KATUAH KAHUNA...

...A Post-Trial Report based on a First-Hand Review of the Proceedings

-- Scottie A. (Nov.'96)...

DATELINES

September 29, 1995: Black Friday... After over 2 years of public opposition, policy appeals and political holding actions, the U.S. Forest Service finally enacts a permit authority over gatherings on National Forest Lands:

The 'Group Use' regulations [36 CFR §§251,261] came into force.

June 17, 1996: Five participants in the Katuah Solstice Gathering in Pisgah National Forest (NC) become the first to be prosecuted under the new rules: Dan Gallagher, William LaTempte (Uncle Bill), Jeffrey Pike (Laughing Man), John E. Johnson III, & Stephen Wingeier (Wing). Selected by Forest Service Officers as "Leaders" and held individually responsible, they are cited for gathering without a permit and threatened with arrest if the event goes on.

October 31, 1996: After 3 days of testimony by Forest Service personnel, Defendants, and a few other witnesses, the Trial of the "Katuah Five" comes to a close: While Wing was dismissed on the previous day, the remaining four are found "Guilty As Charged" in violation of 36 CFR §261.10(j) -- the Guvmint's newfound "crime" of Free Assembly on Public Land.

Trick Or Treat?... (I think it's a trick.)

THE GAMBIT ON DEFENSE

Going into the trial, the common sense of this defense was to avoid the major Constitutional issues in North Carolina, to evade the peril of any decisive test of the Group Use rules on appeal to the 4th Circuit (Richmond), maybe the most hostile on First Amendment law.

Instead, there appeared to be ample flaws in the criminal case against these Defendants to win key points on incontrovertible facts and beat the charges on narrow grounds related to the circumstances of the citations. The hope was to get fast dismissals, make a dent in the core issues of enforcement of the rules "as applied", and live to fight another day.

This strategem of limiting exposure had to strike a delicate balance:

When Constitutional issues come to play in defense, the Court must subject other issues to higher scrutiny -- and there is a stiffer test of proof upon the prosecution, which can help. Conversely the tactic of keeping the lid on them places a greater burden on a narrowly 'criminal' defense, and there is the risk of narrowing the scope of testimony to the extent that critical facts and arguments are excluded from the trial record, and therefore are not available for appeal.

For this reason there was cause for care and wariness. Certainly if a clean surgical strike solely on criminal grounds could lead to fast acquittals, it was the best outcome in this case. But I questioned the odds of quick success, the likelihood of limiting the scope, and the benefits of an ambivalent 'hybrid' defense -- floating between incompatible theories of 'Ducking the Crime' vs. 'Challenging the Law'.

In court proceedings, the rule of thumb is that there is really not much middle ground: You can't really make a case that is 'a little bit constitutional'... if the First Amendment issues arise at all, they can be ruled upon, so there's no reason not present them fully and affirmatively.

And in fact these Defendants WERE exercising First Amendment rights, they knew it, and it WOULD come out... hedging on this question could be counterproductive, and anyway it was likely that all the issues would be pulled up like ribbon-grass.

These concerns were borne out quickly as the trial got underway... enough so that I wrote them up in a "Late LiteBulbs" memo to the local Defense Attorney after the first day.

REALITY CHECK

The Guvmint is pulling out the stops to establish & sanction extreme enforcement powers, by means of the "Pick-a-Victim" protocol mandated by the top rulemakers. When USFS officials came to the site on 6/17 with bizarre procedures, allegations, and threats, theywere not making blind blunders... they were doing exactly as instructed by superiors.

It was a whole set-up: The two key Law Enforcement Officers (Offr. Wilt Stribling, Special Agent Malcolm Jowers) are Incident Command veterans who have volunteered for details on Rainbow Gatherings in the past. In fact the enforcement group was set up like a 'Mini-IC Team', including a "Line" Ranger from the District (Roth), local LEO (Davis), and a County officer (Worley) delegated to Forest Service duty. A USFS Botanist (Danley) and NC State Game & Wildlife agents were also brought in for reviews of the Puncheon Camp site.

