James John McBRIDE, Plaintiff–Appellant, v. S. LOPEZ; R. Ruggles; M. Perez; D. Lopez; S. Koch; R. Athey, Sgt., Defendants–Appellees.
Before MARY M. SCHROEDER and N. RANDY SMITH, Circuit Judges and ROGER T. BENITEZ,* District Judge. Tom Wyrwich (argued), Davis Wright Tremaine LLP, Seattle, Washington, for Plaintiff–Appellant. Kamala D. Harris, Attorney General of California, Thomas S. Patterson, Supervising Deputy Attorney General, Suzanne Antley (argued) and Neah Huynh, Deputy Attorneys General, San Diego, CA, for Defendants–Appellees.
This case turns on the adequacy of the complaint to establish an objective basis for the plaintiff's fear of retaliation. It therefore falls into the category of “rare cases” noted in Albino, where the prisoner's failure to exhaust is clear from the face of the complaint and the result would not be altered by discovery. See id. at 1169.
There was no objective indication the guards' statements were aimed at deterring McBride from filing a grievance. There is no allegation or evidence that the guards believed McBride was contemplating filing a grievance. McBride had not asked for materials necessary to file a grievance or given any indication to prison officials that he intended to file a grievance.
There was no objective indication that a reasonable inmate would have understood the statements to be aimed at deterring the inmate from filing a grievance. Though the guards' statements may have seemed threatening, an inmate would not have reasonably understood that the guards intended to retaliate for filing a grievance.
The panel has voted to deny the petition for panel rehearing. Judge N.R. Smith has voted to deny the petition for rehearing en banc, and Judges Schroeder and Benitez have so recommended.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are denied. Further petitions for rehearing and rehearing en banc shall not be entertained.
The Prison Litigation Reform Act (“PLRA”) requires the exhaustion of available prison administrative remedies before a prisoner may file suit in federal district court. The requirement may, however, be excused under certain limited circumstances where the intervening actions or conduct by prison officials render the inmate grievance procedure unavailable. In this case, for the first time in our circuit, we consider a claim that a threat of retaliatory action by a prison guard had the effect of rendering the prison grievance system unavailable so as to excuse the prisoner's failure to meet the time limitation for filing a grievance. We join other circuits in holding that fear of retaliation may be sufficient to render the inmate grievance procedure unavailable, and we approve the test applied in the Eleventh Circuit that requires both a subjective and objective basis for the fear. We hold in this case that McBride failed to show an objective basis for his belief that prison officials would retaliate against him for filing a grievance. We therefore affirm the district court's dismissal of the complaint.
We observe as a preliminary matter that we decide this appeal after our court's decision in Albino v. Baca, 747 F.3d 1162 (9th Cir.2014) (en banc), which overruled our prior circuit practice of deciding exhaustion issues on the basis of an “unenumerated motion” to dismiss pursuant to Federal Rule of Civil Procedure 12(b). Id. at 1168. We held that exhaustion issues must instead generally be decided on a motion for summary judgment pursuant to Rule 56. Id. Albino does not affect our decision in this case because there is no need for further factual development. This case turns on the adequacy of the complaint to establish an objective basis for the plaintiff's fear of retaliation. It therefore falls into the category of “rare cases” noted in Albino, where the prisoner's failure to exhaust is clear from the face of the complaint and the result would not be altered by discovery. See id. at 1169.
McBride alleges that while he was in ad-seg, defendants Ruggles and Lopez came by his cell and told him that he was “lucky” because his injuries “could have been much worse.” According to McBride, the guards visited him with similar comments on a number of occasions. He alleges he interpreted these statements as threats and did not immediately file a grievance against the defendants for excessive force because he feared retaliation.
McBride further alleges that after over two months had passed he began to fear that if he did not report the earlier incident he might suffer harm, so he initiated the grievance process by filing the Inmate/Parolee Appeal Form required for grievances within the California state prison system. McBride filed the form on September 16, 2010, approximately ten weeks after the incident. The filing was therefore approximately two months late, since California prison regulations then required grievances to be initiated within fifteen days.
The prison's appeals coordinator denied McBride's grievance on October 6, informing him that it was not timely and that McBride needed to provide an explanation for why he could not file in a timely fashion. McBride responded on October 20, explaining that he did not file on time because he was afraid of retaliation for reporting the incident, due to threats he had received from Lopez and Ruggles. On October 25, the appeals coordinator again rejected McBride's grievance, stating that McBride had failed to provide an adequate explanation for why he could not timely file.
McBride filed his pro se complaint in federal district court, pursuant to 42 U.S.C. § 1983, in December 2010, claiming violation of his Eighth Amendment rights by use of excessive force in connection with the original altercation. He also attached the record of his grievances, including the explanation he had submitted to the appeals coordinator as to why he could not timely file.
The district court granted defendants' motion to dismiss. The magistrate judge (in an order adopted by the district court) first noted that while our court had not considered the issue, a number of district courts in this circuit have ruled that threats cannot excuse a failure to exhaust. The order then reviewed the decisions of other circuits recognizing that threats can excuse a failure to exhaust. The district court concluded that even if it were to agree that threats can excuse a failure to exhaust, the statements by Lopez and Ruggles were not overtly threatening, but merely stating a fact when they described McBride as being “lucky” that his injuries were not worse. McBride appealed, and we appointed counsel to represent him.
The Prison Litigation Reform Act states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner ․ until such administrative remedies as are available are exhausted.” 42 U .S.C. § 1997e(a). This court has previously emphasized that the PLRA requires only that a prisoner exhaust available remedies, and that a failure to exhaust a remedy that is effectively unavailable does not bar a claim from being heard in federal court. In Nunez v. Duncan, 591 F.3d 1217, 1225–26 (9th Cir.2010), the official rejecting the prisoner's grievance mistakenly relied on a particular regulation, and the prison obstructed the prisoner's efforts to obtain the regulation, resulting in delay. We held that the mistake of the prison Warden “rendered [the prisoner's] administrative remedies effectively unavailable” and that the prisoner's failure to exhaust was therefore “excused.” Id. at 1226. In Sapp v.. Kimbrell, 623 F.3d 813, 823 (9th Cir.2010), we held that a prison's improper screening of a grievance can also render administrative remedies “ ‘effectively unavailable’ such that exhaustion is not required under the PLRA.” Finally, in Albino, 747 F.3d at 1177, we held that where a jail did not inform a prisoner of the process for filing a complaint even after repeated requests, the jail did not prove that there was any realistically “available” remedy for the prisoner to exhaust.
While we have not yet explicitly addressed whether a threat of retaliation may be sufficient to render an administrative remedy “effectively unavailable,” other circuits have. At least four have recognized that when a prisoner reasonably fears retaliation for filing a grievance, the administrative remedy is effectively rendered unavailable and the prisoner's failure to exhaust excused. See, e.g., Hemphill v. New York, 380 F.3d 680, 688 (2d. Cir.2004) (holding that threats render ordinary grievance procedures effectively unavailable when they are serious enough to deter “a similarly situated individual of ordinary firmness”); Kaba v. Stepp, 458 F.3d 678, 684–86 (7th Cir.2006) (citing with approval the objective “ordinary firmness” test from Hemphill ); Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th Cir.2008) (holding that remedies “that rational inmates cannot be expected to use” because of threats are not available, and adopting a two-part test); Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir.2011) (adopting the two-part test from Turner).
Our recognition of such an exception today flows from our prior cases, since we have previously cited with approval the leading cases from the other circuits. See Sapp, 623 F.3d at 823 (citing Turner, Kaba, and a case from the Second Circuit that followed Hemphill ); Nunez, 591 F.3d at 1224 (same). Recognizing such an exception therefore is fully supported by our precedent.
There are important reasons for recognizing such an exception. The PLRA imposes an exhaustion requirement in order to give an agency the opportunity to correct its own mistakes before being dragged into federal court and in order to promote greater efficiency and economy in resolving claims. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Requiring inmates to first exhaust through the prison's own process gives inmates an incentive to use the available remedies, i.e., to “pursue administrative proceedings that they might otherwise prefer to skip.” Sapp, 623 F.3d at 823 (citing Ngo, 548 U.S. at 90). At the same time, we must discourage prisons from actions that might deter prisoners from using grievance procedures. We therefore allow prison inmates to bring these claims in federal court when prison officials have rendered the grievance process effectively unavailable. This provides an important incentive for the prison: to allow prisoners to file grievances freely, and without fear of retaliation. See Turner, 541 F.3d at 1085 (“[Recognizing that threats can render administrative remedies unavailable] is beneficial because it reduces any incentive that prison officials otherwise might have to use threats to prevent inmates from exhausting their administrative remedies, and it thereby safeguards the benefits of the administrative review process for everyone.”).
For these reasons it is now appropriate for our court to recognize expressly that the threat of retaliation for reporting an incident can render the prison grievance process effectively unavailable and thereby excuse a prisoner's failure to exhaust administrative remedies. Such recognition is consistent with the overall aim of the PLRA, and with providing efficient administration of the prison grievance system.
When we turn to the question of how to determine when a failure to exhaust is excusable, we find that the formulation of the test to determine excusability is not the same for all circuits. The Tenth and Eleventh Circuits apply a test that has both subjective and objective components, while the Second and the Seventh have a more generalized one-part test. The Eleventh Circuit test, later adopted by the Tenth, requires that two conditions be met: “(1) the threat [of retaliation] actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” Id. By contrast, the Second and Seventh Circuits hold that threats of retaliation may excuse a failure to exhaust when the threats are serious enough to deter “a similarly situated individual of ordinary firmness.” Hemphill, 380 F.3d at 688 (internal quotation marks omitted).
The Eleventh Circuit's test is straightforward and conceptually simple to apply. To show that a threat rendered the prison grievance system unavailable, a prisoner must provide a basis for the court to find that he actually believed prison officials would retaliate against him if he filed a grievance. If the prisoner makes this showing, he must then demonstrate that his belief was objectively reasonable. That is, there must be some basis in the record for the district court to conclude that a reasonable prisoner of ordinary firmness would have believed that the prison official's action communicated a threat not to use the prison's grievance procedure and that the threatened retaliation was of sufficient severity to deter a reasonable prisoner from filing a grievance. In oral argument, both parties in the case before us indicated their satisfaction with the application of the Eleventh Circuit's a test. We therefore adopt it.
