IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
WILLIAM BAXTER NO. 96-29 ME
JOSEPH T. MacCRIMMON NO. 96-30 ME
(CLOSING ARGUMENTS & COURT'S ORDER)
October 22, 1997.
Proceedings held before the HONORABLE
SUSAN PARADISE BAXTER, U.S. Magistrate
Judge, in Courtroom B. U.S. Courthouse,
Erie, Pennsylvania, on Wednesday,
JOHN J. TRUCILLA, Assistant United States
Attorney, appearing on behalf of the Government
KHADIJA DIGGS, Assistant Federal Public Defender appearing
on behalf of William Baxter.
STEPHEN MISKO, Esquire, appearing on behalf of Joseph MacCrimmon.
Ronald J. Bench, RMR - Official Court Reporter
- 2 -
P R O C E E D I N G S
(Whereupon, the following excerpt of proceedings began
at 5:10 p.m., on Wednesday, October 22, 1997, in Courtroom B.)
THE COURT: Let's go back on the record and take closing
arguments. Mr. Trucilla, on behalf of the government.
MR. TRUCILLA: May it please the court. Your Honor, at issue
here is whether or not there was sufficient compliance with a
noncommercial group use permit governed by 36 C.F.R. 261.10, at
the time was (j), now it's (k). The substance of that particular
language is at issue here and it's obviously the government's
position that there was noncompliance for these reasons.
Your Honor, the statute itself is written in a way that
can be interpreted to be one of strict liability. I say that from
this perspective. Because the elements are outlined as this. That,
essentially, if you have group use, and group use is an operable
word defined by C.F.R. 251.51, activity, conduct on a National
Forest System land that involves a group of 75 or more people,
either as participants or as spectators. In this particular case
there was never an argument that this was not a commercial use.
The argument got down to group use and whether or not there was
authority by the people cited.
Your Honor, pursuant to the language of the statute, the
elements are this. That if there is a group, and we'll get to
that, on National Forest land, it was never in dispute that the
particular area of Government's Exhibit 1 demonstrated that this
was a National Forest, and the meeting or gathering, if you will,
took place on Federal Road 116 in the quarry area of Queer Creek
on the Allegheny National Forest. The testimony was corroborated
both by the government's witnesses, as well as defense witnesses.
So we have a National Forest. One element.
Were there 75 or more people at the time of the citation
on August 29, 1996. One of the defendants, in fact, Joseph MacCrimmon
demonstrated in his testimony that, yes, there were at least 75
people on that particular date as a part of this particular gathering
of which he was a member. If you don't want to use the word member,
he conceded at least as being present, whether as a participant
or spectator. Your Honor, there are head counts performed by Lenore
Crippa from the 24th through the 30th, to also include the 29th.
Also, there's a car count performed, specifically law enforcement,
cited by Officer Burd, of 131 cars in the parking area of this
meeting on that particular date, August 29th. Those factors, I
suggest to the court, pursuant to the government's argument, meet
the requisite 75 or more people.
Now, we get to group use. Group use involves any activity,
and you've heard about some of the activities that
were taking place, including on the 29th, the date of the citation.
Whether they be simply discussions among other members, having
the main circle, having a full drum circle, having council, these
activities were going on at this National Forest Rainbow meeting.
In fact, this was designated as a northeast or New England Rainbow
Now, are the Rainbows a group. Perhaps the court would
want to consider that as a particular issue. And the government
submits that there's testimony to support that, yes, they are.
Regardless of how it's described, your Honor, you can say in form
that I'm not part of a group, I refuse to take the responsibility
for the group, but in fact and in substance there was a group;
this is what I mean. They have a name, the group has a name. They're
called Rainbows, all right. They're not called trees, they're
not called walls, they're called Rainbows And, in fact, the Rainbow
name, they have a Web site. They refer to themselves as Rainbows.
In fact, it goes further than that. There are acronyms, there
are words commonly used amongst Rainbows in their culture, to
include such words as calm the center or alternative life medicine.
Scroll, the south California Rainbow of living light. The Northeast
Rainbow Family. In fact, Joseph MacCrimmon himself went into detail
about the various organisms, if you will, using that word, of
factions of Rainbow Family, to include international to include
national. to include regional. The court will recollect he even
referred to the fact that national would be mad at him if he
did sign. I'm calling upon the court's recollection. There was
references to the national gatherings, again, the regional gatherings.
There was an advertisement on the Internet of which we
showed an demonstrated in Government Exhibit 3, that not only
included the Northeast Regional Family Gathering, but also others,
including the Scroll meeting, it also listed the drum circles,
which is another unique name to the Rainbow Gathering. It also
talked about scheduling for the full moon drum circle and other
Your Honor, more specifically, in this particular meeting,
they were confined to a specific site. Also suggests a group action.
They were confined to this particular area of Queen Creek. There
was no testimony, your Honor, that they're out in South Slater
Run or in another branch, they were here and the directions given
on the Internet page with the name Bill Baxter and his phone number
and his voice gave specifically Federal Road 116 and it took the
officers right to this designated area. And this designated area
is also referenced by those in attendance at the Rainbow meeting,
including MacCrimmon and Dombrowski and was not disputed. So they
had a specific site.