Note also that the USFS lawyer (Office of General Counsel) who wrote the rule was in court from DC to orchestrate the prosecution: Ellen Hornstein is the "OGC Valkyrie & Ex Parte Hack" who sequestered public information from the Office of the Agriculture Secretary and stopped meetings with the White House (7/93) and Assistant Secretary (12/93), under color of rulemaking authorities. She also appeared in a training video from USFS headquarters about the new regulations on "Noncommercial group uses", and how to enforce them. The cops went almost by the book; she was in Asheville to make sure that the charges would stick. I asked her if she drove down from DC or flew on her broom.

What They're After: The plot came clear the first day, when the Defense objected to a line of questioning and Prosecutor Ascik (Ass-Kick?) told the judge he was trying to show CONSPIRACY... a big word, our furs bristled. Yup... the Guvmint is trying to cast the legal pall of "Cult Conspiracy" over the whole Rainbow Family, by and through the alleged "Leaders" of an 'unincorporated association that can sue and be sued' [per the 1988 'US v. Rainbow' case in Texas, the one blunder]. The enforcement scheme is apparently designed to build this fiction.

How It Works: After criminal citations are issued to selected individuals, the gathering is given 72 hours to disperse, then 3 things happen fast: The first cited "Leaders" are arrested, more "Leaders" are selected in a second round of citations, and a TRO ('Temporary Restraining Order') is filed in court to remove people from the land.

Wickedly Elegant: The recourse to civil remedy picks up where the Federal suit (# 96-CV-183, filed 2/16/96) against the "Rainbow Class" in Osceola N.F. left off... with the threat of sweeping injunctions and authorities to disperse free assemblies and arrest participants. Repeat offenses start getting 'conspiracy' charges against them, the pressure comes on, the stakes go up, the Gatherings go down... families stay home, peace culture twists on fear & legal martyrdoms, vulnerable to provocateurs. Then, Incidents are Commanded -- e.g., Air-Drop Disease (NC'87), Big Fire (WY'94), Ranchero Rebellion (NM'95), etc. -- the Gatherings (along with Earth Firsters) are smeared by the broad brush of "Eco-Terrorism", and effectively outlawed. Just a scenario, but not unlikely as a logic of repression.

TRIAL HIGHLIGHTS & LOWLIGHTS

These strategic undercurrents are pivotal to understanding the trial as a whole. The actual course of the proceedings dealt largely with factual issues about the gathering, the actions of Defendants, and how criminal sanctions were applied under the rules in Pisgah NF. The case revolved around three decisive questions:
(1) Was the 'Group Use' regulation actually violated at the Katuah Gathering, based on whether there were 75 people in a definable "group" at the site?

(2) Were these policies and enforcement actions targeted against "Rainbow" events, and not imposed on other groups in the National Forests?

(3) Can "Leaders" of a gathering be designated by Forest Service officers, held liable for the conduct of other individuals, and selectively prosecuted if no permit application is signed by participants?

In this context, some defining themes emerged in testimony, and it was useful to see how they played out in open court. They shed light on the logic of the USFS regulators, and their legal and tactical posture in implementing the 'Group Use' restrictions.

Police Presence --

Forest Service officers testified on their surveillance activities, and the methods they used to count participants at various times over the first weekend of the gathering. At one point we viewed a videotape made by the FS LEO (Stribling), sneaking around the site at 7 AM Saturday morning (6/15) while everyone was asleep, looking for citable offenses and impacts on the land. Ironically he also noted the effects of his own vehicle tearing up the trail -- far worse than anybody's footprints.

Clearly the enforcement team made a dominating and invasive presence from the outset, using every possible pretext for petty enforcement. A lot of citations of various kinds were issued in conjunction with this small event. When two people hollered "Guns in the Church" to warn of cops on-site, they were cited by Officers for "Interfering" (these charges were later dropped). Three minor drug charges also came down -- two of which occurred at an illegal roadblock on the access road. There also testimony about an officer entering a private tent without permission. On numerous return visits through the first weekend the officers re-tallied gathering participants to determine when the permit requirement would be triggered.

In general, they set up the deal carefully to come down hard on the gathering, and to establish their prerogative to be there with broad enforcement discretions.

