United States v. Shawn Parker
761 F.3d 986
9th Cir.2014Background
- Shawn Parker, a commercial snowmobile operator, was convicted after a bench trial of two counts of conducting a work activity or service on U.S. Forest Service land without a special-use authorization (36 C.F.R. § 261.10(c)) and one count of interfering with a Forest Service officer (36 C.F.R. § 261.3(a)).
- Encounters occurred on Salmon la Sac Highway (Forest Service Road 4300), a county road subject to an easement; on both occasions the highway itself was bare but Parker’s clients were prepared to ride snowmobiles into the adjacent National Forest.
- Forest Service Officer Steve Roberson, in uniform and a marked vehicle, warned Parker he lacked a special-use permit; Parker refused and later led clients into the Forest on snowmobiles.
- The magistrate judge found Parker’s operation (Cascade Playtime Rentals) was dispatching multiple customers and snowmobiles into National Forest land without authorization; photographic and circumstantial evidence supported that finding.
- Parker challenged Forest Service jurisdiction (pointing to the county easement), vagueness of Part 261, and the admission of testimony about the absence of a permit; the Ninth Circuit affirmed the convictions and sentence (probation and fine).
Issues
| Issue | Parker's Argument | Government's Argument | Held |
|---|---|---|---|
| Forest Service jurisdiction under 36 C.F.R. Part 261 | Activities occurred on a county road under a public easement and thus are exempt from Part 261 | Part 261 applies where conduct occurs in the National Forest or "affects, threatens, or endangers" Forest Service property, and the Service retains authority over roads subject to easements | Court held Forest Service had jurisdiction under §261.1(a)(1) and (a)(2) because Parker’s commercial activity delivered snowmobilers into the National Forest and affected federal land |
| Vagueness of Part 261 (as‑applied) | Definition of "National Forest System road" exempts county roads, making prohibitions unforeseeable | Part 261 prohibits conduct that occurs in the Forest or affects Forest Service property; Parker had notice from prior warnings/citations | As‑applied vagueness challenge failed; a person of ordinary intelligence would understand dispatching snowmobiles into the Forest required a permit, and Parker had actual notice |
| Admissibility of testimony that no permit existed (Fed. R. Evid. 803(10)) | Testimony about absence of a record lacked proper foundation | Officer testified about his familiarity with the permit register, his searches, and routine recordkeeping | Testimony was properly admitted under Rule 803(10) because the officer established a diligent search and knowledge of recordkeeping |
| Sufficiency of evidence for Count 5 | Government failed to link Parker to commercial activity and delivery into the Forest | Circumstantial and direct evidence (business truck, customers, snowmobiles, officer observations) showed commercial dispatch into the Forest without a permit | Evidence sufficient; a rational trier of fact could find all elements beyond a reasonable doubt |
Key Cases Cited
- United States v. Lindsey, 595 F.2d 5 (9th Cir.) (federal authority to regulate conduct off federal land to protect adjacent federal property under Property Clause)
- United States v. Alford, 274 U.S. 264 (U.S. 1927) (Congress may prohibit acts on private land that imperil public forests)
- United States v. Anglin, 438 F.3d 1229 (10th Cir.) (irrelevance of defendant being off public land to Part 261 enforcement)
- Free Enterprise Canoe Renters Ass’n of Missouri v. Watt, 711 F.2d 852 (8th Cir.) (permitting regulation of nonfederal conduct that threatens federal land)
- United States v. Kilbride, 584 F.3d 1240 (9th Cir.) (awareness of proscribed conduct can defeat an as‑applied vagueness challenge)
- United States v. Diaz‑Lopez, 625 F.3d 1198 (9th Cir.) (sufficient foundation for admission of absence‑of‑record testimony based on agent’s knowledge and search)