Appeal from the United States District Courtfor the District of IdahoEdward J. Lodge, District Judge, PresidingArgued and SubmittedJuly 14, 1999--Coeur d'Alene, IdahoFiled January 12, 2000Before: Edward Leavy, Stephen S. Trott, andThomas G. Nelson, Circuit Judges.Opinion by Judge Trott
_____________________________COUNSEL Gerald R. Smith, Federal Defenders of Eastern Washingtonand Idaho, Spokane, Washington, for the defendants-appellants.Barry McHugh, Assistant United States Attorney, Coeur d'Alene, Idaho, for the plaintiff-appellee.OPINIONTROTT, Circuit Judge:The Nez Perce National Forest is located in north centralIdaho east of Grangeville. It is part of our cherished nationalforest system and managed by the United States Forest Ser-vice through its Red River Ranger District. In accordancewith government contracts, the validity of which are notinvolved in this case, logging and associated road buildingactivities were scheduled to occur in the Forest during 1996.Those approved activities were part of the Jack Timber Saleand to be conducted by Shearer Lumber Products and High-land Enterprises. The removal of forest trees -- or logging --was the primary purpose of this project, and the constructionof roads was to facilitate that purpose. Highland's contractcalled for new road construction at the end of the existingJack Creek road system to access the trees that were to be har-vested.Because of a wet spring and adverse soil conditions, how-ever, Highland was not able to attend to its contractual roadbuilding responsibilities until late in the summer. When thetime came to begin construction, and because of previousactivities of persons opposed to road building and logging inthe Nez Perce Forest, on July 15, 1996, officials of the ForestService flew over the area to observe the end of the roadwaywhere the new Jack Creek construction was to take place.They observed recent damage consisting of obstructivetrenches dug across the existing roadbed, removed andplugged culverts, and a pit in the road containing largeamounts of human waste. The trenches, which were hand-dug, had been hooked up to dams designed to divert waterinto them. Water was seen running across the road. The offi-cials also observed barriers on the roadbed consisting of pilesof slash logs, debris, and large pole and log structures. Theofficials observed numerous protestors in the area. The offi-cials considered the damage they observed to be violations ofForest Service Regulations as well as impediments to the con-struction project that was about to begin.Because of the obvious implications of the damaged condi-tion of the roadbed, the trenches, and the presence of protest-ors with respect to commencement of the new construction,on August 3, 1996, government officials procured from ForestSupervisor Coy G. Jemmett, a Special Restriction pursuant to36 C.F.R. S 261.50 for an area limited to the immediate siteof the planned new road construction and the repair of theexisting roadbed and culverts. This Special Restriction isknown as a "closure order," and it specified on its face -- asexplicitly provided for in the Regulations -- that its purposeswere for public health and safety and to protect property. Theprecise authority for such an order came from Part 261 of 36C.F.R. entitled "Prohibitions," and from Subpart B of thatPart entitled, "Prohibitions in Areas Designated by Order" --not from Part 251 entitled, "Land Uses." As District RangerRobert Wood testified, "[t]he closure order was designed spe-cifically to allow the contractor to enter the area and conductroad building activities without interference and in a safemanner." ER at 257. The closure order exempted (1) personswith a permit specifically authorizing entry, (2) law enforce-ment, rescue, or firefighting officers in the performance of anofficial duty, and (3) Shearer Lumber Products and HighlandEnterprises' employees and officials while performing theircontractual obligations.The closure order was tailored to cover just the area ofscheduled construction activities. The order extended only toone hundred fifty feet from each side of the center of con-structed and unconstructed portions of (1) Forest Roads 9553,9553A, 9553C, 9555, 9555A, and (2) Forest Road 9550 fromits junction with Forest Road 421 for a distance of 2,150 feetin a specified direction, and (3) certain relevant spurs andextensions thereof. The order was understood to expire whenthe construction was completed by the contractor andaccepted by the Forest Service, which turned out to be aperiod of 45 days from the date of the closure.Four days after Jemmett signed the Special Restriction, inthe early morning of August 7, 1996, Forest Service SpecialAgent Mike Merkley went to the area of the closure with agroup of enforcement agents, posted a copy of the order,handed copies of it to most of the protestors, and asked themto move, in a reasonable time, 150 feet away from the centerof the roadbed. Merkley asked his officers to work with theprotestors to gather their equipment and move from the closedarea. Most of the protestors complied with the order, but notall. Those who did not were arrested and charged with crimes.The defendants -- now appellants -- describe themselvesas protestors who engage in activity aimed at the