Michael D. Linick, aka Strider
Defendant/Pro per 
707 W. Bridle Path Ln. 
Payson, AZ 85541 
(520) 474-1786
                                         NO. CR.--98-502-1-PCT-RGS
                                         DEFENDANT'S REPLY TO
                  v.                     PLAINTIFF'S RESPONSE TO
                                         DEFENDANT LINICK'S MOTION


Defendant Michael D. Linick, aka Strider, submits the following as his reply to plaintiff United States's response to defendant's Motion to Dismiss:

I. Standing

The plaintiff asserts defendant does not have standing to contest the constitutionality of the Department of Agriculture's regulatory scheme respecting special use permits because he did not apply for such permit. Plaintiff's Response, page 19. The defendant has standing because he is charged with a crime under the regulatory scheme. In fact, defendant had to violate the regulations by not applying for or accepting a special use permit in order to challenge the regulatory scheme on the basis of its unconstitutionality. Had defendant applied for and accepted a special use permit, he would have been in no position to attack the regulatory scheme as a whole; at most, all defendant would have

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been in position to do is challenge a particular term and condition, and that through the lengthy, complicated process of the administrative procedure set forth in subpart C of the regulatory scheme - entitled "Appeal of Decisions Relating to Occupancy and Use of National Forest System Lands" - 36 C.F.R. Section 251.80 et seq. Accordingly, if anybody has standing to challenge the regulatory scheme as a whole, 1/ it is the accused in this case. 2/

Additionally, it has long been established that "a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." Shuttles worth v. City of Birmingham, Ala, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969)(footnote and citations omitted);

1/ Defendant is not at this time challenging the regulatory scheme as unconstitutional as applied to him, or the Rainbow Family; defendant is challenging the regulatory scheme as a whole as being per se and/or facially unconstitutional.

2/ Plaintiff also asserts that "[defendant's] arguments regarding terms and conditions are hypothetical and consist of a parade of horribles about what the Forest Service might do. He can point to no burdensome term or condition that was actually imposed upon him (or anybody else), nor even a term or condition that the Forest Service ever threatened to impose on him (or anybody else)." Plaintiff's Response, page 19.

A Motion to Dismiss is the appropriate vehicle when a party challenges a statute or regulation as facially unconstitutional or unconstitutional as a matter of law. Extrinsic evidence is not to be considered by the court when ruling upon a motion to dismiss. Accordingly, the particular permit proffered to defendant in this case is not relevant to the motion to dismiss and cannot even be considered by the court.

Moreover, the proffered permit to which the plaintiff refers and claims defendant cannot find an onerous term, Plaintiff's Response, page 19, is not even evidence in this case at the present time. Accordingly, this court should not consider the plaintiff's statement " * * * the permit that the Forest Service offered to the Rainbow Family during the Arizona Gathering did not contain any onerous terms or conditions." Plaintiff's Response, page 19.

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see also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-62, 108 S.Cat. 2138 (1988); Thornbill v. State of Alabama, 310 U.S. 88, 97 (1940). Thus, where a prior restraint upon expression or religious exercise is involved, "one has standing to challenge a statute on the grounds that it delegates overly broad licensing discretion to an administrative office, * * * , and whether or not he applied for a license." Freedman v. State of Maryland, 380 U.S. 51, 56 (1965). 3/

II. The Black Case

Plaintiff asserts that the Court should follow Black v. Arthur, No. 97-1798-HA, -- WL --, -- F. Supp. -- (D. Ore. Aug. 25, 1998). 4/ The Black decision, if it is in fact published, is not a final decision, as the plaintiffs therein have filed a Notice of Appeal and the appeal is currently pending. Moreover, even if he were a final decision, it would only be binding precedent in the District of Oregon, and not the District of Arizona.