Applying the subjective prong of the test to McBride's case, we consider whether McBride has sufficiently alleged that he was actually deterred from filing a grievance by the guards' threats. Construing the facts in the light most favorable to McBride, his allegation that he perceived the statement that he was “lucky,” in that his injuries “could have been much worse,” to be a threat not to use the prison grievance system is sufficient to satisfy the subjective prong. Given the circumstance that McBride had recently been beaten by the same guards making the statements, McBride could have believed the guards bore him considerable hostility and therefore the statements could be interpreted as threatening. To the extent the district court ruled to the contrary, we disagree.
Turning to the objective prong, we conclude that McBride failed to make the requisite showing. Even if McBride actually viewed the statements as threatening, the issue before us is whether the guards' statements could reasonably be viewed as threats of retaliation if McBride filed a grievance. As the district court recognized, the statements themselves make no reference to a grievance or to anything else, beyond the preexisting hostility, that might trigger a future attack on the part of the guards. McBride's case stands in stark contrast to the threats made to prisoners in Turner and Hemphill, which explicitly threatened retaliation if the prisoner used the prison's grievance system. See Turner, 541 F.3d at 1081; Hemphill, 380 F.3d at 684. Although the threat need not explicitly reference the grievance system in order to deter a reasonable inmate from filing a grievance, c.f. Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir.2009), there must be some basis in the record from which the district court could determine that a reasonable prisoner of ordinary firmness would have understood the prison official's actions to threaten retaliation if the prisoner chose to utilize the prison's grievance system. Only then will the threat render the prison grievance system effectively unavailable.
Accordingly, McBride has failed to demonstrate that the prison's grievance system was rendered effectively unavailable by the conduct of prison officials. Thus, he was required to exhaust his administrative remedies. By failing to timely file a grievance, McBride failed to satisfy this threshold requirement to review of his claims in federal court. The district court did not err by dismissing his complaint.


Before HENRY, McKAY, and GIBSON,(**) Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore submitted without oral argument.
On appeal, Mr. Cheatwood challenges the sufficiency of the evidence supporting his conspiracy conviction and his conviction for possessing a firearm after a former felony conviction. Additionally, Mr. Cheatwood argues that all of his convictions should be vacated because the judge who was initially assigned to the case--the Honorable Vickie Miles-LaGrange--served as a prosecutor during part of the investigation. Finally, Mr. Cheatwood advances several challenges based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
For the reasons set forth below, we are not convinced by Mr. Cheatwood's arguments. Accordingly, we affirm his convictions and sentences.
Because the parties are familiar with the relevant facts, we summarize them only briefly, viewing the record in the light most favorable to the government. See United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). Between December 1995 and October 1997, Mr. Cheatwood's codefendants, Loy Chris Stevens and Ewing Vise, manufactured and distributed methamphetamine in the Oklahoma City area. Mr. Stevens and Mr. Vise typically engaged in two 'cooks' per month, which yielded from two ounces to two pounds of methamphetamine. The principal manufacturing sites were the two men's residences in the southwest part of Oklahoma City.
Methamphetamine was produced at an outbuilding behind Mr. Stevens' residence that witnesses called the "bunkhouse." Witnesses described this building as a small shed-like structure furnished with a day bed, television, chair, desk, and air conditioning.
The government's witnesses explained how the bunkhouse was used for the conspiracy's operations. Customers interested in purchasing methamphetamine would approach from the front of Mr. Stevens' property, through Mr. Stevens' residence, or through an alley and a gate in back of the residence. Customer traffic in and out of the bunkhouse area was constant, day and night. As many as twenty-five people per day purchased methamphetamine there.
At trial, the government presented testimony indicating that Mr. Cheatwood performed several roles in the enterprise: (1) he acted as a lookout when methamphetamine was manufactured, sold, and used at the bunkhouse; (2) at the direction of Mr. Stevens, he obtained ephedrine pills and other chemicals for Mr. Stevens' use in manufacturing methamphetamine; and (3) he assisted Mr. Stevens in carrying chemicals, glassware, and filters between the bunkhouse and Mr. Stevens' residence. In exchange for performing these jobs, Mr. Cheatwood was paid in-kind with one to three shots of methamphetamine per day.
Two government witnesses--Misty Word and Tiffany Davis--testified as to Mr. Cheatwood's possession of a firearm. They stated that, on August 27, 1997, while Mr. Stevens and Mr. Cheatwood were visiting the residence of one of Mr. Stevens' customers named "Ray-Ray," Mr. Cheatwood took a .380 pistol from his vehicle and gave it to Mr. Stevens. Mr. Stevens then used the pistol to shoot Clay Wilhoit, a former distributor, who was attacking Mr. Stevens' truck with a baseball bat.
The government also presented testimony regarding Mr. Cheatwood's arrest on January 14, 1999, after he left Mr. Stevens' apartment. The government's evidence indicated that Mr. Cheatwood had the following items in his car: coffee filters containing ephedrine or pseudoephedrine, a bottle containing 133 ephedrine tablets, several large jars, tubing, and a gallon of toluene.
Mr. Cheatwood first argues that the evidence is insufficient to support his conviction for conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846. In order to convict Mr. Cheatwood of this charge, the government was required to prove the following elements beyond a reasonable doubt: "(1) an agreement with another person to violate the law, (2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the alleged conspirators." United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997). Mr. Cheatwood focuses his challenge on the fourth element, arguing that, in light of his relatively minor role in the methamphetamine distribution scheme, the government failed to demonstrate the necessary interdependence between his activities and those of the other conspirators.
We examine the sufficiency of the evidence de novo. See Wilson, 107 F.3d at 778. Evidence is sufficient to support a conviction if the record, viewed in the light most favorable to the government, would allow a reasonable juror to find the defendant guilty beyond a reasonable doubt. See id.
This circuit's decisions have explained the element at issue here--the interdependence between conspirators--in varying terms. Some decisions state that "[i]nterdependence exists where each coconspirator's activities constitute essential and integral steps toward the realization of a common, illicit goal." Carter, 130 F.3d at 1440. Other decisions employ arguably broader language: "[I]f the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged conspirators or facilitated the venture as a whole, evidence of interdependence is present." United States v. Horn, 946 F.2d 738, 740-41 (10th Cir. 1991).
Mr. Cheatwood argues that he lacked "a common, illicit goal" with the other charged and uncharged members of the conspiracy to distribute methamphetamine. According to Mr. Cheatwood, his goal in performing the various acts surrounding the methamphetamine distribution scheme was merely to obtain drugs for his personal use. In contrast, the goal of the charged conspiracy was to manufacture and distribute methamphetamine for the purpose of making a profit.
To show this lack of a common purpose, Mr. Cheatwood points to a wide range of evidence. He notes that he did not share in the profits of the operation, did not manufacture methamphetamine himself, did not become involved with the other alleged leader of the conspiracy (Mr. Vise), and did not serve as a drug distributor for Mr. Stevens. Mr. Cheatwood also points to several gaps in the witnesses' testimony: he asserts that no witnesses identified him as present during any of the methamphetamine "cooks", that the police witnesses never identified him as being present at the bunkhouse, and that none of the witnesses could testify to an actual instance when he acted as a lookout or warmed them of police presence. Mr. Cheatwood adds that he did not even arrive in Oklahoma City until March 1997, well after the charged conspiracy had begun to operate.
In challenging the sufficiency of the evidence, Mr. Cheatwood also invokes cases involving individuals who have merely purchased drugs. For example, he notes that in United States v. Evans, 970 F.2d 663 (10th Cir. 1992), this circuit reversed a conviction of a defendant who was convicted of conspiracy to distribute cocaine on the basis of evidence that she made a purchase from one of the major figures in the operation, lent scales to two members of the conspiracy with the knowledge that they would use the scales to weigh cocaine, and purchased a small amount of cocaine from two other individuals. We stated that "a consumer generally does not share the distribution objective and thus would not be part of the conspiracy to distribute crack cocaine." Evans, 970 F.2d at 669. (emphasis omitted).
We are not persuaded by Mr. Cheatwood's argument. As the government notes, the prosecution introduced evidence that Mr. Cheatwood performed several tasks that assisted Mr. Stevens in the operation of a scheme to manufacture and distribute methamphetamine. Witnesses testified that Mr. Cheatwood purchased chemicals necessary for the manufacture of methamphetamine, used his car to transport chemicals and equipment required for making methamphetamine, carried the chemicals between the bunkhouse and Mr. Stevens' residence from the bunkhouse, and occasionally served as a lookout for the operation.
The variety of tasks that Mr. Cheatwood performed distinguishes this case from those exonerating consumers of illegal drugs from conspiracy charges. See, e.g, United States v. Dekle, 165 F.3d 826, 829-30 (11th Cir. 1999); United States v. Brown, 872 F.2d 385, 390-91 (11th Cir. 1989). For example, in Brown, the Eleventh Circuit reversed a conspiracy conviction of a defendant who had consumed drugs, noting that "there was no evidence that the defendant turned around and sold this cocaine or performed any errands or collections for his supplier or otherwise assisted the ongoing 'business.'" Dekle, 165 F.3d at 830 (discussing Brown, 872 F.2d at 390) (emphasis added). Here, the government did produce such evidence.
Moreover, even if all of these activities arose out of Mr. Cheatwood's desire to satisfy his drug habit, that fact is not inconsistent with his sharing the goals of the conspiracy. The cases on which Mr. Cheatwood relies do not preclude a jury finding that he had more than one goal: satisfying his drug habit and doing so by undertaking the variety of tasks that Mr. Stevens asked him to do. See United States v. Heckard, 238 F.3d at 1222, 1230 (10th Cir. 2001) (concluding that the evidence supporting a conspiracy conviction was sufficient because the defendant's actions "benefitted not only himself, but also [other members of the conspiracy]") (emphasis added).