The Rainbow meetings themselves have specific sites, your
Honor. There's a greeting area you come in, there's a main
circle. There's council. All right. This suggests to you, forget
what is being said, it's the substance of it that dictates. You
know, it's the old adage, your Honor, if it walks like a duck,
talks like a duck, you can call it a camel, but it's a duck. You
can call it whatever you want, whatever you feel it's convenient
to do, in this particular case it was convenient for MacCrimmon
and Baxter to say, look, we're not signing the permit, we don't
want to sign it, we are individuals, we are not part of a group.
But that flies in the face of the facts that I've just demonstrated
There was an information booth, your Honor. There were
latrines. There were northwest tribes. There were Rainbow names
given to people there, which suggests an organization, however
loose, however diametrically opposed it may want to be demonstrated
to a corporate setting, it still had structure. There were signs
indicating the meeting itself on the road. There were markings.
There was a place to go. Your Honor, this suggests that there
was in fact a group, and this group was referenced to be the Rainbow
group. And based on that, your Honor, the elements and requirements
of the C.F.R. have been established.
Let's go a step further. Now, the testimony was elicited
that involved whether or not MacCrimmon and Baxter were leaders.
The first point is this. There is nothing in that statute that
mandates that a leader or organizer be designated
for a citation. All right. Pursuant to the policy of the training
tape, which again has been emphasized and will be emphasized in
the argument, this training tape provides policy, provides a guidance
for the law enforcement personnel to follow. And, in fact, Officer
Burd testified in substance this was complied with. Okay. He recognized
he may not have called the local District Attorney's office. Or
he testified he didn't handcuff anybody or arrest anybody.
In fact, your Honor, I call upon your recollection of is
testimony that he showed deference in this particular case. In
fact, your Honor, although it wasn't necessary, he said, based
upon his observation on the 22nd, as well as the accumulated information
from those dealing with MacCrimmon and Baxter, that these were
the individuals that were identifiable as being not only part
of this group, as either a spectator or participant, but they
were leaders. And, your Honor, by the definition of participant
itself, forgetting about the leader label or organizer label,
there were factors to lead this court to conclude that they were
Let me demonstrate, first of all, the point of view of
the government as it established these two individuals as being
participants and active, first of all, in this particular gathering.
Bill Baxter. Bill Baxter went into the Warren Observer on the
22nd. He wasn't sought out, he went in voluntarily, pursuant to
Ellen Kranick, the staff writer, she
said she never met him before, she didn't know who he was,
she didn't know anything about Bill Baxter or this Rainbow meeting
until he provided her with the information. And the information
was that there was going to be a Rainbow meeting, not a tree meeting,
not a bus meeting, not a car meeting, not a building meeting,
a Rainbow meeting. Okay. And he informed her that this meeting
was going to take place on approximately August 24th and run through
September 3rd. And he designated to her the approximate number
of people he anticipated. And he referenced other matters.
But the point is, your Honor, it was Bill Baxter speaking
in a voice for what was coming, what was going to be coming about
at this gathering. He spoke on behalf of the Rainbow personnel.
He was quoted in that particular article, provided information
about the Rainbows.
All right, you go to then the Internet page, Government's
Exhibit 3. Your Honor, it lists the dates of August 24th through
September 2nd. And it references the acronym NERF. And that was
testified to by members or individuals that have testified that
they were at the gathering as the Northeast or New England Rainbow
Federation or Family. And that the summer regional was somewhere
in Pennsylvania, contact Bill Baxter. And it gave a phone number,
had a message on it, and that message was testified to by Officer
Burd as being synonymous, based on his information and his dialogue
Bill Baxter, as Bill Baxter's voice.
What also was significant is that Bill Baxter left directions.
Bill Baxter, your Honor, left directions to where the gathering
was going to be. And, again, it gets to the specific site, it
was Federal Road 116. It didn't reference, your Honor, for example,
any of the other routes that run through, 449, 250, 558, it was
very specific as to where this meeting was going to take place.
Again, the inference, your Honor, the reasonable inference that
can be drawn is he was in a position of someone who had information
about where the site was going to be and held himself out on that
Internet page as being the contact person.
Then you follow that up with an initial meeting on August
22, 1996. The testimony as demonstrated that it was MacCrimmon
who said "may I help you." And he summons the police
or the law enforcement officer with the forest personal. They
meet him, he directs them in whatever form you can recollect,
there was testimony that he said that Bill Baxter was in charge,
there was testimony that he pointed to him or there was testimony
that he said he's the one to blame. There were alternative theories,
what isn't disputed is that MacCrimmon directed the attention
of this forest personnel to Baxter. And it's consistent with the
Web site page, as well as the newspaper article, that Baxter was
in a position of a leader. All right.
