IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
BENNETT A. MASEL,
OPINION AND ORDER
Case No. 98-10014-X-01
This case presents a First Amendment challenge to various
aspects of a regulatory scheme that requires certain groups and
individuals to obtain a permit prior to using or occupying National
Forest System land. Plaintiff United States has charged defendant
Bennett Masel with violating a regulation that prohibits non-commercial
groups of 75 or more persons from occupying National Forest System
land without first applying for and receiving a special use permit.
36 C.F.R. § 261.10(k). The alleged violation occurred in
early September, 1998, during a gathering of the Rainbow Family
of Living Light, a loose-knit, unincorporated association that
gathers periodically in the national forests. Defendant, who agreed
to accept the citation on behalf of the gathering, admits that
the group exceeded 75 people and that they did not have a special
Before the court is defendant's motion to dismiss the citation
on the ground that the regulation is unconstitutional on its face
and as applied to him. Specifically, defendant contends that the
regulation unconstitutionally burdens expression because it does
not contain adequate procedural safeguards to limit the discretion
of those administering it and is not narrowly tailored to a legitimate
interest. He also contends that the regulation is unconstitutional
as applied to him because it was "legally impossible"
for him to sign an application for a special use permit on behalf
of the entire Rainbow Family gathering; the government failed
to offer the reasonable alternative of waiving the signing requirement;
and the proposed permit that was presented to him by Forest Service
Officers contained provisions that exceeded the scope of the regulations.
The government responds that this court should not entertain
defendant's facial challenge because he has not alleged that procedural
safeguards are lacking with respect to the decision whether to
grant or deny a permit in the first instance. The government maintains,
moreover, that the permit scheme is a reasonable time, place and
manner restriction that was constitutionally applied to the defendant.
As explained in the discussion that follows, I conclude
that the challenged provisions are facially constitutional and
were properly applied to the defendant. First, the terms and conditions
provision presents too remote a risk of censorship to allow this
court to entertain a facial challenge to the provision. Second,
the permit requirement is a reasonable time, place and manner
regulation that does not unduly restrict either associational
or individual expressive freedoms. Finally, the regulation was
properly applied to the defendant.
I. BACKGROUND FACTS
A. The Rainbow Family
The Rainbow Family is a loose-knit, unincorporated association
that has no officers, no written articles, bylaws, constitution,
rules or regulations, or any written documents of any kind. Masel
Affidavit, Dkt. 6, Ex. A, 2. In fact, there are really no "members"
in a formal sense. The only dividing
line between who is a "member" and who is not a member
is who chooses to attend and who chooses not to attend a particular
The Rainbow Family gathers regularly in the national forests
to celebrate life, to worship, to express ideas and values, and
to associate with others who share their beliefs. USDA, Final
Rule, Land Uses and Prohibitions, 60 Fed. Reg. 45,258, 45, 262
(Aug. 30, 1995) ("Final Rule"). Rainbow Family gatherings
have occurred since at least 1980. Masel Affidavit, 3. The largest
of the gatherings is the group's annual gathering which is held
at an undeveloped site each summer and attracts as many as 20,000
people. Final Rule at 45,262. At Rainbow Family gatherings, attendees
engage in a system of decision-making in open councils. Decisions
are not made by vote, but by full consensus, consistent with the
group's rejection of hierarchial or representative forms of government
in favor of a system of universal equality. Masel Affidavit, 8
At least one other court has found that the Rainbow Family,
although informal and loosely-knit, nonetheless "operates
as an organization, with decision-making 'councils,' individuals
who [act] as agents, representatives, or leaders on a voluntary
basis, and which has an informational network." United
States v. Rainbow Family, 695 F. Supp. 294, 298 (E.D. Tex.
B. The Summer 1998 Gathering at Nicolet National Forest
In mid-August, 1998, Forest Service Officer Mark Borcovan
learned that the Rainbow Family of Living Light was planning a
gathering at the Secret Lake area of the Chequamegon/Nicolet National
Forest in northern Wisconsin. From the time the first participants
began arriving on August 18 to the time the last of them left
on September 10, 1998, Officer Borcovan closely monitored the
number of participants camping in the area surrounding Secret
On August 20, 1998, Officer Borcovan, District Ranger Butch
Fitzpatrick, and Assistant Ranger for Resources Jeff Herrett met
with two of the first people to occupy the Secret Lake site. The
officers gave the individuals a copy of the Special Use Permit
Application and a "Frequently Asked Questions" sheet
regarding the application and permitting process. While patroling
the Secret Lake area on August 29, Officer Borcovan determined
that the gathering had exceeded 75 persons, therefore making it
necessary for the group to apply for a special use permit pursuant
to National Forest System regulations. Officer Borcovan, Ranger
Fitzpatrick and Officer Brandy Sly went to the Rainbow Family
site the following day, where they spoke with three participants.
The officers presented the individuals with a letter that outlined
resource and logistical concerns, along with two copies of a Special
Use Permit Application and Special Use Permit. The individuals
agreed to take the documents and present them before the Rainbow
Council that evening.
On August 31, Officer Borcovan met the defendant who introduced
himself as one of the individuals responsible for scouting and
bringing the gathering to the forest. Other gathering attendees
with whom Officer Borcovan had spoken had also mentioned the name
"Ben" as one of the "focalizers" or scouts
for the gathering. On September 3, 1998, Officer Borcovan spoke
with the defendant and informed him that, based on the head count
he had conducted on August 29, the Rainbow Family gathering would
have to obtain a special use permit. Borcovan presented defendant
with a copy of a permit and operating plan that was ready for
signature and informed him that he would like the Council to inform
the Forest Service by September 5 if they had signed the documents.
Head counts on September 5 and 6 revealed that the group still
exceeded 75 people. Office Borcovan met with Masel on Monday,
September 7 and informed him that he was going to issue a citation
pursuant to 36 C.F.R. § 261.10(j) for the group's failure
to obtain a special use permit based on his count of the number
individuals in the Secret Lake area over the weekend. Defendant
agreed to accept the citation on behalf of the gathering.
The First Amendment's prohibition on laws abridging the
freedom of speech is not absolute. The Supreme Court has long
held that "[t]he rights of free speech and assembly, while
fundamental in our democratic society, still do not mean that
everyone with opinions or beliefs to express may address a group
at any public place at any time." Cox v. Louisiana,
379 U.S. 536, 554 (1965). Underpinning this notion is the recognition
that the exercise of civil liberties depends upon the existence
of "an organized society maintaining public order;"
thus, civil liberties must occasionally give way to laws "designed
to promote the public convenience in the interest of all."
Cox v. New Hampshire, 312 U.S. 569, 574 (1940). To use
a real-world example, "[o]ne would not be justified in ignoring
the familiar red traffic light because he thought it his religious
duty to disobey the municipal command or sought by that means
to direct public attention to an announcement of his opinions."