Finally, the testimony of certain witnesses as to Mr. Cheatwood's relatively minor role is not dispostive.(1) "The defendant's participation in or connection to the conspiracy need only be slight, so long as sufficient evidence exists to establish the defendant's participation beyond a reasonable doubt." United States v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998). In spite of the testimony regarding his minor role, the government's evidence provided the jury with adequate grounds for concluding that Mr. Cheatwood actively participated in the conspiracy.
We therefore conclude that the evidence is sufficient to support a jury finding that Mr. Cheatwood's activities were "essential and integral steps toward the realization of [the] common, illicit goal" of distributing methamphetamine, Carter, 130 F.3d at 1440, and that Mr. Cheatwood's activities "facilitated the venture as a whole." Heckard, 238 F.3d at 1230. Thus, the evidence is sufficient to support his § 846 conspiracy conviction.
Next, Mr. Cheatwood challenges the sufficiency of the evidence supporting his conviction for possessing a firearm after conviction of a felony (a violation of 18 U.S.C. § 922(g)(1)). In order to convict Mr. Cheatwood of this offense, the government was required to prove the following elements beyond a reasonable doubt: (1) that Mr. Cheatwood was previously convicted of a crime punishable by imprisonment exceeding one year; (2) that he thereafter knowingly possessed a firearm; and (3) that the possession was in or affecting interstate or foreign commerce. See United States v. Hishaw, 235 F.3d 565, 571 (10th Cir. 2000). Mr. Cheatwood challenges only the second element.
As we have noted, two witnesses--Misty Word and Tiffany Davis--testified that, on August 27, 1997, while Mr. Stevens and Mr. Cheatwood were visiting the residence of one of Mr. Stevens' customers named "Ray-Ray," Mr. Cheatwood took a .380 caliber pistol from his vehicle and gave it to Mr. Stevens. Mr. Cheatwood argues that Ms. Word and Ms. Davis are "highly suspect drug addicts" who agreed to cooperate with the government. Aplt's Br. at 23. He adds that there were significant gaps in their memories: Ms. Davis admitted that she did not recall how she arrived at Ray-Ray's house and Ms. Word appeared confused about whether Mr. Cheatwood retrieved the gun from the trunk of his car or from Ray-Ray's house. Also, both women admitted that they could have been using drugs at the time, and neither one of them was sure about the caliber of the weapon.
These deficiencies in the testimony of Ms. Word and Ms. Davis do not establish that the evidence was insufficient to support Mr. Cheatwood's § 922(g)(1) conviction. The fact that the witnesses were drug addicts does not preclude a reasonable juror's believing their testimony. See Tapia v. Tansy, 926 F.2d 1554, 1562 (10th Cir. 1991) ("Confused, self-contradicting testimony by a drug addict does not make the witness's testimony inherently incredible."); United States v. Martinez, 877 F.2d 1480, 1482 (10th Cir.1989) (impeachment of witness as a drug addict or as possessing emotional problems is a question of credibility for the jury). Significantly, the district court instructed the jury that it should view with great caution the testimony of drug addicts and informers who had reached agreements with the government. See Rec. vol. I doc. 353 (Instructions 19, 22, and 24).
Finally, Mr. Cheatwood's attorney vigorously cross-examined Ms. Word and Ms. Davis and noted these deficiencies in their testimony. The credibility of their testimony regarding Mr. Cheatwood's possession of a firearm was a factual question for the jury to determine and may not be revisited by this court on appeal. See United States v. Haslip, 160 F.3d 649, 653 (10th Cir. 1998). In light of their testimony and Mr. Cheatwood's opportunity to challenge their credibility through cross-examination, we conclude that the evidence is sufficient to support his conviction for violating 18 U.S.C. § 922(g)(1)).
This case was initially assigned to the Honorable Vicki Miles-LaGrange. During the pretrial proceedings, the parties discovered that, while Judge Miles-LaGrange served as United States Attorney for the Western District of Oklahoma, the Bureau of Alcohol, Tobacco, and Firearms investigated and served a search warrant on one of Mr. Cheatwood's codefendants. At the time, the United States Attorney's Office had general supervisory responsibilities over this investigation.
Mr. Cheatwood filed a motion requesting Judge Miles-LaGrange to recuse. She granted the motion, and the case was transferred to The Honorable Ralph G. Thompson, who conducted the subsequent pretrial proceedings as well as the trial and sentencing. Before Judge Miles-LaGrange granted the recusal motion, she ruled on the following motions filed by Mr. Cheatwood: (a) a motion to bifurcate; (b) a motion to suppress; (c) a motion for severance; and (d) a motion for exclusion of evidence pursuant to Fed. R. Evid. 404 (b). In each instance, Judge Miles-LaGrange denied the relief requested by Mr. Cheatwood.
Mr. Cheatwood now argues that Judge Miles-LaGrange should have recused when the case was first assigned to her. He maintains that the fact that she ruled on his four motions warrants a new trial.
(emphasis added). Mr. Cheatwood contends that recusal was required under § 455(a) and (b)(3).
[T]he word "participated" implies a higher degree of activity than simply being "of counsel." The latter association with a case arises simply because the prosecutor holds his office. One need do nothing to be "of counsel." "Participation" connotes activity, however. One cannot "participate" without doing something. Thus, simple logic dictates the conclusion that in reordering the language of the statute upon which recusal is based and distinguishing between situations in which recusal is mandated, Congress has implicitly drawn a line. In our opinion, before the presumption arises that a judge is in fact partial because of his past conduct as an attorney, a party seeking disqualification must show that the judge actually participated as counsel. Mandatory disqualification then is restricted to those cases in which a judge had previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.
Here, Mr. Cheatwood has made no showing that Judge Miles-LaGrange actually participated in the investigation. Thus, he has failed to establish that she was required to recuse under § 455 (b)(3) (second emphasis added).
That leaves § 455(a), which directs a judge to recuse if her "impartiality might reasonably be questioned." However, because Judge Miles-LaGrange did recuse when she was asked to do so, Mr. Cheatwood may only prevail if he can demonstrate that Judge Miles-LaGrange was required to recuse sua sponte when she was first assigned to the case.
On this point, Mr. Cheatwood has failed to provide any supporting authority. More importantly, even assuming that Judge Miles-LaGrange should have recused at the beginning of the case, her failure to do so is subject to harmless error analysis. See, e.g., Parker v. Connors Steel Co., 855 F.2d 1510, 1525 (11th Cir. 1988) (concluding that a district judge's failure to recuse because his impartiality might reasonably be questioned was harmless because the district court's summary judgment ruling was proper); In re Continental Airlines Corp., 901 F.2d 1259, 1263 (5th Cir. 1990) (same); see also United States v. Vespe, 868 F.2d 1328, 1342 (3d Cir. 1989) (stating that, if district court had abused its discretion in refusing to disqualify, the error would have been harmless because the district court's ruling on motion for judgment notwithstanding verdict was subject to plenary review on appeal). Here, Mr. Cheatwood has not argued that Judge Miles-LaGrange's rulings were incorrect on the merits or that another judge probably would have decided the motions differently. Thus, assuming, without deciding, that Judge Miles-LaGrange erred in not recusing from the case when it was first assigned to her, we conclude that any such error was harmless.
Mr. Cheatwood argues that his conspiracy conviction should be reversed because the superseding indictment did not specify the amount of methamphetamine involved in the offense. His argument is based on the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."
In a related argument, Mr. Cheatwood contends that his § 922(g)(1) conviction for possession of a firearm is also invalid in light of Apprendi. He maintains that the government was required to allege his prior conviction in the superseding indictment and prove it to the jury beyond a reasonable doubt.
As Mr. Cheatwood concedes, this argument is inconsistent with the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998). See Aplt's Br. at 30 (acknowledging that, Almendarez-Torres, the Court held that "prior felony convictions are mere sentence enhancements, not elements of an offense and thus do not need to be charged in the indictment or proven beyond a reasonable doubt"). Almendarez-Torres is binding precedent, and we are bound to follow it. See United States v. Dorris, 236 F.3d 582, 587-88 (10th Cir. 2000). We therefore conclude that the government's failure to allege Mr. Cheatwood's prior conviction in the superseding indictment does not render it invalid.
For the reasons set forth above, we therefore AFFIRM Mr. Cheatwood's convictions and sentences.
**. The Honorable John R. Gibson, Senior Circuit Judge for the Eighth Circuit, sitting by designation.
1. As Mr. Cheatwood notes, these witnesses describe him as "just an old man that hangs around just so someone will get him high," as "just doing whatever he could to get a shot of dope," and as just doing "flunky-type stuff." See Rec. vol. IX, at 1669; vol. VIII, at 1477, 1578.
2. In fact, Mr. Cheatwood concedes this point. See Aplt's Br. at 28 (stating that "[t]he district court's decision was in accord with this Court's post-Apprendi rulings"). Mr. Cheatwood explains that he has advanced this argument for the purpose of preserving his right to seek Supreme Court review of this issue.


The U.S. Government shutdown is now the longest in U.S. history and is starting to have serious implications for Government contractors. One of many key concerns arises when contractors approach their contract funding ceiling — can they continue to work, and what happens if there is a cost overrun?
The answers are often complicated for both contractors and agency officials, and depend on the terms of the contract and the statutory basis for the program. Contractors facing this situation should keep seven points in mind.
Most cost-type contracts limit the Government’s obligation to pay contractors in excess of the total funding allotted to a contract. E.g., FAR 52.232-20(d)(1); FAR 52.232-22(f)(1). Contractors may wonder whether they can continue working during the shutdown, assuming that the Government will add funding once the shutdown ends. Although there may be circumstances where that strategy is sensible, contractors subject to these limitations who take that approach will be at risk of not receiving payment for costs incurred in excess of the obligated amount, even if the agency later allots funding to the contract.
Depending on the language of a particular contract, contracting officers may have discretion to fund an overrun retroactively. E.g., FAR 52.232-20(f); FAR 52.232-22(i). A variety of factors may be relevant to determining whether a contracting officer could or would do so, and contractors should carefully evaluate the circumstances before deciding whether to proceed.