Now, you take it now to Baxter and MacCrimmon
throughout the course of this particular gathering. Yes, the
law enforcement personnel, specifically forest personnel, went
and found MacCrimmon and Baxter on various occasions. I won't
go through each specific date, but at least it occurred on the
24th and went through the 29th of August, 1996. And those contacts
dealt with the subject matter of the special use permit.
Now, your Honor, I suggest to you that there isn't a mandate
that someone who's going to be cited be provided with all the
information about the regulation itself, I'm suggesting to you
it was done in this case. For due process concerns, there is no
question in this particular case and it was testified to by Joseph
MacCrimmon himself, that he had knowledge of the regulation. That
there is 75 or more people, he knew that there was a permit being
sought. Now, he didn't agree with it, in fact, he consistently
disagreed, that's why we're here. So is Bill Baxter, so are the
other members of the Rainbows.
That also suggests another point. That this group had a
consistent answer, which also suggests some form of organization.
And their patent answer was we're individuals, we are not signing
on behalf of the group. That's their canned response. Over and
over and over and over again. It was never deviated from at this
Your Honor, the testimony supports the fact that the permit
itself was reviewed, the application was reviewed with
MacCrimmon and Baxter, they had knowledge of its requirements,
they simply refused to sign it. For whatever reason, they didn't
sign it. They did not comply with the language of 261.1 (j), now
That is further evidenced in Government's Exhibit 7 and
7A. Exhibit 7 is the memo with the notation of service; an 7A
is a memo written by John Schultz, the district ranger, that references
Bill Baxter and Joseff Greenfeather, who he knows as Joseph MacCrimmon.
They discussed on several occasions the meaning regarding the
necessity of having a signed permit for group activity. It cites
the 36 C.F.R. 261.10 (j). It also cites 60 Federal Register 45274
and 45286-87, and it references what it means. It says in reference
to that cite you would be signing as an agent for group and would
not assume personal responsibility for group's actions. That tracks
the language of the statute, your Honor, that an individual doesn't
assume responsibility for the group's actions. Yet, they said
no, we're not signing. That was provided to him, repeated requests
after the 24th, the 26th, the 26th, delivery on the 28th, as acknowledged
by Joseph MacCrimmon. In fact, a response was consciously decided
upon by Joseff Greenfeather at that time, MacCrimmon, to respond
to that memo. And in that response he acknowledges the concern
for a permit, therefore, there's never a dispute regarding requirements,
it's simply we are counseled by the Rainbow Legal Liaison Council.
Again, I suggest to you that intimates another form of
structure within this group, your Honor. The Rainbow Legal Liaison
Council. The reference to the documents that our family has the
matter on their minds, he speaks collectively, he speaks very
much in the tone of we, not I. The only I referenced here is to
his acknowledgment of receiving the memo and the concerns of the
ongoing events and the regulation. Then, thereafter, it's we and
our, and that I suggest to your Honor, also, intimates a form
or a membership in this particular group as either a participant
No dispute again on the 29th, the operable date here when
Burd served the citations that he had information and he was satisfied
within his discretion that the requirements had been met. Seventy-five
or more people, participants or spectators, on the National Forest.
And he made a decision to cite these two, and he noted in his
probable section, if your Honor has the citation --that the defendant
Joseph MacCrimmon and Baxter did present themselves as a leader
and organizer of the group. Did he have to, no. But he did. Your
Honor, it doesn't invalidate it, in fact, it was the point of
reference for him in identifying these two individuals.
And he testified, Burd testified that he cited these two
individuals and not others for the following reasons. He was concerned
with not causing a disturbance or creating hostility. That evidenced
by the fact he had asked Lenore
Crippa to ask these two individuals out of the main gathering
site. He was aware, as even corroborated by Mr. MacCrimmon, that
there were members in the group that just didn't like the presence
of officers carrying guns. He was sensitive to that, in fact,
he never went into the gathering site. He chose to do it this
way to cause the least amount of hostility and disturbance. In
the least restrictive way. He could have sought a temporary restraining
order on the civil end, your Honor, he could have summoned the
state police, went in and executed massive arrests, he chose to
pursue it this way. And call upon his discretion, of which he
is entitled to as a law enforcement officer.
He cited these two because of continued contact and his
satisfaction that they were apprised of the requirements necessary
for the permit. Throughout the continuing course, correlation
and dialogue he had with the personnel on site, including his
personal observations from the 22nd. And he also demonstrated,
your Honor, that based on those factors, that these particular
individuals that he had a valid reason for doing it and for exercising
Your Honor, as far as you've heard intimations from members
of the Rainbow, to include Mr. Dombrowski, as well as MacCrimmon,
that it was their position that they weren't going to sign this
and they feel it's a Constitutional infringement on their First
Amendment right, I'm willing to entertain a
Constitutional argument at this time, I would ask some direction
from the court?
