Michael D. Linick, aka Strider
Defendant/Pro se
707 W. Bridle Path
Payson, AZ 85541
(520) 474-1786

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,
                               NO. CR.-98-502-1-PCT-RGS
               Plaintiff,  
                                DEFENDANT'S MOTION TO
            v.                  DISMISS/MEMORANDUM OF
                                POINTS AND AUTHORITIES
MICHAEL D. LINICK,              IN SUPPORT THEREOF
aka STRIDER,  
                                Oral Argument Requested
               Defendant.

Defendant requests oral argument upon this Motion. Excludable delay under 18 U.S.C. Section 3161(h)(1)(F) - ["delay resulting from any pretrial motion"] - will occur as a result of this motion or of an order based thereon.

COMES NOW the defendant Michael D. Linick, aka Strider, and moves the Court for an Order dismissing the Information filed against him herein on the following grounds:

1) that the regulatory scheme - see Motion to Dismiss [hereinafter "MD"] Exhibit #1 attached hereto - upon which it is based is unconstitutional under the First Amendment of the United States Constitution as it unduly interferes with defendant's [and others'] freedom of expression, freedom of assembly, and/or freedom of religion, and under the Fifth Amendment protection respecting a fundamental liberty interest under the doctrine of substantive due process.

THIS MOTION is supported by the following Memorandum of Points and Authorities, incorporated herein by this reference thereto.

THIS MOTION is made in good faith and not for purposes of delay.

Dated this __16th___ day of September, 1998.

 

______________________________
Michael D. Linick, aka Strider
Defendant/Pro se

MEMORANDUM OF POINTS AND AUTHORITIES

Defendant submits the following Memorandum of Points and Authorities in support of, and made part of, his motion to dismiss:

NATURE OF RAINBOW FAMILY OF LIVING LIGHT GATHERINGS
AND ACTIVITIES

The Rainbow Family of Living Light organizes regular gatherings in the national forests to celebrate life, worship, express ideas and values, and associate with others. 60 Federal Register 45262 [the pages of the Federal Register pertinent hereto are attached as Motion to Dismiss Exhibit #3.] The largest of these meetings is the annual Rainbow Family Gathering. Id. The annual Gathering is held at an undeveloped site in a different national forest each summer and attracts as many as 20,000 people from across the Nation and around the world. Id.

Most individuals who attend Rainbow Family activities on national forests are peaceful and law-abiding, the annual Gatherings attract some who are not. 1/ 60 FR 45264. Moreover, the
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1/ Among some of the ideas that many Rainbow Family participants attempt to disseminate to others, especially the younger generations, are respect for "the mother" [planet earth], for oneself, and for one another. Thus, while not necessarily teaching others to be "law-abiding", e.g. following society's laws, many participants encourage others to live a life of peace with a greater consciousness about the rights of others. Assaultive behavior, thievery, littering, and other acts of disrespect are discouraged by example and sometimes by oral communications.

Rainbow Family has an excellent history of cleaning and rehabilitating the sites upon which it gathers. See for example letter from Susan V. Skalski, Forest Service District Ranger [Big Summit Ranger District], dated July 28, 1997, respecting the cleanup of the 1997 National Gathering held near Prineville, Oregon, MD Exhibit #4; and The Oregonian newspaper article, July 9, 1998, MD Exhibit #5. See also U.S. v. Rainbow Family, 695 F. Supp. 314 (E.D.Tex. 1988) whereat Chief Judge Justice, noting that there was a dispute between the Rainbow Family and the Forest Service as to why the 1987 North Carolina site was not properly cleaned and restored, found there was evidence in the record to the effect that the Rainbow Family had adequately cleaned and restored other gathering sites in the past, such as in northern California in 1984 and Oregon in 1978. at 328, note 3.

CONSTITUTIONAL ASPECTS OF RAINBOW FAMILY GATHERINGS
AND ACTIVITIES

In U.S. v. Rainbow Family, 695 F. Supp. 294 (E.D.Tex. 1988), Chief Judge Justice found:

* * * it cannot reasonably be disputed that the activities in which the [Rainbow Family] defendants seek to engage are "expressive" in nature and accordingly within the ambit of the First Amendment. The record fully reflects that the defendants' anticipated councils, gatherings or meetings in the National Forests will involve significant expressive activity. For example, individual defendants have testified that Rainbow Family gatherings and councils involve exchange of views on many subjects, including political topics, as well as educational seminars and various forms of worship. Moreover, many of those associated with the Rainbow Family view their very participation or association in such events as political statements (for example, some argue for peace and the ecology, while others are in opposition to hierarchical, coercive systems of government). Even the act of camping in the National Forests may have political connotations and qualify as protected symbolic activity. Thus, it is unquestionable that rights of speech, worship, and association, closely guarded under the First Amendment, are operative here. [Citations omitted].

