convenience, photocopies of the Final Rule preamble and the Black opinion are included with the second copy of this pleading filed with the Court and have been served upon Defendant Linick.

same national forest area are processed on a first come, first serve basis. 36 C.F.R. § 251.54(f)(5).

otherwise applicable law and agency policy "unrelated to the content of the expressive activity," including the forest land and resource management plan of the relevant forest area promulgated pursuant to statute as well as the agency's environmental policy for sensitive areas. 36 C.F.R. § 251.54(h)(1)(i-ii). The fourth criterion is whether the requested use will delay, halt, or prevent other previously scheduled or ongoing uses. 36 C.F.R. § 251 54(h)(1)(iv). The fifth criterion addresses health concerns, a subject of particular importance in Rainbow Family Gatherings. 36 C.F.R. § '251.54(h)(1)(v); see infra, "Background" section. The fifth criterion, as do all of the others, specifies particularized standards: the Forest Service assesses whether the proposed activity violates state and local health laws and regulations applicable to the proposed site. The regulation directs the Forest Service to focus on sanitation, waste disposal, spread of disease, and water supply. 36 C.F.R. § 251 54(h)(1)(v)(A-E). The sixth criterion addresses whether the proposed activity poses a substantial danger to public safety. It prohibits any consideration of a "heckler's veto" by excluding "concerns about the possible reaction to the users' identity or beliefs from non-members of the group that is seeking authorization." 36 C.F.R. § 251.54(h)(1)(vi). Indeed, the Forest Service may look only to potential for physical injury to the applicants and others and the adequacy of emergency ingress and egress. 36 C.F.R. § 251.54(h)(1)(vi)(A-D). The seventh criterion prohibits use for military or paramilitary exercises unless these exercises are

federally funded. 36 C.F.R. § 251.54(h)(1)(vii). Finally, the eighth criterion provides: "A person or persons 21 years of age or older [shall] have been designated to sign and do sign a special use authorization on behalf of the applicant.'; 36 C.F.R. § 251.54 (h)(1)(viii).

cause. For over two decades, Rainbow Family members have met in large Gatherings at prespecified times in various undeveloped sites in national forests. Final Rule, at 45,262.

the form of an interim rule published May 10, 1988. The United States District Court for the Eastern District of Texas held these amendments invalid in Rainbow 1 4/ because they had not been promulgated in compliance with the APA's notice and comment requirements. Id. at 302-06.

of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id.

resources, promote safety and health of forest users, and allocate space among competing uses." Black, at 10 (citing Final Rule, 60 Fed. Reg. at 45,258-93) . Each of these interests is unrelated to the expressive content of any activity that might take place pursuant to the noncommercial group use regulation.

unexploded ordnance. See 60 Fed. Reg. at 45,263-64, 45,281. Finally, the Forest Service has found that "[t]he competition for available sites in the national forests among animals, plants, and humans has increased as more demands and restrictions have been placed on use of the national forests. Requiring a special use authorization allows the agency to act as a kind of 'reservation desk' for proposed uses and activities, including noncommercial group uses." 60 Fed. Reg. 45,266. Requiring advance notice allows the Forest Service to assure, for instance, that groups do not meet in places already scheduled for National Guard tank maneuvers. Id. at 45,281.

Regarding narrow tailoring, the Supreme Court has warned lower courts not to second guess the government's judgment as to how to further the public interest. Clark, 468 U.S. at 299. The

fit of means to ends need not be perfect, and any contention that the Forest Service might have employed different, less restrictive means to protect the interests advanced by the noncommercial group use regulation is irrelevant. Ward, 491 U.S. at 800 ("[R]egulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative."); One World, 76 F.3d at 1014 n.9 (upholding a ''valuable, but perhaps imperfect means of addressing the targeted problem") (internal quotation and citation omitted). A time, place, and manner "restriction is narrowly tailored if the government "could reasonably have determined that its interests would be served less effectively without [the regulation] than with it." Ward, 491 U.S. at 801; Clark, 468 U.S. at 297 (upholding a regulation because "the parks would be more exposed to harm without the . . prohibition than with it"). As the Black court found, "[b]ecause the burden imposed on expression by the regulation is not substantially greater than a burden imposed by alternative
regulations, it is irrelevant that the alternatives to this regulation might equally serve the government's interests. " Black, at 11 (emphasis in original).

duration). A strict 48-hour time limit governs the Forest Service's response, 36 C.F.R. § 251.54(f)(5), even though such a limit is not necessary to render the regulation constitutional. Outdoor Systems Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir. 1993). The Forest Service may deny an application only on the basis of several carefully and specifically defined reasons, 36 C.F.R. § 251.54(h)(1)(i-viii), thus distinguishing this case from those in which a permitting authority is given unfettered discretion as to whether to grant a permit. Cf. Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059, 1062-65 (9th Cir. 1991), cert. denied, 504 U.S. 914 (1992). If an alternative place or time is available, the Service must offer this alternative. 36 C.F.R. § 251.54(h)(2). Denial of an application and revocation of a previously issued permit are immediately appealable under the APA. 36 C.F.R. §§ 251.54(h)(2), 251.60(a)(1)(ii).

