PLAINTIFF	             CRIMINAL NO.: 99-75 ME

	     V.	                        CRIMINAL NO.: 99-76 ME




COMES NOW, the Defendants, Garrick Beck and Joan Kalb and submit the following Reply Memorandum of Law, as a supplement to the Reply Memorandum filed by Stephen Sedlacko, in support of the entry of Judgment of Acquittal in this matter.

Argument in Reply

I Preliminary Matters

The Defendants incorporate by reference the Reply Memorandum filed by Defendant Sedlacko. The Defendants intend that the within brief be considered on behalf Defendant Sedlacko as well.

A. United States v. Linick: Moving The Goal Post

Persuasive authority supports the dismissal of the charges against the defendants. On November 9, 1999 the Ninth Circuit decided the case of United States v. Linick. 1/ The criminal charges in Linick were identical to the citations against the within Defendants - use of National Forest land without a permit in violation of 36 C.F.R. §261.10(k). The District Court dismissed the citations holding that the Forest Service's noncommercial use regulations were unconstitutional because 36 C.F.R. §251.56(a)(2)(vii) reserved unbridled discretion to Forest Service officials to attach terms and conditions to permits. The offending language was the phrase in §251.56(a)(2)(vii), "otherwise protect the public interest."

1/ 195 F. 3d 538, 1999 U.S. App. LEXIS 29343, 1999 WL 1011865.


On appeal the Circuit Court found that the challenged language reserved unfettered discretion to Forest Service officers to attach terms and conditions to permits. The Court agreed with the District Court that under existing law the offending section rendered the permit scheme unconstitutional. However, in September of 1999, after the District Court's decision and while the matter was pending on appeal, the Forest Service promulgated an interpretative regulation 2/ limiting the unfettered discretion reserved to Forest Service officials by §251.56 (a)(2)(vii) 3/. Faced with this narrowing construction, the Circuit Court was constrained to hold that §251.56 was no longer unconstitutional. Nevertheless, the Circuit Court affirmed the District Court's dismissal of the citations as to the defendants. The Court reasoned that since the new interpretative regulation was not promulgated until after the citations were issued, permitting the prosecution to proceed "…would create a chilling effect on challenges to laws that potentially encroach upon the freedom of speech" and prosecution would offend due process 4/ . The dismissal of the citations rendered further review of the regulations moot. Whether other constitutional infirmities remain within the permit scheme, in sections other than §251.56 (a)(2)(vii), is a matter unanswered by the Court in Linick.

The citations against Beck, Kalb and Sedlacko, are based on conduct that occurred in July of 1999, before the September 1999 "interpretative" regulation. As in Linick, the charges against these Defendants are constitutionally infirm. The protections afforded by the due process clause prevent a conviction. Simply put, the Government may not move the goal post in the middle of the game.

2/ 64 Fed. Reg.48,959.

3/ Since regulations are comparatively easy to amend this is a common tactic; constitutional lawyers refer to this as the "moving target" problem. A civil challenge to a regulation is often defeated by such a tactic. In the criminal arena due process limits its effectiveness but, where the citation is dismissed, mootness often prevents the court from reviewing the challenged regulations fully. The Government uses this tactic to effectively prevent the courts from a comprehensive review of a regulatory scheme. Flawed regulations are thus permitted to stand for years, with the agency making only grudging and piecemeal accommodations to constitutional requirements.

4/ Linick, pg.4.


B. Standing to Make a Facial Challenge

The Government repeatedly asserts that the defendants may not make a facial challenge to the permit scheme. The Government argues that since the Defendants did not apply for a permit they may not have their constitutional claims heard. The Government is wrong. US v Linick, and the cases collected in footnote 23, demonstrate the fallacy of the Government's argument.

C. Environmental Irresponsibility: An Unsupported Appeal to Prejudice

Throughout its brief the Government repeatedly argues that the individuals attending the Gatherings have not acted in an environmentally responsible manner. 6/ The Government refers to Gatherings in Vermont and Colorado in 1991 and 1992; it cites to comments in the Preamble to its Final Rule to support these accusations. 7/ However, the Government's own documents, the Final Site Reports of these Gatherings, do not support this picture. The actual Forest Service reports reveal that the Vermont and Colorado Gatherings were conducted in an environmentally responsible manner. 8/

The Defendants' do agree that there were problems at the 1987 Gathering in North Carolina. The parties' disagree on who was responsible for the problems. According to those who attended the Gathering, the Forest Service, under the influence of law enforcement officials, obstructed attempts to deal with the outbreak of illness in its early stages, prevented people from leaving the gathering to seek medical information and treatment and hampered cleanup efforts. Seeking to justify its proposed regulation and avoid responsibility its conduct in North Carolina, the Forest Service ginned up the comments in the Federal Register and placed the blame for the problem entirely on the Gathering. The one Court willing to take testimony on the mater found "… that the health and other problems seen at the 1987 Summer Gathering in North Carolina were exceptional and traceable - at least in part - to a hostile and adversarial relationship between the Government and the Rainbow Family." 9/

5/ 195 F. 3d 538, 1999 U.S. App. LEXIS 29343, 1999 WL 1011865.

6/ For example, Government's brief at pages 3, 4 and 21.

7/ Final Rule, at 45,263.

8/ These reports are attached to this brief

9/ Memorandum Opinion, filed April 14, 1989 in U.S. v. The Rainbow Family, et al., U.S. District Court, E.D. of Texas, No: L-88-68-CA., pg. 26.Attached in relevant part.