695 F. Supp. at 308 [Emphasis added].

Chief Judge Justice further found:

It also cannot reasonably be disputed that the public Forest Service lands are the type of forum in which expressive activity has historically occurred, and in which public expression of views must be tolerated to a maximal extent. E.g., Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)(use of public streets and parks for exchange of ideas has "from ancient times been a part of the privileges" of citizenship). In contrast to military bases or other government facilities that have been designated for a particular use or function and may be closed to expressive activity, [citations omitted], the National Forests are traditionally open to any user seeking to engage in appropriate recreational or other activities, including those involving speech, worship or association. See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass'n, __ U.S. __, __, 108 S.Ct. 1319, 1321-23, 99 L.Ed.2d 534 (1988)(historic use of National Forest sites for Indian religious purposes); United States v. Beam, 686 F.2d 252, 256-57 (5th Cir. 1982)(describing various groups' use of National Forest System lands in Texas).

U.S. v. Rainbow Family, supra, at 308-09. [Emphasis added].

See also U.S. v. Rainbow Family, 695 F. Supp. 314, 322-23 (E.D. Tex. 1988).

HISTORY OF PERMIT ISSUE RESPECTING RAINBOW FAMILY

The regulations in Part 251 which define "special uses" of National Forest System [hereinafter "NFS"] lands, and establish the types of uses for which a special use permit is required, were originally published on June 6, 1980, and were amended on June 21, 1984. U.S. v. Rainbow Family, 695 F. Supp. 294, 300. The first attempt to enforce these regulations was in the form of citations given to several participants at the 1980 Rainbow Family National Gathering in West Virginia, a mere few weeks after they were first promulgated. However, in 1986, the U.S. District Court for the District of Arizona held, in an unpublished Order, that the regulatory scheme as then written was unconstitutional as it impermissibly singled out those who wished to gather in order to exercise their First Amendment rights. United States v. Israel, NO. CR-86-027-TUC-RMB (D. Ariz. May 15, 1986).

A second revision of the regulations, in the form of an interim rule to take immediate effect, was published by the Secretary of Agriculture in the Federal Register on May 10, 1988 (53 FR 16548), the same day on which the government filed a complaint and application for a temporary restraining order to bar the 1988 Rainbow Family National Gathering to be held in Texas. U.S. v. Rainbow Family, 695 F. Supp. 294, 300. On June 1, 1988, Chief Judge Justice of the U.S. District Court for the Eastern District of Texas denied the U.S. Government's motion for a preliminary injunction on three grounds: (1) the May 10, 1988 interim special use permit rule had not been validly adopted, (2) that the special use permit regulations violated the First Amendment to the extent they distinguished between expressive conduct, such as was at issue there, and other forms of group activity in National Forest, and (3) that the special use permit regulations violated the First Amendment to the extent they did not provide objective and narrowly drawn standards for issuance or denial of permits for expressive activity. U.S. v. Rainbow Family, 695 F. Supp. at 314. Chief Judge Justice also found other infirmities with the then existing regulatory scheme, including: a) that there was no requirement in the regulations that a statement of reasons for denying a permit must be given by the Forest Service official, b) that the regulations imposed no time frame or deadline for when a special use permit application was to be made, c) that there was no time frame or deadline by when a decision on such an application must be delivered by the Forest Service official, and d) the regulations did not provide whether any judicial review or appeal was available. U.S. v. Rainbow Family, 294 F. Supp. at 311.

On June 23, 1988, Chief Judge Justice granted a permanent injunction which limited the 1988 Gathering in specific ways, e.g. limiting the number of participants at any one gathering site to 5,000, but he specifically held that a total proscription of the gathering was unjustified. U.S. v. Rainbow Family, 695 F. Supp. 314 at 329-332. On April 14, 1989, Chief Judge Justice issued an unpublished Memorandum Opinion and Judgment in which he held that the Rainbow Family was the "prevailing party" and awarded costs and attorney's fees to the attorney who represented the served defendants in the amount of $13,669.09. Chief Justice also dismissed the permanent injunction previously granted.

On May 6, 1993, in response to the rulings by Chief Judge Justice, the Forest Service published a proposed rule to regulate noncommercial group uses on NFS lands in an attempt to comply with First Amendment requirements of assembly and free speech (58 FR 26940). See MD Exhibit #3 - 60 FR 45259. The final rule, under which the undersigned defendant is being prosecuted, became

effective September 29, 1995.