THE COURT: Why don't you hold off and see what the defendants
MR. TRUCILLA: In summation, your Honor, there is no requirement
that notice even be given about the mandates of this permit, but
they were done in this case. They were done to the satisfaction
of the personal involved, the permit was reviewed, it was provided,
in fact, it was typed out. The application was reviewed, it was
typed out, all that had to be done was a signature. Never was
there any address to these individuals that their conduct would
have been limited in any way. They were informed that there was
no fee and that none of their expression was being limited, their
activity wasn't being restricted. They expressed knowledge of
previous issues involving the permit, in fact, in North Carolina
and Texas and other Rainbow citations.
There was a point made as to whether or not Joseph MacCrimmon
himself knew he was going to be cited. I suggest to your Honor
there is nothing in the statute that says Mr. MacCrimmon has to
be told, nor does Mr. Baxter have to be told if they don't comply,
they're going to be cited, your Honor, they knew it. They knew
what happened in North Carolina, they knew the consequences that
it would be illegal to continue if the permit wasn't obtained.
They knew it. The logical reason
and inference, based not only on their previous knowledge,
but their discussions, they arguably were talking about this particular
regulation with personnel. That they were understanding of the
requirements and that noncompliance would result in citation.
Whether it was them or anyone else.
Which leads me to my next point, anyone could have been
cited, the choice was made to cite those two based upon their
correspondence with law enforcement personnel, as well as National
Forest personnel, that there was a basis to do that, Burd testified
to that. Your Honor, the mandates of this particular regulation
have been met. And I suggested to you at the opening it was strict
liability statute, well, we've also demonstrated in this particular
case that the -- willfulness be demonstrated because notice was
given. Notice and opportunity were given to Baxter and MacCrimmon
in the form of the permit itself and discussions about the regulation
requirements. The acknowledge that they were aware of the requirements,
but they voluntarily said we're not complying. You know, they
never said there's not 75 people, they never said we're on private
property, we're not on National Forest land, no, they said we're
not signing and we're an individual, we're not part of a group
we're not a spectator or participant. They used their canned phrase,
they chose not to comply. They had an opportunity to comply, they
were put on notice that went beyond the mandates the regulation.
So every possible deference was given to Baxter
and MacCrimmon to comply, they simply chose not to, that is
a violation and that is why we're here.
THE COURT: Thank you, Mr. Trucilla. Mr. Misko.
MR. MISKO: Thank you, your Honor. May it please the court,
Mr. Trucilla. Your Honor, I would agree with Mr. Trucilla's interpretation
of the C.F.R., however, it's the government that introduced the
concept of leadership through the implementation of the video.
And the court has had the opportunity to review the video where
it painstakingly goes step by step through the process of what
is required when there's noncompliance of noncommercial group
use permits. In fact, there were several dignitaries for the U.S
Forest Service who appeared on this video. And this video was
specific, it addressed its concerns to noncompliance of noncommercial
group use. And during the text of that video it talked about leaders,
it talked about stand back and observe the leadership, it's east
to pick out a leader, and then going forward at that point.
Now, we've had some issue to the C.F.R. itself, we know
that the C.F.R. is the rule of law in that regard. However, when
the C.F.R. is mute as to what you're supposed to do when you don't
have an individual authorized agent who wants to sign the permit,
that's when the video comes in and everything concerning from
the United States Forest Service agrees with that. That's our
guidance, that's what we use. Mr Schultz says that's the policy,
we use the video. Well, it's
convenient when the government wants to use a video, it's also
convenient when they don't comply with the criteria of the video
to go back to the C.F.R. and say leadership is not required, the
C.F.R. just says you have to be a participant.
Unfortunately, your Honor, that's not what the words say
on the citation. The words say Joseph MacCrimmon did act and present
himself as a leader and organizer of a group of more than 75 persons
and, unfortunately, they make this conclusion after a 10 to 15
minute observation of Mr. MacCrimmon and Mr. Baxter at the parking
lot. In fact, at a time where I don't believe it's been stated
otherwise, there weren't 75 people or more, there were less than
Which leads us to Officer Burd's contact with Mr. MacCrimmon.
Yes, he contacted Mr. MacCrimmon on the 22nd when there was less
than 75 people. The next time he contacted Mr. MacCrimmon was
to issue him a citation. At no time did he advise Mr. MacCrimmon
that he would be issued a notice of violation if he did not sign
the permit or application. In fact, it's very unclear if anybody
asked Mr. MacCrimmon or Mr. Baxter if they would be personally
cited if they didn't sign it. Mr. MacCrimmon testified in his
recollection no one said I would be cited, I didn't think I had
to because I was just here like everybody else. I did what I was
supposed to do, I took it to council process.
In that regard, your Honor, these two individuals
were singled out within the first 10 to 15 minutes. Mr. MacCrimmon
is a nice guy, he's a cooperative guy, you heard his testimony,
the reason he came forward is because there was somebody who had
a short fuse and he figured I can save the Forest Service personnel
from any embarrassment or entanglement with this person if I come
forward and ask them what they want. At that point he was designated
a leader from then on. You heard the testimony, they sought him
out every time he was down at the camp, he had a bad hip, he was
there, he wasn't going back. He was there, they sought him out.
