BRIEF OF APPELLEE MICHAEL D. LINICK, aka STRIDER
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STATEMENT OF JURISDICTION

Defendant Linick 1 agrees with plaintiff's statement of jurisdiction.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

Defendant agrees with plaintiff's statement of the issues presented for review.2
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1Although this case involves two defendants, the undersigned and Henry G. Bailey, III, this brief is only being filed by and on behalf of the undersigned, and all reference herein to "defendant" is to only the undersigned pro se. Counsel for defendant Bailey, III was allowed to withdraw by the trial court, and the undersigned is unaware whether Defendant Bailey, III has obtained other counsel.

2In his motion to dismiss, defendant raised seven points in his facial challenge to the Forest Service regulatory scheme respecting special use authorizations, including a point containing the issue presented herein. see Defendant's Motion to Dismiss/Memorandum of Points and Authorities in Support Thereof [hereinafter "Defendant's Motion to Dismiss"]. Other points included, inter alia, the following:

1) that 36 C.F.R. 251.56(a)(2)(i), which provides that "[e]ach special use authorization shall contain * * * [s]uch terms and conditions as the authorized officer deems necessary to 'protect Federal * * * economic interests'" is unconstitutional because it vests unbridled and unfettered discretion in the authorized officer, that such term does not fulfill nor advance any of the three significant governmental interests set forth for the promulgation of the regulations, and/or that such is not a reasonable time, place, or manner restriction on protected speech;

2) that 36 C.F.R. 251.56(b) which in part provides that "[t]he duration [of a special use authorization] shall be no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization * * * " is unconstitutional because it gives the authorized officer unbridled discretion to determine the length of an event or activity involving free expression, as well as the First Amendment freedom of religion and worship, and the First and Fifth Amendment freedom of association; and

3) that the administrative appeals process set forth in 36 C.F.R. 251.80 - 251.102, entitled "Subpart C - Appeal of Decisions Relating to Occupancy and Use of National Forest System Lands", is unconstitutional because it does not provide for either immediate or prompt judicial review of an authorized officer's decision to impose any particular term and condition, including one which the officer deems necessary to protect the public interest, even though a term and condition attached to a special use authorization could de facto preclude the event. Such process in fact has essentially an indefinite time period respecting the exhaustion required administrative appeal.

The District Court, in granting the defendant's motion to dismiss, agreed with the first point raised therein by defendant, and did not issue any ruling respecting the remaining 6 points raised by him. In fact, defendant specifically inquired of the Court whether it would rule upon the issue raised by him respecting the administrative appeals process set forth in the regulations, which requires exhaustion of the same before a special use authorization applicant can proceed into court respecting the authorized officer's decision to impose any term and condition, but the court declined to do so. See Transcript, ER 88, lines 3-11 whereat the following exchange took place:

Mr. Linick: Your Honor, I'm not sure whether the government intends to appeal. If it does, I would only be inclined to cross appeal because [sic] on the issue on that administrative appeal system.
Is Your Honor inclined to give a ruling on that aspect of this case, as well?
The Court: The court has entered its ruling, and having dismissed the action finds that it is unnecessary for it to go further into the matter.



STATEMENT OF THE CASE

A. Nature of the Case.

Defendant disagrees with the plaintiff's statement respecting the nature of the case in the following particulars:

1) Plaintiff states that defendant is a member of the Rainbow Family. 3 Defendant is not a member of the Rainbow Family, but only an individual who from time to time attends and gets involved in Rainbow Family events and/or gatherings, including the National Gathering in the Apache-Sitgreaves National Forest from June 28 -July 10, 1998 in Arizona. One cannot be a "member" of a leaderless, structureless, non-organization, where every person is an autonomous, essentially sovereign, equal among equals, regardless of what labels may be attached to it by others, and what fictions are created respecting it. All that can really be said about defendant is that he sometimes attends Rainbow Family related events and gatherings and uses his energy and various skills and talents to help make such events and gatherings as successful as possible.

2) Plaintiff states that the defendants "moved to dismiss the Informations filed against them, arguing that the Forest Service regulatory scheme is unconstitutional on its face." There was only one Information filed in this case, which Information charged both this defendant and defendant Henry G. Bailey, III in the same document. This defendant moved to dismiss the Information filed against him; defendant Bailey, III never filed a motion to dismiss in this action against him.
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3 Defendant's motion to dismiss the Information was based on a facial challenge to the Forest Service's noncommercial group use regulations. As a facial challenge, no evidence was introduced either by affidavit or testimony. Accordingly, there is no evidence in the record to support the plaintiff's assertion that defendant is a "member" of the Rainbow Family. However, defendant concedes that the Information against him arose out of, and concerned, the 1998 National Rainbow Gathering.

B. Statutory and Regulatory Framework.

Defendant agrees with plaintiff's statement regarding the statutory and regulatory framework.

C. Statement of the Facts and Proceedings Below.

1. Background.

Defendant agrees with plaintiff's statement regarding the statement of the facts and proceedings below in this subsection except in the following particular:

1) In footnote 5, page 9 of its opening brief, plaintiff asserts "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." Defendant disagrees with this statement. The preamble to the Final Rule only addresses the issues and constitutional infirmities ruled upon by Chief Judge Justice in United States v. Rainbow Family, 695 F. Supp. 294 (E.D.Tex. 1988) respecting the regulatory scheme then in existence. 4
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4 The Forest Service's regulatory scheme was amended in 1995, after Chief Judge Justice ruled in United States v. Rainbow Family, 695 F. Supp. 294 (E.D.Tex. 1988) the scheme existing in 1987 was unconstitutional.