When the government passes a law in an area that is within
its power to control, the question becomes whether the government
has overstepped its bounds and unwarrantedly abridged First Amendment
freedoms. Id. Permit schemes that impose time, place and manner
restrictions on protected expression will be upheld if the law
is justified without reference to the content of the regulated
speech, is narrowly tailored to serve a significant governmental
interest, and leaves open ample alternative channels for communication
of the information. Ward v. Rock Against Racism, 491 U.S.
(1989) (citations omitted). In addition, the permit scheme must
contain adequate procedural safeguards to limit the discretion
of the officials charged with enforcing it. See FW/PBS, Inc.
v. Dallas, 493 U.S. 215, 226 (1990).
B. Regulatory Framework
The regulations at issue in this case were promulgated
by the Department of Agriculture pursuant to 16 U.S.C. §
551, which authorizes the Secretary of Agriculture to make provisions
to protect the public forests against destruction by fire and
depredations and to make such rules and regulations as will preserve
the National Forest from destruction by regulating occupancy and
use. 16 U.S.C. § 551. More specifically, the regulations
provide that all uses of National Forest System lands are "special
uses." 36 C.F.R. § 251.50(a). Before engaging in a special
use, one must submit an application to an authorized officer and
must obtain a special use authorization. Id. The regulations provide
that noncommercial recreational activities and noncommercial activities
"involving the expression of views such as assemblies, meetings,
demonstrations, and parades" are only special uses when the
activity involves 75 or more people, either as participants or
spectators. §§ 251.50(c)(3); 251.51.
An applicant for a noncommercial group use permit must
provide a description of the proposed activity; the location and
a description of the National Forest System lands and facilities
the applicant would like to use; the estimated number of participants
and spectators; the starting and ending time and date of the proposed
activity; and the name of an adult who will sign a special use
1/ In United States v. O'Brien, 391 U.S. 367
(1968), the court held that a law aimed at conduct that incidentally
infringes upon First Amendment freedoms is constitutional if it
is within the constitutional power of the Government; if it furthers
an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and
if the incidental restriction on First Amendment freedoms is no
greater than is essential to the furtherance of that interest.
Id. at 377. In subsequent decisions, the Court has indicated that
the O'Brien test differs little, if at all, from the standard
applied to time, place and manner restrictions. See Ward
behalf of the applicant. § 251.54(e)(2)(i). The application
must be received at least 72 hours in advance of the proposed
activity and shall be deemed granted unless it is denied within
48 hours of its receipt. § 251.54(f)(5).
The regulations provide that a noncommercial group use
application shall be granted if eight criteria are met. One of
the requirements is that a person or persons at least 21 years
old must be designated to sign a special use authorization on
behalf of the applicant. § 251.54(h)(viii). If an application
is denied because it fails to meet one of these criteria, the
applicant must be notified in writing of the reasons for the denial.
§ 251.54(h)(2). If an alternative time, place, or manner
will allow the applicant to meet the eight criteria, the government
must offer that alternative. Id.
Each special use authorization, whether commercial or noncommercial,
shall contain "terms and conditions" which will
(i) carry out the purposes of applicable statutes and rules
and regulations issued thereunder; (ii) minimize damage to scenic
and esthetic values and fish and wildlife habitat and otherwise
protect the environment; (iii) require compliance with applicable
air and water quality standards established by or pursuant to
applicable Federal or state law; and (iv) require compliance
with State standards for public health and safety, environmental
protection, and siting, construction, operation, and maintenance
if those standards are more stringent than applicable Federal
standards; and aesthetic values and otherwise protect the environment
and require compliance with applicable air and water quality
standards as well as health and safety standards.
§ 251.56(a)(1). Additionally, each special use authorization
shall contain such terms and conditions as the authorized officer
deems necessary to:
(i) protect Federal property and economic interests; (ii)
manage efficiently the lands subject to the use or adjacent thereto;
(iii) protect other lawful users of the lands adjacent to or
occupied by such use; (iv) protect lives and property; (v) protect
the interests of individuals living in the general area of the
use who rely on the fish, wildlife, and other biotic resources
of the area for subsistence purposes; (vi) require siting to
cause least damage to the environment, taking into consideration
feasibility and other relevant factors; and (vii) otherwise protect
the public interest.
The regulations further provide that, if appropriate, each
special use authorization will specify its duration and renewability.
§ 251.56(b)(1). The duration shall be "no longer than
the authorized officer determines to be necessary to accomplish
the purpose of the authorization and to be reasonable in light
of all circumstances concerning the use." Id. The regulation
then sets forth a list of circumstances the authorized officer
should consider. Id.
C. Facial Challenge--Prior Restraint
1. Prior Restraints and Lakewood
Defendant first contends that the special use authorization
scheme is an unconstitutional prior restraint on expression. In
general, a law that requires an individual to obtain a license
before engaging in some form of protected speech is a prior restraint.
See Stokes v. City of Madison, 930 F.2d 1163, 1168 (7th
Cir. 1991). Put conversely, a regulation constitutes a prior restraint
if it gives public officials the power to deny use of a forum
in advance of expression. Ward, 491 U.S. at 795 n. 5. Classic
examples of prior restraints include requiring a citizen to obtain
a permit to parade or demonstrate, see Shuttlesworth v. Birmingham,
394 U.S. 147 (1969), requiring that films be approved by a censorship
board before being shown at theaters, Freedman v. Maryland,
380 U.S. 51, 85 S. Ct. 734 (1965), and refusing to allow the musical
Hair to be performed at a public theater. Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546 (1975).
Prior restraints are particularly disfavored and bear a
heavy presumption against validity because "a free society
prefers to punish the few who abuse rights of speech after they
break the law than to throttle them and all others beforehand."
Id. at 559. A law subjecting the exercise of First Amendment freedoms
to the prior restraint of a license or permit must be declared
unconstitutional unless it contains narrow, objective, and definite
standards to guide the licensing authority. Shuttlesworth,
394 U.S. at
151. The rationale underpinning this doctrine "is the time-tested
knowledge that in the area of free expression a licensing statute
placing unbridled discretion in the hands of a government official
or agency constitutes a prior restraint and may result in censorship."
Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750,
757 (1988). Such standardless discretion on the part of government
officials is dangerous for two reasons: it intimidates parties
into censoring their own speech and renders the reasons behind
the licensor's decision to deny a permit "in large measure
effectively unreviewable." Id. at 758-59.