Moreover, Judge Haggerty's decision is wrong respecting whether or not the regulatory scheme respecting terms or conditions

3/ It is also important to note that in the two cases plaintiff relies heavily upon, specifically, Black v. Arthur, infra in text, and U.S. v. Johnson, 988 F. Supp. 920 (W.D.N.C. 1997), appeal pending No. 97-5023 (4th Cir.), neither District Court dismissed challenges to the constitutionality of the same regulatory scheme involved herein on the basis of "lack of standing."

4/ Plaintiff also asserts that United States v. Johnson, supra, also has some precedental value. Johnson is not a final judgment. Moreover, and most importantly, the points defendant herein asserts in his defense were not asserted in the trial court in Johnson. Lastly, even if the defendant in Johnson had raised the same issues as defendant herein, the Johnson decision is not binding precedent on this court, just as a Fourth Circuit Court of Appeals' decision would not be binding on the Ninth Circuit Court of Appeals.

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gives a Forest Service official unbridled discretions. 5/ This was due in part because this particular issue was only presented in a cursory manner by some of the plaintiffs therein, and the court issued its decision without oral argument. The only mention of this issue by some of the plaintiffs in Black was: "There is little point in closely fettering administrative discretion in processing an application for advance official permission for expression or religious worship if the issuing official retains the unbridled discretion to place whatever restrictions, conditions, or burdens he or she chooses into the permit itself."' See Defendant's Reply Exh. #1 attached hereto. District Judge Haggerty responded to this sentence as follows: "First, plaintiffs argue that the regulation delegates unbridled discretion to the permitting official because it does not set * * * standards for the type of terms and conditions the permit may contain. * * * 6/ Furthermore, terms and conditions that the Forest Service may impose in a permit are limited to those designed to assure compliance with otherwise applicable health and safety standards; to minimize damage to water quality, fish, wildlife, and other environmental aspects of the forests; and to protect the physical

5/ This Court should also observe that many of the points submitted by the defendant in the present case were not addressed in the Black case, e.g. the lack of immediate or prompt judicial review of an imposed "term or condition", that the regulatory scheme gives a Forest Service official unbridled discretion to deny a special use permit for a commercial use, such as one for which an entry or participation fee is charged - "the proposed use would not be in the public interest," etc.

6/ The omitted portions of this quote from Judge Haggerty's Opinion concern the claim by some of the plaintiffs in Black that the regulatory scheme does not set specific, objective standards for the granting or denying of permits. This defendant is not making this particular claim in his defense.

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safety of all those in the National Forest System. See 36 C.F.R. Section 251.56(a)." Slip Opinion and Order, pages 11 - 12. This latter sentence by Judge Haggerty is just plainly wrong; it totally overlooks the language that "each special use authorization shall contain: (1) * * * ; and (2) Such terms and conditions as the authorized officer deems necessary to (i) protect Federal * * * economic interests; [and] (vii) otherwise protect the public interest." 36 C.F.R. Section 251.56(a) [Emphasis added].

Lastly, Judge Haggerty's decision in Black does not address the issue raised by defendant herein that a term or condition which protects the Federal economic interests, while perhaps desirable, does not advance any of the three significant governmental interests identified by the Department of Agriculture justifying the promulgation of the regulatory scheme, see preamble to Final Rule (Final Rule, 60 Fed. Reg. 45,258 et seq (August 30, 1995)) 7/ and/or that it is not a valid time, place, and manner restriction allowed by case law permitting licensing schemes. Nor does the decision address the issue whether it is permissible that an administrative official can limit the duration of an event to no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization, Section 251.56(b)." 8/

7/ 'This Court can take judicial notice of the preamble to the Final Rule because it is the record of an administrative body that contains relevant information on the background and purpose of the challenged regulation, just as Judge Haggerty did in Black, see Slip Opinion, page 6, but the preamble is not part of the Final Rule and is therefore not part of the regulatory scheme at issue.

