quality standards established by [or] pursuant
to applicable federal [or] state law."

That's specific standards there, and I'm not sure there's discretion within that one because there's clearly state laws and federal laws, and you have to act within those. That takes care of these concerns.

The next one is:

"Require compliance with state standards for public health and safety and environmental protection."

That takes care of environmental protections. That takes care of health and safety.
Later on it says in Subsection(2):

[(iii)] "Protect other lawful users of the lands adjacent to or occupied by such use."

That's public safety. (iv) is:

"Protect lives and property."

That's public safety.

There are specific, narrowly drawn, objective standards here. But then there's the catchall which gives the [authorized officer] unbridled discretion of what's in "the federal economic interest."

And anything that's in the federal -- and the part -- there's going to be, if they go to trial, a permit.


They have a hold harmless [term], that the people attending the gathering have to hold harmless the federal government for any damages that gatherers will possibly suffer.

And this basically [means] that we could have our rights violated by civil rights violations, [which are] intentional torts. And we're required to hold everybody harmless. The only purpose of this could be to protect the federal economic interest.

Again, "the public interest" one, that is unbridled discretion. [The regulations] could have been written possibly to pass constitutional muster. These regulations -- these regulations weren't. They do not pass constitutional muster as written.

He -- the Assistant Attorney General, Mr. Greiner, is that pronounced [right]?

MR. GREINER: That's correct.

MR. LINICK: He -- he used the phrase at the beginning of his oral argument "prompt" -- "it provides [for] prompt administrative and judicial review." But he didn't really tell you what the time limits were and what time frames we're talking about here.

He mentioned a 30-day decision. Well, that's not true at all. It takes more than that, because it's 30 days for the government to, [the] Forest Service to, file its responsive brief, or its response to the [notice of appeal]. And then another


30 days is allotted to the decision, and I'll get to those.

But he also, in his argument, later on called this an "extraordinarily complicated" scheme. He used the words "extraordinarily complicated." And I even have a footnote in my reply [memorandum] that it's almost incomprehensible to the litigant. I say "virtually incomprehensible." I say it's complicated, virtually incomprehensible. And he says it's extraordinarily complicated to figure it out.

But if the Court would look at [Section] 251.94, Subsection (b) Timeframe:

"Unless the reviewing officer has granted an extension or dismissed the appeal,"

and of course the reviewing officer could extend this period of time,

"the deciding officer [shall] prepare a responsive
statement and send it to the reviewing
officer and all parties to the appeal within 30
days of receipt of the notice of appeal."

The deciding officer is the one who has attached conditions or terms to a permit. The reviewing officer is the one in the administrative scheme that would review the deciding officer's conditions that they impose.

And let me say this. As a condition can be a de facto denial of a permit as much as an actual denial of the issuance of the permit can be in the first place. And that's described in T.J. South's that's set


forth in my opening motion and memorandum to dismiss.

And that's what we're talking about -- some terms and conditions -- not all of them do. But some can be so arbitrary, just because of the whim of that particular officer, and maybe they have a bone to pick with the Rainbow or something, or don't like gatherings, or don't like people who dress like the people who attend gatherings or whatever, and [the authorized officer] could attach an arbitrary condition and say it's "in the public interest."

Then you have to wind yourself through this administrative appeal process.

Anyway, the deciding officer shall prepare a responsive statement and send it to the reviewing officer and all parties within 30 days. So that's the [first] 30-days right there.

Then, as far as [the] decision goes, at [Section] 251.99 appeal decision, Subsection (c):

"At the first level of appeal, the reviewing
officer shall make and issue an appeal
decision within 30 days of the date the
record is closed."

So that's the other 30 days mentioned - at a minimum. That's if there's no reply by the appellant or intervenor, 'cause there's a 2O-day period for a reply. [Section 251.94(c)] The reviewing officer can take additional information [Section 251.95(c)] and he


could extend these deadlines. [Section 251.89(b)]

And you know what? There's no provision that if he doesn't make a decision within those 30 days, what happens then.