Participant Profiles --

A curious line of testimony came up a couple of times, when the prosecutor asked the LEO and the County officer what the gathering participants "looked like". They described your routine archetypal cartoon hippies -- long hair, beards, unusual dress, "unkempt", etc. This would seem to walk into a trap of "discrimination" against certain people by their appearance, but it was no mistake.

In fact it was done deliberately for the court record, to validate a common police practice in conjunction with 'Group Use' enforcement: The use of character 'profiles' as a surrogate for Probable Cause. In short, if a cop thinks you fit the 'Rainbow Profile', you can be identified with the 'Group' to be restricted... and you might even be a 'Leader' without knowing it.

Targeting "Leaders" --

Government testimony at several points was explicit in describing the actions of Forest Service Officers in observing and interacting with participants at the gathering, and determining anyone to be a "Leader" at their discretion. This is the core of the protocol devised well in advance to enforce the permit requirement where no applicant will (or can) come forward; the training video from the honchos in DC gave clear and detailed directions on this. These facts also were brought into the record deliberately, to submit the 'Group Use' protocol to judicial review and gain sanction for its future use.

A key element was that in each instance it was alleged that the Defendant spoke with the Officers voluntarily -- either initiating contact or responding to their request "to talk". Where an individual is seen to engage willingly to engage in an 'official contact', two things happen instantaneously: They waive their privacy & allow themselves to be detained for official purposes, and it is presumed to be evidence of their 'leadership'.

So, when each Defendant got into a simple human conversation, he was also getting roped in: Dan Gallagher was hailed by Officer Stribling in a Hot Springs parking lot and asked about the gathering before the fact... Uncle Bill & Laughing Man tried to cooperate with Officers' requests to mitigate impacts... John Johnson asked the Officers to identify themselves.

In each instance, it was by the act of Coming Forward that these individuals were singled out -- regardless of the content of the exchange, except for one thing: Each was informed that a permit would be required and made personally liable for whether this requirement was met by the gathering.

Defendant Foreknowledge and Intent --

This was the 'mens rea' doctrine on which the convictions hinged, and a direct corollary of the targeting procedures just described: The official contact with each individual was set up to effect full & proper Notification that the gathering was in violation of the permit requirement, and that each would be subject to criminal prosecution if it continued.

When the Forest Service agents came back to the site on the evening of 6/17 and alleged that more than 75 people were there, the fix was in, and the five gents already known by name and officially notified were pulled aside and given citations. In an interesting twist, an elder Sister fairly new to the gatherings tried to intercede, offering to sign a permit application herself on behalf of "75 Individual Nature Lovers..." -- but Defendants were among many who refused any consensus on such a move, and the five tickets went out.

The Prosecution's operating theory was explicit in testimony and final arguments: The Defendants had foreknowledge that they would be committing a crime, because they were Notified; they were still on-site when the crime was confirmed, and even resisted an offer to sign, showing clear intent. Within the limited 'criminal' framework of the trial, the judge had to agree (spoofing about "Signa-Phobia" toward the permits, disregarding the implications of signing), and the four Defendants remaining on the last day were convicted on this basis.

Wing's dismissal should also be understood in this context, based on the facts in the record: He arrived later than the others, may not have been adequately notified, stated his intention of leaving the site, openly disclaimed leadership, "resigned" as a focalizer, and asserted his First Amendment and religious purposes in gathering. So, his case did not fit the prosecution theory (lacking clear foreknowledge and intent), and burdened it with his Constitutional claims. Thus when the Feds dropped Wing's charges, it was not just to get his flown-in attorney off the case (since he could remain as co-counsel anyway, and did so): There were substantive reasons in a weak case against Wing, based on his conduct on-site and in the record, and the overriding motive of the government to make sure the convictions would be upheld on appeal.

The Draft Permit --

On the second day the prosecution brought forward testimony from Ray Johns, the FS Permit Specialist, concerning the fact that a draft permit had been prepared for the Gathering in the event that application was made.

It was a "draft" permit to the extent that it would be amended on the basis of information in the application. The intent was probably to establish this procedure as well, and to make a show of 'good faith' in the court record, to undercut the claims of discrimination against Rainbows... i.e., they would have issued a permit to the gathering.

The Defense recalled Mr. Johns the following day and turned the tables.