conduct,policies, and practices of the United States Forest Service andof the logging and trucking companies that carry out opera-tions in the Nez Perce National Forest. They do not seriouslychallenge the government's factual presentation of what hap-pened in the Forest on August 7, 1996. In this respect, therecord shows each to have behaved, after being advised of theclosure order, in the following manner:Defendant Gale, who was in a raised structure over theroadbed, refused to leave both the structure and the closedarea and had to be removed hours later with the help of apiece of machinery with a hydraulic attachment called a"cherry picker."Defendant Griefen, who refused to leave another raisedstructure in the closed area, a structure defended by nails, wasbrought to earth by the removal of the legs of the structure.Defendant Warns was similarly situated and had to be forc-ibly removed from her perch after she positioned herself in itso it could not be dismantled without injuring her.Defendant Gray had to be partially cut out of a metal con-coction into which he had inserted his arm and of which hewould not let go. Halfway through the extraction process,Gray finally released his hold when told he could be chargedwith a felony for destroying government property if he didnot.Defendant Bowersox was arrested when, notwithstandingnumerous warnings to leave, he insisted on entering andremaining in the closed area.After a trial before Magistrate Judge Williams, each defen-dant was convicted of violating 16 U.S.C. S 551 and 36C.F.R. S 261.53 for being in "an area closed for the protectionof (e) public health or safety [and] (f) property." Id. Defen-dants Griefen, Warns, and Gale were also convicted of violat-ing 36 C.F.R. S 261.10(a) and 16 U.S.C. S 551 formaintaining a structure on National Forest system land with-out authorization. They appealed their convictions to thenChief District Judge Lodge. Judge Lodge affirmed Judge Wil-liams's Memorandum Decision of November 12, 1996 andOrder of March 25, 1997. This timely appeal followed. Weaffirm.IThe defendants' appeals boil down to two colorable claims.First, that the closure order, both as applied and on its face,violated the First Amendment by operating as a prior restrainton free speech; and second, that as a matter of law, Griefen,Warns, and Gale did not "maintain" the structures that theyoccupied immediately before their arrests. The remainder oftheir claims require no discussion.1IIFirst AmendmentA.[1] "[W]hen expressive conduct occurs on public grounds,like a national forest, the government can impose reasonabletime, place, and manner restrictions." United States v.Johnson, 159 F.3d 892, 895 (4th Cir. 1998) (citing Ward v.Rock Against Racism,
491 U.S. 781, 789
(1989)). Suchrestrictions are constitutionally valid if they are (1) content-neutral, (2) narrowly tailored to serve a significant govern-mental interest, and (3) leave open "ample alternatives forcommunication." United States v. Linick, 195 F.3d 538, 543(9th Cir. 1999) (quoting Forsyth County v. NationalistMovement,
505 U.S. 123, 129
-30 (1992)). As Justice Robertssaid in Hague v. Committee for Industrial Organization, 307U.S. 496 (1939): The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exer- cised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regula- tion, be abridged or denied.Id. at 515-16."The crucial question is whether the manner of expressionis basically incompatible with the normal activity of a particu-lar place at a particular time." Grayned v. City of Rockford,
408 U.S. 104, 116
(1972); see also Wright v. Chief of TransitPolice, 558 F.2d 67, 68 n.1 (2d Cir. 1977) ("Whether or nota particular forum is a `public forum' akin to a public streetis merely a variant of the compelling interest test.").[2] A searching review of the record in this case revealsthat the disputed S 261.50 closure order satisfies each of thethree prongs of this First Amendment test. First, a thoroughde novo review of the facts, see Tucker v. California Dep't ofEduc., 97 F.3d 1204, 1209 n.2 (9th Cir. 1996), leaves nodoubt that the closure order was content-neutral. The disputedarea was open fully to the public and the protestors untilAugust 7, 1996, the day the contractor requested access tobegin work required by a government contract. The area wasclosed to enable that work to take place, work which requiredthe use of potentially dangerous heavy construction equip-ment. The clear purpose of the order, as explained for the For-est Service by witnesses Wood and Murphy, was for reasonsof health and safety, and for the protection of property, rea-sons which are authorized in S 261.53 and which hold upwhen tested by the rest of the record. These are compellingreasons related to needs arising from proper forest manage-ment practices, and certainly represent significant governmentinterests. As the Supreme Court explained in Clark v. Com-munity for Creative Non-Violence,
468 U.S. 288