As far as discretionary review, which is a different subject, [the regs] specifically say that on the discretionary review decision, if the Secretary of Agriculture makes that decision -- if he doesn't make a decision within a period of time, then it's considered exhausted and you can go into court.

But they don't say that for this, for this one at all. Here it says the reviewing officer [shall] have 30 days to make the decision -- to make the decision. And that could probably be extended.

It's not prompt administrative review where we'd be getting to court.

Let me say this also. The Black decision, the Court inquired about it. I, [to] my reply [memorandum], attached a copy from the [Black case] plaintiff's memorandum where the only time where that issue is raised-about terms and conditions -- and this is only the first three points I make at the maximum, but it doesn't talk [in] the Black decision, doesn't talk to any of these other issues, doesn't talk in detail about this language "protect the public interest," doesn't talk


particularly about my assertions that "protect the federal economic interest" is not only overbroad and vague, but it [1] also is not a proper time, place and manner regulation, and [2] nor does it fulfill or advance any of the government interests that have been identified by the Department of Agriculture for these regs.

And definitely [in the Black case] Judge Hagarty did not address the issue about this administrative review, the fact that that part of it, in itself, is unconstitutional because a condition that could de facto preclude an event - there could be a term or condition that's a de facto denial [of] or precludes the holding of the event.

And it has to wind itself through this exhaustion requirement, which at the very end of it, in, [Section] 251.101, the Department of Agriculture has a regulation saying you have got to follow this procedure before you can go into court unless you get a waiver by the Chief [of the Forest Service]. A waiver only would be by the Chief.

So, they require exhaustion of this lengthy "extraordinarily complicated" administrative procedure before [you can get into Court]. And Judge Hagarty didn't address this.

Judge Hagarty responded to this one line in the plaintiff's memorandum with this one that, "well, the regulations limit the conditions to those that only

protect the environment, only those that protect public health and safety."

That's not what "to protect the public interests," says; there's no limiting -- limitation language in that at all.

As far as "standing" goes, I need to point this out to the Court that I assert that I have, definitely have, standing. In Freeman v. Maryland, a Supreme Court case, the court said "in the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute and whether or not he applied for a license."

Quote: "One who might have had a license for the
asking may call into question the whole
scheme of licensing when he is prosecuted for failure to procure it."

And I'll put in that as I'm being [prosecuted] for failure to procure [a permit] that I might have had for the asking, I may call into question the whole regulatory scheme.

And then there's a list of the citations, including Thornhill [v. Alabama] and a number of other United States Supreme Court citations. And the Court [in Freedman] goes on and says "standing is recognized in such cases because of the", quote:

"Danger of tolerating in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper



And I'm asserting that this regulatory scheme is susceptible to that very defect of improper application by terms and conditions coupled with the fact that to get into court, to get an independent decision on it, is a long, "extraordinarily complicated" procedure. But the length of it is what's the major concern.

There's language in Shuttlesworth which the Court should look at at page 151. I -- I'm not going to read that. I do want to quote some language in T.J. South v. Town of Lowell which is cited, again, in one of [my] memorandums, [or] I believe both.

And this is also one that speaks to terms and conditions 'cause -- oh, let me say this. To correct what the Court asked in the question to the other side earlier, you asked if [a permit is] denied -- what's the time period for getting to court -- if the permit application is denied. It calls for prompt judicial review.

And I wanted the Court to understand that I'm talking about a different situation. That the regulations specifically say if a permit is denied because the proposed event doesn't fulfill one of specific, content-neutral and objective standards, you can immediately seek judicial review. If it's revoked or suspended, you can get prompt


judicial review.

It doesn't provide that if a term and condition is attached that would have the de facto result of precluding the event, it doesn't say you have prompt judicial review. You have to go through this administrative [appeal] procedure.

