United States v. Thompson

687 F.2d 1279

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 17, 1982
• Docket: Nos. 79-1848 to 79-1855 and 79-1857 to 79-1861 (Trial Group M)
• Status: Published

Opinions

On Petition For Rehearing En Banc

SETH, Chief Judge.

This group of cases is a part of a series of 86 appeals from convictions for violating 42 U.S.C. §§ 2278a(a) and (b) and 10 C.F.R. §§ 860.3, 860.5(a), and 860.6 by seeking to force entry on the Rocky Flats Plant site.

Appellants in Trial Group M were arrested within the 100-foot wide easement surrounding the railroad tracks at Rocky Flats. For the facts pertinent to this location, see United States v. Dukehart, 687 F.2d 1301 (10th Cir.), filed this date. For a discussion of post-arrest and pretrial proceedings, see United States v. Seward, 687 F.2d 1270 (10th Cir.), filed this date.

In each of the appeals the defendants have challenged the application of the cited státute to the entry on the plant site for which they are charged. The challenges are directed to the regulation adopted by the agency pursuant to the Act, and especially to its implementation and its application to Rocky Flats and to the arrest sites.

Some further recitation of the facts is necessary although some repetition results. Thus the defendants were arrested and charged with unlawful entry on the Rocky Flats Plant site. This was part of an attempted entry involving several hundred persons as a protest on April 29. The record shows that defendants and others intended to go upon the facility at several entrances in large groups. There is, of course, no element of mistake or inadvertence and no error as to the location of the boundary. There were lines drawn on the roadway; there were the warning signs; and the defendants were warned verbally, once by the security guards and once by the deputy marshals at the entrances. The defendants were given an opportunity to withdraw before they were arrested. That they had actual notice is beyond question. It is clear that the appellants were sincere in their views and sincere in their desire to be arrested. However, they now challenge not the fact of their unauthorized entry, but challenge the federal criminal penalty imposed. Trespassers at the site had theretofore been arrested by officers of Jefferson County, Colorado rather than by federal officers and were charged under state law.

The original Rocky Flats site was condemned in 1952, and this included the west access road easement. The railroad right of way was condemned in 1954 for the government to build the railroad to the plant. The remaining acreage apparently was purchased in 1974 or 1975. The inner area around the original plant itself was posted in 1952 with typical “no trespassing” signs. As the site was enlarged from time to time the boundaries were also posted. The central area at Rocky Flats is surrounded by an eight-foot chain link fence with guardhouses. This was built about 1952. The record shows that the outer boundaries of the site were fenced and posted with standard red signs since at least 1975. Thus the entire tract as it now exists was posted with the standard “no trespassing” signs several years before 1979. The new type of signs prescribed by the applicable regulation were moved from an inner perimeter to new locations (where the standard signs were already placed) on April 25, 1979.

In years past the Jefferson County officers at the request of the plant officials would remove demonstrators from the railroad tracks, and would make arrests of trespassers when a complaint was issued by the AEC. Trespassing laws were enforced.

Some years ago there appeared to be need for a federal criminal penalty for unlawful entry into AEC facilities. Thus Congress enacted 42 U.S.C. § 2278a(a) which authorized the AEC to issue regulations relating to entry and the introduction of weapons or explosives into its facilities. A prescribed posting was directed and penalties were set. The Commission in 1963 after notice and opportunity for a hearing adopted such regulations. There is no challenge to these regulations in these appeals. The regulations appear as 10 C.F.R. §§ 860.1, et seq., hereinafter “the regulation.”

Appellants were charged with acts in violation of 42 U.S.C. § 2278a(a), which in part reads:

“(a) The Commission is authorized to issue regulations relating to the entry upon or carrying, transporting, or otherwise introducing or causing to be introduced any dangerous weapon, explosive, or other dangerous instrument or material likely to produce substantial injury or damage to persons or property, into or upon any facility, installation, or real property, subject to the jurisdiction, administration, or in the custody of the Commission. Every such regulation of the Commission shall be posted conspicuously at the location involved.”

Sections 2278a(b) and (c) provide the penalties.

