USA v. A. Bohn

• Decision Date: 17 September 2010
• Docket Number: No. 09-30397.,09-30397.
• Citation: 622 F.3d 1129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James A. BOHN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

622 F.3d 1129

UNITED STATES of America, Plaintiff-Appellee,

v.James A. BOHN, Defendant-Appellant.

No. 09-30397.

United States Court of Appeals,Ninth Circuit.

Submitted July 16, 2010. ^*

Filed Sept. 17, 2010.

COPYRIGHT MATERIAL OMITTED.

James A. Bohn, defendant-appellant pro se.

Stephanie Van Marter, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, Senior District Judge, Presiding. D.C. No. CR 08-00018-RHW-1.

Before: SUSAN P. GRABER and RICHARD A. PAEZ, Circuit Judges, and LARRY A. BURNS, ^** District Judge.

OPINION

GRABER, Circuit Judge:

Defendant James A. Bohn did not wear a helmet while riding his motorcycle on a federal road located in the Lake Chelan National Recreational Area, and he disobeyed a National Park Service (“NPS”) ranger's orders to stop and to identify himself. Defendant challenges an NPS traffic regulation that adopts the substantive prohibitions of state law, including the requirement that motorcyclists wear helmets. We hold that, pursuant to its powers under the Property Clause, the federal government may enforce that regulation on land over which it has merely proprietary jurisdiction. Finding no merit in Defendant's arguments on this or any other issue, we affirm.

FACTUAL AND PROCEDURAL HISTORY

There is a road in the Stehekin Valley of Washington state. The Stehekin Valley Road originated as a county road, but Chelan County transferred its interest in the road to the federal government in 1970. ¹ The Stehekin Valley Road is located within the Lake Chelan National Recreational Area, which the NPS administers as part of the North Cascades National Park Service Complex.

On August 24, 2007, Defendant and a companion passed an NPS ranger on the Stehekin Valley Road. The ranger saw that Defendant and his companion were riding motorcycles and that neither one of them was wearing a helmet. The uniformed ranger, who was in a marked NPS vehicle, motioned for the motorcyclists to stop. As they continued past him, he also verbally ordered them to stop. Defendant acknowledged the order, but did not stop. The ranger then drove after the motorcyclists, honking his horn at them and motioning repeatedly for them to pull over. Defendant's companion pulled over and stopped. Defendant did not. The ranger followed Defendant.

Defendant eventually stopped at a building farther down the road. The ranger stopped also and asked Defendant for his name. Defendant provided only his first name and refused to give his last name. However, the ranger deduced Defendant's last name from the first name and from Defendant's local reputation. Defendant left on his motorcycle shortly thereafter.

The ranger cited Defendant for failure to wear a helmet, in violation of 36 C.F.R. § 4.2(b), and for refusing to obey a lawful order, in violation of 36 C.F.R. § 2.32(a)(2). At trial, Defendant subpoenaed the Chelan County sheriff to testify as a defense witness. The sheriff did not appear to testify, and Defendant accused the prosecutor of telling the sheriff not to come to testify. But the magistrate judge found that the sheriff voluntarily failed to appear. After a bench trial, the magistrate judge found Defendant guilty of the violations and entered judgment against him. On appeal, the district court affirmed the judgments of conviction. Defendant timely appeals.

DISCUSSION

I. The Property Clause

Congress authorized the NPS to

regulate the use of the Federal areas known as national parks, ... to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1. The Secretary of the Interior has the authority to issue “such rules and regulations as he may deem necessary or proper for the use and management of the parks.” Id. § 3.

Pursuant to that congressional grant of rule-making authority, the NPS issued 36 C.F.R. § 4.2, which provides:

(a) Unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within a park area are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part.

(b) Violating a provision of State law is prohibited.

The regulation applies to “all persons entering, using, visiting, or otherwise within ... the boundaries of federally owned lands and waters administered by the National Park Service.” 36 C.F.R. § 1.2(a)(1); see also id. § 4.1 (“The applicability of the regulations in this part is described in § 1.2 of this chapter.”). Subject to certain exceptions not applicable here, Washington law prohibits driving a motorcycle without wearing a helmet on a state highway, county road, or city street. ² Wash. Rev.Code § 46.37.530(1)(c).

