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

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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

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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.
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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.

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Government's Brief, continued