The Government's use of this accusation of environmental irresponsibility is improper. First, if the regulatory scheme is unconstitutional, no amount of environmental problems at a Gathering would justify an infirm permit scheme. Second, the comments by a federal agency in the preamble to a regulation are not facts proven at trial. The cited comments in the Federal Register are designed to justify the promulgated regulation. An agency's recitation of its conduct and the conduct of those it seeks to regulate is akin to Soviet history - inevitably self serving and one-sided. Third, the Government's attempt to interject these unproven allegations of environmental irresponsibility is an appeal to prejudice, an appeal that has no place in the resolution of this case. If the comments establish anything at all, it is the degree of animus some within the Forest Service hold towards the Gathering and those attending it.

These allegations of environmental irresponsibility were not raised at trial. Yet, in this case and others, the Forest Service has repeatedly attempted to smear the Rainbows as environmentally irresponsible by serving up its revisionist history as justification for its attempts to regulate the Gathering out of existence. The Defendants are eager to meet these charges on the merits. If the Court deems this matter relevant the Defendant's will consent to have the Government reopen its case on these accusations.

D. The Government's Flawed Interpretation of 36 C.F.R. §251.86: Humpty Dumpty, again.

The Defendants argue that the permit scheme is unconstitutional. The Rainbow Gathering is brief, normally lasting two weeks. The Government concedes that the regulation of the Gathering, though its permit system, burdens First Amendment rights. The defendants contend that the cumbersome and untimely administrative review process is not constitutionally permissible. It does not allow permit applicants and holders to proceed directly to court to challenge overly restrictive permit conditions.

To rebut this argument, the Government asserts that applicants for noncommercial group use permits do not have to navigate the administrative appeals process. The Government contends


applicants may proceed directly to court. To support this assertion the Government cites to an agency determination, In Re Epley 10/ , dealing with §251.86(a) 11/. However, this is not the principal argument advanced by the Defendants and the Government's advocacy is showing. The argument advanced by the Defendant's, on page 42 of their brief, was that a permit issued with terms and conditions an applicant believes to be overly restrictive is devoid of prompt judicial review. In such a circumstance the applicant becomes a holder. Appeals by permit signatories and holders are governed by subsection (b) not subsection (a) of §251.86. Subsection (b) requires permit signatories and holders to endure interminable administrative appeals before court review is available. Epley is based on subsection (a) and is not relevant to the argument.

As to subsection (b), the Government asserts 12/ that an aggrieved holder can proceed directly to court to challenge overly restrictive terms and conditions attached to a permit. This argument is without authority and is not supported by the language of §251.86(b). The brief writers novel argument 13/ that a holder has a brief window of time to proceed to court - after the permit is issued but before a "written decision" is issued on the holders objections - is a tortured construction. Such a construction would permit the agency to engage in legal gamesmanship by withholding a "written decision" on a holder's complaint hoping they will go away. If the holder does proceed to court a "written decision" could then be issued divesting the court of jurisdiction. The doctrine requiring exhaustion of administrative appeals is firmly entrenched. The exhaustion doctrine is a seductive Siren to a busy judge. The holder, faced with an 11th hour "written decision," is likely to find himself back on the courthouse steps.

The Government's subsection (a) argument is also flawed. The Government's argues that aggrieved permit applicants do not have to undergo the rigors of agency review under §251.86(a). The Government cites to In Re Epley as support for this assertion. The foundation of this argument is the assertion that the Government does not solicit noncommercial permit applications from the Rainbow Gathering or others. This assertion is critical to avoiding the application of §251.86(a). But, Government's own exhibit contradicts this key assertion. Government's exhibit 6 is a written solicitation to apply for a permit directed to the "Rainbow Family Gathering."

10/ No.: 97-04-12-06-0, (May, 1997).

11/ 36 C.F.R

12/ Government's brief, page 38, footnote 17.

13/ Footnote 17, page 38, Government's brief.


The Government's brief writer supports his subsection (a) argument by sleight of hand with his [mis]use of the word "formally". Section 251.86(a) reads:

Only the following may participate in the appeals process provided under this subpart: (a) An applicant who, in response to a prospectus or written solicitation or other notice by the Forest Service, files a formal written request for a…[permit]. (emphasis added)

The Government's brief asserts: "The Forest Service never formally solicits applications for noncommercial group uses and there is no evidence of such a solicitation in this case." 14/ (emphasis added). But the regulation does not require a formal solicitation, only a written solicitation or other notice. Government's exhibit 6 is certainly a written solicitation or other notice.

Epley, a commercial permit case, is of no help to the Government. Epley held that an applicant seeking to conduct commercial outfitting and guiding activities on Forest Service land, who was not requested to apply for a permit, could not file an administrative appeal from the permit denial under §251.86(a). Unlike Epley, the Government did solicit a permit application from the Gathering. Moreover, Epley only assumed, without deciding, that the aggrieved applicant might have a right to court review. No statue supports this assumption; the Agency's own regulations are to the contrary. See: 36 CFR §251.82 and §251.83. Indeed, from all that appears in Epley, the Government remains free to argue that mere applicants have no right to review of any kind.