(1984), arestriction on expressive activity is content-neutral if it is jus-tified, i.e., based on a non-pretextual reason divorced from thecontent of the message attempted to be conveyed. We findthis to be the case here. The restriction was for the specificpurposes of honoring contractual obligations and permittingthe safe construction of the road, not to silence the protestors.It excluded all members of the general public, not just theprotestors. Moreover, the protestors had already shown bytheir destructive conduct that they presented a clear and pres-ent danger to the safe completion of the construction project,both to other persons as well as to themselves.[3] Second, as just explained, the closure order was issuedto advance significant government interests. It was also nar-rowly tailored. The closure order was limited to the immedi-ate construction area, and 150 feet on each side of the zone-- which we conclude was imminently reasonable. The prote-stors were not ejected from the forest or even from the vicin-ity of the construction site, only from 150 feet to each side ofthe center of the work zone. Moreover, the restriction was notimposed until work was ready to begin, and it lasted for only45 days, or until the project was completed.[4] Finally, and as we have indicated, given the spatial andtemporal scope of the closure, it is clear that the protestorscould continue their protest, but at a distance of 150 feet fromthe construction site. This tailoring left them with ampleopportunities in the Nez Perce Forest and elsewhere lawfullyto express their views, even though their illegal trench diggingand other physically obstructive activities obviously could notcontinue.The appellants cite Bay Area Peace Navy v. United States,914 F.2d 1224 (9th Cir. 1990), to support their claim that thisclosure order was not narrowly tailored. In Bay Area Peacewe concluded that a 75 yard, or a 225 foot, safety zonebetween demonstrators and a scheduled parade of Navy shipsfailed the "narrowly tailored" test because it was wider thannecessary to accomplish its purpose. See id. at 1228. How-ever, we made clear that a central reason for our conclusionwas the absence of any evidence whatsoever of a threat tosecurity sufficient to render the size of the security zone rea-sonable. Id. We relied on United States v. Grace, 461 U.S.171 (1983), which we described as standing for the proposi-tion that, when there is no evidence of obstruction, threat- ened injury or interference with orderly administra- tion, a ban on carrying a sign or banner on public sidewalks surrounding the Supreme Court building fails substantially to serve the stated purpose of "protect[ing] persons and property or [ ] maintain- [ing] proper order and decorum within the Supreme Court grounds."Bay Area Peace, 914 F.2d at 1228. We also said, however,that should circumstances change and provide evidence of "atangible threat to security," id. at 1228-29, the 75 yard secur-ity zone approved by the district court could be modified.[5] In the instant case, not only was the zone more narrowthan in Bay Area Peace, but an actual threat posed by theprotestors and the appellants clearly existed. If anything, BayArea Peace supports the position taken by the government.Faced with a clear and present threat to health and safety andproperty, the Forest Service appropriately established a lim-ited security zone around the danger area. It did not close theforest, just a small part of it. This was exactly the kind of law-ful security zone we had in mind in Bay Area Peace.[6] The area occupied by the protestors, and from whichthey were ejected, was an area temporarily subject to con-struction and repair. The immediate area of a constructionzone is not an area that has the attributes of a public forum,or even a limited public forum, where people are entitled toexercise their rights of free speech. As the Supreme Courtobserved in Perry Education Association v. Perry Local Edu-cators' Association,
460 U.S. 37
(1983), "[t]he existence of aright of access to public property and the standard by whichlimitations upon such a right must be evaluated differ depend-ing on the character of the property at issue." Id. at 44.Case law informs us with examples of analogous situationswhere courts have held that it was proper for a governmententity to close an area normally available for public expres-sion. Most recently, we held that Oregon State Universitycould close its campus to a person covered by court-issuedstalking orders, secured by two university students who werehis stalking targets. Souders v. Lucero, No. 98-35527, 1999WL 1029498 (9th Cir. November 15, 1999). We upheld theexclusion order on the ground that it had been issued "for thevalid purpose of protecting its students, and not for conductprotected by the Constitution." Id. at *5.In so holding, we relied on United States v. Albertini, 472U.S. 675 (1985). In Albertini, the Court approved of an exclu-sion order from a military base during an open house forArmed Forces Day of a person who was previously barredfrom the base, and who had previously been convicted of con-spiracy as a protestor to injure government property on thebase. Id. at 687. The Court noted that vandalism can hardlybe characterized as activity protected by the First Amend-ment. Id. at 686. The Court also reiterated its holding inUnited States v. O'Brien,
391 U.S. 367
