--- F.Supp. ----
(Cite as: 1997 WL 797098 (W.D.N.C.))
UNITED STATES of America, Appellee,
John E. JOHNSON, III, William V. LeTempt, Jeffrey O. Pike, Daniel
No. Crim. 1:96CR98.
United States District Court, W.D. North Carolina.
Dec. 11, 1997.
Mark T. Calloway, U.S. Attorney, Thomas R. Ascik, Asst. U.S. Attorney,
Asheville, NC, for plaintiff.
Rule 58(g) of the Federal Rules of Criminal Procedure grants
this Court jurisdiction to hear this appeal.
Sean P. Devereux, Pitts, Hay, Hugenschmidt & Devereux, P.A.,
Asheville, NC, for defendant.
MEMORANDUM AND ORDER
*1 THIS MATTER is before the Court on a timely appeal from the
final order of conviction and sentence of the Appellants by the
II. STANDARD OF REVIEW
The Court reviews an appeal from a conviction by the Magistrate
Judge using the same standards as those applied to district court
judgments by courts of appeals. Fed.R.Crim.P. 58(g)(2)(D). Accordingly,
the construction of federal regulations is given de novo review,
United States v. Boynton, 63 F.3d 337, 342 (4th Cir.1995),
as are any constitutional challenges to the judgment of conviction.
United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.1989);
United States v. Perez-Torres, 15 F.3d 403, 406 (5th Cir.),
cert. denied, 513 U.S. 840, 115 S.Ct. 125, 130 L.Ed.2d 69 (1994).
III. FACTUAL AND PROCEDURAL HISTORY
Appellants Johnson, LeTempt, Pike and Gallagher are members
of the "Rainbow Family" ("Family"), a loosely-structured
group of individuals that makes regular use of national forests
in North Carolina for gatherings, especially during the summer
solstice. A special-use authorization permit must be obtained
for a non-commercial group activity on national forest lands "that
involves a group of 75 or more people, either as participants
or spectators." 36 C.F.R. §§ 251.50, 251.51, 261.10(k).
Evidence at trial showed that members of the Family met at
Puncheon Camp, a site within the Pisgah National Forest in Madison
County, North Carolina, from June 14 to June 18, 1996. Two of
the Defendants, LeTempt and Pike, were timely informed of the
necessity of obtaining a special-use permit if the gathering reached
75 people. On the evening of June 17, there ensued an hour-long
discussion between Forest Service officers and the Defendants,
during which the officers informed the group that their numbers
at that point exceeded the 74 person limit. The Defendants refused
to sign a permit application for varying reasons and were cited
by the officers under 36 C.F.R. s 261.10(k), which prohibits "use
or occupancy of National Forest System land or facilities without
special-use authorization when such authorization is required."
Any person engaged in a "special use" of National Forest
System lands must apply for and obtain a special use authorization
(permit) from an authorized Forest Service Officer. 36 C.F.R.
s 251.50(a). This section defines special uses to be any uses
other than timber disposal, mineral extraction and livestock grazing.
Section 251.50(c) exempts from the permitting requirement noncommercial
recreational uses, except when such use meets the definition of
non-commercial group-use in s 251.51. Group-use is defined in
that section as "an activity conducted on National Forest
System lands that involves a group of 75 or more people, either
as participants or spectators."
At trial before the Magistrate Judge, Defendants were found
guilty of violating 36 C.F.R. s 261.10(k), each was assessed $10
and fined $50. From the judgments entered, Defendants appeal.
*2 First, Appellants claim that their convictions should be
reversed on grounds that the statute under which they were convicted,
36 C.F.R. s 261.10(k), requires proof of mens rea for each element
of the offenses, in this case that each Family member was aware
that the numbers of their group exceeded the 74 person limit.
While the Supreme Court has held that intent must be proved for
every element of a federal crime derived from the common law,
whether or not Congress has expressly included a mens rea element,
United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301,
66 L.Ed. 604 (1922), the same does not hold true for every regulatory
or "public welfare" offense that is purely statutory.