First of all it was revealed that the name of the anticipated Permit Holder (Signer) had been provided by the Acting District Ranger Colleen McGuinness, presumably based on reports from the field agents. That person was identified at the gathering but not known to the Defendants before it. He appeared in the council repeatedly arguing for signing a permit, kind of holding things up; he was observed to be unfamiliar with the consensus process, and pretty obtuse & disruptive. This demonstrated again what was already learned in Missouri: That the Forest Service will latch onto just about anyone to get a permit signed.

The other points were scored in the "TERMS AND CONDITIONS" of the draft permit itself:
* It conveys liability on the Holder for "standards of repair, orderliness, neatness, sanitation, and safety acceptable to the authorizing officer, ... expense for all damage ... to lands, roads and trails, ... including damages to National Forest resources and necessary costs of fire suppression, ... the responsibility of ... hazardous conditions, [and of] free and unrestricted access to and upon the premises at all times." (§§7, 8, 9, 11)

* It further provides that "The holder shall hold harmless the United States from any liability...", and that the permit could be "revoked ... upon breach of conditions or at the discretion of the authorized officer." (§§10, 13) [1]

In short, these permit provisions directly contradict the Forest Service position in the final rulemaking: "A person who signs a special use authorization for a noncommercial group use acts as an agent for the group, but does not assume personal responsibility for the group's actions." [Fed.Register, 60:168, p. 45274] And, they highlight the fact that the permit is essentially a one-sided 'contract' -- revokable on arbitrary grounds and imposing obligations beyond anyone's personal control in a consensual free assembly... and therefore no responsible person could ever sign one.

ASSESSING THE CORE CASE

The trial hinged first of all on whether the Katuah Defense could make its case on the core questions on the criminal enforcement. Based on what was presented, it was a close call.

(1) Was the 'Group Use' regulation actually violated...?

Whether the permit threshold of 75 people was actually reached was opened to challenge. There was an effort to question the authenticity of Forest Service tallies through the first weekend, in terms of conflicting numbers, questionable methods, and lack of documentation. A group of people camped in the parking area was apparently counted, although they never actually went into the gathering site. Based on a "reasonable doubt" that a group of 75 was on-site at all, the Defense argued for acquittal.

However they presented no reliable contravening evidence; the court had to presume upon the reliability and good faith of Forest Service testimony, so this argument went nowhere.

Not adequately addressed was the question of how a 'Group' was discerned by Forest Service officials. Upfront, the use of character profiles is anathema to the nature of free assembly. Where officials hold broad discretions to (1) observe people, (2) judge what they "looked like", whom they talked to, or whether they share food with neighbors, and (3) define them as part of a Group for the purposes of regulation -- this is deep infringement on individual rights of privacy and association, with a built-in drift toward 1st Amendment content control.

A few points came out to show that the Defendants acted in accord with the rules, their protective purpose, and with staff directives on-site. In fact Defendants suggested an alternative site on provate land, most left the gathering, the numbers were below 75 by midweek, site cleanup & rehabilitation were completed thereafter. These points lead to the idea that gatherers substantively complied with the law, so there were no real grounds for charges. Moreover the enforcement was set up to leave no way out -- once the Leaders/Defendants were "selected", there was nothing they could do within their powers to avoid prosecution.

Another question: Is the threat of Arrest on top of Citation tantamount to double jeopardy?

(2) Were... enforcement actions targeted against "Rainbow"...?

The main tack here was to suggest that other groups have used the National Forests without being bothered about a Permit. This is a problematic case to make: Saying that other groups have ducked enforcement does NOT prove that the rules are selectively applied to Rainbows; it is definitely not enough without presenting compelling evidence. Defense testimony about "Bear Clubs" in the National Forests never established facts or dates of specific events, or even that they exceeded 75 in number.

Similarly the account of 'Weddings in the Woods' vaguely alluded to events that took place before the Group Use rules were enacted, and one recent instance where the Ranger advised correctly that no permit was required for 50 people. Other historic facts about FS conduct toward the Gatherings would have helped to demonstrate clear 'animus' against the Rainbow Family -- but these were not brought to bear.

Regarding the conduct of Forest Service agents at the Katuah site, eyebrows arched with a few facts that came out (Ranger Roth looking in tents, rude moves by LEO Davis, etc.), but they were incidental. The court found no glaring instances of abuse or discrimination: Generally officials acted calmly, systematically, and within the bounds of their enforcement mandates.