Since the 1995 regulatory scheme became effective, the Forest Service has cited individuals at various gatherings, including, but not limited to, a 1996 regional gathering in North Carolina [see U.S. v. Johnson, 988 F. Supp. 920 (W.D.N.C. 1997), the 1997 National Gathering in Oregon [citations against five individuals dismissed upon motion of U.S.), a 1998 regional gathering in Missouri (charges unresolved), and a 1998 regional gathering in California (charges unresolved). The Forest Service cited the undersigned defendant at the 1998 National Gathering in Arizona on June 19, 1998. The only case decided with a published decision since the 1995 rule became effective is U.S. v. Johnson. There, a District Judge found, inter alia, that the regulations governing group-use of National Forest lands, 36 C.F.R. Sections 251.50, 251.51, 261.10(k), do not unconstitutionally burden the Rainbow Family's First Amendment rights of freedom of expression. Johnson, 2/ supra. The decision is currently on appeal to the Fourth Circuit Court of Appeals. Moreover, issues raised by defendant herein were not raised in this North Carolina case.

THE SIGNIFICANT INTERESTS AT STAKE

The Department established three significant interests at stake in promulgating the 1995 regulations involved herein: (1) Protection of
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2/ The Federal District Court did agree with the findings of the Eastern District Court for the District of Texas that the "expressive" nature of Rainbow Family gatherings brings it under the purview of First Amendment protections of speech and association. U.S. v. Johnson, 988 F. Supp. 920 (W.D.N.C. 1997) at 923-4.

forest resources and facilities; (2) promotion of public health and safety; and (3) allocation of space in the face of greater competition for the use of National Forest System lands. See MD Exhibit #3 - 60 FR 45262. 3/

RELEVANT CONSTITUTIONAL PRINCIPLES

The First Amendment of the U.S. Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Fifth Amendment of the U.S. Constitution provides in pertinent part:

* * * nor shall any person * * * be deprived of life, liberty, or property, without due process of law.

Moreover, as the Federal District Court stated in Waters v. Barry, 711 F. Supp. 1125 (D.D.C. 1989):

The right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all - and to do so whenever one pleases - is an integral component of life in a free and ordered society. Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110 (1972); Bykofsky v. Borough of Middletown, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976)(Marshall J., dissenting from denial of certiorari); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). This right is rooted in the First Amendment's protection of expression and association, as well as (in this case) the Fifth Amendment's protection of fundamental liberty interests under the doctrine of substantive due process. at 1134.

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3/ See also Motion To Dismiss Exhibit #3 - 60 FR 45278 whereat it states, "In view of these problems, the Department has established three significant interests in promulgating this rule: Protection of forest resources and facilities; promotion of public health and safety; and allocation of space within the National Forest System."

POINTS AND AUTHORITIES

1) The regulatory scheme is unconstitutional in that it gives the "authorized officer" unfettered and unbridled discretion to attach "terms and conditions" to a special use authorization which could effectively bar or unduly restrict the defendant's [and others'] exercise of free expression, free assembly, and/or freedom of religion, to wit, "such terms and conditions as the authorized officer deems necessary to * * * otherwise protect the public interest" [Section 251.56(a)(2)(vii)], in violation of such guarantees under the First and Fifth Amendments of the U.S. Constitution, and further, that such provision is consequently unconstitutionally vague.

The U.S. Supreme Court and other federal courts have struck down licensing regulations as unconstitutionally vague if the regulatory scheme vests too much discretion in the granting or denying of a permit. See for example, Shuttlesworth v. City of Birmingham, Ala, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). While the Department of Agriculture claims to have cured this defect in its 1995 amendments to the federal regulations respecting special use authorizations, it attempts to go through the back door to accomplish what it could not through the front door, by giving the "authorized officer" the unfettered and unbridled discretion to add "terms and conditions" which he or she "deems necessary to otherwise protect the public interest."

Terms and conditions attached to a special use permit or authorization in accordance with a regulatory scheme can be so onerous and oppressive as to preclude the practicability or feasibility of using the permit or authorization, or to unduly restrict it. Courts, including the U.S. Supreme Court, have recognized this. In City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108 S.Ct. 2138 771 (1988), the U.S. Supreme Court stated:

Having concluded that the Newspaper may facially challenge the Lakewood ordinance, we turn to the merits. Section 901.181, Codified Ordinances, City of Lakewood,

provides: "The Mayor shall either deny the application [for a permit], stating the reasons for such denial or grant said permit subject to the following terms. . . ." Section 901.181(c) sets out some of those terms, including: "(7) such other terms and conditions deemed necessary and reasonable by the Mayor." It is apparent that the face of the ordinance itself contains no explicit limits on the mayor's discretion. Indeed, nothing in the law as written requires the mayor to do more than make the statement "it is not in the public interest" when denying a permit application. Similarly, the mayor could grant the application, but require the newsrack to be placed in an inaccessible location without providing any explanation whatever. To allow these illusory "constraints" to constitute the standards necessary to bound a licensor's discretion renders the guarantee against censorship little more than a high-sounding ideal. See Shuttlesworth, 394 U.S., at 150-151, 89 S.Ct., at 938-939.

