FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHAWN S. PARKER,

Defendant-Appellant.

No. 13-30157

D.C. No.

2:12-cr-02089-WFN-1

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted

June 4, 2014—Seattle, Washington

Filed July 31, 2014

Before: M. Margaret McKeown and Paul J. Watford,

Circuit Judges, and Barbara Jacobs Rothstein, Senior

District Judge.*

Opinion by Judge McKeown

* The Honorable Barbara Jacobs Rothstein, Senior District Judge for the

U.S. District Court for the Western District of Washington, sitting by

designation.
2 UNITED STATES V. PARKER

SUMMARY**

Criminal Law

The panel affirmed a commercial snowmobile operator’s

conviction on two counts of conducting a “work activity or

service” on United States Forest Service land without a

special use authorization and one count of interfering with a

Forest Service officer engaged in the performance of his

official duties.

The panel held that although the defendant’s clients

congregated on a county road subject to an easement, the

Forest Service had jurisdiction over his activities because,

under 36 C.F.R. § 261.1(a)(2), they “affect[ed], threaten[ed],

or endanger[ed] property of the United States administered

by the Forest Service,” and because, under § 261.1(a)(1), they

took place “in the National Forest System.”

The panel rejected the defendant’s contention that the

regulatory framework governing Forest Service control over

roads is unconstitutionally vague.

The panel held that a Forest Service officer’s testimony

regarding the absence of a special use authorization was

properly admitted under Fed. R. Evid. 803(10).

The panel rejected the defendant’s sufficiency-ofevidence challenge to his conviction on one of the unlawfulwork-activity counts.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. PARKER 3

COUNSEL

Kraig Robert Gardner (argued), Kirkham Law Office,

Ellensburg, Washington, for Defendant-Appellant.

Tyler H.L. Tornabene (argued), Assistant United States

Attorney, Michael C. Ormsby, United States Attorney,

Russell E. Smoot, Assistant United States Attorney,

Katharine Brereton, United States Attorney Law Clerk,

Spokane, Washington, for Plaintiff-Appellee.

OPINION

McKEOWN, Circuit Judge:

Shawn Parker, a commercial snowmobile operator, was

convicted on two counts of conducting a “work activity or

service” on United States Forest Service land without a

special use authorization and one count of interfering with a

Forest Service officer engaged in the performance of his

official duties, both violations of 36 C.F.R. Part 261. We

affirm his conviction. Special use permits are required for

certain activities, such as commercial ventures, that occur on

Forest Service lands or affect such property. Although

Parker’s clients congregated on a county road subject to an

easement, the Forest Service had jurisdiction over his

activities because they “affect[ed], threaten[ed], or

endanger[ed] property of the United States administered by

the Forest Service,” id. § 261.1(a)(2), and because they took

place “in the National Forest System.” Id. § 261.1(a)(1). We

reject Parker’s claim that the regulatory framework governing

Forest Service control over roads is unconstitutionally vague.
4 UNITED STATES V. PARKER

BACKGROUND

This case focuses on two separate incidents involving

Forest Service Road 4300, also known as Salmon la Sac

Highway (“the Highway”), in the Okanogan–Wenatchee

National Forest (the “Forest”) in Washington State. In

February 2011, Forest Service Officer Steve Roberson was

patrolling a stretch of the Highway just north of Cooper River

Junction, where he encountered trucks, trailers, and

snowmobile equipment belonging to Parker, whom he had

known for fifteen years. The Highway itself was bare,

without snow, but snowmobilers often used the adjacent

groomed trails for recreational purposes.

Roberson, who arrived in a marked Forest Service vehicle

and wearing his duty gear, saw Parker talking with about

twelve people, dressed in snowmobile clothing, standing near

fourteen snowmobiles. Roberson reminded Parker, as he had

in the past, that Parker had no special use authorization, and

told Parker that he was in violation of Forest Service

regulations and should turn his equipment around. Parker

refused to do so, and told Roberson that his clients “had

rented and paid for [the snowmobiles],” and that they “were

going to ride and he [woul]d take the ticket.” Parker had

previously been 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.

