United States v. Bohn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-30397
Plaintiff-Appellee, D.C. No.
v.  CR 08-00018-
JAMES A. BOHN, RHW-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding

Submitted July 16, 2010*
Seattle, Washington

Filed September 17, 2010

Before: Susan P. Graber and Richard A. Paez,
Circuit Judges, and Larry A. Burns,** District Judge.

Opinion by Judge Graber

*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
**The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.

14381
14384 UNITED STATES v. BOHN

COUNSEL

James A. Bohn, defendant-appellant pro se.

Stephanie Van Marter, Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellee.

OPINION

GRABER, Circuit Judge:

Defendant James A. Bohn did not wear a helmet while rid-
ing his motorcycle on a federal road located in the Lake Che-
 UNITED STATES v. BOHN 14385
lan 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 fed-
eral 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 ver-
bally ordered them to stop. Defendant acknowledged the
order, but did not stop. The ranger then drove after the motor-
cyclists, 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
1
In 1992, the United States brought a quiet title suit against the county
regarding ownership of the Stehekin Valley Road. The United States pre-
vailed in that suit. United States v. Chelan County, No. CS-92-0331 (E.D.
Wash. June 4, 1993).
14386 UNITED STATES v. BOHN
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 rep-
utation. 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

[1] 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 unim-
paired 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.

[2] Pursuant to that congressional grant of rule-making
authority, the NPS issued 36 C.F.R. § 4.2, which provides:
 UNITED STATES v. BOHN 14387
(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 prohib-
ited.

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 chap-
ter.”). Subject to certain exceptions not applicable here,
Washington law prohibits driving a motorcycle without wear-
ing 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 hel-
mets on the road exceeds congressional authority. We review
de novo the constitutionality of a statute or regulation chal-
lenged as exceeding congressional authority. Doe v. Rumsfeld,
435 F.3d 980, 984 (9th Cir. 2006).

[3] The federal government has at least proprietary juris-
diction over land that it owns. Kleppe v. New Mexico, 426
U.S. 529, 540 (1976). Here, Defendant concedes that the fed-
eral government has proprietary jurisdiction over the Stehekin
Valley Road. For purposes of this appeal, we assume without
2
In the district court, Defendant argued that the Washington statute, as
incorporated by 36 C.F.R. § 4.2, does not require motorcycle helmets on
the Stehekin Valley Road. The district court ruled against Defendant on
that issue, and he does not challenge that ruling on appeal.
14388 UNITED STATES v. BOHN
deciding that the federal government lacks exclusive or con-
current jurisdiction over the road.3

[4] The Property Clause grants Congress plenary power to
“determine what are needful rules respecting the public
lands.” Id. at 539 (internal quotation marks omitted). That
power does not depend on the existence of concurrent or
exclusive jurisdiction. Id. at 542-43. 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 gov-
ernment’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. 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
3
The federal government may acquire exclusive or concurrent jurisdic-
tion over land located within a state either by consent or by cession.
Kleppe, 426 U.S. at 542. The record before us does not allow us to deter-
mine whether the state consented to federal jurisdiction and whether the
federal government accepted jurisdiction pursuant to 40 U.S.C. § 3112, as
would be necessary to create exclusive or concurrent jurisdiction over the
Stehekin Valley Road.
 UNITED STATES v. BOHN 14389
and use” of public lands and to enact legislation “respecting
the public lands if it be found to be necessary for the protec-
tion of the public, or of intending settlers.” Id. at 540 (internal
quotation marks and brackets omitted).

[5] 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 fed-
eral land, and “protect[ ] . . . the public.” Kleppe, 426 U.S. at
539-40. 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 pub-
lic.

Defendant asserts that, under the Property Clause, regula-
tions 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 enjoy-
ment 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 Defen-
dant 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 Prop-
erty Clause power extends to conduct threatening the desig-
nated 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
14390 UNITED STATES v. BOHN
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 pol-
icy on motorcycle helmets and because the state laws incorpo-
rated 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 man-
date 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 do not
require motorcyclists to wear helmets does not mean that
requiring their use does not protect the public.

Our conclusion here as to the extent of the federal govern-
ment’s Property Clause power agrees with the conclusion
reached by the Fifth Circuit in a similar case. United States v.
Gliatta, 580 F.2d 156, 160 (5th Cir. 1978), held that the Prop-
erty Clause authorized the government to enact and enforce
regulations “designed to maintain safety and order on govern-
ment property.” The Fifth Circuit affirmed the defendant’s
conviction for violating several provisions of 39 C.F.R.
§ 232.6 by driving in an unsafe manner in a post office park-
ing lot and by driving his car into a parking space after being
ordered to stop. Id.