And that's what the Forest Service did, is that they found this and decided to take this -- this route or that.

Again, prompt judicial -- prompt administrative appeals through the line -- through the line officers attaches a condition, applicant complains about it, quick one-page memos, one-page arguments finds a reviewing officer with a condition that was set forth in these that you have it within 48 hours, 72 hours.

Then if it's denied by that higher up reviewing person, or there could even be two levels, as long as it's really quick, not 60-plus days, or indefinite [as] in this case.

As far as -- so anyway, from T.J. South,it says -- and I'm almost done, Your Honor. [It] disappeared on me.

"In a facial challenge to a law" -- that's what I'm doing -- a facial challenge to a law, and the law here is the regulatory scheme.

"In a facial challenge to a law, the plaintiff is
not merely alleging that the law has been
unconstitutionally applied to him or her.
Rather, the plaintiff argues that the law


might be unconstitutionally applied to most
anyone .

"As such, facial challenges involve a
plaintiff -- involve a plaintiff asserting the
rights of others, and for this reason they're
not the norm."

And it -- the court cites Forsyth County.

"However, First Amendment law" -- and I don't think [the government] disputes that the First Amendment is involved here. I believe that's in the government's memorandums. It's in the preamble, talks about it.

The other cases -- Chief Judge Justice's decision in Texas talks about [the First Amendment] -- that's in my motion to dismiss, where it talks about it. There's no question in this case that First Amendment rights and liberties are involved

But, "however, First Amendment law has carved out a place for facial challenges to prior restraints. A plaintiff can challenge a permit scheme on its face if the scheme," quote: "Vests unbridled discretion in the government official over whether to permit or deny expressive activity."

And a condition could permit or deny expressive activity. A condition attached to [a permit] could de facto deny it.


It then cites City of Lakewood v. Plain Dealer. At that point "a facial challenge will lie whether or not the plaintiff has applied for a permit under the scheme at issue, and whether or not the scheme has been or could be constitutionally applied to the plaintiff."

Then there's a citing of Forsyth County and Lakewood again. "In this sense, the prior restraint doctrine perhaps has a prophylactic role."

On my first slx points, I have clear standing, no question about it. This Court shouldn't have any question on that. I can attack this regulatory scheme without applying for a permit. Shuttleworth was a criminal case, too. And that's an important case, Shuttleworth v. City of Birmingham, Alabama. That's a criminal case.

The Lakewood language I just quoted talks about a prosecution - that even if I could have had a permit for the asking, [that] I could have applied for that permit and they were going to give me a permit if I had done so, it says I don't have to apply under an unconstitutional regulatory scheme or unconstitutional law. I don't have to apply and I can still challenge it facially.

The only place that [the government] may have any colorable argument about me not having any standing is where I raise the issue of Point 7, my last point about commercial


activities. And even then, this language from T.J. South again suggests even then I'm asserting the rights of others -- I'm asserting the rights of people who have commercial events on Forest Service lands by saying they shouldn't have to be subject to a denial or granting of a permit on the basis of the discretion of the authorized officer "in the public interest."

That language is actually one of the criterias for the granting or denying of a commercial permit, rather than specific criterion in the event of a noncommercial activity or group use. For a commercial one it specifically says that it could be denied at the discretion of the authorized officer "in the public interest," or "to protect the public interest," one of the two. And so that therefore I'm asserting their rights, those people who go to gather on Forest Service system land and charge a small participation fee, They should not be subject to the unbridled discretion of an authorized officer, to deny their requests for a permit on the basis of his unbridled discretion, his whim, his ability to censor whatever speech he may not like and just say, "Well, it's [not] in the public interest."

And so, whether you follow Black on the point of unbridled discretion about terms and conditions, in the Black


case, Judge Hagarty did not address the issue of the lengthy and extraordinarily complicated [administrative appeal process] -- for not every group has a lawyer at their disposal, or people who are knowledgeable about the law, who can figure out and weave their way through what the United States Attorney has called an "extraordinarily complicated" administrative procedure. I'm asserting it's also an unconstitutionally lengthy one.

