dissenting:
I respectfully dissent.
The majority concludes that the closure order was invalid because it did not adequately describe its scope, as required by the Forest Service regulations. The problem with the closure order is its description of the closed area. The majority holds that the Note at the end of the closure order, under which the application of the closure order to specific areas could be modified, so conditioned the order as to make it unenforceable. It is that holding with which I respectfully differ.
The closure order was issued pursuant to 36 C.F.R. § 261.50 (1990) by the national forest supervisor. The parties stipulated that the forest supervisor was vested with authority to do so. They also stipulated that the closure order was posted at the Waldport and Corvalis offices. The order described the area that was subject to the order. The Note was an attempt to moderate the impact of closing the entire area, by limiting it to only those areas required at a particular time for purposes of public health and safety. The Note was a disre-tional exercise of the power not to enforce the full scope of the closure order. I believe that the exercise of that discretion did not destroy the enforceability of the entire order.
My view is that the central issue is the adequacy of the notice to defendants that they were in a closed area. In United States v. Vasarajs, 908 F.2d 443, 449 (9th Cir.1990), the court said that “notice” can even include some obligation on the part of the defendants to obtain the necessary information: “In short, due process does not require that citizens be provided actual notice of all criminal rules and their meaning. The Constitution is satisfied if the necessary information is reasonably obtainable by the public.” In United States v. Mowat, 582 F.2d 1194, 1201-03 (9th Cir.1978), cert. denied, 439 U.S. 967, 99 S.Ct. 458, 58 L.Ed.2d 426 (1978), the court upheld a closure order even though it was not published in the Federal Register as it should have been. The court forgave that procedural defect because the defendants had actual knowledge of the prohibition.
The Note in this case stated that the closure would be “effective only if the restriction is posted or you are so advised by a Forest Service Officer.” Both of those conditions were met. There is no doubt from the record that these defendants had actual notice that the area which they entered, and in which they were arrested, was a closed area.
For those reasons, I would affirm the judgment of the District Court.