Defendant appeals his conviction for manufacture of a controlled substance and possession of a controlled substance. He assigns error to the enhancement of his sentence for a commercial drug offense under ORS 475.996 on the basis of his use of “public lands” in the commission of his crimes. We affirm.
The property at issue, consisting of approximately 17,000 acres of land and 56 buildings and other facilities, originally belonged to the United States. In 1971, the United States entered into an agreеment of sale with Pacific University, by which certain property “particularly described and enumerated in Exhibit ‘A’ ” was sold to the University. Exhibit “A” listed a number of buildings and related items of personal property and did not include any underlying land. As to the land itself, the United States granted a “long term use permit” for the land on which the buildings were located. The United States reserved a right of entry and use of the land during an emergency and agreed to compensate Pacific University for the fair rental value of its use during an emergency.
At sentencing, the state argued that defendant’s manufacture of marijuana was a commercial drug offense and that he is subject to sentencing enhancement on that basis. Among the factors on which the state relied in asserting the commercial nature of the offense was that defendant used “public lands” in the commission of his crime. ORS 475.996(l)(b)(I). Neither party argues about any other factors.
The trial court found that defendant had used public lands in growing marijuana, because the building in which he grew the marijuana, although privately owned, was situated on land owned by the United States. Defendant’s sole assignment of error on appeal is that the trial court incorreсtly concluded that he had used public lands in the growing of his marijuana. We review defendant’s assignment for errors of law.
See State v. Johnson,
Defendant asserts two arguments in support of his assignment. First, he argues that the trial court erred in concluding that he had used public land in the cоmmission of his crime, because the land itself had been sold to Pacific University, and no longer belongs to the United States. Second, he argues that even if the land still belongs to the United States, the building in which the crime was committed does not, and that constitutes а sufficient restraint on the alienability of the underlying land to deprive it of any “public” character. In support of his argument, defendant relies on dictionary definitions of “public lands” to mean:
“The general public domain; unappropriated lands; lands belonging to the United States and which are subject to sale or other disposal under general laws, and not reserved or held back for any special governmental or public purpose.”
Black’s Law Dictionary 1393 (4th ed 1951); see also Batten-tine’s Law Dictionary 1022 (3d ed 1969). We note that defendant is not arguing that, because his grow operation took place in a building — as opposed to out of doors — he did not use public land. His argument is that the private ownership of the building changed the federal government’s interest in the underlying land so as to deprive it of its publiс nature.
The state contends that defendant failed to preserve his first argument before the trial court. According to the state, defendant conceded that, under the 1971 agreement of sale with Pacific University, the United States retained ownershiр of the real estate on which the buildings conveyed were located. As to the second argument, the state argues that, as defined in Webster’s Third New International Dictionary 1836 (unabridged ed 1993) and parallel definitions of the term “public lands” in the Oregon Revised Statutes, the term refers broadly to “land owned by a government,” regardless of any restraints on the use or sale of the property.
We begin with defendant’s argument that he did not use public land, because the land on which his marijuana was grown belonged to Pacific University and not to the United Statеs. There is some question whether defendant conceded the point below. The point, however, is not entirely free from doubt;
1
for the sake of argument, we assume that the matter was preserved. Nevertheless, we reject defendant’s argument. The agreement of sale between the United
We turn to defеndant’s argument that the private ownership of the building changes the nature of the federal government’s interest in the underlying land such that the land can no longer be considered ‘ ‘public’ ’ within the meaning of ORS 475.996(l)(b)(I). That statute provides, in part:
“(1) A violation of ORS 745.992 shall be classified as crime category 8 of the sentencingguidelines grid of the State Sentencing Guidelines Board if:
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“(b) The violation constitutes possession, delivery or manufacture of a controlled substance and the possession, delivery or manufacturе is a commercial drug offense. A possession, delivery or manufacture is a commercial drug offense for purposes of this subsection if it is accompanied by at least three of the following factors:
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“ (I) The offender was using public lands for thе manufacture of controlled substances[.]”
The statute does not define “public lands.”
To discern what the legislature intended by the use of the term, we begin with the words enacted properly read in context.
PGE v. Bureau of Labor and Industries,
Dictionaries provide a useful starting point for determining what words mean, at least in the abstract. In that sense, they suggest what the legislature
could have
meant by the terms it enacted. Thеy do not, however, reveal what the legislature in fact meant in the absence of some evidence that the legislature consulted and relied on a particular definition of a particular dictionary at the time of enactment.
