Untitled Document

No. 99-3903

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
__________________________

TRACIE PARK,

Plaintiff-Appellee,

THE FOREST SERVICE OF THE UNITED STATES OF AMERICA,

Defendant-Appellant,

and

WELDON WILHOIT, in his official capacity
as the Superintendent of the Missouri State Highway Patrol,

Defendant,

and

OREGON COUNTY.

Defendant.
__________________________

ON APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
__________________________

REPLY BRIEF FOR THE APPELLANT
__________________________

DAVID W. OGDEN
Acting Assistant Attorney General

STEPHEN L. HILL, Jr.
United States Attorney

MICHAEL JAY SINGER
(202) 514-5432
HOWARD S. SCHER
(202) 514-4814
Attorneys, Appellate Staff
Civil Division, Room9116
Department of Justice
601 D Street, N .W .
Washington, D.C.20530-0001

TABLE OF CONTENTS

6480 Page

PRELIMINARY STATEMENT 1

I. THE INJUNCTIONDOES NOT COMPLY WITH
RULE 65(d), FED.R. CIV. P. 4

II. THE INJUNCTIONIS OVERBROAD 7

A. It Is Not Unconstitutional To Erect A Checkpoint
That Targets A Gathering That Happens To Be
Sponsored By The Rainbow Family 7

B. The District Court Should Not Have Entered A Nationwide Injunction With Respect To Its Holding That The 1996 Checkpoint Was An Unconstitutional General Law Enforcement Checkpoint 13

III. PARK LACKED STANDING TO SEEK
INJUNCTIVE RELIEF WITH RESPECT TO
GENERAL LAW ENFORCEMENT CHECKPOINTS 19

CONCLUSION 20

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

TABLE OF AUTHORITIES

Cases:

Black v. Arthur, 18 F. Supp.2d 1127 (D. Or.1998),
appeal pending, Nos. 98-36044 & 98-36046(9th Cir.) 7

Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd.,
824 F.2d 665 (8th Cir. 1987) 5

Camara v. Municipal Court, 387 U.S. 523 (1967) 11

Cox v. New Hampshire, 312 U.S. 369 (1941) 8-9

Delaware v. Prouse, 440 U.S. 648 (1979) 9

Foti v. City of Menlo Park, 146 F.3d 629 (9thCir. 1998) 17

Maxwell v. City of New York, 102 F.3d 644 (2dCir. 1996) 9, 10

Michigan Department of State Police v. Sitz,496 U.S. 444 (1990) 14, 15

Shankle v. Texas City, 885 F. Supp. 996 (S.D. Tex. 1995) 10-11, 18

Turner Broadcasting v. FCC, 512 U.S. 622(1994) 17

United States v. Apker, 705 F.2d 293 (8thCir.), modified in
part on other grounds, 724 F.2d 633 (1983)(en banc),
cert. denied,466 U.S. 950 (1984) 12

United States v. Johnson, 159 F.3d 892 (4thCir. 1998) 9

United States v. Martinez-Fuerte, 428 U.S.546 (1976) 9, 10, 11

United States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989) 9, 10

United States v. O'Brien, 391 U.S. 367 (1968) 9, 17

United States v. United States District Court,407 U.S. 297 (1972) 12

Wabun-Inini v. Sessions, 900 F.2d 1234 (8thCir. 1990) 12

Constitution:

United States Constitution:

First Amendment 8, 12
Fourth Amendment 3, 8, 12

Regulations:

60 Fed. Reg. 45258 (1995) 12,17-18

Rules:

Federal Rules of Civil Procedure:

Rule 59(e) 5
Rule 65(d) 4, 5, 6

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
__________________________

No. 99-3903
__________________________

TRACIE PARK,

Plaintiff-Appellee,

THE FOREST SERVICE OF THE UNITED STATES OF AMERICA,

Defendant-Appellant,

and

WELDON WILHOIT, in his official capacity
as the Superintendent of the Missouri State Highway Patrol,

Defendant,

and

OREGON COUNTY.