The Department of Agriculture either did not consider constitutional infirmities in the 1995 regulatory scheme respecting the terms and conditions provision [nor the administrative appeals process 5] or as defendant pointed out in his motion to dismiss:

[w]hile 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." Defendant's Motion to Dismiss, p. 9.

The Department of Agriculture's and Forest Service's "awareness of its constitutional duties and its attempt to conform the regulatory scheme to First Amendment strictures" must be viewed in the context of plaintiff's statement "This case is one of several disputes between the United States and members [sic] of the Rainbow Family," Plaintiff's Opening Brief, pp. 8-9, with which, though remarkably understated, defendant agrees. See Defendant's Motion to Dismiss, pp. 4-7.

2. The Present Case.

Defendant agrees with the plaintiff's statement in this subsection except in the following particular:
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5 See note 2, supra.


1) Plaintiff states: "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." 6
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6 Plaintiff repeatedly in its opening brief attempts to make it appear that the granting of a permit is a different step in the process than the attaching of terms or conditions. In fact, the granting of a special use authorization or permit and the attaching of terms or conditions thereto is part and parcel of the same decision making process. Essentially, the granting of a special use authorization is conditioned upon the applicant agreeing to the terms or conditions attached thereto by the authorized officer - the authorized officer does not first decide he or she will grant the permit, and then subsequently attach the terms and conditions he or she deems necessary. See Plaintiff's Opening Brief, p. 6, whereat plaintiff states:

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 law; 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." [Emphasis added]

In fact, in the present case, the Forest Service had a special use authorization for the 1998 National Rainbow Gathering prepared and proffered, with terms and conditions already attached thereto, pending a Rainbow Family representative or agent coming forward and applying for said authorization. See Defendant's Motion to Dismiss Exhibit #2, p. 3. Plaintiff did not contest that this exhibit was the permit being proffered to defendant if he were to apply for it, subject to the blanks therein being filled in accordingly.

Moreover, it overlooked that Section 251.56(a) provides that "Each special use authorization shall contain" the terms and conditions listed thereunder. Consequently, the decision to grant a special use authorization requires that the grant be conditioned upon the imposition of terms and conditions, including those that the authorized officer "deems necessary to otherwise protect the public interest." [Emphasis added].


Defendant has never asserted in this case that the regulations give Forest Service officers unfettered and unbridled discretion to deny a permit; defendant has continually asserted throughout the trial court proceedings and does again in this court that the regulatory scheme gives a Forest Service officer "unfettered and unbridled discretion" to attach any term or condition to a special use authorization that he or she deems necessary to "otherwise protect the public interest," which term or condition could in effect or de facto preclude the event or activity for which the authorization is being sought from occurring, and that such authority could be used by the authorized officer to censor expression with which he or she disagrees or personally finds distasteful, offensive, or otherwise.

SUMMARY OF ARGUMENT

1. Defendant has standing to mount a facial challenge to the constitutionality of the regulatory scheme under which he was being required to apply for a permit.

2. 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 association, 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/or Fifth Amendments of the U.S. Constitution, and further, that such provision is consequently unconstitutionally vague and/or overly broad. 7
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7 Defendant raised a total of 7 points in his motion to dismiss and memorandum in support thereof filed in the District Court. The District Court only ruled upon defendant's first point, see note 2, supra, and accordingly, such is the only point in issue on this appeal. However, defendant's point 4 in his motion to dismiss, respecting the infirmity in the administrative appeals process and that such not only prevents prompt judicial review, but in fact contains a potentially lengthy and indefinite [and "extraordinarily complicated"*] administrative review of an authorized officer's decision to attach a particular term or condition to a special use authorization, is relevant to the issue herein. If an authorized officer attaches a term or condition to a special use authorization which he or she deems necessary to "otherwise protect the public interest," which term or condition may effectively preclude the practicality or feasibility of engaging in the activity or event for which the authorization is being sought, the applicant must first exhaust the administrative review process prescribed by the regulatory scheme before resorting to judicial review by an independent member of the judiciary, a separate branch from the executive department under which the Department of Agriculture lies. This administrative review can be quite lengthy, and in fact, indefinite, and thus cause the dates for which the applicant sought the authorization to pass by before the applicant can have the challenged term or condition reviewed by a court.

*At oral argument, plaintiff's attorney, from the United States Department of Justice, Civil Division, volunteered to the Court:

"It actually is an extraordinarily complicated administrative process because parts of it depend upon whether a particular decision was written or oral." ER 64-65.


3. Section 251.56(a)(2)(vii) cannot be narrowly construed in order to render it constitutional.

4. Even if Section 251.56(a)(2)(vii) can be narrowly construed to render it constitutional, the prosecution of the defendant herein cannot proceed even in light of the narrowing construction because such was not reasonable foreseeable, and defendant's conduct in this case was not the type of conduct that is so obviously wrong that it would be illegal under any construction of the applicable regulatory scheme.

5. That this Court should not sever Section 251.56(a)(2)(vii) from the remainder of the regulatory scheme because doing so would still not save the regulatory scheme which has other unconstitutional provisions.

6. That even if Section 251.56(a)(2)(vii) can be severed from the remainder of the regulatory scheme, thereby rendering the regulatory scheme constitutional, subject to the District Court's ruling on defendant's other 6 points raised in his motion to dismiss, the prosecution of defendant herein cannot proceed because at the time he is alleged to have committed the offense with which he is charged, the regulatory scheme still contained said subsection and was then unconstitutional. Consequently, if this Court rules that Section 251.56(a)(2)(vii) renders the regulatory scheme unconstitutional but severs it from the remainder of the scheme in order to save the remainder of the

scheme, the regulatory scheme can only be considered constitutional from the date of this Court's ruling.