8/ Plaintiff tries to justify this section in part by asserting "The regulation [36 C.F.R. Section 251.56(b)] thus allows the Forest Service to prevent monopolization of a National Forest System site by groups who no longer need it. The only alternative is to allow each group to determine for itself how long it wishes

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III. Unbridled Discretion Respecting Terms and Conditions

Plaintiff asserts "With one exception [Sante Fe Springs Realty v. City of Westminster, 906 F. Supp. 1341 (C.D. Cal. 1995)], all the cases Defendant Linick cites dealt with ordinances that included no standards for the grant or denial of a permit application, as opposed to the imposition of terms and conditions in a granted permit." Plaintiff's Response, pages 20 - 21. This is at the very least misleading. In his Memorandum of Points and Authorities, defendant cites City of Lakewood, supra, TJ's South, Inc. v. Town of Lowell, 895 F. Supp. 1124 (N.D. Ind. 1995), and CR of Rialto, Inc. v. City of Rialto, 975 F. Supp. 1254 (C.D. Cal 1997), each of which discuss unbridled discretion respecting terms, conditions, or "safeguards". See Defendant's Memorandum of Points and Authorities in Support [of Defendant's Motion to Dismiss], pages 9 - 11. It is also important to note that defendant agrees the Forest Service may exercise some discretion - but only in the context of specific, objective standards; defendant however submits that the current regulatory scheme allows the Forest Service to exercise unbridled and unfettered discretion, the type of which a phrase such as "to protect the public interest " lends itself.

to occupy the site, a solution inconsistent with the Forest Service's duties * * * to allocate space among competing users. " Plaintiff's Response, page 22. However, this response ignores the language of this regulatory section. If the regulation stated that "the duration of a special use authorization shall be no longer than is necessary to avoid a conflict with another user of the same site, " such would pass muster as a specific, objective standard which does not leave unbridled discretion within the hands of the permitting official, and would advance one of the three significant governmental interests identified by the Department of Agriculture. But the language as now written is "the duration shall be no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization * * *. "

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IV. Lack of Immediate or Prompt Judicial Review Respecting Terms or Conditions

Plaintiff concedes there is no immediate or prompt judicial review of a term or condition imposed upon a special use permit and that a challenge to a special use permit term or condition is subject to the exhaustion requirement found in 36 C.F.R. Section 251.101. See Plaintiff's Response, page 22, note 8. It defends against this defect in the regulatory scheme on three bases: 1) that defendant lacks standing; 2) that an administrative exhaustion requirement has been found to be valid by the Supreme Court, citing Darby v. Cisneros, 509 U.S. 137 (1993); and 3) that the regulations allow a permit holder to request a stay of a condition pending exhaustion. 36 C.F.R. Section 251.91. Defendant submits that the "lack of standing" issue is the same as addressed earlier herein. See discussion under subheading "Standing," supra. Defendant further submits that whereas an administrative exhaustion requirement may be valid under certain circumstances, e.g. when First Amendment rights and liberties are not involved, they are not valid when First Amendment rights to expression, religion, and/or association are at stake, and that the exhaustion requirement could have the effect as a prior restraint or preclusion of the First Amendment activity. Lastly, the fact that a permit holder may request a discretionary stay of a condition from the same branch of government that imposed the condition pending exhaustion, is not an adequate substitute for immediate or prompt judicial review by a different branch of government, specifically, a neutral, independent judge. Moreover, merely because a permit holder may request a stay doesn't mean that a stay will be granted, and if

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denied, there is no immediate or prompt judicial review of the denial of the stay. 9/

