PLAINTIFF	             CRIMINAL NO.: 99-75 ME

	     V.	                        CRIMINAL NO.: 99-76 ME




AND NOW, comes the Defendants, GARRICK BECK, JOAN KALB, AND STEPHEN SEDLACKO, and respectfully move for a Judgment of Acquittal and submit the following Memorandum of Law in Support of the entry of Judgment of Acquittal in this matter.


The National Forest Service and the United States Department of Justice have charged three individuals with criminal violations of the Code of Federal Regulations under 36 C.F.R. 261.10(k) which states that "the following are prohibited: …[u]se or occupancy of National Forest System land or facilities without special use authorization when such authorization is required." The citations issued against these individuals further specify that the special use authorization was required pursuant to 36 C.F.R. 261.50(c)(3).

1/ The Defendants have ordered the transcript of the non-jury trial proceeding held before this Honorable Court on October 20-21, 1999. It has not been obtained as of the date of preparation of this pleading. The factual summary contained herein is therefore based upon the good faith recollection of counsel. Any error is both unintended, yet regretted.


The facts adduced at the recent hearing were, in summary, as follows.

The United States offered testimony that some time on or about the end of June 1999, and through the first week of July 1999, about 20,000 individuals gathered at the Allegheny National Forest. The Government claimed that the principal component of this "group" were people identifying themselves as members of the "Rainbow Family" although it was admitted that spectators from the nearby communities and members of the media comprised an additional component of that number.
The Government offered various exhibits obtained from the Internet and otherwise giving individuals information as to participation in that event. While the authors of these documents were not identified, the documents themselves discussed the "Rainbow Gathering of the Tribes for World Peace and Healing" as occurring between June 28 and July 10, 1999, in the Allegheny National Forest.

The documents further described those whom the Government has identified as "Rainbows" as individuals who admit of no structure for leadership or hierarchy of decision-making. They are individuals who refuse to designate leaders or spokespeople. They are persons who consider the notion of "gathering" as a verb, not as a noun. They are persons who peacefully assemble to discuss issues spiritual, political, environmental, and personal. They are persons who are intensely concerned about the care and preservation of the natural environment in which they assemble. They are individuals of fundamental peace.


The Government labored long in its presentation to characterize and define these individuals as a "group". According to the Government, this "group" violated 36 C.F.R. 261.10(k), by failing to apply for a special use authorization (permit) for the group's use of the forest.

The Forest Service officials who testified at the hearing indicated that during the June/July 1999 period, they delivered various packages of permits applications to a number of individuals they had contacted during the time period. One of these packages was admitted as Government Exhibit 6. The package, which includes copies of the regulations and an application and permit, was addressed not to any individual but to the "Rainbow Family Gathering".

The testimony about the three individuals who are the sole Defendants in this case was as follows.

Garrick Beck was identified as an individual who had met with some local community people at a fire hall some time in June 1997. He was thereafter sought out by National Forest Service personnel to discuss other aspects of the activities in the Allegheny National Forest in late June and July 1999. Beck never held himself out to be a leader, organizer, or officially designated representative of any group or any individual.

Joan Kalb was identified as an individual who spoke with National Forest Service personnel regarding an operating plan for the activities during June and July 1999. She, too, never identified herself as having any official capacity and nothing about her conduct during that time period gave reason to believe that she had any official capacity or official designation from any group to act on its behalf.


The testimony about the actions of Steven Sedlacko was limited to the point of being virtually non-existent. The NFS Officer indicated that Sedlacko was seen on two different occasions on July 2, 1999, for a total time of about 1 minute. In the first instance, Sedlacko was seen standing in the forest and was asked by the officer where Garrick Beck was. Sedlacko advised that he thought Beck had gone into town and, when the officer asked him if he could get a message to Beck to call the officer, Sedlacko said he might be able to do that.

The second occasion on July 2, 1999, was later that afternoon when Sedlacko accompanied Beck to a meeting requested by the NFS Officials. At that meeting, Beck was issued a citation when he advised that no one, to his knowledge, would sign the application on behalf of the "Rainbow Family Gathering". After Beck was advised that he would be cited, he stated that he did not wish to be the only person cited and the officer asked Sedlacko if he would accept a citation. Sedlacko said yes. The officer asked Sedlacko how long he had been in the forest and Sedlacko said for about a week. Kalb was cited several days later.

None of these individuals was seen to do anything in violation of any National Forest Service regulation. They were cited because of the Government policy to target those the Forest Service perceives to be organizers or leaders of this gathering as the individuals to be cited. It is the Government's position, however, that all 20,000 persons, "Rainbow Family members", onlookers, and media representatives, were all in criminal violation of these regulations by their mere presence in the Allegheny National Forest at that time.



The violation charged against each of these individuals is 36 C.F.R., 261.10(k). While quoted above, it bears repeating.

"The following are prohibited:
…(k) Use or occupancy of National Forest System land or facilities without special use authorization when such authorization is required."

The violation of this section carries a fine up to $500 and a sentence of up to 6 months incarceration in accordance with 36 C.F.R. 261.1b.

Citations issued to the Defendants further specify that the permit was required under Section 251.50(c)(3) of 36 C.F.R. Section 251.50 states, in subsection (a), that all uses of NFS lands are designated "special uses" except for those involving the disposal of timber and minerals, and the grazing of livestock. Section 251.50(a) then states that before engaging in a "special use" "persons or entities" must submit an application to an authorized officer and obtain a "special use" authorization unless that requirement is waived by subsection 251.50(c).

Section 251.50(c) states that a "special use" authorization is not required for non-commercial recreation and expression of views such as assemblies, meetings, or demonstrations except under


three circumstances: (1) Authorization is needed if required by an Order entered pursuant to section 261.50, which states that an NFS official can close or restrict use in a described area by general order. This section is not applicable to the present case; (2) Authorization for non-commercial use is required under special circumstances set forth in Section 261.70 which allows for regulations for fire control, disease prevention, protection of roads and trails, and other public safety type circumstances, again, not applicable here; (3) Section 251.50(c)(3) is the circumstance applicable here. A permit for "non-commercial group uses" as defined in Section 251.51 is required. Such "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".

Under Section 251.51, an "applicant" is defined as "any individual, partnership, corporation, association, or other business entity". As noted above, there are various types of special use authorizations (permits), some of which can be applied for by individuals. In those cases, the individual is the applicant, the individual becomes the holder, and the individual becomes the person liable to the United States Government for all of the things that a holder is liable to the Government for under applicable regulations. Under Section 250.50(c)(3), however, the only entity, which can apply for a permit to satisfy that provision is a group, as only a group, is required to have a permit under that Section.

The requirements of a "special use" application are set forth in Section 251.54(e). Where, as here, the group is required to be the applicant, the application requires the name of an agent to receive


notice of actions on behalf of the group, specific information about the nature and duration of the group use, and "the name of the person or persons 21 years of age or older who will sign a special use authorization of behalf of the applicant".