Davidson v. Oregon Government Ethics Comm.,
At common law, the term “public lands” referred to ‘ ‘unreserved and unappropriated public domain lands open to entry, settlement, and appropriation.”
E.g., Newhall v. Sanger,
In that context, the significance of the dictionary definitions on which the parties rely becomes apparent. Defendant’s proffered definition of “public lands” from an
The question remains which, if either, of the definitions the Oregon legislature intended when it used the term “public lands.” The term appears in the Oregon Revised Statutes some 600 times. In each case, there is no suggestion that the legislature intended to adopt the more restrictive common law definition; to the contrary, there is evеry indication that the legislature intended to adopt a general definition of “public lands” to mean any land owned by a government.
Title 25 of the Oregon Revised Statutes, for example, relating to “public lands,” contains an entire chapter, ORS chаpter 272, devoted to acquisition of title to real property in Oregon by the federal government. There is no mention of a qualification that, if any interest is conveyed to others, the property ceases to be “public,” for the purpоses of Oregon law. ORS 273.006(7), relating generally to the regulation of state lands, similarly defines “public lands” as “any land or improvements thereon owned by the State of Oregon or any agency thereof.” There is no suggestion that, if those lands are subject to а permit or reservation to private parties, they are no longer “public.” Indeed, the chapter expressly authorizes timber sales, ORS 273.521, drilling leases, ORS 273.551, railroad rights-of-way, ORS 273.751, and geothermal resource rights, ORS 273.775, on “public lands” without jeopardizing the “public” nature of the property. ORS 758.215(6) defines “public lands and rights-of-way” to include “all land or interest in land owned by a public authority.” ORS 526.801(5) defines the term to mean “lands owned by the State of Oregon or by any other political subdivision.” ORS 358.905(l)(j) defines it to mean “any lands owned by thе State of Oregon, a city, county, district or municipal or public corporation in Oregon.”
Those definitions are, in all material respects, identical. They strongly suggest that, whenever the legislature uses the term “public lands,” it means the same thing: land ownеd by a unit of government. None of the foregoing definitions suggests that the term is to be more narrowly defined as land that is alienable by the government without restriction or reservation, as under the common law. It does not necessarily follow, however, that the legislature intended the reference to “public lands” in ORS 475.996(l)(b)(I) to have the same meaning as the term does in other statutes. Accordingly, we examine the legislative history.
Unfortunately, our examination of the legislative history sheds no light on the matter. It reveals generally that the purpose of ORS 475.996 was to increase penalties for commercial drug offenses and to provide objective criteria for determining what constitutes a “commercial drug offense.” Tape recording, Senate Judiciary Committeе, HB 2390, May 24.1991, Tape 187, Side A; Minutes, House Judiciary Crime and Corrections Subcommittee, HB 2390, January 30, 1991, pp 1-7, and February 20, 1991, pp 1-5; Minutes, House Judiciary Full Committee, HB 2390, March 8, 1991, pp 3-4; Tape recording, Senate Judiciary Committee, HB 2390, May 24.1991, Tape 187, Side A at 131-end. There is no mentiоn of the specific factor of “using public lands,” nor explanation of why it was included or what it was intended to mean.
We turn, therefore, to relevant maxims of statutory construction. Particularly relevant to this case is the maxim that in the absence оf evidence to the contrary, we may assume that the legislature intends words to be used consistently.
See, e.g., Columbia Steel Castings Co. v. City of Portland,
In this case, there is no evidence that the legislature intended the term “public lands” to mean something different from what it has defined the term to mean in other statutes. To the contrary, the fact that the legislature has
expressly defined the term so consistently throughout the Oregon Revised Statutes buttresses the assumption that it intended the same definition to apply in ORS 475.996-(1) (b)(1). We conclude that the trial court correctly construed the reference to “public lands” in ORS 475.996(l)(b)(I) to refer
Affirmed.
Notes
Following extended argument about the terms of the sale agreement between the United States and Pacific University, counsel for defendant said: “So, you know, I guess from that you can say that maybe the underlying land still belongs to the government.” At that point, the parties limited their arguments to whether the private ownership of the buildings changed the federal government’s interest in the land so as to deprive it of any public character.