When the drafters of the regulations intended immediate court review they were explicit in setting forth this right. See: 36 C.F.R. §251.60(a)(D)(ii) which explicitly provides for immediate judicial review upon revocation of a noncommercial group use permit. The administrative appeals process, 36 C.F.R. §251.80 - 251.102, does include noncommercial group use permits within the cumbersome and untimely administrative appeals process. Specifically, section 251.82 titled [Administratively] "Appealable decisions," in subsection (8), includes special use authorizations issued under 36 C.F.R. part 251, subpart B. This subpart is the regulatory section covering noncommercial group use permits. Section 251.83 titled "Decisions not [Administratively] appealable" does not exempt noncommercial group use permits. Subsection (c) of §251.83 does speak of "[d]ecisions for which the jurisdiction of another …court to hear and settle disputes supersedes that of the Department of Agriculture." But, if a statue or regulation vests direct appeal in the courts the Government has not identified any such explicit provision. And, if the regulations were intended to permit, as the government argues, all group use permit questions by either applicants or holders to proceed directly to court then §251.60(a)(D)(ii) would be superfluous.

14/ Pages 38-39.


The Government invites the Court to defer to the agency's interpretation of the regulation. But, on examination, the Forest Service's touted "consistent interpretation" of the appeals process evaporates. 15/ Like Humpty Dumpty, the Government interprets the language of the regulation to mean whatever it chooses it to mean - whatever is convenient in the context of any given case, no more no less.

E. The Signature Requirement: Pretextual Justification

The Government's asserts that the permit signature requirement is necessary for two reasons: (1) to give legal effect to the permit and (2) to deter intentional false statements. 16/ However, the assertion of some justification by the Government does not end the Courts inquiry, it begins it. The proper level of scrutiny to be applied is "intermediate", that is "heightened" beyond rational basis scrutiny. 17/ The Governments proffered justifications do not hold water.

As to the permit, the holder's signature is not necessary to give the permit legal effect. The issuance of the permit itself gives the Forest Service the right to insist on compliance with the permits terms and conditions. As with every permit, legal effect arises from the power of the agency to require a permit and the agency's control over the land where the gathering or demonstration is to occur. ____________________________________

15/ Government's brief, pg. 38.

16/ Government's brief, pgs. 18-19.

17/ See cases collected in § III B, below.


Moreover, the use of Forest Service land is regulated by a plethora of laws, rules and regulations that prohibit what individuals may do on this land. Quite apart from any permit, conduct deleterious to Forest Service land is already proscribed and can be readily enforced upon individual violators. 18/ Arguing that a signature is necessary on a permit to occupy a Forest Service campsite in order to give the permit legal effect is analogous to arguing that a federal prisoner must sign the sentencing order in order to occupy his cell. In both instances the power of the order or permit arises from the inherent power of the issuing authority.

As to the permit application, the argument that a signature is necessary to deter false statements is demolished by a collision with the facts. First, and foremost, the insistence by the Forest Service of a signature on a permit application is illegal. The regulations dealing with permit applications contain no such requirement. See: 36 C.F.R. §251.54 (e), which has no requirement for a signature on an application. But, the Forest Service demands a signature without regulatory authority as a condition to processing the permit application. See: Governments exhibit 6, pg.2, stating: "Application not valid unless signed by contact." Second, false statements are already proscribed by 18 USC §1001. Section 1001 prohibits any false statement, oral or written, to a government agent or agency in an official matter. The mere utterance of a false exculpatory "no" may subject an individual to felony prosecution. The permit application itself contains a prominent warning that it is crime to make a false statement on the application. The warning quotes verbatim the language of 18 U.S.C. § 1001, including its prohibitions and penalties. 19/ A writing might be helpful to establish and memorialize a false statement made on a permit application but the written permit application itself serves that purpose. Third, matters of vital importance to the Government frequently do not require verification by signature. Most assuredly, Linda Tripp was not required to sign her "302" statement to the FBI, implicating Monica Lewinsky and the President in a conspiracy to obstruct justice. Nor was she required to sign her grand jury testimony, used to establish that the President and Ms. Lewinsky committed perjury.

18/ The listing of statutes and regulations governing the use Forest Service land covers three pages in the opinion attached, pgs.45-48. See: Memorandum Opinion, filed June 1,1988 in U.S. v. The Rainbow Family, et al., U.S. District Court, E.D. of Texas, No: L-88-68-CA. Attached in relevant part.

19/ Government Exhibit 6, pg. 2.


It violates the Government's own regulations to demand a signature on the permit application. And, it strains credibility to argue that that an application to occupy a Forest Service campsite implicates such essential government functions that the system cannot function without a signature on a permit application.

It may be that the Government is also arguing that a signature on a permit is necessary to deter false statements on the preceding application. If so, it is important to note that the regulations do not envisage that the person applying for a group permit be the same person who signs the permit. 20/ Such an argument, if it is being made, is illogical.

The government does not deny that its signature requirement on the permit is unusual. 21/ From all that appears in the record, a signature on a permit, as the Government demands, may be unique. The burden is on the Government to establish justification for such a requirement. The proffered justification for the signature requirement, either on the application or permit, fails to measure up. The real value to the Forest Service of the signature requirement is twofold: (1) some within the Forest Service hope that it is a condition the Gathering will be unable to meet and (2) combined with the undefined vicarious liability, which the Forest Service intends to impose by the signature, it is designed to have a chilling effect on any would-be holder or signer. 22/

F. The New and Improved Definition of Group Use: "Happy Talk"

The Defendants argue that the definition of Group Use is overbroad. Their specific complaint is that the definition sweeps with its ambit both participants and spectators without any requirement for proximity or affinity. The Government meets this argument but not by reference to the definition of Group Use in the Regulation. The Government points instead to material outside the Regulation; material not normally or easily available to courts or litigants.

20/ Compare 36 C.F.R. § 251.54(e) and 251.54(h)(viii).

21/ Government's brief, pg. 23.

22/ See § III B for a fuller discussion of this issue.