Defendant.
__________________________

ON APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
__________________________

REPLY BRIEF FOR THE APPELLANT
__________________________

PRELIMINARY STATEMENT

This appeal challenges only the scope of the district court's injunction. The district court entered a

nationwide injunction based on the challenge of a single plaintiff concerning the facts of a single checkpoint conducted in 1996 in the Mark Twain National Forest. Park concedes as much. See, e.g., Park Br. at 18, 32. Accordingly, we have challenged the nationwide scope of the injunction. See. e.g., Opening Br. at 35-36.

Park's response, in the main, is to highlight the particular facts of the 1996 checkpoint and argue that those facts buttress the need for a nationwide injunction. See Park Br. at 1-4, 23, 32-33. But only two facts were critical to the district court:(1) that the 1996 checkpoint was conducted for general law enforcement purposes and (2) that the checkpoint was "targeted" at the Rainbow Family. As a result, the district court enjoined the Forest Service nationwide (1) from establishing general law enforcement checkpoints and (2) from erecting any checkpoint on National Forest System roads in close proximity to a Rainbow Family gathering unless the Forest Service has first obtained a warrant. See Opening Br. at 28; App. 92-93. 1/

As we stated in our opening brief, we do not challenge the district court's ruling with respect to the first point - checkpoints for general law enforcement purposes. 2/ Indeed, we conceded that such checkpoints are unconstitutional. See Opening Br. at 25 n.7, 34-35. However, the Forest Service's first national (and written) policy on checkpoints - which became effective on September 30, 1998 (App. 50-58) - establishes procedures for the approval and conduct of checkpoints so that the likelihood of such checkpoints in the future is nil. Accordingly, there was no basis for a nationwide injunction in light of the new Policy. See Opening Br. at 7-9, 36-38, 39-42. 3/

We do, however, challenge the district court's ruling with respect to the second point - that the 1996 checkpoint violated the Fourth Amendment because its mere location in proximity to a Rainbow Family gathering undermined the neutrality of the checkpoint and, therefore, its constitutionality. As we demonstrated in our opening brief, the district court was dead wrong in this respect. See Opening

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Br. at 27-34. This second point is particularly important because it was for this reason, alone, that the district court determined that the Forest Service's 1998 Policy did not moot the need for injunctive relief. In the district court's view, the 1998 Policy could only moot the need for such relief if it absolutely foreclosed the Forest Service from establishing future checkpoints in close proximity to Rainbow Family gatherings without a warrant. See App. 67-68.As a result of the district court's error of law regarding location, the injunction must be vacated. Moreover, because of the 1998 Policy, no injunction of any sort is warranted. See Opening Br. at 36-38, 39-42

We now address the specific arguments in Park's Brief.

I. THEINJUNCTION DOES NOT COMPLY WITH RULE 65(d), FED. R. CIV. P.

Park argues that several of the cases we cited in support of our argument that the district court's injunction does not comport with Rule 65(d) are distinguishable. Park Br. at 11. But this argument simply misses the point because no matter what slight differences exist between those cases and the instant one, the fact is that all of the cases emphasize that, pursuant to Rule 65(d), a district court must be crystal clear in stating what conduct it is enjoining. Neither the June 11th order nor the August 16th order comport with this requirement, and we refer the Court to our extensive analysis in our opening brief. See Opening Br. at 19-27.

Specifically, however, we emphasize the following. Park concedes that the district court relied only on the 1996 checkpoint in issuing its injunction. See Park Br. at 18, 32. Nevertheless, the injunction appears to prohibit all checkpoints erected in close proximity to Rainbow Family gatherings, even purely informational and emergency checkpoints, though such checkpoints were not before the court and were not addressed - either generally or specifically- by the district court. Accordingly, because the injunction appears to include these types of checkpoints, the Forest Service has put a moratorium on all checkpoints that it might erect in close proximity to Rainbow Family gatherings in order to

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avoid the possibility of contempt for such conduct. That the district court has put the Forest Service in this position is flatly inconsistent with Rule 65(d).See, e.g., Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987) ("those against whom an injunction is issued should receive fair and precisely drawn notice of what the injunction actually prohibits").

Park now retracts her statement that informational checkpoints were not at issue in this case. Park Br. at 8n.1. She cites the district court's opinion (at App. 72a) that the "Forest Service also maintains that the checkpoint was used as an informational tool * * *." Ibid. But the district court made no ruling on informational checkpoints because Park did not challenge them. Indeed, that is why Park's Response to the government's motion pursuant to Rule 59(e), Fed. R. Civ. P., stated that such checkpoints were not at issue. See App. 89-90.