The city asks us to presume that the mayor will deny a permit application only for reasons related to the health, safety, or welfare of Lakewood citizens, and that additional terms and conditions will be imposed only for similar reasons. This presumes the mayor will act in good faith and adhere to standards absent from the ordinance's face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows. E.g., Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The doctrine requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice. [Citations omitted]. This Court will not write nonbinding limits into a silent state statute.

at 2150-51. [Emphasis added].

See, also, TJ's South, Inc. v. Town of Lowell, 895 F. Supp. 1124 (N.D.Ind. 1995), wherein the District Judge stated:

The ordinance also allows officials to give with one hand while taking away with the other. A special exception may be granted subject to "conditions and safeguards." With the exception of one obscure reference to off-street parking and loading zones, the record gives no clue as to what conditions and safeguards Defendants have the authority to require. Under this broad latitude, an official might place conditions on a special exception that are so burdensome that the applicant can derive no real benefit from using it. See Lakewood, 486 U.S. at 769, 108 S.Ct. at 2151 (noting that "the mayor could grant the application, but require the newsrack to be placed in an inaccessible

location without providing any explanation whatsoever").

at 1131-32. [Emphasis added].

See also Santa Fe Springs Realty Corp. v. City of Westminster, 906 F. Supp. 1341, 1366 (C.D.Cal. 1995)(if an ordinance allows a planning commission or city council to "place any condition on the project, without limitation, the ordinance would undoubtedly constitute an unconstitutional prior restraint"); Dease v. City of Anaheim, 826 F. Supp. 336 (C.D.Cal. 1993)(language of conditional use permit ordinance which allowed the city to make decisions based upon such ambiguous criteria as the "general welfare" of the community gave the city unbridled discretion and thus constituted an unconstitutional prior restraint on speech or expression); CR of Rialto, Inc. v. City of Rialto, 975 F. Supp. 1254, 1263-4 (C.D.Cal 1997)(Section 18.66.010 of Chapter 18.66 grants excessive discretion to City officials to impose whatever conditions upon the [Conditional Development Permit] that they deem "necessary and desirable to protect public health, safety and welfare").

The phraseology "necessary to protect the public interest" is as vague as the phraseology found in Shuttlesworth, supra, specifically, "the public welfare, peace, safety, health, decency, good order, morals or convenience." See also TJ's South, Inc. v. Town of Lowell, supra at 1130 ("Thus, the 'necessary for the public convenience' phrase gives the official a vague and formidable standard to wield in refusing a special exception. One can readily envision an official being faced with a proposal to present entertainment carrying a message the official opposes, and denying the exception under the guise that it is not necessary for

public convenience"); Staub v, City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 282, 2 L.Ed.2d 302 (1958)(The criteria "effects upon the general welfare of citizens of the City of Baxley" is without semblance of definitive standards or other controlling guides governing the action of the Mayor and Council in granting or withholding a permit. "It is thus plain that they act in this respect in their uncontrolled discretion").

That the phrase "to otherwise protect the public interest" is vague, and is not an objective standard, thereby vesting unbridled discretion within the authorized officer, is further evidenced by the Department of Agriculture's own comments in the Preamble to the 1995 Regulations. Specifically, the Department states:

Under the proposed and final rules, applications for noncommercial group uses cannot be granted or denied at will, on the basis of prejudice, on the basis of what might happen, or on the basis of a personal interpretation of the public interest. Rather, these applications must be granted or denied on the basis of the specific, content-neutral evaluation criteria at 251.54(h)(1) that vest little or no discretion in the authorized officer. [Emphasis added] 4/ 60 FR 45277.

Indeed, while the Department of Agriculture acknowledges that allowing an authorized officer to make a decision respecting the granting or denial of a special use authorization on the basis of the authorized officer's personal interpretation of the public interest is unconstitutional, it evidently is blind to the obvious that allowing an authorized officer to impose any term or condition upon a granted special use authorization on the basis of the authorized officer's personal interpretation of the public interest suffers from the same constitutional infirmity - it vests unbridled discretion and power in the hands of the authorized officer to infringe upon peoples' constitutional rights of free expression, association, and/or religion.