The Forest Service is to grant such application, and issue a permit to the holder where a series of conditions have been met. These conditions are set forth in Section 251.54(h)(1). Of greatest relevance to this inquiry is the condition specified in Section 251.54(h)(viii) which requires that "a person or persons 21 years of age or older have been designated to sign and do sign a "special use" authorization on behalf of the applicant".

The Forest Service can impose terms and conditions on the permit, including one generally "to otherwise protect the public interest". Section 251.56(a)(2)(vii).


Before delineating the Defendants' position, it is critical for the Court to appreciate what position the United States has taken with respect to the interpretation and application of this criminal regulation.

According to the United States, during June and July 1999, over 20,000 United States citizens violated 36 C.F.R. 261.10(K) by treading upon the grounds of the Allegheny National Forest. According to the United States, it is of no legal significance whether those individuals were members of the "Rainbow Family", townspeople who drove out to simply observe the activities ongoing, or members of the news media (both television and newspaper) who covered this "gathering" and reported on it to their viewers and readers.

2/ The holder is defined in Section 251.51 as "any applicant who has received a "special use" authorization". The holder becomes liable to the United States in a variety of different ways for any damage or injury to the property occurring during the time of the permit. See, Section 251.56(d) & (d)(1).


The position of the United States is that, by this group's failure to obtain a "special use" authorization, all persons who were either "participants or spectators" are liable to a term of imprisonment of six months and fine of $500.

The position of the United States is certainly not limited to the application of this regulation at a "Rainbow Family" gathering. Were a YMCA group to take a hundred young campers to the woods and were their number to exceed 75, all adults, children, and onlookers would be liable to arrest and the acquisition of a federal criminal record if the YMCA failed to apply for a permit.

The statement of the position of the United States shows both its absurdity and the profound constitutional problems which would be present if that interpretation were correct. The First Amendment implications, both as to individuals generally, see, Chicago v. Morales,--US--, 119 S. Ct. 1849 (1999), and to press' right to report upon such activities are plainly before the Court if the interpretation of the United States is correct.

A. Under 36 C.F.R. §261.10(K) Only The Group, Not Individuals, Is Liable To Citation.

In accordance with basic principles of statutory construction, however, this Honorable Court should avoid a construction of this regulation under which serious doubts as to its constitutionality will be raised. Public Citizen v. U.S. Department of Justice, 491 US 440, 465, 466 (1989); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979). Fortunately, such a construction is not only possible here, but is the only sensible construction given the nature of these regulations as viewed properly under the rule of lenity. Lenity is a rule of construction which, as Chief Justice John Marshall noted, is as old as the notion of construction itself. United States v. Wiltberger, 18 U.S. 76 1820; McNally v. United States, 483 U.S. 350 (1987).


Simply put, it is the position of the Defendants' that this regulation does not, and cannot, make criminal the actions of an individual. Rather, to the extent it imposes criminal liability, it imposes criminal liability only upon a group. As the group has not been cited in this case, the present citations must be dismissed.

This regulation states that "use or occupancy" of NFS land without a permit is prohibited when such a permit is required. Section 261.10(k). The regulation requires a permit of a group when a group use is to occur. "Group use" occurs when 75 or more persons (participants and spectators) are involved. Only a group needs to get the permit under Section 251.50(c)(3) as an individual does not need a permit to either recreate or constitutionally assemble in a National Forest Service site. As only a group is required to get this permit, and only a group is liable if they get it, only a group can be liable if they do not get it.

Put another way, what did these individuals do to break a federal law? They were there, like 20,000 others. They, like 20,000 others, did not sign for a permit. However, they, like the others, could not sign for the permit, as they were not designated to do so by the group.

3/ No citation should be necessary to make this obvious point.


This is not a crime which makes it an offense for a person to fail to sign an application. No language of 261.10(K) says that. Under Sections 251.54(h)(viii), these individuals could not even properly offer to sign, as they were not "designated" by the group to do so. The Forest Service could not lawfully accept their signature and issue a permit absent that authorization.

The clearest proof that the group is the only proper defendant here is by reference to Government Exhibit 6. This was the package of regulations and permit applications given out by the Forest Service. It was not directed to any individual, but was, by its caption, directed to "Rainbow Family Gathering". Reference to the application and permit further confirm this critical point.

The applicant is the group. (See, page 2 of Government Exhibit 6). As developed on examination of the relevant agent, the person who is listed as the "name of contact" and the person who signs on behalf of the group under Section 6 of the application acquire no personal liability or responsibility for the group's actions by that signature. Indeed, the Court itself noted that once the permit is issued, it is the "holder" of the permit who becomes liable to the United States for a wide variety of matters designated on page 3 of Government Exhibit 6, including liability to clean up the area, to account for any damages done to it and to hold the United States harmless from liability should something arise during the groups use of the land under the terms of the permit. The holder is the applicant whose application has been approved; under Section 251.50(c)(3), the only entity that can be the relevant applicant / holder, is the group, not any person.

Accordingly, this case cannot be brought against any individual. Properly, it can only be brought against the group, which the Government claims should have applied for a permit and should have become a holder of a permit to authorize the use of the land by the group.


The legal principle, which underlies this analysis, is the fundamental notion that every criminal statute requires the occurrence of both an actus reus element and a mens rea state of mind with which that act is done. In this case, the mens rea element is of no importance.

The actus reus element of every criminal statute is one of ancient origin. The law requires an act specifically described by a statute which, in conjunction with the requisite mental state, produces the crime punishable by the Government. See, United States v. Alkhabaz, 104 F. 3d. 1492, 1494-1495 (6th Cir., 1997), quoting, United States v. Apfelbaum, 445 U.S. 115, 130, Note 13 (1980). As the Second Circuit noted in United States v. Mozh, 676 F 2d. 919, 920 (2nd Cir., 1982), beyond the occurrence of a guilty mind "the imposition of the criminal sanction has required a guilty act, or actus reus, by the person sought to be held liable… the actus reus must have its origin in some willed activity or omission on the part of the defendant".

4/ In United States v. Johnson, 159 F. 3d. 892 (4th Cir., 1998), the Fourth Circuit had declined an invitation to decide a mens rea element of the offense, giving further threat to the vast potential application of this regulation. The Johnson Court did not, however, consider the argument made here.


This regulation defines no actus reus element, which can be committed by an individual. To be sure, this regulation is very poorly drafted in this regard if individual liability is portended. Were the regulation to have said that it was a violation for "any person to organize or assist in organizing" a gathering of individuals exceeding 75 in number without having obtained a "special use" permit, a proper actus reus component for individual liability would be present. The regulations, however, do not say that at all. What the regulation prohibits is "use or occupancy" where a permit is required and none has been obtained. The only entity which can either use or occupy NFS land in violation of this regulation is a group, not an individual.

The Government's announced policy to cite the leaders or organizers of such gatherings is, in fact, a reflection of the Government's de facto recognition that the language of this regulation is, otherwise, horrendously and unconstitutionally overbroad. By citing those it claims to be leaders or organizers, the Government seeks to infuse an individual actus reus element into this regulation. The regulation, however, says otherwise. As stated above, the regulation could have easily directed that a citation be issued to someone who organizes or assists in organizing such a gathering in violation of the "group use" regulations, but it did not do so. The language of this regulation, construed with lenity to the extent that it contains any ambiguity, must be read to apply only to the entity which would otherwise be required to have the permit, that is, the group.