Park makes the remarkable statement that emergency checkpoints are not precluded by the district court's injunction because such checkpoints would be "targeted at the fleeing felon (for instance) rather than at the Rainbow Family gathering." Park Br. at 14-15. That argument, however, is pure sophistry. First, the district court's injunction clearly prohibits all checkpoints in close proximity to Rainbow Family gatherings for any purpose if the Forest Service has not obtained a warrant. Park's putative disclaimer does not alleviate one iota the broad sweep of the language used in the district court's injunction. Second, to say that an emergency checkpoint is targeted at, for example, the fleeing felon and not the Rainbow Family is to say that a sobriety checkpoint is targeted at a drunk driver (not the Rainbow Family) or that a document checkpoint is targeted at undocumented drivers (not the Rainbow Family). In other words, if Park's argument has merit, it would under cut her "targeting" argument altogether.

Finally, Park herself provides proof of the injunction's failure to meet Rule 65(d)'s specificity requirement. In suggesting a "possible modification" for the district court's injunction, Park provides a detailed list of the conduct that should be enjoined. See Park Br. at 16. This list clearly comports with the specific conduct that Park found objectionable, challenged, and wanted enjoined. To comply with

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Rule 65(d), the district court's injunction should have been that detailed. Moreover, it is significant that Park's modification contains no language enjoining purely informational or emergency checkpoints. Park Br. at 16. 4/

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II. THE INJUNCTION IS OVERBROAD.

A. It Is Not Unconstitutional To Erect A Checkpoint That Targets A Gathering That Happens To Be Sponsored By The Rainbow Family.

Park's main argument is that the district court correctly ruled that it is unconstitutional to erect checkpoints that "target" Rainbow Family gatherings because such "targeting" undermines the neutrality of the checkpoint. But, as we demonstrated in our opening brief, the district court was dead wrong in this respect. See Opening Br. at 28-34.

1. In the first place, it is incorrect to say that the 1996 checkpoint "targeted" the Rainbow Family. The facts support only the conclusion that the 1996 checkpoint "targeted" a large gathering in the Mark Twain National Forest that happened to be sponsored by the Rainbow Family. See Opening Br. at 33. In this connection, it is important to note that neither Park nor the district court explained why the Rainbow Family should be treated apart from the general public. Indeed, in this regard, Park's argument that the Rainbow Family is a group (or entity) entirely separable from the public is at odds with the Rainbow Family's contention in other cases that they are not a distinct group. See, e.g., Black v. Arthur, 18 F. Supp.2d 1127, 1132-33 (D. Or. 1998), appeal pending, Nos. 98-36044 & 98-36046 (9th Cir.). 5/

In any event, Park's contention that the Rainbow Family should be treated differently - as though it were not part of the public - is based on her contention that, when the Rainbow Family gathers in the National Forest System, it is engaging in protected First Amendment activity. See Park Br. at 10 n.2, 21 n.5, 23-25. This distinction, however, is not valid, and the argument is a red herring

First, the First Amendment applies to all citizens and groups. Therefore, the fact that the Rainbow Family gathers in the National Forest System to engage in expressive activity does not distinguish the Rainbow Family from any other individual or group for purposes of the First Amendment. Second, checkpoints in close proximity to Rainbow Family gatherings have no impact on First Amendment

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rights. They do not encumber speech, assembly, or the exercise of religion, and the district court made no finding that they do. Indeed, the district court found that the 1996checkpoint violated only Fourth Amendment, not First Amendment, rights. Third, even if checkpoints were deemed to have an incidental impact on First Amendment freedoms, checkpoints are justified, if - as is the case with Forest Service checkpoints- they are motivated by interests unrelated to the suppression of those freedoms. See, e.g., Cox v. New Hampshire, 312 U.S. 369, 374 (1941) ("The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend."). See also United States v. Johnson, 159 F.3d 892, 896 (4th Cir. 1998) ("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 right of free speech and free association[, b]ut, like all other citizens, they must comply with lawful government directives."). Thus, under Cox and Johnson, as well as United States v. O'Brien, 391 U.S. 367(1968), Park's First Amendment contentions have no merit.

