North Carolina Rainbow Case
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
UNIITED STATES OF AMERICA
vs. DOCKET NO. F1469799
JOHN E. JOHNSON, III
UNITED STATES OF AMERICA
vs. DOCKET NO. F1789813
WILLIAM V. LeTEMPT
UNITED STATES OF AMERICA
vs. DOCKET NO. F1790048
JEFFERY O. PIKE
UNITED STATES OF AMERICA
vs. DOCKET NO. F1469792
MOTION TO DISMISS
COME NOW the defendants, John E. Johnson, III, William V.
LeTempt, Jeffery O. Pike and Daniel Gallagher, to move this Court
to dismiss the charge herein. In support of this motion, the
defendants respectfully contend to the Court that 36 Code of
Federal Regulations S261.10(j) on its face violates the First
Amendment of the United States Constitution and, further, that
the regulation, whether or not constitutional on its face, was
unconstitutionally enforced in this instance.
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
I. Facts 
On June 14, 1996, United States Forest Service officials
heard a "rumor" that "the Rainbows were gathering somewhere in
the district."  Based upon this rumor, the Forest Service, the
North Carolina Wildlife Resources Commission and the Madison
County Sheriff's Office began "monitoring the situation."
That same day, Forest Service Law Enforcement Officer Wilt
Stribling went to the "Bluff" area of the Pisgah National Forest
where, in a meadow known as "Puncheon Camp," he came upon a large
tent, a tarp and a handful of people who identified themselves as
members of the Rainbow Family. Stribling, who had "years of
experience in dealing with the group,"  later reported:
Stribling explained to Pike and Latempt [sie] that he
was familiar with the rainbow family, and advised them
that: the group would be responsible for damage done to
the area. At this time, Stribling advised Pike and
Latempt of the Forest Service group regulations, and
that a permit was required for a gathering of more than
75 people. Stribling also advised Pike and Latempt
that state and federal law would be consistently
enforced at the site without exception, and went over
the violations commonly associated with this type
group, including resource damage, unconfined animals,
drug use, nudity, and interfering with officers.
 No evidence has been received by the Court in this matter.
This statement of the facts, based upon the investigative notes of
the officers and various informal witness interviews, is
necessarily tentative. It is the hope of defense counsel that any
inaccuracies will be corrected by evidence presented at the
 Documentation of Rainbow Gathering, Frank Roth, Operations
Assistant, United States Forest Service, p. 1.
 Case Report," June 17, 1996, Wilt Stribling, United States
Forest Service, p. 11.
The following morning, June 15, at approximately 7 a.m.,
Stribling returned to Puncheon Camp, accompanied by Frank Roth,
an "operations assistant" with the Forest Service. The two men
found approximately a dozen parked cars and several tents. Roth
Just before dark on Saturday, June 16, four Forest Service
officers and one Madison County deputy sheriff approached the
Rainbow camp. Some, or all, of the law enforcement officers,
wearing camouflage outfits, snuck up on the campsite. At least
one officer seems to have been equipped with infra-red
binoculars, apparently for use in surreptitiously counting family
members in the area. When the officers decided that there were
75 people "assembled" in the campsite, in the woods near the
Wilt [Stribling] and I walked up the old logging road
into the wildlife field to see what impacts had
occurred and the potential for future impacts. The
roadbed had poor drainage and was heavily shaded making
it difficult for the road to dry. There were several
tents around the edge of the field and the cooking
facility is about five feet from a perennial stream.
There were several walking paths that had already been
made around the edge of the field adjacent to the
 The Forest Service has proposed timber sales which would
result in extensive logging of the Bluff area, including Puncheon
Camp. This logging certainly has "potential for future impact."
The proposed logging site is within sight of the Appalachian Trail.
Apparently, the identify of the "impacter" is of more significance
to the Forest Service than the degree of impact.
It should be noted as well that no citations were issued to
Rainbow Family members for damaging National Forest lands, even
though the Rainbow encampment continued into the following week.