Referring to the comments of the Agency contained in the Preamble to the Regulation the Government argues the definition of Group Use is much narrower than the actual language of the Regulation. But courts do not go easily to secondary material for regulatory interpretation. The scholarly debate among judges on when and if such material is appropriate to consider continues, Justice Scalia and Judge Posner have strong views in this area. The remarks of an agency in the preamble to a regulation are distinct from interpretative guidelines published by an agency in response to a particular case or controversy. Like a contract, what a party says before the contract is signed is not usually admissible to establish what the contract language means. Once a contract is signed remarks by a party commenting on its meaning are normally admissible, if offered against the party making the remarks.

Transactional lawyers refer to the promises and puffery that precede a deal but which do not find their way into the final contract as "happy talk." The Government's argues that the language in the Preamble to the Regulation is properly considered in narrowing the definition of Group Use. However, the argument is devoid of any citation of authority establishing that this is a proper and uniformly accepted method of regulatory interpretation. The Defendants contend that this is just "happy talk" that the Government is free to disavow when it suits the Agency's purpose.

II. The Defendants May Maintain Their Facial Challenge to the Permit Requirements Even Though that Challenge Principally Addresses the Undefined Liability Conditions Which the Government May Attach to Issued Permits on a Case-by-Case Basis.

Relying on its analysis of Ward v. Rock Against Racism, 491U.S. 781 (1989), the Government argues that the Defendants cannot maintain a facial challenge to the permit requirements. The government further argues those requirements do not afford Forest Service officials unfettered discretion concerning the issuance of a permit but rather leave those officials with discretion only over the conditions which they may attach to any permit which they issue. While facial invalidation is, indeed, "manifestly[] strong medicine," Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973), it is


precisely the remedy which the United States Supreme Court has repeatedly applied to unconstrained prior restraints upon expression in an unbroken line of cases spanning well over half a century. See, e.g., Lovell v. City of Griffin, 303 U.S. 444 (1938); Thornhill v. Alabama, 310 U.S. 88 (1940); Freedman v. Maryland, 380 U.S. 51 (1965); Suttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). For the reasons which follow, it is also the appropriate remedy here. 23/

In the first place, the Government's argument ignores the Defendants' claims that the challenged regulations do, in fact, allow Forest Service officials essentially unfettered discretion over the permitting decision itself. These Defendants have noted, for instance, that the challenged regulations expressly permit the authorizing officer to revoke a permit at any time for any reason which would have justified its denial in the first place. Under these circumstances, the formal requirement that Forest Service officials act on a permit application within 48 hours of its submission, 36 C.F.R. § 251.54(f)(5), readily yields to the Forest Service officials' authority to revoke that permit later, 36 C.F.R. § 251.60(a)(1)(i)(A). Indeed, nothing in the challenged regulations forbids an authorizing ______________________________

23/ In stressing the unique nature of facial challenges under the First Amendment, the Government repeatedly confuses and conflates two conceptually distinct forms of facial review. The first, upon which the Defendants rely here, was developed specifically to evaluate prior restraints upon expression. See Lovell, at 451-52. The facial character of this prior restraint review manifests itself primarily in the special rule that one need not apply for an expression-related license, where the licensor's discretion is insufficiently fettered, before challenging the entire permit scheme. Suttlesworth, at 151; Freedman, at 56. This rule recognizes that unfettered discretion in the licensing official will always poses an unacceptable danger the suppression of ideas, either from self-censorship or from the difficulty in evaluating a censor's decision on judicial review. Lakewood, at 755-59. A distinct form of facial challenge sometimes applies quite apart from this recognition: on occasion a rule imposing no permit requirement at all will sweep within its blanket prohibition so much protected expression that it will be invalidated on its face. Board of Airport Commissioners of Los Angeles v. Jews for Jesus, 482 U.S. 569, 574 (1987). The facial character of this "overbredth" challenge is reflected in the special rule that one whose conduct might have been validly prohibited by a narrower rule may nevertheless challenge the "overbroad" regulation because its very existence inhibits the expression of many who will prefer to steer wide of the sweeping prohibition. Members of the Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 796-99 (1984). The "third party standing element" inherent in this facial over-breadth review has, indeed, caused concern, and the Supreme Court has thus limited facial overbreadth challenges to situations where the overbreadth "is not only real, but substantial as well . . .." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Some cases have presented both types of facial challenges, Thornhill, at 97-98, and the two types may well be related in some sense, see, e.g., L. Tribe, American Constitutional Law 1058-61 (2nd ed. 1988)(referring to some prior restraint review as procedural overbreadth), but the reticence over facial overbreadth review has never extended to prior restraint cases.


officer from altogether ignoring a valid and complete permit application for several days, allowing the requested permit to be granted by operation of law, thereafter beginning an investigation and concluding that the permit should never have been issued, and then revoking the permit at some indefinite time after the application was originally submitted. Cf. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227-29, 238 (1990)(invalidating license requirement for expression because legis-lation did not expressly limit the time allowed for required municipal inspections). The Government naturally protests that its officials would never do such a thing, but its appeal to official good faith "is the very presumption that the doctrine forbidding unbridled discretion disallows." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770 (1988). Beyond this, the Government raises form over substance in arguing that the challenged regulations are immune from facial attack merely because the permit must initially issue unless denied within 48 hours. Such an issuance is altogether meaningless if it is nothing more than conditional issuance pending a longer, sustained investigation determined to find some reason to disallow the expression for which the application was submitted. While the Government might understandably hope that this regulatory stratagem will shield its permit requirements from the established facial review, it cannot do so. In the end, the Government's permit scheme provides for an essentially temporary issuance, subject always to later revocation at any time for any reason warranting denial within a specified time period. 24/ For all practical purposes, the express revocation provision thus eviscerates the constitutionally required "specified, brief period," Freedman v. Maryland, 380 U.S. 51, 59 (1965), and opens the challenged licensing scheme to all of