2. a. In any event, contrary to Park's contention (Park Br. at 21), the neutrality of a checkpoint is not undermined by its location alone. Rather, the Supreme Court has consistently stated that neutrality is determined by whether vehicles are stopped on a systematic and objective basis (for example, every vehicle or every fifth vehicle). See, e.g., Delaware v. Prouse, 440 U.S. 648, 663 (1979). See Opening Br. at 29-30.

Moreover, neither Park nor the district court has cited a case that stands for the proposition that vehicle checkpoints must be located blindly, without reference to the problems that prompted them. Such a proposition, which would undercut the effectiveness and efficiency of checkpoints, is refuted

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by United States v. Martinez-Fuerte, 428 U.S. 546(1976); Maxwell v. City of New York, 102 F.3d644 (2d Cir. 1996); and United States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989).These cases upheld checkpoints that "targeted" particular neighborhoods or groups. See Opening Br. at 30-33.

b. Park argues that the court of appeals decisions in Maxwell and McFayden "are questionable" in light of the district court ruling in Shankle v. Texas City, 885 F. Supp. 996 (S.D. Tex.1995). Park Br. at 28 n.10. Park's reliance on Shankle, however, is greatly misplaced. At issue in Shankle were not mere checkpoints but, rather, blockades that excluded people, including residents, from a minority neighborhood. Id. at 999. As a result, many entirely law-abiding residents would not leave their homes, for fear of being arbitrarily barred from returning. Id. at 1001. Moreover, the roadblocks were unannounced and enforced in an arbitrary fashion, with some drivers required to produce documentation and others not. Id. at 999. 6/

In distinguishing the roadblock at issue there from the checkpoint in Martinez-Fuerte, the Shankle court observed that the checkpoints in Martinez-Fuerte were operated in a regularized manner, with less discretionary enforcement, and motorists subjected to them were not taken by surprise, as they knew of or could learn of the checkpoints. Shankle, 885 F. Supp. at 1000. This is precisely what the 1998 Policy requires. See App.50-58. The roadblocks at issue in Shankle, on the other hand, were "more similar to a roving patrol than to a checkpoint established for examining immigration or sobriety." Id. at 1001.

The Shankle court also stated, in dictum, that a roadblock targeting persons with "clear indicia of gang participation or activity," accompanied by "thoughtful processing" of persons not within the targeted group(apparently meaning different processing of those not within the targeted group), may be constitutionally permissible, but should be authorized by an "area warrant" similar to that required for searches for housing code violations in Camara v. Municipal Court, 387 U.S. 523 (1967). Shankle,

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885 F. Supp. at 1002, 1004. This dictum is apparently what Park relies on for her contention that checkpoints in close proximity to Rainbow Family gatherings may be established only if a warrant is first obtained.

Whatever the validity of that dictum, however, it does not apply to the checkpoints at Rainbow Family gatherings. As previously stated, the Forest Service checkpoints do not "target" anyone in the sense that the Shankle court meant in reference to persons exhibiting "indicia of gang participation," and they do not seek to differentiate among different types of people at the checkpoints, as would the checkpoints hypothesized in Shankle.

c. Further, checkpoints operated by the Forest Service are directed at, and motivated by, public safety and resource protection concerns, not the content of a group's speech or its identity. See, e.g., 1998 Policy, App. 52 ¦ 360(1). The Rainbow Family is a group whose gatherings, primarily though not exclusively because of their size, pose exceptional public safety and resource protection problems. The fact that Rainbow Family gatherings entail activities protected by the First Amendment does not place them off limits to this legitimate law enforcement tool, any more than attendees at a crowded convention would be off limits to enforcement of traffic or parking restrictions. Nor does the fact that Rainbow Family gatherings involve the exercise of First Amendment rights mean that their Fourth Amendment rights are protected by a higher standard than otherwise applicable to the general public. See Park Br. at 25 n.8. Rather, such a heightened standard applies, if at all, only to the seizure of materials protected by the First Amendment. See, e.g., Wabun-Inini v. Sessions, 900 F.2d 1234, 1240(8th Cir. 1990). 7/

d. Park contends that the Forest Service "never explains precisely" what its public health and safety and resource protection concerns are. Park Br. at 30. Park's argument seems purposely obtuse. With thousands of people gathering in the National Forest, concerns regarding disease (for example, participants in Rainbow Family gatherings typically dispose of human waste in open trench latrines), 8/ the potential for fire or other hazardous conditions, and egress in case of fire or other emergency