Contractors with multi-year or umbrella indefinite-delivery/indefinite-quantity (“IDIQ”) contracts should also consider whether their funding is limited on a yearly or task-order basis. See Interlmage, Inc. v. United States, 133 Fed. Cl. 355, 369 (2017) (funding ceiling set by order); Boeing Co., ASBCA No. 57409, 14-1 BCA ¶ 35474 (funding ceiling set by base IDIQ contract); FAR 52.232-19 (limiting funding to a tailored time frame in the contract). Depending on a contract’s terms, funding limitations may be tied to specific time frames or task orders, or constrained on some other basis. Filling orders outside of those constraints may jeopardize the ability to be reimbursed.
Before reaching the contract ceiling on obligated funds, contractors are required to notify the agency. Outreach to the contracting officer may not only help to avoid surprises, but may allow the agency to develop a funding solution.
However, providing such notice in an informal manner may not be sufficient. Many federal contracts require the contractor to notify the agency “in writing whenever it has reason to believe that the costs it expects to incur under this contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent” of the total amount allotted to the contract. FAR 52.232-22(c); see also FAR 52.232-20(b). Contractors may also be required to notify the agency of “the estimated amount of additional funds, if any, required to continue timely performance[.]” FAR 52.232-22(d). Because contracting officers may be furloughed during the shutdown, contractors may find it particularly difficult to provide this notice, however, that does not excuse compliance.
In turn, contracting officers are required to address a potential cost overrun “upon learning” that the contractor is approaching the limitation on funding. FAR 32.704(a)(1); FAR 52.232-20(d); FAR 52.232-22(f)(2). Contracting officers should state “in writing” whether the agency will increase funds, terminate the contract, or take some other action to address the issue. FAR 32.704(a)(1)(i)-(iv); see also HTC Indus., Inc. v. Aspin, 22 F.3d 1103 (Table), 1994 WL 66091, at *2-4 (Fed. Cir. 1994) (holding contractor not entitled to costs in excess of ceiling, despite agency’s failure to respond under FAR 32.704(a)(1)).
Just as agencies may not be required to pay for work in excess of allotted funds, contractors are normally not required to do such work.
Standard FAR clauses provide that contractors are “not obligated to continue performance” of work until the contracting officer (i) increases the allotted funding and (ii) notifies the contractor of the increase in writing. FAR 52.232-20(d)(2); FAR 52.232-22(f)(2).
In other words, contractors generally have a unilateral right to stop work once funding is exhausted. Although that may be little comfort to a contractor that seeks to continue working, these rules can protect contractors from Government demands for additional work or claims for breach of contract. See Titan Corp. v. West, 129 F.3d 1479, 1480 (Fed. Cir. 1997) (explaining the policy justifications for these provisions).
It is essential that contractors receive a notice from the contracting officer — and not anyone else — adding funds before continuing work; that is because “[n]o notice, communication, or representation in any form other than that specified” from “any person other than the Contracting Officer” can bind the Government to additional funding. FAR 52.232-20(e); FAR 52.232-22(h).
Not only are agencies restricted from paying for work in excess of a ceiling, they are also restricted from accepting voluntary work under the Antideficiency Act (“ADA”) — a 19th century statute that prohibits federal employees from incurring unfunded obligations. 31 U.S.C. § 1341; 31 U.S.C. § 1342.
Agencies should not encourage or accept contractor work in excess of obligated funding: “Government personnel encouraging a contractor to continue work in the absence of funds will incur a violation of” the ADA. FAR 32.704(c) (emphasis added). Indeed, a federal Government official who violates the ADA is subject to criminal sanction. 31 U.S.C. § 1350 (“An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating section 1341(a) or 1342 of this title shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.”).
In some cases, agencies may be forced to terminate a contract for convenience based on a lack funding, or elect a termination for convenience rather than obligating additional funding. While a convenience termination normally allows a contractor to be made whole for its incurred costs, terminations under such circumstances can put the contractor at risk; termination expenses — like all other expenses — require sufficient appropriations. E.g., Principles of Federal Appropriations Law, 3d., Vol. 2, Ch. 6, General Accountability Office (Mar. 2015) (citing Aerolease Long Beach v. United States, 31 Fed. Cl. 342, 363 (1994) (agency properly considered termination costs as current obligations)). Contractors should be mindful of this rule when tracking costs and should be aware of potential termination costs for purposes of providing the Government with the notices described above.
Despite these standard rules, and in the event that an unexpected overrun does occur, the Courts and Boards of Contract Appeals have recognized several circumstances in which a contractor might be compensated for work beyond a cost ceiling.
In one line of cases, Courts have found that if an agency knew of a cost overrun but took specific actions intending to induce a contractor’s performance, then the agency may be equitably estopped from denying payment. E.g., American Elec. Labs., Inc. v. United States, 774 F.2d 1110, 1113 (Fed. Cir. 1985) (finding contractor entitled to payment when it was “reassured repeatedly” by agency officials that funding was available).
In a related line of cases, contractors may be excused from requirements to provide notice in advance of a cost overrun, if the agency was not prejudiced by a lack of notice. E.g., Johnson Controls World Servs., Inc. v. United States, 48 Fed. Cl. 479, 487 (2001).
Unfortunately, these exceptions are based on unexpected events, and thus it may be difficult for a contractor to evaluate their applicability until a problem has arisen.
If properly documented, contractors may be able to recover reasonable and allowable costs incurred because of the shutdown. One approach for recovery applies when the contracting officer issues a written “stop-work order” under the Stop-Work Order clause found at FAR 52.242-15. If a contractor receives a notice to cease performance, the contractor may be able to argue successfully that it should be treated in the same manner as a formal stop-work notice issued under the FAR clause, even if it was not titled in that manner.
Absent recovery under the Stop-Work Order clause, contractors may be able to proceed under the Government Delay of Work clause (FAR 52.242-17), which allows for adjustments in contract price or delivery schedule if the actions of the contracting officer in the administration of the contract are “not expressly or impliedly authorized” by the contract. One point to remember is that contractors will not be permitted to recover lost profit under this clause. The cost reimbursement Changes clause (FAR 52.243-2) also may provide a basis for recovery for a stop in work depending on the costs and facts of the stoppage.
In each instance, if the work stoppage was communicated orally, the contractor’s ability to recover is enhanced if the contractor documents that direction in writing and confirms it with the Government. Contractors should also be mindful of any applicable timing requirements. Although all of these approaches face challenges, the tracking of costs is the important first step.
Finally, even if a contractor takes all the precautionary steps outlines above, proceeding without funding will pose one additional risk. In any dispute for costs stemming from the shutdown, the Government may assert that its acts are covered by the sovereign acts doctrine, which shields the Government from liability for certain conduct made in the exercise of its sovereign power. The Government asserted such a defense in Raytheon STX Corp. v. Dep’t of Commerce, GSBCA No. 14296-COM, 00-1 BCA ¶ 30632. While under the particular circumstances of that case the board held that the sovereign acts doctrine did not bar recovery against the Government for costs arising from a partial shutdown, it is not certain that the result would be the same for all contractors in this current situation.
 This article focuses on only one of the numerous challenges contractors potentially face related to the Government shutdown. For example, the shutdown may cause complications related to progress payments, agency reviews or required agency consents, among other issues, leading to program delays and cash flow difficulties affecting employee retention and payment of subcontractors.


Trueposition, Inc. v. Polaris Wireless, Inc.
TruePosition, Inc., Plaintiff, v. Polaris Wireless, Inc., Defendant.
Before the Court is Plaintiff TruePosition's Objections to the Report and Recommendation on Claim Construction (D.I. 226) and Polaris Wireless, Inc.'s Opposition to Plaintiff TruePosition, Inc.'s Objections to the Report and Recommendation on Claim Construction. (D.I. 229). The Report and Recommendation on Claim Construction concluded that the term "means for detecting," present in claims 113 and 114 of U.S. Patent No. 7,783,299 ("the '299 patent"), is invalid as indefinite under 35 U.S.C. § 112, ¶ 2, because a corresponding algorithm was not disclosed. (D.I. 221 at 21-22). Plaintiff objects. The Court heard oral argument on this issue on May 12, 2014. (D.I. 235).
The '299 patent relates generally to a wireless location system ("WLS") which is used to locate a wireless device operating on a wireless communications system. ('299 patent at 4:39-42). The WLS may locate the wireless device by monitoring signaling links, detecting a predefined signaling transaction, and then triggering a location service. ('299 patent at 4:42-48). Claims 113 and 114 include the limitation "means for detecting at least one predefined network transaction involving a predefined trigger occurring on at least one of said predefined signaling links." The parties agree that this is a means plus function limitation, that the function is "detecting at least one predefined network transaction involving a predefined trigger occurring on at least one of said predefined signaling links," and that the corresponding structure is hardware programmed to perform the detecting function. (D.I. 226 at 4; D.I. 229 at 6-7; see D.I. 221 at 20). The parties disagree as to whether the patent discloses a corresponding algorithm.
It appears that the parties also disagree to some extent as to the particularities of the corresponding structure. Polaris contends that the corresponding structure is specifically the link monitoring system ("LMS"), but TruePosition contends that the structure is a computer or server programmed to detect a predefined network transaction. (See D.I. 221 at 19-20). Because the LMS appears to be a computer or server programmed to detect a predefined network transaction, the difference is not material.
In front of the Magistrate Judge, TruePosition contended that the algorithm was, "[s]etting one or more indicia of a mobile origination or mobile termination transaction and detecting a mobile origination or mobile termination transaction by comparing the one or more indicia of a mobile origination or mobile termination transaction with the monitored data to find a match." (D.I. 221 at 19). Essentially, TruePosition's proposed algorithm is setting a trigger and waiting until the trigger is tripped. Polaris contended that the link monitoring system ("LMS") was the corresponding structure, but that there was no corresponding algorithm, and therefore the means plus function term was indefinite. (D.I. 220 at 20).