24/ This Court need not hold that every revocation provision contained in a regulation requiring prior permis-sion for expression is subject to a facial challenge in advance of an application, approval, and actual revocation of a permit. Cf. Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497,505-506 (7th Cir. 1980)(sustaining challenge to revocation procedures in advance of approval necessary for expression). It need only recognize that revocation provisions, such as those at issue here, which plainly undo the protections which the Constitution requires for the application process leave the permit scheme, as a whole, as insufficiently fettered as it would have been had those protections been left out entirely.


the potential evils which warrant facial review of prior restraints upon expression, Lakewood at 755-69. 25/

Similarly, the Government's claim that the substantive conditions which its officials may attach to any issued permits are immune from facial challenge, also elevates form over substance. The Government cannot, and does not, suggest that the challenged permit requirement could survive the established constitutional scrutiny if the section specifying the approval standards expressly stated that, in addition to the eight criteria now listed for consideration, the authorizing official could deny a permit because he or she determined that the "group" applicant could not or would not meet some group liability criteria which were left altogether undefined and thus subject to alteration on a case-by-case basis. Cf. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769 (1988)(invalidating newsrack licensing ordinance requiring nothing more than "not in the public interest" justification for denial). Yet this is precisely what the Government's own position on the permit signature requirement ultimately allows here (justifying permit signa-ture requirement because it imposes group liability; see also 60 Fed. Reg. 45286). The United States Supreme Court has carefully and deliberately developed facial prior restraint scrutiny in order to insure that legislation requiring a permit in advance of expression contains "safeguards designed obviate the dangers of a censorship system." Freedman v. Maryland, 380 U.S. 51, 58 (1965). That scrutiny cannot be reduced to a regulatory or legislative game of 'hide the discretion.' Yet by permitting Forest Service officials discretion over the conditions which they may attach to an issued permit, the Government has done nothing more than move the discretion from where it would be most obvious on review to a point where it might hope that it will be more subtle. As with the procedural protections surrounding a prior restraint, however, the proper constitutional scrutiny must focus on the substantive standards constraining the prior restraint as a whole. Since the discretion left to Forest Service officials under the challenged regulations relates to a matter - "group" liability - which can substantially chill expression, and since that discretion is to be continually applied on a case-by-case basis, facial review of the permit scheme challenged in this case will indeed serve all of the purposes articulated for such review of prior restraints upon expression.

25/ Lakewood was a closely decided case with two Justices not participating. That case nevertheless produced an opinion of the Court, Lakewood at 752, which is entitled to full precedential value here. Moreover, the principal concern of the three dissenting justices in that case has no application on this record. The Lakewood dissent stressed that nothing established that a newspaper company had any right to place newsracks on the public sidewalk in the first place, and asserted that facial challenges should be restricted to prior restrains upon forms of expression which the government "could not prohibit altogether." Id. at 777, 786 (White, J., dissenting). Whatever the lasting merits of that proposition, the Government's concession that National Forest lands are a public forum for the types of expression and religious exercise in which the Defendants and others engage places this case among those in which even the Lakewood dissenters would have considered a facial challenge. Lakewood at 777 (". . . parks are traditional public fora; leaf-letting, pamphletting, and speaking in such places may be regulated, but they may not be entirely forbidden").


In arguing that the Defendants cannot maintain a facial challenge to the conditions which Forest Service officials may attach to the permits they issue, the Government has been led astray by its focus on Ward v. Rock Against Racism, 491U.S. 781 (1989). To be sure, Ward has important things to say about the constitutional test to be applied to time, place, and manner restrictions on expression. But, as these Defendants have already noted, where the government decides to implement time, place, and manner regulations by requiring prior official permission for expression, its requirements must pass constitutional muster under both the time, place, and manner test and the prior restraint test. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992); Suttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969). 26/ Had the Government looked beyond the cases focusing on time, place, and manner test, it would have found that the United States Supreme Court has already invalidated expression-related license requirements because the legislation imposing them left the licensors free to impose insufficiently fettered terms and conditions on any issued permit. Indeed, these Defendants repeatedly cited at least two such cases their opening brief. In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769 (1988), the Court carefully noted that among the conditions which the mayor was expressly authorized to attach to a newsrack license were "such other terms and conditions deemed necessary and reasonable by the Mayor." Id. at 769. Noting that "the face of the ordinance itself contains no explicit limits on the mayor's discretion," Id. at 769, and that courts cannot presume that the authorized "additional terms and conditions will be imposed only for [health, __________________________________

26/ Shuttlesworth remains a classic example of prior restraint invalidation.


safety, or welfare] reasons," Id. at 770, the Court concluded that unless the constitutionally required constraints applied to the permit conditions as well as the issuance decision, "the guarantee against censorship" would be rendered "little more than a high-sounding ideal," Id. at 769-70. For this reason, the Lakewood Court upheld the facial challenge: "We hold those portions of the Lakewood ordinance giving the mayor unfettered discretion to deny a permit application and unbounded authority to condition the permit on any additional terms he deems 'necessary and reasonable,' to be unconstitutional."