They easily could have sought somebody else out, there
were hundreds of people, according to their testimony, that were
there. Did they go to each and every one of the people, would
you sign this, would you sign this, would you sign this, that
would have satisfied the Forest Service personnel if those people
would have signed it. But they didn't ask anybody else, they restricted
their conversation to Mr. Baxter and Mr. MacCrimmon. And they
told him what they had to do, take it council. In fact, they advised
Mr. Schultz to go to, they asked Mr. Schultz to go to council.
Mr. Schultz never went to council, for whatever reason, personal
or professional, I don't know, he didn't explain it, he didn't
go to council. Maybe it would have been resolved at council, but
this Schultz did not accept the invitation, he didn't go to council.
Mr. MacCrimmon relayed this to him. To force that memo down his
he was personally responsible because he responded to a memo,
because he was a cooperative individual, is wrong. In fact, the
memo further supports the fact that it wasn't his decision. Take
it under consideration by our council process, this matter is
on their mind in our council's.
Again, relayed the fact to him it wasn't his decision,
I will have no leadership role, I have no organization role, I
have no authority role, I run away from authority, it's council's
The thing that really troubles me, your Honor, is Officer
Burd seems to rely on everybody else and not his own investigation
and observations. And, essentially, and I don't think that the
United States Attorney's office will disagree with me when I say
that this permit does not kick in until it's established that
there are more than 75 people. When he had the initial contact,
there were less than 75 people, it was incumbent upon Officer
Burd to make sure, and this is based upor the content of the video,
that he gave every opportunity to Mr. MacCrimmon to explain it,
give it to him, give him a copy of the rule and sign it, he never
did. He never did it. He never gave a copy of the rule to him,
he never gave a copy of the permit to him. The testimony was when
it was established there was more than 75 people, he then shows
up and issues a citation to Mr. MacCrimmon. He didn't follow the
content of the video. He did not do a thorough investigation.
He did no observation, he
never went into the campsite. He counted some cars and figured
there was an average of three people per car. He never went in
and observed what Mr. MacCrimmon was doing at the campsite. He
never observed what Mr. Baxter was doing at the campsite, he had
no idea what these people were doing. His assessment was based
on August 22nd when there were less than 75 people, when these
two gentlemen were courteous enough to come forward and talk to
him. I have a real problem with that because he did not do a thorough
investigation. Had he done a thorough investigation, we may have
had a different result. If in fact there were other people that
came on August 29th, came to the officer on August 29th and asked
to be cited, he said I didn't really know what their role or function
was or something to that effect, I'll rely on the court's memory
in that regard.
However, the government maintains you only have to be a
participant, he could have cited but chose not to, much again,
because he's relying on their leadership, organization role, that
is what we fall back on. I maintain that the government has established
a higher standard by doing that. By relying on the contents of
this video, by introducing this video as an exhibit, by saying
it's policy to accept this video and by using the terms of organizers
and leaders, they have now taken it a step higher and provided
a higher standard in order to cite somebody for this violation.
In addition, your Honor, these people are at a
disadvantage, they don't have this C.F.R. to look at, well,
we had 75 or more people, we got to get a special use permit and
so on and so forth. They don't have the same ability to go in
and see this training video that the law enforcement people are
exposed to. If they had an opportunity, if there had been some
type of public notice as to this video, maybe this would change
the circumstances in that regard, but there wasn't. Because the
C.F.R. is vague, it doesn't address this issue, that's why we
have to rely on the video itself.
There has been absolutely no evidence at all that these
individuals were organizers or leaders of this event or any event.
Mr. Trucilla talks about the Rainbow group, he keeps talking about
the Rainbow group. And I would maintain, your Honor, that there's
no difference between the term of Rainbow and Christian. We have
these broad terms and if you want to go to church and pray, you
can go to church and pray. If you want to go to these gatherings,
you can go to these gatherings. The way that people have notice
of gatherings is by going to other gatherings, it's all word of
mouth. There is nothing that forces you to go to gatherings, nothing
that forces you to go to the council process, no internal structure.
There are just a bunch of people that show up who do what they
want to do, who want to help each other.
That gets us into the Constitutional issues of right to
freely assemble, right to express your view and religious
freedom. Mr. MacCrimmon and Mr. Baxter feel that they don't
have to seek a permit to go and be able to express their religious
beliefs or speak on whatever topics they want to speak to or assemble
with other people they want to assemble with. There's no difference
than if 100 people, strangers walked into the park and Forest
Service personnel comes up to them and goes this is a group, there
are 75 people, you got to get yourself a permit. Mr. MacCrimmon
said that he had no idea who was going to show up at these gatherings.
These people show up and, of course, we have this gap filler of
a video, we got designated leader, go to people like these two,
we select them, we cite them, we say from now on you guys better
sign these applications, you better sign these permits. Because
if you don't, we're going to cite you, we're going to arrest you
if you don't disperse, we can do that if we want to. Mr. MacCrimmon
objects, Mr. Baxter objects that they have to go through the process,
they have gone on public lands of the United States and have to
seek a permit to be able to express their religious views, the
right to assemble and do anything they want to do, it's not proper.