In Lakewood, the court enunciated a two-component
standard for deciding when a facial challenge may be brought against
an allegedly overbroad licensing regulation. First, the licensing
law must give a government official or agency "substantial
power to discriminate based on the content or viewpoint of speech
by suppressing disfavored speech or disliked speakers." 486
U.S. at 759. Second, "[t]he law must have a close enough
nexus to expression, or to conduct commonly associated with expression,
to pose a real and substantial threat of the identified censorship
risks." Id. With respect to the second component, the court
drew a distinction between laws of general application, such as
a law requiring building permits, that are not aimed at conduct
commonly associated with expression and therefore present little
opportunity for censorship, and those "directed narrowly
and specifically at expression or conduct commonly associated
with expression," like laws regulating leafletting. Id. at
Applying these standards, the court found two features
of Lakewood's newsrack licensing scheme which, in combination,
justified the allowance of a facial challenge. First, the ordinance
required that newspapers apply annually for newsrack licenses,
a system that threatened the risk of censorship because it allowed
the licensor to measure the probable content based on speech already
uttered. Id. at 759-60. Second, the licensing scheme was directed
narrowly and specifically at
expression or conduct commonly associated with expression, namely,
the circulation of newspapers. Id. at 760.
2. The Special Use Authorization Scheme
Defendant contends that the special use authorization regulations
in this case must be analyzed as a prior restraint because they
require noncommercial groups of 75 or more persons to apply for
a special use permit as a prerequisite to exercising their First
Amendment rights in the National Forest. However, defendant does
not challenge the Forest Service's right to require special use
permits nor does he allege that the criteria by which it decides
whether to grant or deny such permits, found at 36 C.F.R. §
251.54(h), afford too much discretion to the licensor. Rather,
defendant challenges § 251.56, which requires the Forest
Service to attach "terms and conditions" to the special
use authorization, including limitations on the duration of the
special use. Clearly, these requirements become relevant only
after the Forest Service has issued an authorization. Cf. Black
v. Arthur, 18 F. Supp. 2d 1127, 1134 (D. Or. 1998), in which
the court permitted Rainbow Family gathering attendees to mount
a facial challenge to a regulation as a prior restraint where
plaintiffs argued that the regulation failed to set standards
for the type of terms and conditions the permit may contain and
failed to set standards granting or denying permits.
The Supreme Court has suggested that a prior restraint
analysis does not apply to claims of this sort. In Ward,
plaintiffs brought a First Amendment challenge to a sound amplification
guideline that the City of New York imposed upon users of the
Central Park Bandshell. Rejecting the dissent's position that
the guideline was an unconstitutional prior restraint, the majority
found that the guideline was not a prior restraint at all because
it granted no authority to forbid speech but merely permitted
city to regulate volume to the extent necessary to avoid excessive
noise. 491 U.S. at 795 n. 5. The court stated:
It is true that the city's sound technician theoretically
possesses the power to shut off the volume for any particular
performer, but that hardly distinguishes this regulatory scheme
from any other; government will always possess the raw power
to suppress speech through force . . . The relevant question
is whether the challenged regulation authorizes suppression of
speech in advance of its expression, and the sound-amplification
guideline does not.
Id. (emphasis in original). In the absence of a claim that
city officials enjoyed unfettered discretion to deny bandshell
permits altogether, the court doubted that plaintiffs' challenge
would fall within the "narrow class" of permissible
facial challenges to allegedly unconstrained grants of regulatory
authority. Id. at 794. Plaintiffs' challenge to the sound amplification
guideline, said the court, was "of an entirely different,
and lesser, order of magnitude," than the facial challenges
the court had permitted in the past, which "generally involved
licensing schemes that vest unbridled discretion in a government
official over whether to permit or deny expressive activity."
Id. at 793 (quoting Lakewood, 486 U.S. at 755) (emphasis
added). See also FW/PBS, Inc., 493 U.S. at 246 (1990) ("Unbridled
discretion with respect to the criteria used in deciding whether
or not to grant a license is deemed to convert an otherwise valid
law into an unconstitutional prior restraint") (White, J.,
concurring in part and dissenting in part). The court found it
unnecessary to decide the issue, however, finding that plaintiff's
facial challenge failed on its merits. Id.
Like the sound-amplification guideline at issue in Ward,
§ 251.56 grants no authority to forbid speech. It merely
permits 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(a). True, § 251.56 is one of several
regulations that constitute the overall licensing "scheme"
requiring noncommercial groups of 75 or more people to obtain
a special use authorization before using the National Forest.
However, in the absence of a claim that § 251.56 itself authorizes
the Forest Service to deny use of the National Forest in advance
of expression, defendant cannot bootstrap his way into a prior
restraint claim merely because a different, unchallenged regulation
provides such authorization. See Gannett Satellite Information
Network v. Berger, 894 F. 2d 61, 66 (3rd Cir. 1990) (finding
that, to avoid "needlessly obscur[ing] the first amendment
issues raised," distinct components of regulatory "scheme"
should be scrutinized independently rather than as a single totality).
Defendant contends, however, that even if § 251.56
is viewed in isolation, some of the terms and conditions that
the Forest Service may impose are worded so broadly that they
pose the same threat to protected expression as if such subjective
criteria were used to determine whether a special use authorization
should be granted in the first place. In particular, defendant
contests the provisions that allow the Forest Service to impose
such terms and conditions as the authorized officer deems necessary
to "protect Federal property and economic interests"
and "otherwise protect the public interest." Defendant
argues that these ambiguously-worded conditions allow officials
to "give with one hand while taking away with the other,"
defendant's Brief, Dkt. 6 at 21 (quoting TJ's South, Inc. v.
Town of Lowell, 895 F. Supp. 1124, 1131-32 (N.D. Ind. 1995)),
and that Ward is distinguishable because it did not involve
a claim that the challenged regulation could operate effectively
to silence protected expression.
Defendant's attempt to distinguish Ward on this
basis is uncompelling. Rock Against Racism's claim that city officials
might use the sound amplification guideline to provide inadequate
sound for performers based on the content of their speech differs
little from defendant's claim that the Forest Service may "unduly
burden" a group's First Amendment rights by imposing onerous
terms and conditions. On the other hand, the sound amplification
guideline merely required bandshell users to use a sound system
and professional sound technician provided by the city; it did
not allow the city to impose additional terms and conditions as
deemed necessary "to protect the public interest" or
the duration of the event as does the challenged regulation in
this case. Thus, although similar, Ward is not exactly
on all-fours with the instant case.
In fact, the Supreme Court has held that "[a] licensing
system need not effect total suppression in order to create a
prior restraint." Southeastern Promotions, 420 U.S.
at 556 n. 8. For instance, the court has held unconstitutional
as a prior restraint a system in which an administrative board
classified films as either "suitable for young persons"
or "not suitable for young persons" and required exhibitors
wishing to show the latter to have special licenses and to advertise
their classification. Interstate Circuit v. Dallas, 390
U.S. 676, 688 (1968). Similarly, in Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963), the court held unconstitutional a system in
which a non-regulatory commission charged with reviewing material
"manifestly tending to the corruption of the youth"
effectively engaged in informal censorship by means of persuasion
and intimidation. Each of these cases, however, presented an "as-applied"
challenge to the alleged prior restraint and the record demonstrated
that the functional equivalent of censorship had actually occurred.