ARGUMENT

I. BACKGROUND

A. 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 were attached to Defendant's Motion to Dismiss as Defendant's 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. 60 FR 45264. 8
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8 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.


Moreover, the 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, Defendant's Motion to Dismiss Exhibit #4; and The Oregonian newspaper article, July 9, 1998, Defendant's Motion to Dismiss Exhibit #5. See also United States 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.

B. CONSTITUTIONAL ASPECTS OF RAINBOW FAMILY GATHERINGS AND ACTIVITIES

In United States 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).

695 F. Supp. at 308-09 [Emphasis added].


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

Likewise, in Black v. Arthur, 18 F. Supp.2d 1127, 1130 (D.Or. 1998), appeal pending, Nos. 98-36044 and 98-36046 (9th Cir.), the District Court stated:

The Rainbow Family * * * 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.

Moreover, throughout its brief, plaintiff concedes that the Rainbow Gatherings involve the exercise of First Amendment liberties. For example, plaintiff states "And we have not disputed that Rainbow Gatherings involve speech or expressive conduct that is constitutionally protected under the First Amendment. See CR 30; see also Final Rule." Plaintiff's Opening Brief, p. 25. See also Plaintiff's Opening Brief, p. 24, note 14 whereat plaintiff states: "We * * * have instead conceded that use of the National Forest System involves sufficiently expressive content to warrant First Amendment protection (see Point I(B), infra)."

C. 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.

II. STANDING

Defendant has standing to mount his facial challenge to the regulatory scheme as a whole.

Defendant concedes that he did not apply for a special use authorization before attending the National Rainbow Gathering which occurred in June - July, 1998 in the Apache-Sitgreaves National Forest in Arizona. However, even though he did not apply for said permit, he can still facially


challenge the regulatory scheme as a whole, including Section 251.56(a)(2)(vii) which allows a Forest Service employee, specifically an "authorized officer," to engage in censorship of the exchange of unpopular ideas, viewpoints, etc. by attaching a term or condition to a special use authorization which he or she deems "necessary to otherwise protect the public interest" and which term or condition could de facto preclude the activity or event for which the special use authorization is being sought from occurring due to impracticality, infeasibility, or otherwise. 9

There can be no doubt but that the imposition of a term or condition to a permit or special use authorization can have the de facto effect of precluding the event or activity for which the permit or authorization is being sought from taking place. In City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 108 S.Ct. 2138 (1988), the U.S. Supreme Court stated:
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9The issue whether the regulatory scheme does not allow for prompt judicial review of the authorized officer's decision to impose a particular term or condition, and that the administrative appeals process contained in the scheme, 36 C.F.R. 251.80 - 251.102, is not only potentially quite lengthy but in fact indefinite and "extraordinarily complicated" as the plaintiff's attorney admitted to the trial court [ER pp. 64-65] is relevant here, even though the District Court declined to rule specifically upon it. Perhaps if the regulatory scheme were to allow for prompt judicial review of an administrative decision to impose a term or condition, Section 251.56(a)(2)(vii) would be less objectionable; if an authorized officer were to impose a term or condition he or she deemed necessary to protect the public interest, which term or condition was onerous to the applicant or could de facto preclude the activity or event from occurring, prompt judicial review could perhaps lessen the possibility that said term or condition would serve as a tool of censorship of expression. But this is not the case under the current regulatory scheme.


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 Court 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").



In Shuttlesworth v. City of Birmingham, Ala, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), a criminal case as is the instant case, the defendant stood convicted of violating an ordinance of Birmingham, Alabama, making it an offense to participate in any "parade or procession or other public demonstration" without first obtaining a permit from the City Commission. On the date in question, defendant led individuals out of a church and into the street where they walked, in orderly fashion, two abreast for the most part, for four blocks, in protest of alleged denial of civil rights to Negroes in the city of Birmingham. Defendant was arrested for failing to secure a permit for such parade, procession, or public demonstration, which permit was required by the General Code of the City of Birmingham. Said code provided that "The commission shall grant a written permit for such parade, process or other public demonstration, * * * , unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused."

In Shuttlesworth, the U.S. Supreme Court ruled that the defendant had standing to challenge the Birmingham Code, stating:


"It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the


enjoyment of those freedoms." [Citation omitted]. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. "The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yield to its demands." [Citations omitted].

89 S.Ct. at 939.

The Court reversed the defendant's conviction.

In City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 108 S.Ct. 2138 (1988), the U.S. Supreme Court stated:

Recognizing the explicit protection accorded speech and the press in the text of the First Amendment, our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license. E.g. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965)("In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.")[Emphasis in Original]; Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 742, 84 L.Ed.2d 1093 (1940)("in the First Amendment context, "[o]ne who might have had a license for the asking may ... call into question the whole scheme when he is prosecuted for failure to procure it"). [citing, inter alia, Lovell v. Griffin, 303 U.S. 444, 452-453, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938)("As the ordinance [providing for unbridled licensing discretion] is void on its face, it was not necessary for appellant to seek a permit under it")].