The initial and apparently only agency implementation of 42 U.S.C. § 2278a(a) was accomplished by the promulgation and adoption of 10 C.F.R. §§ 860.1, et seq., in 1963. This appears to be the only rule making by the agency. This regulation was properly adopted and published, and there is no challenge to it in these proceedings.

We hold that this regulation, part 860, contained all the necessary elements to support the prosecutions. This was the rule making, the only rule making, and it was sufficient in itself.

To consider part 860 and its several sections in this light the following quotations may be useful.

Under § 860.2 — Scope, it is provided: “The regulations in this part apply to all facilities, installations and real property subject to the jurisdiction or administration of the Department of Energy or in its custody which have been posted with a notice of the prohibitions and penalties set forth in this part.”

Section 860.3 provides for the ban on trespass.

Section 860.7 relates only to the effective date:

“The prohibitions in §§ 860.3 and 860.4 shall take effect as to any facility, installation or real property on publication in the FEDERAL REGISTER of the notice designating the facility, installation or real property and posting in accordance with § 860.6.”

Section 860.5 — Penalties.

Section 860.6 — Posting:

“Notices stating the pertinent prohibitions of § 860.3 and § 860.4 and penalties of § 860.5 will be conspicuously posted at all entrances of each designated facility, installation or parcel of real property and at such intervals along the perimeter as will provide reasonable assurance of notice to persons about to enter.”

The regulation thus prohibits unlawful entry on AEC facilities, prohibits the introduction of weapons and explosives, recites the penalties, describes in detail the posting to be done, provides that notice of designation be published in the Federal Register, and sets an effective date for the “prohibitions.”

The subject is uncomplicated. The regulation states that it is for the protection of facilities of the AEC and covers the substantive elements. The matter relates to the protection of public property and is a proprietary function.

Congress was concerned with actual notice as 42 U.S.C. § 2278a(a) directs that posting be “at the location involved.” The regulation provides that the signs be posted “at all entrances of each designated facility . . . and at .. . intervals along the perimeter.” It also states what shall appear on the signs. These were the “new” signs at Rocky Flats.

The regulation also states that it applies to all AEC facilities “which have been posted with a notice of the prohibitions and penalties set forth in this part.” Thus posting starts the application of the regulation as such.

The “prohibitions” in the regulation “shall take effect as to any facility ... on publication in the FEDERAL REGISTER of the notice designating the facility . . . and posting . . .. ”

The issues in these appeals center upon the posting, especially a change in location of a certain type of sign within the Rocky Flats facility, and upon another notice of designation made on April 13. These signs had been moved before and the facility had been “noticed” several times before the 13th. As mentioned above, the entire tract had long been posted with “no trespassing” signs. Shortly before the arrests a new kind of sign thus appeared at the places which were to become the arrest sites in addition to or to replace the old “no trespassing” signs.

It is apparent from the regulation that it was the time element, the effective date, which was postponed. It does not appear unusual that the effective date of a regulation or a statute is postponed until some future time or some future event. This is a typical provision, and that was all that was done here. The effective date was so postponed until the notice of designation was published and the facility was posted. The postponement was thus for notice purposes — notice by publication and actual notice — on the ground. This purpose or reason also does not appear to be unusual especially for a trespass regulation. This in substance is no different than had the regulation provided that it would be effective on a stated date.

Some of the parties take the position that there should have been another hearing before the effective date provided in the regulation could be the effective date as to Rocky Flats. It would thus follow, for all practical purposes, that had any event, or perhaps even a delayed date been provided for Rocky Flats, a second hearing would be necessary. All facilities were considered during the adoption of the regulation, and the delayed date was prescribed for Rocky Flats as it was for all facilities. The time element was so provided for. But more important was the fact that the delay was to accomplish notice — especially by placing the signs. This seems like a perfectly valid reason.

Obviously someone had to decide that the time had come at Rocky Flats for posting and publication of notice. This would seem to be a local event and not a matter of general application. The regulation contemplated that the notice of designation could be “of the facility,” thus by using the name of the facility, and this was done. The publication in 1965 was thus of “Rocky Flats.” (There was also a property description included which was surplusage.) The “designating the facility, installation or real property” was done in 1965 and this aspect was then complete.