It is important to note that an individual is not capable of doing anything under this section, on his or her own, which could violate it. Critical to this analysis is Section 251.54 (h)(viii) which indicates that a permit can be granted if and only if the Forest Service is presented with a person 21 years of age or older who has been designated to sign the application and does sign the application on behalf of the group. No individual can simply walk up to a National Forest Service Officer and self designate themselves to sign on behalf of any group. That person must be designated by the group in order to sign on their behalf. Indeed, for the Forest Service to take the position that any person, whether designated or not, can sign the application, would be both in violation of their own regulations and would, by that position, indicate the absurdity of the necessity of any person signing at all.

An individual who is incapable of an act cannot be guilty of violating a regulation that requires that act. For example, in United States v. Dalton, 96 F. 3d. 121 (10th Cir. 1992), the Court held that the due process clause of the Fifth Amendment bars prosecution of an individual for not registering a firearm where the registration of that firearm was impossible. The Court held that where a statute has an essential element which is the failure to do an act that a person is legally incapable of doing, they cannot be held criminally liable for it. Similarly, in United States v. Spingola, 464 F. 2d. 909 (7th Cir., 1972), the Court noted that if an individual were to be able to show that they were incapable of causing the filing of a Government form, they could not be held criminally liable for that failure to file.


Only the group could designate the person to sign the permit. In the absence of that designation, no person can sign for the group. In this case, the group refused to designate any person. The group, and only the group, is liable for a criminal violation of this section. The actus reus element of this crime can only be committed by a group.

The Government has, in effect, admitted that it can and should address its criminal violations to the group involved here. Not only does the very permit application make the group and only the group liable, but also it should be noted that the Government presented the application not to any individual but to the "Rainbow Family Gathering". Moreover, when the clean up of the park was completed, the Government, through its agent, Leon Blashok, District Ranger, sent a note "To Whom It May Concern" stating that the clean up of the National Forest was satisfactory and "there will be no billing to the Rainbow Family for any rehabilitation work including abandoned dogs or vehicles". See, Defense Exhibit A. Indeed, the Government sued the "Rainbow Family" previously in a case in Texas, see, United States v. Rainbow Family, 695 F. Supp. 334 (Eastern District of Texas, 1998) and, under well established law, could bring a criminal action against this group even though they are not formally incorporated. See, discussion in LaFave, Substantive Criminal Law, Section 3.10 at pages 370-373 (1986, 2000).


In summary, the Defendants respectfully submit that the citations against them as individuals must be dismissed. They are not here in a representative capacity. They are here as individuals. This regulation does not apply to them as individuals and these citations must, therefore, be dismissed.

B. The Application Of 36 C.F.R. §261.10(K) To Individuals Would Be Unconstitutional Under City Of Chicago V. Morales.

The application of this regulation to the individual creates enormous constitutional problems. The case of City of Chicago v Morales, 119 S. Ct. 1849 (1999) is a critical case in discerning both the impermissibly vague and over broad nature of the regulation as applied to an individual. In Morales, the Supreme Court faced a regulation of the City of Chicago, which made it a criminal offense for a person to loiter with a known street gang member and to fail to obey an order by a police officer to disperse upon that observation. The Court held that this regulation infringes on free association in an impermissibly vague way. Id. at 1857. As the Court held,

"It is imperative that an individual's decision to remain in a public place of his choice is as much a part of his liberty as freedom of movement inside frontiers". Id. at 1858.

Here also, a criminal regulation that contains no mens rea requirement is imposed and where it is as vague as is the present one, it fundamentally infringes on constitutional protections in a way which cannot be countenanced. Id.


The regulation here is, for the same reasons as in Morales, unconstitutionally vague and overbroad because it prohibits a wide range of innocent conduct indistinguishable from anything arguably criminal. It invites discriminatory enforcement. As the Supreme Court noted, friends, relatives, or total strangers might unwittingly engage in forbidden activity simply by engaging in conversation with a gang member, Id. at 1862, or here, simply being in the national forest as a spectator, news reporter, or "Rainbow".

In the present case, the breadth of the Government's application of this regulation would mean that all 20,000 people broke the law. Included within the list of potential defendants would be individuals who showed up for 5 minutes to observe the festivities, to deliver a pizza, or, to gather news about the event to report under the constitutionally protected framework of the free press. This regulation does not prescribe activities for an individual, which would clearly be known and clearly be defined to involve a breach of peace or other unprotected constitutional activity.

The individuals here, no matter how one characterizes them, did nothing individually to violate the law. They are prosecuted for their mere presence. The Government would have difficulty forcing an individual to declare themselves a representative of a group or to state their association with that group under pain of some sanction. An individual's right to association is vitally related to the privacy of their associations and the United States Supreme Court has never hesitated to uphold that right to private association in the face of the Government mandate to the contrary. See, NAACP v. Alabama, 357 U.S. 449 (1958). They are prosecuted under a regulation containing language so vague and applied with such overbreadth that persons who have not voluntarily chosen to subject themselves to the regulatory scheme would readily run a foul of it. See, Amsterdam, Federal Constitutional Restrictions 3, Criminal Law Bulletin 205, 216-233 (1967).

This regulation is unconstitutional on its face and as applied to these individuals given its vagueness and its over breath. City of Chicago v. Morales, supra. See also, discussion in United States v. Popa, 187 F. 3d. 672 (D.C. Cir., 1999). The issue of unconstitutionality may be averted however, by simply reading the regulation as it is written. As written, it does not apply to these three or any other individuals. They are not guilty as a matter of fact and law.

C. The Forest Service Regulations Are Unconstitutionally Vague And Overbroad.

1. "Group Use," As Defined By 36 C.F.R. § 251.51, Is Both Vague And Overbroad.

In judging the controversy between the United States and the named Defendants, certain fundamentals bear mention. While the United States holds legal title to National Forest land it does so in trust for the people. In administering this trust, the Forest Service is entitled to regulate and restrict the rights of the people only in so far as such regulation is required to protect and preserve the trust property - not simply to serve bureaucratic convenience.

In defining "Group Use" the Forest Service, for its own convenience, sweeps within its regulatory net and seeks to criminalize entirely innocent and constitutionally protected behavior. 36 C.F.R.


§251.51 defines "Group Use" as: "an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators." The regulation subjects to criminal prosecution the innocent actions of mere spectators. The regulation is sweeping in its breath. It purports to criminalizes, for example: (1) the actions of an elderly couple stopping their car along the roadside, however briefly, to gawk at the gathering; (2) the actions of news reporters in attendance to report on the gathering; (3) even a spectator viewing the gathering at a considerable distance through binoculars. Criminalizing the behavior of spectators is unbounded by any limitations of time or distance. The regulation sweeps such innocent behavior within its ambit for the convenience of Forest Service personnel who are thereby unburdened from making any investigation establishing a spectator's connection with the group. This is exactly the type of regulation that the Supreme Court found unconstitutional in City of Chicago v. Morales, supra. Regulations cannot simply forbid being in a public place. Robinson v. California, 370 U. S. 660 (1962). Nor vest such unfettered discretion in public officials. City of Lakewood v. Plain Dealer, 486 U. S. 750 (1988); Naturalist Society v. Fillyaw, 858 F. Supp. 1559 (SD Fla. 1994).