Id. at 772 (emphasis added). In so doing, the Court made no distinction whatsoever between the facial review accorded the denial provision and that appropriate for the provisions authorizing the attachment of conditions to issued permits. It was thus no surprise when the Court subsequently invoked standard facial prior restraint review to invalidate an expression-related licensing requirement solely because of the licensor's unfettered discretion in imposing an important condition on a parade permit: the payment of a permit fee. 27/ While the sliding-scale permit fee at issue was particularly problematic - because it introduced "heckler's veto" considerations - the Forsyth County opinion makes it clear that the unfettered discretion concerning this permit condition was alone sufficient to invalidate the prior restraint. Id. at 134 (addressing "hecklers veto" only after concluding that "[t]he First Amendment prohibits the vesting of such unbridled discretion in a government official"). Thus both Lakewood and Forsyth County stand as recent, settled counter-examples to the Government's argument that authorized conditions which can be attached to permits required for expression are beyond facial challenge.

27/ It is quite clear that the Court evaluated the "fee" at issue in Forsyth County as a permit fee rather than an application fee. Though the fee had to be paid in advance of the permitted expression, Id. at 126, the facts giving rise to the dispute made it plain that the fee was not required upon submission of the initial application and that it was not designed merely to defray the costs of processing the application. Indeed, the challenged ordinance expressly imposed the fee, on a per diem basis, on the actual use of the permit rather than on the application process itself. Id. at 126-27. Although the licensor in that case had apparently restricted the assessed fee to the costs processing the application, Id. at 127, the Court recognized that it was designed to defray the costs to the county of the permit's actual use. Id. at 126, 131 n.9, 133, 133 n. 10. Furthermore, the authorized fee adjustment, which became central to Supreme Court's disposition of the case, was necessarily made sometime after the application review process began.


The Government also misinterprets the rejection of a prior restraint argument in Ward v. Rock Against Racism, 491U.S. 781 (1989). Nothing in that case calls into question the facial review previously applied in Lakewood and subsequently applied in Forsyth County. While the City in Ward did require an "event permit" prior to musical performances in Central Park, Id. at 785, Rock Against Racism did not challenge that requirement as the case reached the Supreme Court. 28/ Instead, it challenged a blanket requirement that all users of the bandshell in Central Park use only the amplification equipment and sound technician provided by the City. Id. at 787 n. 2. This regulation did not involve the requirement that speakers obtain official permission prior to performing in the park. There was no provision for waiver or alteration of sound system requirement by particular speakers seeking to use the bandshell. It did not involve the evaluation of prospective expression on a case-by-case basis at all. In short, the challenged requirement did not involve any conditions which could be placed on particular permits. Rather, it was simply a blanket prohibition on the use of private sound systems and independent sound technicians in connection with any concert in Central Park. For this reason, the Court upheld the requirement as a valid time, place, and manner restriction because the trial court had found that the performers retained "autonomy with respect to the sound mix." Id. at 802. Never-the-less, the Court also considered the argument that the challenged requirement put the City's sound technician in a position to interfere with the performer's expression on a case-by-case basis. 29/ It was this matter which was "of an entirely different, and lesser magnitude," Id. at 794, precisely because the use of the City's sound system and technician did not interfere with the performer's message. 30/ While the City's sound technician could have broken the City's rules and interfered with the sound quality of disfavored performers - just as the "government will always possess the raw power to suppress speech through force" - "the relevant question [w]as whether the challenged regulation authorizes the suppression of speech in advance of its expression . . .." Id. at 795 n. 5 (all emphasis in original).

28/ While the case began as a challenge to the denial of an event permit because of excessive noise at past Rock Against Racism concerts in Central Park, that dispute was settled when the City issued the requested permit. Id. at 785. As noted in the text, the case resumed over a much different matter. Id. at 787.

29/ Ward did not hold that Rock Against Racism could not maintain a facial challenge, it held that its "facial challenge fail[ed] on its merits." Id. at 794.

30/ In so holding, the Court carefully noted that if the use of the City's sound equipment and technician "had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired," Rock Against Racism's challenge "would have considerable force." Id. at 801.


In this case, the challenged regulation does expressly authorize the attachment of conditions to permits on a case-by-case basis, (36 C.F.R. § 251.56(a)]), and the Government concedes that those conditions are designed to impose an otherwise undefined "group" liability, which can have a recognized chilling effect on the willingness of individuals to associate for expressive purposes. If the Government had wished to impose its desired collective responsibility rules as pure time, place, and manner restrictions, it would have enacted them as blanket regulations along the line of the sound system and technician requirements at issue in Ward. In that case, however, there would be no need to attach the "group" liability imposed by federal law, to any signature on a particular permit, just as the sound system and technician requirements did not require the signature or consent of any of the promoters or performers in Ward. Such a blanket rule might well avoid a successful facial challenge for the same reasons the facial challenge failed on its merits in Ward. 31/ But in contrast to that situation, the Government's present scheme has the "group" liability rules arising only out of each permit upon its signature by the holder's representative. This allows, and nothing else prevents, the applicable "group" liability rules to change from permit-to-permit and from case-to-case. Hostile Forest Service administrators could impose a greater chill on the Defendants' expressive association

31/ Just as a flat, nonadjustable $1000.00 permit fee would have posed a much more difficult question than the discretionary fee at issue in Forsyth County, compare Stonewall Union v. City of Columbus, 931 F.2d 1130 (6th Cir. 1991), with Fernandes v. Limmer, 663 U.S. 619 (5th Cir. 1981), the constitutional questions presented by a blanket group liability regulation would be considerably more difficult than those presented here.


than on other favored forest users merely by subtly manipulating the "group" liability conditions on the permits they issue to different users. This is precisely the sort of danger against which facial prior restraint review is directed, 32/ and it is precisely why the Defendants may indeed maintain the facial challenge here.