108 S.Ct. at 2143. [Emphasis added].


In TJ's South, Inc. v. Town of Lowell, 895 F. Supp. 1125 (N.D. Ind. 1995), the District Court eloquently stated:

The defining feature of a "prior restraint" is that it gives a public official "the power to deny the use of a forum in advance of actual expression." [Citation omitted]. Thus, a government engages in a prior restraint when it requires citizens or businesses to obtain permission before making protected speech. [Citations omitted]. Classic examples of prior restraints include requiring a citizen to obtain a permit to parade or speak out on public property and requiring that films be passed by a censorship board before being shown at theaters. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The Lowell ordinance requires TJ's to obtain permission, in the form of a special exception, from the Council (and to some extent the Board) before offering entertainment in its tavern. Therefore, the Lowell ordinance is a prior restraint on speech, and is subject to the constitutional limits on prior restraints. Indeed, prior restraints face a heavy presumption that they are unconstitutional. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 604, 107 L.Ed.2d 603 (1990).

In a facial challenge to a law, the plaintiff is not merely alleging that the law has been unconstitutionally applied to him or her; rather, the plaintiff argues that the law might be unconstitutionally applied to most anyone. As such, facial challenges involve a plaintiff asserting the rights of others, and for this reason, they are not the norm. Forsyth County, 505 U.S. at 129-31, 112 S.Ct. at 2401.

However, First Amendment law has carved out a place for facial challenges to prior restraints. A plaintiff can challenge a permit scheme on its face if the scheme "vests unbridled discretion in the government official over whether to permit or deny expressive activity." City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). A facial challenge will lie whether or not the plaintiff has applied for a permit under the scheme at issue, and whether or not the scheme has been or could be constitutionally applied to the plaintiff. [Citations omitted]. In this sense, the prior restraint doctrine perhaps has a prophylactic role.

895 F. Supp. at 1129.


It must be emphasized that the U.S. Supreme Court stated in Lakewood, supra, and quoted in TJ's South above: "[A party] can challenge a permit scheme on its face if the scheme 'vests unbridled discretion in the government official over whether to permit or deny expressive activity.'" This holding does not limit itself that a party can only challenge a permit scheme on its face if the scheme vests unbridled discretion in the government official over whether to grant a license or permit, or deny such license or permit; accordingly, since the attaching of a term or condition to a license or permit can either "permit or deny expressive activity," the holdings in Lakewood and TJ's South are applicable to the present case.

Plaintiff's reliance on Ward v. Rock Against Racism, 491 U.S. 781 (1989) is misplaced. First, as plaintiff points out, the Supreme Court did not decide in Ward whether the District Court properly entertained the facial challenge advanced in that case and consequently, any discussion respecting the availability of a facial challenge is mere dictum. Moreover, the Supreme Court decided Ward on its merits, and although it held that the New York ordinance at issue therein was constitutional, the


Court's proceeding to decide this issue implies that the District Court was correct in allowing a facial challenge to the ordinance and that a facial challenge will lie under such circumstances. Moreover, as plaintiff further points out, in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596 (1990), decided after Ward, the U.S. Supreme Court ruled that the plaintiffs therein had standing to mount a facial challenge to certain aspects of a licensing scheme.

See also Tennison v. Paulus, 144 F.3d 1285 (9th Cir. 1998)("A plaintiff whose constitutional rights have not been violated may nevertheless bring a facial challenge to a law that implicates the First Amendment. See Nunez, 114 F.3d at 949; Ripplinger v. Collins, 868 F.2d 1043, 1047 (9th Cir. 1989). This exception applies when a law has 'a close enough nexus to expression' to threaten or chill free speech. City of Lakewood v. Plain Dealer Publ'g Co. 486 U.S. 750, 759, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)").

In Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997), this Court stated:

The overbreadth doctrine allows a plaintiff "to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Thus, it serves to overcome what would otherwise be a plaintiff's lack of standing. Technically, the overbreadth doctrine does not apply if the parties challenging the statute engage in the allegedly protected expression. [Citation omitted]. This does not mean that plaintiffs cannot challenge an ordinance on its face, however, if the ordinance restricts their own constitutionally protected conduct. Plaintiffs may seek directly on their own behalf the facial invalidation of overly broad statutes that "create an unacceptable risk of the suppression of ideas," Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965 n. 13, 104 S.Ct. 2839, 2851, n. 13, 81 L.Ed.2d 786 (1984)(internal quotation omitted); thus, whether the "overbreadth doctrine" applies to their First Amendment challenge is more of a technical academic point than a practical concern. See Waters, 711 F.Supp. at 1133-34 & n. 15.

114 F.3d at 949.

In N.A.A.C.P. v City of Richmond, 743 F.2d 1346 (9th Cir. 1984), this Court stated:

Some facial challenges require courts to ignore the prudential rule that a litigant has standing to vindicate only his own constitutional rights. City Council v. Taxpayers for Vincent, ___ U.S. ___, 104 S.Ct. 2118, 2125, 80 L.Ed.2d 772 (1984)("Vincent"). A litigant is allowed, for example, to assert that enforcing a statute will chill the protected speech of third parties, even though as applied to him the law is constitutional. Id. In such cases, the court entertains the claim because it recognizes that those whose expression is chilled cannot be expected to adjudicate their rights, since by definition they are unwilling to disobey the law. See L. Tribe, American Constitutional Law 720 (1978)("L. Tribe"). The concern that constitutional adjudication be avoided whenever possible is simply outweighed by the risk to society of losing the speech of those deterred from engaging in protected speech. Munson, 104 S.Ct. at 2847.

There is another "quite different" way in which a plaintiff may challenge a statute on its face. Vincent, 104 S.Ct. at 2124. A litigant may contend, for example, that a statute is not only


unconstitutional as applied to his conduct, but also unconstitutional on its face because "any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas." Id. at 2125. In cases of this type, a holding of facial invalidity expresses the conclusion that the statute restricts protected activity in every conceivable application. Munson, 104 S.Ct. at 2852 n. 13.