The "Group Use" definition contains other infirmities; it requires neither physical proximity nor affinity to trigger its application. Forth of July campers, otherwise unknown to each other, would violate the regulation by coming together spontaneously in song around a communal campfire. Once the seventy-fifth person raised her voice in song, or even gazed on the other assembled seventy-four, the regulation would be violated, by one and all. Similarly, a large family reunion would run afoul of the regulation by coming to the Forest over the same weekend even though seventy-five or more family members were never, at any one time, in the same campground nor even in close physical proximity to each other within the Forest.


In attempting to fathom the definition of "group use" the following exchange comes to mind:

"There's glory for you!" I don't know what you mean by "glory"," Alice said. "I meant, "There's a nice knock-down argument for you!" "But "glory" doesn't mean a nice knock-down argument", Alice objected. "When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean,--neither more nor less." Through the Looking-Glass, Ch 5, Lewis Carroll.

"Group Use" as codified within the regulation is a definition in search of meaning. In its application it means exactly what the Forest Service chooses it to mean - neither more nor less. No other definition could be more administratively convenient - nor more unconstitutionally vague and overbroad.

2. The Permit Process Contained In 36 C.F.R. § 251.54 (e)(2)(E) and §251.54(h)(viii) Is Overbroad.

Not every group of individuals that wishes to use the National Forest for a gathering may do so. The regulation contains requirements that impermissibly restrict the ability of some groups to gather on Forest Service land. In order to gather in groups larger than seventy-five, the group (the applicant) must first designate and authorize an individual to apply for and sign a "special use" permit on behalf of the applicant. 36 C.F.R. §251.54(e)(2)(E) and §251.54(h)(viii). This requirement that the group designate and authorize an individual to act on its behalf admits of no exception.


A single hypothetical illustrates the problem. If an individual wished to give a speech or conduct a large meeting on Forest Service land advocating, for example, amending the Constitution to require an IQ test for congressional candidates. And if this individual posted flyers, sent mailings or created a web site encouraging citizens to attend, he would be unable, under existing regulations, to apply for a "group use" permit so that the gathering could lawfully occur. The individual posting the flyers would certainly be an organizer of the group use, but he would not be designated (36 C.F.R. § 251.54(h)(viii)) to sign the "special use" application (i.e., permit) on behalf of the group. Nor would other individual's who volunteer to assist the speaker in dealing with the expected crowd be able to comply with the Forest Service permit requirements. Until the gathering actually occurred there would be no possible way for the individuals organizing and assisting in the organization of the assembly to know whom the attendees would be. The assembly would thus be unlawful the moment the seventy-fifth person arrived. And it is doubtful whether the listeners at this unstructured gathering would be willing to designate a speaker, whom they may not know or trust, to act on their behalf in securing a "special use" permit binding them collectively to the, as yet unknown, terms and conditions of a permit.

This hypothetical illustrates why much of the testimony at trial attempting to establish that the Defendants were leaders or organizers of the assembly is irrelevant. The regulations do not allow a leader, qua leader, or an organizer, qua organizer, of an assembly to apply for a permit; only an individual designated by the group for that specific purpose may sign the permit on behalf of the


group. Nor would self-designation by an individual, with a wink and a nod to the regulations, be advisable since every statement to a federal employee in an official matter is subject to prosecution, and imprisonment for up to five years, if untrue. 18 USC §1001. The permit application introduced at trial by the Government carries just such an explicit warning. Government Exhibit 6, pg. 2.
Aside from its irrelevancy, under the statutory scheme, the issue of whether the Defendants' were leaders or organizers glosses over distinctions in the multiple meanings of the term "leader." A leader may be one who merely leads or guides or one who is in charge or command. American Heritage College Dictionary, third ed. 1993, Houghton Mifflin Co. A leader who merely leads or guides does so by the consent of, but without authority over, those who voluntarily and perhaps temporarily choose to follow. A leader who is in charge or command, such as an employer or military officer, has authority over those under his charge or command. A leader in charge or command almost always has coercive power over those required to follow; such coercive power may take the form of execution, imprisonment, fine, discharge or expulsion from the organization. Nothing in the evidence establishes that any of the Defendants' were leaders "in charge or command" sufficient to give them the inherent authority to apply for a permit on behalf of the group and bind the group members to the permits terms and conditions .

5/ The Defendants contend that the Forest Service winks and nods at this requirement when it suits the agency. Materials concerning sham permits were offered at the trial and excluded by the Court as irrelevant. Should the Court, after reading this Memorandum, find such material relevant the Defendants are prepare to prove this fact.


The Forest Service, for its own convenience, wishes to grant "special use" permits only to certain types of groups - those that have a formal hierarchical structure capable of binding its members. From a bureaucratic viewpoint, it is more convenient to deal with such a group. As presently written, the regulations exclude groups of individuals, as individuals, from gathering on Forest Service land unless the assembly first organizes itself into a hierarchical structure and authorizes an individual to deal with the Forest Service on the group's collective behalf.

The Government argues that the regulation in question is valid because "it is facially neutral and justified without reference to the content of the speech." Government's Trial Brief, pg. 4. The refusal of the Government, through the guise of this permit scheme, to permit large groups of individuals to gather on Forest Service land, without first organizing and thereafter delegating authority, is unconstitutional. The act of organizing and delegating some measure of individual autonomy is not a neutral act; it would fundamentally alter the willingness of many individuals to participate and, by excluding those unwilling to submit to hierarchical decision making, alter the nature of speech, expression and association that occurs at the assembly. The First Amendment in deliberately granting rights of speech and assembly to individuals, protects the infinite variety of ways in which humans may choose to gather and express themselves. The Forest Service regulations require individuals to

6/ For one individual's view of what it means to be a "Rainbow" and the matter of leadership, see: "Take Us to Your Leader!" by Stephen Wing. Gov. Ex. 7, pages 10-15. App. A, attached.


don its regulatory straightjacket as a precondition to gathering on public lands. This is not constitutionally permissible. By excluding those mistrustful of authority, by excluding those unwilling to join a group, by excluding those unwilling to surrender their individual autonomy to the group, the Forest Service regulations impermissibly infringe on the rights of individual speech, assembly and association protected by the First Amendment.

This regulatory regimen is not facially neutral nor without effect on the nature of the speech that occurs at such a regimented assembly. The Forest Service may not, through its regulations, exclude anarchists, nonconformists or mere assemblages of citizens from Forest service land.