Finally, we reject Defendant’s contention that the NPS is
enforcing state law in violation of a memorandum of under-
standing between the NPS and the Chelan County Sheriff’s
Office. The federal government is enforcing a federal regula-
tion here, albeit one that incorporates state law by reference.
We acknowledge Defendant’s warning that if the federal gov-
ernment adopts and enforces the substance of state law pursu-
ant to the Property Clause, there could effectively be dual (or
conflicting) enforcement of the same substantive provisions
 UNITED STATES v. BOHN 14391
by state and federal officials. However, the fact that it might
be a poor use of federal resources to duplicate state effort, or
that it might be politically unwise to crack down on conduct
that state law enforcement chooses to ignore, does not mean
that the Property Clause withholds from the federal govern-
ment the power to act. Moreover, although state priorities in
prosecuting violations do not bind the federal government, if
a state wishes to shield certain conduct from federal penalties,
it can do so by rewriting its own law.

II. Enforcement of 36 C.F.R. § 2.32(a)(2)

Defendant also challenges on several grounds his convic-
tion for failure to obey the ranger’s orders to stop and to pro-
vide his full name, in violation of 36 C.F.R. § 2.32(a)(2). We
review de novo the district court’s interpretation of agency
regulations. Santiago v. Rumsfeld, 425 F.3d 549, 556 n.5 (9th
Cir. 2005). We review a claim of insufficient evidence de
novo to determine whether, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt. United States v. Bucher, 375 F.3d 929,
934 (9th Cir. 2004). We review de novo whether there has
been a violation of a defendant’s Fifth Amendment right to
remain silent. United States v. Hernandez, 476 F.3d 791, 796
(9th Cir. 2007).

[6] Defendant argues that 36 C.F.R. § 2.32(a)(2) does not
apply to the Stehekin Valley Road because the regulation cov-
ers only areas under concurrent or exclusive federal jurisdic-
tion. The general applicability provision of the NPS
regulations provides that the regulations apply to “all persons
entering, using, visiting, or otherwise within . . . the bounda-
ries of federally owned lands and waters administered by the
National Park Service.” 36 C.F.R. § 1.2(a)(1). But the specific
regulation that Defendant violated provides that “[t]he regula-
tions contained in this section apply, regardless of land own-
ership, on all lands and waters within a park area that are
14392 UNITED STATES v. BOHN
under the legislative jurisdiction of the United States.”4 36
C.F.R. § 2.32(b). That regulation does not expressly state
whether it applies to land within a park area that is not under
legislative jurisdiction. In other words, § 2.32 does not state
whether it applies to land under merely proprietary jurisdic-
tion, such as the Stehekin Valley Road.

[7] Ordinarily, the maxim of expressio unius est exclusio
alterius might suggest that the agency intended the regulation
to apply only to the specified land and not to areas under
merely proprietary jurisdiction. But here, the history of this
regulation compels a different conclusion. Section 2.32(b)
was added to the regulation to expand its applicability to pri-
vately owned land, not to prevent application of the regulation
to federally owned land under proprietary jurisdiction.

The precursor to the current § 2.32 originally prohibited
conduct only on federal land. See 31 Fed. Reg. 16650-01,
16652 (Dec. 29, 1966) (prohibiting giving false information
or a false report); id. at 16651 (providing that the regulation
“shall apply to all persons entering . . . the boundaries of any
federally owned or controlled areas administered by the
National Park Service,” but not to “privately owned lands . . .
within the boundaries of any park area, except as may be pro-
vided by regulations”).