743 F.2d at 1352. 10

See also, Rubin v. City of Santa Monica, 823 F. Supp. 709 (C.D. Cal 1993)("For purposes of standing under Article III of the Constitution, litigants need not actually apply for and be denied a permit prior to bringing a constitutional challenge against an ordinance which allegedly vests unbridled discretion in government officials to permit or deny expressive activity." (Citing Gaudiya Vaishnava Soc. v. City of San Francisco, 952 F.2d 1059, 1062 (9th Cir. 1990) cert denied, ___ U.S. ___, 112 S.Ct. 1951, 118 L.Ed.2d 555 (1992)).

III. THE LANGUAGE "TO OTHERWISE PROTECT THE PUBLIC INTEREST"
FOUND IN SECTION 36 C.F.R. 251.56(a)(2)(vii)
IS UNCONSTITUTIONALLY VAGUE AND/OR OVERLY BROAD

The phrase "deems necessary to otherwise protect the public interest" found in 36 C.F.R. 251.56(a)(2)(vii) gives unbridled and unfettered discretion to a public office, specifically, an "authorized officer."
______________________________

10Plaintiff, in its opening brief, continually asserts defendant does not have standing to mount his facial challenge because he did not apply for a special use authorization in accordance with the regulations and consequently cannot point out any burdensome or onerous terms or conditions in any permit. Defendant submits, inter alia, even assuming so, he can mount his facial challenge to the regulatory scheme because "any attempt to enforce such [regulatory scheme] would create an unacceptable risk of the suppression of ideas." Members of City Council v. Taxpayers For Vincent, 466 U.S. 789, at 799, 104 S.Ct. 2118, at 2125 (1984).



The phraseology "deems necessary to otherwise protect the public interest" is as overly broad and/or 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"); 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).

That the phraseology "deems necessary to otherwise protect the public interest" is not an objective standard but is vague and/or overly broad, 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.

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] 1160 FR 45277.

_________________________________

11See also Section 251.54(i)(2) of the regulatory scheme which 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.

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


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 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.

Finally, plaintiff never argued in the trial court nor does it here that the phraseology "deems necessary to otherwise protect the public interest" contained in Section 251.56(a)(2)(vii), standing in and by itself, is not overly broad. 12 It argues that such phrase should be narrowly construed, or limited in light of the preceding subsections (i)-(vi) through the ejusdem generis principle. [See Defendant's Argument respecting the application of this principle below.]
_______________________________

12 Thus, if 36 C.F.R. 251.56 merely stated, without more: "Each special use authorization shall contain such terms and conditions that the authorized officer deems necessary 'to protect the public interest'", it would be obvious that such would be overly broad and consequently unconstitutional.


IV. SECTION 251.56(a)(2)(vii) CANNOT BE NARROWLY
CONSTRUED TO RENDER IT CONSTITUTIONAL

Plaintiff asserts that "Section 251.56(a)(2)(vii) can be properly read to exclude the broad reading suggested by defendants," Plaintiff's Opening Brief, p. 29, and that "[a]pplying ejusdem generis here means that the 'public interest' referred to in subsection (vii) is no broader than the categories listed in subsections (i)-(vi), which address the various aspects of the public interests identified by the Forest Service in the Final Rule -- i.e., the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns." Plaintiff's Opening Brief, p. 30. In do so, plaintiff again cites Black v. Arthur, 18 F. Supp.2d 1127 (D.Or. 1998), appeal pending, Nos. 98-36044 & 98-36046 (9th Cir.).

In Black, supra, District Court Judge Ancer Haggerty stated: "First, plaintiffs argue that the regulation delegates unbridled discretion to the permitting official because it does not set ... standards for the type of terms and conditions the permit may contain.... 13 Furthermore, terms and conditions that the Forest Service may impose in a permit are limited to those designed to assure compliance with otherwise applicable health and safety standards; to minimize damage to water quality, fish, wildlife, and other environmental aspects of the forests; and to protect the physical safety of all those in the National Forest System. See 36 C.F.R. Section 251.56(a)."

Judge Haggerty did not even mention the language 14 of Section 251.56(a)(2)(vii), let alone construe such language. Moreover, the "to otherwise protect the public interest" language cannot be construed as "limited to" or "nor broader than" the categories listed in subsections (i)-(vi) which address the various aspects of the public interests identified by the Forest Service in the Final Rule --
___________________________

13 The omitted portions of this quote from Judge Haggerty's Opinion concern the claim by some of the plaintiffs in Black that the regulatory scheme does not set specific, objective standards for the granting or denying of permits. This defendant is not making this particular claim in his defense.

14 Nor did Judge Haggerty mention or construe the language found in Section 251.56(a)(2)(i), specifically, that "[e]ach special use authorization shall contain (2) [s]uch terms and conditions as the authorized officer deems necessary to (i) protect Federal * * * economic interests."

Defendant submits that there is no possible reading of the above language so that it can be construed as "designed to assure compliance with otherwise applicable health and safety standards; to minimize damage to water quality, fish, wildlife, and other environmental aspects of the forests; and to protect the physical safety of all those in the National Forest System."


i.e. the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns. 15 The key word in the phrase found in Section 251.56(a)(2)(vii) that defeats plaintiff's attempted narrowing construction of this phrase is the word "otherwise." Black's Law Dictionary, Revised Fourth Edition, West Publishing Company (1968) defines the word "otherwise" as "In a different manner; in another way, or in other ways."

