No. 98-10502.
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
MICHAEL D. LINICK and HENRY G. BAILEY III,
Defendants-Appellees,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
____________________
BRIEF FOR THE APPELLANT
____________________
DAVID W. OGDEN
Acting Assistant Attorney General
JOSE de JESUS RIVERA
United States Attorney
MICHEL JAY SINGER
(202) 514-5432
HOWARD S. SCHER
(202) 514-4814
Attorneys. Appellate Staff
Civil Division. Room 9124
Department of Justice
601 D Street. N.W.
Washington. D.C. 20530-0001
TABLE OF CONTENTS
STATEMENT OF JURISDICTION ...........................................................
1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .................
2
STATEMENT OF THE CASE ....................................................................
2
A Nature of the Case ...................................................................................
2
B. Statutory and Regulatory Framework ....................................................
3
C. Statement of the Facts and Proceedings Below .....................................
8
1. Background ......................................................................
8
2. The Present Case .............................................................
11
SUMMARY OF ARGUMENT .................................................................
12
ARGUMENT ............................................................................................
16
Standard of Review ...................................................................................
16
I. THE DISTRICT COURT ERRED IN FINDING THE
REGULATIONS UNCONSTITUTIONAL .....................................
17
Introduction .....................................................................................
17
A. The District Court Erred In Entertaining Defendants'
Facial Challenge In The Context Of This Case ....................................
18
B. In Any Event, Defendants' Facial Challenge Fails
On Its Merits ..................................................................................
24
1. The regulation meets the test for time, place,
-and manner restrictions ..................................................................
24
2. The regulation does not grant unbridled discretion to
the Forest Service ..............................................................................
28
II. ANY REGULATORY PROVISION FOUND UNCONSTITUTIONAL
SHOULD BE SEVERED FROM THE REMAINDER OF THE
REGULATIONS, ALLOWING THE PROSECUTION
TO PROCEED .....................................................................................
36
CONCLUSION ..............................................................................................
39
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
STATUTORY AND REGULATORY ADDENDUM
ii
TABLE OF AUTHORITIES
Cases:
Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987)
............... 37,38
Aqua-Marine Constructors. Inc. v. Banks,
110 F.3d 663 (9th Cir. 1997) ..................................................
31
Black v. Arthur, 18 F. Supp. 2d 1127 (D. Or. 1998),
appeal pending,
Nos. 98-36044 & 98-36046 (9th Cir.) ................. 9,22,26,27,28,30,34
Broadrick v. Oklahoma, 413 U.S. 601 (1973) .....................
20, 21, 29
Buckley v. Valeo, 424 U.S. 1 (1976) .............................................
17
Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984) .............................................................
25
Cox v. New Hampshire, 312 U.S. 369 (1941) .................................
29
Dombrowski v. Pfister, 380 U.S. 479 (1965) ..............................
33-34
FW/PBS. Inc. v. City of Dallas, 493 U.S. 215 (1990)
.............. 20,21,23
Forsyth County v. Nationalist Movement, 505 U.S. 123
(1992) ......... 29
Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998)
...............18,25
Freedman v. Maryland, 380 U.S. 51 (1965) ........................................
21
Hamling v. United States, 418 U.S. 87 (1974) ....................................
33
K-Mart Corp. v. Cartier. Inc., 486 U.S. 281 (1988) ............................
37
Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750
(1988) .... 18-19
iii
Massachusetts v. Oakes, 491 U.S. 576 (1989) ................................
33
Melugin v. Hames, 38 F.3d 1478 (9th Cir. 1994) .............
29, 31-32, 34
National Endowment for the Arts v. Finley,
118 S. Ct. 2168 (1998) ......................................................
21, 24
Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997)
............... 20
Osborne v. Ohio, 495 U.S. 103 (1990) ..................................
33, 34, 35
Outdoor Systems. Inc. v. City of Mesa, 997 F.2d 604
(9th Cir. 1993) . 4
Regan v. Time. Inc., 468 U.S. 641, 652 (1984) .................................
37
Peretz v. United States, 501 U.S. 923 (1991) ....................................
31
Postscript Enterprises v. City of Bridgeton, 905 F.2d 223 (8th
Cir
1990) ........................................................................................