The "designated" signature requirement, which is at the heart of the dispute between the Defendants and the Government, renders the present permit system unconstitutional. First, as set forth below, it was designed by certain factions within the Forest Service as a vehicle to prevent the Rainbow Gathering from occurring on Government land; it was the one condition that the Forest Service knew the Gathering could not meet. Second, as set forth below, it is intended to impose certain undefined group liability where such liability would not otherwise exist under applicable law. Given the amorphous nature of the "members" of the Rainbow Gathering, this concept of group liability will ultimately degenerate into individual liability imposed on those individuals whom the Forest Service ___________________________

7/ The tension within the Forest Service between its law enforcement arm and its resource arm, as far as the Rainbow Gathering is concerned, is found in Defendants' Exhibit D, pages 1,2, & 5.


perceives to be leaders, organizers or otherwise disfavored. Third, through the vehicle of "regulatory regimentation" it affords the Forest Service an opportunity to "bend, fold, spindle and mutilate" the individuality of those who attend the Rainbow Gathering by requiring the individuals to fall into formation, shape up and act like a proper organization - all as the Forest Service deems a proper organization should be and act. The Founding Fathers decision to grant First Amendment rights of speech, assembly, association, and worship to individuals is a rather untidy result, untidiness the Forest Service does not wish to deal with . No legitimate goal of the Forest Service is furthered by the signature requirement; every concern of the Government can easily be accommodated with a permit system not including the signature requirement . The Agency's insistence on this "designated" signature, of questionable efficacy, is but a bureaucratic demand by the sovereign's "liege lord" for a symbolic act of fealty from the sovereign's lesser subjects.

Prior to the current regulations the vehicle of an "operating plan," not requiring an authorized signature, adequately addressed the Forest Service's concerns. Conversely, imposing the signature requirement on the Gathering will fundamentally alter its character and the nature of speech, assembly and association that occurs at the Gathering.

The signature requirement itself imperils the Defendants right to freedom of association. In NAACP v Alabama, 357 US 449 (1958) the Court opined that requiring an individual to publicly declare themselves part of or a representative of a group is as constitutionally offensive as requiring individual to wear armbands. Id at 463. In the absence of a compelling justification this permit scheme requiring a "designated" signer must fail.

8/ The report of Mike Lowry, Incident Commander, for a 1997 Rainbow Gathering recommends: "…[I]t's time to recognize the legitimate use of the National Forests for large gatherings and redeem our responsibilities…'" Defendants' Exhibit D, page 3.


3. The Signature Requirement Contained In The Forest Service Non-Commercial Group Use Permit Process, 36 C.F.R. §251.54 (h) (viii), Is Designed To Impose Upon The "Group" (and ultimately the Signer) Certain Liabilities Which Would Not Otherwise Exist, 36 C.F.R. §251.56(d) And §251.56(d)(2). The Chilling Effect Of Imposing Group Liability In A First Amendment Context Renders The Permit Scheme Unconstitutional.

A quite peculiar feature of the Forest Service's permit system is the requirement that the authorization itself be signed by someone designated by the permit holder. 36 C.F.R. § 251.54(h)(viii). These regulations apparently contem-plate, though they do not expressly require, that the signer must sign as an "agent for the group" which will use the authorization, see, e.g., 60 Fed. Reg. 45274 (August 30, 1995)(final rulemaking, response to comments).

In an ordinary permit system, such as those which commonly govern the use of public streets for parades or the use of public parks for meetings or religious gatherings, an individual applicant must submit an application, perhaps signed by that individual, and the licensing official grants a permit, which is very commonly signed by the public official who authorized its issuance. In contrast, the Forest Service's scheme is unusual in that the permit, called an "authorization," must be signed not only by the issuing official but also by someone legally representing those who will use National Forest lands under the authorization. This special signature requirement is no accident, for the Forest Service apparently believes that presence of the applicant's signature on the authorization itself will impose upon the using "group" certain liabilities which would not otherwise exist under applicable law. E.g., 60 Fed. Reg. 45274, 45286.

9/ Support for this assertion is found in Defendants' Exhibit D, page 6.


One of the Government's principal purposes in promulgating and enforcing the challenged non-commercial group use authorization require-ment is to ensure that each "group" using the National Forest lands will be "responsible for the actions of its members as a whole that relate to the use and occupancy of the National Forest System lands." See, e.g., Fed. Reg. 45286 (August 30, 1995). Indeed, the imposi-tion of such a "group liability" is the only governmental interest uniquely served by the peculiar requirement that the "special use" authorization itself be signed not only by the issuing official also by someone on behalf of the applicant or the using group. However, the First Amend-ment places very substantial limits upon the Government's authority to impose vicarious liability relationships within expressive associations or assemblies. Because such vicarious liability can very seriously chill the willingness of individuals to associate with one another for expressive purposes, the mere threat of such liability, especially when it is left as vague and undefined as it is in this case, directly burdens expressive association. This burden is exacerbated when the vicarious liability is designed, as it is here, to arise from unspecified "terms and conditions," to be listed on the "special use" authorization, which the licensing officials are left free to impose on a case-by-case basis and when the entire authorization signature requirement is targeted at particular National Forest users which the Government knows gather, for principled reasons, under circumstances which deliberately lack the sorts of authority relation-ships which support vicarious liability as it is ordinarily understood.

10/ The quoted phrase appears, verbatim, numerous times throughout the Department of Agriculture's response to comments in the final rulemaking. 60 Fed. Reg. 45258-95. Yet nowhere is there any indication of just what the Department might mean by "actions of its members as a whole" or even of how the Department believes that group "members" can be identified in situations such as a musical concert, cf. Ward v. Rock Against Racism, 491 U.S. 781 (1989), where an audience gathers to hear a performance without joining any organization and without voluntarily submitting to the discipline of any private central leadership which would not otherwise exercise any legal authority over those in the audience. The Defendants gather with others under circumstances which do not involve the submission by gatherers to any central authority. Whether the Government wants to admit it or not, imposing "group liability" under such circumstances amounts to nothing more than holding some individuals responsible for the actions or omissions of other individuals.


There can be no doubt that the Government intends the challenged authorization signature requirement to be an instrument for imposing certain collective liabilities upon each group which uses National Forest lands. In addressing, during its final rulemaking, comments criticizing the authorization signature requirement challenged here, the Department of Agriculture responded:

It is not appropriate or necessary for each member of a group to sign a "special use" authorization. It is also not appropriate or necessary for one member or a few members of a group to assume personal responsibility for the actions of other group members. Individual group members are personally responsi-ble for their own actions. A person who signs a "special use" authorization for a non-commercial group use acts as an agent for the group but does not assume personal responsibility for the group's actions.


However, it is appropriate and necessary to ensure that a group will be responsible for the actions of its members as a whole that relate to the use and occupancy of the National Forest System lands by requiring a person or persons to sign a "special use" authorization as an agent or representative of the group. Requiring that a person or persons sign the "special use" authoriza-tion on behalf of the group will not weaken the group's solidarity; on the contrary, this require-ment can serve to enhance the group's solidarity by ensuring that the group will take responsibility for its actions. By signing a "special use" authorization on behalf of the group, the agent or representative gives the authorization legal effect and subjects the group to the authorization's terms and conditions.