Moreover, Judge Hagarty didn't address my argument about commercial speech. He didn't address the argument I have which I haven't discussed, about they don't have to give reasons, and also about this liability provision that it could make the group or who's ever holding the permit liable if a spectator comes out to check it out, what's [the Gathering] like, and they have a car accident with a Forest Service vehicle. It's not restricted to just cost of fire suppression or cost of damage to the land.

It says for any damage to the United States, which would include damage to a Forest Service vehicle. Thus a spectator could be driving up there, saying, "Hey, there's a Rainbow gathering in town, let's go check it out, see what it's all about."

We have many people from the local areas come out, especially on the 4th of July. But many locals come up


to check it out and see what it's all about, out of curiosity, or for whatever reason. If one of them even flicks a cigarette, all of a sudden the group is responsible for it.

Let me say this. The spectators -- in fact, it talks about spectators in the ACLU brief, [and] the response brief by the government. To get a permit requires 75 people or more, a group of 75 people or more, and it includes participants and spectators.

So if I were to go up with a small group of ten people, and have a drum circle on Forest Service land, we're only planning to have ten people. All of a sudden 75 people from around hear our drums and start joining us, we'd have to go get a permit just because these people decided to spectate at our event.

And if one of [the spectators] were to throw a cigarette out and not extinguish it - in the tinder dry condition we had during the gathering situation earlier, in late June and early July, if one of them were to flick a cigarette, there could be a fire.

And who is responsible but under these rules the holder of the permit, which is either the person applying for it and signing the permit, or the entire group?

I'm not even sure what that situation is with that stance. So, I'm not going to speak any further on those


particular issues. In fact, I'm just about done.

But, Judge Hagarty in the Black v. Arthur case, even if he is correct, and I assert, submit very strongly that he didn't look at the specific language, and therefore, came up with an erroneous opinion and conclusion.

As far as severing it, this Court cannot really sever [subsection vii] 'cause it takes too much. It's not only striking out the "to protect the public interest" language, but this entire regulatory scheme. [The regulatory scheme is] just written so poorly that it is unconstitutional in so many ways, i.e., the commercial speech aspect I pointed out in Point 7.

The "protect the federal economic interest" part, the control over the duration of the length of the event, and then the administrative appeal scheme, the Court would have to say this administrative scheme can't be followed. We can't rely on the good faith of the Forest Service, and especially from experience, our Family can't.

And just because [the Assistant U.S. Attorney] gets up here in this courtroom and says, "Well, we're honorable people," the case law says [the courts are] not going to find just because you say you have to, [or you] believe you'll act, in good faith, we're not going to write in something that's not there.

And so, this Court would have to rewrite this entire regulatory scheme, which maybe the Forest Service and Department of Agriculture can do, based on my


recommendations though. [The Dept of Agriculture] will see what I'm saying is wrong with it and this Court agreeing with me.

So I thank you, Your Honor.

THE COURT: Thank you.

MR. GREINER: Your Honor, just one housekeeping matter. I -- Your Honor, you know, Your Honor, the current trial date is October 28th. And the only issue would be, Your Honor, that Scott Bales originally had the case.

Scott would not be the attorney trying the case, because of some administrative things that he's going through, none the least of which is another trial.

So I would have to get another attorney assigned to the case, or maybe I will actually come down here and do it, Your Honor. And we have two out-of-state witnesses. I know that the defendant has at least one out-of-state witness.

So all I'm really asking for, Your Honor, is some sort of idea of whether or not we're going to actually go on the 28th, or whether it will be reset for another date, so I can make some arrangements.

THE COURT: I'll let you know that at the earliest possible time. Let me ask one question of the government.