29
Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996)
......... 17, 20, 24
Sante Fe Springs Realty v. City of Westminster, 906
F. Supp. 1341
(C.D. Cal. 1995) ........................................................................
34
Stokes v. City of Madison, 930 F.2d 1163 (7th Cir. 1991)
................. 29
Tennison v. Paulus, 144 F.3d 1285 (9th Cir. 1998) .......................
20, 29
United States v Barid, 85 F.3d 450 (9th Cir. 1996) .........................
20, 30
United States v. Colacurcio, 84 F.3d 326 (9th Cir. 1996)
........... 17, 30-31
United States v. Hogue, 752 F.2d 1503 (9th Cir. 1985)
......................... 34
United States v. Johnson, 988 F. Supp. 920 (W.D.N.C.
1997),
aff'd, 159 F.2d 892 (4th Cir. 1998) .................................................
35
iv
United States v. Johnson, 159 F.3d 892 (4th Cir. 1998)
....14, 25-26, 27, 28
United States v. Lacy, 119 F.3d 742 (9th Cir. 1997)
.............................. 30
United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996)
.......................... 29
Village of Hoffman Estates v. Flipside. Hoffman Estates,
Inc.,
455 U.S. 489 (1982) .... ..................................................................
29
Ward v. Rock Against Racism,
491 U.S. 781 (1989) ........................... 13, 14, 18-20,
23, 24, 25, 27, 29
Younger v. Harris, 401 U.S. 37 (1971) ....................................................
33
Constitution:
United States Constitution, First Amendment .....................................
passim
Statutes:
Administrative Procedure Act (APA), 5 U.S.C. 701-706 ...........................
6
16 U.S.C. 551..................................................................................
1, 3, 11
18 U.S.C. 3559(a) .....................................................................................
4
18 U.S.C. 3571(b)(6) ................................................................................
4
18 U.S.C. 3571(e) .....................................................................................
4
28 U. S. C . 636(b)(3) ...............................................................................
31
28 U.S.C. 1291 ...........................................................................................
1
v
Regulations:
