dissenting.
In my judgment, the government failed to prove that the defendants violated 18 U.S.C. § 1382 because they were not shown to have reentered the Wurtsmith Air Force Base. The evidence in this case demonstrated that the grassy strip on which the defendants were walking is not part of the air base but is within an easement for public use which has been granted to the state of Michigan in connection with the use of Highway F-41.
Part of a proper analysis to determine whether the defendants had reentered the Wurtsmith Air Force Base is to identify what is not involved in this case. What is not involved is any question whether the defendants improperly interfered with the lawful order of military authorities in connection with any national or public emergency, or the lawful exercise of the police powers of the federal government. The only issue relating to the sufficiency of the evidence is whether the defendants violated section 1382 by reentering the Wurtsmith Air Force Base.
I.
In part III.(A), the majority opinion considers whether the federal government granted Michigan an easement to use the land adjacent to Highway F-41 for highway purposes and, if so, whether that land is, nevertheless, part of Wurtsmith Air Force Base. Acknowledging that such an easement exists, the opinion concludes: “The mere fact that an easement had been granted to the state for the construction, maintenance and use of Highway F-41 did not give the protestors the right, in bold defiance of military authority, to enter the base, after being previously barred.” Respectfully, it seems to me that that conclusion merely begs the question whether the easement is part of the air base. Rather than analyzing that question, the majority opinion merely declares that the issue has been decided: “In United States v. McCoy, 866 F.2d 826 (6th Cir.1989), we held that the grassy strip in question is part of WAFB.”
The majority opinion then quotes a portion of McCoy in which this court merely quoted a statement by the district court in that case that “the entire area up to at least the center of the road” is part of Wurtsmith Air Force Base.
In my view, the majority’s reliance upon McCoy is misplaced and, as a result, its conclusion that McCoy decides this case is mistaken.
McCoy did not address the nature of the Air Force’s property interest in the land between the permanent chain link fence and the paved portion of F-41. Rather, McCoy focused only upon the driveway *1316leading from F-41 into the base, and this court affirmed the district court on two points: (1) The McCoy court agreed with the district court’s conclusion that the driveway was part of the base, holding that “we are certainly in no position to quarrel with Judge Churchill’s findings that the driveway area was ‘within control of the military’ and that ‘[a]nybody has to have their head in the sand not to see it... Id. at 832 (emphasis added). (2) The McCoy court held that the defendant in that case, Joan McCoy, was not using the driveway area for its proper public purpose. In explaining its decision, the McCoy court noted:
But the authorities at Wurtsmith Air Force Base made no attempt to prevent Mrs. McCoy from using the southbound traffic lane of Highway F-41 for the limited public purpose for which it had been set aside_ The driveway area to the west of the boundary line had not been set aside as a public forum, and Mrs. McCoy’s insistence on crossing the line to use the driveway for that purpose involved precisely the sort of “bold defiance of authority” that was missing in Justice Stevens’ hypothetical airline passenger case.
McCoy, 866 F.2d at 831 (quoting United States v. Albertini, 472 U.S. 675, 699, 105 S.Ct. 2897, 2911-12, 86 L.Ed.2d 536 (Stevens, J., dissenting) (1985)) (emphasis added). Nowhere in McCoy did the court hold “that the grassy strip in question is part of Wurtsmith Air Force Base.”
II.
The decisive issue in this case is whether the defendants, when they were arrested on August 4, 1990, had “reenter[ed] or [were] found within the limits of the United States military reservation at Wurtsmith Air Force Base, Michigan” as prohibited by the bar letters previously issued to them. When arrested, the defendants were not on the driveway leading into Wurtsmith, as in McCoy, but rather were on the grassy strip of land between the permanent chain link fence that marks off the boundary of the base and the edge of the pavement of F-41. It appears to me, based upon the documents in evidence in this case, the finding of the trial court, and the applicable Michigan statute, that, as a matter of law, the grassy strip in question is not a part of Wurtsmith.
A.
It is indisputable that the federal government has a property interest of some sort in the land on which F-41 sits. The nature and extent of that interest are somewhat unclear. Nevertheless, the documents admitted into evidence in the trial below demonstrated that the state possesses an easement 150 feet wide for highway purposes.
Exhibit 22, referred to during trial as Document D, establishes that the federal government granted the state of Michigan an easement for highway purposes. Exhibit 22 is a Permit for Extension of Road Across Military Reservation from the Secretary of War to the State of Michigan, dated June 21, 1946. It grants to the state “permission to extend a road across the Oscoda Army Air Field, Oscoda, Michigan, which road is designated as Michigan State Highway M-171, said road being, in general, along the Northeasterly boundary of the Oscoda Army Air Field....” Paragraph 6 of this document reads:
The United States reserves the right to make such connections between the road herein authorized and the roads and streets on said military reservation as the chief of engineers may from time to time consider necessary, and also reserve to its rights of way for all purposes across, over and/or under the right of way hereby granted; provided, however, that such rights shall be used in a manner that will not create unnecessary interference with the use and enjoyment by the grantee of said rights of way or for highway purposes.