In the big picture, it's more than a matter of bad manners... the question is What USFS officials were DOING at the Katuah gathering, and How. Through repeated incursions over successive days -- in a pattern of actions involving a roadblock, surveillance, citations, and provocation -- the Feds were clamping down on public access and rights in the National Forest. The overall record from Katuah shows concerted agency tactics, exerting new enforcement powers to the limit and beyond.

Significant resources & manpower were diverted toward this event and its participants, subjecting them to extreme scrutiny and invasive actions. The pervasive police presence showed a clear intent to chill participation and disperse the gathering, but this was not raised as a 1st Amendment issue.

(3) Can "Leaders" of a gathering be... selectively prosecuted...?

The Defense tried to show that these 5 defendants faced a confusing and unworkable proposition when told by USFS officials that a permit must be signed, and that they were held responsible regardless of the actions of others. They argued that individual Permit Signers/Holders could not be individually liable for an open-ended "contract" engaging others without their consent; strong points were made on the natural reticence of any person to sign such a bad deal, and the fact that once they were tapped, there was no avenue of compliance.

The argument did not reach to the regulation itself -- ie, the lack of 'fit' between the permit requirement as applied to selected individuals and the alleged purposes ("substantial interests") of the rulemaking, nor the fact that this breakdown would be replicated elsewhere if allowed to stand. Looking at this strictly as an inforcement issue, the judge saw no problem and was not convinced.

Defendants stated that they could not 'represent' others at the gathering, but the distinction between a "gathering" and a "group" remained blurred in the proceedings. In part, it was undercut by too much loose banter about "members of the Rainbow Family"... as if there were a membership at all, or anything to be inside of. The Forest Service took the position in court (as in the rulemaking) that any gathering can choose someone to sign a permit, just like the Moose Lodge. Until the event is defined as a 'free assembly' under the First Amendment, a judge can come to no other conclusion.

It never got to a pivotal issue: FS officers repeatedly claimed that they could choose "leaders" to represent and sign a permit on behalf of a gathering, ("...Our Discretion") where participants cannot or will not do so. Their attempt to do so would radically alter the meaning of §251.54(h)(viii)* -- "a person or persons 21 years of age or older have been designated to sign and do sign a special use authorization on behalf of the applicant." -- BY WHOM?!

The Government cannot arbitrarily designate "Leaders" (Treaty Chiefs?) for the purposes of regulation. If allowed to choose individual signers/victims, delegate liability, and subject them to legal & real jeopardy, the agency would vastly expand government authorities by contravening its own law. Any application signed by an agency-designated "applicant" under duress violates this rule's criteria* for granting a permit.

2ND LOOK... SHADOW ISSUES

The trial outcome must also be understood by issues NOT presented or fully developed: Where the record eludes key facts and arguments pertinent to this gathering and others, the scope and direction of the case is affected. In turn, this goes to any fairassessment of the prospects for judicial remedies on reconsideration and appeal.

* Land and Uses

Environmental impact was a Non-Issue in this trial, for two reasons:
(i) When the gathering was over, the Puncheon Camp site was clean and traffic areas had been reseeded; a Forest Service field botanist testified that there were no significant impacts, and LEO's noted that all their requests for mitigating measures were met. There was nothing to contest in the performance at Katuah.

(ii) The Prosecution willingly stipulated to this because its strategy was to assert the Government's permit authority REGARDLESS OF IMPACT, as an end in itself. It suited their purposes to argue the abstruse facts of whether these Defendants committed the 'crime' of gathering without a permit, and not consider that the alleged protective intent of the permit was fulfilled without one.

In light of the sacred premises stated in the rulemaking (resource protection, health & safety, space allocation [2]), this ploy is a dark irony... it evades the 'least restrictive means' doctrine that undercuts the regulation, and the proof that consensual alternatives work. The Defense could have pressed this issue further to show the substantive compliance of the participants, and the 'lack of fit' of the permit requirement to its supposed pretexts. Moreover the facts of this case demontrate vague discretions on the part of USFS officers, bad science as to what constitutes an "impact", and dirty policy in posting the site as a "Wildlife" area after the gathering was underway.[3] This argument goes to flaws in how environmental impacts are assessed and enforcement thresholds are determined, and demonstrates the lack of 'objective standards' in applying such 'Special Use' sanctions.