36 C.F.R. part 219 ....................................................................................
22
36 C.F.R. part 251, subpart B ..................................................................
3, 4
36 C.F.R. 251.50(a) .....................................................................................
3
36 C.F.R. 251.50(c) ....................................................................................
4
35 C.F.R. 251.50(c)(3) .................................................................................
4
36 C.F.R. 251.51 ..........................................................................................
4
36 C.F.R. 251.54(b)(1) .................................................................................
6
36 C.F.R. 251.54(e)(1) ..................................................................................
5
36 C.F.R. 251.54(e)(2)(i)(A)-(E) ...................................................................
5
36 C.F.R. 251.54(e)(2)(i)(E) .........................................................................
5
36 C.F.R. 251.54(f)(1)-(3) 36 C.F.R. 251.54(f)(5) . . .
36 C.F.R. 251.54(f)(1)-(3) ..............................................................................
6
36 C.F.R. 251.54(f)(5) ....................................................................................
6
36 C.F.R. 251.54(h) .................................................................................
6, 35
36 C.F.R. 251.54(h)(1) ............................................................................
21-22
36 C.F.R. 251.54(h)(1)(i)-(iii) .........................................................................
7
36 C.F.R. 251.54(h)(1)(iv) ..............................................................................
7
36 C.F.R. 251.54(h)(1)(v) ...............................................................................
7
36 C.F.R. 251.54(h)(1)(v)(A)-(E) ....................................................................
7
36 C.F.R. 251.54(h)(1)(vi) ..............................................................................
7
36 C.F.R. 251.54(h)(1)(vi)(A)-(D) ..................................................................
7
36 C.F.R. 251.54(h)(1)(vii) .............................................................................
7
36 C.F.R. 251.54(h)(1)(viii) ............................................................................
8
36 C.F.R. 251.54(h)(1)(i)-(viii) .....................................................
13,14, 22, 25
36 C.F.R. 251.54(h)(2) ...................................................................................
6
36 C.F.R. 251.56(a)(1) ........................................................................
8, 15, 27
36 C.F.R. 251.56(a)(2) .......................................................
8, 15, 16, 27, 36, 37
36 C.F.R. 251.56(a)(2)(vii) ......................... 3, 8, 12,
16, 23, 28, 2, 30 35-36, 38
vi
36 C.F.R. 251.60(a)(1)(i) ...............................................................................
8
36 C.F.R. part 261, subparts A and B ...........................................................
22
36 C.F.R. 261.1b ............................................................................................
4
36 C.F.R. 261.10(k) .............................................................
1, 3, 11, 12, 17, 35
36 C.F.R. 261.10(1) ......................................................................................
17
United States Department of Agriculture (USDA), Final Rule,
Land Uses & Prohibitions, 60 Fed. Reg. 45,258 (Aug.
30, 1995) ......... 2,.8, 9, 10, 11, 26, 35
Rule:
Fed. R. App. P. 4(b) ...................................................................................
2
Miscellaneous:
Forest Service Handbook 1909.15, Chapter 30 ..........................................
22
vii
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 98-10502
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
MICHAEL D. LINICK, aka STRIDER, and HENRY G. BAILEY III,
Defendants-Appellees,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
_______________________
BRIEF FOR THE APPELLANT
_______________________
STATEMENT OF JURISDICTION
This is a criminal case. It began with the filing of an
information, alleging that defendants violated 16 U.S.C. 551 and
36 C.F.R. 261.10(k). ER 1/ 15, 16. The order appealed from
is a final judgment of the district court, dismissing the information,
entered orally on October 15, 1998 (ER 19, 86-88), and in a minute
order filed October 15, 1998 (ER 100), as amended by an order
filed-November 12, 1998 (ER 89). The final judgment is appealable
pursuant to 28 U.S.C. 1291. The government filed a notice of appeal
on November 13, 1999 (ER 90), and an amended notice of appeal
on November 17, 1999 (ER 92). -The appeal is timely under Rule
4(b) of the Federal Rules of Appellate Procedure.
_____________________
1/ "ER _" refers to the Excerpts of Record
filed by the government. "CR _" refers to the documents
in the record as numbered by the district court. See ER 94 (district
court docket sheet).
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Whether the Forest Service's noncommercial group use
regulations, which requires groups of 75 or more individuals to
obtain authorization in advance of using a National Forest site,
are facially unconstitutional because of a single subsection in
one regulatory provision.
2. Whether, if the single subsection does render the entire
licensing scheme unconstitutional on its face, the prosecution
may be allowed to proceed by severing the offending subsection
from the remainder of the regulatory scheme.
STATEMENT OF THE CASE
A. Nature of the Case.
Michael D. Linick and Henry G. Bailey III are members of
the Rainbow Family. The Rainbow Family is a loosely structured
group of persons that gathers in numbers often exceeding 20,000
at least once per year on National Forest System lands to pray
for peace, discuss environmental and other political issues, and
exchange and demonstrate their ideas and views. See United States
Department of Agriculture (USDA), Final Rule, Land Uses &
Prohibitions, 60 Fed. Reg. 45,258, 45,262 (Aug. 30, 1995) (hereinafter
"Final Rule"). To protect the National Forest
2
System lands from the potential abuse that any unregulated
gathering of large size can cause, the Forest Service has implemented
a narrowly tailored permit system applicable to groups of 75 or
more. See 36 C.F.R. part 251 subpart B. Linick and Bailey were
charged with use of the Apache-Sitgreaves National Forest in June
of 1998, without a permit in violation of 36 C.F.R. 261.10(k).
They moved to dismiss the Informations filed against them, arguing
that the Forest Service regulatory scheme was unconstitutional
on its face. The district court granted the motion to dismiss,
ruling that the regulatory scheme was unconstitutional on its
face because of a single subsection-36 C.F.R. 251.56(a)(2)(vii)-though
Linick and Bailey had not been charged with a violation that stemmed
from that subsection.
B. Statutory and Regulatory Framework.
1. Pursuant to statutory authority, 16 U.S.C. 551, the
USDA has promulgated regulations administered by the Forest Service
governing any "special use" of National Forest System
lands. 36 C.F.R. part 251 subpart B. 2/ A special use is
any other than one involving timber, mining, or grazing. 36 C.F.R.
