IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,
                     Plaintiff,

        v.                               MEMORANDUM and ORDER
                                            98-10014--X-0l
BENNETT A. MASEL, 
                     Defendant.

Judgment of conviction was entered in the above entitled matter on August 25, 1999 wherein defendant was convicted of use of a National Forest without a special use authorization when such authorization was required. 36 C.F.R. §261.10(k). Defendant appeals this conviction pursuant to Rule 58 (g) (2), Federal Rules of Criminal Procedure. Briefing has been completed.

Defendant specifically appeals the June 7, 1999 decision of Honorable Steven L. Crocker, Magistrate Judge, denying his motion to dismiss on the grounds that the special use authorization scheme is unconstitutional on its face.

MEMORANDUM

Defendant contends that the United States Magistrate Judge erred in finding that 36 C.F.R. § 261.10 which forbids occupying National Forest Lands without a special use authorization is constitutional on its face. This regulation prohibits the use or occupancy of national forest land without special use authorization when such authorization is required.

A special use authorization is not required for noncommercial recreational activities except those involving a group of 75 or more people. 36 C.F.R. § 251.50(c) (3); 251.51. An applicant: for this authorization must provide a description of the proposed activity, the location and description of the National Forest lands and facilities the applicant would like to use, the est:rnated number of participants and spectators, the starting and ending time and proposed date of the activity and the name of an adult who will sign a special use authorization on behalf of the applicant:. §251.54(e) (2) (i)

The application shall be granted upon a determination that (1) authorization of the proposed activity is not prohibited by

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ether CFR regulations or federal, state or local law, unrelated t:o the content of the expressive activity, (2) authorization of the proposed activity is consistent or can be made consistent with standards and guidelines in the applicable forest land and resource management plan, (3) the proposed activity does not materially impact the characteristics or functions of the environmentally sensitive resources or lands, (4) the proposed activity will not halt, delay or prevent administrative use of an area by the Forest Service, (5) the proposed activity does not violate public health laws, (6) the proposed activity will not pose a substantial danger to public safety, (7) the proposed activity does not involve military training exercises by private individuals and (8) an adult has been designated to sign and does sign a special use authorization on behalf of the applicant. § 251.54(h) (i-vi.ii). The Forest Service may attach terms and conditions to the special use authorization including limitation on the duration of the special use. § 251.56.

Defendant contends that the Magistrate Judge erred in not finding that the special use authorization scheme is an unconstitutional prior restraint on expression. A law that requires an individual to obtain a license before engaging in some form of protected speech or expression is a prior restraint. See Stokes v. City of Madison, 930 F. 2d 1163, 1168 (7th Cir. 1991)

In Ward v. Rock Against Racism, 491 U.S. 781, 795 (1989) plaintiffs challenged a sound amplification guideline that the City of New York imposed upon users of the Central Park Bandshell. The Court found that the guideline was not a prior restraint because it granted no authority to forbid speech but merely permitted the city to regulate volume to the extent necessary to avoid excessive noise.

The special use authorization regulations are similar to the sound-amplification guideline in Ward. They grant no authority to forbid speech but merely permit the Forest Service to attach terms and conditions to the permit in order to insure compliance with otherwise applicable health and safety standards, to protect federal resources and to protect the physical safety of all those in the National Forest System. § 251.56.

Furthermore, these regulations are not an unconstitutional prior restraint of speech because they are not directed

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narrowly and specifically at expression or conduct commonly associated with expression. See Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988) . In other words, the regulations do not target First Amendment activities but are directed at all uses of the National Forest. The regulations are directed at the congregation of large numbers of people (over 75) in the forest not. at expression. The special use authorization regulations are constitutional because they are not an unlawful prior restraint of speech.

Accordingly, the Magistrate Judge's decision denying defendant's motion to dismiss will be affirmed.
Defendant's judgment and conviction for a violation of 36 C.F.R. § 261.10(k) will be affirmed.

IT IS ORDERED that defendant's August 25, 1999 judgment of conviction is AFFIRMED.

Entered this 16th day of March, 2000.

BY THE COURT:

(signed)
JOHN C. SHABAZ
District Judge