parker’s company , Cascade Play time Rentals, w a s parked along the Hig hway
, and Roberson saw Parker talking with a g roup of about fi f t ee n people surrounded by a larg eU N I T E D S T A T E S V

. P AR K E R 5

number of snowmobiles. Parker looked at R oberson, pulled his helmet o n, and led all but two of the snowmobilers into the N ational F orest on s n owmobiles, including onto F orest Service Road 4600, also known as Cooper L ake Road. Parker did not d isplay a special use authoriz ation to Roberson during this encounter. On this day
, a s before, the Hig hway had been cleared of snow.

After a bench trial before a mag istrate judg e, Parker was found guilty

of two misdemeanor counts of “conducting any kind of work activity or servi c e ” on National F orest land without a special use authoriz ation in violation of 36 C.F .R. § 2 61.10(c), and one misdemeanor count of threatening
, resisting
, intimidating
, or i n t e rfering with a F orest Service officer eng ag ed in the performance of his official duties in the protection or administratio n of National F orest land in violation o f 36 C.F .R. § 261.3(a). The district c ourt affirmed the decision of the mag istrate judg e and sentenced Parker to two y e ars’ probation and a fine.

A N AL Y S I S

I. F O R E S T S E R

V I C E J U R

I S D I C T I O N O V E R A C T I VI T I E S A F F E C T I N G F O R

E S T S E R

V I C E L AN D

Parker’s principal argument is that his actions took place

on Salmon la Sac road—a Kittitas County road authoriz ed b y
an easemen t f

rom Plum Creek Timber Company to the county —and that t h e F orest Service’s own regulations

ex p licitly e x empt such a r oad from the operation of 3 6 C.F .R. Part 261. The fla w in this reasoning is that Parker cites only part of the relevant r egu l ation and overlooks the F orest Service’s broad authority to r egulate a c tivities “affecting ” F orest Service land.U N I T E D S T A T E S V

. P AR K E R 6

Part 261 prohibits certain activities in and around F orest Service property , including
, as rele v a n t here, selling merchandise or conduct i n g w ork activities or services not authoriz ed by federal law
, regulation, or special-use authoriz ation. 36 C.F .R. § 2 61.10(c). The prohibitions o f Part 261 apply when an act or o mission “occurs in the National F orest Sy stem or on a National F orest Sy stem road or trail,” id. § 2 6 1

. 1(a)(1), or when the act or omission “affects, threatens, or end a ng ers property of the United States administered by the F orest Service.” Id. § 261.1(a)(2). Parker conveniently

skips over the proviso in (a)(2).

T he regulation d efines “National F orest Sy stem” t o include “all national f

orest land s and waters reserved o r withdrawn from the p ublic domain of the Uni t e d S tates [ or]

. . . acquired

. . . .” I

d. § 261.2. A “ [ f] o rest road or trail” is defined as

[ a] r oad or trail wholly or par t l y within o r adja c e n t to and serving the National F o r e st Sy stem that the F orest Service de t e rmines is necessary for the protection, administration, and u tiliz ation o f the National F orest Sy s t e m and the use a

n d d evelopment o f its resources[ ,]

and “National F orest Sy stem road” is defined as a subset of the above, namely

[ a] forest road o ther than a road which has been authoriz e d by a leg a lly documentedU N I T E D S T A T E S V

. P AR K E R 7
rig ht-of-way h eld by a State, county , or other local public road authority

.
Id. (emphasis added).

I t a ppe a r s that the Hig hway at issue here was n ot a “National F orest Sy stem road,” because that term is reserved for forest roads not subject to easements held by public entities, id.
, and Kittitas Cou n t y h a d been g ranted an easement ove r t h e Hig hway “for public road purposes.” 1 Althoug h the ex istence of a rig ht-of-way or an easement may
remove a r oad from the definition o f “National F orest Sy stem road,” it does n ot deprive the F orest Service o f authority over the road.