Likewise, Webster's Third New International Dictionary, Unabridged Third Edition (1993) defines the word "otherwise" as follows:

otherwise, adv. 1 : in a different way or manner : DIFFERENTLY. 2 : in different circumstances : under other conditions. 3 : in other respects. 16
otherwise, adj. 1 : DIFFERENT. 2 : under different circumstances.

________________________________

15As defendant asserted in the second point contained in his Motion to Dismiss, the language found in Section 251.56(a)(2)(i), specifically, "to protect the Federal economic interest", does not fulfill nor advance any of the three significant governmental interests identified by the Department of Agricultural for the promulgation of the regulations. See Defendant's Motion to Dismiss, pp. 13-14. Consequently, even if Section 251.56(a)(2)(vii) "is no broader than the categories listed in subsections (i)-(vi)," subsection (i) cannot be construed as, in the words of Judge Haggerty, "designed to assure compliance with otherwise applicable health and safety standards; to minimize damage to water quality, fish, wildlife, and other environmental aspects of the forests; and to protect the physical safety of all those in the National Forest System," but is itself unconstitutionally overly broad and/or vague.

16 See, for example, City of Toledo v. Beazer Materials & Services, Inc., 912 F. Supp. 1051 (N.D.Ohio 1995), summary judgment granted on other grounds 923 F. Supp. 1001 (N.D.Ohio 1996), summary judgment granted on other grounds 923 F. Supp. 1013 (N.D.Ohio 1996), summary judgment granted, judgment entered 1996 US Dist LEXIS 4136 (N.D.Ohio 1996) and reversed without opinion, remanded sub nom City of Toledo v. Beazer East, Inc., 103 F.3d 128 (6th Cir. 1996), reported in full 1996 US App LEXIS 30858 (6th Cir.), wherein the Court, in construing the indemnity provision of instrument of assignment and assumption entered in connection with the purchase of corporate assets, providing that the buyer assumed liability for "the discharge at or by the [plant] of industrial products, waste or other materials into the air, streams, lakes, rivers or otherwise," held that the rule of ejusdem generis was not applicable to the term "otherwise." The Court noted:

As seen, "otherwise," if used as a pronoun, means "something or anything else," and used as an adverb, "otherwise" means "In a different way or manner." Neither of these alternative definitions can be contorted into the ejusdem generis meaning of "limited to things of the same kind, class or nature as those specifically enumerated." In short, the rule of ejusdem generis is determined not to be applicable.

912 F. Supp. at 1069, note 4. [Emphasis in original].


Consequently, the word "otherwise" in the phrase "to otherwise protect the public interest" connotes that such phrase covers areas "other than" those listed in subsections (i)-(vi), or "in other respects" than those listed in subsections (i)-(vi). Said language therefore gives a government office, the authorized officer, authority to impose any term or condition that he or she deems necessary to protect the public interest in areas other than those listed in subsections (i)-(vi), or of a "different" kind than those listed in subsections (i)-(vi). See Leslie Salt Co. v. U.S. 896 F.2d 354, 359 (9th Cir. 1990), cert den 111 S.Ct. 1089, 498 U.S. 1126, 112 L.Ed.2d 1194, on remand 820 F. Supp. 478, affirmed in part 55 F.3d 1388, cert den Cargill, Inc. v. U.S., 116 S.Ct. 407, 516 U.S. 955, 133 L.Ed.2d 325: "The ejusdem generis rule of statutory construction is used to illuminate the intent of the drafters; when the rule conflicts with other, clearer indications of intent, its results should be ignored." 17
____________________________

17It is important to note that the regulations use the word "and" to link subsection (vii) to the preceding subsection, as opposed to the word "or," specifically, "and, (vii) otherwise protect the public interest." This is readily susceptible to be read as "and also protect the public interest differently or in a different manner than previously listed." See, for example, Oliver v. Oliver, 149 S.W.2d 540, 286 Ky. 6 (1941) wherein the Court stated:

From a grammatical standpoint it is only necessary insofar as the argument here is presented to give meaning to the coordinate conjunction "and," which in law has the same meaning it carries in common parlance, "having no inherent meaning" standing alone, but depriving its force from what comes before and after. "In its conjunctive sense it is used to conjoin a word with a word, a clause with a clause, or sentence with a sentence, expressing the relation of addition or connection, and signifying that something is to follow in addition to that which precedes." Its use implies "that the connected elements must be grammatically coordinate, as for example where the elements preceding and succeeding the use of the words refer to the same subject matter: * * * While it is said that there is no exact synonym of the word in English, it has been defined to mean 'along with,' 'also,' 'and also,' 'as well as,' 'besides,' 'together with.'" 3 C.J.S., And, 1067.

at 542.

In United States v. Irons, 640 F.2d 872 (7th Cir. 1981), the Court, in construing the phrase "or otherwise" stated:

This conclusion rejects a formalistic application of ejusdem generis. The rule is intended only as an aid to ascertainment of legislative intent when uncertainty or ambiguity exists. The Supreme Court, in considering the application of this rule to determine the meaning of the phrase "or otherwise" in a criminal statute, emphasized that, "[Ejusdem generis] may not be used to defeat the obvious purpose of legislation. And, while penal statutes are narrowly construed, this does not require rejection of that sense of the words which best harmonizes with the content and the end in view." Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936). See United States v. Hartwell, 6 Wall. 385, 395, 18 L.Ed. 830 (1868).

at 875-6.