In contrast, defendant's challenge in this case is based only
on the theoretical possibility that the "terms and conditions"
provision may be used to chill protected speech.
Citing Lakewood, defendant contends that the Supreme
Court has given its imprimatur to facial challenges to broadly-worded
terms and conditions clauses. In concluding that the newsrack
licensing scheme at issue constituted an unconstitutional prior
restraint, the court in Lakewood found problematic a provision
that allowed the mayor to attach to a newsrack permit "such
other terms and conditions deemed necessary and reasonable."
Lakewood, 486 U.S. at 769. The court noted that under this
clause, the mayor "could grant the application, but require
the newsrack to be placed in an inaccessible location without
providing any explanation whatsoever." Id.
The Lakewood court examined the specific language
of the statute, however, only after it had decided to allow plaintiff's
facial challenge. As stated above, the reasons the court entertained
challenge were twofold: 1) the ordinance required
newspapers to apply annually for a newsrack license, a system
that "invited" censorship; and 2) the licensing system
was directed "narrowly and specifically" at expression
or conduct commonly associated with expression, namely, the circulation
of newspapers. Id. at 760. Moreover, the newspaper also contended
that the ordinance failed to place any explicit limits on the
mayor's discretion to grant or deny a permit, a claim that defendant
does not make here. Id. 2/ Thus, while relevant to the
issues involved in this case, Lakewood does not stand for
the proposition that a licensing scheme that allows "terms
and conditions" to be attached to a license may be challenged
on its face even when there is no dispute that the scheme contains
clearly defined standards for deciding whether to grant or deny
In fact, application of Lakewood to the instant
case indicates that defendant may not facially challenge §
251.56 as an unconstitutional prior restraint because the regulation
is not directed narrowly and specifically at expression or conduct
commonly associated with expression. Neither party has addressed
this prong of the test: the government's opposition to a facial
challenge rests primarily on the Ward dicta and Masel did
not front this issue. It is undisputed that attendees at Rainbow
Family gatherings engage in the types of expressive activity protected
by the First Amendment. But the query under Lakewood is
not simply whether the regulation may occasionally implicate First
Amendment activities, it is whether the regulation targets them.
An examination of § 251.56 reveals that it does not target
First Amendment activities.
2/ Defendant's failure to make such a claim also distinguishes
this case from the other "terms and conditions" cases
he refers to in his brief. See New Jersey Freedom Organ. v.
City of New Brunswick, 7 F. Supp. 2d 499, 513 (D. N.J. 1997)
(evidence in the record showing that police department had on
one occasion imposed a "special condition" on party
permit "render[ed] unclear the limits actually placed on
the authority of the Police Department to set conditions or deny
permits") (emphasis added); TJ's South, Inc., 895
F. Supp. at 1130-32 (licensing scheme afforded too much discretion
to town officials for determining whether to grant or deny permit;
in addition, provision that allowed town officials to attach "conditions
and safeguards" to a permit was too broadly worded); Santa
Fe Springs Realty Corp. v. City of Westminster, 906 F. Supp.
1341, 1366 (C.D. Cal. 1995) (same).
The terms and conditions provision applies to "each special
use authorization." § 251.56(a). A "special use"
is defined as any use of the National Forest System, with the
exception of the disposal of timber and minerals and the grazing
of livestock. 36 C.F.R. § 251.50 (a). Thus, the terms and
conditions clause does not target a particular group, activity,
or conduct but is directed at all uses of the National Forest.
Such uses are listed in the regulations at § 251.53 and cover
a broad spectrum of activities including archaeological sites;
term permits for hotels, resorts and other structures and facilities
for recreation, public convenience, or safety; easements for right-of-way
for pipelines, reservoirs, energy, roads and electronic signals;
operation of nordic and alpine ski areas and facilities; and various
other uses. No language in the terms and conditions provision
refers specifically to expression or to conduct commonly associated
Moreover, a group wishing to use the national forest for
noncommercial activities "involving the expression of views
such as assemblies, meetings, demonstrations, and parades"
is not required to obtain a special use authorization--and consequently
is not subject to any terms and conditions--unless the total number
of participants and spectators is 75 or more. §§ 251.50(c),
251.50(c)(3), 251.51. The same holds true for groups engaging
in noncommercial recreational activities such as camping, picnicking,
hiking, fishing, hunting, horseback riding and boating. Thus,
to the extent the regulation applies to noncommercial activities,
it is directed not at expression, but at the congregation of large
numbers of people in the forest.
One might argue that targeting large gatherings of people
implicates the First Amendment's guarantee of freedom of association.
But while individuals are free to associate for "any lawful
purpose," Hague v. CIO, 307 U.S. 496, 519 (1939) (opinion
of Stone, J.), not every gathering of two or more people constitutes
the sort of "expressive association" entitled to the
full protections of the First Amendment. See, e.g., Swank v.
Smart, 898 F.2d 1247, 1251 (7th Cir.), cert. denied,
498 U.S. 853, 111
S.Ct. 147 (1990) (casual chit-chat between two people not protected
First Amendment activity). Rather, the first amendment's freedom
of association protects groups whose activities are explicitly
stated in the amendment, such as speaking, worshiping, and petitioning
the government. Roberts v. United States Jaycees, 468 U.S.
609, 617-18 (1984) (citations omitted). Again, while many of the
activities at Rainbow Family gatherings clearly implicate this
type of protected activity, there is nothing in the language of
the Forest Service's regulation to indicate that it is "narrowly
and specifically" directed at this kind of association. Indeed,
the fact that only large groups must apply for a special use authorization
strongly indicates that expressive association is not the target
of the regulation; it would be ridiculous to suggest that the
number 75 is some sort of talismanic line that separates groups
that engage in expressive association from those that do not.
Defendant suggests that a facial challenge should be allowed
because the terms and conditions provision will burden groups
engaging in expressive activities more than other groups. Cf.
FW/PBS, Inc., 493 U.S. at 215 (allowing facial challenge
to licensing scheme that imposed more onerous building inspection
requirements on sexually oriented businesses than on other businesses).
There is nothing on the face of the regulation that supports this
assertion. Nonetheless, defendant might have been able to establish
that the regulation has a greater impact on expressive activities
by presenting evidence showing that applicants seeking to engage
in protected expression comprise a substantial portion of the
pool of applicants for special use authorizations. See, e.g.,
Kentucky Sports Concepts, Inc. v. Chandler, 995 F.Supp.
767, 772 (W.D. Ky. 1998) (rejecting facial challenge to statute
that required those seeking to operate a "place of entertainment"
outside city limits in absence of evidence showing that significant
number of applicants sought to present protected expression).