The Magistrate Judge agreed with Polaris that the means plus function term was indefinite because the specification does not disclose an algorithm. (D.I. 221 at 21-22). In reaching this conclusion, the Magistrate Judge looked to Figures 3B, 3C, 3D, and 3E, each of which states that "[t]he Wireless Location System Sets the ... Trigger in the LMS." (D.I. 221 at 21 citing '299 patent Figures 3B, 3C, 3D, and 3E). The Magistrate Judge concluded that, "It is the WLS that sets the trigger in the LMS, then the LMS can begin monitoring, after which, the LMS can detect call origination. Therefore, the 'setting' function is not part of 'detecting.' As a result, there is no algorithm tied to the function of the 'means for detecting' and the claim is invalid as indefinite under 35 U.S.C. § 112, ¶ 2." (D.I. 221 at 21). The Magistrate Judge essentially concluded that because something other than the corresponding structure performs the "setting" step, setting cannot be part of "detecting." Once the "setting" step is removed, TruePosition's proposed algorithm becomes "comparing," which does not provide sufficient structure, as "comparing" is merely another way of saying "detecting."
Polaris spends much of its Opposition pointing out that TruePosition is raising new arguments that were not previously before the Magistrate Judge. (D.I. 229 at 8 n. 2, 10, 11 nn. 4 & 5, 12). I agree that some of TruePosition's arguments are new, and I therefore do not reach them. I base my decision on the briefing and argument that was before the Magistrate Judge. (See D.I. 226-1 at 1-2). I do, however, consider the patent as a whole, regardless of whether particular sections were previously cited. I review the Magistrate Judge's recommendation for claim construction de novo.
One of Polaris' better arguments was in its responsive claim construction brief. There, Polaris pointed out that "[b]ecause the function of 'detecting' as claimed is performed on predefined network transactions, the network transactions would have to be 'set,' i.e. 'predefined,' before the detection function is performed. To include 'setting' into the 'means for detecting' algorithm renders 'pre'-defined superfluous." (D.I. 169 at 14) (emphasis in original). While Polaris sets forth a logical argument, it does not differentiate between a predefined network transaction and a predefined trigger. The claims do. Claim 113 makes clear that a "predefined network transaction" includes either a "mobile origination transaction" or a "mobile termination transaction." ('299 patent at 50:33-35). Claim 114 does not similarly limit the "predefined network transaction." Claim 114 does, however, make clear that a "predefined network transaction" is separate from a "predefined trigger," as it states that a "predefined trigger" includes either a "dialed digit trigger" or a "Mobile Station Identification (MSID) trigger." ('299 patent at 50:58-60). The "predefined network transaction" is what is detected, and it is detected by the use of a "predefined trigger." The specification states that "[a] trigger for wireless location consists of a transaction and a filter. If a transaction occurs and the filtering matches, then a location trigger is generated." ('299 patent at 13:8-10). The WLS sets the filter, but it does not predefine a network transaction. The "predefined network transaction" is detected based on the generation of a trigger. Because one cannot detect what one is not looking for, the filter must be "set" prior to a transaction being "detected." Therefore, I find that "setting" is part of "detecting."
As for the Magistrate Judge's conclusion that something other than the corresponding structure performs the "setting" step, I disagree. There are two reasons on which I base my disagreement. The first is that the WLS is the system, and the LMS is a component of that system. ('299 patent at 4:39-57). Therefore I do not believe that the WLS can independently perform the function of "setting," but a user must input information into the WLS, which causes the LMS to be set. The second is that no matter the description, the LMS is "set to detect." ('299 patent at 23:11-13; figures 4, 5A). I do not think it matters whether the WLS sets the LMS or the LMS is set. In either case, the result is the same: the LMS is set to trigger upon certain events. It accomplishes this by a filter match. ('299 patent at 13:9-10). The system is told to trigger upon a filter match. The filter must be put in place. The fact that something other than the LMS might send the signal to place the filter does not make the claim indefinite.
At oral argument, Polaris pointed out that the claims are drawn to a "system for use by a wireless location system (WLS)," and therefore the LMS cannot be a part of the WLS because they are separate systems. I disagree. The claims are drawn to a subsystem of the WLS. They are still part of the WLS.
While I do not agree with all of the Magistrate Judge's reasoning, I agree with the conclusion. Even assuming that the LMS performs the "setting" step, this does not provide sufficient structure. The proposed algorithm merely restates the function. As I stated earlier, one cannot detect what one is not looking for. Requiring that the LMS be "set" prior to "detecting" does not add anything to simply "detecting." The proposed algorithm provides "nothing more than a restatement of the function, as recited in the claim." Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008). This is not enough of an algorithm to provide the necessary structure.
"Setting one or more indicia of a mobile origination or mobile termination transaction and detecting a mobile origination or mobile termination transaction by comparing the one or more indicia of a mobile origination or mobile termination transaction with the monitored data to find a match." (D.I. 221 at 19).
I conclude that Polaris has met its burden of proving the claim limitation "means for detecting" invalid as indefinite. See Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2124 (2014) ("[W]e hold that a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention."). I therefore adopt the Magistrate Judge's Report and Recommendation on Claim Construction (D.I. 221), as modified by the above, as my claim construction.
Entered this 26th day of August, 2014.


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If you are a resident of Montana, it is imperative that you familiarize yourself with the local laws in order to dodge harsh penalties. Medical marijuana is well established in the state, and small amounts of possession are decriminalized in certain areas.
Montana allows marijuana for medical use, but any other possession, sale, delivery, or cultivation of the drug is treated as a crime. Concentrates come with harsher penalties than other types of cannabis, and paraphernalia is also banned. Penalties for low-level offenders are relatively light, but other crimes may carry severe penalties.
Possession of marijuana is a misdemeanor in Montana as long as the amount is less than 60 grams (a little more than two ounces). For a first-time offender, the maximum penalty is six months in jail and a fine of $500. On a subsequent conviction, the top sentence increases to three years in prison and $1,000 in fines.
If the amount is greater than 60 grams, the offense is a felony and is punishable by as many as five years in prison and as much as $50,000 in fines. Possession of any amount with intent to distribute it carries a maximum sentence of 20 years in prison and $50,000 in fines.
Sale or delivery of any amount of cannabis, with or without compensation, is a felony punishable by a minimum sentence of one year in jail and a maximum of life in prison, plus a top $50,000 fine. Sale or delivery of any amount from an adult to a minor carries an additional mandatory two-year sentence.
If the sale or delivery occurs within 1,000 feet of school grounds, the charge is a felony with a minimum sentence of three years in prison and a maximum of life, as well as up to $50,000 in fines.
It is a felony to grow any marijuana plants in Montana outside the state’s medical marijuana system. If the grower cultivates less than one pound of cannabis or 30 plants, the charge carries a maximum sentence of 10 years in prison and $50,000 in fines on a first offense.
When the amount of cannabis cultivated is more than one pound or 30 plants, the prison term increases to between two years and life. Both the maximum prison term and the maximum fine double on second and subsequent convictions.
Penalties for possession or manufacture of marijuana concentrates are harsher than those for bud. Possession of one gram or less is a misdemeanor punishable by up to six months in jail and a maximum fine of $500 on a first offense. On subsequent offenses, the maximum possible prison sentence increases to three years, while fines can be as much as $1,000.
Possession of more than one gram is a felony and carries a top punishment of five years in prison and $1,000 in fines. Manufacture of hashish or other concentrates can be punished by up to 10 years in prison and $50,000. Sale of concentrates or possession with intent to sell them are both treated the same as regular marijuana sale or delivery.
It is a misdemeanor to possess, make, sell, or deliver any kind of drug paraphernalia unless it is marketed, sold, and used only for legal purposes, such as tobacco smoking. The top penalty is six months in jail and $500 in fines. Delivery or sale of cannabis paraphernalia to a minor under age 18 by an adult who is at least three years older is also a misdemeanor and carries a maximum sentence of one year in jail and $1,000 in fines.
Marijuana paraphernalia in Montana includes any items intended for use in the cultivation, harvesting, processing, analyzing, testing, storing, or consumption of marijuana.
Montana voters legalized the medicinal use of cannabis by a wide margin in Nov, 2004.
Home cultivation – Yes. Four mature plants are allowed, as well as four seedlings and the amount of usable marijuana allowed by the department of rule.
State-licensed dispensaries – Yes. Licensed medical marijuana providers are permitted to serve more than three patients at a time.
Imprisonment for felonies may be eligible for suspended or deferred imposition, which may include commitment to a drug treatment facility, community service, or driver’s license revocations.

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(a) Following an election, each local board shall meet at its designated counting center to canvass the provisional ballots cast in that election in accordance with the regulations and guidelines established by the State Board.
(b) A local board may not open an envelope of a provisional ballot until the local board has approved the provisional ballot application.
(c) The State Board shall adopt regulations to implement this section.
(d)(1) A local board may not reject a provisional ballot except by unanimous vote and in accordance with regulations of the State Board.
(iv) the local board determines that a provisional ballot is intentionally marked with an identifying mark that is clearly evident and placed on the ballot for the purpose of identifying the ballot.
(3) If the intent of the voter with respect to a particular contest is not clearly demonstrated, the local board shall reject only the vote for that contest.
(iii) if the provisional ballot was cast during a period covered by a court order or other order extending the time for closing the polls, the order has not been invalidated by a subsequent court order.
(2) only the votes cast by the voter for each candidate or question applicable to the precinct in which the voter resides, as determined by the address on the provisional ballot application of the voter.
(f)(1) The State Board shall ensure the establishment of a system that any individual who casts a provisional ballot may access without cost to discover whether the ballot was counted and, if not counted, the reason it was not.
(2) The system established under paragraph (1) of this subsection shall ensure the confidentiality of the individual who accesses the system and the secrecy of each ballot.
Added as Art. 33, § 11-302.1, by Acts 2001, c. 424, § 2, eff. June 1, 2001. Amended by Acts 2002, c. 404, § 1, eff. June 1, 2002; Acts 2002, c. 547, § 1, eff. July 1, 2002. Transferred to Election Law § 11-302.1 by Acts 2002, c. 291, § 2, eff. Jan. 1, 2003. Renumbered as Election Law § 11-303 by Acts 2002, c. 291, § 4, eff. Jan. 1, 2003. Amended by Acts 2002, c. 291, § 4, eff. Jan. 1, 2003 ; Acts 2002, c. 404, § 2, eff. Jan. 1, 2003; Acts 2002, c. 547, § 2, eff. Jan. 1, 2003; Acts 2003, c. 21, § 1, eff. April 8, 2003; Acts 2003, c. 379, § 2, eff. Oct. 1, 2003; Acts 2006, c. 4, § 1, eff. Feb. 16, 2006.