To beg in, ex empting roads s u b ject to an easement from t h e definition of “National F orest Sy stem r oad or trail” w a s
ex p ressly meant not to “in any way affect the F o rest Service’s jurisdiction to enforce traffic laws, to protect NF S lands underlying routes, or to r egulate use, includin g use on valid rig hts-of-way .” Travel Manag e ment; D esig nated Routes a nd Areas for Motor Vehicle Use, 70 F ed. Reg

. 68,264
, 6 8
, 2 7 5 ( Nov. 9, 2005); see also id. at 6 8 ,283 (“Part 2 6 1

– P r ohibitions,” paragraph 2) (noting that the comments at 6 8
, 2 7 5 applied to both § 2 61 and § 2 12). A lthoug h Parker cites lang u ag e , drafted f

or inclusion in the rule, that may have sug g ested that the F o rest Servi c e w a s ceding a ll authority

1 T h e m ag istrate j u d g e f

o un d th at th e easem en t d id n o t create ex clu siv e rig hts in Kittitas Co un ty ; th at it p erm itted Kittitas Co un ty to “ ex t en d rig h ts

an d p riv ileg es f

o r u se

. . . to o t

h er g o v ern m en tal ag en cies”; an d th at it w as

“ n ev er in ten ded to d ep riv e an y o th er g ov ern m en tal ag en cy o f t h e a b ility

o r j urisd ictio n t o reg u l ate co n du ct o n th e h ig h w ay o r w ith in its d escrib ed

easem en t.”U N I T E D S T A T E S V

. P AR K E R 8

over roads with rig hts-of-way
, the lang uag e Parker references

was d eleted from the final rule. I d

. a t 68,275. B e cause the F orest Service’s enforcement actions in Parker’s case r elated to the “protect[ ion of] NF S l a n d s underly ing routes” or the “reg u la[ tion of] use,” the F o rest Service retained jurisdiction

over those activities whether or not the road is not a National F orest Sy stem road.

Recog niz ing the F orest Service’s broad authori t y t o protect its lands, we turn to th e s p e c ific authority g ranted under § 261.1(a ) (2), which covers acts or o missions that “aff e ct[ ]
, threaten[ ]
, or endang er[ ] property of the United States a dmin i s tered by the F o rest Service.” “I t is w ell established that [ the Proper t y C l a use o f the Constitution 2 ] g rants to the United States power to r egulate conduct on nonfederal land when reasonably necessary to p ro t ect a djacent federal property

. . . .” United S tates v. Lindsey
, 595 F .2d 5
, 6 (9th Cir. 1979) (per curiam). Lindsey
, like Parker’s c ase, involved regulations issued pursuant to 16 U.S.C. § 551 and encompassi n g activities that “affect[ ]
, threaten[ ] o r endang er[ ] ” F orest S ervice property

. Two people were charg ed with violating D epartment of A g riculture regulations prohibiting the use of camp f i res w ithout a permit. Id. at 6, n.1. We held that the f

e deral g overnment had jurisdiction to regulate the building o f campfire s on land “leg a lly on the river bed, t i t l e to w hich is h eld b y the State,” in order to protect the surround i n g National F orests, because the g overnment reta i n e d jurisdiction under the Property Clause. Id. at 6–7. Accord United States v. Alford
, 274 U.S. 264, 267

2 T h e P ro p erty Clau se p ro v id es th a t “C o n g r e s s sh all h av e P o w er to d i s p ose o f an d m ak e all n eed f u l Ru les an d Reg u latio n s resp ectin g t h e T errito ry o r o th er P ro perty b elo n g in g to th e Un ited States.” U.S. Co n st. art. IV.U N I T E D S T A T E S V

. P AR K E R 9
( 1 9 27) (holding that Cong ress could “prohibit the doing o f acts upon privately o w ned lands that imperil the publicly owned f orests,” in a case invol v i n g the building o f fires); United States v. Anglin
, 438 F .3d 1229, 1230 (10th Cir. 2 006) (ho lding that it was “irrelevant” that defendants were presented w hile off pu b l i c l an d with a notice that they h ad violated Part 261 while o n public land); Free Enter

. Ca n oe Renters Ass’n of

Missouri v. W

a tt , 7 11 F .2d 852, 856 (8th Cir. 1983) (noting
, in a case involving permit requirements for

canoe outfitters w hose commercial activities too k place on public roads within a Natio n al Scenic Riverway
, that Cong r ess can regulate c onduct not on federal land that would threaten federal land).