251.50(a). Subject to certain exceptions explained below, any
person wishing to engage in a special use must obtain a permit
to do so. 36 C.F.R. 251.50(a), 261.10(k). A person who engages
in a special use without the necessary authorization is subject
to a fine of up to $5000.00 or imprisonment for up to 6
_____________________
2/ See Final Rule at 45,262.
3
months, or both. 18 U.S.C. 3559(a); 3571(b)(6) & (e); 36
C.F.R. 261.1b.
One type of special use subject to the authorization requirement
is a "noncommercial group use," defined as any activity
conducted on National Forest System lands involving a group of
75 or more people, either as participants orspectators, in which
either (a) no entry or participation fee is charged, and (b) the
primary purpose of the activity is not the sale of a good or service.
36 C.F.R. 251.51. Accordingly, an event of 75 or more persons
for purposes of self--expression or exchange of ideas, such as
a Rainbow Family Gathering, is a noncommercial group use governed
by 36 C.F.R. part 251, subpart B. 3/
The regulation provides certain exemptions from the permitting
requirement. In particular, no special use authorization is required
for "noncommercial recreational activities," e.g. camping
and hiking, or "noncommercial activities involving expression
such as assemblies, meetings, demonstrations, and parades,"
unless the special use falls within the definition of a noncommercial
group use. In the latter case, no exemption applies, and the would-be
user of a national forest must comply with the noncommercial group
use regulation. 36 C.F.R. 251.50(c), 251.50(c)(3). Effectively,
this means that all noncommercial uses involving 74 or fewer spectators
or participants need not be authorized, regardless of whether
the use is for hunting wildlife, riding horses,-protesting injustice,
or exchanging views on the proper way to live. All noncommercial
uses involving 75 or more spectators or participants, however,
must be authorized, regardless of the character or purpose of
the noncommercial use.
_____________________
3/ The line between commercial and noncommercial
uses is analogous to the line between commercial and noncommercial
speech in First Amendment jurisprudence. See, e g, Outdoor Systems.
Inc v. City of Mesa, 997 F.2d 604, 613 (9th Cir. 1993). The government
treats the Rainbow Family's use of National Forest System lands
as noncommercial in character, and the defendants have not contended
otherwise.
4
2. To apply for a noncommercial group use authorization,
the applicant must provide the following: the applicant's name
and mailing address; if the applicant is an organization, the
name of an individual authorized to receive notice of the actions
regarding the application; a description of the proposed activity;
the location and a description of the National Forest System lands
and facilities the applicant desires to use; an estimate of the
number of participants and spectators; the starting and ending
time and date of the activity; and the name of a person 21 years
of age or older who will sign the special use authorization on
behalf of the applicant. 36 C.F.R. 251.54(e)(1), 251.54(e)(2)(i)(A)-(E).
No other information is required. 36 C.F.R. 251.54(e)(2)(i)(E).
The applicant must deliver the application to the Forest Service
72 hours in advance of the beginning time of the proposed activity.
36 C.F.R. 251.54(f)(5). Successive applications for special-uses
of the same national forest area are processed on a first-come,
first-served basis. 36 C.F.R. 251.54(f)(5).
If the Forest Service issues no decision on the application
within 48 hours of
5
receiving it is deemed granted, and the authorization must
issue forthwith. 36 C.F.R. 251.54(f)(5). During this 48-hour period,
the proper Forest Service officer must acknowledge receipt of
the application in writing; evaluate the application under the
criteria listed at 36 C.F.R. 251.54(b)(1); complete the requisite
environmental documentation; determine compliance with other applicable
laws; consult with other interested parties, including other law
enforcement agencies and the general public; and "take any
other action necessary to fully evaluate and make a decision to
approve or deny the application and to prescribe suitable terms
and conditions." 36 C.F.R. 251.54(fl(1)-(3). If the Forest
Service denies the application, it must notify the applicant in
writing of its reasons for doing so, and the denial is "final
agency action" subject to immediate court challenge under
the Administrative Procedure Act (APA), 5 U.S.C. 701-706. 36 C.F.R.