Later that year, in mid-December, Roberson again

encountered Parker near the Cooper River Junction. A truck

from Parker’s company, Cascade Playtime Rentals, was

parked along the Highway, and Roberson saw Parker talking

with a group of about fifteen people surrounded by a large
UNITED STATES V. PARKER 5

number of snowmobiles. Parker looked at Roberson, pulled

his helmet on, and led all but two of the snowmobilers into

the National Forest on snowmobiles, including onto Forest

Service Road 4600, also known as Cooper Lake Road. Parker

did not display a special use authorization to Roberson during

this encounter. On this day, as before, the Highway had been

cleared of snow.

After a bench trial before a magistrate judge, Parker was

found guilty of two misdemeanor counts of “conducting any

kind of work activity or service” on National Forest land

without a special use authorization in violation of 36 C.F.R.

§ 261.10(c), and one misdemeanor count of threatening,

resisting, intimidating, or interfering with a Forest Service

officer engaged in the performance of his official duties in the

protection or administration of National Forest land in

violation of 36 C.F.R. § 261.3(a). The district court affirmed

the decision of the magistrate judge and sentenced Parker to

two years’ probation and a fine.

ANALYSIS

I. FOREST SERVICE JURISDICTION OVER ACTIVITIES

AFFECTING FOREST SERVICE LAND

Parker’s principal argument is that his actions took place

on Salmon la Sac road—a Kittitas County road authorized by

an easement from Plum Creek Timber Company to the

county—and that the Forest Service’s own regulations

explicitly exempt such a road from the operation of 36 C.F.R.

Part 261. The flaw in this reasoning is that Parker cites only

part of the relevant regulation and overlooks the Forest

Service’s broad authority to regulate activities “affecting”

Forest Service land.
6 UNITED STATES V. PARKER

Part 261 prohibits certain activities in and around Forest

Service property, including, as relevant here, selling

merchandise or conducting work activities or services not

authorized by federal law, regulation, or special-use

authorization. 36 C.F.R. § 261.10(c). The prohibitions of Part

261 apply when an act or omission “occurs in the National

Forest System or on a National Forest System road or trail,”

id. § 261.1(a)(1), or when the act or omission “affects,

threatens, or endangers property of the United States

administered by the Forest Service.” Id. § 261.1(a)(2). Parker

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

The regulation defines “National Forest System” to

include “all national forest lands and waters reserved or

withdrawn from the public domain of the United States [or]

. . . acquired . . . .” Id. § 261.2. A “[f]orest road or trail” is

defined as 

[a] road or trail wholly or partly within or

adjacent to and serving the National Forest

System that the Forest Service determines is

necessary for the protection, administration,

and utilization of the National Forest System

and the use and development of its

resources[,]

and “National Forest System road” is defined as a subset of

the above, namely

[a] forest road other than a road which has

been authorized by a legally documented
UNITED STATES V. PARKER 7

right-of-way held by a State, county, or other

local public road authority.

Id. (emphasis added).

It appears that the Highway at issue here was not a

“National Forest System road,” because that term is reserved

for forest roads not subject to easements held by public

entities, id., and Kittitas County had been granted an

easement over the Highway “for public road purposes.”1

Although the existence of a right-of-way or an easement may

remove a road from the definition of “National Forest System

road,” it does not deprive the Forest Service of authority over

the road. 