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4/ See also Section 251.60(b) whereat it provides:

A special use authorization may be suspended, revoked, or terminated at the discretion of the authorized officer for reasons in the public interest, except that this provision shall not apply to a special use authorization for a noncommercial group use. [Emphasis added]

This evidences that the Department of Agriculture recognizes reasons "in the public interest" vest discretion within a public official, in this case, the "authorized officer. "

2) The regulatory scheme is unconstitutional in that it gives the "authorized officer" unfettered and unbridled discretion to impose "terms and conditions" which said "authorized officer deems necessary to protect Federal * * * economic interests", [Section 251.56(a)(2)(i)], thereby imposing an unconstitutional, unlawful, and unreasonable barrier or infringement upon defendant's [and others'] exercise of free expression, freedom of assembly and/or freedom of religion in violation of such guarantees under the First and Fifth Amendments of the U.S. Constitution, and further, that such provision is consequently unconstitutionally vague.

Moreover, this provision, allowing the authorized officer to impose any term or condition that he or she deems necessary to "protect Federal economic interests", is a) not narrowly tailored to serve a significant government interest, and/or b) does not serve any of the three significant interests identified by the Department of Agriculture for requiring special use authorizations for group uses on NFS lands, and is therefore an unconstitutional infringement upon defendant's [and others'] exercise of freedom of expression, freedom of assembly, and/or freedom of religion guaranteed by the First Amendment of the U.S. Constitution and of his fundamental liberty interests guaranteed by the Fifth Amendment under the doctrine of substantive due process.

a) Defendant incorporates herein the argument he makes in subsection (1) above as it applies to the term and condition standard "deems necessary to protect Federal economic interests."

b) As aforestated herein, the Department of Agriculture has identified three, and only three, significant government interests involved in its licensing scheme respecting NFS lands. See Pages 7-8 hereof. However, the Federal economic interests concern none of these identified interests, and none are served or advanced

by a condition or term imposed to protect the Federal economic interests. Accordingly, the regulatory scheme is unconstitutional because a term or condition "necessary to protect Federal economic interests" does not serve or advance any of the significant government interests identified by the Department of Agriculture.

c) A governmental entity's economic interest is not a valid consideration respecting the ability of an individual or individuals to exercise First Amendment freedoms. If it were a valid consideration, then a governmental entity, such as a municipality, could bar a parade or speech by a Nazi organization or other unpopular group because the municipality might have to pay police officers to work overtime or extra duty in order to prevent violence generated by the parade or speech. Or a municipality could attempt to bar a Fourth of July parade merely because it does not have enough officers to handle traffic control and would otherwise have to pay third parties to do so, if volunteers could not be found. An individual's or individuals' exercise of First Amendment rights to expression, association, and/or religion should not be and cannot constitutionally be made contingent on a governmental entity's economic interests.

d) The phrase "necessary to protect Federal economic interests" vests unbridled discretion in the authorized officer to impose terms and conditions on the licensee, is neither a narrowly drawn, nor specific and objective standard required to guide the authorized officer in imposing terms or conditions, and is unconstitutionally vague and overbroad.



3) The regulatory scheme is unconstitutional in that it gives the authorized officer unbridled and unfettered discretion to limit the duration of defendant's [and others'] exercise of free expression, freedom of assembly and/or freedom of religion, under the First and Fifth Amendments of the U.S. Constitution, to wit, that Section 251.56(b)(1) provides "The duration [of each special use authorization] shall be no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization * * *" [Emphasis added].

Additionally, such provision is consequently unconstitutionally vague.

Additionally, such provision is not a place, time, or manner restriction, and the regulatory scheme therefore violates defendant's [and others'] constitutional rights to free expression, free association, and/or freedom of religion.

a) Defendant incorporates herein the argument he previously made in subsection (1) above;

b) It is an unconstitutional infringement upon defendant's [and others'] constitutional right to his [their] exercise of free expression, assembly, and religion for a government official to determine what length of time is "necessary to accomplish the purpose of the authorization, and is not a reasonable obstacle thereto, whether or not it serves a significant government purpose. Chief Judge Justice noted in U.S. v. Rainbow Family:

Furthermore, vesting the official with the discretion to propose an alternative place or time for the expressive activity, [of] his or her own choosing, is highly repugnant to the First Amendment's spirit of allowing citizens the freedom to decide when and where they wish to exercise their rights to speak, worship, or assemble. "One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151-52, 84 L.Ed. 155 (1939) [Emphasis added].

695 F. Supp. 294, at 312, note 6. It is not only highly repugnant to the First Amendment guarantees of free expression, worship, and/or association to allow a government official the unbridled discretion to limit the length of the exercise of these guarantees to that period of time the official believes

necessary to accomplish the expression, worship, and/or association, it violates these guarantees and cannot be sustained. While some sites for the exercise of liberty of expression, worship, and association may not be appropriate, e.g. a grizzly bear habitat during early spring, when the grizzly bear, a species listed as threatened and protected under the Endangered Species Act, comes out of hibernation, or a Native American burial ground, and a special use authorization to gather there may be properly denied, with the offer of an alternative site, there is no lawful, constitutional justification for a government official to have any discretion whatsoever to determine the length of time that is needed to accomplish the goals of the exercise of free expression, worship, and/or association. This is not to say that a regulation cannot provide that the exercise of expression, worship, and/or association cannot be barred when the location is not open to the public, e.g. sleeping in Lafayette Park; it does say that a regulation cannot limit the exercise of expression, worship, and/or association to the length of time some official thinks is all that is needed, e.g. one day a week for a patron of Lafayette Park to get on a soapbox, or hold a picket sign when the Park is otherwise open to the public, or limit the number of hours a group may hold a peace rally in a public park during daytime hours when it is open to the public.