Defendant contends that, because the federal government does not have exclusive or concurrent jurisdiction over the Stehekin Valley Road, requiring motorcyclists to wear helmets on the road exceeds congressional authority. We review de novo the constitutionality of a statute or regulation challenged as exceeding congressional authority. Doe v. Rumsfeld, 435 F.3d 980, 984 (9th Cir.2006).

The federal government has at least proprietary jurisdiction over land that it owns. Kleppe v. New Mexico, 426 U.S. 529, 540, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976). Here, Defendant concedes that the federal government has proprietary jurisdiction over the Stehekin Valley Road. For purposes of this appeal, we assume without deciding that the federal government lacks exclusive or concurrent jurisdiction over the road. ³ The Property Clause grants Congress plenary power to “determine what are needful rules respecting the public lands.” Id. at 539, 96 S.Ct. 2285 (internal quotation marks omitted). That power does not depend on the existence of concurrent or exclusive jurisdiction. Id. at 542-43, 96 S.Ct. 2285. In Kleppe, the Supreme Court explained:

[W]hile Congress can acquire exclusive or partial jurisdiction over lands within a State by the State's consent or cession, the presence or absence of such jurisdiction has nothing to do with Congress' powers under the Property Clause. Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause.

Id. Thus, Congress has power over the Stehekin Valley Road under the Property Clause, even if the federal government lacks concurrent or exclusive jurisdiction over it.

In Kleppe, which involved a challenge to the federal government's authority over wild horses and burros, the Court held that the Property Clause grants Congress the power “to regulate and protect the wildlife living [on public lands].” Id. at 541, 96 S.Ct. 2285. Wildlife regulations are not at issue in the present case. But the Supreme Court also noted in Kleppe that the Property Clause allows Congress “to control the[ ] occupancy and use” of public lands and to enact legislation “respecting the public lands if it be found to be necessary for the protection of the public, or of intending settlers.” Id. at 540, 96 S.Ct. 2285 (internal quotation marks and brackets omitted).

Here, Congress authorized regulations “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired.” 16 U.S.C. § 1. Regulating the use of federal parks to protect the land and the wildlife living there and to promote non-destructive use of the parks easily falls within the permissible category of “needful rules” that “control the[ ] ... use” of federal land, and “protect[ ] ... the public.” Kleppe, 426 U.S. at 539-40, 96 S.Ct. 2285. We hold that the grant of rule-making authority to the NPS did not exceed congressional power under the Property Clause. Nor does 36 C.F.R. § 4.2, a regulation that controls traffic and motor vehicle use, exceed Congress' Property Clause power. That regulation clearly qualifies as a needful rule for the use of federal land and the protection of the public.

Defendant asserts that, under the Property Clause, regulations must relate to the designated purpose of the federal land. But, even assuming for the sake of argument that the traffic regulation here does not relate to “provid[ing] for the enjoyment of the [national parks] in such manner and by such means as will leave them unimpaired for the enjoyment of future generations,” 16 U.S.C. § 1, the authority that Defendant cites for his proposition is not on point. Free Enterprise Canoe Renters Ass'n of Missouri v. Watt, 711 F.2d 852, 856 (8th Cir.1983), and the case on which it relies, Minnesota v. Block, 660 F.2d 1240, 1249 (8th Cir.1981), hold that Property Clause power extends to conduct threatening the designated purpose of federal lands whether that conduct occurs on or off federal land. Neither case holds that Property Clause power over conduct occurring on federal land is limited by the designated purpose of the federal land. Defendant's citations are therefore unpersuasive.

Defendant also argues that 36 C.F.R. § 4.2 is not needful for the protection of the public because there is no federal policy on motorcycle helmets and because the state laws incorporated by reference into 36 C.F.R. § 4.2 either do not require motorcycle helmets under all circumstances or do not require them at all. Therefore, Defendant reasons, 36 C.F.R. § 4.2 does not serve a federal interest in safety. His logic is flawed. The fact that the federal government does not generally mandate helmet use does not mean that the federal government has concluded that helmet use never serves the interest of safety. Similarly, that state governments sometimes...