To begin, exempting roads subject to an easement from

the definition of “National Forest System road or trail” was

expressly meant not to “in any way affect the Forest Service’s

jurisdiction to enforce traffic laws, to protect NFS lands

underlying routes, or to regulate use, including use on valid

rights-of-way.” Travel Management; Designated Routes and

Areas for Motor Vehicle Use, 70 Fed. Reg. 68,264, 68,275

(Nov. 9, 2005); see also id. at 68,283 (“Part 261–

Prohibitions,” paragraph 2) (noting that the comments at

68,275 applied to both § 261 and § 212). Although Parker

cites language, drafted for inclusion in the rule, that may have

suggested that the Forest Service was ceding all authority

1 The magistrate judge found that the easement did not create exclusive

rights in Kittitas County; that it permitted Kittitas County to “extend rights

and privileges for use . . . to other governmental agencies”; and that it was

“never intended to deprive any other governmental agency of the ability

or jurisdiction to regulate conduct on the highway or within its described

easement.”
8 UNITED STATES V. PARKER

over roads with rights-of-way, the language Parker references

was deleted from the final rule. Id. at 68,275. Because the

Forest Service’s enforcement actions in Parker’s case related

to the “protect[ion of] NFS lands underlying routes” or the

“regula[tion of] use,” the Forest Service retained jurisdiction

over those activities whether or not the road is not a National

Forest System road.

Recognizing the Forest Service’s broad authority to

protect its lands, we turn to the specific authority granted

under § 261.1(a)(2), which covers acts or omissions that

“affect[], threaten[], or endanger[] property of the United

States administered by the Forest Service.” “It is well

established that [the Property Clause of the Constitution2]

grants to the United States power to regulate conduct on nonfederal land when reasonably necessary to protect adjacent

federal property. . . .” United States v. Lindsey, 595 F.2d 5, 6

(9th Cir. 1979) (per curiam). Lindsey, like Parker’s case,

involved regulations issued pursuant to 16 U.S.C. § 551 and

encompassing activities that “affect[], threaten[] or

endanger[]” Forest Service property. Two people were

charged with violating Department of Agriculture regulations

prohibiting the use of campfires without a permit. Id. at 6,

n.1. We held that the federal government had jurisdiction to

regulate the building of campfires on land “legally on the

river bed, title to which is held by the State,” in order to

protect the surrounding National Forests, because the

government retained jurisdiction under the Property Clause.

Id. at 6–7. Accord United States v. Alford, 274 U.S. 264, 267

2 The Property Clause provides that “Congress shall have Power to

dispose of and make all needful Rules and Regulations respecting the

Territory or other Property belonging to the United States.” U.S. Const.

art. IV.
UNITED STATES V. PARKER 9

(1927) (holding that Congress could “prohibit the doing of

acts upon privately owned lands that imperil the publicly

owned forests,” in a case involving the building of fires);

United States v. Anglin, 438 F.3d 1229, 1230 (10th Cir. 2006)

(holding that it was “irrelevant” that defendants were

presented while off public land with a notice that they had

violated Part 261 while on public land); Free Enter. Canoe

Renters Ass’n of Missouri v. Watt, 711 F.2d 852, 856 (8th Cir.

1983) (noting, in a case involving permit requirements for

canoe outfitters whose commercial activities took place on

public roads within a National Scenic Riverway, that

Congress can regulate conduct not on federal land that would

threaten federal land).

The commercial activity here, like building a fire or

launching a canoe, is one that has implications for National

Forest land even if commenced on property adjacent to the

forest. As the magistrate judge noted, “[r]enting snowmobiles

to multiple individuals untrained or inexperienced in their

operation might cause fire, safety or environmental hazards

within the National Forest.” Indeed, the Forest Service

regulations specifically provide for certain restrictions and

prohibitions on use by over-snow vehicles. 36 C.F.R.

§ 212.81. But more importantly, Parker was running a

commercial operation that was predicated on dispatching

snowmobiles into the National Forest, and he did so without

obtaining the required special use permit. That this activity

“affect[ed], threaten[ed], or endanger[ed]” National Forest

lands is beyond argument. Id. § 261.1(a)(2). 

The Forest Service also had jurisdiction over Parker’s

activities because they took place “in the National Forest

System” for the purposes of § 261.1(a)(1). Roberson

encountered Parker on the Highway, but Parker led a group
10 UNITED STATES V. PARKER

of his clients “further into the National Forest on

snowmobiles.” The district court adopted the finding of the

magistrate judge that Parker’s “commercial or work activity”

was “done by the delivery of multiple customers and

snowmobiles to National Forest land at the side of the

Salmon la Sac highway.” Photographic evidence admitted at

trial showed that the Highway itself had been 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 Forest.