The time selection and the functions of posting and publication are local notice provisions and should not be elevated to matters of substantive rule making, legislative rule making, or any kind of rule making. The acts of placing the signs and notice publication are in reality nothing more than the execution of the regulation by those in the field charged with such administrative duties. Again, these are acts of notice and are administrative functions at the end of the administrative chain. The vast number of agency actions of this nature cannot be described as rule making, and instead are part of the day-to-day functions of the local officials since all the substantive matters had theretofore been decided.

We cannot focus as defendants urge on the events of April 13 and April 29, and apply a geographical test — the move of the new type of trespassing sign to the place where the old “no trespassing” signs were located created an offense where there had been none before. This analysis would have some appeal had nothing taken place before. All the facilities had been considered before. Rocky Flats had been considered before, and in fact everything of any significance had taken place before. We cannot center such a non-event at the end of a series of significant events.

The regulation was a complete package, regularly adopted, unchallenged, containing all the substantive elements and the administrative details of any substance as well.

This was the rule making, all the rule making, and was all that was required. Only the time was left unsaid — the effective date. And, again, this was a notice function of no greater or different consequence than had a date been inserted.

The defendants are urging that a second hearing is required, but have shown only that several administrative acts were necessary locally to carry out the notice provisions. The regulation as to all facilities was adopted in 1963. This may have been a long time ago, but this would not appear to be an adequate reason for another hearing or one as to Rocky Flats alone. The defendants are bound by what their predecessors, who we must assume were of skill and sincerity equal to that of the defendants, may have done or not done during the consideration of the regulation as it related to Rocky Flats in 1963.

The regulation was thus the rule making under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). This was the exercise of the delegated authority to make rules of general application. The regulation contained the only matters of general application. The action covered the subject with nothing of substance remaining to be done. See Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1976), and General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).

In Pacific Gas & Electric Co. v. FPC, 506 F.2d 33 (D.C.Cir.1974), the court said in Part II, referring to the Administrative Procedure Act (5 U.S.C. §§ 551 et seq.):

“Congress recognized that certain administrative pronouncements did not require public participation in their formulation. These type of pronouncements are listed in section 553(b)(A) and include ‘general statements of policy.’ ”

It would appear that other and subsequent acts such as the designation notice, if it is anything more than an administrative act provided for already in part 860, are “pronouncements” comparable to those listed and thus excepted by section 553(b)(A). See also Noel v. Chapman, 508 F.2d 1023 (2d Cir. 1975), which concerned existing discretion of district I.N.S. directors. A useful example of when rule making is involved is contained in Detroit Edison Co. v. United States Environmental Protection Agency, 496 F.2d 244 (6th Cir. 1974). See Rowell v. Andrus, 631 F.2d 699 (10th Cir. 1980).

The defendants place great reliance on Joseph v. United States Civil Service Commission, 554 F.2d 1140 (D.C.Cir.1977). The Commission there had issued a list of cities where employees were excepted from the Hatch Act. Four years later another city not theretofore considered was added. The court held that the addition to the list of a new or additional city required a hearing. The point is, of course, that something entirely new, a new city, was added in Joseph which had not been considered before. This is quite different from the case before us where all had been considered before, all places had been considered before, and the regulation applied to all. The draft of the regulation was published in the Federal Register in January of 1963 together with excerpts from 42 U.S.C. § 2278a(a) directed to “any facility.”

Again, the postponement of the effective date until the notice aspects provided in the regulation were accomplished does not create the need for a second hearing.

Unauthorized entry onto Rocky Flats in the past was contrary to law, and offenders have been punished. The site was always fenced and posted with “no trespassing” signs at the boundaries. Everything was also done through the years in accordance with the substance and the procedure provided in the regulation. The defendants would make it appear that individuals were free to come and go at will on Rocky Flats before the regulation’s effective date, but this was not the case. It was then an offense under state law. With the regulation entry onto Rocky Flats also became a federal offense. The appellants were, of course, charged and convicted of the federal offense.