V. Additional Replies

Plaintiff asserts "Defendant's sixth argument is that the Forest Service may not protect the National Forest System from the dangers of forest fire by requiring the holder of a permit to pay for the costs of fires its members cause. The idea that the First Amendment requires that a group be allowed to negligently cause forest fires on public land without consequences is difficult to fathom. At a minimum, the Forest Service could constitutionally impose a condition requiring a permit holder to pay for the fire damage its members cause as means of carrying out the statutory mandate to prevent and deter forest fires." Plaintiff's Response, pages 23 - 24. Defendant submits the following in reply: 1) defendant's sixth point is not limited to forest fires. Defendant submits that the assumption of liability and indemnification clauses found in 36 C.F.R. Section 251.56(d) apply to all injuries, losses, or damage suffered by the United States. Accordingly, a person participating in a Rainbow Family activity with 74 or more other persons has a traffic accident, negligently striking a Forest Service vehicle, the permit holder is made liable for the damages. 2) defendant is not asserting that nobody is liable for injury, loss, or damage suffered by the United States, just that it is not necessarily the permit holder. For example, if a person participating in a Rainbow Family function on National Forest System lands negligently starts a fire, perhaps by not properly

9/ Defendant submits that Subpart C - 36 C.F.R. Section 251.80 et seq is not only complicated but it is incomprehensible.

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extinguishing a cigarette, that person can be held liable, just as that person would be liable if he were camping alone and negligently started a fire. 3) that nobody will apply for a special use permit or sign such permit, thereby becoming the permit holder, if he or she would be held liable for someone else's negligence, over which the permit holder has no control. This becomes a chilling effect on people gathering on National Forest System lands to exercise their constitutional rights to expression, religion, and/or association,

Plaintiff further asserts "Putative amicus the American Civil Liberties Union makes essentially the same argument, contending that a permit holder may cause damage to a National Forest System site at will without consequences because the First Amendment requires the taxpayers to foot the resulting bill." Plaintiff's Response, pages 23 - 24. This is not what the ACLU is contending at all. Nowhere does it contend that the permit holder may cause damage to NFS sites at will without consequences. If a permit holder causes damage to a NFS site, the permit holder can be held liable for such damage. But if an individual attending a Rainbow Family function causes damages, that individual is subject to liability, not the group nor other individual members of the group. 10/

Plaintiff also asserts in response to the ACLU's amicus brief:

10/ Moreover, there are instances where there is damage to or injuries to National Forest System [NFS] property and the government is unable to collect for the loss. Examples are where an individual causes a fire, or other injury to NFS property, but cannot be identified, or can be identified but hasn't sufficient assets to reimburse the government for its loss. In a perfect world it might be otherwise, but we do not live in a perfect world.

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"The acts of any 'stranger' who 'show up' * * * to an event such: as a Rainbow Family gathering would not be imputed to the Rainbow Family because the strangers' acts would not be those of the permit holder's." Yet, this contradicts the regulations themselves as "group use", triggering the requirement of obtaining a special use permit for noncommercial group use is defined as "an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators." 36 C.F.R. Section 251.51. [Emphasis added] Thus, stranger spectators are considered part of the group for requiring the obtaining of a special use permit, but plaintiff herein states they are not part of the group for purposes of assumption of liability and indemnification. Which is it? The government cannot have it both ways. Moreover, the regulatory scheme does not state that the assumption of liability and indemnification regulations do not apply to losses, damage, or injuries to the United States caused by "strangers" who just "show up", possibly to check out what a Rainbow Family gathering is about 11/ This is merely an unfounded statement by plaintiff.

Dated this 6th day of October, 1998.

(signed) Michael D. Linick
Michael D. Linick aka Strider
Defendant/Pro per:

11/ This also presents problems with proof as well. If the individual who starts a fire cannot be identified, how does one tell whether it is a Rainbow Family participant or a stranger for purposes of collecting the costs of fire suppression from the permit holder. If a "stranger" shows up and eats a meal at the main dinner circle, is the "stranger" no longer a "stranger?" Or if a "stranger" shows up at a gathering and introduces himself to a "participant", is that "stranger" no longer a "stranger?"