In other words, Parker’s activities both took place “in the

National Forest System” and “affect[ed], threaten[ed], or

endanger[ed] National Forest land.” For these reasons, we

hold that the Forest Service had jurisdiction over Parker’s

activities on the Highway under both § 261.1(a)(1) and (a)(2).

II. VAGUENESS CHALLENGE TO PART 261

We next consider whether Part 261 is unconstitutionally

vague because § 261.2, which defines “National Forest

System road or trail,” “exempt[s] . . . county roads from the

prohibitions of part 261.”3 Although Parker did not raise the

constitutionality of Part 261 before the district court, we

permit the as-applied challenge because a person may “attack

the constitutionality of the law under which he is charged for

the first time on appeal.” United States v. Tabacca, 924 F.2d

906, 912 (9th Cir. 1991) (citing United States v. Gilbert,

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

3 We construe Parker’s argument in the reply brief as reiterating that his

challenge to the regulations on vagueness grounds is an as-applied, rather

than a facial, challenge.
UNITED STATES V. PARKER 11

claims are attacks on the sufficiency of the information to

charge an offense”)).

Laws are void for vagueness if they “fail[] to give

adequate notice to people of ordinary intelligence of what

conduct is prohibited.” Id. Because Parker’s challenge does

not involve the First Amendment, we “need only examine the

vagueness challenge under the facts of the particular case,”

and need not “address whether the statute is vague as to its

other potential applications.” Id. (internal quotation marks

omitted). We must “decide whether, under a reasonable

construction of the statute, the conduct in question is

prohibited.” Id. (internal quotation marks omitted); see also

Ass’n des Eleveurs de Canards et d’Oies du Quebec v.

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

Part 261 has several sections, and a fair reading of the

regulation as a whole reveals that the definition of “National

Forest System road” is only one avenue for determining

prohibited conduct under the regulation. As discussed above,

the prohibitions extend not only to National Forest System

roads (which exempt public rights-of-way) but also to

activities that “occur” in the national forest or “affect”

property administered by the Forest Service. 36 C.F.R.

§§ 261.1(a)(1)–(2); cf. United States v. Vasarajs, 908 F.2d

443, 449 (9th Cir. 1990) (noting that “it would seem fair to

charge the individual with such knowledge of a statute’s

meaning and applicability as he could obtain through

competent legal advice”) (internal quotation marks omitted).

Not surprisingly, Parker does not suggest that the overall

requirement for a special use permit is unclear. Instead he

takes aim at the narrow issue of the categorization of the

county road. However, in keeping with the principles
12 UNITED STATES V. PARKER

described above, a person of ordinary intelligence would be

aware that dispatching snowmobiles from a road into a

National Forest is an activity that both occurs in, and affects,

property administered by the Forest Service. Of particular

significance in Parker’s situation, 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 defeat, or contribute to the defeat of, an asapplied challenge. See United States v. Kilbride, 584 F.3d

1240, 1257 (9th Cir. 2009). Parker knew that he needed a

special use permit to operate his snowmobile business from

the Salmon la Sac road. Roberson told him so before these

incidents, Parker was previously cited for the same violation,

and when Roberson confronted him in February, Parker said

he would “take the ticket,” thus acknowledging that he knew

“the rules of the road,” so to speak. Parker’s vagueness

challenge to Part 261 is without merit.

III. EVIDENCE REGARDING NON-EXISTENCE OF A

RECORD

Parker does not claim that he had a special use

authorization. He does, however, challenge whether the

magistrate judge abused his discretion in admitting

Roberson’s testimony regarding the absence of such

authorization.

Federal Rule of Evidence 803(10) permits a court to

admit “[t]estimony—or a certification under Rule 902—that

a diligent search failed to disclose a public record or

statement” where “the testimony or certification is admitted

to prove that the record or statement does not exist” or that “a

matter did not occur or exist, if a public office regularly kept
UNITED STATES V. PARKER 13

a record or statement for a matter of that kind.” Fed. R. Evid.