If a second hearing were held all that it could cover would be the question as to whether unauthorized entry onto Rocky Plats should be prosecuted under federal law as an alternative to prosecution under state law. The act was illegal and punishable in a criminal action in any event. The question thus would be which sovereign should bring the charge. Some of the defendants in these actions were involved in previous incidents at least at the railroad tracks which took place frequently during the previous years. The persons who had then entered were removed by the county officers and some were prosecuted under state law as we have seen. These individuals would be in a position to express a view as to state law versus federal law; however, this subject does not appear to be one which could be considered at a hearing in a constructive way or should be considered as a reason for a hearing at all. The record shows that the protesters from time to time had conferences with the protective officers. A conversation was had about the April demonstration some weeks before. Some of the protesters and the security director were on a first name basis — “Chet” and “Sam.”

Protests had been allowed. Thus on April 28, 1979, the day before these appellants were arrested, permission was given by DOE through the Secretary of the Department of Energy for a demonstration to be conducted at the plant site. Approximately ten acres inside the boundary of the plant were roped off to permit demonstrators a forum in which to display their opposition to the continued existence of the plant. No such authorization was in effect for April 29, 1979.

As a separate matter, and something of an aside, it should be observed that the regulation applies to entry and the introduction of weapons and explosives on government property. The regulation when promulgated was within the express exception from the APA contained in 5 U.S.C. § 553(a)(2) as involving a matter relating to “public property.” It was an exercise of the government’s proprietary function — the protection of public property. Senate Report 752, 79th Congress, 1st Session (1945), at 199, states that the exception is to confer “complete discretion on the agencies what, if any, public rule making procedures they will adopt in a given situation.” The regulation with all its provisions as to posting and publication of notice of designation thus came within the exception and was effective thereafter as, to substance and procedure. As to this exception see City of Santa Clara, Cal. v. Andrus, 572 F.2d 660 (9th Cir. 1978), and National Wildlife Federation v. Snow, 561 F.2d 227 (D.C.Cir.1976). For contract cases, see Rainbow Valley Citrus Corp. v. Federal Crop Ins. Corp., 506 F.2d 467 (9th Cir. 1974), and Langevin v. Chenango Court, Inc., 447 F.2d 296 (2d Cir. 1971). In 1977 the agency was merged into the DOE and a provision as to procedures was added (42 U.S.C. § 7191) which stated that the exception in the APA referred to above would “not be available.” This was not effective until October of 1977, and so this change would not seem to be of significance as to the 1963 regulation generally, and not as to the designation notices published and effective as to “Rocky Flats” in 1965. The designation element of the problem thus drops out if it ever was a significant factor, and it does not appear that it was. About all that is left is that the new yellow signs were moved to the outer boundaries to replace or to add to the old ones. The actual notice consequences have been discussed above, and the view expressed that this would not require another hearing.

The agency here seems to have concluded that the job was done with adoption of part 860 and we agree. The entire rule making was thus in part 860, it was sufficient in itself, and applicable to Rocky Flats. Subsequent acts were ministerial to carry out the detailed regulation.

Some defendants raise another and separate issue. Defendants who were arrested at the west access road and on the railroad tracks (thus those not in Trial Groups, A, C, and D) urge that since they were arrested at a place where the government did not have the fee but only an easement that trespass cannot be charged.

The statute does not mention trespass as such, but is directed to preventing entry. Thus it gives authority to issue regulations “relating” to entry upon or the introduction of explosives into or upon any facility. The regulations are “for the protection and security of facilities” and unauthorized entry is prohibited. The statute is to control the movement of persons and objects in and out of facilities — the control of access. It is not a matter of trespassing in the traditional sense.

We see no reason why the statute and regulations were not applicable to accomplish the recited purposes whether the access was over an easement or a fee. The intention to have this control was further evidenced by the broad language in the condemnation.

We must hold that the nature of the interest held by the United States in no way limited the application of the statute under which these actions were brought.

For the reasons set forth above and those stated in United States v. Seward, the judgments are affirmed.

McKAY, Circuit Judge, will file a dissenting opinion concurred in by LOGAN and SEYMOUR, Circuit Judges.