                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 04-4967
SAMUEL CONTRERAS ADAMS,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
                Jerome B. Friedman, District Judge.
                            (CR-04-48)

                      Argued: September 22, 2005

                      Decided: October 21, 2005

     Before WILKINS, Chief Judge, LUTTIG, Circuit Judge,
      and James C. DEVER, III, United States District Judge
 for the Eastern District of North Carolina, sitting by designation.



Reversed by published opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkins and Judge Dever joined.


                             COUNSEL

ARGUED: Timothy Vitow Anderson, ANDERSON GOOD, P.C.,
Virginia Beach, Virginia, for Appellant. Vincent L. Gambale,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Paul J. McNulty, United States
Attorney, Michael J. Elston, Assistant United States Attorney, Alex-
2                      UNITED STATES v. ADAMS
andria, Virginia; Dee M. Sterling, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.


                              OPINION

LUTTIG, Circuit Judge:

   After waiving his right to a jury trial, appellant Samuel Contreras
Adams was convicted by a federal district judge of driving while his
license was revoked and driving as a habitual offender. On appeal,
Adams challenges his convictions on the ground that the road on
which he was stopped was not a highway under Virginia law, as
required in order to sustain such convictions. We hold that the road,
which was completely and indefinitely closed to the public when
Adams was stopped, was not a highway and, accordingly, reverse
Adams’ convictions.

                                   I.

   On January 3, 2004, Adams was pulled over by a federal agent on
Jericho Ditch Lane, a gravel road in the Great Dismal Swamp
National Wildlife Refuge. J.A. 21-23. The agent stopped Adams
because Jericho Ditch Lane was closed at that time due to damage
from Hurricane Isabel. Id. at 22. The agent’s request for Adams’ driv-
er’s license led him to discover that Adams’ license had been revoked
and that Adams was driving in violation of Virginia’s habitual
offender statute. Id. at 26-27. Adams was charged by a federal grand
jury with driving with a suspended or revoked license and driving as
a habitual offender. Id. at 7-9. The district court denied Adams’
motion for judgment of acquittal and found Adams guilty on both
counts. Id. at 71.

                                   II.

   Adams contends that his convictions cannot be sustained because
to be convicted of the charged crimes, an individual must drive on a
"highway" and Jericho Ditch Lane was not a highway under Virginia
law.* Virginia law prohibits drivers whose licenses have been sus-

   *The Great Dismal Swamp National Wildlife Refuge is within the spe-
cial maritime and territorial jurisdiction of the United States. J.A. 21.
                        UNITED STATES v. ADAMS                          3
pended or revoked from operating a motor vehicle "on any highway."
Va. Code § 46.2-301(B). Virginia also criminalizes the operation of
a motor vehicle "on the highways" by anyone who has been deemed
a habitual offender. Id. § 46.2-357(A). Virginia defines "highway" as:

     the entire width between the boundary lines of every way or
     place open to the use of the public for purposes of vehicular
     travel in the Commonwealth, including the streets and
     alleys, and, for law-enforcement purposes, the entire width
     between the boundary lines of all private roads or private
     streets that have been specifically designated "highways" by
     ordinance adopted by the governing body of the county,
     city, or town in which such private roads or streets are
     located.

Id. § 46.2-100 (emphasis added). Adams contends that Jericho Ditch
Lane was not a highway under this definition because it was not
"open to the use of the public" when he was pulled over.

   The district court reasoned and held that because the access "re-
strictions were both temporary in nature and motivated by public,
rather than private, necessity," the temporary closure of Jericho Ditch
Lane due to hurricane damage did not "divest this road of its ‘high-
way’ status." J.A. 71. Although the roads within the Refuge are usu-
ally open to the public, id. at 24, Jericho Ditch Lane was completely
and indefinitely closed to the public when Adams was pulled over,
see id. at 23-25. There were signs posted at entrances to the Refuge
prohibiting "unauthorized entry," id. at 26, federal agents patrolled the
closed roads within the Refuge for trespassers, id. at 23, and the Ref-
uge had issued several press releases advising the public that the Ref-
uge was closed until further notice because of the storm damage, id.
at 25.

Acts that are not punishable under federal statute but would be punish-
able if committed within the jurisdiction of the state in which the Refuge
is located are punishable under federal law. 18 U.S.C. § 7, 13(a). State
law governs traffic safety and the permissible use and operation of vehi-
cles within the Refuge. 50 C.F.R. § 27.31(a).
4                      UNITED STATES v. ADAMS
   These undisputed facts compel the conclusion that Jericho Ditch
Lane was not open to the public and, thus, was not a highway under
Virginia law when Adams was stopped. The Virginia Supreme
Court’s most recent ruling on the definition of "highway" explained
that the "‘true test’ of whether a ‘way’ is a highway is ‘whether the
way or place of whatever nature is open to the use of the public for
purposes of vehicular travel.’" Caplan v. Bogard, 563 S.E.2d 719,
723 (Va. 2002) (quoting Prillaman v. Commonwealth, 100 S.E.2d 4,
8 (Va. 1957)) (internal quotation marks omitted); see also Furman v.
Call, 362 S.E.2d 709, 710 (Va. 1987) ("[T]he test for determining
whether a way is a ‘highway’ depends upon the degree to which the
way is open to public use for vehicular traffic."). The government
does not dispute that on January 3, 2004, Jericho Ditch Road was
completely closed to public use for an undetermined period of time.
The road, therefore, was not a highway under Virginia law.

   Against this conclusion, the government makes two arguments.
First, it argues that a publicly owned road must always be a highway.
Appellee’s Brief at 8. Because both "highway" and "private road or
driveway" are defined in section 46.2-100, the government contends,
every road must be one or the other. And, since a publicly owned road
can never satisfy the private ownership requirement for a private road,
every publicly owned road must be a highway. Id. This argument
lacks basis in Virginia authority and does not directly address whether
Jericho Ditch Lane was, in fact, a highway under Virginia law. Focus-
ing on the definition of "highway," it is clear that there are publicly
owned roads that are not highways because they are not "open to the
use of the public for purposes of vehicular travel." See, e.g., United
States v. Smith, 395 F.3d 516, 520-21 (4th Cir. 2005) (holding that a
federally owned access road leading up to the CIA was not a high-
way). The government’s first argument — that all publicly owned
roads must be highways — cannot stand.

   Second, the government argues that our inquiry into whether a road
is a highway should not be bounded by the facts as they existed at the
time of the incident in question but instead should be undertaken in
the abstract. According to this argument, the temporary closure, for
public safety reasons, of a road that is usually open to the public
should not deprive it of its status as a highway. While this argument
might have some purchase in a case of a partial closure or a closure
                        UNITED STATES v. ADAMS                           5
of definite duration, we do not believe that Virginia law permits us
to conclude that a road such as Jericho Ditch Lane, which was com-
pletely and indefinitely closed to the public when Adams was
stopped, was a highway.

   Having now confronted on more than one occasion the question of
whether a particular road comes within Virginia’s definition of "high-
way," we understand the difficulties that attend interpretation of Va.
Code § 46.2 and the consequent uncertainties that result from its
attempted application. Our responsibility as a court and as a federal
court, however, is limited to interpreting, to the best of our ability, the
statute as it was enacted and as it has been construed by the courts
of Virginia. If the need exists for changes in the reach or clarity of
the statute, that need is properly addressed to the legislature of the
Commonwealth.

                            CONCLUSION

   For the foregoing reasons, appellant’s convictions for driving while
his license was suspended or revoked and driving as a habitual
offender are reversed.

                                                   IT IS SO ORDERED.