But as noted above, special uses cover virtually the entire spectrum
of outdoor activities, the majority of which have nothing to do
with protected expression. In the absence of empirical evidence
demonstrating that a significant proportion
of the special use authorizations granted by the Forest Service
each year are for speech-related activities, there is no basis
to conclude that the terms and conditions provision presents a
substantial opportunity for censorship on an ongoing basis.
As the foregoing discussion makes clear, any doubt that
the strong dicta of Ward bars plaintiff's facial challenge
outright is resolved by careful application of the standards enunciated
in Lakewood. Even accepting that the special use authorization
scheme affords some discretion to Forest Service officials in
imposing terms and conditions, the nexus between the terms and
conditions provision and protected expression is simply too attenuated
to justify a facial challenge. This provision does not even come
into play with respect to noncommercial activities--including
expressive activities--unless the activity will involve 75 or
more people. When the provision is triggered, it applies with
equal force to all special uses of the forest. Thus, the regulation
is closer to a law of general application, like the building permit
example in Lakewood, than it is to a law aimed at conduct
"commonly associated with expression," such as the distribution
Of course, like any regulation that confers an amount of
discretion upon a government official, some opportunity for censorship
exists. But "[n]ot all discretionary decisions implicate
the First Amendment," Graff v. City of Chicago, 9
F.3d 1309, 1319 (7th Cir. 1993) (en banc) cert. denied, 511 U.S.
1085 (1994); it is only those that pose a "real and substantial
threat" of the censorship risks identified in Lakewood.
In this case, the "terms and conditions" provision "provide[s]
too blunt a censorship instrument to warrant judicial intervention
prior to an allegation of actual misuse." Lakewood,
486 U.S. at 761; see also Roulette v. City of Seattle,
97 F.3d 300, 305 (9th Cir. 1996) (insufficient nexus where ordinance
banned sitting or lying on sidewalks); Berger, 894 F. 2d
at 69 (finding rule that allowed Port Authority to decide on case-by-case
basis whether a person may engage in commercial activity did not
meet nexus requirement). Moreover, if charges of censorship are
the general application of the regulation to nearly all uses
of the forest "will provide the courts a yardstick with which
to measure the licensor's occasional speech-related decision."
Lakewood, at 761. The risk that Forest Service officials
will use nefariously any discretion afforded to them by the terms
and conditions provision is not great enough to justify invoking
the "extraordinary doctrine" that permits facial challenges.
See Ward, 491 U.S. at 794 (citing Lakewood at 772
(White, J., dissenting)).
Because I am rejecting Masel's facial challenge to the
terms and conditions provision, I do not reach the merits of his
claim that the provision is an unconstitutional prior restraint
because it fails to properly limit the decision-maker's discretion
and fails to provide for prompt judicial review.
D. Facial Challenge--Freedom of Association Claim
Defendant next contends that three provisions of the special
use authorization scheme violate the First Amendment because they
are not narrowly tailored to meet the Forest Service's interests.
Specifically, defendant challenges the Forest Service's ability
to attach terms and conditions to a special use authorization;
the requirement that the special use authorization be made 72
hours in advance of a gathering; and the requirement that an adult
sign an application as a representative of the group.
The parties disagree over the level of scrutiny with which
this court must review the regulations. The government contends
that, as regulations of conduct that incidentally infringe upon
the right to free speech, the regulations must be analyzed under
the familiar time, place and manner standard: that is, the law
must be justified without reference to the content of the regulated
speech, must be narrowly tailored to serve a significant governmental
interest, and must leave open ample alternative channels for communication
of the information. Ward, 491 U.S. at 791 (citations omitted).
Other courts have reviewed the permit scheme in dispute and have
concluded that it is a substantially justified time, place
and manner regulation. See United States v. Johnson,
159 F. 3d 892, 895-96 (4th Cir. 1998); Black, 18 F. Supp.
2d at 1133-34.
Defendant does not dispute that the regulations are content
neutral or leave open alternative channels for communication but
argues that, because the regulations implicate the right to association
as well as speech, a strict scrutiny analysis must be applied.
Specifically, defendant contends that the government must show
that the regulations are the least restrictive means available
to serve a government interest that is compelling. See Roberts
v. United States Jaycees, 468 U.S. 609, 623 (1984) (infringements
on the right to associate for expressive purposes can be justified
only if they are "adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved
through means significantly less restrictive of associational
freedoms") (citations omitted).
An examination of Roberts and its precursors reveals
that defendant's attempt to invoke strict scrutiny by way of a
freedom of association claim is misplaced. The constitutionally
protected right to freedom of association consists of two categories:
1) the freedom to maintain certain intimate human relations, such
as marriage, procreation, education of one's children, and cohabitation
with one's relatives and 2) the right to associate to engage in
activities protected by the First Amendment, such as speech, assembly,
petition for redress of grievances, and exercise of religion.
Roberts, 468 U.S. at 617-18. 3/ This latter freedom
of association is not set out expressly in the Bill of Rights
but is a derivative right, implied from the other freedoms listed
in the First Amendment. See NAACP v. Alabama, 357 U.S.
449, 460 (1958). Such freedom of association protects "collective
effort on behalf of shared goals," Roberts, at 622,
and association "in order to promote and advance common beliefs
and ideas." Elrod v. Burns, 427 U.S. 347, 357 (1976).
This has been referred to as the right to associate for expressive
purposes. Roberts, at 623.
3/ Defendant does not contend that freedom of intimate
association is implicated in this case.
In Roberts, the Court gave a brief list of the types
of action that would constitute infringement upon the freedom
of association for expressive purposes:
Government actions that may unconstitutionally infringe upon
this freedom can take a number of forms. Among other things,
government may seek to impose penalties or withhold benefits
from individuals because of their membership in a disfavored
group; it may attempt to require disclosure of the fact of membership
in a group seeking anonymity; and it may try to interfere with
the internal organization or affairs of the group. By requiring
the Jaycees to admit women as full voting members, the Minnesota
Act works an infringement of the last type. There can be no clearer
example of an intrusion into the internal structure or affairs
of an association than a regulation that forces the group to
accept members it does not desire. Such a regulation may impair
the ability of the original members to express only those views
that brought them together.
468 U.S. at 622-23 (citations omitted).
In other words, government actions that will trigger strict
scrutiny are those that affect the character of an organization
qua association. The regulations at issue in this case do nothing
of the sort. The challenged regulations are not directed at association
or expression, but at conduct: they require large groups to apply
for a permit before using National Forest system lands and to
abide by the terms and conditions of the permit during the use.
These requirements are applicable to all groups of 75 or more
uniformly without regard to the activities or affairs of the group.