Id. Many of these offenses are not in the nature of positive aggressions
or invasions, with which the common law so often dealt, but are
in the nature of neglect where the law requires care, or inaction
where it imposes a duty. Many violations of such regulations result
in no direct or immediate injury to person or property but merely
create the danger or probability of it which the law seeks to
minimize ... [t]he accused, if he does not will the violation,
usually is in a position to prevent it with no more care than
society might reasonably expect ... Also, penalties commonly are
relatively small, and conviction does not do grave damage to an
offender's reputation. Morissette v. United States, 342
U.S. 246, 255-56, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
To determine whether an intent requirement may be inferred
for this regulatory infraction, a reviewing court must look first
to the language of the statute. Connecticut Nat'l Bank v. Germain,
503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). There is
no explicit reference to a scienter requirement for any element
of the offense described in 36 C.F.R. §§ 251.50, 251.51,
and 261.10(k). As to the public welfare or regulatory purpose
of the statute, there can be no doubt that regulations of this
sort aid the Forest Service in its role of protecting lands under
its stewardship and promoting public access, while controlling
the potentially deleterious effects that unregulated group- use
may have on public resources and health. Further, other courts
have declined to impose a scienter requirement when reviewing
convictions based upon similar Forest Service regulations. United
States v. Doremus, 888 F.2d 630, 634 (9th Cir.1989), cert.
denied, 498 U.S. 1046 (1991) (holding that in the commercial mining
context, no knowledge requirement must be met in order to convict
parties of mining without the appropriate permits).
In United States v. Kent, 945 F.2d 1441 (9th Cir.1991),
a Native American defendant argued that 26 C.F.R. s 261.10(b),
which prohibits the residential use of National Forest land without
a permit, requires proof that the defendant was aware that he
was occupying national forest land. The Ninth Circuit held that
the statute did not contain a mens rea element, citing its holding
in United States v. Wilson, 438 F.2d 525 (9th Cir.1971),
that it was not necessary to prove a mental element in order to
successfully prosecute a violation of 26 C.F.R. s 261.6(a), which
prohibits logging without a special use permit. The Ninth Circuit
reasoned that, *3 [t]here is reason to believe that the omission
of mens rea [by congress] was intentional. The necessity of proving
in each instance that the trespasser knew that he had crossed
the often poorly marked boundaries of a national forest might
make the regulatory scheme excessively difficult to enforce. Kent,
945 F.2d at 1446 (citing Wilson, 438 F.2d at 525).
The same reasoning obtains in the instant case, where proving
that a defendant was aware that 75 or more people were present
in his group would be an exceedingly onerous burden on the prosecution,
and would in large part negate the regulatory purpose of the statute.
As in Kent, it is clear that the omission of a mens rea requirement
in 36 C.F.R. §§ 251.50, 251.51, and 261.10(k) reflects
an intent to make this type of violation a strict liability offense.
This is further confirmed by the minor penalties imposed for violating
36 C.F.R. s 261.10(k), which can in no way be construed to do
"grave damage to an offender's reputation." Morissette,
342 U.S. at 256.
The trial record in this case reflects the protracted efforts
of the Forest Service officers to obtain regulatory compliance
before citing the Appellants. Both testimony and videotaped evidence
reveal that the officers informed Appellants that their numbers
had surpassed the statutory limit, and required them to apply
for a non-commercial group-use permit. The officers produced a
copy of such an application, but all four Appellants, offering
different reasons, refused to sign.
Appellants further claim that their prosecution under the
Forest Service's group-use permitting requirement violates their
First Amendment rights of free speech. This Court agrees with
the findings of other district courts that the "expressive"
nature of Family gatherings brings it under the purview of First
Amendment protections of speech and association. United States
v. Rainbow Family (Rainbow I), 695 F.Supp. 294,308
(E.D.Tex.1988). "Regulation of speech activity on governmental
property that has been traditionally open to the public for expressive
activity, such as public streets and parks, is examined under
strict scrutiny." United States v. Kokinda, 497 U.S.
720, 727, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (citing Perry
Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)).
The Supreme Court addressed a similar factual situation in Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 298,
104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), in which it held that the
Park Service's regulation barring overnight camping in National
Memorial-core parks was a constitutionally valid time, place or
manner restriction. Clark also provides a structural framework
for the analysis of the constitutionality of the Forest Service
regulation in this case: Expression, whether oral or written or
symbolized by conduct, is subject to reasonable time, place, or
manner restrictions. We have often noted that restrictions of
this kind are valid provided  that they are justified without
reference to the content of the regulated speech,  that they
are narrowly tailored to serve a significant governmental interest,
and  that they leave open ample alternative channels for communication
of the information. *4 Id., at 293. We address these issues
In Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct.
