US v. Layne

847 F. Supp. 888

UNITED STATES of America, Plaintiff, v. Marlo LAYNE, Defendant.

No. P6108935/UP24.

United States District Court, D. Utah, C.D.

March 25, 1994.

Kevin Sundwall, State's Asst. U.S. Atty., Salt Lake City, UT, for plaintiff.

Scott Cunningham, Salt Lake City, UT, for defendant.

MEMORANDUM AND ORDER

BOYCE, United States Magistrate Judge.

Defendant, Marlo Layne, is charged with a violation of 36 Code of Federal Regulations (CFR) 2.35(b). It is alleged that the defendant was in possession of a controlled substance within the area of Zion National Park. The probable cause statement indicates a Park Ranger found three (3) baggies of marijuana, barbiturates, and hallucinogenic mushrooms in the defendant's purse. This is the basis of the possession charge. However, at hearing, possession of marijuana was all the government indicated it was pursuing.

The issue now before the court is whether 36 CFR 2.35(b) is a valid exercise of the rule making authority given to the Secretary of the Interior or whether the provisions of 21 U.S.C. § 844(a) govern the defendant's conduct. Only the possession of marijuana charged as illegally possessed is considered as directly relevant to the determination.

21 U.S.C. § 844(a) is a congressional enactment providing the offense and penalty for simple possession of a controlled substance:

It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter 11 of this chapter. Any person who violates this subsection shall be sentenced to a term of imprisonment of not more than one year, a fine of not more than $5,000, or both, except that if he commits such offense after a prior conviction or convictions under this subsection have become final, he shall be sentenced to a term of imprisonment of not more than 2 years....

A controlled substance is any schedule I drug under 21 U.S.C. § 812 and includes marijuana. See 21 U.S.C. § 802(6).

36 CFR 2.35(b) relates to possession and other activities with regard to controlled substances in national parks and states a prohibition:

The following is prohibited:

(1) The delivery of a controlled substance, except when distribution is made by a practitioner in accordance with applicable law. For the purposes of this paragraph, delivery means the actual, attempted or constructive transfer of a controlled substance whether or not there exists an agency relationship.

(2) The possession of a controlled substance, unless such substance was obtained by the possessor directly, or pursuant to a valid prescription or order, from a practitioner acting in the course of professional practice or otherwise allowed by Federal or State law. (Emphasis added)

The term controlled substance is not defined and the CFR covers delivery (distribution) as well as possession. 36 CFR § 1.3 provides a penalty of six month imprisonment and a $500 fine¹ for a violation of 36 CFR § 2.35(b). In Part 2 of Title 36 CFR the Secretary of the Interior cites 16 U.S.C. §§ 1, 3, 9a, and 462(k) for the authority to promulgate the regulation in section 2.35(b).

16 U.S.C. § 1 creates the National Park Service within the Department of Interior and authorizes the Secretary of Interior to make regulations for the "use" of National Parks. In Wilkenson v. Department of Interior, 634 F.Supp. 1265 (D.Colo.1986) the court construed the authority of the Secretary of the Interior to make rules for the use and management of National Parks as "very broad." The case considered the power to control access roads in a National Park. See also Sierra Club v. Andrus, 487 F.Supp 443 (D.D.C.1980) aff'd in part 659 F.2d 203 (D.C.Cir.1981).

16 U.S.C. § 3 provides in part:

The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service, and any violation of any of the rules and regulations authorized by this section and sections 1, 2 and 4 of this title shall be punished by a fine of not more than $500 or imprisonment for not exceeding six months, or both, and be adjudged to pay all costs of the proceedings.

(Emphasis added).

Under this section a court will not judicially upset an action of the Secretary unless his action is arbitrary or beyond his authority. Udall v. Washington, Va. & Md. Coach Co., 398 F.2d 765 (D.C.Cir.1968). The Secretary's regulations have the force of law United States v. Petersen, 91 F.Supp. 209 (S.D.Cal.1950) (regulation of the sale of alcohol).

16 U.S.C. § 9a relates to certain powers of the Secretary of the Army in regard to National Military Parks and is not pertinent to this case. 16 U.S.C. § 462(k) relates to powers and duties of the Secretary of Interior and empowers the Secretary to make rules and regulations ... "necessary and proper" to his imposed obligation to carry out certain specified functions and authorizes a sanction of $500 in costs. This appears to be limited to functions set forth in 16 U.S.C. § 461-467 which are duties of the Secretary.