The ejusdem generis principle cannot be applied in this case for an additional reason - there is no common denominator or common theme among the terms, phrases, or items contained in subsections (i)-(vi). For example, the phrase contained in subsection (i) "protect Federal * * * economic interests" [which is itself unconstitutionally overly broad - see Defendant's Motion to Dismiss, point 2, at pp. 13-14] has nothing in common with the terms, phrases, or items contained in subsections (ii)-(vi). See 73 Am Jur 2d Statutes, Section 215, p. 409: "Moreover, the rule of ejusdem generis does not apply to restrict the operation of a general expression where the specific things enumerated have no common characteristic." 18
_________________________

18In Melugin v. Hames, 38 F.3d 1478 (9th Cir. 1994), this Court stated, citing Black's Law Dictionary, 608 (4th Ed.):

Under [the ejusdem generis] principle:

where general words follow the enumeration of particular persons or things, the general language is held to apply only to persons or things of the same general nature or kind as those enumerated.... Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated, i.e., firearms, or perhaps more narrowly still, handguns. at 1486.

In the present case, the listed phrases preceding subsection (vii) are not "particular persons or things", or "specific things enumerated" but in fact contain general, broad language, e.g. Section 251.56(a)(1)(ii) which provides in pertinent part: "Each special use authorization shall contain terms and conditions which will * * * and othewise [sic] protect the environment." [Emphasis added].


Plaintiff argues that "to read subsection (vii) as broadly as the district court and defendants suggest would mean that subsection (vii) would 'swallo[w] up the rest of the [regulation],'" citing United States v. Colacurcio, 84 F.3d 326, 333 n.5 (9th Cir. 1996), and further that defendant's and the District Court's reading of the regulation is "entirely unreasonable." Plaintiff's Opening Brief, p. 30. Defendant submits that it is plaintiff's [and Judge Haggerty's in Black] reading of subsection (vii) that would swallow up the rest of the regulation, specifically, subsections (i)-(vi), and that the phrase found in subsection (vii) would be rendered a mere redundancy. See Northwest Forest Resource v. Glickman, 82 F.3d 825, 833-4 (9th Cir. 1996), as amended on denial of rehearing: "We have long followed the principle that '[s]tatutes should not be construed to make surplusage of any provision,'" citing Wilshire Westwood Associates v.Atlantic Richfield Corp., 881 F.2d 801, 804; United States v. Marubeni America Corp, 611 F.2d 763, 767 (9th Cir. 1980): "The rule is well-established that statutes should not be construed to make surplusage of any provision," citing Pettis ex rel United States v. Morrison-Knudsen Co., Inc., 577 F.2d 668, 673 (9th Cir. 1978); United States v. Handy, 761 F.2d 1279 (9th Cir. 1985): "A statute should be construed so as to avoid making any word superfluous," citing Yamaguchi v. State Farm Mutual Automobile Insurance Co., 706 F.2d 940, 947 (9th Cir. 1983), United States v. Mehrmanesh, 689 F.2d 822, 829 (9th Cir. 1982). See also U.S. Supreme Court Reports, 46 L.Ed.2d 879, Annotation, entitled "Supreme Court's Application of the Rules of Ejusdem Generis and Noscitur A Sociis":

It has been expressly held or recognized in the following cases that the ejusdem generis rule will not be applied in construing a statute where the application of the rule will render the general words of the statute meaningless: United States v Mescall (1909) 215 US 26, 54 L Ed 77, 30 S Ct 19; Mason v United States (1923) 260 US 545, 67 L Ed 396, 43 S Ct 200; Mid-Northern Oil Co. v Walker (1925) 268 US 45, 69 L Ed 841, 45 S Ct 440; Factor v Laubenheimer (1933) 290 US 276, 78 L Ed 315, 54 S Ct 191; United States v Alpers (1950) 338 US 680, 94 L Ed 457, 70 S Ct 352.

at 46 L.Ed.2d 884.
__________________________

19In this regards, it should be noted that plaintiff asserts in its Opening Brief:

Applying ejusdem generis here means that the "public interest" referred to in subsection (vii) is no broader than the categories listed in subsections (i)-(vi), which address the various aspects of the public interests identified by the Forest Service in the Final Rule --i.e., the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns. Plaintiff's Opening Brief, p. 30.

Plaintiff ignores the fact that Section 251.56(a)(1)(i)-(iv) also specifically address some of the same concerns identified by District Court Judge Ancer Haggerty in Black, supra, to which the phrase "protect the public interest" was therein held to be limited, specifically, "those designed to assure compliance with otherwise applicable health and safety standards; to minimize damage to water quality, fish, wildlife, and other environmental aspects of the forests; and to protect the physical safety of all those in the National Forest System," e.g. subsection (a)(1)(ii) which provides: [each special use authorization shall contain terms and conditions which will] "minimize damage to scenic and esthetic [sic] values and fish and wildlife habitat and othewise [sic] protect the environment." [Emphasis added]

Consequently, taking into consideration Section 251.56(a)(1)(i)-(iv) as well as Section 251.56(a)(2)(i)-(vi) demonstrates that to construe the phrase "to otherwise protect the public interest" as no broader than the preceding listed items would render such phrase even more a redundancy, demonstrating that such phrase, if so construed, would be mere surplusage or superfluous.

In United States v. Mescall, 215 U.S. 26, 30 S.Ct. 19, 54 L.Ed. 77 (1909), the Supreme Court stated:

. . . Whilst [the rule of ejusdem generis] is aimed to preserve a meaning for the particular words, it is not intended to render meaningless the general words. Therefore, where the particular words exhaust the class, the general words must be construed as embracing something outside of that class. If the particular words exhaust the genus, there is nothing ejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words, or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose.

at 30 S.Ct. 20.