Neither the terms and conditions requirement, the 72-hour provision
nor the signature requirement imposes any penalties or withholds
any benefits from individuals because of their membership in the
Rainbow Family or in any other group. Nor do the regulations require
disclosure of the fact of membership in any group or pose any
threat to the internal organization or structure of a group. On
their face, the provisions do not affect the ability of individuals
to form associations to advocate public or private viewpoints
and do not require groups to "abandon or alter" any
activities that are protected by the First Amendment. See New
York State Club Ass'n, Inc. v. City of New York, 487 U.S.
1, 13 (1988).
4/ Indeed, it is difficult to reconcile defendant's
attempt to seek protection under these freedom of association
cases with his assertions that the Rainbow Family is not an "organization,"
has no "members," and really has no existence outside
of its gatherings at which attendees "spend their time doing
exactly whatever they want to do," Masel Affidavit, Dkt.
6, Ex. A.
Defendant argues that one way in which the regulation unduly
burdens expressive association is by imposing "blanket liability"
for violations of the terms of the permit on all the members of
a group simply by virtue of his or her membership in the group.
Defendant points out that the government intends that, "[b]y
signing a special use authorization on behalf of the group, the
agent or representative [will] give the authorization legal
effect and subject the group to the authorization's terms and
conditions." 60 Fed. Reg. 45274. In support of his contention
that imposition of such liability unconstitutionally burdens the
right to association, defendant cites a boycott case, NAACP
v. Claiborne Hardware Co., 458 U.S. 886 (1982).
In that case, the Court examined whether individuals who
participated in a violence-tinged boycott of white-owned businesses
could be held liable for damages sustained by those businesses
as a result of the boycott. Holding that "[c]ivil liability
may not be imposed merely because an individual belonged to a
group," id. at 920, the Court stated that "[t]he right
to associate does not lose all constitutional protection merely
because some members of the group may have participated in conduct
or advocated doctrine that itself is not protected." Id.
at 908. The Court held that joint and several liability could
not be imposed on all of the individuals who participated in the
otherwise lawful boycott merely because some members of the group
committed acts of violence. Rather, only those individuals who
participated in violent or unlawful activities that proximately
caused the damages could be held liable. Id. at 915-20.
Claiborne Hardware is not directly on point. Contrary
to defendant's suggestion, Claiborne Hardware does not
stand for the proposition that a permitting body may never seek
to impose lawful terms and conditions of a permit upon a group
as a whole through the signature of one of its members.
Rather, the case stands for the well-known prohibition against
"guilt by association," namely that one cannot be found
guilty (or civilly liable)simply because he associated with others
who engaged in illegal conduct. In other words, defendant's reliance
on Claiborne Hardware might have some force if he could
show that the Rainbow Family or another group had obtained a special
use authorization, that the Forest Service had determined that
some of the terms and conditions of the permit had been violated,
and that the Forest Service had ticketed every participant at
the gathering instead of the individuals who actually violated
the terms and conditions. In the absence of such facts, Claiborne
Hardware is inapposite.
Defendant also contends that the regulations burden the
Rainbow Family's right to association by requiring it to perform
acts, such as applying for a permit 72 hours in advance of a gathering
and designating an individual to sign the permit, that are practically
impossible due to the amorphous nature of the group and which
are contrary to the group's "core belief" in non-representative
government. Indeed, despite the fact that defendant is challenging
the regulations on their face, it is the alleged burdens that
the regulations will impose on the Rainbow Family specifically
that are the main focus of defendant's motion to dismiss. Although
defendant casts these arguments in freedom of association terms,
his claim that the regulations contravene the Rainbow Family's
"central tenet," "core belief," or "creed,"
is really a derivative of a Free Exercise claim. What is at stake
here for participants in Rainbow Family gatherings is not their
ability to associate; what is at stake is their ability to hew
unfailingly to their only true shared belief: that no participant
at a gathering may speak for or act on behalf of another.
Even assuming, arguendo, defendant could establish that
the Rainbow Family's beliefs are the equivalent of a sincerely
held religious belief that would trigger the First Amendment's
Free Exercise clause--a claim he has prudently not advanced, see
Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (philosophical
and personal beliefs not grounded in religion do not rise to demands
of the Religion
Clauses)--he would be no better off. The Supreme Court has made
clear that a non-discriminatory statute that does not affirmatively
compel, by threat of penal sanctions, a person to refrain from
otherwise lawful religiously motivated conduct or to engage in
conduct he finds objectionable for religious reasons does not
violate the Free Exercise clause. Bowen v. Roy, 476 U.S.
693, 706 (1986); see also Employment Div., Dept. of Human Resources
v. Smith, 494 U.S. 872, 878-79, 110 S.Ct. 1595, 1598-99 (1990)
("We have never held that an individual's religious beliefs
excuse him from compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate"); Cox v. New
Hampshire, 312 U.S. 569, 574, 61 S. Ct. 762, 765 (1941). Thus,
the First Amendment is not violated even when a regulation, such
as the permit scheme in dispute here, forces an individual to
choose between obtaining a benefit offered by the government or
strict adherence to his beliefs, so long as the regulation is
a reasonable means of promoting a legitimate public interest.
Roy, 476 U.S. at 708. For example, in Hamilton v. Regents of
University of California, 293 U.S. 245 (1934), the Court rejected
a religious challenge by students to military courses required
as part of their curriculum, explaining:
The fact that they are able to pay their way in this university
but not in any other institution in California is without significance
upon any constitutional or other question here involved. California
has not drafted or called them to attend the university. They
are seeking education offered by the State and at the same time
insisting that they be excluded from the prescribed course solely
upon grounds of their religious beliefs and conscientious objections
to war . . . .
Id. at 262.
Similarly, the Forest Service has not forced the Rainbow
Family to hold its gatherings in the national forest, nor are
National Forest System lands the only campgrounds in the United
States. The Rainbow Family has a choice: if it does not wish to
perform an act that is antithetical to its core belief, then it
can hold its gatherings in an area that does not have a permit
requirement. Defendant does not contend that the special use authorization
scheme is not a reasonable means of promoting a legitimate
public interest. Accordingly, the permit scheme does not violate
the Rainbow Family's right to freedom of conscience.
Finally, contrary to defendant's implicit suggestion, freedom
of association is not implicated simply because a regulation has
an effect on expressive or conscience-motivated conduct that a
group of individuals happen to be engaging in at the same place
and at the same time. I highly doubt that the Supreme Court in
United States v. O'Brien would have engaged in a strict
scrutiny/freedom of association analysis of the regulation that
prohibited the burning of draft cards if David O'Brien had alleged
that he and his three companions were part of a group whose "core
belief" or "creed" was that all draft cards should
be burned. As noted above, regulations that affect the character
of an association qua association trigger strict scrutiny; content
neutral laws of general application that have an incidental effect
on expression do not.
The challenged provisions fall into the latter category.
As such, they are constitutional if they are narrowly tailored
to serve a significant government interest. See, e.g., Johnson,
159 F. 3d at 895-96 (applying test for time, place, and manner
regulations); Black, 18 F. Supp. at 1133-34 (same); United
States v. Rainbow Family, 695 F. Supp. 294, 309 (E. D. Tex.