(1968), that applica-tion of a facially neutral regulation that incidentally burdensspeech satisfies the First Amendment if it " `furthers animportant or substantial governmental interest; if the govern-mental interest is unrelated to the suppression of free expres-sion; and if the incidental restriction on alleged FirstAmendment freedoms is no greater than is essential to the fur-therance of that interest.' " Id. at U.S. at 687-88 (quotingO'Brien,
391 U.S. at 377
).[7] The closure order here satisfies all aspects of this test.Although the closure order certainly put a stop to the specificexpressive and obstructive activities of the defendants, it wasminimally intrusive on their legitimate right to protest. Hav-ing to move 150 feet from a construction area made danger-ous by illegal destructive behavior did not substantiallyburden the appellants' rights. As the Court said in Communityfor Creative Non-Violence, "reasonable time, place, or man-ner regulations normally have the purpose and direct effect oflimiting expression but are nevertheless valid." 468 U.S. at294. Thus, we hold that the closure order was a valid time,place, and manner restriction that did not run afoul of the FirstAmendment, and the appellants' first challenge to the orderrendering them criminally liable fails.B.The appellants attack the closure order on yet anotherground. They claim it was unconstitutional because ForestService officials had too much discretion in issuing andadministering it. Such latitude, they argue, runs afoul ofSupreme Court cases holding that decisions about permits forparades and demonstrations cannot be left to the unbridleddiscretion of public officials. This attack is necessarily anattack on the facial validity of the order because the defen-dants did not apply for authorization to enter the closed areaand thus may not argue that the scheme is unconstitutional asapplied to them.Appellants rely on cases involving the authorization andissuance of permits by government entities. These cases, how-ever, are distinguishable and inapposite. The permit casesdealt with venues generally open for expressive activity, butonly with the prior permission of a government licensor, or agatekeeper, whose discretion was unbridled and unfettered.Such a permit system has been determined to be constitution-ally defective with respect to areas available for expressiveactivity for two reasons. First, as a prior restraint, the permitprocess "intimidate[s] parties into censoring their own speech,even if the discretion and power are never actually abused."City of Lakewood v. Plain Dealer Publ'g Co.,
486 U.S. 750
,757 (1988). Second, it empowers a governmental entity'slicensing officials "to roam essentially at will, dispensing orwithholding permission to speak, assemble, picket, or paradeaccording to their own opinions regarding the potential effectof the activity in question on the `welfare,'`decency,' or`morals' of the community." Shuttlesworth v. Alabama, 394U.S. 147, 153 (1969).The case before us, however, does not deal with the use ofa portion of a forest generally open for public expression, butone temporarily and lawfully closed for repair and construc-tion. Simply put, this is not a typical permit case. If a closureof a public forum is for a valid rather than a disguised imper-missible purpose, the potential for self-imposed or govern-ment censorship discussed in City of Lakewood does not exist.The Forest Service's regular forest use permit system as pro-vided for in 36 C.F.R. Part 251, Land Uses, therefore, is irrel-evant.[8] We have no doubt that a government entity may closeareas of public forests under construction and repair, as itcould temporarily close for good reasons a forest during a for-est fire, a washed-out road or bridge, a crime scene during anofficial investigation, a street engulfed in a riot or an unlawfulassembly, a terrorist-bombed public square, or the plaza sur-rounding the Washington Monument while the Monument isundergoing refurbishing. We also have no doubt that areas ofa national forest may be closed to the public for reasons per-taining to the normal management requirements of a nationalforest as well as to honor contracts, the execution of which istemporarily incompatible with expressive behavior. Theappellants' arguments amount to a claim that they be allowedto continue their activities during construction in the construc-tion area. To articulate their proposition in this way is toreveal its lack of reason.As the Supreme Court has said, Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society main- taining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regula- tions in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The con- trol of travel on the streets of cities is the most famil- iar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public conve- nience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets for parades and processions is a tra- ditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.Cox v. New Hampshire,
312 U.S. 569, 574