60 Fed. Reg. 45274. The Government cannot and does not now disclaim this purpose as a principal motivation for the challenged signature requirement.

In the first place, it is worth noting that the Secretary of Agriculture - or whomever is ultimately responsible for the final rulemaking analysis - is certainly entitled to his opinion concerning what will "enhance [a] group's solidarity," but he may not impose that opinion upon others.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Citizens, and other individuals for that matter, remain free to decide for themselves when a "group's solidarity" is worth enhancing and, if so, just how to attempt to do that. Even more importantly, it is also worth noting that the quoted opinion is astonishingly naive concerning the effects of vicarious liability relationships within expressive associations or assemblies. This naiveté is quite remarkable - not to say disappointing - in light of the fact that asserted vicarious responsibilities within expressive associations and assemblies have expressly concerned the United States Supreme Court for over 60 years. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); DeJonge v. State of Oregon, 299 U.S. 353 (1937). Indeed, it is quite significant that, while the final rulemaking analysis gleefully and repeatedly recites the constitutional test for time, place, and manner regulation of expression and religious exercise, e.g. Fed. Reg. 45259-60, and while it often asserts the legitimacy and substanTiality of some of the interests which it offers in support of the final rule, e.g. Id. at 45262, it pays no attention whatsoever to the restrictions which the First Amendment imposes upon the assertion of vicarious liabilities within expressive associations or assemblies. Anyone familiar with the full scope of our contemporary First Amendment jurisprudence is left with the inescapable conclusion that the Department simply missed an important constitutional issue in its final rulemaking analysis.

The United States Supreme Court has long recognized that an individual cannot be held responsible for an idea, aim, or objective of an expressive association unless he or she joins or participates in that expressive association with the specific intent of furthering that idea, aim, or objective. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908, 920 (1982)("right to associate does not lose all ________________________

11/ Throughout this analysis, and generally throughout this brief, the term "association" is used in its more abstract sense of a banding together of individuals rather than in its more concrete sense of an identifiable entity created by individuals and then deliberately endowed with a legal existence of its own. In the sense used here, and indeed in the cited cases as well, a card game, a meeting, a political rally, or a parade are each examples of an expressive association. See, e.g., Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995). So too, in this same sense, are the Defendants' gatherings. Thus as used here, the term "association" is generally inter-changeable with "assembly" as that term is used in the cases and in the First Amendment.


constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected," "[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence"); DeJonge v. State of Oregon, 299 U.S. 353, 365 (1937)("peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceful political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score"); see also Stromberg v. State of California, 283 U.S. 359 (1931)(invalidating individual's conviction for waving red flag). It was for this very reason that the Supreme Court eventually invalidated applications of the criminal syndicalism laws which made it unlawful to join any organization which advocated the forcible overthrow of governments, DeJonge at 365-66, and it was this principle which also came to protect teachers, Shelton v. Tucker, 364 U.S. 479, 485-87 (1960), labor organizers, see, e.g., Hague v. C.I.O., 307 U.S. 496, 512 (1939), and even early civil rights workers from the taint of their "communist" associations, Herndon v. Lowry, 301 U.S. 242, 259-61 (1937). The First Amendment thus requires that, in the context of expressive associations and assemblies, any individual responsibility must be genuinely personal to the individual and not vicariously derived from an association or from other individuals who participate in the same group. Any other result would surely chill virtually all expressive association and assembly out of existence.


An individual associating with others, especially for political purposes, can never be entirely sure of the complete agenda which other individuals bring to their common association, and he or she cannot be held responsible if others eventually sway a political meeting in directions which he or she has never endorsed, cf. Whitney v. State of California, 274 U.S. 355, 375 (1927)(Brandeis, J., joined by Holmes, J. concurring in opinion vindicated in Brandenburg v. State of Ohio, 395 U.S. 444, 447 (1969)) (arguing Ms. Whitney could not be convicted for participating in meetings which adopted militant platform over her active opposition).

More recently, the United States Supreme Court has also expressly addressed the other side of this same coin: the First Amendment also places meaningful limits upon the extent to which a "group," even a group which has decided to organize itself under the law or other applicable regulations, can be held responsible for those who choose to associate with it. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 931 (1982)("[t]o impose liability without a finding that the NAACP authorized - either actually or apparently - or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment"); Healy v. James, 408 U.S. 169, 186-87 (1972)(campus student organization could not be denied recognition because of affiliation with a national group which advocated, inter alia, unlawful action). Again, any contrary result would chill many political and perhaps religious associations out of existence. Even where a formally established expressive or religious organiza-tion purports to exercise considerable discipline over its formal members, it cannot be made an insurer of its members' actions. It cannot be made vicariously liable


for the frolics of its members. Political and religious associations are no more capable than individuals of assessing the complete agenda of each person who offers support for their cause.

For the foregoing reasons, it has long been clear that the First Amendment requires that the government regulate expressive associations and assemblies very carefully. "In this sensitive field, the [government] may not employ means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488 (1960). In particular, where issues of group liability arise in the context of presumptively protected expressive activity, the First Amendment demands "precision of regulation." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982). This the Government has altogether failed to do in this case. Ignoring the long-established constitutional requirement that vicarious liabil-ities may be imposed within expressive associations only "according to the strictest law," Claiborne Hardware at 919; Noto v. United States, 367 U.S. 290, 299 (1961), it has eschewed the required case-by-case analysis of actual, existing agency and vicarious liability relationships, proved upon clear and convincing evidence, cf. Id. at 299-300 (intent of member in joining organization "must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by force or violence might be punished . . . because of . . . unprotected purposes which he does not necessarily share"). Instead, without even remotely indicating (anywhere in the


course of nearly 40 dense pages of analysis in the Federal Register) that it had any idea of what it was doing, it decided to impose, by a peculiar requirement that an agent or representative sign the "special use" authorization itself, some sort of unexplained blanket liability upon a user "group" for the unspecified actions of its "members."

This effort would be problematic enough, in a constitutional sense, when applied to a political or religious organization with a separate legal existence, with an established internal authority structure, and with a defined membership - all of which describe both the Communist Party at issue in Noto and the NAACP at the time of the Claiborne County boycott. It is even more outrageous in light of the fact that the Department and the Government knew when it promulgated the challenged regulation that it would apply it to what it terms the "Rainbow Family of Living Light" and the "Rainbow Family Gatherings." 60 Fed. Reg. 45259-89. The Rainbow Family is not an organization in the sense of the Communist Party or the NAACP. So it is especially puzzling how the Government can even speak of "members of the Rainbow Family." The Government has not even begun to explain, for instance, how it would apply its notion of "member[ship]" to an assembly of religious pilgrims gathered to examine a religious relic which, for reasons of his or her own, the relic's custodian has chosen to display to those interested in the peace and sanctity of remote National Forest land. Indeed, it is altogether unclear how the Government would even apply its notions of "member" "agent" and "representative" to the audience gathered at the musical concert at issue in Ward v. Rock Against Racism, 491 U.S. 781 (1989).