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situations are obvious. At the very least, an informational checkpoint to warn of, for example, a fire hazard or to direct participants where to park the hundreds or thousands of vehicles (so as not to block egress in case of an emergency) will be helpful, if not necessary. Similarly, it may be necessary at times to establish sobriety checkpoints if drunken driving is observed. Forest Service roads are often narrow and drunk driving presents an obvious danger to the members of the public attending the gathering (both as drivers of other vehicles and as pedestrians). Furthermore, thousands of participants are an obvious concern for the natural resources in a National Forest. Vehicle parking, tent location, and latrine location, for example, can pose a serious problem for the environment, especially where a sensitive ecological area exists in the vicinity of the gathering. Again, at the very least, an informational checkpoint to disseminate this important information will be helpful, if not necessary.

B. The District Court Should Not Have Entered A Nationwide Injunction With Respect To Its Holding That The 1996 Checkpoint Was An Unconstitutional General Law Enforcement Checkpoint.

1. Park argues that, regardless of "targeting," the district court did not err in enjoining the types of checkpoints that it specifically found unconstitutional - sobriety checkpoints, document checkpoints, and general law enforcement checkpoints. See Park Br. at 21 n.4, 32. However, as we demonstrated in our opening brief, the district court did not hold that sobriety and document checkpoints were unconstitutional. Rather, it held only that general law enforcement checkpoints were unconstitutional and that the Forest Service had used the pretext of conducting a sobriety and document checkpoint as a subterfuge for conducting an unconstitutional general law enforcement checkpoint. See App. 79, 80; Opening Br. at 11-12.

Moreover, even when we focus on the district court's analysis of the 1996 checkpoint as either a

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sobriety or a document checkpoint under the three-prong test in Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990), it is clear that the district court's main concern was again with location. In the district court's view, the location of a checkpoint so close to a Rainbow Family gathering on a National Forest System road undermined the first and second Sitz factors - the gravity of the public concern addressed by the checkpoint and the degree to which the public interest is advanced by it. See App. 72a-73 (with respect to sobriety checkpoint analysis - "the checkpoint [was located] on a seldom-traveled gravel road within the national forest over a mile away from a highway and only a mile from the main campsite of the Rainbow Family");77-79 (with respect to document checkpoint, same). Thus, for the reasons previously stated, if the district court had enjoined all sobriety and document checkpoints, that holding would have been invalid for the same reason the court's "targeting" holding is invalid.

2. Park argues that, regardless of "targeting," a nationwide injunction is necessary with respect to the unconstitutionality of a general law enforcement checkpoint for a number of reasons.

a. First, Park argues that, even if the district court's "targeting" ruling were wrong, the 1998 Policy does not moot the need for a nationwide injunction because the Policy does not expressly prohibit general law enforcement checkpoints. Park Br. at 34.But that argument is no different from contending that the 1998 Policy does not expressly state that unconstitutional checkpoints are prohibited, and yet that fact does not undermine the validity of the 1998 Policy. Indeed, although the 1998 Policy does not expressly state that Forest Service officials are prohibited from conducting unconstitutional checkpoints, the Policy was obviously written to avoid such results, and inter alia specifically incorporates the Sitz test to determine whether a checkpoint should be employed. See App. 52 ¦ 360 (1)-(3). See also Opening Br. at 7-9, 36-38.

In any event, Park cannot be heard to challenge the sufficiency of the 1998 Policy to prevent general law enforcement checkpoints when (1) the 1998 Policy was applied to only one checkpoint -

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the February 1999 checkpoint in the Ocala National Forest in Florida, see Park Br. at 3-4, 35 - before the district court's nationwide injunction was entered and (2) there has been no judicial challenge to that checkpoint, let alone a claim that the checkpoint was erected for general law enforcement purposes. Moreover, the government's concession in this appeal that general law enforcement checkpoints are unconstitutional, taken in connection with the 1998 Policy, reduces to nil the likelihood that general law enforcement checkpoints will be established, or defended, in the future.