Formerly Art. 33, § 11-302.1.
This section formerly was Art. 33, § 11-302.1 and is renumbered.
The only changes are in style.
Acts 2002, c. 291, § 4, in subsec. (c)(3)(ii) deleted “election” following “The local”.
“(a) Following an election, each local board shall meet at its designated counting center to canvass the provisional ballots cast in that election in accordance with the regulations and guidelines established by the State Board.
“(b) A local board may not open any envelope of a provisional ballot prior to 8 a.m. on the Wednesday following election day.
“(c)(1) The State Board shall adopt regulations that reflect the policy that the clarity of the intent of the voter is the overriding consideration in determining the validity of a provisional ballot or the vote cast in a particular contest.
“(2) A local board may not reject a provisional ballot except by unanimous vote and in accordance with regulations of the State Board.
Acts 2002, c. 291 (S.B. 1), takes effect January 1, 2003.
Acts 2002, c. 547, § 2, added subsec. (d), relating to confirmation of acceptance or rejection of provisional ballots.
Acts 2003, c. 21, § 1, made technical corrections to the Code.
“(d)(1) A local board may not reject a provisional ballot except by unanimous vote and in accordance with regulations of the State Board.
“(iv) The local board determines that a provisional ballot is intentionally marked with an identifying mark that is clearly evident and placed on the ballot for the purpose of identifying the ballot.
“(3) If the intent of the voter is not clearly demonstrated, the local board shall reject only the vote for that office or question.
“(ii) Pursuant to paragraph (5) of this subsection, that the voter submitted a temporary certificate of registration that contains the affirmations required by, and otherwise complies fully with, the requirements of § 3-601 of this article.
“(5) In determining under paragraph (4) of this subsection, whether an application for a temporary certificate of registration complies with § 3-601 of this article, a local board shall examine the contents and execution of the application but may not challenge the accuracy of an assertion in the application unless that assertion relates to one or more actions of the local board.
“(e)(1) Within 10 days after any election, an individual who voted by provisional ballot may request confirmation from the local board that the ballot submitted by the individual is either accepted or rejected by the local board.
“(2) Upon receiving a request under paragraph (1) of this subsection, the local board is required to provide confirmation that the individual's ballot is either accepted or rejected.
“[(d)(4)](ii) based on the address given on the provisional ballot application, the individual resides in the precinct in which the individual seeks to vote;”.


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Larson, S. M. 1972. The Tumamoc Hill site near Tucson, Arizona. Kiva 35:95-101.
Ferg, A. 1979. The petroglyphs of Tumamoc Hill. Kiva 45:95-118.
Hartmann, G. H. and W. K. Hartmann. 1979. Prehistoric trail systems and related features on the slopes of Tumamoc Hill. Kiva 45:39-70.
Jacobs, M. 1979 The St. Mary’s Hospital Site. The Kiva 45:119–130.
Larson, S. M. 1979. The material culture distribution on the Tumamoc Hill summit. Kiva 45:71-82.
Masse, W. B. 1979. An intensive survey of prehistoric dry farming systems near Tumamoc Hill in Tucson, Arizona. Kiva 45:141-186.
McClean, D. R. and S. M. Larson. 1979. Inferences from the distribution of plainware sherd attributes on Tumamoc Hill. Kiva 45:83-94.
Wilcox, D. R. 1979. Warfare implications of dry-laid masonry walls on Tumamoc Hill. Kiva 45:15-38.
Wilcox, D. R. and S. M. Larson. 1979. Introduction to the Tumamoc Hill Survey. Kiva 45:1-14.
Wilcox, D. R., S. M. Larson, W. B. Masse, G. H. Hartmann, and A. Ferg. 1979. A summary of conclusions and recommendations of the Tumamoc Hill survey. Kiva 45:187-195.
Fish, S. K, P. R. Fish, C. Miksicek, and J. Madsen. 1985. Prehistoric Agave Cultivation in Southern Arizona. Desert Plants 7:107–112.
Fish, P. R., S. K. Fish, A. Long, and C. Miksicek. 1986. Early corn remains from Tumamoc Hill, southern Arizona. American Antiquity 51:563-572.
Martynec, Richard J. 1986 A Comparative Analysis of Rock Art at Trincheras Sites in the Tucson Basin. In Rock Art Papers, Vol. 3, edited by K. Hedges, pp. 103–116. Museum Papers No. 20. San Diego Museum of Man, San Diego.
Fish, Suzanne, Paul Fish, and John Madsen. 1992. The Marana Community in the Hohokam World. Anthropological Papers No. 56. University of Arizona Press, Tucson.
Jones, Jeffrey T. 2000. Cultural Resources Survey of 145 Acres of State Trust Land West of Tumamoc Hill in Tucson, Arizona. Letter Report No. 2000.049. Old Pueblo Archaeology Center, Tucson.
Fish, Paul. 2005. Tumamoc Hill and University Indian Ruin. In Cross-Cultural Vernacular Landscapes of Southern Arizona: A Field Guide for the Vernacular Architecture Forum, 25th Anniversary Conference, Tucson, Arizona, edited by L. Hollengreen and R. Jeffery, pp. 219–226. Vernacular Architecture Forum, Harrisonburg, Virginia.
Fish, Paul, and Suzanne Fish. 2007. Tumamoc Hill Revisited: New Data and Alternative Perspectives on Early Trincheras Sites. Glyphs 57:8. Arizona Archaeological and Historical Society, Tucson.
Fish, S. K., P. R. Fish, and M. E. Villalpando. 2007. Trincheras sites in time, space, and society. University of Arizona Press, Tucson, Arizona, USA.
Fish, Suzanne K., Paul R. Fish, and Gary Christopherson 2007 Early occupations on Tumamoc Hill. Archaeology Southwest 21:4–5.
Howell, R. Emerson 2007 A Preliminary Report on the Historic Archaeological Resources at Tumamoc Hill. Manuscript on file, Arizona State Museum, University of Arizona, Tucson.
Wallace, H. D., P. R. Fish, and S. K. Fish. 2007. Tumamoc Hill and the early Pioneer Period occupation of the Tucson Basin. Pages 137–164 in S. K. Fish, P. R. Fish, and E. Villalpando, Editors. Trincheras Sites in Time, Space, and Society. The University of Arizona Press, Tucson, Arizona, USA.
Fish, Suzanne K., Paul R. Fish, and Gary Christopherson 2008 Tumamoc Hill Archaeological Data Base. Consists of maps, locational data, drawings, photos, field notes, and forms. Data base to be added to AZSITE Data Base at the Arizona State Museum, University of Arizona.
Cannon, W. A. 1905. On the transpiration of Fouquieria splendens. Bulletin of the Torrey Botanical Club 32:397-414.
Spalding, E. S. 1905. Mechanical adjustment of the suaharo (Cereus giganteus) to varying quantities of stored water. Bulletin of the Torrey Botanical Club 32:57-68.
Livingston, B. E. 1906. The relation of desert plants to soil moisture and evaporation. Carnegie Institution of Washington Publication no. 50.
Lloyd, F. E. 1906. The artificial induction of leaf formation in the ocotillo. Plant World 9:56-62.
Cannon, W. A. 1908. The topography of the chlorophyll apparatus in Desert Plants. Carnegie Institute of Washington Publication no. 98.
MacDougal, D. T. 1908. Botanical features of North American deserts. Carnegie Institution of Washington Publication no. 99.
MacDougal, D. T. 1908. The course of the vegetative seasons in southern Arizona. Plant World 11:189-201, 217-231, 237-249, 261-270.
Livingston, B. E. 1909. The soils of the Desert Laboratory domain. In: V. M. Spalding, ed., Distribution and movements of desert plants, pp. 83-94. Carnegie Institution of Washington Publication no. 113.
Spalding, V. M. 1909. Distribution and movements of desert plants. Carnegie Institution of Washington Publication no. 113.
Spalding, V. M. 1909. Distribution and movement of desert plants. Carnegie Institution of Washington, Washington, D.C., USA.
Thornber, J. J. 1909. Vegetation groups of the Desert Laboratory domain. In: V. M. Spalding, ed., Distribution and movements of desert plants, pp. 103-112. Carnegie Institution of Washington Publication no. 113.
Livingston, B. E. 1910. Relation of soil moisture to desert vegetation. Botanical Gazette 50:241-256.
MacDougal, D. T. and E. S. Spalding. 1910. The water balance of succulent plants. Carnegie Institution of Washington Publication no. 141.
Shreve, F. 1910. The rate of establishment of the giant cactus. Plant World 13:235-240.
Cannon, W. A. 1911. The root habits of desert plants. Carnegie Institute of Washington Publication no. 131.
Shreve, F. 1911. Establishment behavior of the palo verde. Plant World 14:289-299.
Shreve, F. 1911. The influence of low temperatures on the distribution of the giant cactus. Plant World 14:136–146.
Brown, W. H. 1912. The relation of evaporation to the water content of the soil at the time of wilting. Plant World 15:121-134.
Lloyd, F. E. 1912. The physiology of stomata. Carnegie Institution of Washington Publication no. 82.
Lloyd, F. E. 1912. The relation of transpiration and stomatal movements to the water-content of the leaves in Fouquieria splendens. Plant World 15:1-14.
Shreve, F. 1912. Cold air drainage. Plant World 15:110-115.
Cannon, W. A. 1913. Notes on root variation in some desert plants. Plant World 16:323-341.
Shreve, E. B. 1914. The daily march of transpiration in a desert perennial. Carnegie Institution of Washington publication no. 194.
Shreve, F. 1914. Rainfall as a determinant of soil moisture. Plant World 17:9-26.
Shreve, F. 1914. The role of winter temperatures in determining the distribution of plants. American Journal of Botany 1:194-202.
Shreve, E. B. 1915. An investigation of the causes of autonomic movements in succulent plants. Plant World 18:297-343.
Cannon, W. A. 1916. On the relation of root growth and development to the temperature and aeration of the soil. American Naturalist 50:435-442.