251.54(h)(2). If some alternative time, place, or manner of use
would satisfy the concerns of the Forest Service that led to the
denial, the Service must offer this alternative. Ibid.
3. The regulation provides that the Forest Service "shall"
grant an application for a special use authorization if the requested
use meets eight narrowly defined, content-neutral criteria. 36
C.F.R. 251.54(h). The first three criteria concern consistency
with otherwise applicable law and agency policy "unrelated
to the content of the expressive activity," including the
forest land and resource
management plan of the relevant forest area promulgated pursuant
to statute and the
6
Forest Service's environmental policy for sensitive areas. 36
C.F.R. 251.54(h)(1)(i)-(iii). The fourth criterion is whether
the requested use will delay, halt, or prevent the use of the
area by the Forest Service or other previously scheduled or ongoing
uses. 36 C.F.R. 251.54(h)(1)(iv). The fifth criterion
addresses health concerns, a subject of particular importance
at Rainbow Family Gatherings. 36 C.F.R. 251.54(h)(1)(v). See "Background"
section, infra. The fifth criterion, as do all of the others,
specifies particularized standards: the Forest Service assesses
whether the proposed activity violates state and local health
laws and regulations applicable to the proposed site. The regulation
directs the Forest Service to focus on sanitation, waste disposal,
spread of disease, and water supply. 36 C.F.R. 251.54(h)(1)(v)(A)-(E).
The sixth criterion addresses whether the proposed activity poses
a substantial danger to public safety. It prohibits any consideration
of a "heckler's veto" by excluding "concerns about
the possible reaction to the users' identity or beliefs from non-members
of the group that is seeking authorization." 36 C.F.R. 251.54(h)(1)(vi).
Indeed, the Forest Service may look only to potential for physical
injury to the applicants and others and the adequacy of emergency
ingress and egress. 36 C.F.R. 251.54(h)(1)(vi)(A)-(D). The seventh
criterion prohibits use for military or paramilitary exercises
unless these exercises are federally funded. 36 C.F.R. 251.54(h)(1)(vii).
Finally, the eighth criterion provides: "A person or persons
21 years of age or older [shall] have been
7
designated to sign and do sign a special use authorization
on behalf of the applicant." 36 C.F.R. 251.54(h)(1)(viii).
4. In granting a request for an authorization, the regulations
authorize the Forest Service official to impose terms and conditions
necessary to carry out the purpose of applicable law. 36 C.F.R.
251.56(a)(1) & (2). Like the governmental interests articulated
in the Final Rule, these terms and conditions fall into three
principal categories: (1) to preserve and protect National Forest
System resources and' to minimize the environmental impact to
the area to be used; (2) to protect health and safety of all lawful
users of the land and adjacent land areas; and (3) to allocate
space among competing users. Final Rule at 45,262. 36 C.F.R. 251.56(a)(2)(vii)
also permits the authorized Forest Service official to attach
terms and conditions that "otherwise protect the public interest."
4/ Once issued, an authorization for a noncommercial group use
may be revoked only for one of the following four reasons: (1)
noncompliance with one of the eight criteria articulated above;
(2) noncompliance with other applicable law or the terms and conditions
of the authorization; (3) failure of the holder to exercise the
privileges granted by the authorization; or (4) by consent of
the holder. 36 C.F.R. 251.60(a)(1)(i).
C. Statement of the Facts and Proceedings Below.
1. Background.- This case is one of several disputes between
the United
_____________________
4/ It is this provision, 36 C.F.R. 251.56(a)(2)(vii),
that, in the district court's view, rendered the entire regulatory
scheme unconstitutional on its face.
8
States and members of the Rainbow Family. As the district court
in Black v. Arthur, 18 F. Supp.2d 1127, 1130 (D. Or. 1998),
appeal pending, Nos. 98-36044 & 98-36046 (9th Cir.), has explained-
The Rainbow Family is an unincorporated, loosely-structured
group of individuals that regularly gathers in undeveloped sites
in National Forests to pray for peace, discuss environmental
and other contemporary political and social issues, and [to]
exchange, develop, express, and demonstrate their ideas and views.
Annual gatherings have occurred in different National Forests
on and around July 4 since 1972. These gatherings draw more than
20,000 participants and last for a month or more. Smaller regional
gatherings take place throughout the year in National Forests
across the country.