What the Government refers to as the "group" of attendees at the so-called "Rainbow Family Gatherings" doesn't have any legal existence of its own and it can't appoint agents of its own under applicable law. Recognizing this, the Government is left to argue that federal law will impose vicarious liability relationship even where none would exist under settled state law. To be sure, federal law is supreme, within its sphere, over state law, Const. Art. 6 cl. 2, but the Government's assertion amounts to the suggestion that it is altogether free to impose whatever blanket "group" liabilities it desires upon those who enter National Forest land to communicate or worship with more than 74 others. Indeed, the Government has altogether failed to specify - and perhaps even to consider - what it means to say that "a group will be responsible," 60 Fed. Reg. 45274, in a case, such as that presented here where the "group" has no central authority, no established leadership structure, and no common assets. Under these circumstances, it is quite likely that the Government's notion of "group . . . responsib[ility]" will degenerate ultimately into an effort to hold individuals who seem like leaders to the Government liable for the actions of those who more casually attend gatherings.

12/ Since the Government has not even attempted in this case to outright prohibit the use of National Forest lands by "groups," such as those composed of the religious pilgrims or the concert audience referenced in the text, which do not have "members" or "representatives" in any legally meaningful sense, this Court need not decide whether it has the constitutional power to do so. Consideration of the examples suggested here, in light of the First Amendment analysis in Ward indicates, however, that the Government could not do so. Especially in the context of a prior restraint, the Government cannot accomplish here by indirection what it could not do directly.


In any event, Claiborne Hardware, and the long and firmly-settled line of cases upon which it relies, flatly refutes this suggestion. Those cases recognize that the imposition of vicarious liabilities, beyond those already imposed by existing law, will very likely burden and chill expressive associa-tion and religious exercise to a constitutionally unacceptable degree. Under any standard of First Amendment scrutiny, the Government is not always free to pursue its legitimate aims by its first chosen means. See, e.g., Buckley v. American Constitutional Law Foundation, Inc., 67 U.S. Law Week 4043 (January 12, 1999)(invalidating as unduly burdensome on expres-sion certain requirements regulating those who circulate petitions in support of ballot initiatives). When the Government's chosen means impose an unacceptable burden upon expressive association, the Government will be directed to pursue its legitimate goals through other methods. For the following reasons, that is the case here.

A. The First Amendment Prohibits The Enforcement Of The Government's Non-Commercial Group Use Regulations Against The Expressive And Religious Gatherings.

The Defendants have used and seek to use National Forest lands for the purposes of expression and religious exercise, which are presumptively protected by the First Amendment to the United States Constitution. Cf. Texas v. Johnson, 491 U.S. 397 (1989)(political demonstration in public park); Niemotko v. Maryland, 340 U.S. 268 (1951) (religious gathering in public park). Furthermore, the Government must concede that the National Forest lands constitute a traditional public forum for


expression and religious exercise. Cf. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985); Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45-46 (1983). 13/ For these reasons, this Court must review the portions of the Forest Service administrative regulations challenged here under the heightened scrutiny required by the First Amendment. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) ("[w]here a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force.")

There are three different types of First Amendment scrutiny applicable in this case because the challenged provi-sions regulate presumptively protected expression and religious exercise in at least three different ways. Cf. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641-42 (1994); Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, (1992); see also 4 R Rotunda and J. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 20.10, 20.46, 20.47 (2nd ed. 1992); L. Tribe, American Constitutional Law §§ 12-2, 12-3 (2nd ed. 1988)(approp-riate level of constitutional scrutiny depends upon the way in which the government has chosen to regulate expression). This brief will assess the challenged regulation under each of these levels of constitutional scrutiny.


13/ "Wherever the title of street and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. C.I.O., 307 U.S. 496, 515 (1939)(Roberts, J, joined by Black, J., lead opinion). The Government offered no reason, in its final rulemaking, suggesting that the National Forests are any less a traditional public forum for expression and religious exercise than the public park to which Justice Roberts long ago referred.


(I) The Challenged Regulations Cannot Stand As Time, Place, And Manner Restrictions On Expression Because The Authorization Signature Require-ment Is Substantially More Burdensome Than Necessary To Achieve Any Legitimate Governmental Objective.

The challenged regulations are expressly designed to regulate the time, place, and manner of expression and religious exercise on National Forest lands. Statutes, ordinances, and administrative regulations, which merely restrict the time, place, and manner of expression or religious exercise are subject to an intermediate form of judicial scrutiny, which is considerably more searching than the rational basis scrutiny which the Courts ordinarily apply to legislation challenged under other constitutional provisions. See, e.g., Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 640-42, 664 (1994). A time, place, and manner regulation will be upheld if, but only if, "the restrictions are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." United States v. Grace, 461 U.S. 171, 177 (1983); see also Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). As with all regulation of presumptively protected expression and religious exercise, the government bears the burden of establishing each of these elements in order to sustain a time, place, and manner regulation. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 664 (1994)(government must demonstrate that the harms at which it has aimed


its time, place, and manner regulation "are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way"); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986)(citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), as a case where government properly bore burden of justifying time, place, and manner regulation); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5,(1984)("it is common to place the burden upon the government to justify impingements on First Amendment interests"). 14/

For the purposes of this litigation, these Defendants' assume that there is no longer any appreciable difference between the intermediate scrutiny which has traditionally been applied to time, place, and manner regulations and that articulated in United States v. O'Brien, 391 U.S. 367, 376 (1968), for review of regulations reaching expressive conduct in a way that incidentally restricts certain forms of expression. See Ward v. Rock Against Racism, 491 U.S. 781, 796-802 (1989); but see Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94, 299 (1984)(distinguishing between time, place, and manner scrutiny and O'Brien scrutiny). Thus while "a regulation of the time, place, and manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests," no analysis properly applying intermediate First Amendment scrutiny includes a requirement that the government adopt that particular time, place, and manner regulation which is "the least restrictive or least intrusive means of doing so," of all possible alternatives, Ward at 798.

14/ Given the Government's own admission in its Trial Brief, pg. 4, that intermediate First Amend-ment time, place, and manner scrutiny is appropriate in this case, the Defendants have discharged their threshold burden to establishing "that the First Amendment even applies." Id.


Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985); see also Clark v. Community for Creative Non-Violence, supra, 468 U.S. at 297, 104 S.Ct. at 3071. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. See Frisby v. Schultz, 487 U.S. at 485, 108 S.Ct. at 2502 ("A complete ban can be narrowly tailored but only if each activity within the proscription's scope is an appropriately targeted evil"). So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because the government's interest could be adequately served by some less-speech-restrictive alternative.

Id. at 799-800 (1988)(footnote omitted). 15/ Thus while the Government is not required to adopt the least restrictive time, place, and manner regulation imaginable, it is not free to adopt an unduly broad or burdensome regulation in the guise of a time, place, and manner regulation. Even where the Govern-ment can establish that its regulation is actually aimed merely at the time, place, and manner of expression or religious exercise, its regulation will fail the "narrowly tailored" requirement if the ________________________________

15/ The Supreme Court's formulation that "the requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation," Ward at 799 (internal quotation marks omitted), certainly does not mean that the government may seriously restrict or burden expression in order to make its enforcement of other laws easier. That Court long ago rejected, for instance, a law which prohibited leafleting in order to prevent littering. Schnieder v. State, 308 U.S. 147 (1939). Given the prohibition's substantial impact upon expression, the First Amendment required that the state be left with the admittedly more difficult requirement of enforcing the littering laws on an individualized basis. Id. at 163.