(1941) (emphasisadded).[9] A highway, a bridge, a public plaza, or any similar loca-tion that is occupied by bulldozers, cranes, roadgraders, earth-moving equipment, scaffolding, and other constructionparaphernalia need not be open to the public during construc-tion and repair, period, for expressive purposes or otherwise.The First Amendment does not command public entry undersuch circumstances. Indeed, for the government to allow thepublic into a dangerous area would be clearly a violation ofthe duty to protect the public from known risks. The repair ofa public facility, the construction of a new one, and the pro-tection of citizens from dangers are manifestly valid andimportant purposes.[10] Thus, because the First Amendment concerns animat-ing the permit cases cited by the Appellants do not exist here,the teaching of those cases is not apposite. Cessante rationelegis, cessat et ipsa lex (The reason of the law ceasing, the lawitself also ceases). In First Amendment terms, the fact thatdiscretion to authorize entry to a closed area may be unfet-tered during construction is of no concern. The process ofgranting authority to enter a lawfully closed zone differsmarkedly from the process of licensing expressive activity.Such a process does not "engender identifiable risks to freeexpression . . . ." City of Lakewood,
486 U.S. at 757
.[11] Based on the foregoing, including our determinationthat the closure order was valid, we conclude that the appel-lants' facial challenge to this closure order on First Amend-ment grounds simply because Forest Service officials hadbroad discretion in deciding who could enter the closed areamust fail. City of Lakewood distinguishes carefully "laws thatare vulnerable to facial challenge from those that are not." Id.at 759. The test that distinguishes the two categories iswhether the statute, or the law, raises the specter of (1) self-censorship, or (2) difficulties of detecting, reviewing, and cor-recting content-based censorship. Id. "Therefore, a facial chal-lenge lies wherever a licensing law gives a governmentofficial or agency substantial power to discriminate based onthe content or viewpoint of speech by suppressing disfavoredspeech or disliked speakers . . . . The law must have a closeenough nexus to expression, or to conduct commonly associ-ated with expression, to pose a real and substantial threat ofthe identified censorship risks." Id. We do not find such anexus in a closure order context where the closure order itselfis non-pretextual and otherwise passes constitutional muster.City of Lakewood cites Kovacs v. Cooper ,
336 U.S. 77
(1949), and Saia v. New York,
334 U.S. 558
(1948), as con-trasting examples of First Amendment cases illustrating (1)the differences between prohibition cases (Kovacs) andlicensing cases (Saia); and (2) when a facial challenge isproper (Saia), and when it is not (Kovacs). City of Lakewoodconfirmed the validity of Kovacs' holding that -- the FirstAmendment notwithstanding -- certain types of expressiveactivities, i.e., sound trucks, may be barred altogether, eventhough those activities are a means of expression. Id. at 755-56. In Kovacs, the court quoted extensively from Schneider v.State of New Jersey,
308 U.S. 147
(1939): Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one right- fully upon the street to impart information through speech or the distribution of literature, it may law- fully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his posi- tion to the stoppage of all traffic; a group of distribu- tors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broad- cast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the free- dom to speak, write, print or distribute information or opinion.Kovacs,
336 U.S. at 89
n.13 (quoting Schneider, 308 U.S. at160-61). On the other hand, Saia held that an ordinance sub-jecting the use of sound trucks to a standardless permit systemis amenable to a facial challenge because of the attendant riskof censorship, both self-imposed and official. See Saia, 334U.S. at 562.[12] The C.F.R. regulatory scheme associated with entry toclosed areas in national forests does not pose substantial risksof censorship, nor does it raise the real possibility of disguisedaction. Unlike the statute in City of Lakewood, periodicrenewals of permits is not an issue in this case, and the autho-rization process with respect to a closed area does not threatenlawful expressive activity. Once the forest is closed, it isclosed to the ordinary uses of the forest. Forest closure lawseasily fit the category of "laws of general application that arenot aimed at conduct commonly associated with expressionand . . . carry with them little danger of censorship." City ofLakewood,
486 U.S. at 760
-61. This case does not involve ourusual concerns about licensing based on unbridled and stan-dardless discretion.Our holding does not imply that an order that closes a pub-lic forum is sacrosanct. Should it appear that the true purposeof such an order was to silence disfavored speech or speakers,or that the order was not narrowly tailored to the realities ofthe situation, or that it did not leave open alternative avenuesfor communication, the federal courts are capable of takingprompt and measurably appropriate action. Anyone aggrievedby such an order, or for that matter by any order infringing onfree speech, has immediate access to the federal courts toadvance his or her grievances. Bay Area Peace illustrates theavailability of an adequate judicial forum to resolve these dis-putes, and of the standard legal tools -- such as temporaryrestraining orders and injunctions -- we use to enforce ourrulings. See Bay Area Peace, 914 F.2d at 1228. Here, if theappellants had a legal problem