By Lawrence Hurley
WASHINGTON (Reuters) - An anti-nuclear weapons protester from California made little headway with the U.S. Supreme Court on Wednesday with arguments that he should not have been prosecuted for demonstrating at a U.S. military installation because he was on a public road.
A majority of the nine justices in a one-hour argument voiced some concern about a federal appeals court decision that said the protester, John Apel, was immune from prosecution because he had been demonstrating on a public road that crosses the Vandenberg Air Force Base.
The U.S. government had asked the justices to overturn that ruling on the grounds that the road is on government-owned land and under the control of the base commander.
The law under which Apel was prosecuted prevents people from re-entering military bases after they are barred. Apel had been barred from the base but continued to attend anti-nuclear weapon demonstrations there.
The justices' concerns stemmed in part from the difficulty of determining what land is under the exclusive control of the U.S. government, especially in relation to large-scale military bases, they told Apel's lawyer, Erwin Chemerinsky.
Several justices appeared to endorse the government's position that the base commander had the authority to enforce the trespass law on any part of the property, including the road.
Justice Anthony Kennedy noted that an agreement among the base, the state and Santa Barbara County that gave the public a right of access, known as an easement, to the road "makes it very clear that the military commander has authority to exercise control over the easement property."
Chief Justice John Roberts seemed inclined to agree that public access could be limited in certain situations.
"That's usually the sort of determination that's left to the military commander," he said. "I can think of a lot of reasons why the commander would not want a gathering of people on the road, but would be willing to let people drive through."
In support of that argument, government lawyer Benjamin Horwich said one of the public roads that crosses the government land would be closed on Thursday for safety reasons because of operations at the base.
Justice Stephen Breyer said he was concerned that, under the appeals court ruling, people could avoid prosecution for trespassing by making use of other easements, such as those given to utility companies, over which the government does not have exclusive control.
In its April 2012 ruling, the 9th U.S. Court of Appeals in San Francisco said the government did not have an exclusive right of possession over the area where the alleged trespass took place. The appeal was prompted by Apel's 2010 conviction on three counts of trespassing on the base.
In the lower courts, Apel also raised a free speech argument under the First Amendment to the U.S. Constitution, but that issue was not before the justices. The case could yet be revived on those grounds even if he loses before the high court.
A ruling is due by the end of June. The case is U.S. v. Apel, U.S. Supreme Court, No. 12-1038.
(Reporting by Lawrence Hurley; Editing by Howard Goller and Vicki Allen)