V. EVEN IF SECTION 251.56(a)(2)(vii) CAN BE NARROWLY
CONSTRUED TO BE "NO BROADER THAN" THE CATEGORIES LISTED IN SUBSECTIONS (i) - (vi), DEFENDANT CANNOT BE PROSECUTED
UNDER THIS NEW JUDICIAL CONSTRUCTION

Plaintiff cites Melugin v. Hames, supra, for the proposition that defendant can still be prosecuted even if the Court for the first time construes Section 251.56(a)(2)(vii) narrowly to save the entire regulatory scheme from being held unconstitutional. However, the Supreme Court stated in Dombrowski v. Pfister, 380 U.S. 479, 491 n. 7 (1965), "[o]ur cases indicate that once an acceptable limiting construction is obtained, it may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants." [Emphasis added]. See also Younger v. Harris, 401 U.S. 37, 50-51 (1971)(discussing Dombrowski and concluding that "a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problems."). [Emphasis added].

In the present case, reasonable minds could differ whether Section 251.56(a)(2)(vii) can be narrowly construed in the way plaintiff has suggested and such a narrow construction is not readily foreseeable and obvious. In this regard, it should be noted that in the trial court, the learned District Court Judge Roger Strand did not narrowly construe subsection (vii) in the way now suggested by plaintiff, thus demonstrating that reasonable minds can differ as to the proper construction of the language contained therein, contrary to plaintiff's assertion that "a narrow construction of subsection (vii) is "readily apparent." Plaintiff's Opening Brief, p. 34.

Moreover, plaintiff's reliance on Melugin v. Hames, supra, and Osborne v. Ohio, 495 U.S. 103, 119 (1990) is likewise misplaced. Plaintiff asserts "In short, defendants 'had notice' that the failure to obtain a noncommercial group use permit 'was criminal,' * * *, no matter what construction was applied to 36 C.F.R. 251.56(a)(2)(vii)." Plaintiff's Opening Brief, p. 35. Defendant's conduct herein is not the sort of "hard-core" conduct that would obviously be prohibited under any construction of subsection (vii). If the construction of subsection (vii) is otherwise than plaintiff suggests, then defendant's sort of conduct is not prohibited at all, as the regulatory scheme would be unconstitutional and the defendant can lawfully attend events or activities on National Forest System lands involving a group of 75 or more participants and spectators without applying for and receiving a special use authorization.

VI. SECTION 251.56(a)(2)(vii) CANNOT BE SEVERED,
RENDERING THE REMAINDER OF THE REGULATORY SCHEME
CONSTITUTIONAL AND EVEN IF IT CAN BE, THE PROSECUTION
OF THE DEFENDANT HEREIN CANNOT PROCEED

Striking Section 251.56(a)(2)(vii) would not render the scheme constitutional as this Court's doing so, if it were to, would not address the other six points raised in Defendant's Motion to Dismiss. At the very least, the Court, to render the regulatory scheme constitutional, would also have to strike Section 251.56(a)(2)(i), specifically, the language "to protect the Federal economic interest," the language in Section 251.56(b) that the duration of a special use authorization "shall be no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization," and the entire administrative appeals process contained in Sections 251.80 - 251.102. The intent of the severability principle is that such should be used if it would save an otherwise constitutional or lawful statute; in this case, severing Section 251.56(a)(2)(vii) from the remainder of the regulatory scheme would not render the remainder of the scheme constitutional.

Moreover, even if this Court were to strike subsection (vii), the prosecution of defendant cannot proceed. Plaintiff makes the mere statement "At worst then, under Alaska Airlines, [Inc. v Brock, 480 U.S. 678, 107 S.Ct. 1476 (1987)], the offending provision - subsection (vii) of Section 251.56(a)(2) -- should be severed from the regulatory scheme and the prosecution of the defendants allowed to proceed. Plaintiff's Opening Brief, p. 38. However, plaintiff offers no supporting authority for the latter part of this assertion, that the prosecution of the defendants should be allowed to proceed. Alaska Airlines only authorizes a court, under certain circumstances, to declare that unobjectionable provisions are separable from those found to be unconstitutional, and to maintain the act [or regulations] insofar as it is valid; it does not hold that a prosecution of a defendant, for acts committed while the unconstitutional provision still remained, may proceed. 20

In this regard, at the time defendant is alleged to have committed the offense with which he is charged, the regulatory scheme still contained subsection (vii) and therefore was at that time unconstitutional. If this Court severs subsection (vii), rendering the remainder of the regulatory scheme constitutional, subject to the District Court's ruling on defendant's other six points raised in his Motion to Dismiss, then the regulatory scheme is only constitutional from the date of this Court's decision and defendant cannot be prosecuted for his acts prior thereto -- any such prosecution would violate the ex post facto guarantee contained in the U.S. Constitution. 21

Respectfully submitted,

(signed)
Michael D. Linick, aka Strider
P.O. Box 1125
Eugene, OR 97440
(no telephone)
e-mail address: Oregonstrider@Yahoo.com

_______________________

20Alaska Airlines, Inc. v. Brock was not a criminal case but involved a civil action brought by petitioners, airlines subject to the 1978 Airline Deregulation Act's duty-to-hire provisions.

21Article 1, U.S. Constitution, Section 9, Clause 3 provides: "No Bill of Attainder or ex post facto Law shall be passed."

STATEMENT OF RELATED CASES

This case is related to Black v. Arthur, Nos. 98-36044 and 98-36046, and defendant requests that Black v. Arthur and the instant case be set for oral argument on the same calendar before the same panel.