The information speaks about the alleged conduct being in violation of, among other things, Title 36, Code of Federal Regulations, Section 251.51(a). I can't find


251.51(a). And if you could draw my attention to that, I'd appreciate that.

MR. GREINER: Yes, Your Honor. My copy of the information seems to have escaped me. If you could give me just one second to look at it.

I apologize for the inconvenience, Your Honor.

MR. JAROSZ: Your Honor, whereas I don't doubt that that's what the regulation says, I can't answer the question. I can't answer the question at this point, Your Honor. I'm sorry.

THE COURT: Perhaps the defendant can answer the question.

MR. LINICK: Well, the file that contains the Information I actually left in my van, but I thought it said K. Does it clearly say A?

MR. GREINER: Well, I will say is -

THE COURT: Well, wait a minute. This is not -- this is not -- this isn't rocket science.

Take a look at the Information and then get a copy of the Code of Federal Regulations out and show me where that is.

MR. LINICK: Yeah. I don't have the -


MR. LINICK: I don't have it.

MR. GREINER: Your Honor, actually, yes, now that


you draw this to my attention, I don't -- there is no 251.51(a). Then that's -- and -- and -- and I remember looking at this earlier, actually about 48 hours ago as a -- preparing for oral arguments.

That's why I draw the Court's attention to 61.10(k).

Beyond that I would have to defer to the United States Attorney's Office.

MR. JAROSZ: Your Honor, I what -- if I could suggest is -- that the 251.51 actually applies obviously to the definition area, and I think what he was trying to get at was the special use authorization. I don't know why the Subsection (a) is cited there. There are no subsections to that particular statute.

THE COURT: Thank you.

MR. JAROSZ: It's just a typographical error, I just -- I apologize for the inconvenience, Your Honor.

THE COURT: All right.

MR. GREINER: May I approach?

THE COURT: The court has reviewed the positions of the parties and the materials presented, the Court finds that the defendant has standing to present his motion to dismiss.
The Court finds that the Forest Service has a remarkably complex set of burdens and responsibilities in order to properly discharge its stewardship over the public


lands of the United States, and the regulatory scheme which it has in place and which it modifies from time to time in an effort to properly discharge those responsibilities is a challenging task at best.

Its broad responsibilities, of course, are to manage the National Forests and the public lands of the country in a manner that will serve the best interests of the people of the United States in the many and varied uses that it properly seeks to make of this national and public resource.

The court further finds that the regulatory provisions involved in this case, the noncommercial group use regulations as would be applied to this defendant, are impermissibly broad in that Section (vii) of Section 251.56 of the Code of Federal Regulations grants an inappropriately
broad range of discretion to the applicable official discharging responsibilities cast upon he or she under the regulatory scheme.

Accordingly, since the regulation is deemed as a matter of law to be inappropriate by the court, the defendant would not be under a lawful obligation to make application for such a permit. And the Information charging a criminal violation because of failure to comply with Title 36 CFR 261.10(k), cannot stand and is inappropriate. Accordingly, it


ordered granting the motion to dismiss.

MR JAROSZ: Thank you, Your Honor.

MR. LINICK: Your Honor, I'm not sure whether the government intends to appeal. If it does, I would only be inclined to cross appeal on the issue of that administrative appeal system.

Is Your Honor inclined to give a ruling on that aspect of this case, as well?

THE COURT: The court has entered its ruling, and having dismissed the action finds that it is unnecessary for it to go further into the matter.

MR. LINICK: Okay. Can you -- would the Court entertain a published opinion in this particular case if I would request it?

THE COURT: The court will consider that. I don't know whether the government has any position in that regard or not.

MR. LINICK: Thank you, Your Honor.

THE COURT: Court will be in recess.

(Proceedings recessed at 11:15 A.M.)

- ooOoo -
I HEREBY CERTIFY the foregoing transcript dated
this 10th day of November, 1998.
William A. McNutt, RMR
U.S. Court Reporter