Although the Rainbow Family often displays an admirable
concern for the preservation of the National Forest System, problems
associated with loosely organized conglomerations of 20,000 or
more persons in remote areas of the forests are inevitable. As
the Black court found, "not all gatherings have resulted
in perfect restoration. Improperly closed latrines, eroded and
compacted soil, destruction of vegetation, and litter have been
problems at previous gatherings." Ibid. (citing the
Final Rule). 5/ Problems associated with other Rainbow
Family Annual Gatherings have on occasion been more serious. For
example, in the 1987 Annual Gathering in North Carolina, inadequate
sanitation resulted in an outbreak of shigellosis, a
________________________
5/ The preamble to the Final Rule includes an exhaustive
review of applicable First Amendment case law, demonstrating the
Forest Service's awareness of its constitutional duties and its
attempt to conform the regulatory scheme to First Amendment strictures.
9
form of bacterial dysentery transmitted by contamination from
human waste. The contamination resulted from the scattering of
uncovered human waste. Flies, bare human feet, and other vectors
spread the shigellosis bacteria. Two physicians from the Centers
for Disease Control in Atlanta visited the 1987 Annual Gathering
from July 4-11 and estimated that 65 % of those remaining suffered
from shigellosis. By the middle of August, 25 states reported
outbreaks of the disease traced to persons
attending the Gathering. Similarly, in the 1991 and 1992 Annual
Gatherings in Vermont and Colorado, uncovered human waste was
left scattered throughout the forest and latrines were often dug
too close to rivers or other sources that Gatherers used for drinking
and cooking water. See Final Rule at 45,263-64.5
In addition, competing or inappropriate proposed uses of
the National Forest System by groups other than the Rainbow Family
have posed threats to physical safety. See, e.g., Final Rule at
45,281 (describing how a group called "We The People"
sought to meet at sites where previous Mississippi National Guard
military training had resulted in leftover unexploded ordnance
and where the National Guard had scheduled ongoing tank maneuvers).
____________________________________
6/ Environmental damage and litter have also resulted
from Rainbow Family Gatherings. Eroded soil from paths leading
down to sources of fresh water has threatened the quality of stream
banks and, thus, the long-term quality of the water. The 1987,
1991, and 1992 Annual Gatherings resulted in soil compaction,
destruction of vegetation, and exposed tree roots. Gatherers left
filled garbage bags, cigarette butts, and plastic utensils throughout
the sites. Il2id.
10
To preserve National Forest System resources, to protect
health and safety, and to allocate space among competing users,
the Forest Service promulgated the noncommercial group use regulation
in 1995. Final Rule at 45,258, 42,262-64, 45,278 (describing the
public interests the noncommercial group use regulation was designed
to protect). ~
2. The Present Case. The instant case arises out of an
Annual Rainbow Family Gathering in the Apache-Sitgreaves National
Forest in June 1998. ER 3, 8, 15, 16. Both Linick and Bailey participated
in this Rainbow Family event of 75 or more persons. If. The Rainbow
Family failed to obtain the noncommercial group use regulation
required for this event. Ibid. Accordingly, both defendants were
cited for a violation of 16 U.S.C. 551 and 36 C.F.R. 261.10(k).
ER 15, 16. Defendants 7/ t moved to dismiss the Informations on
the ground that the regulatory scheme was unconstitutional on
its face (CR 21, 27), and the government opposed (CR 30). Defendants
argued principally that the regulation gave Forest Service officers
"unfettered and unbridled discretion" (CR 21 at 9) to
deny a permit, although the portion of the regulatory scheme that
they challenged pertains only to the attachment of terms and conditions
after a permit application has been granted. Defendants did not
contest that they had participated in a noncommercial use of the
National Forest System in a group of 75 or more persons. Nor did
they claim that they had sought a permit.
_______________________
7/ The motion to dismiss was filed by Linick, but
we refer to "defendants" (in the plural) throughout
this brief because the district court dismissed as to both defendants
based on Linick's motion. See ER 89.
