Your federal senators and
representatives,
Carol Rasco
Domestic Policy Staff
1600 Pennsylvania Avenue NW
Washington, D.C. 20500,
Jim Lyons
Assistant Secretary of Agriculture
14th and Independence Avenue Rm. 217-E
Washington, D.C. 20250.
Should enlightenment fail the only
possibility remaining within the
established system is a legal
challenge.
OPINIONS
It seems the major problem in
discussing the legal options is
that people opposed to the
regulation are divided by two
distinct theories explaining its
genesis. One school believes this
is the work of a few uncontrolled
bureaucrats who can't stand to see
free expression in the land of the
free. Implicitly, this theory
pivots on basic trust in the
system, and a belief that the
courts will always protect the
peoples' rights against wild
bureaucrats.
The second school of thought hopes
the first is correct, but sees this
regulation as the next "logical"
step in an ongoing regulatory
pattern. A pattern designed to
"legalize" the use of authoritarian
force, resulting in a concurrent
diminishment of individual freedom.
This theory reasons that the
government is actually a regulatory
agency that depends on the creation
and enforcement of regulations
("law") for its very existence, and
that the courts can be relied on to
protect this status quo, BUT NOT
NECESSARILY FREEDOM OR JUSTICE.
E.g., Clark v. Community for
Creative Non-Violence, 468 U.S. 288
("CCNV"). Even the Rainbow court
specifically held that "(t)he power
of the Secretary to promulgate and
enforce ... special use permits has
been repeatedly upheld." Rainbow,
695 F.Supp. at 306-307.
Logically, this theory leads to the
conclusion that the government will
continue to enact restrictions
until there is just no room for
free thought, assembly or
expression. After all, the
government is regulating just about
everything else, as the environment
degenerates and the murder rate
soars.
SECOND OPTION, a civil case could
be brought seeking an injunction
against enforcement of the
regulations. Perhaps the only
challenges here are that the
regulation is [1] unconstitutional
on its face (to get some idea of
how this might play in court it is
necessary to read CCNV, which the
USFS claims as its legal authority
for this regulation, Fed. Reg. pg.
26940), [2] unconstitutionally
applied (to understand how
difficult this might be read United
States v. Thomas & Thomas, 864 F.2d
188), or [3] is "arbitrary or
capricious" (read Thomas v. Lujan,
791 F. Supp. 321 to get some idea
of the broad rationalizations a
court may apply in defining
"arbitrary and capricious").
But there is hope! THE RELIGIOUS
FREEDOM RESTORATION ACT, NOVEMBER,
1993, MIGHT ARGUABLY OVERTURN THESE
TERRIBLE CASES, WHICH WOULD ALLOW
FOR A REPEAT OF THE 1988 TEXAS WIN.
Hopefully, the courts will
recognize that the Religious
Freedom Restoration Act requires
the Secretary to show a "compelling
interest" before his regulations
may "substantially burden" a
religious exercise.
THIRD OPTION, once the regulation
is enforced anyone arrested for
violating it would have the
opportunity to challenge the
regulation in their criminal
trials. The main drawback to this
option is that discovery (the
process of obtaining information)
in a criminal trial is more limited
than the discovery that is
available in a civil trial against
the regulations.
FOURTH OPTION, in the worst case
scenario, where the government
enforces a regulation to
criminalize freedom, individuals
arrested for violating the
regulation could file civil rights
action under 42 USC Sections 1983
and/or 1985(3) and/or 1986. To
prevail on such a case one would
have to prove the Forest Service
conspired to deprive a group or
individuals of rights, privileges
or immunities guaranteed by the
Constitution, under color of
regulation. Proving this kind of
conspiracy in court is no easy
task. Thomas, et. al. v. United
States, et. al., 694 F. Supp. 702.
The civil rights option could
provide a criminal defendant both a
stronger basis for acquiring
discovery materials, and a greater
range of defense strategies. For
example, motions might be filed to
stay a criminal proceeding pending
the outcome of the civil case.
See, Dombrowski v. Pfister, 380
U.S. 479.
There is a belief that freedom of
thought, assembly and expression
are about the only thing separating
humanity from absolute hell on
earth, and that the complacency or
sloth of humanity has allowed the
dictates of regulatory agencies to
push us to the brink of an abyss.
Coupled with a lack of confidence
in contemporary judicial wisdom,
this belief leads to the conclusion
that the only way to keep the
bureaucrats in line is to address
the very nature of government
itself.
There has never been a situation
where a conspiracy, involving the
same alleged scheme, was
independently litigated in several
different federal districts
simultaneously. Numerous cases,
filed independently in various
federal court districts, would
create a novel situation -- bound
to attract public attention to the
problem, raising public awareness -
- would at least force the courts
to do a double take on the
allegations. Additionally,
consider how the same case, being
decided by different district
courts, will surely result in
different opinions, a situation
very likely to lead to conflicting
appeals court opinions, which, in
turn, would fuel public debate,
which is good for democracy.
Ideally, you'll find a law firm to
use the legal theory and file a pro
bono (free) case. Because federal
courts are not anxious to hear
cases alleging the administrative
branch is conspiring to subvert the
Constitution, it may be difficult
to find a lawyer idealistic enough
to take such a challenging case.
Alternatively individuals or small
affinity groups could file a pro se
(by one's self) law suit. HOWEVER,
THIS METHOD SHOULD NOT BE WITHOUT
SERIOUS CONSIDERATION.
First consideration: can you afford
to sue? The court can require a
filing fee which might be a couple
of hundred dollars. To file a
complaint in forma pauperis (which
exempts one from prepayment of
costs or fees, and pays for
necessary transcripts), a judge
must decide that the applicant is
sufficiently poverty stricken.
Do you have the time and talents to
sue? You will need to carefully
read and respond to opposition
motions; which requires research on
legal (perhaps boring) precedent
and legal (perhaps confusing)
procedure. You will need to write
and file motions within strict time
limits. BUT, THIS BURDEN COULD BE
LIGHTENED. Assuming a number of
people are seriously interested in
the idea -- and provided they can
learn to work efficiently together
-- with the aid of modern
communications technology, they
might assist one another with the
necessary research and preparation
of the necessary documents.
It is strongly suggested that
anyone
using the civil rights option do as
much research as possible on both
legal procedure and case law. The
matter should be discussed as
widely as possible with others,
attorneys, trained to be skeptical,
are particularly good to bounce
ideas off, but remember, anything
anyone tells you is only an
opinion.
WE ARE PRAYING THE RELIGIOUS
FREEDOM RESTORATION ACT INDICATES
THAT SOCIETY IS HEADING IN A MORE
PLEASANT DIRECTION. How the
government handles this regulation
will be a weather vane showing
which way administrative civil
rights winds are blowing.
Should all the worst happen, and
the government continues to act
like a beast, this scribe is also
interested in discussing
alternatives outside the system.
In service to peace through
understanding,
P.O. Box 27217
Washington, D.C. 20038
(202) 462-0757The links below depart from the Rainbow Trail
FS Regs Page | PCU Administrative Record
Rainbow in Court | Government Views | Public Views
1601 Pennsylvania Avenue