United States v. Hymans

• Decision Date: 07 July 1972
• Docket Number: No. 71-1407,71-1441.,71-1407
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stewart HYMANS and Mark Paynter, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

463 F.2d 615 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Stewart HYMANS and Mark Paynter, Defendants-Appellants.

Nos. 71-1407, 71-1441.

United States Court of Appeals, Tenth Circuit.

July 7, 1972.

Paul D. Cooper, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.

Thomas T. Crumpacker, Denver, Colo. (Wood, Ris & Hames, Denver, Colo., on the brief), for defendants-appellants.

Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Perhaps the primary issue here to be resolved is whether nudity under the circumstances of this case constitutes "indecent conduct." We conclude that it does. A bit of background information will place the controversy in focus.

As concerns National Forests, 16 U.S. C. § 551 provides, inter alia, that the Secretary of Agriculture "may make such rules and regulations * * * as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction * * *."

Acting in a manner he deemed to be in accord with the foregoing statute, the Secretary promulgated the following regulation (36 C.F.R. 251.93):

"The following acts are prohibited at developed recreation sites and posted areas of concentrated public recreation use.

"(a) Inciting or participating in riots, or indulging in boisterous, abusive, threatening, or indecent conduct."

Pursuant to this regulation, the geographical area with which we are here concerned was posted as an area of Concentrated Recreation Use, with the legend on the notice containing the following:

"PLEASE

NO CAMPING — FIRES OR PUBLIC NUDITY"

It was in this general setting that the two appellants, Stewart Hymans and Mark Paynter, along with David Wright, Karen Whiteside and Dennis Holt were apprehended by forest rangers while skinnydipping in the Roaring Fork River within a posted area in the White River National Forest. Specifically, the five had been swimming in the nude and at the moment of their arrest were on the bank, sunning themselves, and eating watermelon.

Based on these events, Hymans and Paynter, and the others, were charged with a violation of 16 U.S.C. § 551 and 36 C.F.R. 251.93, i. e., indecent conduct in a developed recreation site and a posted area of concentrated public recreation use. Pursuant to 18 U.S.C. § 3401, each waived his or her right to a trial by jury before a judge of a district court and consented to a trial before the Commissioner. Upon trial, all were convicted and each was fined $50. Appeal was then taken to the United States District Court which, upon review of the record as made before the Commissioner, affirmed.

Hymans and Paynter now appeal to this court and their counsel frames the issues as follows: (1) Whether skinnydipping is indecent conduct within the meaning of 36 C.F.R. 251.93(a); (2) whether the indecent conduct regulation is void for vagueness; and (3) whether the indecent conduct regulation is outside the scope of the power to regulate given by Congress to the Secretary of Agriculture. We shall now consider each of these grounds, but in reverse order.

I.

The Secretary of Agriculture is empowered by 16 U.S.C. § 551 to make and promulgate rules and regulations concerning the "occupancy and use" of National Forests. It would certainly appear that a rule by the Secretary forbidding indecent conduct in posted areas of concentrated public use would be well within the power to regulate the occupancy and use of National Forests delegated to him by Congress.

In McMichael v. United States, 355 F.2d 283 (9th Cir. 1965), the argument was advanced, as it is here, that though the Secretary of Agriculture may make rules and regulations which relate to "occupancy and use" of National Forests, the underlying purpose of all such rules and regulations must still be to "preserve the forests from destruction," and that if such not be the underlying purpose of a particular regulation, then the regulation in question is beyond the power delegated by Congress. This argument was rejected with the observation that such was at odds with the "consistent administrative interpretation" of 16 U.S.C. § 551. We agree. In McMichael, a regulation prohibiting the operation of a motorized vehicle within a posted portion of the Boise National Forest was held valid.

In support of our conclusion that Congress did empower the Secretary to make a rule and regulation of the type here under consideration, see also United States v. Cassiagnol, 420 F.2d 868 (4th Cir. 1970), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970), and United States v. Reeves, 39 F.Supp. 580 (W.D.Ark.1941). In Cassiagnol, where the court was concerned with a delegation by Congress to the General Services Administration of the power to make rules and regulations relating to Government property, reference was made, by way of dictum, to the fact that "similar grants of general regulatory and administrative authority are common, e. g., national parks, national military parks and battlefields, national forests, watersheds, etc." Cassiagnol, incidentally, involved a regulation prohibiting unwarranted loitering or assembly and unseemly or disorderly conduct while on Government property.

In Reeves, a regulation by the Secretary that dogs be not allowed to run at large in the Ozark National Forest was upheld with the following pertinent comment:

"The statute authorizes the Secretary of Agriculture in the management of the forests to issue rules `to regulate their occupancy and use.\' As long as such rules and regulations tend to protect the lands and faithfully preserve the interest of the people of the whole country in the lands, the courts should enforce such rules and regulations. A private owner is entitled to protection against willful trespasses and I see no reason why the government is not entitled to the same protection. The mere fact that any one could heretofore go upon the land or could permit his dog to enter the land is not any reason for holding the rule invalid. The government has the right to withdraw such custom-established license at any time.

"The grant of power to issue rules and regulations pertaining to the use and occupancy of the lands is not dependent upon the power to preserve the forests from destruction. The grant of the power to regulate the use and occupancy is in addition and independent of the power to issue rules and regulations to preserve the forests from destruction. One of the attributes of ownership is the right to prevent trespasses by persons or animals.

"National Forests are established for the benefit of the public and if the best interests of the public require that unconfined dogs or dogs not in leash shall not be permitted thereon, as the Secretary of Agriculture found when he issued the regulation now under consideration, the same is valid. * * *"

II.

It is next urged that the regulation of the Secretary prohibiting indecent conduct in certain designated areas in a National Forest is unconstitutionally vague, with emphasis being made on the alleged vagueness of the two words "indecent conduct," and more particularly the one word "indecent." We are of the view that though indecent conduct may be manifested in a variety of ways, the phrase itself has a well defined meaning and is not subject to the charge of vagueness. In Manuel Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), the words "obscene, lewd, lascivious, indecent, filthy or vile" were held to connote something that is portrayed in a manner so...