1988) (applying time, place, and manner test to predecessor regulation).
E. Facial Challenge--Time, Place and Manner Analysis
Under the time, place and manner test, so long as the restrictions
adopted are not substantially overbroad or burdensome, it is immaterial
that the government's interests could perhaps be served by some
less-speech-restrictive alternative. Ward, at 799-800.
Stated differently, if the regulation "responds precisely
to the substantive problems which legitimately concern the [Forest
Service]," then the court is not to second-guess whether
the Forest Service could have found another way to advance
its interests. Clark v. Community for Creative Non-Violence,
468 U.S. 288, 297-299 (1984). Moreover, in determining whether
a time, place, and manner regulation substantially serves the
Government's interest, the effectiveness of the regulation should
not be measured solely by the adverse consequences of exempting
a particular plaintiff from the regulation. Id. at 296-297; Heffron
v. International Societyfor Krishna Consciousness, Inc., 452
U.S. 640, 652-653 (1984).
The regulations easily pass this test. The Forest Service
has encountered a variety of problems stemming specifically from
large group use of the forest, including the spread of disease,
pollution from inadequate site clean-up, soil compaction from
inadequate site restoration, resource damage in critical salmon
habitat, resource damage in riparian zones and meadows, damage
to archaeological sites and traffic congestion. Final Rule, Fed.
Reg. 45262. There is no question that the government has a significant
interest in preventing these problems from occurring and in preserving
National Forest lands for the enjoyment of others. See Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 296
(1984) (holding that preserving national park lands for the enjoyment
of others is a significant governmental interest); Blasecki
v. City of Durham, 456 F.2d 87, 92 (4th Cir. 1972) (ordinance
prohibiting more than 50 people from assembling or congregating
at small downtown park, which had
been scene of disruptive demonstrations, was supported by compelling
interest in protecting property and avoiding congestion).
The provisions challenged by the defendant are narrowly
tailored to meet these interests. Requiring groups to apply for
a permit 72 hours in advance bears directly on the government's
interests in protecting forest resources, promoting the safety
and health of forest users, and allocating space among competing
users. As noted in the Final Rule, allocating space has become
increasingly challenging in light of increasing legal constraints
on the use of forest system lands, including the need to protect
endangered, threatened, or other plant and animal species. Final
Rule at 45266. It would be
extremely difficult--if not impossible--for the Forest Service
to allocate space among competing users while at the same time
protecting forest resources if it does not know in advance that
a large group intends to gather in the national forest. Requiring
a group to apply for a permit in advance is necessary so that
the authorized officer can determine whether the evaluation criteria
in the regulations are satisfied and to take any preventive or
mitigative measures that may be necessary to reduce resource damage.
Final Rule at 45,267, 45,272.
Paradoxically, defendant suggests that the regulation could
be more narrowly tailored by making it broader, namely by expanding
the permit requirement to noncommercial group uses when it is
"reasonably expected" that the number of people in the
group will exceed 75. Yet defendant points to nothing in the regulations
that would impose any penalty upon a group such as the Rainbow
Family who, uncertain about the final number of attendees, chose
to apply prophylactically for a special useauthorization. Because
the 72-hour provision is narrowly tailored to serve the government's
significant interests in protecting the national forest and allocating
space among competing users, the regulation survives constitutional
With respect to the signature requirement, requiring an
individual to sign a special use authorization as a representative
of the group is necessary to ensure that the group will be responsible
for the actions of its members as a whole, to give the authorization
legal effect and to subject the group to the authorization's terms
and conditions. Without the ability to impose terms and conditions
on all members of a group, the government would clearly be extremely
hampered in its ability to achieve any of its interests. The terms
and conditions of a group use permit would have little teeth if
they only applied to the individual who signed the permit. Defendant
suggests that the government's interests are adequately served
by local, state and federal public health and safety laws and
laws protecting natural resources and therefore it is
unnecessary to impose additional terms and conditions on the group
as a whole. I disagree. It is clear from the language of the regulation
that the terms and conditions do not simply make already-existing
laws applicable to group uses, but allow the Forest Service to
impose rules tailored specifically to the particular site or use.
For example, the Forest Service could impose a condition that
restricts a group from using a particular access road due to the
fact that the road is already being used for a competing use.
The ability to impose such conditions is necessary in order for
the Forest Service to meet its interests that arise from large
group uses of the forest. As for the terms and conditions provision
itself, the only argument defendant makes in support of his contention
that the provision is not narrowly tailored is that its catch-all
clause "could be used to limit significantly one's ability
to exercise rights
protected by the First Amendment." This is no different than
his "prior restraint" argument, which I have rejected.
In sum, the terms and conditions provision, the 72-hour
provision and the requirement that an individual sign the permit
on behalf of the group directly and precisely serve the government's
significant interests in preserving national forest resources,
protecting the health and safety of forest users, and allocating
space among competing users while not unduly burdening expression.
The regulations are constitutional.
E. "As applied" Challenge
Defendant makes three arguments in support of his claim
that the special use authorization requirement is unconstitutional
as applied to him in this case. First, he makes a "legal
impossibility" claim, arguing that because the Rainbow Family
eschews any kind of representative or hierarchal government or
structure, he could not sign a special use authorization application
as a "representative" of the Rainbow Family without
violating federal law prohibiting the making of false statements.
Second, he contends that the forest service's own regulations
required it to waive the permit requirement. Finally, he argues
that the proposed application that was tendered to him by forest
service officers contained provisions that exceeded the scope
permitted by the regulations. None of these arguments carries
1. Legal Impossibility
Defendant's claim that it was "legally impossible"
for him to sign a special use authorization as a "representative"
of the Rainbow Family is without merit. His contention is similar
to that raised by defendants in United States v. Rainbow Family,
695 F. Supp. 294, in which members of the Rainbow Family claimed
that the Rainbow Family could not be sued as an entity and could
not be effected by service upon one or more individuals who, at
most, merely associated with the Rainbow Family on a voluntary
basis. After a hearing, the court found that
Id. at 298.
the Rainbow Family, although informal and loosely-knit, nonetheless
operates as an organization, with decision-making "councils,"
individuals who [act] as agents, representatives, or leaders
on a voluntary basis, and which has an informational network.
Moreover, the court found that even though the group lacked
established leaders or agents, service of process could be effectuated
upon its individual members, particularly where the individuals
so served act in a leadership or representative capacity by negotiating
on behalf of the Rainbow Family or "scouting" for sites
for a gathering. Id.; see also Black, 18 F. Supp. 2d at
1130 (finding that prior to Rainbow Family gatherings, which have
occurred annually in different National Forests since 1972, members
contact local business, civic and community organizations to prepare
for the gathering). To hold otherwise, reasoned the court, "would
permit organizations to maintain a fiction that they have no leaders
or agents and hence evade legal process altogether, which the
law will not allow." Id.
