United States v. Rainbow
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
UNITED STATES OF AMERICA
v. CIVIL ACTION Case Number 96- 183
THE RAINBOW FAMILY, et al.
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF WILLIAM THOMAS' APPLICATION TO INTERVENE
Pursuant to local rule 301(a), Proposed Intervener, William Thomas, hereby submits "a ... legal memorandum with citation of authorities in support of" his application to intervene. As explained below statute and judicial precedent require that "the district court must allow him to intervene."
2. FACTUAL BACKGROUND
On or about February 15, 1996 Plaintiff filed suit, styled as a "class action,"  seeking "a declaratory judgment that United States Department of Agriculture regulations concerning noncommercial group uses of the national forests, are valid under the United States constitution." Complaint, pg. 8. Plaintiff also seeks "an injunction against the Defendants from violating the regulations at issue" (id., ¶ 1), and requests the court to "Order the defendants to take such affirmative actions as to
[1 Although "Plaintiff brings this suit against the Rainbow Family as a defendant class" (complaint ¶ 6), it is not precisely clear whether Plaintiff intended this regulation as a prophylactic specific to the Rainbow Family. But turning to the regulation itself (36 C.F.R. 25.50, et. seq., and 261.2, et. seq.), there is no indication that the regulation was not intended to apply to everyone within the legal jurisdiction of the United States.]
provide notice of the injunction to Rainbow Family members through all means of available public and private media and to inform all members of the Rainbow Family that a violation of the injunction is punishable by contempt of this court." Op. cit.
In pursuit of his religious beliefs, Proposed Intervenor has in the past, and intends in the future, to participate in gatherings of over 75 persons in National Forests.
As a result of personal efforts to prevent the Forest Service from criminalizing the ancient right of free assembly on public lands, Proposed Intervenor's address, P.O. Box 27217, Washington, D.C. 20038, and telephone number 202-462-0757 appear under the constitutional opinions upon which the Complaint is founded. i.e.,
Proposed Intervenor has received telephone calls from at least three people directly involved with this case seeking legal information about the instant Complaint.
In the event this honorable Court grants the relief sought in the Complaint, Proposed Intervenor's materially harmless, heretofore constitutionally protected, participation in such gatherings will -- as a direct and proximate result of Plaintiffs' "group use regulations" (36 C.F.R. Parts 251 & 261) -- become a criminal violation of federal regulations.
As a rule, the federal agencies enact regulations -- exercising, we hope, scrupulous care that the rules do not offend the nation's fundamental law -- and then enforce the regulations against people thought to be in violation. It is somewhat
"The 'Rainbow Guide for 1995, Summer Edition' indicates that the forest Service group use regulations are unconstitutional under the First Amendment to the U.S. Constitution. See Attachment 1." Complaint, ¶ 22.
unusual for the government to bring an action requesting a judicial determination as to whether a given regulation is, or is not, "valid under the United States constitution." Complaint, pg. 8. Nonetheless, that is the situation presented in the instant case.
In pertinent part, the Circuit Court has held:
As discussed below, each of the four requirements are established as to Proposed Intervenor, and therefore, "the district court must allow him to intervene."
(1) PROPOSED INTERVENOR'S APPLICATION TO INTERVENE IS TIMELY
Proposed Intervenor initially sought to intervene even before service of process was executed on all named individual Defendants.  Plaintiff does not oppose intervention by Mr. Thomas ... (Doc. #63)." Order, March 10, 1996, ¶ 1.
On May 10, 1995 the Court's Order granted both Defendants Steven Williams
"A party seeking to intervene as of right under Rule 24(a)(2) must show that: (1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is the subject of the action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit. Athens Lumber v. Federal Election Commission, 690 F.2d 1364 at 1366. If he establishes each of the four requirements, the district court must allow him to intervene." Chiles v. Thornburgh, 865 F2d 1197, 1213 (11th Cir. 1989)
[2 In its Order of May 10, 1996, this Court denied Proposed Intervenor's first application, for a procedural faux pas. Although the Supreme Court has admonished that pro se pleadings must be liberally construed to avoid injustice (see, Haines v. Kerner, 404 U.S. 519 (1972)), a pro se litigant is not excused from compliance with the rules of court. Hence, rather than plead with the Court to consider the Declaration and Motion filed with his initial pleadings as "a memorandum in support of the motion," Proposed Intervenor simply applies to correct his procedural error]
(aka "Bullwinkle") and Wakeem "ten days from the entry of this Order," in which to file "responsive pleadings" to the Complaint.