In a larger policy context, this rulemaking is at odds with NEPA ('National Environmental Policy Act', 1969) guidelines on whether gathering impacts are 'significant' or require impact assessment (per USFS Manual #1909.15, Chapter 30). In fact the Agency acknowledges this in the final rule publication, declaring transitory, non-consumptive group uses to be "categorically exempt" from NEPA review requirements. In turn this amplifies whether there is even a "USE" subject to regulation (per the whole body of land use law).[4]

* Constitutional Caveat

The case touched upon Constitutional issues in the rules only "as applied" to these Defendants, and did not raise a test of their "facial" validity -- i.e., to show obvious flaws in the rules, infringing on First Amendment activities before the fact. Attacking the glitches in these particular charges had the potential to help dismantle the permit protocol and make the rules largely unenforceable. But there were gaps in the argument that left the latitudes of "routine enforcement" intact, and the burden of proof harder to carry.

For example, no mention was made of a police "checkpoint" (roadblock) on the access road, which would have opened Fourth Amendment issues of illegal search & seizure, and supported the contention that this event was targeted. More fundamentally, the Free Assembly & Speech claims under the First Amendment were not clearly up-front in the Defense, so the Court's higher scrutiny was NOT raised on questions of 'prior restraint' in the regulation, and especially on the built-in control of expressive content:

Where any public assembly has a shared belief or practice of "Consensus", it's participants are prejudiced by the permit requirement. Furthermore, "peaceable assembly" in the meaning of the 1st Amendment IS Consensual by nature... Individuals journeying and gathering by choice. Therefore where people would exercise Free Assembly in its purest form as intended by the Constitution, this rule affords them no opportunity to comply with the law.

In short, the Defense against signing a permit may be insubstantial unless it is linked to a strong First Amendment position. And with such a position, a court can readily find that the "manner" of this "restriction" is not "appropriate" -- i.e., this rulemaking would fail the Prior Restraint test -- but only if this analysis is raised.

* Bureaucraps & the New World Odor

The real legal issue is Political... down to the reason the 'Group Use' regulations were made, and who the rulemakers are. It starts with a question of Regulatory Intent, when prior versions were twice found unconstitutional, and the Agency keeps bringing the beast back. With a tenuous connection to real public purposes, no "significant government interest" was ever established; the Forest Service argues a circular logic of its own authority.

The Katuah trial revealed the nature of permit enforcement in its most devastating effect: Disabling cooperation between People and Public Servants, supplanting it with show-of-force, confrontation, and incrimination. This is the real purpose of the rules.

Close observers have noted the Agency's hostile and obtuse conduct in the course of the rulemaking, and apparent procedural violations. Forest Service apparatchiks obstructed appeals to public officials, evaded review of regulatory impacts, brushed aside condemnation from the House Judiciary Committee, and stonewalled inquiries from Congress & the ACLU. In fact the big picture suggests a systematic putsch from a cadre of Insider Heavies, to push the 'Group Use' rules into law and disregard what anybody said.

There were also policy actions outside this process which clearly affected it. Most notably, the 'Law Enforcement' rules (36 CFR §§261,262) were quietly proposed in close tandem, and only stopped by the public's outpoured outrage at the draconian powers they sought, across the political spectrum. [5] Then there was the Big Fire at the '94 Wyoming Gathering: The official report indicates that it was caused by negligence, implicitly faulting the Gathering but failing to note that the Rainbows put it out. Despite questionable actions by LEO's, bungling by Incident Command, and suspicious circumstances suggesting arson, no investigation was made.

Back in DC, Chief Thomas and Assistant Secretary Lyons heard direct appeals on these policies, and just shined them on. Officially, the agency represented these Regs as a trivial routine matter. When the final rule was published, the preamble misrepresented the facts and ignored the substance of the public record; the few revisions from the proposal really just manicured the claws of the law.

