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United States v. Griefen



During the summer of 1996, environmental activists vandalized and occupied the terminus of a Forest Service road in the Nez Perce National Forest of Idaho.[1] The activists dug trenches to make water flow across the road, removed drainage culverts, and built structures in the construction area that they then occupied. These structures were built of organic debris and metal and were placed in the roadbed. The activists hoped to interrupt construction on the road and inhibit a contracted timber sale to which the road led. The Forest Supervisor issued a Special Restriction, or “closure order,” closing the area of the road in question to all but authorized personnel. Upon issuance of the closure order, Forest Service agents issued copies of the order to the protesters and told them to remove themselves from the construction area. Most of the protesters complied, but the petitioners did not. Forest Service agents forcibly removed petitioners from structures at the site. The petitioners were charged with violating section 551 of the Forest Service Organic Act,[2] as well as 36 C.F.R. sections 261.53[3] and 261.10(a).[4] A magistrate judge convicted the petitioners on both counts. The United States District Court for the District of Idaho affirmed the convictions.

The petitioners appealed their convictions to the Ninth Circuit. First, they claimed that the closure order operated as an unconstitutional prior restraint on their right to free speech under the First Amendment of the United States Constitution.[5] In a related argument, the petitioners also posited that the Forest Service possessed too much discretion in its ability to exclude protesters from the site. Second, three of the petitioners alleged that, as a matter of statutory construction, they did not “maintain”[6] the structures that they occupied in protest and therefore, were exempt from prosecution under the Forest Service regulation.

The Ninth Circuit review of the petitioners’ First Amendment claim focused on whether the closure order issued under Forest Service regulations satisfied the three-part compelling interest test first enunciated in United States v. O’Brien[7] and reiterated in Ward v. Rock Against Racism.[8] This test establishes that 1) restrictions that inhibit the exercise of free speech rights must be content-neutral;[9] 2) such restrictions must be narrowly tailored to meet a “significant government interest;”[10] and 3) the restrictions must allow for sufficient alternative means of communication.[11]

In this case, the fact that the closure order restricted all public access to the road construction site demonstrated the content-neutral nature of the restriction. The Forest Service excluded all people–not just protesters–from the construction area in order to enable the contractors to fulfill their contractual obligations. The Ninth Circuit determined that a broadly applicable order did not as directly target petitioners’ speech.

The second prong of the O’Brien test was also satisfied because the closure order furthered a compelling government interest by protecting health and safety. The Ninth Circuit held that the activists posed a substantial danger to the construction site, the contractors, themselves, and the public. Furthermore, vandalism by the protesters necessitated protection of the contractors’ property located at the site. Also, the Forest Service’s closure order merely excluded protestors from the site itself through a 150-foot buffer zone. Discussing Bay Area Peace Navy v. United States,[12] the court clarified that, although a 225-foot buffer was considered too broad in Bay Area Peace, the nature of a construction zone in this case required a moderate amount of space to avoid injury. The court deemed the 150-foot zone reasonable in this situation. Because the closure order commenced on the day construction was to begin and lasted for 45 days, the limited time frame helped to establish the overall reasonableness of the order.

Finally, the closure order satisfied the third prong of the O’Brien test because it allowed for ample alternative forums for petitioners’ speech. The 150-foot buffer around the work zone allowed protesters to engage in their speech without interfering with the work or threatening the safety of the site. In this way, the activists could continue a non-destructive and non-obstructive protest near the construction site. The activists were free to use the remainder of the National Forest for protests as well. Therefore, because the closure order was content-neutral, narrowly tailored to achieve a legitimate government objective, and left open alternative avenues of communication, the order achieved the objectives of protecting the protesters, the contractors, and the public without unduly suppressing speech.

Petitioners also challenged the level of discretion given to the Forest Service when issuing the closure order. They argued that the closure acted as a permit system that granted the Forest Service unbridled discretion to refuse permission to speak in a public forum. While the Ninth Circuit inferred that such behavior is impermissible as a general rule, the court held that a permitting analysis was inappropriate in the instant case. The court determined that the road closure occurred pursuant to normal management policies, and petitioners’ request to occupy the site during construction activities “reveal[ed] [a] lack of reason.”[13] In sum, the court held that the closure order represented a reasonable limitation on the free speech rights of the activists, so long as such an order was not a pretext to quell speech. Likening the closure order to closing the area around the Washington monument during its renovation, the Ninth Circuit determined that petitioners had no First Amendment right to protest lawful road-building activity “in the path of tractors and earth movers.”[14]

The second thrust of petitioners’ appeal involved the meaning of the word “maintain[]” in the Forest Service regulations.[15] First, petitioners advanced that “maintain” in the regulation required more than simple occupancy. Second, petitioners argued that “maintain” was an ambiguous term, and that the regulation was void under the rule of lenity and the void-for-vagueness doctrine.