Thus, the major consideration concerning timeliness of intervention -- whether "the parties already in the lawsuit could have been prejudiced by the ... intervention" -- is not triggered. Diaz v. Southern Drilling Corp., 472 F.2d 1118, 1125-26 (5th Cir.)
(2) PROPOSED INTERVENOR HAS AN INTEREST RELATING TO THE
TRANSACTION WHICH IS THE SUBJECT OF THE ACTION
The Eleventh Circuit court has held, "a party seeking to intervene need not demonstrate that he has standing in addition to meeting the requirements of Rule 24 as long as there exists a justiciable case and controversy between the parties already in the lawsuit." Chiles, at 1213. 
The single "Count" in the Complaint postulates that:
In the past when Proposed Intervenor has participated in gatherings of more than 75 people in National Forests, his participation enjoyed protection under the
"By intentionally and knowingly failing to apply for a special use authorization under 36 C.F.R. § 251(b) and holding a gathering of over 75 persons in the Osceola National Forest, defendants are in violation of Plaintiff's group use regulations." Complaint, ¶ 25. 
[3 It seems Plaintiff's only grievance is that somebody didn't feel the regulations were constitutionally valid. Complaint ¶ 22. Proposed Intervenor assumes that there is a justiciable controversy in this case, solely for the purpose of this Application.]
[4 Among other relief requested, the Complaint also asks the Court to: "Enjoin the defendants and their officers, employees, agents, servants, contractors, and attorneys, and all those acting in concert with them, from attending, conducting or participating in any way in a gathering within the National Forests in the State of Florida and elsewhere in the United States in violation of the group use regulations." Id. pg. 26.]
provisions of the First Amendment. The practical effect of the relief requested in this complaint -- declaratory judgement that "Plaintiff's group use regulations ... comply with the First Amendment"  -- would be to transform what has traditionally been considered "constitutionally protected activity"  into "a crime." 
Assuming that "knowingly failing to apply for a special use authorization" constitutes a "justiciable case and controversy," Proposed Intervenor's personal stake in the outcome of the controversy is represented by the statutory provisions of the First Amendment,  and, grounds for "Intervention of Right." See, F.R.C.Pro 24(a). 
[5 "(I)f a particular constitutional or statutory provision was intended to protect a litigant by limiting the authority conferred, the "litigant's interest may be said to fall within the zone protected by the limitation." Haitian Refugee Center v Gracey, 809 F.2d 794 811 (D.D.C 1987).]
[6 The Supreme Court has wisely discerned that suppression of First Amendment exercise constitutes "irreparable injury," Elrod v. Burns, 427 U.S. 347, 373 (1976).]
[7 As finally amended (Federal Register, August 30, 1995, Vol. 60, No. 168, pgs. 45257-45295), pursuant to the provisions of 36 C.F.R. 261.1(b), violations of 36 C.F.R. Part 261 are punishable by fine and imprisonment.]
[8 The "Background" sections of both Plaintiff's proposed and final rulemaking publications (36 C.F.R. Parts 251 & 261) show conclusively that Plaintiff views the initial obstacle to the rulemaking scheme as "the First Amendment," i.e.,
[9 "Where a party champions his own rights, and where the injury alleged is a
concrete and particularized one which will be prevented or redressed by the relief
requested, the basic practical and prudential concerns underlying the standing doctrine
are generally satisfied when the constitutional requisites are met." Duke Power Co. v.
Carolina Environmental Study Group, Inc. 438 U.S. 59, 80-81(1978).]
