United States of America v. Adrian Nature

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
ADRIAN NATURE,
Defendant-Appellant.
No. 17-10161
D.C. No.
1:16-cr-00133-
DAD-1
OPINION
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted May 16, 2018
San Francisco, California
Filed August 6, 2018
Before: J. Clifford Wallace, N. Randy Smith,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Wallace

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2 UNITED S TATES V. N ATURE
SUMMARY*
Criminal Law
The panel affirmed the defendant’s conviction for being
dangerously under the influence of alcohol in violation of 36
C.F.R. § 34.5(b)(21) while he was in the El Portal
Administrative Site, which is adjacent to Yosemite National
Park.
The panel held that whether or not the Administrative
Site is a “park area” within the meaning of the dangerous-
drinking-prohibition contained in 36 C.F.R. § 2.35, section
34.5 incorporates the dangerous-drinking-prohibition with
the necessary changes to make the prohibition applicable to
the Administrative Site.
COUNSEL
Erin M. Snider (argued), Assistant Federal Defender;
Heather E. Williams, Federal Defender; Office of the
Federal Public Defender, Fresno, California; for Defendant-
Appellant.
Michael G. Tierney (argued), Assistant United States
Attorney; Camil A. Skipper, Appellate Chief; United States
Attorney; United States Attorney’s Office, Fresno,
California; for Plaintiff-Appellee.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED S TATES V. N ATURE 3
OPINION
WALLACE, Circuit Judge:
Adrian Nature appeals from his conviction for being
dangerously under the influence of alcohol in violation of
36 C.F.R. § 34.5(b)(21). He also appeals from the denial of
his motion to dismiss the criminal complaint. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
After drinking three or four containers of beer, Nature
got into his vehicle outside of the El Portal Community
Center. He planned to drive fifteen miles along a curvy
mountain road to his campsite in Yosemite National Park.
Bystanders saw him stagger and stumble while heading to
his vehicle. They tried to persuade him not to drive and even
parked behind his vehicle. A National Park Service ranger
came to the scene and arrested Nature for being dangerously
under the influence of alcohol in violation of 36 C.F.R.
§ 34.5(b)(21). The magistrate judge denied Nature’s motion
to dismiss the criminal complaint and found Nature guilty
after a bench trial. The district court affirmed the judgment.
Nature timely appealed.
II.
We review de novo the denial of a motion to dismiss a
charging document for failure to state an offense. United
States v. Blixt, 548 F.3d 882, 886 (9th Cir. 2008).
III.
The federal regulation at issue here is 36 C.F.R.
§ 34.5(b)(21). Located in a part of the Code of Federal

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4 UNITED S TATES V. N ATURE
Regulations titled “El Portal Administrative Site
Regulations,” it provides in relevant part:
The following sections and paragraphs of this
chapter, as amended from time to time, apply
to the administrative site and are hereby
incorporated and made a part of this part
except as modified by the regulations in this
part:
. . . . .
(b) Resource Protection, Public Use and
Recreation.
. . . . .
(21) 2.35 Alcoholic beverages and
controlled substances.
. . . . .
36 C.F.R. § 34.5(b)(21). The regulation applies to “all
persons . . . within the boundaries of the El Portal
Administrative Site.” 36 C.F.R. § 34.2; see also 36 C.F.R.
§ 34.4 (defining “administrative site”). Nature was in the El
Portal Administrative Site (the Site) at the time of his arrest.
The Site is “adjacent to,” but “outside” of, Yosemite
National Park. 16 U.S.C § 47-1.
Section 2.35, the regulation incorporated by reference,
prohibits “[p]resence in a park area when under the
influence of alcohol . . . to a degree that may endanger
oneself or another person, or damage property or park
resources.” 36 C.F.R. § 2.35(c) (emphasis added). We refer

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UNITED S TATES V. N ATURE 5
to it as the dangerous-drinking-prohibition. Nature does not
dispute that he was under the influence of alcohol to a degree
that may have endangered others. Rather, he argues that the
Site is not a “park area,” and therefore the dangerous-
drinking-prohibition did not apply to his conduct at the Site.
The government, however, urges us to hold that the Site is a
“park area” because the term, in the government’s view,
includes any land that “supports the [Service’s] mission” of
preservation.
We begin with the text of the regulations. The
regulations define the term “park area” as synonymous with
the term “National Park System.” 36 C.F.R. § 1.4. The term
“National Park System” means “any area of land . . . now or
hereafter administered by the . . . National Park Service for
park, monument, historic, parkway, recreational, or other
purposes.” Id. Nature does not dispute that the National Park
Service (the Service) administers the Site, but argues that it
does not do so “for park, monument, historic, parkway,
recreational, or other purposes.”
The district court held that the definition of “park area”
encompassed the Site, but did not explain which part of the
definition the Site satisfied, presumably land administered
for either a “park purpose” or an “other purpose.” Nature v.
United States, 250 F. Supp. 3d 634, 640 (E.D. Cal. 2017).
We need not decide whether the Site is a “park area”
because, even assuming without deciding that it is not, the
dangerous-drinking-prohibition nonetheless applies to the
Site. As discussed above, section 34.5 purports to make the
dangerous-drinking-prohibition applicable to the Site. It
states, “The following sections and paragraphs of this
chapter . . . apply to the administrative site and are hereby
incorporated and made a part of this part . . . .” 36 C.F.R.
§ 34.5. We hold that this language incorporates the

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6 UNITED S TATES V. N ATURE
dangerous-drinking-prohibition mutatis mutandis, meaning
with the necessary changes to make it applicable to the Site.
See mutatis mutandis, Black’s Law Dictionary 1177 (10th
ed. 2014); see also Shalala v. Ill. Council on Long Term
Care, Inc., 529 U.S. 1, 17 (2000), citing Bowen v. Mich.
Acad. of Family Physicians, 476 U.S. 667, 680 (1986)
(interpreting a provision of the Social Security Act, which
the Medicare Act made applicable “to the same extent” as it
is “applicable” to the Social Security Act, as applying to the
Medicare Act mutatis mutandis). Put simply, even if the Site
is not a “park area,” the prohibition applies to the Site as if it
were.
This reading makes sense because otherwise some cross-
references in section 34.5 would have no consequence. The
dangerous-drinking-prohibition in section 2.35 and other
cross-referenced regulations apply exclusively, or nearly so,
to “park areas.” See 36 C.F.R. § 2.35(c); see also 36 C.F.R.
§§ 2.2 (wildlife protection), 2.31 (trespassing); 2.50 (special
events). For example, the cross-reference to fishing
restrictions makes applicable subsections (a) and (c)
specifically and those subsections only apply to “park areas.”
36 C.F.R. § 2.3(a), (c). If the Site were not a “park area” and
we did not read the regulation mutatis mutandis, these cross-
references would make applicable to the Site a regulation
that by its terms could never apply. This cannot be the
correct reading. We construe regulations, like statutes, to
give effect to every word when possible. See Duncan v.
Walker, 533 U.S. 167, 174 (2001). Therefore, even if the Site
is not a “park area,” we must read section 2.35(c) with the
necessary changes to make it applicable to the Site.

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UNITED S TATES V. N ATURE 7
IV.
We hold that the dangerous-drinking-prohibition applies
to the Site, whether or not it is a “park area.”1
AFFIRMED.
1 In his opening brief on appeal, Nature argued that the Service
exceeded its authority in promulgating 36 C.F.R. § 34.5(b)(21). We do
not address this argument because Nature’s counsel expressed her intent
to abandon it at oral argument.

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