In 1983, the NPS revised its regulations. 48 Fed. Reg.
30252-01 (June 30, 1983). The NPS stated that ten regulations
would henceforth apply on privately owned land, including
rules governing disorderly conduct, weapons, fires, hunting,
and gambling. Id. at 30253. The NPS explained that the
expanded application of those regulations was “necessary to
protect property rights and ensure public safety.” Id. Section
2.32 was among the regulations made applicable to “privately
4
The regulations define legislative jurisdiction as “lands and waters
under the exclusive or concurrent jurisdiction of the United States.” 36
C.F.R. § 1.4.
 UNITED STATES v. BOHN 14393
owned lands and waters under the legislative jurisdiction of
the United States.” Id. at 30287. But § 1.2(a) retained the pro-
vision making the NPS regulations generally applicable to
persons within the boundaries of federally owned lands and
waters. Id. at 30275. Nothing suggests that the expanded
applicability of the ten selected regulations to privately owned
land was matched by a corresponding withdrawal of their
applicability to federally owned land. Indeed, it would be
absurd for the NPS to control (for example) campfires on pri-
vately owned land but not on federally owned land. Thus, in
1983, § 2.32 prohibited violating a lawful order on both fed-
eral land under proprietary jurisdiction and on privately
owned land under federal legislative jurisdiction.

In 1987, the agency revised its rules again, “to clarify the
NPS[‘s] intent.” 52 Fed. Reg. 35238-01, 35238 (Sept. 18,
1987). “The NPS has determined that the phrase ‘privately
owned lands’ does not clearly encompass the full range of
non-federal landowners originally intended.” Id. The agency
amended § 2.32 so that it would “apply, regardless of land
ownership, on all lands and waters within a park area that are
under the legislative jurisdiction of the United States.” Id. at
35240. That text remains in effect today. Once more, the
agency’s explanation of the amendment does not suggest that
the agency intended § 2.32 to become applicable only to fed-
eral lands under legislative jurisdiction, to the exclusion of
federal lands under merely proprietary jurisdiction.

[8] From this history, it is clear that § 2.32(b) was intended
to make the substantive prohibitions of § 2.32(a) applicable
on non-federal land. There is no evidence that § 2.32(b) was
intended to make § 2.32(a) inapplicable to federally owned
land. Accordingly, we conclude that § 2.32(b) does not
restrict the applicability of § 2.32(a) to only land that is under
federal legislative jurisdiction. And because § 2.32 does not
so limit its own applicability, the general applicability provi-
sions of § 1.2 govern. Section 1.2 provides that the NPS regu-
lations apply to persons on federally owned land under NPS
14394 UNITED STATES v. BOHN
administration. We therefore hold that § 2.32(a)(2) applies to
land administered by the NPS that is under proprietary juris-
diction. It applies to the Stehekin Valley Road.

[9] Defendant also argues that his conduct did not violate
36 C.F.R. § 2.32(a)(2) because the ranger did not give him a
valid order. There was sufficient evidence from which a ratio-
nal trier of fact could have concluded beyond a reasonable
doubt that the ranger gave Defendant orders. The ranger testi-
fied that he repeatedly motioned for Defendant to stop, ver-
bally ordered Defendant to stop, and honked his horn while
following Defendant in a marked vehicle. The ranger also tes-
tified that he told Defendant, “I need your last name.” Fur-
thermore, the regulation requires compliance with orders
“during . . . law enforcement actions, . . . or other activities
where the control of public movement and activities is neces-
sary to maintain order and public safety.” 36 C.F.R.
§ 2.32(a)(2). Enforcing the helmet requirement is both a law
enforcement action and an activity in which control of public
movement is necessary to maintain public safety. We hold
that there was sufficient evidence that the ranger gave Defen-
dant valid orders.

[10] In addition, Defendant asserts that punishing him for
refusing to give his last name violates his Fifth Amendment
right to remain silent. But the Fifth Amendment does not pro-
hibit the compelled disclosure of an individual’s name “absent
a reasonable belief that the disclosure would tend to incrimi-
nate him.” Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177,
190-91 (2004). “Answering a request to disclose a name is
likely to be so insignificant in the scheme of things as to be
incriminating only in unusual circumstances.” Id. at 191.
Here, there was no unusual circumstance. Defendant’s last
name did not incriminate him—the ranger already knew who
Defendant was and exactly what he had done. We hold that
Defendant’s conviction did not violate the Fifth Amendment.
 UNITED STATES v. BOHN 14395
III. Denial of Due Process

Defendant argues that the prosecutor violated his Fifth
Amendment right to due process by preventing the appear-
ance of the Chelan County sheriff, whom Defendant had sub-
poenaed to testify.5 This court reviews de novo whether
preventing the testimony of a defense witness violates a crim-
inal defendant’s right to due process. United States v.
Kincaid-Chauncey, 556 F.3d 923, 934 (9th Cir.), cert. denied,
130 S. Ct. 795 (2009).