III. The First Amendment Prohibits the Enforcement of the Challenged Permit Regulations Against the Expressive and Religious Gatherings Which the Defendants Attend.

Crucial to the time, place, and manner challenge and central to the principal prior restraint challenge which these Defendants advance here is the fact, now expressly conceded by the Government, that the challenged permit signature requirement is designed and intended to impose some sort of liability on the "group" using the permit for the failure of some number of individuals to abide by the conditions which can be attached to any permit which issues under the regulations. The Government simply ignores the long-standing recognition, that the imputation of liability, by whatever name, 33/ within expressive associations raises the potential for the most serious chilling effects upon expression and is therefore itself subject to stringent First Amendment constraints. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982)(First Amendment demands "precision of regulation" where issues of group liability arise in context of expressive association). This Court need not, of course, decide that the Government could never insist on some sort of vicarious or collective responsibility on the part of those who use National Forest lands even for expressive and religious purposes. Certainly the application of existing general agency principles to the Government's responsibility concerns would pose few of the dangers warranting facial review. Beyond this, the Government might well be able to supplement settled common-law principles with certain blanket federal-law liability provisions,

32/ This remains true even though the regulations authorize only permit terms and conditions which are unrelated to the content of expression. The considerations left to the licensor in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), were also unrelated to expression, but the licensing scheme did not escape facial scrutiny on that account. Rather, the only effect of the licensor's restriction to content-neutral considerations was to spare the government the burden of affirmatively justifying any permit denial on judicial review. Id. at 229-39.

33/ The Government's curious claim here that the "group" liability which it seeks to impose through the challenged permit signature requirement is not "vicarious," is at best a purely semantic one. The law generally recognizes respondeat superior liability as vicarious, see 57B Am. Jur. 446 (1989), and that doctrine makes a master liable whether it is an individual, corporation, partnership, or unincorporated association.


applicable to all and narrowly tailored to its legitimate concerns. The Government's "group" responsibility scheme challenged here, however, suffers from at least two flaws which so seriously aggravate its chilling effect on expressive association that they are alone fatal. The first is that, on the face of the regulations and even now, the scope of that responsibility remains almost completely undefined. The scheme thus presents the same risk to expression posed by all vaguely defined laws regulating expression. Smith v. Goguen, 415 U.S. 566, 573 (1974). Second, because the "group" responsibility arises from the signature on a particular permit, the Government's scheme allows the collective responsibility to be imposed in a way which can vary from case to case. Thus the chilling effect - already a serious constitutional concern - is exacerbated by the flexibility inherent in liability scheme's current vagueness and in the fact that it is to be imposed case by case.

In their opening brief here, these Defendants complained that the Government has left its notion of "group" liability altogether unclear. Certainly nothing in the challenged regulations defines, explains, or limits that liability in any way, and nothing in the Department's final rule making analysis even begins to explain what the Government might mean by "the actions of [the group's] members as a whole that relate to the use an occupancy of the National Forest System lands." 60 Fed. Reg. 45286. Even before this Court, the Government is unable or unwilling to do anything more than to provide one example of what would not give rise to the "group" liability it contemplates and one example of what would. Yet the Government's group liability example raises more questions than it answers. 34/ In the first place, the Government still speaks in terms of group "members," without specifying whether it considers all persons in attendance at a special use event "members" of the "group" which holds it. Secondly, the Government leaves it unclear what it means - beyond the common law definition (which is independent of any permit, conditions, or signature) - by "within the scope of group activity." Many of those who gather with the Defendants, for instance, often join in circles to

34/ So does its example of purely individual liability. Is the Government suggesting that all cases of criminal or quasi-criminal culpability will be restricted to purely personal liability of the actual actors? Or does the Government contemplate situations where minor law-breaking, though unsanctioned by a group, could be so widespread that a group or its leaders could be cited? Could the organizers of a rock concert held under a permit in a National Forest, for instance, ever be held liable for littering, partial nudity, or marijuana use on the part of many of the audience members?


drum and dance. Virtually all of them do so in environmentally sound ways, but if some number of gatherers form a drum circle in an environmentally sensitive area would the Government revoke the permit as to everyone else? If so, how many individual violators would it take to convert the matter to one involving liability of the "group"? Perhaps most importantly, the Government's single "group" liability example is one in which the collective sanction is mere suspension or revocation of the permit itself. Yet absolutely nothing, not even the Government's brief before this Court, limits the collective sanction to permit revocation. For instance, the Government has said nothing - either in its regulations, in its practice under them, or in its submission to this Court - about such matters as potential collective responsibility for clean up costs. 35/ The limitation of its group liability example to a permit revocation sanction allows the Government to avoid difficult liability questions left unsettled by its regulations. It also allows the Government to ignore the fact that, where a group lacks common assets, "group" liability will inevitably collapse into just the sort of vicarious individual liability which the Government purports to eschew. Yet given the constitutional demand for "precision of regulation" in this sensitive area, the Government cannot ignore these questions or leave them for another case and another day.

35/ To be sure, the Defendants and those with whom they gather ordinarily restore the land to its pristine condition, but there have been occasions where hostile Forest Service Officials have interfered with the completion of their clean-up efforts, and the Government has apparently incurred some restoration costs.


A. The Challenged Regulations Impose an Unconstitutional Prior Restraint Upon the Defendants' Expressive and Religious Association.