Shreve, F. 1917. The establishment of desert perennials. Journal of Ecology 5:210-216.
Cannon, W. A. 1918. The evaluation of the soil temperature factor in root growth. Plant World 21:64-67.
MacDougal, D. T. 1920. Hydration and growth. Carnegie Institution of Washington Publication no. 297.
Shreve, E. B. 1923. Seasonal changes in the water relations of desert plants. Ecology 4:266-292.
Shreve, E. B. 1924. Factors governing seasonal changes in the transpiration of Encelia farinosa. Botanical Gazette 77:432-439.
Shreve, F. 1929. Changes in desert vegetation. Ecology 10:364–373.
Shreve, F. 1929. Changes in desert vegetation. Ecology 10:364-373.
Shreve, F. 1931. Physical conditions in sun and shade. Ecology 12:96-104.
Humphrey, R. R. 1933. A detailed study of desert rainfall. Ecology 14:31-34.
Shreve, F. 1934. Rainfall, runoff and soil moisture under desert conditions. Annals of the Association of American Geographers 24:131-156.
MacDougal, D. T. 1936. Studies in tree-growth by the dendrographic method. Carnegie Institution of Washington Publication no. 462.
Shreve, F. and W. V. Turnage. 1936. The establishment of moisture equilibrium in soil. Soil Science 41:351-355.
Shreve, F. and A. L. Hinckley. 1937. Thirty years of change in desert vegetation. Ecology 18:463-478.
Turnage, W. F. and A. L. Hinckley. 1938. Freezing weather in relation to plant distribution in the Sonoran Desert. Ecological Monographs 8:529-550.
Gibble, W. P. 1950. Nineteen years of vegetational change in a desert habitat. M.S. thesis, University of Arizona, Tucson.
Shreve, Forest 1951 Vegetation of the Sonoran Desert. Carnegie Institution, Washington, D.C.
Blydenstein, J., C. R. Hungerford, G. I. Day, and R. R. Humphrey. 1957. Effect of domestic livestock exclusion on vegetation in the Sonoran Desert. Ecology 38:522-526.
Murray, A. V. 1959. An analysis of changes in Sonoran Desert vegetation for the years 1928-1957. M.S. thesis, University of Arizona, Tucson.
Hastings, J. R. 1961. Precipitation and saguaro growth. University of Arizona Arid Lands Colloquia 1959-60/1960-61:30-38.
Hastings, J. R., and S. M. Alcorn. 1961. Physical determinations of growth and age in the giant cactus. Journal of the Arizona Academy of Science 2:32–39.
Martin, Paul 1963 The Last 10,000 Years, a Fossil Pollen Record of the American Southwest. University of Arizona Press, Tucson.
Niering, W. A., R. H. Whittaker, and C. H. Lowe. 1963. The saguaro: a population in relation to environment. Science 142:15–23.
Turner, R. M. 1963. Growth in four species of Sonoran Desert trees. Ecology 44:760-765.
Hastings, J.R. and R.M. Turner. 1965. The Changing Mile: An Ecological Study of Vegetation Change with Time in the Lower Mile of an Arid and Semiarid Region. Tucson, Arizona, University of Arizona Press.
Brum, G. D. 1973. Ecology of the saguaro (Carnegiea gigantea): phenology and establishment in marginal populations. Madroño 22:195–204.
Martin, S. C. and R. M. Turner. 1977. Vegetation change in the Sonoran Desert region: Arizona and Sonora. Journal of the Arizona Academy of Science 12:59-69.
Steenbergh, W. F., and C. H. Lowe. 1977. Ecology of the saguaro. National Park Service, Washington D.C., USA.
Waser, N. M. 1979. Pollinator availability as a determinant of flowering time in ocotillo (Fouquieria splendens). Oecologia 39:107-121.
Steadman, David W. 1980 Birds of Tumamoc Hill. Manuscript on file, Department of Geosciences, University of Arizona, Tucson.
Turner, R.M. and M.M. Karpiscak. 1980. Recent Vegetation Changes along the Colorado River Between Glen Canyon Dam and Lake Mead, Arizona. U.S. Geological Survey Professional Paper 1132.
Steenbergh, W. F., and C. H. Lowe. 1983. Ecology of the saguaro. III. Growth and demography. Scientific Monograph Series 17. National Park Service, Washington, D.C., USA.
Bowers, J. E. and R. M. Turner. 1985. A revised vascular flora of Tumamoc Hill, Tucson, Arizona. Madroño 32:225-252.
White, J. 1985. The census of plants in vegetation. In: J. White, ed., The population structure of vegetation, p. 33-88. Dr. W. Junk, Dordrecht, Netherlands.
Goldberg, D. E. and R. M. Turner. 1986. Vegetation change and plant demography in permanent plots in the Sonoran Desert. Ecology 67:695-712.
McAuliffe, J. R., and F. J. Janzen. 1986. Effects of intraspecific crowding on water-uptake, water storage, apical growth, and reproductive potential in the sahuaro cactus, Carnegiea gigantea. Botanical Gazette 147:334–341.
Nobel, P. S., G. N. Geller, S. C. Kee, and A. D. Zimmerman. 1986. Temperatures and thermal tolerances for cacti exposed to high-temperatures near the soil surface. Plant Cell and Environment 9:1486–1489.
Schmidt, J.O., and S.L. Buchmann, 1986. Floral biology of the saguaro (Cereus giganteus), part 1: Pollen harvest by Apis mellifera. Oecologia 69:491-498.
Nobel, P. S. 1988. Environmental biology of agaves and cacti. Cambridge University Press, New York, NY.
Turner, R. M. and J. E. Bowers. 1988. Long-term changes in populations of Carnegiea gigantea, exotic plant species and Cercidium floridum at the Desert Laboratory, Tumamoc Hill, Tucson, Arizona. In: E. E. Whitehead et al., eds., Arid lands, today and tomorrow: proceedings of the international arid lands research and development conference, October 1985, Tucson, Arizona, pp. 445-455. Westview Press, Boulder, CO.
McAuliffe, J. R. 1990. Paloverdes, pocket mice, and bruchid beetles: interrelationships of seeds, dispersers, and seed predators. Southwestern Naturalist 35:329-337.
Turner, R. M. 1990. Long-term vegetation change at a fully protected Sonoran Desert site. Ecology 71:464–477.
Burgess, T. L., J. E. Bowers, and R. M. Turner 1991. Exotic plants at the Desert Laboratory, Tucson, Arizona. Madroño 38:96-114.
Pantastico, M. and D. L. Venable. 1993. Competition in two species of desert annuals along a topographic gradient. Ecology 74: 2192-2203.
Parker, K. C. 1993. Climatic effects on regeneration trends for 2 columnar cacti in the northern Sonoran Desert. Annals of the Association of American Geographers 83:452–474.
Venable, D. L., C. E. Pake, and A. C. Caprio. 1993. Diversity and coexistence of Sonoran Desert winter annuals. Plant Species Biology 8:207-216.
Bowers, J. E. 1994. Natural conditions for seedling emergence of three woody species in the northern Sonoran Desert. Madroño 41:73-84.
Bowers, J. E. 1994. Natural conditions for seedling emergence of three woody plants in the northern Sonoran Desert. Madrono 41:73–84.
Bowers, J. E. and M. A. Dimmitt. 1994. Flowering phenology of six woody plants in the northern Sonoran Desert. Bulletin of the Torrey Botanical Club 121:215-229.
McAuliffe, J. R. 1994. Landscape evolution, soil formation, and ecological patterns and processes in Sonoran Desert bajadas. Ecological Monographs 64:111-148.
Bowers, J. E., R. H. Webb, and R. J. Rondeau. 1995. Longevity, recruitment and mortality of desert plants in Grand-Canyon, Arizona, USA. Journal of Vegetation Science 6:551–564.
Pake, C. E. and D. L. Venable. 1995. Is coexistence in Sonoran Desert annuals mediated by temporal variablility in reproductive success? Ecology 76:246-261.
Turner, R. M., J. E. Bowers, T. L. Burgess, and J. R. Hastings. 1995. Sonoran Desert Plants : an ecological atlas. University of Arizona Press, Tucson, Arizona, USA.
Bowers, J. E. 1996. Growth rate and life span of a prickly pear cactus, Opuntia engelmannii, in the northern Sonoran Desert. Southwestern Naturalist 41:315-334.
Bowers, J. E. 1996. More flowers or new cladodes? Environmental correlates and biological consequences of sexual reproduction in a Sonoran Desert prickly pear cactus, Opuntia engelmannii. Bulletin of the Torrey Botanical Club 123:34-40.
Bowers, J.E. 1996. Environmental determinants of flowering date in the columnar cactus Carnegiea gigantea in the northern Sonoran Desert. Madroño 43:69-84.
Pake, C. E. and D. L. Venable 1996. Seed banks in desert annuals: implications for persistence and coexistence in a variable environment. Ecology 77:1427-1435.
Webb, R.H. 1996. Grand Canyon: A Century of Change. Tucson, University of Arizona Press.
Bowers, J. E. 1997. The effect of drought on Engelmann prickly pear (Opuntia engelmannii) fruit and seed production. Southwestern Naturalist 42:240-242.
Bowers, J. E. 1997. Demographic patterns of Ferocactus cylindraceus in relation to substrate age and grazing history. Plant Ecology 133:37–48.
Bowers, J. E. 1998. Reproductive potential and minimum reproductive size of Ferocactus wislizeni (Cactaceae). Desert Plants 14:3-7.
Pierson, E. A. and R. M. Turner. 1998. An 85-year study of saguaro (Carnegiea gigantea) demography. Ecology 79:2676-2693.
Turner, R.M., H.A. Ochung’ and J.B. Turner, 1998. Kenya’s Changing Landscape. Tucson, University of Arizona Press.
Venable, D. L. and C. E. Pake. 1999. Population ecology of Sonoran Desert annual plants. In: R.Robichaux, ed., The ecology of Sonoran Desert plants and plant communities, pp. 115-142. University of Arizona Press, Tucson.
Bowers, J. E. 2000. Does Ferocactus wislizeni (Cactaceae) have a between-year seed bank? Journal of Arid Environments 45:197-205.