The commercial act i v i t y here, like building a fire o r la u n c h ing a canoe, is one that has implications for National F orest land even if commenced on pro p erty adjacent to the forest. As the mag istrate judg e noted, “[ r ] enting snowmobiles to multiple individuals untrained or inex p e r ienced in their operation mig ht cause fire, safety or e n v ironmental haz ards

w ithin the National F orest.” I ndeed, the F orest Serv i c e regulations specifically provide f o r certain restrictions a

nd prohibitions on use by over-snow v ehi cles. 3 6 C.F .R. § 212.81. B ut m o r e importantly
, Parker was running a commercial o perat i on that was predicated on dispatching snowmobiles into the National F orest, and he d id so without obtaining the required special use permit. That this activity “affect[ e d]
, th r e aten[ ed]
, or endang er[ ed] ” National F orest lands is bey ond argument. Id. § 261.1(a)(2).

The F orest Service also h a d jurisdiction over Parker’s activities because they to o k p lace “ in the National F orest Sy stem” fo r t h e p urposes of § 2 61.1(a)(1). Roberson

e n countered Parker on the Hig hway
, but Parker led a gr o u pU N I T E D S T A T E S V

. P AR K E R 10

of his clients “further into the N ational F o r es t on snowmobiles.” The district court ad opted the finding of the mag istrate judg e that Parker’s “commercial or work activity ”

was “ done b y the delivery of mul t iple customers a nd

sno w mobiles to National Forest land at the side of the Salmon la Sac highway .” Photog raphic evidence a dmitted at trial showed that the H ig hway itself h ad b een cleared of snow
on the dates of the encounters, and as such was unsuitable for snowmobiling
, indicating that Parker’s clients were destined for the F orest.

I n other words, Parker’s activities both took p lace “in the National F orest Sy stem” and “ aff e c t[ e d]
, threaten[ ed]
, o r endang er[ ed] National F orest land

. ” For these reasons, we hold that the F orest Service had jurisdiction over Par k e r’ s activities on the H ig hway under b oth § 261.1(a)(1) and (a)(2).

II. V A GU E N E S S C H

A L L E N G

E T O P A RT 261

W e nex t consider whether Part 261 is unconstitutionally vag ue b ecause § 261

. 2
, which defines “National F orest Sy stem road or trail,” “ex empt[ s]

. . . c o unty roads from the prohibitions of part 261.” 3 Althoug h Parker did not raise the constitutionality of Part 2 6 1 b e fore the district court, we permit the as-applied challeng e because a person may “attack the constitutionality of the law under w hich he is charg ed for the first time on a

ppeal.” United States v. Tabacca
, 924 F .2d 906, 9 12 ( 9th Cir. 1991) (citi n g U nited States v. Gilbert
, 813 F

. 2d 1523, 1528–29 (9th Cir. 1987) (noting that “ [ s] u ch

3 We co n stru e P ark er’ s arg um en t in th e rep ly b rief as reiteratin g th at h is ch allen g e to th e reg u latio n s o n v ag u en ess g ro un d s is an as- ap p lied
, rath er th an a f acial, ch allen g e.U N I T E D S T A T E S V

. P AR K E R 11

claims a re attacks on the sufficiency of the information to charg e an offense”)).

L aws are void for vagueness if t h ey “fail[ ] to g ive adequate notice to people o f ordinary intellig ence of what conduct is prohibited. ” I

d

. B ecause Parker’s challeng e does not involve the F irst Amendment, we “ need only ex amine the vag ueness challeng e under the f acts o f the p a r t icular case,” and need not “address whether the sta t u te is v ague as to its other potential applications.” I d

. (internal quotation marks omitted). We must “decide whether, u n d e r a reasonable constru c t i o n of the statute, the conduct in question is prohibited.” Id. (internal quotatio n marks omitted); see also Ass’n de s E l eveurs de Canards et d’Oies d u Quebec v

. Harris , 729 F .3d 937, 946 (9th Cir. 2013).