[11] A criminal defendant’s constitutional rights may be
violated when “witnesses are made unavailable through the
suggestion, procurement, or negligence of the government.”
United States v. Hernandez-Gonzalez, 608 F.2d 1240, 1243
(9th Cir. 1979) (internal quotation marks and brackets omit-
ted). For instance, “[u]ndue prosecutorial interference in a
defense witness’s decision to testify arises when the prosecu-
tion intimidates or harasses the witness to discourage the wit-
ness from testifying.” Williams v. Woodford, 384 F.3d 567,
601 (9th Cir. 2004). But even if this court were to assume that
the prosecutor acted improperly, that conduct would not have
violated Defendant’s right to due process because the sheriff’s
testimony would not have been material.

[12] In United States v. Valenzuela-Bernal, 458 U.S. 858,
872 (1982), the Supreme Court held that the Due Process
Clause protects the “fundamental fairness” of a trial. “Such an
absence of fairness is not made out by the Government’s
5
Defendant does not argue that this alleged conduct violated his Sixth
Amendment right to obtain witnesses in his favor. In any event, the analy-
sis would be nearly identical under the Fifth and the Sixth Amendment.
See United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982)
(“Having borrowed much of our reasoning with respect to the Compulsory
Process Clause of the Sixth Amendment from cases involving the Due
Process Clause of the Fifth Amendment, we have little difficulty holding
that at least the same materiality requirement obtains with respect to a due
process claim.”).
14396 UNITED STATES v. BOHN
deportation of the witnesses . . . unless there is some explana-
tion of how their testimony would have been favorable and
material.” Id. (emphasis added). Here, Defendant has not
made any showing of materiality. Defendant informs us that
the sheriff’s testimony would have (1) explained the memo-
randum of understanding between the NPS and the Chelan
County Sheriff’s Office; (2) established what advice the sher-
iff had given Defendant before the incident on the road; and
(3) established Defendant’s good faith with respect to whether
state law required helmets on the Stehekin Valley Road and
whether NPS rangers had authority to give orders there. None
of that testimony would have been material to the charges
against Defendant.

First, a lay witness “may not . . . testify as to a legal conclu-
sion, such as the correct interpretation of a contract.” United
States v. Crawford, 239 F.3d 1086, 1090 (9th Cir. 2001).
Thus, the sheriff would not be allowed to testify to the legal
implications of the memorandum of understanding. Similarly,
he would not be allowed to testify as to whether Washington
state law requires helmets on the Stehekin Valley Road.

Second, in the State of Washington, the executive branch
may not amend a statute by its interpretation or advice to the
public. See Kim v. Pollution Control Hearing Bd., 61 P.3d
1211, 1214 (Wash. Ct. App. 2003) (“[N]either an administra-
tive agency nor the courts may read [a statute] in a way that
the enacting legislature never intended.”). Thus, even if the
sheriff had advised Defendant that he did not need to wear a
helmet on the Stehekin Valley Road, that advice would not,
by itself, make Defendant’s failure to wear a helmet legal.

Third, a defendant’s good faith may be an affirmative
defense against a specific intent crime, but not against a gen-
eral intent crime. See United States v. Smith-Baltiher, 424
F.3d 913, 924 n.9 (9th Cir. 2005) (noting that a good-faith
defense is not applicable to a charge of illegal re-entry
because the offense is a general intent crime). Here, the mag-
 UNITED STATES v. BOHN 14397
istrate judge determined that both the helmet violation and the
refusal to obey a lawful order are general intent offenses.
Defendant has not challenged that ruling on appeal. Thus,
Defendant’s good faith—even if proved by the sheriff’s
testimony—would not have supplied a defense to the viola-
tions with which he was charged.

[13] We hold that, even if the prosecutor deprived Defen-
dant of the sheriff’s testimony, the prosecutor did not thereby
deprive Defendant of his right to due process, because the
sheriff’s testimony would not have been material.

In conclusion, we see no errors requiring reversal of Defen-
dant’s convictions. The federal government has the power
under the Property Clause to enforce 36 C.F.R. § 4.2(b) on
land over which it has only proprietary jurisdiction. There was
sufficient evidence that Defendant violated 36 C.F.R.
§ 2.32(a)(2), which applies on land administered by the NPS
over which the federal government has only proprietary juris-
diction. That conviction did not violate Defendant’s Fifth
Amendment right to remain silent. Defendant was not
deprived of his Fifth Amendment right to due process.

AFFIRMED.