2746, 105 L.Ed.2d 661 (1989), the Supreme Court found that a municipal
ordinance requiring performers using the city's bandshell to use
a sound system and operator provided by the city was a content
neutral restriction intended to protect citizens living nearby.
The principle inquiry in determining content neutrality ... in
time, place or manner cases in particular, is whether the government
has adopted a regulation of speech because of disagreement with
the message it conveys. The government's purpose is the controlling
consideration. A regulation that serves purposes unrelated to
the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others.
Id., at 791 (citations omitted).
Section 261.1a of 36 Code of Federal Regulations, provides
an statement of purpose for all the s 261 prohibitions: [A] District
Ranger ... may issue special-use authorizations ... authorizing
the use of a road, trail, area, river, lake, or other part of
the National Forest System ... In authorizing such uses, the Forest
Officer may place such conditions on the authorization as that
officer considers necessary for the protection or administration
of the National Forest System, or for the promotion of public
health, safety, or welfare. Id. (emphasis added). As noted above,
the combined effect of 36 C.F.R. §§ 251.50, 251.51
and 261.10 is to require a special use authorization permit for
non-commercial group-use of national forest system lands where
the group consists of 75 or more persons, and to subject unauthorized
group-use to criminal penalties. The current regulations governing
permitting of non-commercial group use do not facially discriminate
between expressive and other types of activities, resulting in
an "invidious classification" as was found unconstitutional
in Rainbow I, 695 F.Supp. at 309. Since the regulations here do
not distinguish between gatherings for expressive and other purposes,
but merely require all non-commercial groups in excess of 74 persons
to apply for special use authorization, they are neutral as to
the content of the Family's expressive activity--even if they
have the incidental effect of requiring a large percentage of
Family gatherings to obtain permits because their numbers regularly
exceed 74 persons.
In promulgating these regulations, Congress and the Secretary
of Agriculture have decided that non-commercial group use should
be regulated by the permitting process, through which conditions
may be imposed to protect the areas used by large groups and to
promote public health, safety, and welfare. Use of North Carolina
national forest lands by the Family in the past has resulted in
some temporary deterioration of the gathering site. [FN1] United
States v. Rainbow Family (Rainbow II), 695 F.Supp.
314, 328 (E.D.Tex., 1988). Since improper or inadequate waste
disposal practices can have potentially serious adverse effects
on public health, id., at 329, and large group use can
result in inadequate trash removal and restoration of the sites
used, id., at 328, it cannot seriously be questioned that
the non- commercial group-use regulations serve a significant
governmental objective. Further, the permitting process required
by the regulations does not function as a bar to large, non-commercial
group use, but merely requires such groups to obtain special use
authorization, subject to conditions imposed by the Forest Service.
If smaller groups were required to apply for such authorization,
the regulation could eventually cast too-wide a net to pass constitutional
muster. However, this Court concludes that the registration requirement
of recreational groups consisting of 75 or more people is narrowly
tailored to the significant governmental purpose of protecting
lands in the national forest system and promoting public health,
safety and welfare.
*5 Finally, the Court addresses the availability of "ample
alternative channels" for the Family's expressive activities.
Clark, 468 U.S. at 293. It is clear that members of the
Family may meet in smaller groups if they wish to make use of
National Forest lands and to avoid triggering the permitting requirement,
or they may meet on lands outside the National Forest system.
It is only the "speech" involved in large group use
that is incidentally burdened by the time, place or manner restrictions
of the permitting process, and this leads the Court to conclude
that "ample alternative channels" for the Rainbow's
expressive activity have been left open by the statute and regulations
in question in this case.
Accordingly, this Court finds that the regulations governing
group-use of National Forest lands, 36 C.F.R. §§ 251.50,
251.51, 261.10(k), do not unconstitutionally burden the Rainbow
Family's First Amendment rights of freedom of expression.
IT IS, THEREFORE, ORDERED that the orders of convictions and
sentences of the Appellants are hereby AFFIRMED, this appeal is
hereby DISMISSED, and Appellants are ordered to comply forthwith
with the Judgment heretofore entered by the Magistrate Judge.
FN1. "Regarding the environment, the evidence in the
record does reveal that--at the North Carolina gathering at least--garbage
was left at the gathering site, automobiles were abandoned, pit
latrines were not properly closed, and rehabilitation work on
the site was not done effectively." Rainbow II, 695 F.Supp.
at 328 (resulting in a limited permanent injunction ordering the
Family to comply with reasonable requests to clean and restore
their gathering sites.)