Part 2 6 1 h as several sections, an d a f a i r r eading of the regulation as a whole reveals that the definition of “National F orest Sy stem road” is only one avenue for dete r m i ning prohibited conduct under the regulation. As discussed above, the p rohibitions ex tend n ot only to N a t i o nal F orest Sy stem roads (which ex empt public ri ghts-of-way ) but also to activities that “occur” in the n ati o nal forest or “affect” property administered by the F orest Service. 3 6 C.F .R. §§ 261.1(a)(1)–(2); cf. U n ited States v. Vasarajs
, 908 F .2d 443, 449 (9th Cir. 1990) (noting that “it would seem fair to charg e t h e i ndividual with such knowledg e of a statute’s meanin g and applicability as he could obtain throug h competent leg al a dvice”) (internal quotation marks omitted).

Not surprising ly
, Parker does not sug g est that the overall requ i r e m ent for a special use permit is unclear. I nstead he takes aim at the narrow i s s u e o f the c ateg oriz ation of the county road. However
, i n keeping w ith the principlesU N I T E D S T A T E S V

. P AR K E R 12

described above, a person of ordinary intellig ence would be

aware t h at dispatching snowmobiles from a road into a National F orest is a

n activity that both occurs in, and affects, property a dministered by the F orest Service. Of partic u l a r sig nificance in Parker’s si t u ation, where a defendant’s conduct demonstrates that he was on notice that the conduct

was proscribed by a statute, we have held that the person’s conduct will def

eat, or contribute to the defeat of, an asapplied challeng e. See United States v. Kilbride
, 5 8 4 F .3d 1240, 1257 (9 t h C i r. 2009). Parker knew that he needed a special u se permit to operate h is snowmobile bu s i ness from the Salmon la Sac road. Roberson told him so b e fore these incidents, Parker was previously cited for the same violation, and when Roberson confronted h im in F ebruary
, Parker said he would “take the ticket,” thus acknowledg ing that h e knew “the rules o f the r oad,” so to s p e a k. Parker’s vagueness challeng e to Part 261 is without merit.

III. E VI D E N C E RE G A R D I N G N O N -E XI S T E N C E O F A R E C O R D

Parker does n o t claim that he had a special use authoriz ation. He doe s, however, challeng e whether the mag istrate judg e abused his discretio n i n a dmitting Roberson’s testimony reg ard i ng the absence of such authoriz ation.

F ederal Rule o f Evidence 8 03(10) permi t s a court to admit “[ t] estimony

—or a certification under Rule 902—that

a dilig ent search failed to d isclose a pub l i c r e c ord o r statement” w here “the testimony or certificatio n is admitted to p rove that the record or statement does not ex ist” or that “a matter did not occur or ex ist, if a public office regularly k eptU N I T E D S T A T E S V

. P AR K E R 13

a record or statement for a matter of that kind.” F ed. R. Evid. 803(10)(A).

Unlike Rule 803(6), which g overns the admissibilit y o f business r ecords, Rule 803(10) does not specify “the testimony of the custodia n o r another qualified w itness.” F ed.R.Evid. 803(6)(D). Rather, Rule 803(10) simply requires “testimony ” that a d i lig ent search d id not turn up a public record. S e e U n i t ed States v. M

cDonald
, 905 F .2d 871, 875 (5th Cir. 1990) (holding that “[ t] he g overnment need not have produced the custodian of the r ecords” to establish the absence o f a record under Rule 803(10)). W e h ave held that, “[ f] or purposes of e stablishing foundation, it [ i] s sufficient t h a t t h e ag ent testified that he was familiar with both t h e process of searchi n g the r ecords and the g overnment’s recordkeeping practices with reg ard to the d atabase.” United States v. Diaz-Lopez
, 625 F .3d 1198, 1 2 0 0 (9th Cir. 2 010) (noting that an ag ent testified about his ex perience a nd p ersonal u se of the d atabase and his knowledg e of its maintenance).