The defendants will present evidence that, following the gathering,
Puncheon Camp was policed of all litter and was reseeded with
grass. The defendants contend that their gathering had no
detrimental impact on the National Forest.
campsite and in the parking area at least one hundred yards from
the campsite, the officers emerged from hiding to demand that the
family members fill out a permit application. When those present
declined to submit a group application, the officers selected
five "leaders" and charged them with assembling without a permit
in violation of 36 Code of Federal Regulations Sec. 261.10(j).II. The Issues
This Court has before it these issues:
A. Facial Invalidity
The defendants contend that the charges against them should
be dismissed, in the first instance, because the regulations
governing special use permits for the National Forest system are
unlawful, unconstitutional and without binding effect upon the
The activities in which the defendants were engaging in the
national forest in June, 1996 were clearly "expressive" in nature
and, therefore, protected by the First Amendment. United States
v. Rainbow Family, 695 F.Supp. 294, 308 (E.D. Texas, 1988).
For example, individual defendants have testified that
Rainbow Family gatherings and councils involve exchange
of views on many subjects, including political topics,
1. Whether the government can validly require the
defendants to obtain a "special use permit" before
they can hold any gathering or meeting of 75
persons or more in any National Forest;
2. Whether the Forest Service selectively enforced 36
CFR 261.10(j) in this case?
as well as educational seminars and various forms of
worship. Moreover, many of those associated with the
Rainbow Family view their very participation or
association in such events as political statements (for
example, some argue for peace and the ecology, while
others are in opposition to hierarchical, coercive
systems of government). Even the act of camping in the
National Forests may have political connotations and
qualify as protected symbolic activity. See e.g., U.S.
v. Abney, 534 F.2d 984, 985 (D.C. Cir. 1976)(per
curiam) (sleeping in Lafayette Park in protest vigil is
expressive activity); Clark v. Community for Creative
Non-Violence 468 U.S. 288, 293, 104 S.Ct. 3065, 3069,
82 L.Ed.2d 221 (1984)(assuming, but not deciding that
overnight camping in connection with demonstration is
expressive conduct "protected to some extent by the
First Amendment:). Thus, it is unquestionable that
rights of speech, worship and association, closely
guarded under the First Amendment, are operative here.
Id., 695 F. Supp. at 308.
National Forest lands are intended for recreation, to be
sure, but they are, first and foremost, public lands. Public
streets or parks are included in that category of forum where the
public expression must be tolerated to a maximal extent. E.G.
Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423
(1939)(use of public streets and parks for exchange of ideas has
"from ancient times been a part of the privileges" of
citizenship). The National Forests are traditionally open to any
user seeking to engage in appropriate recreational or other
activities, including those involving speech, worship or
association. See, e.g. Lyng v. Northwest Indian Cemetery
Protective Ass'n, 108 S.Ct. 1319, 1321-23, 99 L.Ed.2d 534
(1988)(historic use of National Forest sites for Indian religious
purposes); United States v. Beam, 686 F.2d 252, 256-57 (5th Cir.
1982)(describing various groups' use of National Forest System
lands in Texas). "Regulation of expressive activity in such a
forum must therefore be narrowly tailored as to time, place and
manner, and serve substantial governmental interests, as well as
leave open ample alternative channels of communication." Rainbow
Family, 695 F.Supp. at 309, citing Clark, supra, 486 U.S. at 293,
104 S.Ct. 3069; Perry Education Association v. Perry Local
Educators' Ass'n 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74
L.Ed.2d 794 (1983). "Any prior restraint on expressive activity
in such a context is particularly suspect." Rainbow Family, 659
F.Supp. at 309.
The prior restraint aspect of a permit or license
requirement was considered in Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162
(1969) where it was held that "a law subjecting the exercise of
First Amendment freedoms to the prior restraint of a license,
without narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional."
The regulations at issue here, Sec. 251 et seq., are nothing if
not broad, their enforcement completely within the discretion of
Forest Service officials with a demonstrated animus toward the
Rainbow Family. For example, under S251.55(h)(3), an "authorized
officer" may deny a permit application, if
"Broad prophylactic rules in the area of free expression are
suspect. Precision of regulation is the touchstone. . .."