Nothing in any of the statutes expressly grants the Secretary specific authority with regard to the possession and delivery of controlled substances. If Congress has not otherwise provided for a comprehensive regularitory scheme, the Secretary of the Interior may have authority under 16 U.S.C. §§ 1 & 3 to promulgate regulations with regard to controlled substances as part of the use and management of the National Parks. This activity is in the exercise of proprietary jurisdiction over federal lands. It should be observed that in exercising the delegated authority under 16 U.S.C. §§ 1-3, the Secretary of the Interior has set a petty offense penalty for conduct that would be a misdemeanor or serious felony under title 21 U.S.C. § 801 et seq. See 21 U.S.C. § 841(b) which sets a penalty for distribution of a controlled substance; 842(c)(1) setting penalties for distribution in violation of § 829 (prescriptions); § 843(c) setting a penalty for certain distributions of controlled substances; and § 844(a) setting a penalty for possession, which dependent on the circumstances, can be a misdemeanor or a felony.

Congress, in 1970, made extensive findings as to the need for prevention of drug abuse, Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801, and intended to regulate interstate and intrastate drug abuse under the 1970 Act.² 21 U.S.C. § 841 et seq. sets forth a comprehensive federal regulatory and prohibitory scheme for dealing with drug abuse. The 1986 Anti Drug Abuse Act, was a further comprehensive and encompassing congressional enactment to combat drug abuse. Pub.L. 99-570 § 1 et seq. October 27, 1986, 100 Stat. 3207, amending the Comprehensive Drug Abuse Prevention and Control Act of 1970. Also, there have been more recent amendments. Further, sentencing under Title 21 is subject to federal sentencing guidelines. United States Sentencing Guidelines (USSG), November 1, 1993 Part D, i.e. § 2D1.1 etc.³ Congress has set out specific, broad, and comprehensive standards for federal anti-drug enforcement which are inconsistent with the Secretary of Interior's regulatory promulgations in 36 CFR 2.35(b). Congress may regulate the same conduct at different penalty levels and leave to the prosecutor's discretion which offense to charge. This difference was noted in United States v. Barial, 841 F.Supp. 171 (E.D.Va.1993) where the court found different standards applicable between 21 U.S.C. § 844 and 36 CFR 2.35(b). The court said "Persons arrested for possession of controlled substances within a National Park may be charged under either 21 U.S.C. § 844 or 35 CFR 2.35(b)(2)." The court rejected an equal protection argument under authority of United States v. Batchelder, 442 U.S. 114, 123-25, 99 S.Ct. 2198, 2203-05, 60 L.Ed.2d 755 (1979) (offenders may be charged under more than one statute and prosecutor has discretion as to which offense to charge).⁴ However, the result in Barial was incongruous and the case did not consider whether congress intended the provisions of Title 21 to be preemptive of promulgations under the general regulatory authority to manage the use of federal lands.

In Batchelder the Supreme Court adopted a legislative intent standard to determine if Congress actually intended to grant the prosecutor the authority to select between different statutes or offenses. See Campbell, Law of Sentencing 2d Ed. § 9.11 (1991). The issue therefore, must be examined to determine what Congress actually intended by the various legislative provisions. United States v. Largo, 775 F.2d 1099 (10th Cir.1985).

In United States v. Batchelder, supra, the court reached the conclusion that two statutes could properly overlap the same subject matter. Whether this is intended has to be determined by examining "the language, structure, or legislative history" 442 U.S. at 118, 99 S.Ct. at 2201. In Batchelder the court concluded that each statute was intended to operate independently of the other. The court said that congress intended to enact two independent gun control statutes, each fully enforceable on its own terms, which was confirmed by the legislative history. Id. at p. 119, 99 S.Ct. at 2202. The court said Congress had "conveyed its purpose clearly ..." Id. at p. 122, 99 S.Ct. at 2203.

In Largo the court held a defendant could properly be convicted under a general theft statute, even though another statute was more specific to the conduct and provided a lesser penalty. The court did not consider the Batchelder elements, but relied on United States v. Afflerbach, 754 F.2d 866 (10th Cir.1985) where the court allowed a prosecution under a general statute where a more...