The Ninth Circuit had no difficulty in defining “maintain” to include the activities in which petitioners engaged at the time of their arrest. Citing Webster’s dictionary[16] and earlier Eleventh Circuit decisions,[17] the court held that “maintain” included defending, preserving, and protecting–activities that encompassed petitioners’ refusal to leave the structures at the site. The court noted that an object as simple as a tripod could be “maintained” under the terms of the regulation if it impeded traffic.[18] Because petitioners refused to leave the structures when directed by lawful authority, they were guilty of maintaining the structures.

Adopting the logic of United States v. Scranton,[19] the Ninth Circuit determined that section 261.10(a) was not ambiguous. The “grievous ambiguity” standard of the rule of lenity[20] could not be met, and, therefore the rule was inapplicable to petitioners. The Ninth Circuit similarly held that the void-for-vagueness doctrine was inapposite in the instant case. Relying on its previous exposition of the term “maintain,” the court simply stated that “th[e] [void-for-vagueness] argument fails.”[21]

[1] During the subsequent summer of 1997, a different group of protesters again vandalized a portion of a logging road in the Nez Perce National Forest and similarly erected and occupied various traffic-impeding structures. The Forest Service forcibly removed these protesters and charged them with violating 36 C.F.R. section 261.10(a). 36 C.F.R. § 261.10(a) (1999). In their appeal to the Ninth Circuit, the protesters raised the same defenses of vagueness and lenity against § 261.10(a) as the petitioners in Griefen. United States v. Mack, 200 F.3d 653 (9th Cir. 2000). The Ninth Circuit affirmed the convictions.

Citing Griefen, the Ninth Circuit denied the vagueness and lenity arguments. Id. at 656-57. The district court found that the Mack petitioners violated 36 C.F.R. § 261.12(d) by impeding access to and use of a Forest Service road. 36 C.F.R. § 261.12(d) (1999) (violation of the regulation to “[b]lock[], restrict[], or otherwise interfer[e] with the use of a [Forest Service] road . . .”). The Mack petitioners argued that they did not impede traffic because the road was closed to vehicle traffic on the day of their arrest and thus foot traffic could pass the structures unhindered. Mack, 200 F.3d at 657. The Ninth Circuit disagreed that § 261.12 (d) carried so narrow a meaning, determined that the plain language of the regulation prohibited the behavior in question, and that the Mack petitioners nevertheless impeded the Forest Service vehicles that tried to remove them. Id.

Also, the Ninth Circuit held that when the trial court denied the Mack petitioners permission to make environmentalism speeches during the allocution phase of sentencing, the trial court did not err. Id. at 657-58. Finally, the Mack petitioners alleged that the trial court improperly increased their sentences upon conviction because they had demanded a trial. The Ninth Circuit determined that although a co-defendant who pleaded guilty at trial received a considerably lighter sentence, it was the “recalcitrance” of the Mack petitioners that triggered the harsher penalties. Id. at 658-59.

[2] Organic Administration Act of 1897, Act of June 4, 1897, ch. 2, 30 Stat. 11, 34-36 (codified as amended at 16 U.S.C. §§ 473-482, 551 (1994 & Supp. III 1997).

[3] 36 C.F.R. § 261.53 (1999).

[4] 36 C.F.R. § 261.10(a) (1999).

[5] U.S. Const. amend. I, cl. 2 (“Congress shall make no law . . . abridging the freedom of speech . . . .”).

[6] “The following are prohibited: [c]onstructing, placing, or maintaining any kind of . . . structure, . . . enclosure, or other improvement on National Forest system land . . . without a special-use authorization . . . .” 36 C.F.R. § 261.10(a) (1999) (emphasis added).

[7] 391 U.S. 367, 377 (1968).

[8] 491 U.S. 781, 789 (1989).

[9] United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000).

[10] Id.

[11] Id.

[12] 914 F.2d 1224 (9th Cir. 1990).

[13] Griefen, 200 F.3d at 1263.

[14] Id. at 1265.

[15] “The following are prohibited: [c]onstructing, placing, or maintaining any kind . . . structure, . . . [or] enclosure, . . . on National Forest system land . . . without a special-use authorization . . . .” 36 C.F.R. § 261.10(a) (1999).

[16] Webster’s New Riverside University Dictionary 717 (1984).

[17] United States v. Clavis, 956 F.2d 1079, 1091 (11th Cir. 1992).

[18] See United States v. Scranton, 25 F. Supp. 2d 1131, 1132 (D. Idaho 1997). See also United States v. Mack, 200 F.3d 653, 655-56 (9th Cir. 2000).

[19] 25 F. Supp. 2d at 1132.

[20] United States v. Griefen, 200 F.3d 1256, 1266 (9th Cir. 2000).

[21] Id.

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