This statute is not only vague, this regulation is not
only vague, but it doesn't even pertain, it pertains to group
uses, it doesn't pertain to people who just want to show up, assemble,
gather and talk about it. Get in a circle, eat and talk about
views. It doesn't pertain to them, your Honor.
And it's just an arbitrary, capricious, unilateral actions
by the United States Forest Service to --
MR. TRUCILLA: Your Honor, I'm going to object at this time
because you cut me off from making my Constitutional arguments.
THE COURT: Let's see what the defense says, then I'll let
you talk about it.
MR. MISKO: If I could wrapup by saying that the actions
were arbitrary and capricious because the regulation did not even
pertain to these people and because there was no evidence these
people were in any way, shape or form leaders or organizers of
this event. It was a subjective assessment. And if the court remembers
the representative for the Forest Service when he spoke about
leadership as it pertains to Mr. Baxter and Mr. MacCrimmon, said
he could have been wrong. I'd ask the court to find both of the
clients not guilty of this offense.
THE COURT: Ms. Diggs.
MS. DIGGS: May it please the court. I believe that I can
be brief in an ongoing effort to incorporate the arguments that
Mr. Misko has made. So the matters that I wish to add to Mr. Misko's
closing is one that is unique to Bill Baxter's situation here,
is that the government has provided no proof that Bill Baxter
has responsibility for the Internet information which has been
introduced, I believe, through Government's Exhibit 3. The fact
that a name and a phone number appear with
information to contact this person for directions does not
create a level of responsibility for the information being there
beyond being attributable to that person. There hasn't even been
any information presented that Bill Baxter in fact caused that
information to be on the Internet.
With regard to the Constitutional issues, what I wish to
add to Mr. Misko's closing is that a particularly damaging aspect
in this case is that we are dealing with the First Amendment privileges
of freedom of assembly, speech, religion or spirituality, and
under those circumstances the regulation is required to be narrow
and of a less restrictive manner. That definitely is inconsistent
with the testimony that was presented here about how that regulation
is enforced and the extreme level of discretion or opportunities
to waive aspects of that regulation in the enforcement of it.
That apparently are just sort of available at the forestry and
law enforcement personnel's discretion.
With regard to that ability to waive aspects of the regulation,
the ultimate goal here was that the integrity of the National
Forest land be maintained. And the testimony was consistent that
that space was maintained. And, in fact, there was concern that
Rainbows would leave the space cleaner, neater and nicer than
it had been prior to their presence there. They may be inclined
to pick up things that some people would consider trash, the forestry
may consider artifacts. It was
clear in the testimony that the exhibit presented as 6A, I
believe, the internal operating site plan was something that this
gathering had in fact adhered to.
So if that was really what the goal of the forestry was
and if that's what their presence and their concern was, they
were concerned about their health, the safety and the integrity
of the land, then why did it even get to the point of issuing
citations of repeatedly harassing or haranguing the particular
individuals to participate in a process where really that process
is merely a reflection of the governments effort to force a conventional
organizational process and structure where people have clearly
indicated and spoken on the fact that that doesn't exist in this
So the government has represented that Mr. Baxter and Mr.
MacCrimmon took advantage of this situation to be defiant and
to refuse to participate in the system and to make their point
by getting to court and fighting this. When, in fact, the government
took advantage of this situation to say, ha-ha, we can pass out
these two test citations and see what happens. The government's
own testimony was, no, we're not limited in the number of citations
we can pass out. But they chose for their convenience to identify
two people and cite them. And then they wanted to be presented
as though we have the authority to cite everybody there. But we
were being nice and so we didn't. No, you have the opportunity
as the government to see if you can
make this regulation effect Rainbow gatherings and that's why
we're here. We're not here because the government is concerned
about maintaining the integrity of the National Public land. Because
it was clear that that was done.
THE COURT: Thank you, Ms. Diggs.
MR. TRUCILLA: Rebuttal, your Honor?
THE COURT: Yes, Mr. Trucilla, you may, if there's anything
we didn't get into the details on in the first argument you can
respond to that.
MR. TRUCILLA: If I may have just one moment to assemble
my notes, your Honor. May it please the court. We start by first
going through the closing of Mr. Misko. And the reference to the
tape or Government's Exhibit 2. A tape, again, I'll emphasize
is a brief statement, a tape policy, it is not the law. And, again,
Burd's testimony that he substantially complied with it.
And which gets me to my next critical point, which is this.
That it was attacked by defense counsel that the government is
at fault for identifying leaders or organizers. Your Honor, under
the mandates of the statute, by its definition, we can cite as
a government any particular participant or spectator in this 75
or more people group on National Forest land. Your Honor, if you're
singled out as a leader or organizer, you certainly meet the definition
of participant or spectator. It's encompassed within that concept
of leader or organizer. Wasn't merely the subjective interpretation
of Burd, it was subjective interpretation based on objective criteria.
Objective criteria were not only the newspaper article where Baxter
was quoted, it was the Web site page where it was advertised.
Baxter's legal knowledge of the permit requirement and its elements.
