UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
JOHN E. JOHNSON, III; WILLIAM V.
LETEMPT; JEFFERY O. PIKE; DANIEL
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
Argued: September 25, 1998
Decided: October 28, 1998
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge and
BULLOCK, Chief United States District Judge for the Middle
District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Wilkinson and Chief Judge Bullock joined.
ARGUED: Eric Jason Foster, PITTS, HAY, HUGENSCHMIDT &
DEVEREUX, P.A., Asheville, North Carolina, Brian L. Michaels
Eugene, Oregon, for Appellants. Kenneth Davis Bell, First Assistant
2-- UNITED STATES V JOHNSON This appeal involves a challenge to federal regulations that
prohibit a noncommercial group of 75 or more persons from using
the national forests without first obtaining a permit. Because
the Government presented ample evidence to support convictions
for violating these regulations and because application of the
regulations here did not infringe upon First Amendment rights,
The Government charged John E. Johnson, III, William V.
LeTempt, Jeffrey O. Pike, and Daniel Gallagher with violating
36 C.F.R. § 251.50 (1998), 36 C.F.R. § 261.51 (1998)
and 36 C.F.R. § 261.10 (1998) which prohibit occupancy or
use of any national forest system lands by groups of 75 or more
persons without first obtaining a special use authorization permit
from the National Forest Service. After a bench trial, the court
convicted each defendant of this offense and sentenced each to
pay a fine of $50 or perform eight hours of community service;
the court stayed the sentences pending appeal.
United States Attorney, Charlotte, North Carolina, for Appellee.
ON BRIEF: Sean P. Devereux, PITTS, HAY, HUGENSCHMIDT & DEVEREUX,
P.A., Asheville, North Carolina, for Appellants. Mark T. Calloway,
United States Attorney, Thomas R. Ascik, Assistant United States
Attorney, Ellen Horstein, Office of the General Counsel, UNITED
STATES DEPARTMENT OF AGRICULTURE, Asheville, North Carolina, for
DIANA GRIBBON MOTZ, Circuit Judge:
These convictions arise from a gathering in June 1996 of the
Rainbow Family in the Pisgah National Forest, located in Madison
County, North Carolina. The Rainbow Family is a group that periodically
gathers in natural surroundings, particularly to celebrate the
solstices and equinoxes.
UNITED STATES V JOHNSON --3
On June 14, 1996, when members of the Rainbow Family began
gathering in the Puncheon Camp area of the Pisgah National Forest,
Officer Walt Stribling informed Pike and LeTempt of the group's
obligation to obtain a special use permit if the group grew to
over 75 persons. On June 16, Officer Stribling, along with Deputy
Sheriff Lamar Worley, returned to the forest and counted 66 people
at the campfire circle and "in excess of 100 people"
in the surrounding Puncheon Camp area. Officer Stribling then
told Pike that it appeared that the 75 person threshold had been
exceeded and if that was so, a permit was necessary.
On June 17, Stribling again returned to the park; Forest Officer
Frank Roth accompanied him. They determined that, at a minimum,
79 members of the Rainbow Family group had gathered in the forest,
including the four defendants. For an hour, the officers talked
with the defendants regarding the need to apply for a permit and
expressly told them that the number of group members counted was
79, and so a permit was required. The officers gave the defendants
the opportunity to sign for and obtain a permit at that time but
each defendant refused to do so. The officers then issued each
defendant a notice of violation of the regulations.
In addition to the officers' trial testimony as to the June
17 meeting, a videotape of the conversation, which confirmed the
officers' account, was admitted into evidence at trial. Moreover,
each of the defendants testified at trial and confirmed this account
in all critical respects.
Specifically, Gallagher testified that he knew about the 75-person
rule well prior to the June gathering, that the officers had explained
it again on June 17, and that he "estimated" that there
were "maybe 50, maybe 60" Rainbow Family members present
on June 17, but that he did not count them. Johnson admitted that
he too had not counted the Family members, but that he had heard
the officers state that they had counted more than 75 people;
he also acknowledged that he had participated in other gatherings
in which a permit was necessary. LeTempt volunteered that he was
"very familiar" with the 75-person rule and that he
had thought at the start of the gathering that attendance could
exceed 75. He recalled that, although he had not performed a count
of his own, he had disputed Officer Roth's statement
4-- UNITED STATES V JOHNSON
that more than 75 people were present. LeTempt acknowledged
that shortly after Officer Roth informed him of the results of
his count, he offered to reduce the numbers in the group by morning.
Pike testified that he thought there were about "50 people
or so" but that he too did not count the members in attendance.
None of the defendants denied that on June 17 the officers notified
them that a permit was necessary because the 75 person limit had
been exceeded and that the officers gave them an opportunity to
apply for and obtain the required permit, an opportunity that
they rejected.After a bench trial, a magistrate judge convicted the defendants
of failing to obtain the necessary special use permit. The judge
specifically noted that none of the defendants disputed the agents'
account, reflected in the tape, that the agents had told the defendants
that the 75-person limit had been exceeded, that a permit was
necessary, and that they could apply for one that night. The defendants
appealed their convictions to the district court, which upheld
the magistrate judge's decision. See United States v. Johnson,
988 F. Supp. 920 (W.D.N.C. 1997).
On appeal to this court, the defendants maintain that we must
reverse their convictions because the regulations require the
Government to prove not only that 75 or more persons were in attendance,
but that each of the defendants knew the group was this large.