Government has rejected or overlooked alternatives which fully serve its significant interests while imposing substantially less burden upon expression or religious exercise. 16/

In this case, the Government cannot justify, even as a mere time, place, and manner regulation, its requirement that at least one "agent for the group," e.g. 60 Fed. Reg. 45274, be designated to sign, 36 C.F.R. § 251.54(e)(2)(E) , and in fact sign, Id. § 251.54(h)(viii), the "special use" authorization for a non-commercial group use. Such a requirement fails at least two of the elements of the constitutional test for time, place, and manner regulations. First, especially in light of the complete lack of "precision of regulation" concerning the "group" liability, which it intends to impose by this signature requirement, the Government's objective to create a new but undefined "group" liability by virtue of a signature on an authorization is simply illegitimate for all of the reasons detailed above. An illegitimate governmental purpose, cf. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989), is, of course, ipso facto insubstantial and insignificant within the meaning of the time, place, and manner test. Second, also for the reasons detailed supra, the creation of an undefined and otherwise nonexistent "group" liability attendant upon the signature of an authorization will seriously chill the willingness of reason-able individuals to sign such an authorization and it will substantially burden the expression and religious worship which must proceed under such a signed authorization.

16/ The specific outcome in Ward is not to the contrary. In that case, the United States Supreme Court accepted the challenged requirement as narrowly tailored only because of the trial court's finding that the control over music volume by a city designee did not meaningfully interfere with or burden the challengers' musical expression. Id. at 801-802. "If the city's regulatory scheme had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired, respondent's concerns would have considerable force." Id. at 801 (emphasis added). The Defendants here alleged that the requirement that an agent or representative of the group sign the "special use" authorization itself is substantially more burdensome of their expression and religious exercise than obvious alternatives available to the Government.


As noted above, time, place, and manner review does not require that the Government adopt the least restrictive possible regulation of expression or religious exercise, but it does demand that the Government forego regulations which are substantially more burdensome than available alterna-tives. Ward at 799-800. The peculiar requirement that an "agent for the group" sign an authorization issued by the Government is just such a regulation. The only one of the Government's purposes, which is uniquely served by the challenged signature requirement, is the illegitimate one of imposing a blanket liability upon the group. 17/ All of the other interests which the Government advances can be served at least as well, and sometimes better, by other regulations, requirements, or procedures available to the Government here. The Government's legitimately significant interests in protecting National Forest lands, preparing to assist those who will be using the National Forests, preventing conflicts among uses of the National Forests, and serving as a "reservation desk" to allocate use of particular National Forest lands on a first-come, first-served basis can all be fully served by a system which assesses proposed land uses on a case-by-case basis but does not require an "agent for the group" to sign a "special use" authorization. Indeed, the only legitimate interest, which ____________________________

17/ The Government may also have a related interest in the challenged signature requirement: it might hope that the signature of a prominent gatherer on the authorization will help its officials to encourage other gatherers to abide by written restrictions contained in the authorization which the Government could not otherwise enforce directly against gatherers. But this interest in imposing ad hoc regulations upon expressive associations and assemblies and in essentially compelling a signer to express agreement with those regulations raises both prior restraint and strict scrutiny. This potential interest is thus addressed infra.


the Government can assert, that warrants any kind of signature requirement at all is the interest in preventing fraud in connection with a request to use National Forest land. But this interest can be fully served, indeed better served, by requiring that an individual requesting such use sign a statement, in his or her individual capacity attesting to the truth of any information provided in connection with an application for such use. 18/ Cf. Buckley v. American Constitutional Law Foundation, Inc., 67 U.S. Law Week 4043 (January 12, 1999)(rejecting, as unduly burdensome, government's preferred method for guarding against potential fraud).

Because the requirement that an "agent for the group" sign a "special use" authorization chills and burdens expression and religious exercise on National Forest land substantially more than alternatives readily available to the Government, and because that requirement uniquely serves only an illegitimate governmental interest, the challenged signature requirement cannot survive even the time, place, and manner scrutiny which is most generous to the Government. Even under this scrutiny, the mere assertion of Government interests is not enough. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 664 (1994). 19/

18/ The fact that the current regulations do not require that application for a "special use" authorization for a non-commercial group use be signed by anyone at all, 36 C.F.R. § 251.54(e)(1) and (e)(2)(E), indicate just how poorly the Government thought through its legitimate interests.

19/ This Court should avoid a determination that the challenged regulations offer ample alternate avenues for expression merely because they do not purport to regulate expression which occurs outside of National Forests. Other things being equal, speakers and worshippers have their choice of forum, and it has long been recognized that expression at one location cannot be limited simply because other locations remain available. Schnieder v. State, 308 U.S. 147 (1939). Given the Forest Service's and the United States vast land holdings there are few other venues in which 20,000 or more people may gather.

Of course, all of the foregoing constitutional difficulties can be avoided by construing the regulatory definition of "group use" narrowly, i.e. to apply to only those groups whose internal structure is in fact sufficient to support vicarious liability relation-ships of the sort which the Government contemplates here.


(II) The Challenged Regulations Impose An Unconstitutional Prior Restraint Upon Expression Because, In A Number Of Subtle Ways, They Leave Forest Service Officials With Impermissibly Broad Substantive And Procedural Discretion In Determining Whether To Permit Expression.

The specific regulatory sections of which the Defendants complain are as follows:

(1) The Forest Service regulation permitting the authorizing officer to attach unspecified terms and conditions to the permit to "otherwise protect the public interest." This reserves unbounded discretion to government officials and impermissibly infringes on First Amendment guarantees. 36 C.F.R. §251.56 (a)(2)(vii). (This provision alone is sufficient to void the permitting scheme). City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988); Naturalist Society v. Fillyaw, 858 F. Supp. 1559 (SD Fla. 1994).

(2) The Forest Service regulations governing the granting of a permit with terms and conditions the applicant believes to be overly restrictive are devoid of prompt and meaningful judicial review. The permit applicant is required to navigate the labyrinth of the administrative appeals process before being entitled to judicial review. 36 C.F.R. §251.80 through §251.102, especially §251.101 (requiring exhaustion of administrative remedies).

(3) The Forest Service regulations permitting revocation of a non-commercial use permit, even after it has been granted, for any reason it could have been denied initially. 36 C.F.R. §251.60(a)(1) (A). While the regulations acknowledge the right to judicial review upon revocation of a non-commercial use permit, no provision is made for maintaining the status quo during the review process. Further, the burden of seeking court review is placed on the applicant not the agency, as is required. 36 C.F.R. §251.60. The efficacy of judicial review to a large assembly in the forest is subject to doubt.


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