Bowers, J. E. 2000. Regeneration of triangle-leaf bursage (Ambrosia deltoidea: Asteraceae): germination behavior and persistent seed bank. Southwestern Naturalist 47: 449-453.
Moriuchi, K. S.,Venable, D. L., Pake, C. E., and T. Lange. 2000. Direct measurements of seed bank age structure of a Sonoran Desert annual plant. Ecology 81:1133-1138.
Bowers, J. E. and R. M. Turner. 2001. Dieback and episodic mortality of Cercidium microphyllum (foothill paloverde), a dominant Sonoran Desert tree. Journal of the Torrey Botanical Society 128:128-140.
Bowers, J. E. and R. M. Turner. 2002. The influence of climatic variability on local population dynamics of Cercidium microphyllum (foothill paloverde). Oecologia 130:105-113.
Drezner, T. D., and R. C. Balling. 2002. Climatic controls of saguaro (Carnegiea gigantea) regeneration: A potential link with El Nino. Physical Geography 23:465–475.
Enquist, B.J., Economo, E. P., Huxman, T.E., Allen, A. P. Ignace, D. D. and J. F. Gillooly. 2003. Scaling metabolism from organisms to ecosystems. Nature 423:639-642.
Turner, R. M., R. H. Webb, J. E. Bowers, and J. R. Hastings. 2003. The changing mile revisited: an ecological study of vegetation change with time in the lower mile of an arid and semiarid region. University of Arizona Press, Tucson, Arizona, USA.
Bowers, J. E., R. M. Turner, and T. L. Burgess. 2004. Temporal and spatial patterns in emergence and early survival of perennial plants in the Sonoran Desert. Plant Ecology 172:107–119.
Bowers, J. E. 2005. New evidence for persistent or transient seed banks in three Sonoran Desert cacti. Southwestern Naturalist 50:482–487.
Bowers, J.E. 2005. Effects of drought on shrub survival and longevity in the northern Sonoran Desert. Journal of the Torrey Botanical Society 132:421–431.
Bowers, J.E, T.M. Bean and R.M. Turner. 2006. Two decades of change in distribution of exotic plants at the Desert Laboratory, Tucson, Arizona. Madroño 53:252-263.
Drezner, T. D. 2006. Regeneration of Carnegiea gigantea (Cactaceae) since 1850 in three populations in the northern Sonoran Desert. Acta Oecologica 29:178–186.
Webb, R.H., S.A Leake, and R.M. Turner. 2007. The Ribbon of Green: Change in Riparian Vegetation in the Southwestern United States. Tucson, University of Arizona Press.
Drezner, T. D., and R. C. Balling. 2008. Regeneration cycles of the keystone species Carnegiea gigantea are linked to worldwide volcanism. Journal of Vegetation Science 19:587–596.
Bullock, S.H., and R.M. Turner. 2010. Plant population fluxes in the Sonoran Desert shown by repeat photography. Pages 119-132 in Webb, R.H. Boyer, D.E., and Turner, R.M. (editors). Repeat Photography: Methods and Applications in the Natural Sciences. Washington, D.C., Island Press.
Butterfield, B.J., J.L Betancourt, R.M. Turner and J.M. Briggs, 2010. Facilitation drives 65 years of vegetation change in the Sonoran Desert. Ecology 91:1132–1139.
Danzer, S., and T. D. Drezner. 2010. Demographics of more than 12,000 individuals of a keystone species in the northern Sonoran Desert since the mid-1800s. International Journal of Plant Sciences 171:538–546.
English, N. B., D. L. Dettman, and D. G. Williams. 2010. A 26-year stable isotope record of humidity and El Niño-enhanced precipitation in the spines of saguaro cactus, Carnegiea gigantea. Palaegeography, Palaeoclimatology, Palaeoecology 293:108–119.
Webb, R.H. D.E. Boyer and R.M. Turner, (editors). 2010b. Repeat Photography: Methods and Applications in the Natural Sciences. Washington, D.C., Island Press.
Webb, R.H., R.M. Turner and D.E. Boyer. 2010. Introduction: A brief history of repeat photography. Pages 3-11 in R.H. Webb, D.E. Boyer and R.M. Turner, (editors). Repeat Photography: Methods and Applications in the Natural Sciences. Washington, D.C., Island Press.
Munson, S. M., R. H. Webb, and J. A. Hubbard. 2011. A comparison of methods to assess long-term changes in Sonoran Desert vegetation. Natural Resource Technical Report NPS/SODN/NRTR—2011/436. National Park Service, Fort Collins, Colorado.
Olsson, A. D., J. Betancourt, M. P. McClaran, and S. E. Marsh. 2012. Sonoran Desert Ecosystem transformation by a C4 grass without the grass/fire cycle. Diversity and Distributions 18:10–21.
Pierson, E. A., R. M. Turner, and J. L. Betancourt. 2012. Regional demographic trends from long-term studies of saguaro (Carnegiea gigantea) across the Northern Sonoran Desert. Journal of Arid Environments 88:57–69.
Susana R.-B., H. Raichle, T. Birt, R. H. Webb, R. M. Turner, E. A. Pierson, and D. L. Venable. 2013. Population dynamics of Sonoran Desert saguaro cactus (Carnegiea gigantea) at the Desert Laboratory (Tucson, Arizona). Ecology 94:1660.
Ge, X. M., J. P. Scholl, U. Basinger, T. E. Huxman, D. L. Venable. 2019. Functional trait trade-off and species abundance: insights from a multi-decadal study. Ecology Letters 22: 583–592.
Tolman, C. F. 1909. The geology of the vicinity of the Tumamoc Hills. In: V. M. Spalding, ed., Distribution and movements of desert plants, pp. 67-82. Carnegie Institution of Washington Publication no. 113.
Post, Donald, David Hendricks, and M. L. Richardson 1973 The Soils of Tumamoc Hill. Unpublished report on file, Water, Soil and Environmental Science Department, University of Arizona, Tucson.
Phillips, M. P. 1976. Geology of Tumamoc Hill, Sentinel Peak, and vicinity. M.S. thesis, University of Arizona, Tucson.
Spencer, J. (compiler), and E. M. Moore, and R. A. Trapp, (digital cartographers). 2003. Bedrock Geologic Map of Sentinel Peak (A-Mountain) and Tumamoc Hill, Pima County, Arizona. Tucson, Arizona Geological Survey Digital Geologic Map 29, scale 1:12,000.
Coville, F. V., and D. T. MacDougal. 1903. Desert Botanical Laboratory of the Carnegie Institution. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1906. Year Book No. 5 1906. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1907. Year Book No. 5 1907. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1908. Year Book No. 5 1908. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1909. Year Book No. 6 1909. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1910. Year Book No. 7 1910. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1911. Year Book No. 8 1911. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1912. Year Book No. 9 1912. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1913. Year Book No. 10 1913. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1914. Year Book No. 11 1914. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1915. Year Book No. 14 1915. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1916. Year Book No. 15 1916. Carnegie Institution of Washington, Washington, D.C., USA.
Culin, Frank L., Jr. 1916 Building Stones. University of Arizona Bulletin. Economic Series No. 10. University of Arizona, Bureau of Mines.
Carnegie Institution of Washington. 1917. Year Book No. 16 1917.Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1918. Year Book No. 17 1918. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1919. Year Book No. 18 1919. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1920. Year Book No. 19 1920. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1921. Year Book No. 20 1921. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1922. Year Book No. 21 1922. Carnegie Institution of Washington, Washington, D.C., USA.
Carnegie Institution of Washington. 1923. Year Book No. 22 1923. Carnegie Institution of Washington, Washington, D.C., USA.
Wilder, J. C. 1967. The years of a desert laboratory. Journal of Arizona History 8:179-199.
McGinnies, W. G. 1981. Discovering the desert: legacy of the Carnegie Desert Botanical Laboratory. University of Arizona Press, Tucson.
Bowers, J.E., 1983. Jacob Corwin Blumer: Arizona botanist. Brittonia 35:197-203.
Bowers, J. E. 1986. A career of her own: Edith Shreve at the Desert Laboratory. Desert Plants 8:23-29.
Bowers, J. E. 1988. A sense of place: the life and work of Forrest Shreve. University of Arizona Press, Tucson.
Bowers, J. E. 1990. A debt to the future: scientific achievements of the Desert Laboratory, Tumamoc Hill, Tucson, Arizona. Desert Plants 10:9-12, 36-47.
Bowers, J.E. 1990. William A. Cannon: the Sonoran Desert's first resident ecologist. Madroño 37:6-27.
Bowers, J. E. 1992. Plant World and its metamorphosis from a popular journal into Ecology. Bulletin of the Torrey Botanical Club 119:333-341.
Martin, P. S. 1995. Rediscovering the Desert Lab. In: D. W. Steadman and J. I. Mead, eds., Late Quaternary environments and deep history: a tribute to Paul S. Martin, pp. 1-24. The Mammoth Site of Hot Springs, South Dakota, Hot Springs, SD.
Twilling, Shannon D. 2002 Post-Construction Site Damage Assessment of the KUAT-TV Digital Conversion Project on Tumamoc Hill, Tucson, Arizona. Cultural Resources Report No. 02-30. SWCA Environmental Consultants, Tucson.
Webb, R. H. and R. M. Turner. 2010. A Debt to the Past: Long-term and Current Plant Research at Tumamoc Hill (The Desert Laboratory) in Tucson, Arizona. Desert Plants 26 (2):3–18.
Baldwin, Kerry L., Stanley K. Brickler, Paul B. Dumond, John H. Skibinski. 1974. An Environmental Study Area Plan for Tumamoc Hill, Tucson, Arizona. A project of the Tumamoc Hill Committee, Natural Resource Recreation, College of Agriculture, University of Arizona, Tucson.
Elkins, Rosemary, Gayle H. Hartmann, Robert C. Johnson, Thomas Saarinen, Terah L. Smiley, Brock Tunnicliff and Stanley K. Brickler. 1982. Tumamoc Hill Policy Plan. Prepared for the Tumamoc Hill Advisory Committee, University of Arizona, Tucson.
University of Arizona. 2008. Tumamoc Hill Cultural Resources Policy and Management Plan.

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