Schaumberg v. Citizens for Better Environment, 444 U.S. 620, 637,
100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980)(quoting NAACP v. Button,
371 U.S. 415, 438, 83 S.Ct. 328, 340-41, 3 L.Ed.2d 405 (1963).
The odds of the Rainbow Family being issued a permit are
slim indeed in a ranger district which will not tolerate -- even
in an area earmarked for commercial logging -- a muddy roadbed or
a cook tent beside a stream. Further, under S251.52, any "forest
officer" may issue, grant, amend, renew, suspend, terminate, or
revoke a special use permit. These Forest Service officers,
working overtime presumably, slipped through the woods in
camouflage, in order to count Rainbows through infra-red
binoculars in the obvious hope of a confrontation. The present
regulation leaves the limits on Rainbow Family members' First
Amendment rights entirely at the whim of such officers.
Nor does the review process offer meaningful protection
against arbitrary prior restraint. Subsection 251.60(f)
"(3) The planned event or use would be of such nature
and duration that it could not reasonably be
accommodated in the particular place and time applied
for, considering such factors as damage to resources or
facilities, interference with ongoing resource program
activities, or impairment of other public uses
authorized for the area."
With breathtaking imprecision, S251.60(b) provides:
"A permit may be suspended, revoked, or terminated,
in the discretion of the authorized officer, for
reasons in the public interest."
Immediate temporary suspension of a special use
authorization, in whole or in part, may be required
when the authorized officer determines it to be
necessary to protect the public health or safety or the
environment. In any such case, the superior of the
authorized officer will, within 10 days of request of
the holder, arrange for an on-the-ground review of the
adverse conditions with the holder. Following this
review the superior will take action to affirm, modify
or cancel the temporary suspension as soon as possible.
The typical Rainbow gathering would be over by the time the
superior reviewed those conditions said to be adverse.
Certainly, this gathering would have been. The vague "as soon as
possible" language could result in the indefinite suspension of a
permit.  The unwieldiness of the "appeal" process set forth in
Sec. 251,80 et seq serves to sanction rather than avert the prior
restraint of Rainbow expression.
B. Selective Enforcement
Government officials may not enforce criminal statutes in a
selective fashion. Yick Wo v. Hopkins, 118 U.S. 356 (1886); See
also Two Guys v. McGinley, 366 U.S. 582 (1961). A defendant is
entitled to a dismissal of an indictment upon a showing that
other persons similarly situated have not been prosecuted. United
States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972); United
States v. Insco
, 495 F.2d 204 (5th Cir. 1974) United States v.
Falk, 479 F.2d 616 (7th Cir. 1973 ten bane); United States v.
Steele, 461 F.2d 1184 (9th Cir. 1972). See also Wayte v. United
States, 470 U.S. 598 (1985)(discussion of equal protection
standard and First Amendment challenge of alleged selective
 Again, in the instance of timely review, the defendants'
first amendment rights are too important to leave within the
discretion of the Forest Service. In Rainbow Family, United States
District Court Judge Justice criticized the "dilatory tactics" of
the Forest Service in waiting two years to amend its regulation
and, then, arguing in his court that an immediate need justified
the service' s failure to allow a public comment period. 695
F.Supp. at 305-206.
The regulations are specific only in their obvious attempt
to target Rainbow gatherings. Even those most critical of the
various philosophies espoused by the Rainbow Family must admit to
the durability of those philosophies: in a variety of
configurations and incarnations, the Family members have been
taking to the National Forests for 25 years. Perhaps the most
enduring tenet of the Rainbow creed is their rejection of
hierarchical forms of government. They have no leaders, no board
of directors, no executive branch whatever. The word goes out
and Family members appear in the National Forest "like mushrooms
after a spring rain." Thus, the gathering itself is an
expression of a political -- if not spiritual -- belief.