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J.D.Obenberger & Associates 
Attorneys & Counselors-at-Law 
Three First National Plaza, Suite 3700 
Chicago, IL 60602 
(312) 558-6420 
Attorney for Plaintiffs Black, Newbre,
Johnson. and Bernstein

1216 Lincoln Street Eugene, 
OR 97401 (541) 485-2471 
Local Counsel for Plaintiffs Black, Newbre,
Johnson, and Bernstein


JOHNSON, and SUSAN BERNSTEIN,             CIVIL NO. 97-1798-AA

                Plaintiffs,               CERTAIN PLAINTIFF'S
                                          MEMORANDUM OF LAW
         v.                               IN OPPOSITION TO
                                          DEFENDANTS' MOTION TO
RUSSEL ARTHUR, et. al.,                   DISMISS




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"blanket" group upon any set of more than 74 individuals using National Forest land for a
common purpose let it to run seriously afoul of settled constitutional requirements.

There is little point in closely fettering administrative discretion in processing an
application for advance official permission for expression or religious worship if the issuing
official retains the unbridled discretion to place whatever restrictions, conditions, or burdens he or she chooses into the permit itself. In the ordinary case, where a parade, meeting, or similar permit merely authorizes the requested expression or worship at a particular time and place, specifies

undoes these apparent guarantee' by providing that, even if an administrator affirmatively grants an authorization within the allotted period, he or she may later revoke it for any reason which would have permitted denial in the first place. 36 CFR §§ 251.54(f)(5),), 251.60(a)(1)(i). The constitutional prior restraint requirements are not designed to promote administrative gamesmanship. There is simply no point to a requirement that an official grant an authorization within 45 hours if he or she can then spend the following days or weeks searching for ~ reason -which could not be found within the allotted time to deny an authorization. Indeed, revocation of an already issued authorization would pose additional very substantial logistical, safety, and other issues in the context of the gatherings which the Plaintiffs attend.

In a similar vein, the Government recognizes the constitutional requirement that any decision of its administrators be subject to prompt judicial review. It has thus expressly provided that a denial of an application for a special use authorization for a noncommercial group use is a final administrative action, subject to Judicial review - if the applicant takes the Government to court. But that provision falls short of the clear constitutional requirement that regulation provide, expressly or by "authoritative judicial construction that the [licensor] will, within a specified brief period, either issue a license or go to court to restrain" the planned expression or religious exercise. Freedman v. State of Maryland, 380 U.S. 51, 58-59 (1965)(emphasis added). The requirement that the Government bear the burden of initiating judicial review of any adverse administrative action is an important one, see Riley v. National Federation of the Blind, 487 U.S. 781, 802 (1988), because it ensures that one wishing to speak or worship will not simply be discouraged by an improper administrative denial and simply take his or her expression or worship elsewhere or try another time Freedman at 59. As the complaint alleges, this result would deprive many of the benefits of a gathering which would have otherwise Occurred at a time and place making it possible for them to attend. Complaint Para. 16. Although there are circumstances under which the First Amendment does not require the licensor to bear the burden of initiating court action, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229 (1990), this is not one of them. Absent the challenged regulations, the gatherings of the type winch the Plaintiffs attend occur several times and in several National Forests each year. Complaint para. 16a 6 For this reason, the dangers which led the Supreme Court to articulate this requirement are fully present here.


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instance, that the government has successfully regulated their gatherings in the past by promulgating "operating plans" which govern the appropriate details of each gathering. (Complaint paras. 19-20). These "operating plans" provide but one of many less restrictive alternate regulation, which will adequately serve all of the Government's legitimate interests while putting an end to the campaign on the part of some in the Forest Service directed at driving the Plaintiffs and their fellow gathers out of the National Forests.


For all of the foregoing reasons, this Court should deny the Government's motion to
dismiss the Second Amended Complaint and should permit this case to proceed through discovery
end, if necessary, trial.

Respectfully submitted,

by 7~/~6 !~ `. ,/~ t_' of----' `~-r>=-
Reed Lee, Esq. /

and: (./f~ 1~-- ~~ 4~-)'~7,
Marianne Dugan, Esq




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