It was MacCrimmon's coming forward and saying may I help. It was
MacCrimmon's access to his legal file and his demonstration of
his legal requirements of the particular aspects of this noncommercial
group use. It was MacCrimmon's response to Schultz memo. These
were the objective criteria Burd could go on. He was in contact
with officers that provided him that information and he had an
objective basis to determine that at the very least in his interpretation
they were leaders or organizers. But at the very least they met
the statute because they were spectators or participants. It's
encompassed within that concept, your Honor. And he testified,
yes, he could have cited others and I submit he took the least
restrictive way of enforcement based on his testimony that he
said he wanted them to come out. He didn't summon the state troopers
or the National Guard or make this civil disturbance of any kind
and that logistically he only cited the two based on those reasons.
And safety of others, that was within his discretion. So, yes,
he certainly could have cited others. And he didn't.
And for legal argument, your Honor, I refer to you to
the North Carolina case. And the particular caption of that
case, your Honor, Johnson is the lead defendant, the caption bears
U.S. v. Johnson, et al. Your Honor, in that case, June, 1996,
agents of the United States Forest Service observed a gathering
in a camp area in the National Forest, they counted 79 persons
and on that same date they cited these four. And in that particular
case, and that was upheld by the magistrate judge, your Honor.
In this particular case they identified MacCrimmon and
Baxter on the two. The 75 person count has not been disputed,
that on the 24th Burd testified he could have cited, he could
have issued citations on the 24th. He waited to the 25th, the
26th, the 27th, the 28th and cited on the 29th.
Your Honor, I submit to you that that is a least restrictive
approach to enforcement of the statute and gave every aspect of
the deference to the defendants. It wasn't arbitrary or capricious,
it was reasonably and rationally enforced demonstrably on the
There is a reference that the Rainbows were like Christians
or you could use the name Christian. Well, your Honor, the point
of fact is we don't have a Christian Web site. We don't have a
Christian meeting. And in contrast to this particular group, we
have Rainbow Web site, it's called a Rainbow Web site, you can
laugh but you cannot deny as you sit here today that there's not
a Rainbow Web site. It's called a
Rainbow Web site. They call their gathering the Rainbow gathering.
They don't use the name Christian. Did you ever hear it in the
testimony in the case as you sat here. The answer is no. Only
in argument by Attorney Misko did you have the similarity made
between Rainbow and using another name. I suggest to you that
based on my argument, your Honor, as they use the Rainbow name,
it suggests an organization or a group. And I used the examples,
they don't call them as a wall group or bus group, they pick Rainbow
as their name. And they have acronyms that apply to it. It was
Northeast Rainbow Family meeting. Bill Baxter identified himself
to Ellen Kranick as a member of the Rainbow group. So there was
an objective set of facts to lead the officers, in particular
Burd, to issue a citation for this group.
And this isn't a regulation written against the Rainbows.
The reasons for the regulation are clear. There was concern about
whether or not it would infringe on other activities on the National
Forest. There were concerns it would interfere with historical
or archeological areas, repair of areas, sanitation concerns,
health concerns, emergency access concerns, all those reasons
so demonstrated. Your Honor, it could be written for the Boy Scouts
of America that want to have their Grand jamboree or regional
meeting, or the Girl Scouts Crosscountry Ski Club that wants to
meet and have 75 or more people that want to go into the forest.
They've got to give
advanced language pursue to the language of organizer or archeological
dig, they could harm it.
This gets me to my Constitutional argument. Your Honor,
there is no question that in this particular case this was a Constitutionally
valid time, place or manner restriction 6 of a noncommercial group
use-is content neutral, number one.
The government regulation of expressive active is content
neutral and justified because it doesn't reference the content
of the regulated speech. Regardless of what the appellants say,
the regulation was not enacted in a way to ban any group from
engaging in, expressing activities in the National Forest. But
was designed to protect forest's resources and facilities to promote
public health and safety and allocate space between competing
uses of the National Forest Systems lands.
Your Honor, the noncommercial group use regulation is narrowly
tailored to promote the substantial government interest I've just
identified. The permit, your Honor, through the permit system,
the Forest Service is able to participate and address potential
adverse effects. Impacts on the natural resources, if you give
them notice, you tell them the Boy Scouts are coming with a thousand
members, then they can say, hey, look, don't go to the quarry
area of Federal Road 116, there's an archeological dig going on.
Or there's an endangered species that has inhabited that particular
area, we don't want you infringing unnecessarily on this area.
We're not telling you
you can't meet and take an oath of Boy Scouting, go over here
and take it.
On the National Forest Service land they're not banning
activity, your Honor. Which leads to my final point that noncommercial
group use regulation leaves open ample alternative changes for
expression. The regulation does not exclude any group from gathering
in the National Forest, your Honor, including the Rainbows. In
fact, it was emphasized throughout they wanted compliance, they
weren't going to disband this group. Burd testified that they
could have had the effect of citing everyone, would have the effect
of shutting it down, that wasn't his purpose. They weren't there
to stop this activity. Your Honor, it doesn't prevent the gathering
of participants from engaging in any expressive activity within
the boundaries of the law and that's what they did. Because of
that, your Honor, because this is a Constitutionally valid time,
place or manner of restriction, because it's a public welfare
regulation and it addresses the concerns of the government's interests
that I've identified, it is Constitutionally valid.