Aware from years of experience that the expression of this
belief is the hallmark of the Rainbow Family, the Forest Service
drafted 36 CFR Sec. 251.55:
The defendants have no objection to the policing of what
Officer Stribling in his report dubbed "the violations commonly
associated with this type group, including resource damage,
unconfined animals, drug use, nudity, and interfering with
officers." In fact, the CFR sets forth a specific regulation to
(h) Response to applications . . . for a group
event for the public expression of views. An authorized
officer shall grant an application for authorization
for a group event for the purpose of public
expression of views, unless the officer determines that
(5) There is no person or entity authorized to
sign a special use authorization on behalf of the group
applying for an authorization and/or there is not a
person or entity willing to accept responsibility for
the group's adherence to the terms and conditions of
combat each of these ills. There is no need for the regulation
requiring that "some person or entity" sign an application on
behalf of the assembled Rainbows.  The ability of the Forest
Service to regulate resource damage or drug use or nudity is in
no way contingent upon the Rainbow Family members electing a
representative to sign the permit application.  If Rainbow
Family members break the law, they can be arrested at that time,
just like anyone else.
Therefore, the interests to be balanced against the
defendants' First Amendment rights are not the public's right to
be protected from drug use or nudity or resource damage but the
Forest Service's professed "need" for a signature on an
The regulations as presently promulgated clearly target the
Rainbow Family. Virtually all of the 37 pages of agency
commentary to the most recent version of Secs. 251 and 261 deal with
the Rainbow Family and their 25-year-old conflict with the Forest
Service. Federal Register, August 30, 1995, 45258-45295.
It may be that the Forest Service has chosen to selectively
 The defendants expect to present evidence that many of the
assembled Rainbow Family members offered to accept personal
responsibility for any impact which they had on the National
Forest. None were willing to sign as representatives of the group.
The willingness of individuals to accept responsibility should have
allayed Forest Service fears about destruction of resources and the
other problems posed by group assembly. -10-
 In many instances over the years, the Rainbow Family has
cooperated with local Forest Service personnel to develop, in
advance of a gathering, an "operations plan," which, in setting
forth certain conditions, serves as a de facto, but unsigned,
enforce its regulation in this instance. At the hearing on this
motion, the defendants will seek to establish that, since the
promulgation of the current regulations, groups of more than 75
people have assembled on Forest Service lands not just within the
Pisgah National Forest or this ranger district but within Madison
County, at Max Patch, Mill Ridge and elsewhere, without obtaining
a special use permit and without drawing the sort of scrutiny
which the Rainbow Family has been given.
Finally, there is no support in the facts of these cases for
the Forest Service officers' choice of "leaders." The citation
of the five defendants is clearly arbitrary and capricious.
Defendant Gallagher, for example, was not even camping at the
site. He lives in the nearby town of Hot Springs and had been
present at the gathering for less than two hours, when he was
nominated as a leader by the officers and handed a citation. As
he had planned all along, he returned that night to his home in
Hot Springs. He had played no part in selecting the site or in
organizing the gathering. Another defendant, Stephen Wingeier
convinced of the futility of persuading the Forest Service
officers that he could not "lead" his fellow campers into authorizing him to sign a permit application on their behalf, packed up and returned to his home in Atlanta. When Defendant John Johnson asked the officers for their names and began taking notes of their discussion with the campers, Johnson was designated a "leader" and served with a citation. Far from being a leader, Johnson, apparently, was not even
a member of the Rainbow Family.
Under S261(10)(j), it is impossible for a citizen to govern
his own conduct so as to conform to the law. At the moment when
Gallagher sat around the campfire with 73 others, he was utterly
blameworthy. Then, with the arrival of one more person at that
campfire -- an arrival over which neither Gallagher nor the
others had any control -- Gallagher, along with Pike, Letempt,
Wingeier and Johnson, "committed a crime."
For these reasons, the defendants respectfully request this
Court to dismiss the charges against them.
Respectfully submitted this the 23rd day of October, 1996.
PITTS, HAY, HUGENSCHMIDT,
& DEVEREUX, P.A.
Attorneys for the Defendant
By: (signed )
Sean P. Devereux
P.O. Box 2868
Asheville, North Carolina 28802
Telephone: (704) 255-8085
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Motion to
Dismiss was [ ] served on the following by depositing a copy in
United States Postal Service in a properly addressed envelope
with adequate postage thereon, or [x] by leaving same at his
office with a responsible partner or employee.
This 23rd day of October, 1996.
Mr. Thomas R. Ascik
Assistant United States Attorney
100 Otis Street, Room 207
Asheville, NC 28801
Terri M. Pettis
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