b. Second, Park contends that the 1998 Policy does not moot the need for a nationwide injunction as to general law enforcement checkpoints because, according to Park, a high level official in the Office of the General Counsel of the Department of Agriculture told personnel conducting the 1996 checkpoint that "'[t]he checkpoint at the 1996 annual Rainbow Family gathering is not unconstitutional[.]'" Park Br. at 34, quoting Thorsen Report (Park App. 5) (brackets supplied by Park). See also Park Br. at 3 (same). Park's argument, however, has no merit whatsoever inasmuch as it is based on a misleading partial quotation of the Thorsen Report. What the Thorsen Report said is this: "The checkpoint at the 1996 annual Rainbow Family gathering is not unconstitutional, as long as it is implemented within constitutional requirements and as long as related law enforcement activities are performed within 4th amendment law and other legal requirements, e.g., searching only with probable cause." Park App. 5 (the underscored material was omitted from Park's brief). The underscoring is critical because it makes clear that the "high level official" was not addressing the particular facts of the 1996 checkpoint or approving that checkpoint.

c. Third, Park argues that the nationwide injunction should not be vacated because of the "poor relations" between the Forest Service and the Rainbow Family. Park Br. at 34. Even if such "poor relations" exist, government conduct that is otherwise lawful cannot be enjoined. Cf. United States v. O'Brien, 391 U.S. at 383 (alleged illicit legislative motive does not affect determination of constitutionality of otherwise lawful statute);Foti v. City of Menlo Park, 146 F.3d 629, 634n.1 (9th Cir. 1998) (same). See also Turner Broadcasting v. FCC, 512 U.S. 622, 652(1994) (official motive is irrelevant when considering the constitutionality of a content-neutral restriction upon expressive conduct, or even speech itself). And, clearly, the Rainbow Family has no standing to rely on a purported schism between components of the Forest Service to insist that an injunction of otherwise lawful government conduct is warranted. See Park Br. at 2, 34.

d. Fourth, Park relies on a selective, partial quotation from the preamble to the Forest Service's 1995 promulgation of its noncommercial group use permit regulations to support her argument that a nationwide injunction is necessary. See Park Br. at 20, 32. In the course of responding to concerns expressed by some commenters about the agency's law enforcement activities at group gatherings, the preamble to the group use permit regulations stated: "[W]hile it may be appropriate to post Forest Service officials at the entrance to a Rainbow Family Gathering to deter illegal activity and to provide helpful information on the national forests and resource protection, it is not necessary or appropriate to search cars entering the Gathering or to verify the driver's car registration, insurance, and license." 60 Fed. Reg. at 45266. This observation in the 1995 preamble to noncommercial group use regulations - which began by noting that some informational and law enforcement checkpoints may be appropriate - obviously did not foreclose the agency from subsequently considering and developing a more comprehensive, formal policy to address the propriety and nature of checkpoints. The 1998 Policy is now the official checkpoint policy of the Forest Service and cannot be trumped by a prior statement made in a preamble to regulations concerning an entirely different subject matter. Thus, there is no merit to Park's reliance on this material

e. Fifth, Park contends that the Forest Service's "voluntary cessation of wrongful conduct may eliminate the need for injunctive relief but does not defeat a court's power to act." Park Br. at 33 (internal quotation marks and citation omitted). This is our point exactly. See Opening Br. at 39-42.In light of the 1998 Policy, we argued that the district court should not have issued a nationwide injunction. We did not, however, argue that the district court lost the power to issue declaratory relief. Indeed, we cited Shankle v. Texas City, 885 F. Supp. 996 - a case on which both Park(see Park Br. at 28) and the district court (see App. 75-76) rely - as support for the proposition that the district court should have limited its remedial order to declaratory relief. See Opening Br. at 41-42.

III. PARK LACKED STANDING TO SEEK INJUNCTIVERELIEF WITH RESPECT TO GENERAL LAW ENFORCEMENT CHECKPOINTS.

Park argues that she has standing to seek injunctive relief with respect to general law enforcement checkpoints because, she asserts, she "will likely encounter another unconstitutional roadblock at one of the future Rainbow Family gatherings she attends* * *." Park Br. at 36. However, for the reasons stated in our opening brief (at 39-42) and above, the 1998 Policy in tandem with our concession in this case that general law enforcement checkpoints are unconstitutional reduces to nil the likelihood that Park will encounter such checkpoints in the future. Hence, she has no basis for contending that she will face such checkpoints in the future and, therefore, no standing to seek injunctive relief - as opposed to declaratory relief - with respect to such checkpoints. See Opening Br. at 39-42.