Alternatively, the defendants argue that application of the regulations
to them violated their First Amendment free speech and free association
rights. We consider each claim in turn.
The federal regulations at issue here, promulgated pursuant
to 16 U.S.C. § 551 (1998), prohibit any "use or occupancy
of National Forest System land or facilities without special-use
authorization when such authorization is required." 36 C.F.R.
§ 261.10(k). The regulations provide that such "special
use authorization" must be obtained for "noncommercial
group uses," id. § 251.50, and defines "group use"
as "an activity conducted on National Forest System Lands
that involves a group of 75 or more people, either as participants
or spectators." Id. § 251.51.
United STATES V JOHNSON --5
Thus proof of a violation of these regulations requires
the Government to demonstrate: (I) use, (2) of National Forest
land, (3) by a non-commercial group of 75 or more persons, either
as participants or spectators, (4) without special use authorization.
The defendants claim that, in addition, the Government must demonstrate
that they knowingly violated these regulations, i.e. in this case
that each defendant knew that 75 or more persons were present
in the forest at the time the officers issued notices that they
had violated the regulations.
The regulations, as well as the legislative history, see 60
Fed. Reg. 45258 (1995), are "silent concerning the mens rea
required for a violation." Staples v. United States, 511
U.S. 600, 605 (1994). Accordingly, to resolve the necessity of
a mens rea requirement would require us to engage in a somewhat
complicated inquiry. See United States v. X-Citement Video, 513
U.S. 64 (1994); United States v. Cook, 76 F.3d 596 (4th Cir. 1996).
However, the facts of this case eliminate the need for us to engage
in that analysis here.
Even if the Government must prove beyond a reasonable doubt
that each defendant knowingly violated the regulations, in the
case at hand the Government unquestionably met this burden. Indeed,
after hearing extensive evidence, which we have briefly outlined
above, the magistrate judge found that each defendant had "knowledge
about the law" and knowledge "that there could reach
a critical number, which could bring into bearing the permit process
and then the opportunity of each defendant to avoid the problem
by signing the permit or having somebody else sign the permit."
Those findings are amply supported by the record. The Government
offered abundant, uncontroverted evidence that the officers expressly
informed the defendants that more than 75 members of their group
were gathered in the national forest on June 17, that the defendants
concededly heard and understood this message, and that the defendants
offered the officers nothing to refute the count _ not even their
own count of Rainbow Family members. Therefore, the trial judge
did not err.
Alternatively, the defendants maintain that the Government's
application of the regulations to them violated their First Amendment
free speech and free association rights. They assert that the
6-- United STATES V JOHNSON
should be deemed unconstitutional because they "burden[
] substantially more expression than necessary to further the
government's legitimate interests." Brief of Appellants at
14.Neither party disputes that Rainbow Family gatherings constitute
expressive conduct. See United States v. The Rainbow Family,
695 F. Supp. 294, 308 (E.D. Tex. 1988). Further, the parties agree
that when expressive conduct occurs on public grounds, like a
national forest, the Government can impose reasonable "time,
place, and manner" restrictions. See Ward v. Rock Against
Racism, 491 U.S. 781, 789 (1989). The parties also agree that
such restrictions are constitutionally valid as long as they (I)
are content-neutral, (2) "narrowly tailored to serve a significant
governmental interest" and (3) "leave open ample alternative
channels for communication of the information." Id. at 791.
Finally, the defendants do not contend that the regulations fail
to achieve content neutrality or to leave open ample alternative
channels of communication.
The defendants' single contention is that the regulations
are not narrowly tailored to satisfy any legitimate government
interest. They assert that a 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 does not justify the regulations. More specifically, the
defendants argue that because obtaining a signature on a permit
application does not render the signatory financially liable for
group damage to the lands, the regulations do not lead to any
actual repair of damaged property. The defendants maintain that
if the Government were truly interested in reducing such damage,
it would make every person in the group sign the application.
Because the defendants posit too limited a view of the interests
served by the regulations, their arguments miss the mark. The
regulations, as well as the Department of Agriculture's comments
accompanying them, make clear that the regulations serve three
purposes. They are designed to (I) "protect resources and
improvements on National Forest System lands," (2) "allocate
space among potential or existing uses and activities," and
(3) "address concerns of public health and safety."
60 Fed. Reg. 45,258, 45,262 (1995).
United STATES V JOHNSON --7The permit requirement serves these three goals in a narrowly
tailored manner by providing a minimally intrusive system to notify
Forest Service personnel of any large groups that will be using
the forest so that the personnel, through advance preparation,
can minimize any damage that may occur. See, e.g., 36 C.F.R. §§
251.54(h)(1)(i-vi) and (h)(2)(1998); 60 Fed. Reg. 45,258, 45,260,
45,262, 45,266, 45,27245,273, 45,279-45,280. Indeed, the defendants
have pointed to no evidence suggesting that the permit system
does not properly and narrowly serve these significant governmental
interests. Thus, we must reject the defendants' assertions that
application of the regulations to them violated their First Amendment
Members of the Rainbow Family, like all other citizens
of this country, are entitled to the fair administration of justice
and to the enjoyment of their Constitutional rights, including
the precious rights of free speech and free association. But,
like other citizens, they must comply with lawful government directives.
In this case, they willfully violated neutral government regulations
narrowly tailored to protect the national forest system lands
for use by all. Accordingly, their convictions for violating the
special use regulations are
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