The same reasoning applies here: to credit defendant's argument
would allow the Rainbow Family or any other group to avoid the
permit requirement simply by maintaining that is had no leaders
or agents that could sign the permit, thereby gutting the entire
special use authorization scheme. Moreover, the record in this
case indicates that attendees at the gathering identified defendant
as one of the "focalizers" or "scouts" for
the gathering. He also agreed to accept the citation on behalf
of the group. Although the record in this court has not been fully
developed as to the nature and characteristics of the Rainbow
Family, these facts are consistent with the findings of the courts
in United States v. Rainbow Family and Black v. Arthur,
namely, that the group does allow individuals to act in a representative
capacity for the group on a voluntary basis.
Based on these facts, I find that defendant is exaggerating
when he suggests that he would be committing the equivalent of
criminal fraud by signing the special use authorization as a representative
of the Rainbow Family. In any event, because the attendees at
the gathering could have designated him as someone who would sign
the permit on behalf of the group without breaking any laws, it
was not legally "impossible" for him to sign the permit.
Defendant next contends that the Forest Service should
have waived the signature requirement in the instant case pursuant
to 36 C.F.R. § 251.54(h)(2). That provision states that,
in the event an applicant fails to meet the eight criteria required
for a special use authorization--one of which is to provide the
name of an adult who will sign the authorization on behalf of
the group--an alternative time, place and manner must be offered
if it will allow the applicant to meet the required criteria.
Defendant argues that waiver would have been appropriate in this
case because the gathering had exceeded the 75 person limit for
several days before Officer Borcovan informed him that a permit
would be required.
Moreover, argues defendant, the fact that the proposed permit
that was tendered to defendant to sign had already been filled
in by the Forest Service indicated that the agency was in need
of no specific information. Defendant contends that under these
circumstances, where the permit requirement had been reduced to
"a veritable mere ritual," the requirement that someone
sign it on behalf of the group should have been waived.
Defendant's arguments are without merit. As the government
points out, the "reasonable alternative" provision requires
the Forest Service to offer an alternative that would allow the
applicant to meet the eight required criteria; it does not require
the agency to waive any requirements and it certainly does not
require the agency to waive the permit requirement altogether.
In addition, contrary to defendant's suggestion, the goal of requiring
large groups to obtain a permit is not simply to gather information
about the proposed use, but is also to impose on the group terms
and conditions designed to protect forest resources and the health
and safety of forest users. Obviously, if there is no permit,
there are no terms and conditions, a result that would defeat
the government's purposes behind the regulation.
Moreover, it is ironic that the defendant seizes upon the
restraint, flexibility and helpfulness of the Forest Service officers
to show that he is being unfairly prosecuted. The officers gave
defendant every opportunity to comply with the permit requirement,
including providing him with a permit that was in all respects
complete except for the required signature. This has led defendant
to argue that the officers should have cut him even more slack
by completely ignoring the regulations that it was their duty
to enforce. It is not defendant's place to determine the degree
to which the officers were required to exercise their discretion
in their attempt to reach a mutually acceptable solution to the
permit impasse. The fact that defendant got some accommodation
does not entitle him to even more accommodation
from the officers. The Forest Service did not waive its right
to require a permit by approaching the matter incrementally.
3. Scope of tendered permit
Finally, defendant contends that the permit that he refused
to sign contained two provisions that exceeded the scope contemplated
by the regulations: 1) the requirement that the Rainbow Family
"maintain improvements and premises to standards of repair,
orderliness, neatness, sanitation, and safety acceptable to the
authorized officer;" and 2) the requirement that the group
permit "free and unrestricted access to and upon the premises
at all times for all lawful and proper purposes not consistent
with the intent of the permit or with the reasonable exercise
and enjoyment by the holder of privileges thereof." Dkt.
6, Exhibit E, 7 and 11. Both provisions appear to be "standard"
conditions incorporated into a Forest Service form document titled
With respect to the first condition, defendant argues that
it is "vague in the extreme" and "would have allowed
the Forest Service Officer to revoke the permit and disperse the
gathering at any time upon purely subjective consideration."
Dkt. 6 at 37. As noted in Section 2A of this opinion, however,
the fact that some discretion is retained by government officials
does not render a permitting scheme an unconstitutional abridgement
of protected expression, particularly in the absence of any evidence
to suggest that all special uses are not subject to the same condition.
Moreover, to succeed on his "as applied" challenge,
defendant must show that his constitutional rights were violated,
not that they might have been violated.
The same overtones color defendant's claim that the condition
that requires the group to allow free and unrestricted access
to the premises is unconstitutional. Defendant argues that the
provision effectively requires the group to agree to be subject
to unreasonable searches conducted at whim by
Forest Service officers. At first blush the language of the condition
appears to support defendant's interpretation, for it requires
access "at all times for all lawful and proper purposes not
consistent with the intent of the permit or with the reasonable
exercise and enjoyment by the holder of privileges thereof."
Upon a moment's reflection, however, it is clear that the sentence
contains a typographical error; the term "not consistent"
is clearly meant to be "not inconsistent." Indeed, defendant
points this out himself. The condition thus corrected would not
permit the random shakedowns feared by the defendant.
In any event, if defendant had a question about the scope
of this condition, he could have asked a Forest Service officer
for clarification or asked that the condition be amended. There
is no indication in the record that defendant pursued this course
or even that the confusing language was of any concern to him
until the instant litigation. Because defendant has not been harmed
in any fashion by the mis-worded condition, his challenge must
Although the First Amendment guarantees absolutely one's
freedom of belief or conscience, it does not guarantee absolutely
the right to practice or express those beliefs at any place or
any time. "[T]he very concept of ordered liberty precludes
allowing every person to make his own standards on matters of
conduct in which society as a whole has important interests."
Yoder, 406 U.S. at 215-16. Despite the fact that the Rainbow Family
may practice its own form of government that rejects traditional
notions of democracy, that does not render it exempt from the
laws that govern the rest of us. As the Supreme Court stated more
than 100 years ago,
Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they
may with practices. . . . Can a man excuse his practices to the
contrary because of his religious belief? To permit this would
be to make the professed
doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto himself.
Reynolds v. United States, 98 U.S. 145, 166-67 (1879).
Although this is not a case about religion, it is a case
about beliefs. However heartfelt the beliefs of those who participate
in Rainbow Family gatherings, those beliefs do not allow each
participant to become a law unto him- or herself. For the reasons
stated above, the special use authorization scheme is constitutional,
both on its face and applied to defendant.
For the reasons stated in this Opinion, defendant Bennett
Masel's Motion to Dismiss the citation is DENIED.
Entered this ______ day of June, 1999.
BY THE COURT:
STEPHEN L. CROCKER