All the signs point to a regulatory boondoggle -- conspiracy, if you will -- boiled up by some Nixoid/Reaganite diehard holdover moles and greased by Neoliberal yuppies. The 'Group use' rules can be seen as part of a long-term power play... it comes mainly out of the USFS Law Enforcement & Investigations division, with functionaries in the Office of General Counsel and the Recreation, Heritage, and Wilderness Resources Management staff. The institutional incentives and inbred careerist agendas are key: These are strongholds of centralized authority in the agency, with the least accountability and the most to gain.

In this light, the bureaucrats' pretense of "routine" regulation is absurd and insidious: There was nothing "routine" about the bogus permit deal for the big '96 Gathering in the Missouri Ozarks, hatched in Milwaukee; and, the concurrent enforcement measures at Katuah have to be called extraordinary. Ultimately, it is an issue of bad faith and clear animus... narrow interests assuming powers under color of law, and First Amendment policymaking by the Forest Service far beyond its Congressional mandate.

PROSPECTS

It was agreed before the trial that the facts and issues of the 'criminal' case would be heard & decided in open court, and then Constitutional arguments would be presented in written briefs. With the four convictions coming out of court proceedings, the Defense is moving 'to acquit notwithstanding the verdict'; transcripts have been ordered and the briefing schedule is being set up. If the District Court does not reverse the decision based upon this motion, then it will go up on appeal to the 4th Circuit.

The chances are problematic...

In general, some good things got done in the Katuah defense, but the facts in the trial record may not support a compelling appeal -- knowing that only these facts can be considered in review, nothing new can be presented, and they must be overwhelming to overturn the District level ruling.

Testimony and evidence presented in open court were thin, and failed to elicit a "reasonable doubt" that a crime was committed. Moreover the Defense may not have established sufficient 1st & 4th Amendment grounds for a full Constitutional brief; the Prosecutor called this out in final argument.

The concern is that the case landed on that nonexistent middle ground between Alibis and Rights, as outlined above... i.e., Were they Weaseling or Challenging the Regs? Ultimately, the court faced an ambiguous Defense Theory without compelling facts or arguments either way. When the convictions came down, I was sadly unsurprised.

At the same time, Constitutional claims of free assembly & religious exercise were presented in a partial, incidental way, and left exposed to higher court rulings. The risk: If these First Amendment claims are invoked on appeal and rejected because of unsufficient grounds in the record of this case, they may be debilitated in future defenses.

That's the worst-case analysis; hopefully there is enough meat in the record to work with -- and enough latitude to extend the arguments further -- to overturn the four convictions.

FOOTNOTES:

[1 The same provisions appeared in the permit issued simultaneously (6/18) for the July '96 Gathering in the Ozarks, almost verbatim. That permit was then nullified by the Council AND the Holder during the Gathering.]

[2 "...the Department has established three significant interests in promulgating this rule: (1) Protection of forest resources and facilities; (2) promotion of public health and safety; and (3) allocation of space in the face of greater competition for the use of National Forest System lands."
[Federal Register, V.60/No.168, 8/30/95; pg. 45262]]

[3 Officer Stribling's statements dwelled briefly on the meadow as a wildlife area, and its importance as an "edge" condition in the local ecosystem. This is a generic truism, saying really nothing to establish that this particular meadow in the woods was especially sensitive. However this testimony served a strategic scam: Posting the site as a "Wildlife Area" invokes more stringent impact standards, and creates a pretext for the heavy official presence and close oversight of gathering activities.]

[4 The idea that this rulemaking violates NEPA is not news... this was a key argument in the policy analysis presented by PCU//Free Assembly Project in December '93 ("Group Use Rules for National Forest Lands -- A LEGAL & LAND USE REVIEW"). It addressed the specific NEPA guidelines in the Forest Service Manual, how they should exempt gatherings from regulation, and why this is not an "environmental" policy at all.]

[5 The Forest Service quietly published proposed amendments on "Law enforcement support activities [&] Prohibitions" on 2/16/94; it took a month for word to get around, then the clamor rose fast: The 60-day comment period had to be extended, thousands of opposing letters came in, and Senator Baucus called them "a bunch of busybody Beltway bureaucrats run amok." By the final day of comments (5/18/94) Chief Thomas announced that it would "not proceed to a final rule", but they would rework the proposal and try again.]

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