4) The regulatory scheme is unconstitutional in that whereas it provides for immediate judicial review in the event that a special use permit for a noncommercial group use is denied, it does not provide for immediate nor prompt judicial review of any term or condition that may effectively bar or unduly restrict the defendant's [and others'] exercise of free expression, freedom of assembly and/or freedom of religion.

As previously observed, a

term or condition attached to a special use authorization could have the same effect as a denial of such authorization. See Lakewood, supra; TJ's, supra. Whereas the regulatory scheme at issue herein provides for immediate judicial review in the event that a special use permit for a noncommercial group use is denied, 5/ or in the event a permit once granted is suspended or revoked, 6/ the regulatory scheme does not provide for prompt judicial review for an applicant to contest or challenge a term or condition attached by the authorized officer to a special use authorization. Rather, it provides for an administrative appeal, the length of which could preclude the occurrence of the activity for which the authorization is being sought. A term or condition applied to a special use authorization would be covered by the administrative appeal process found in Sections 251.80 through 251.102. See for example Section 251.80(b) which provides "The rules in this subpart [C] seek to offer appellants a fair and deliberate process for appealing and obtaining administrative review of decisions regarding written instruments that authorize the occupancy and use of National Forest System lands" [Emphasis added]; Section 251.86 which provides "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 written authorization to occupy and use NFS land covered under Section 251.82 of this subpart and (1) * * *, or (2) was offered an authorization subject to terms and conditions that the applicant finds unreasonable or impracticable. [Emphasis added].

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5/ See Section 251.54(h)(2): "* * * A denial of an application under paragraphs (h)(l)(i) through (h)(l)(viii) of this section constitutes final agency action and is immediately subject to judicial review".

6/ See Section 251.60(a)(ii): "Revocation or suspension of a special use authorization under this paragraph constitutes final agency action and is immediately subject to judicial review".

(b) The signatory(ies) or holder(s) of a written authorization to occupy and use National Forest System land covered under Section 251.82 of this subpart who seeks relief from a written decision related to that authorization"; and Section 251.101 which provides: "It is the position of the Department of Agriculture that any filing for Federal judicial review of and relief from a decision appealable under this subpart is premature and inappropriate, unless the appellant has first sought to resolve the dispute by invoking and exhausting the procedures of this subpart. This position may be waived only upon a written finding by the Chief." 7/

The above evidences that an applicant's challenge to a term or condition attached to a special use authorization is subject to the administrative appeal process found in Subpart C of the regulatory scheme, whereas a denial of a special use authorization or a suspension or revocation of the same would be afforded immediate judicial review. Yet, a term or condition attached to a special use authorization could have the same effect as a denial of the authorization. See Lakewood, supra. Accordingly, the regulatory scheme herein is unconstitutional for failing to provide an applicant the opportunity to seek prompt judicial review of any term or condition attached by the authorized officer to a special use authorization.

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7/ That the terms and conditions of a special use permit or authorization are not entitled to immediate judicial review but, to the contrary, require an appeal through the administrative process entitled Subpart C - Appeal of Decisions Relating to Occupancy and Use of National Forest System Lands, is further evidenced by the proffered permit in the present case, specifically clause 15 thereof which provides: "Any changes to this permit, its provisions, or requirements may be subject to appeal per 36 CFR Part 251, Subpart C, as amended." [see MD Exhibit #2, Page 3, specifically that part entitled Part II - Permit].

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5) The regulatory scheme is unconstitutional because whereas it allows the authorized officer to impose terms and conditions to a special use authorization, it does not require the authorized officer to give any reasons, either orally or in writing, for imposing any particular term or condition to a special use authorization.

While under the existing regulatory scheme, all an authorized officer might say respecting why he or she attached a particular term or condition to a special use authorization is "I think such term or condition is necessary 'in the public interest,'" he or she doesn't have to say anything or give any reason or explanation whatsoever. This is the same defect found in regulatory schemes that fail to require a public official to give reasons for denying a permit. See U.S. v. Rainbow Family, 695 F. Supp. 294 at 311 ("Neither is there any requirement in the regulations that even a statement of reasons for denial of a permit must be given.").