"The First Amendment of the United States Constitution provides in part that the government may not abridge the freedom of speech or the right to assemble peaceably. U.S. Const. Amend. I. Freedom of speech means the right to disseminate ideas freely, both orally or in writing." Federal Register, Vol. 60, No. 168, Page 45257 (August 30, 1995), Final Rule; id., Vol. 58, No. 86, pg. 26940 (May 8,, 1995), Proposed Rule.]
On the other hand, the "Factual Background" section the Complaint refers the factfinder to ¶ 22. In fact, Proposed Intervenor's personal address and telephone number appear on the inside rear cover.of the Rainbow Guide for 1995, summer Edition (Complaint Attachment 1), immediately beneath the opinion "that the Forest Service group use regulations are unconstitutional under the First Amendment." Complaint Attachment 1, inside back cover. Assuming, arguendo, Plaintiff has stated a "justiciable case and controversy," it appears self-evident that Plaintiff's "controversy" is with Proposed Intervenor's words. 
On or about March 16, 1996, Proposed Intervenor got a phone call came from a man who identified himself as Tim Howard, a Florida attorney. Mr. Howard was calling on behalf of one of the named defendants in the case, and asked for information concerning the status of this case.  When I asked Mr. Howard why he was calling my telephone number to request information about this Complaint, he replied that he had gotten my number from Attachment 1 to the Complaint.
Plaintiff also requests that this Court:
"Order the defendants to take such affirmative actions as to provide notice of the injunction to Rainbow Family members through all means of available public and private media and to inform all members of the Rainbow Family that a violation of the injunction is punishable by contempt of this court." Complaint, pg. 8.
[10 Notwithstanding the fact that the offensive legal opinion appears in the
"Rainbow Guide, Summer Edition," a look at the item reveals that it is not the opinion
of the "Rainbow Family," but rather the opinion of a First Amendment interest group
called "People for Compassion and Understanding."]
[11 Although the docket sheet indicates service of process on the individual
defendant upon whose behalf Mr. Howard said he was calling, the record does not
indicate that individual defendant has filed any documents in the case.]
Should Plaintiff prevail in this matter Proposed Intervenor is also likely to be impacted in another manner. Considering, that (1) the constitutional opinions which Plaintiff asks this Court to condemn appear directly over Proposed Intervenor's telephone number and address, (2) the Complaint (¶ 22) makes direct reference to the page on which those opinions are expressed, (3) various individuals have contacted Proposed Intervenor requesting information on the case, (4) Plaintiffs' claim for "class action" relief extends to "defendants and their officers, employees, agents, servants, contractors, and attorneys, and all those acting in concert with them;" if the Court grants the requested relief it appears there is nothing from preventing Plaintiff -- based purely on the fact that his address and telephone number appears in the "Rainbow Family Guide" -- From designating Proposed Intervenor "to inform all members of the Rainbow Family that a violation of the injunction is punishable by contempt of this court," and require him to execute the requested relief. 
"By any imaginable yardstick, [Proposed Intervenor has] a direct, substantial, legally protectible interest in the lawsuit[.]" Chiles, at 1214 [brackets substituting].
(3) PROPOSED INTERVENOR IS SO SITUATED THAT DISPOSITION OF THE
ACTION, AS A PRACTICAL MATTER, MAY IMPEDE OR IMPAIR
HIS ABILITY TO PROTECT THAT INTEREST
"The Supreme court has held that the inadequate representation requirement 'is satisfied if the [proposed intervenor] shows that representation of his interest "may be" inadequate' and that 'the burden of making that showing should be treated as
[12 This is styled as a "class action," the Rainbow Guide is appended to the
Complaint, apparently as "evidence" of a class, and Plaintiff has not challenged
Proposed Intervenor's assertion that he would qualify as a class member.]
minimal.' Trobovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10. Thus, the (proposed intervenor) 'should be allowed to intervene unless it is clear that [other parties] will provide adequate representation.'; 7 C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1909, at 319 (2d ed. 1986) ." Chiles, at 1213-1214 [brackets substituting].
As discussed above, Proposed Intervenor has a personal stake in the outcome of the controversy.  Thus, the Court must look to the other parties and determine whether they are likely to shed illumination on the difficult questions raised by the Complaint, and whether they will adequately represent Proposed Intervenor's interests.