11
Therefore, they did not claim that they had been improperly
denied a permit or-that a permit had been issued with such onerous
conditions as to amount to a denial of a permit. The government
argued both that the regulatory scheme was constitutional and
that the district court should not entertain defendants' facial
constitutional challenge in the context of this case.
In a brief oral ruling, the district court determined that
it could entertain the facial challenge (ER 25) and dismissed
the Informations on the ground that the regulatory scheme violated
the First Amendment- (ER 86-88, 89). The court ruled that 36 C.F.R.
251.56(a)(2)(vii)-which states that an "authorized officer"
may add "such terms arm conditions" to the noncommercial
group use permit "as the authorized officer deems necessary
to * * * otherwise protect the public interest"- "grants
an inappropriately broad range of discretion to the applicable
official discharging responsibilities * * * under the regulatory
scheme." ER 87. 8/
SUMMARY OF ARGUMENT
1. Defendants did not file an application for a permit.
As a result, they were charged with a violation of 36 C.F.R. 261.10(k),
"[u]se or occupancy of National Forest System land or facilities
without special-use authorization when such authorization is required."
Nevertheless, defendants challenged the constitutionality
____________________
8/ The court referred to the regulatory provision
as "Section 7 of Section 251.56-of the Code of Federal Regulations"
(ER 87), but it is clear from the text of the entire transcript
and defendants' motion to dismiss that the court was referring
to 36 C.F.R. 251.56(a)(2)(vii).
12
of the entire scheme solely because of the portion of the regulatory
scheme that pertains to the authority of a Forest Service official
to attach terms and conditions after a permit application has
been granted-even though there were no terms or conditions at
issue here because defendants had not even applied for a permit.
Defendants' facial challenge should have been rejected in the
context of this case for two reasons: one, a facial challenge
is improper in the context of this case and, two, the challenge
lacks merit.
a. Principles discussed in Ward v. Rock Against Racism,
491 U.S. 781 (1989), make clear that defendants should not have
been allowed to proceed with a facial challenge to the Forest
Service's regulatory scheme. In Ward, the Court analyzed
its prior facial challenge cases and explained that those cases
allowed facial challenges only because the applicant argued that,
under the licensing scheme at issue, a government official enjoyed
unfettered discretion to outright deny a permit. Here, in contrast,
defendants do not allege that Forest Service officials enjoy unfettered
discretion to grant or deny a special-use permit. Nor could they,
since a permitting officer's reasons for granting and denying
a permit are specifically established by 36 C.F.R. 251.54(h)(1)(i)-(viii).
In fact, the permitting official must grant a permit unless the
proposed activity is inconsistent with any of the eight specific
criteria in Section 251.54(h)(1)(i)-(viii) (none of which is challenged
as unconstitutional). Rather, defendants argue that Forest Service
officials enjoy
13
unbridled discretion in attaching terms and conditions after
granting a permit application-at the second step of the permitting
process. As Ward explained, no Supreme Court case has permitted
a facial challenge in that situation. Accordingly, the district
court should have rejected defendants' facial challenge here for
that reason.
b. We assume for the purposes of this appeal that the National
Forest System is a public forum. In a public forum the government
may impose reasonable restrictions on time, place, or manner of
protected speech, provided the restrictions are justified without
reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest,
and that they leave open ample alternative channels for communication
of the information. Here, the regulatory scheme comports with
these requirements.
The regulatory scheme does not regulate the content of
speech. The regulations address the governmental interest in reducing
the actual or potential damage to National Forest System lands
that may occur as a consequence of having large groups use these
lands. United States v Johnson, 159 F.3d 892, 895 (4th Cir. 1998).
Further, as stated above, the permitting official does not have
unfettered discretion to grant or deny a permit. A permitting
officer's reasons for denying a permit are specifically established
by a defined list of eight content-neutral requirements in 36
C.F.R. 251.54(h)(1)(i)-(viii), and these criteria do not permit
14
grants or denials based on the applicant's viewpoint or the
evaluation of the content of the applicant's speech. Nor does
the permitting official have unfettered discretion to attach terms
and conditions to the grant of a permit. The terms and conditions
that the Forest Service may attach to a permit are content neutral
and limited to assuring compliance with otherwise applicable health
and safety standards, minimizing damage to federal property and
resources and other environmental aspects of the forests, allocating
scarce resources, and protecting the physical safety of all those
in the National Forest System. See 36 C.F.R. 251.56(a)(1) &
(2).