6) The regulatory scheme which requires a term or condition be added to all special use authorizations for noncommercial group uses of NFS lands that "holders shall pay the United States for all injury, loss, or damage, including fire suppression costs, in accordance with existing Federal and State laws" [see Section 251.56(d)], and "holders shall also indemnify the United States for any and all injury, loss, or damage, including fire suppression costs, the United States may suffer as a result of claims, demands, losses, or judgments caused by the holder's use or occupancy" [see Section 251.56(d)(1)] are unconstitutional because they have an undue chilling effect on defendant's [and others'] exercise of free expression, assembly, and religion.

Moreover, Section 251.56(d)(1) violates the Due Process Clause of the United States Constitution, Amendment V, in that the regulatory scheme does not require that the United States vigorously defend against any claims, demands, losses, or judgments caused by the holder's use or occupancy, and yet the holder may have to indemnify the United States for any and all injury, loss, or damages the United States may suffer as a result of the same. Accordingly, the holder may have a defense to any such injury, loss, or damage but may not be able to raise such defense, if the United States admits liability and then seeks indemnification from the holder.

Moreover, assumption of liability and indemnification clauses do not regulate the time, place, or manner of a noncommercial group use of NFS lands, a public forum, and therefore violate defendant's [and others'] constitutional rights to free expression, association, and/or religion.

If the Rainbow Family is determined to be an unincorporated association as it has been [see United States v. Rainbow Family, 695 F. Supp. 294 (E.D. Tex. 1988)], an individual attending the Rainbow Gathering who has considerable assets may have such assets jeopardized and even taken away for the negligence of some other individual attending the Gathering who may not be able to pay a judgment for their negligence, and that therefore the individual with assets may not attend the Gathering, and thereby not exercise his or her free expression, assembly and/or religion, because he or she does not want to be held personally liable for someone else's conduct or negligence.

Where an action against an association is not brought pursuant to the requirements of statute, the action is necessarily predicated on a claim of responsibility on all members, and their individual property is subject to the satisfaction of a judgment. 7 C.J.S. Associations Section 52. Under statutes providing for suit against associates in their common name, and that the judgment in such action shall bind the joint and individual property of the parties served with process, recovery may be had from the individual members of an association. Id.

See also Sperry Products v. Asso. of American Railroads, 132 F2d 408 (1942), wherein Judge Learned Hand stated:

Before the decision in United Mine Workers v. Coronado Coal Co. 259 US 344, 42 S Ct 570, 66 L ed 975, 27 ALR 762, an unincorporated association could not be sue in a federal court unless all the members were joined, or unless the court were willing to treat the action as a class suit, the limitations of which then as now were by no means well

defined. That case laid it down that such associations could be sued as such, and that execution upon the judgment would go against their collective funds. Rule 17(b) now covers the same ground. However, neither the decision nor the rule made any change in the nature of the liability, which at common law in cases of tort was that of the members severally. Indeed, that was almost inevitable unless a new jural person were created on whom to impose a collective liability. This the court recognized in United Mine Workers v. Coronado Coal Co. supra, 259 US 344, 390, 42 S Ct 570, 66 L ed 975, 27 ALR 762; and it is the general law [Citation omitted]; as it is the law of partnership [Citations omitted] to which the common law assimilated an unincorporated association.

* * *

As to the Long Island Railroad Company the plaintiff's attitude is not clear. It seems not to wish to take judgment against it individually, and yet the complaint alleges that all members of the association have individually infringed, and asks judgment against them individually. As we have said, to each member of the Association is imputed the liability of those who in fact used the infringing machine, provided that the articles authorized them to use it; no other liability can exist except that of the members and the agents.

7) The regulatory scheme is unconstitutional because:

a) it gives the authorized officer unbridled discretion to deny a permit, specifically, a special use authorization, to an individual, individuals, and/or group which is, as defined by the regulation, engaged in any use or activity where an entry or participation fee is charged, if "[t]he proposed use would not be in the public interest," [Section 251.54(i)(2) in conjunction with Section 251.51 definition of commercial use or activity"] even though the individual, individuals, and/or group may be meeting in the National Forest to engage in expressive or communicative activities, religious activities, and/or other activities protected by the First Amendment of the U.S. Constitution, 8/ and/or

___________________________

8/ See also Section 251.60(b) whereat it provides:

A special use authorization may be suspended, revoked, or terminated at the discretion of the authorized officer for reasons in the public interest, except that this provision shall not apply to a special use authorization for a noncommercial group use. [Emphasis added]

This clause in the regulatory scheme likewise renders the entire scheme unconstitutional as, while this clause excepts noncommercial group use from its terms, a group whose purpose for using National Forest System land" is expression, or communication but who charges an entry fee [perhaps' to defray or offset the costs of holding the event], engages in commercial use or activity as defined by the regulation". See Section 251.51 [definitions]. Accordingly, such a group use falls within thin clause, and whether or not to suspend, revoke, or terminate the special use authorization is left, by the clause's very terms, to the unbridled discretion of the authorized officer that it is "not in the public interest."