CONCLUSION

For the foregoing reasons and the reasons set forth in our opening brief, the district court's injunction should be vacated.

Respectfully submitted,

DAVID W. OGDEN
Acting Assistant Attorney General

STEPHEN L. HILL, Jr.
United States Attorney

MICHAEL JAY SINGER
(202) 514-5432
HOWARD S. SCHER
(202) 514-4814
Attorneys, Appellate Staff
Civil Division, Room9116
Department of Justice
601 D Street, N.W.
Washington, D.C.20530-0001

DECEMBER 1999

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of December, I served the foregoing Reply Brief for the Appellant (plus diskette) by causing two copies of the Reply Brief to be sent by Federal Express, for overnight delivery, to:

Steven Douglas Bonney
215 West 18th Street
Kansas City, Missouri 64108

Fred L. Slough
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, Missouri 64111
Attorneys for Plaintiff-Appellee

Andrea Spillars
Assistant Attorney General
514 East High St.
Jefferson City, Missouri 65101
Attorney for Defendant Weldon Wilhoit

Ray Lee Caskey
Oregon County Prosecuting Attorney
South Side Court Square
Oregon County, Room 10
Alton, Missouri 65606
Attorney for Defendant Oregon County

I also certify that I filed the Reply Brief by causing an original and ten copies of the Brief (plus diskette) to be sent by Federal Express, for overnight delivery, to the Clerk, United States Court of Appeals for the Eighth Circuit.

_____________________________________
HOWARD S. SCHER
Attorney for the Appellants

CERTIFICATE OF COMPLIANCE

I certify that this brief is proportionately spaced, using Times New Roman font, 14 point type. Based on a word count under Corel Word Perfect 7, this brief con-tains 4960, including the cover, the caption, certificate of compliance, and certificate of service.
I also certify that the computer diskette that I am providing has been scanned for viruses under McAfee VirusScan, version 3.1.0, and has been found to be virus-free.

_____________________________________
HOWARD S. SCHER
Attorney for the Appellant

Footnotes:
______________________________________

"App." refers to the appendix filed by the Forest Service with its opening brief. "Park App." refers to the appendix filed by Park with her response brief.

The Forest Service contended below that the 1996checkpoint was not established for general law enforcement purposes, but the district court concluded otherwise, and we do not dispute that conclusion. See Opening Br. at 25 n.7.

Hereinafter, we refer to the national policy as the "1998 Policy" or "Policy." In September 1997, pursuant to the parties' request and before dispositive motions had been filed, the district stayed proceedings to allow the Forest Service to review its use of checkpoints and to develop a national checkpoint policy. See App. 5; Docket No. 35. The 1998 Policy was promulgated thereafter and became effective on September 30, 1998. See App. 50-58 and Addendum to Opening Br. at 30A.

Our reference to Park's list should not be taken as agreement that the district court's injunction would be sustainable if it provided the same detail as Park has suggested. Our reference to the list, rather, is solely for the purpose of demonstrating that Park herself knew what specific conduct she challenged and sought to have enjoined and that, consequently, the district court simply failed to meet its Rule 65(d) obligation to be precise.

Moreover, taken to its logical conclusion, Park's argument (and the district court's ruling) would prohibit checkpoints erected in connection with any group's gathering in the National Forest System.
In the end, however, even in the face of such misconduct, the Shankle court granted only declaratory, not injunctive, relief. 885 F. Supp. at 1005. See discussion, infra, at pp. 18-19 and Opening Br. at 39-42.

Thus, Park misplaces her reliance on the cases cited at pp. 23-24 and p. 25 n.8of her brief, such as United States v. United States District Court, 407 U.S. 297 (1972), and United States v. Apker, 705 F.2d 293 (8th Cir.), modified in part on other grounds, 724 F.2d 633 (1983) (en banc), cert. denied, 466 U.S. 950 (1984). 8 See, e.g., 60 Fed. Reg. 45258, 45263 (1995) (column2).
See, e.g.,60 Fed. Reg. 45258, 45263 (1995) (column 2).