Although this document establishes the fact of the right of way, it does not specify its width.
An earlier document described the width of the easement. Exhibit 21, referred to as Document C, is a Highway Easement Release from the Michigan Department of *1317Conservation to the State of Michigan dated February 12, 1943. It conveyed to the state “an easement for highway purposes [ ] in ... [a] strip of land 150 feet in width lying 75 feet each side of and adjacent to the center line of M-171 as now surveyed over and across the [described land tracts in] (Oscoda Township, Iosco County), Michigan.” The Air Force’s property record witness, Captain Reed, testified that M-171 is essentially the present day F-41. Based on this document, the parties entered into, and the district court accepted, a stipulation that the easement was 150 feet wide.1
Evidence adduced at trial demonstrated that the public has continuously used the right of way. Testimony from Air Force personnel indicated that joggers and disabled cars regularly use the shoulder of F-41 at will.
Despite the legal existence of the easement and its continuous use by the public, the base commander unilaterally occupied the easement on August 4, 1990 by erecting a temporary snow fence extending from the chain link fence to the edge of the pavement of F-41. In doing so, the base commander undertook to extend the limits of the base beyond the permanent boundary as established by the chain link fence and in disregard of the long-standing use of the land as part of the public way. The district court held that the base commander’s action was appropriate, noting: “I find that the Air Force Base Commander has a right to control all of the property to the edge of the roadway.” The majority opinion affirms this holding.
In reaching its conclusion, the majority opinion ignores both the documentary evidence adduced at trial and controlling property law as established in the state of Michigan. The permit granting Michigan the right to build and maintain F-41 stated that the rights retained by the United States “shall be used in a manner that will not create unnecessary interference with the use and enjoyment by the grantee of said rights of way or for highway purposes.” The base commander’s order to erect a fence, preventing pedestrians from traversing the grassy strip that was long ago set aside for public use and forcing them to walk on the paved portion of F-41, interfered with the use of the public easement.
Further, the base commander lacked the right to reoccupy the grassy strip. Michigan statutes establish that once given, a right of way for highway purposes may not be encroached:
All public highways for which the right of way has at any time been dedicated, given or purchased, shall be and remain a highway of the width so dedicated, given, or purchased, and no encroachments by fences, buildings or otherwise which may have been made since the purchase, dedication or gift... shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.
Mich.Comp. Laws Ann. § 247.189 (West 1990). Michigan courts have held that the state retains the entire easement even if it only uses a portion of it for the actual paved portion of the highway:
[I]t is not necessary that every portion of a highway be traveled upon in order to show the intention of the public authorities to accept the entire highway dedication. *1318[T]he state’s use and acceptance of the dedication prevented acquisition of the unused portion by subsequent encroachments of the parties.
Miller v. State Highway Dept., 30 Mich. App. 64, 70-71, 186 N.W.2d 67 (1971).
The land records in evidence in this case relating to F-41, specifically Exhibits 21 and 22, the findings of the trial court, see supra n. 1, and M.C.L. 247.189, establish that a 150-foot easement existed for public use in connection with F-41. Specifically applied to the facts of this case, the easement thus extends 75 feet west from the center line of F-41. This 75-foot easement includes all of the paved portion of F-41 and its shoulder, and also includes much if not all of the grassy strip between the road and the chain link fence enclosing the air base. When the base commander ordered the temporary fence erected, he unilaterally reclaimed a portion of the easement which he was not free to occupy absent permission from the easement holder, the state of Michigan, or, conceivably, exigent circumstances not claimed to exist.
III.
The defendants did not violate 18 U.S.C. § 1382 because they did not reenter Wurt-smith.
Once an easement is given, the grantor of the easement may not, as a general rule, interfere with the use of that easement. The permanent chain link fence running parallel to F-41 is the demarcation of the limits of Wurtsmith, and the base commander did not have the right to attempt to expand the limits of the base by unilaterally erecting the temporary fence upon the public easement. The defendants did not violate the bar letter when walking in the grassy strip between F-41 and the chain link fence because the grassy strip where they were arrested is a public way and not part of the air base within the meaning of the bar letter.
For these reasons, I respectfully dissent.
. The following exchange occurred at trial regarding the width of the easement:
THE COURT: Is there any doubt that the military — either the Army or the Air Force— at one time or another granted easements for the purpose of construction and maintaining this highway?
MR. ELLISON: I believe the government has just stipulated to it with' my proposed stipulation of the facts from the McCoy case.
MR. BRUNSON: No, there’s not a significant problem with that.
THE COURT: What’s the need for the document then?
MR. ELLISON: I just want to show the easement is 150 feet wide, your Honor.
THE COURT: Do you have any doubt about that, Mr. Brunson?
MR. BRUNSON: That’s what the document says.
THE COURT: Why don’t you take that as proven, let’s move along here.
(Emphasis added.)