with the scheduled road build-ing or the logging, the rule of law provided them with an ave-nue to do something about it. Moreover, they could havecontinued on August 7, 1996 and immediately thereafter toprotest and to take their case to the public, to the newspapers,to their legislators, and even to the onsite loggers and roadconstruction workers -- they just could not do so in the pathof tractors and earth movers.IVMaintaining a StructureThe district court held that the appellants violated 36 C.F.R.S 261.10(a). The regulation prohibits: (a) Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, com- munication equipment, or other improvement on National Forest system land or facilities without a special-use authorization, contract, or approved operating plan.36 C.F.R. S 261.10(a) (emphasis added).It is undisputed that the incidents occurred on National For-est land. It is also undisputed that the appellants did not haveauthorized permits for the structures as required under theregulation. However, the appellants argue that their conductdid not constitute "maintaining a structure" as required under36 C.F.R. S 261.10(a) because (1) "maintain" requires morethan mere possession of, or occupation of, a structure; and (2)the word "maintain" is ambiguous and therefore the rule oflenity and the void-for-vagueness doctrine require reversal.We respectfully disagree.[13] The word "maintain" is neither vague nor cryptic. Inany dictionary in common usage it means to continue or carryon, to preserve or keep in a given condition, and to defend,as against danger or attack. See Webster's II New RiversideUniversity Dictionary 717 (1984); see also United States v.Clavis, 956 F.2d 1079, 1091 (11th Cir. 1992) ("Acts evidenc-ing such matters as control, . . . acquisition, . . . supervising,protecting, . . . are . . . evidence of knowingly maintaining theplace . . . .").The purpose of 36 C.F.R. S 261.10(a) is to prevent theimpeding of Forest Service roads. The district court found thatthe appellants were instrumental in the placement of the struc-tures and of integral parts of the structures, and that their pur-pose was to maintain the structures so as to impede traffic.The district court then concluded that the appellants main-tained the structures "by staying in them after being asked toleave, thereby preventing the Forest Service officers fromremoving the structures." The appellants argue that they sim-ply occupied the structures but did not maintain them.In United States v. Scranton, 25 F. Supp. 2d 1131, 1132 (D.Idaho 1997), a Defendant was charged with maintaining astructure, specifically a tripod, on Forest Service Road 9553without proper authorization in violation of S 261.10(a). In apublished opinion, the district court held that "Defendant'saffirmative refusal to leave the tripod `maintained' the struc-ture under the plain meaning of the word." Id. The court con-cluded that the "obvious purpose of the Defendant's conductwas to maintain the position of the structure in the middle ofthe roadway." Id. (emphasis added).[14] In the instant case, the appellants were asked severaltimes to leave the structures voluntarily and told they wouldbe arrested if they did not. They refused and remained in thestructures, defending and protecting them against the law. Asa result, law enforcement officers were forced to remove theappellants from the structures and disassemble the structuresbefore logging contractors could safely proceed with theirwork. This uncontested evidence establishes that Appellantswere intent on maintaining the positions of the structures toprotest and block the logging operations.[15] Appellants also argue that the word maintain is ambig-uous and therefore the rule of lenity mandates reversal. Nottrue. The rule of lenity is " `not applicable unless there is agrievous ambiguity or uncertainty in the language and struc-ture of the' regulation." Scranton, 25 F. Supp. 2d at 1132(quoting United States v. Butler, 74 F.3d 916, 924 (9th Cir.)),cert. denied,
519 U.S. 967
(1996). In Scranton, the districtcourt held that the language of 36 C.F.R. S 261.10(a) was notambiguous. Id. Based on the logic of the decision in Scranton,which we now adopt, the rule of lenity should not apply. Theregulation's language does not contain a grievous ambiguity,nor is the purpose of the regulation uncertain.[16] Finally, the appellants argue that the void-for-vagueness doctrine bars their conviction because the meaningof the word "maintain" is not clear. "[T]he void-for-vagueness doctrine requires that a penal statute define thecriminal offense with sufficient definiteness that ordinarypeople can understand what conduct is prohibited and in amanner that does not encourage arbitrary and discriminatoryenforcement." Kolender v. Lawson,
461 U.S. 352, 357
(1983).We conclude that this argument fails.AFFIRMED.
___________________________FOOTNOTES 1 The issues not requiring discussion are that the closure order was a Billof Attainder, that the defendants were entrapped by estoppel, that the mag-istrate judge erred in denying a short continuance to secure the presenceof a peripheral witness, and that the magistrate judge erred in not permit-ting a defense of necessity. We have examined each of these issues andfind them to be lacking in merit.