803(10)(A).

Unlike Rule 803(6), which governs the admissibility of

business records, Rule 803(10) does not specify “the

testimony of the custodian or another qualified witness.”

Fed.R.Evid. 803(6)(D). Rather, Rule 803(10) simply requires

“testimony” that a diligent search did not turn up a public

record. See United States v. McDonald, 905 F.2d 871, 875

(5th Cir. 1990) (holding that “[t]he government need not have

produced the custodian of the records” to establish the

absence of a record under Rule 803(10)). We have held that,

“[f]or purposes of establishing foundation, it [i]s sufficient

that the agent testified that he was familiar with both the

process of searching the records and the government’s

recordkeeping practices with regard to the database.” United

States v. Diaz-Lopez, 625 F.3d 1198, 1200 (9th Cir. 2010)

(noting that an agent testified about his experience and

personal use of the database and his knowledge of its

maintenance).

Roberson testified that the Forest Service maintained a

register of people who have special use permits; that he had

knowledge of how the register was maintained; that he had

access to the register as part of his duties; that as part of his

duties he knew where people could obtain special use

permits; that he used the register to keep track of people who

have special use permits and of activities taking place on

National Forest land; and that he reviewed those records as

part of his duties. Roberson further testified that he had

checked the Forest Service register to see whether Parker had

a special use permit, and that he knew “of [his] own personal

knowledge” that neither Parker nor his company had a special

use permit.
14 UNITED STATES V. PARKER

The foundation established by Roberson was extensive.

Not only did he detail substantial knowledge of the permit

system and his regular use of the system, he described how

the register was maintained and how he undertook his search.

Roberson’s testimony was properly admitted to prove that his

“diligent search failed to disclose a public record” of the

permit under Rule 803(10).

IV. SUFFICIENCY OF EVIDENCE AS TO COUNT FIVE

Finally, we consider whether there was sufficient

evidence to support Parker’s conviction on Count 5, which

stemmed from the activities of December 2011 and formed

the basis for one of the two counts relating to conducting

unlawful work activity on lands encompassed by Part 261.

“Evidence is sufficient to support a conviction unless,

viewing the evidence in the light most favorable to the

prosecution, no rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Doe, 136 F.3d 631, 636 (9th Cir. 1998).

Section 261.10(c) prohibits, in relevant part and as charged in

Count 5, (1) “conducting any kind of work activity or

service”; (2) on lands encompassed by the regulation;

(3) without a special use authorization. 36 C.F.R. § 261.10(c).

Taken in the light most favorable to the prosecution, the

evidence easily satisfies the sufficiency standard. As to

Element 1 (“work activity or service”), Roberson testified

that he observed Parker on the Highway with fifteen

customers and snowmobiles; identified a truck with a trailer

belonging to Cascade Playtime Rentals, Parker’s business;

and watched Parker flee the scene when Roberson attempted

to make contact with him. Parker’s view that Roberson failed

to provide a link between Parker and commercial activity is
UNITED STATES V. PARKER 15

belied by common sense. In light of the truck adorned with

Parker’s business name, the snowmobiles, people standing in

the road ready for snowmobiling, and Parker’s flight, the

magistrate judge was entitled to credit the objective evidence

and draw reasonable inferences from the circumstantial

evidence. See United States v. Jackson, 72 F.3d 1370, 1381

(9th Cir. 1995).

Parker does not seriously contest the other elements, nor

could he. For Element 2 (lands encompassed by the

regulation), Roberson testified that he observed Parker at

points of the Highway entirely surrounded by the National

Forest and that he watched Roberson lead all but two of the

snowmobilers into the forest. For Element 3 (special use

authorization), Roberson testified that Parker did not have or

display a special use authorization, and that a search of the

database revealed that Parker had no authorization. Because

a “rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt,” Doe,

136 F.3d at 636, sufficient evidence supported Parker’s

conviction on Count 5.

AFFIRMED.