The permit requirement is also narrowly tailored to serve
the government's interest in protecting the National Forest System
while permitting the citizenry's right to enjoy its use. The regulatory
scheme allows the Forest Service to be notified in advance of
any large groups that will be using the forest so that the personnel,
through advance preparation, can minimize any damage that may
occur. The information required from an applicant is minimal.
In addition, the regulations prescribe short time frames for processing
an application and permit immediate judicial review of a denial.
Finally, alternative avenues for the same expression are
plainly available. Applicants may hold events on non-National
Forest System land or keep the number of participants in an event
below 75. Furthermore, if a proposed use fails to meet one of
the narrow, content-neutral criteria governing grant or denial
of the
15
application, the Forest Service is required to offer an alternative
if one is available that meets all eight criteria.
c. The district court determined that the regulatory scheme
is not narrowly tailored because, in its view, one subsection
in the regulations-subsection (vii) of 36 C.F.R. 251.56(a)(2)-grants
an inappropriately broad range of discretion to the permitting
official. The district court was clearly in error. Under well-settled
rules of interpretation, Section 251.56(a)(2)(vii) can be properly
read to exclude the broad reading suggested by the court and defendants.
Moreover, it is proper to permit defendants' prosecution to proceed
in light of the narrowing construction.
2. Even if subsection (vii) is not subject to the narrowing
discussed above, the district court should have severed the subsection
from the remainder of the regulatory scheme. The prosecution for
failure to obtain a permit should have been allowed to proceed
because neither Linick nor Bailey had been charged with a violation
stemming from terms or conditions imposed under subsection (vii).
ARGUMENT
Standard of Review.
The issues raised in the instant appeal were presented
in the government's opposition to defendants' motion to dismiss.
CR 30. The court made its ruling in its oral opinion of October
15, 1998 (ER 86-88), and in its minute order of October 15, 1998
(ER 100), as amended in its order of November 12, 1998 (ER 89).
Since
16
the district court's order granting defendants' motion to dismiss
was based solely on questions of law, this Court's review is de
novo See, e g, Roulette v. City of Seattle, 97 F.3d 300,
302 (9th Cir. 1996); United States v. Colacurcio, 84 F.3d
326, 328 (9th Cir. 1996).
I.
THE DISTRICT COURT ERRED IN FINDING
THE REGULATIONS UNCONSTITUTIONAL.
Introduction.
Defendants did not file an application for a permit. As
a result, they were charged with a violation of 36 C.F.R. 261.10k,
"[u]se or occupancy of National Forest System land or facilities
without special-use authorization when such authorization is required."
Nevertheless, defendants challenged the constitutionality of the
entire scheme solely because of the portion of the regulatory
scheme that
grants authority to a Forest Service official to attach terms
and conditions when granting a permit-even though there were no
terms or conditions at issue here because defendants had not even
applied for a permit. 9/ In other words, defendants challenged
the constitutionality of the regulatory scheme "on its face"
and not "as applied" to them. See Foti v. City of
Menlo Park, 146 F.3d 629, 635-636 (9th Cir. 1998) (explaining
the difference between "facial" and "as applied"
challenges). See also CR 27 (defendants' reply memorandum) at
2 n. 1 ("Defendant[s are] not at this time challenging the
regulatory scheme as unconstitutional as applied to [them], or
the Rainbow Family."). As we now demonstrate, defendants'
facial challenge should have been rejected in the context of this
case for two reasons: one, a facial challenge is improper in the
context of this case, and two, their challenge lacks merit.
_______________________________
9/ 36 C.F.R. 261.10(l) prohibits the violation of
"any term or condition of a special-use authorization, contract
or approved operating plan." This provision was inapplicable
in this case because, as stated above, defendants had not applied
for a permit in the first instance. Hence, no terms or conditions
were ever imposed. We also note that defendants did not challenge
the constitutionality of the permit requirement. Nor could they
have mounted a successful challenge to that requirement.
17
Government's Brief, continued