THE COURT: Thank you, Mr. Trucilla. Please stand and stretch
for a minute, we're going to take a five minute recess, I'm going
to stay here and collect my thoughts, then I'll issue a ruling.
(Recess from 6:00 p.m.; until 6:05 p.m.)
THE COURT: We're back on the record in this matter.
Having taken testimony for two days and hearing closing
arguments from all the parties, I am prepared now to make my ruling
on the citations, one against Joseph MacCrimmon and one against
You know it's not my job to decide whether rules and regulations
make sense. or are silly or actually are very good ones and do
the job they set out to do. I don't decide that something could
have been written better, and I don't decide whether one person's
good intentions are better than another person's good intentions.
I took an oath to apply the law. Just as Officer Burd took an
oath to enforce the law, it's the same type of thing. So I make
sure we play by the rules.
I don't consider it a game, though, at times I felt like
we all did here. And you feel that way by reading the Federal
Register, it's clear that people who wrote this regulation had
you all in mind. It's all over the Federal Register. Comments
from members of the Rainbow Family and comments in response by
the Department of Agriculture in response, specifically talking
about the Rainbow Family. So I am aware that members or persons
who are part of the Rainbow Family, there are those in the Rainbow
Family who understand how that regulation was promulgated, disagreed
with it in a commentary process, and understand that it is now
being passed and promulgated and is an enforceable law.
There is no secret that in fact I believe the
Department of Agriculture and the Forest Service was attempting
to regulate in some manner family gatherings. And I also think
that it's no secret that the Rainbow Family believes under the
Constitution that they don't have the right to do it. That's what
I'm here to do. Even at this basic citation level it is not a
game. It is not a matter of finding a loophole in a regulation
or a way around it, instead, I look to the rule and here's my
job. Was the rule enforced correctly. Was the regulation violated.
Did Mr. Baxter and Mr. MacCrimmon violate it; and if so, does
the rule violate the Constitution so as their compliance is not
required. I'll go through each of those four.
Number one. I hold today that the rule was enforced correctly
by the Forest Service.
Number two. I answer yes to the question was it violated;
yes, it was violated. And full notice of the requirement and absolute
refusal to comply with it has been shown in the evidence today.
Number three. Did the defendants violate it. Yes, Mr. Baxter
and Mr. MacCrimmon were part of the 75 people at the Allegheny
National Forest. I say that there was group use within the term
in the regulation because there were group gatherings there.
Under the term called a Rainbow Family, they had group
activities. And all the persons who were there, every one
of them who did not obtain the permit required, violated the
Now, does the rule or regulation violate their constitutional
rights to free assembly, freedom of religion, freedom of speech
so as their compliance to that is not required. I answer, no,
it does not. And my reasons are these. The Supreme Court has held
that traditional public forums -- our streets and parks -- have
been used for purposes of assembly, communicating thoughts between
citizens and discussing public questions. When a regulation that
has some restriction in it to the use of a public forum is content-neutral,
which means that it applies likewise to every one who is in a
group, like this one does, that it is supposed to be scrutinized
in an intermediate fashion, it's supposed to be scrutinized this
way. We have to decide whether the government has a substantial
interest in the regulation. We have to decide whether or not it
was narrowly tailored, then we have to make sure there is ample
alternative channels for communication. I have decided today that,
in fact, there is a substantial government interest in this regulation.
The Supreme Court has held that the government has a substantial
interest in protecting the safety and convenience of persons use
of a public forum. I hold there is a valid government objective
and a substantial one in promoting public safety and protecting
the National Forest lands.
It's not whether the enforcement of the regulation is narrowly
tailored, Ms. Diggs, it's whether the regulation was narrowly
tailored. I hold that was in fact narrowly tailored to serve a
significant government interest. The regulation was narrow. It
doesn't require payment, it simply requires that you give notice
and that you acquire a permit. So as to further these government
interests in keeping the National Forest in good shape.
I also hold that there are alternative channels for communication,
for assembly left open. You were still able to assemble, you were
still able to communicate and your free speech rights were not
violated. Your right to assemble was not violated. And in fact
your right to practice religion was not violated.
I have as a punishment for the violation, I have the right
to or I have the power, I guess, to cite you for a fine of up
to $5,000 or six months in jail as a Class B misdemeanor.
I now find that William Baxter and Joseph MacCrimmon are
guilty of violating 36 C.F.R. 261.10 (k), previously (j), and
I fine them each $50. We're adjourned, thank you.
(Whereupon, at 6:15 p.m., the proceedings were concluded.)
C E RT I F I C AT E
I, Ronald J. Bench, certify that the foregoing is a correct
transcript from the record of proceedings in the above-entitled
Ronald J. Bench Date