4. PROPOSED INTERVENOR'S INTERESTS
ARE REPRESENTED INADEQUATELY BY THE EXISTING PARTIES
To the best of his knowledge, Proposed Intervenor has never met either of the two named defendants, Steven Williams (aka, "Bullwinkle") and Wakeem. However -- apparently because they found Proposed Intervenor's telephone number in Complaint, Attachment 1 (Rainbow Guide, Summer 1995) -- on separate occasions both Williams and Wakeem have telephoned Proposed Intervenor to request legal advice in this matter. The callers were advised that Proposed Intervenor is not an attorney. 
[13 "'In essence, the question of standing is whether the [party] has a 'personal
stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which [a] court so largely depends for
illumination of difficult ... questions[.]'" Chiles, at 1204, citing, Baker v. Carr, 369 U.S.
186, 204 [brackets substituting].]
[14 Although Defendant Intervenor is not an attorney, neither are Bullwinkle or
Wakeem. From the docket sheet it seems that both Bullwinkle and Wakeem have
missed filing deadlines. Defendant Intervenor can discern no indication in the record,
or from personal communication, to suggest that Bullwinkle or Wakeem can
adequately represent their own interests, much less the interests of an alleged class.]
Strictly on the basis of those telephone conversations Proposed Intervenor concluded that (1) neither Bullwinkle nor Wakeem share the same interest in use of National Forests as Proposed Intervenor, (2) neither can adequately represent Proposed Intervenor's interests, and (3) neither is likely to focus on approaches to litigation which must be presented to insure adequate representation. 
One simple method for determining whether Defendant Williams and/or Wakeem are likely to adequately exploit the available approaches to litigation is to compare the respective Defendants' responsive pleadings with the Motion to Dismiss filed by Proposed Intervenor on March 20, 1996. See, Doc. 55. 
Thus, Proposed Intervenor "should be allowed to intervene unless it is clear that [Williams and Wakeem] will provide adequate representation." Id., 7 C C. Wright, A.
"The fact that the interests are similar does not mean that approaches to litigation will be the same. Trobovich v. United Mine Workers of America, 404 U.S. 528, 539 n. 10." Chiles, 865 F.2d 1197 1215 (1989). 
[15 Proposed Intervenor has no authority or ability to represent the interests of
Defendant "Rainbow Family," by the same measure, neither Defendant "Rainbow
Family," nor to the best of Proposed Intervenor's knowledge and belief, any of the
individually named Defendants is capable of adequately representing the interests of
[16 The Supreme Court has held that the inadequate representation requirement
"is satisfied if the [proposed intervenor] shows that representation of his interest 'may
be' inadequate," and "the burden of making that showing should be treated as
[17 The Court noted, "Defendant Williams has already filed a pleading responsive
to Plaintiff's." Order, May 10, 1996, pg. 1. See, untitled pleading (Doc. #45). ]
Miller, & M. Kane (parentheses substituting).
For the foregoing reasons Proposed Intervenor "must be permitted to intervene" (Chiles, supra) to insure adequate representation in defense of his interests in free thought, expression and assembly, as guaranteed him pursuant to the provisions of the First Amendment of the United States of America.
Respectfully submitted, under penalty of perjury, and pursuant to the provisions of F.R.C.Pro 11, this ___th day of May, 1996,
William Thomas, Proposed Intervenor, pro se
P.O. Box 27217
Washington, D.C. 20038
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this __th day of May, 1996, service of the
foregoing Memorandum of Points and Authorities in Support of Application to Intervene as a Defendant has been made by mailing a copies thereof, first class U.S. mail, postage prepaid, to:
Assistant United States Attorney
200 West Forsyth Street, Suite 700
Jacksonville, Florida 32201
Mr. Barrie (Wakeem)
1855 S. Federal Hwy.
Stuart, FL 34994
Steven Williams (Bullwinkle)
c/o Warren Monday
P.O. Box 653
Altoona, FL 32702
9938 Keswick St.
Burbank, CA 91504
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