The Government expressly admits that it has designed and intends the challenged permit signature requirement to implement the foregoing, ill-defined "group" liability principle on a case-by-case basis. Indeed, the imposition of some special federal-law vicarious or collective responsibility is the only identified governmental value uniquely served by unusual requirement that the permit itself be signed by the user as well as the issuer. While the Government apparently concedes the unusual nature of its permit signature requirement, it argues that no legal importance attaches to this difference. The legal importance is this: by the permit signature requirement, the Government deliberately purports to impose some ill-defined, federal-law collective liability which can vary from case to case as different conditions are attached to permits issued to different users. The challenged permit scheme thus readily allows potentially hostile Forest Service officers to vary, on a case-by-case basis, the recognized chilling effect which the prospect of this collective liability can have. That is precisely what the First Amendment does not allow a prior restraint system to do. 36/

B. Because the Challenged Regulations Are Substantially More Burdensome Than Necessary to Achieve Any Legitimate Governmental Objective, They Are Invalid Time, Place, and Manner Restrictions Upon The Defendants' Expression and Religious Exercise.

Contrary to the Government's suggestion, these Defendants have described time, place, and manner scrutiny as "heightened" above rational basis scrutiny, cf. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986), and as "inter-mediate," cf. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994), citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984), but not as "strict." And they have never argued that a "least restrictive means" analysis is a proper part of time, place, and manner scrutiny. They have argued, with careful attention to the analysis in Ward v. Rock Against Racism, 491 U.S. 781 (1989), that the challenged permit signature requirement is substantially more burdensome than necessary to achieve the government's legitimate interests. Given the serious chilling effect which collective liability, especially a loosely defined collective liability subject to manipulation on a case-by-case basis, can have upon expressive association, the challenged permit signature requirement - designed as it is to impose just such liability - is not narrowly tailored to the government's legitimate goals of deterring fraud in connection with the application process and providing for "reservation desk" and similar notice to the Forest Service and other potential users. Other requirements, perhaps even other signature requirements, are readily available to the Government which fully serve all of these legitimate goals and interest without chilling expression. When regulating expression in a public forum, the Government is not free under Ward to adopt an alternative which "burden[s] substantially more speech than is necessary," Ward at 799, or which is substantially more burdensome than necessary. This is precisely what the challenged permit signature requirement does and is.

36/ The Government's effort to avoid prior restraint scrutiny on the ground that the challenged regulations can also apply to others is unavailing. In the first place, it has offered no information on how common non-expressive non-commercial group uses are in the National Forests. The Department's clear effort to satisfy prior restraint concerns, though ultimately incomplete, indicates its own understanding that applications for expressive uses will predominate. In any event, the challenged regulations have "a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988); see also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62-67 (1989)(generally applicable procedure must comply with First Amendment prior restraint test when used to restrain expression in advance of dissemination).


C. The Challenged Signature Requirement is Properly Subject to Strict Scrutiny Because it is Targeted at the Defendants and Those with Whom They Gather.

The Government has not directly responded to the argument advanced by these Defendants, that even facially neutral justifications for regulations restricting expres-sion are subject to invalidation if they are shown to have been motivated by a desire to restrict expression by certain speakers or the expression of certain viewpoints. In Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788 (1985), certain political and legal advocacy organizations challenged their exclusion from the Combined Federal Campaign, a unified fundraising drive directed at federal employees. Although the Court concluded that the fund-raising drive itself was not a traditional public forum for First Amendment purposes, Id. at 804-806, and although it found that the justi-fica-tions which the government offered for the exclusions were reasonable on their face, Id. at 811, the Court nevertheless remanded the case for further proceedings because even facially neutral justifications "cannot save an exclusion that is in fact based on the desire to suppress a particular point of view," Id. at 812. Restrictions which are so motivated are subject to strict scrutiny, Simon & Shuster, Inc. v. Members of the New York State Crime Victims' Board, 502 U.S. 105 (1991), and, under those circumstances, the mere availability of a less restrictive means of achieving the government's goals will suffice to invalidate challenged regulations. The availability of such less restrictive means of serving the Government's legitimate interests, such as the operating plans which the Forest Service has


historically used in connection with the Gatherings which the Defendants attend. Just as the asserted desire to avoid controversy raised a concern about content discrimination which warranted further analysis in Cornelius, Id. at 812-13, so here the Government's unusual permit signature requirement seems sufficiently likely to have been targeted at the Defendants and their fellow gatherers.


For all of the foregoing reasons, this Honorable Court is respectfully requested to enter a Judgment of Acquittal as to all Defendants for the reasons that (1) under 36 C.F.R. § 261.10(K) only the group, not individuals, is subject to citation or (2) the Forest Services noncommercial group use permit regulations are unconstitutional.

Respectfully submitted,


John Paul Garhart, Esquire
PA ID No: 19753
Witold W. Walczak, Esquire
American Civil Liberties Foundation
Robert A. Sambroak, Jr., Esquire
PA ID No: 33500
Attorneys for the Defendants




		       PLAINTIFF	             CRIMINAL NO.: 99-75 ME

	     V.	                        CRIMINAL NO.: 99-76 ME




I hereby certify that on the 27th day of December 1999, I served a true and correct Copy of the foregoing Reply Memorandum on the following individual(s) in the following manner:

( ) by First Class U.S. Mail, postage prepaid;
( ) by Hand Delivery;
( ) by Fax Transmission to 814. - ;
( ) by e-mail.

John J. Trucilla, Esq. (by Mail)
Assistant United States Attorney
United States Attorney's Office
100 State Street, Suite 302
Erie, PA 16507

Bruce A. Antkowiak, Esq. (by Mail)
One Northgate Square
Greensburg, PA 15601


John Paul Garhart, Esq.
Pa. I.D. 19753
1001 State Street,14th Floor
Erie, Pennsylvania 16501