Ro b e r s o n testified that the F orest Service maintained a reg ister of people who have s p e c i al use permits; that he h ad knowledg e of how the reg ister was maintaine d ; that he h ad

access to th e r eg ister as part of his duties; that as part of his duties he k

new where people could ob t a i n special use permits; that h e used the reg ister to keep track of people w ho have special use p e r

mits and o f a c tivities taking place on National F or e s t l and; and that he reviewed those records a s part of his duties. Roberson f urther testified that h e h ad checked the F orest Service reg ister to see whether Parker h ad

a special use p ermit, and that he k new “ o f [ his] own personal knowledg e” that neither Parker nor his company had a special use permit.U N I T E D S T A T E S V

. P AR K E R 14

The foundation established by Roberson was ex tensive. N ot only did he detail substantial knowledg e of the perm i t

s y s t em and his regu lar use of the sy stem, he described h o w the reg ister was maintained and h ow he undertook his search. Roberson’s testimony was properly a dmitted to prove that his “dilig ent search faile d t o disclose a public record” of the permit under Rule 803(10).

IV. S U F F I C I E N C Y O F E V I D E N C E A S T O C O U N T F I V E

F inally
, we con sider whether there was sufficient evidence to support Parker’s co n v iction on Count 5, which stemmed from t h e activities of December 2011 and formed the basis for one of the two c o unts r elating t o co nducting unlawful work activity on l a n ds encompassed by Part 261. “Evidence is sufficient to s upport a conviction unless, viewing the evidence in the lig h t m o s t favorable to the prosecution, no rational trier of fact could h a v e f o und the essential elements o f the crime bey o nd a r e a sonable doubt.” United States v. Doe
, 136 F .3d 631, 636 (9 t h Cir. 1998). Section 261.10(c) p rohibits, in relevant part and as charg ed in Count 5, (1) “conducting any k i nd of work a ctivity o r service”; (2) on lands encompassed by the regulation; (3) without a special u se authoriz ation. 36 C.F .R. § 261.10(c).

Taken in the lig ht most f

av orable to the prosecution, the evidence easily satisfies the sufficiency stan d ard. As to Element 1 (“work activity o r service”), Roberson testified t hat he o bserved Parker o n the Hig hway with f ifteen customers and snowmobiles; identified a truck with a trailer belong ing to Cascade Play time Rentals, Parker’s bu s i n e ss; and watched Parker flee the scene when Roberson attempted to make c ontact with him. Parker’s view that Roberson failed to provide a link between Parker and c o mmercial activity i sU N I T E D S T A T E S V

. P AR K E R 15

belied b y common sense. I n lig ht of t h e t ru ck adorned with Parker’s business name, the snowmobiles, people standing in the road ready f

or sno w m obiling
, and Parker’s flig ht, the mag istrate judg e was entitled to credit the objective evidence and d r aw reasonable inferences from the circumstantial evidence. S

ee United States v

. Jackson
, 72 F .3d 1370, 1381 (9th Cir. 1995).

Parker does not seriously contest the other elements, nor

c o u l d he. F or Element 2 (lands encompassed by t h e regulation), Roberson testified that he observe d Parker at points of the Hig hway entirely s urrounded by the National Fo rest and that he watched Roberson lead all but two of the snowmobilers into the fo rest. F or Element 3 (special use authoriz ation), Roberson testified that Parker did n o t have o r display a special use authoriz ation, and that a search of the database revealed that Parker h ad no authoriz ation. B ecause
a “rational trier of fact could have f o u nd the essential elements of the crime bey ond a reasonable doubt
, ” Doe
, 136 F

. 3d at 636, sufficient evidence supported P arker’s conviction on Count 5.

AF F IRMED.