Moreover, the regulatory scheme is unconstitutional because it does not provide for prompt judicial review of a denial, or a revocation, suspension, or termination of a special use authorization for a "commercial use or activity,. e.g. a use or activity for which an entry or participation fee i" charged, even if such use or activity significantly involves First Amendment rights of expression, association, and/or religion, but instead subjects the same first to the lengthy administrative appeal process found at 36 CFR 251, Subpart C, as amended. See for example Section 251.60(a)(2)(iv).

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b) The definition of commercial use or activity found in Section 251.51(b) is unconstitutionally vague as it allows an authorized officer or other governmental employee to determine what the "primary purpose" of a group or individual is.

With respect to (a) above, Section 251.51 entitled definitions provides in pertinent part:

Commercial use or activity -- any use or activity on National Forest System lands (a) where an entry or participatory fee is charged.

According to this definition, a use or activity that involves First Amendment freedoms, such as the constitutional rights of expression and communication, and/or the exercise of religion and worship, is a commercial use or activity if the individual, individuals, and/or group engaging in it charges, for whatever reason, an entry fee or participation fee.

Section 251.54(i)(2) of the regulatory scheme provides in pertinent part:

(i) Response to applications for all other special uses. An authorized officer may deny issuance of [a special use] authorization for all other special uses, including group events not subject to paragraph (h) of this section, if that officer determines that:

(2) The proposed use would not be in the public interest.

Paragraph (h) of 251.54 respects responses to applications for noncommercial uses.

If a group intending to use NFS lands for expressive purposes, e.g. a speech by some politically unpopular individual, charges an entry fee to the speech, perhaps to defray the expenses of putting on the speech, e.g. paying the speaker's travel expenses, etc., such becomes a commercial use or activity under the definition of the same found in Section 251.51. Consequently, Section 251.54(i)(2), as oppose to Section 251.54(h), becomes applicable, with the result that the authorized officer has unbridled discretion to deny the issuance of a permit for the use or activity if he or she determines that the proposed use is "not in the public interest." The "not in the public interest" standard is not a specific, objective standard as required by Shuttlesworth, supra, and is unconstitutionally vague; it leaves the government official with the power to deny a permit to use or activities involving expression, communication, and/or association of which the government official may not approve. 9/
_______________________________

9/ It appears the Department of Agriculture is unaware that commercial speech or expression is afforded protection by the First Amendment of the U.S. Constitution. In fact, many of the cases involving permit or licensing schemes that have been struck down as unconstitutionally vague, or for giving a governmental agency or employee unbridled discretion to deny permits or licenses, involve establishments that charge a fee for displaying shows or providing entertainment of a sexual nature.

Hypothetically, if the Rainbow Family were to charge a small entry fee of gatherers, perhaps to buy food for the gatherers, or to defray expenses, the annual gathering would be deemed, under the definition, a "commercial use or activity," and the authorized officer could then deny the Gathering a special use authorization if he or she determines such is "not in the public interest." Yet, merely because an entry fee is charged doesn't change the underlying nature of an event -- in the case of the Rainbow Family, charging a small entry fee wouldn't change the characterization of the Gathering made by Chief Judge Justice in U.S. v. Rainbow Family, supra: "it is unquestionable that rights of speech, worship, and association, closely guarded under the First Amendment, are operative here." 695 F. Supp 308.

While the Rainbow Family will never charge an entry fee for a gathering, and the above is hypothetical, the above demonstrates that the regulatory scheme is facially unconstitutional.

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With respect to (b) above, the second part of the definition of "commercial use or activity", specifically, 251.51 "any use or activity on National Forest System lands (b) where the primary purpose is the sale of a good or service," gives the authorized officer unbridled discretion to determine what the "primary purpose" of a use is, rendering the regulatory scheme facially unconstitutional. For example, a church group may hold a "bake sale" on NFS lands, primarily as a social get together - an opportunity for church members to have fun in the sun, socialize with each other, etc - and secondarily to raise a little money for a cause, whereas the authorized officer or other governmental employee may look at the sale of baked goods, and the raising of church funds, as the primary purpose of the get together. Thus, this definition is unconstitutionally vague, rendering the regulatory scheme unconstitutional.

CONCLUSION

Based upon the foregoing, the Court should grant defendant's Motion to Dismiss the Information charging him.


Dated this _16th_ day of September, 1998.

Respectfully submitted,

_______________________________
Michael D. Linick, aka Strider
Defendant/Pro se