medium or manner of speech or expression. The Rainbow Family, as well as all other groups, may gather for communication and : expression just as they did before, so long as they obtain the necessary permit and allow the Forest Service to carry out the congressional command to protect and preserve the national forests. "The regulation does not affect gathering in groups of less than 75 or gathering on non-National Forest System land, and if a permit is not granted, the Forest Service is required to offer an alternative time, place, or manner if one is available. 36 C.F.R. § 251.54(h)(2)." Black, at 11. The narrow nature of the regulation's restrictions demonstrates that ample alternative channels of communication remain open.

condition that was actually imposed upon him (or anyone else), nor even to a term or condition that the Forest Service ever threatened to impose on him (or anyone else). The reason for the abstract nature of Linick's arguments is straightforward. Linick never applied for a permit, and the permit that the Forest Service offered to the Rainbow Family during the Arizona Gathering did not contain any onerous terms or conditions. As result, this Court has no facts before it upon which to apply relevant First Amendment law, and Linick's contentions are simply too abstract and hypothetical to make them ripe for judicial consideration. In United States v. Herrera, 548 F.2d 1137, 1148 (2d Cir. 1978) (collecting cases), the Second Circuit held, "The constitutionality of a statute is to be considered in the light of the standing of the party who seeks to raise the question and of its particular application. It is firmly established that the constitutionality of a statute may not be attacked by one whose rights are not, or are not about to be, adversely affected by the operation of the statute." Linick's rights are not, and are not about to be, adversely affected by any allegedly burdensome term or condition in a Forest Service permit. Accordingly, Linick lacks standing to attack the terms and conditions portion of the regulation.

granting or denying permits, or standards for the type of terms and conditions the permit may contain. " Black, at 11. The Black court squarely rejected this argument, holding, "This Court disagrees and is of the opinion that the regulation is not an unconstitutional prior restraint." Black, at 12. Specifically, the Black court found that the "terms and conditions that the Forest Service may impose in a permit are limited to those designed to assure compliance with otherwise applicable health and safety standards; to minimize danger to water quality, fish, and wildlife, and other environmental aspects of the forest; and to protect the physical safety of all those in the National Forest System." Black, at 12.

6/ With one exception, all of the cases Defendant Linick cites dealt with ordinances that included no standards for the grant or

denial of a permit application, as opposed to the imposition of terms and conditions in a granted permit. This distinction is important. Given the wide variety of seasonal, ecological, geographical, and physical settings governed by the regulation at issue in this case, it is simply impossible to predict what terms or conditions may be necessary to allow the Forest Service to carry out its statutory mandate. The Forest Service must have some discretion to impose terms and conditions (many of which may be unique to a particular site, season, and manner of activity) to, for instance, protect those coming into contact with Rainbow Family members returning from a gathering from another multi-state shigellosis outbreak.

more than what the remainder of the regulation requires, namely, an evaluation by the Forest Service of the nature of the proposed use in light of regulatory requirements. The regulation thus allows the Forest Service to prevent monopolization of a National Forest System site by groups who no longer need it. The only alternative is to allow each group to determine for itself how long it wishes to occupy the site, a solution inconsistent with the Forest Service's duties to protect the National Forest System and to allocate space among competing users. Given the availability of judicial review of reasonableness of a permitting official's decision on this point or any other term or condition imposed in a permit, 8/ this portion of the regulation does not violate the Constitution.

thus, for the reasons explained above, lacks standing to raise this point. Assuming that Defendant has standing, given especially that the regulation does require a written explanation of a decision to deny a permit, 36 C.F.R. § 251.54(h)(2), the fact that the Forest Service need not address each separate condition in writing does not render the regulatory scheme unconstitutional. The reason for most of these conditions is likely to be apparent from their face. See, e.g., State of Texas v. United States, 756 F.2d 419, 427 (5th Cir.), cert. denied, 474 U.S. 843 (1985) (stating that courts should ''uphold a decision of - -'less than ideal clarity if the agency's path may reasonably be discerned'); Bowman Transportation. Inc. v. Arkansas-Best Freight System. Inc., 419 U.S. 281, 286 (1974). In the rare case where a court cannot determine the reason the Forest Service imposed a particular condition, it may request that the agency provide an explanation. See Cronin v. USDA, 919 F.2d 439, 442 (7th Cir. 1990).

constitutionally impose a condition requiring a permit holder to pay for the fire damage its members cause as means of carrying out the statutory mandate to prevent and deter forest fires.

foot the resulting bill. Memorandum of [Proposed] Amicus Curiae Arizona Civil Liberties Union of September 23, 1998 [hereinafter ACLU Brief], at 1-3. Unsurprisingly, neither of the cases the ACLU cites, nor any other decision, supports this proposition. Cox v. New Hampshire, 312 U.S. 569 (1941), and CFNFC v. Walsh, 774 F.2d 1515 (11th Cir. 1985), cert. denied, 475 U.S. 1120 (l986), both involved fees charged prior to an event regardless of the event's nature. In the Forest Service's regulatory scheme, a permit holder can avoid any liability whatsoever by requiring its members to be careful enough to avoid fire or other damage to the site. The acts of any "strangers" who "show up, " ACLU Brief, at 1-2, to an event such as a Rainbow Family gathering would not be imputed to the Rainbow Family because the strangers' acts would not be those of the permit holder 's.

For the foregoing reasons, this Court should deny Defendant's Motion To Dismiss.

Respectfully submitted,

JOSE de JESUS RIVERA
United States Attorney

(sgined)
SCOTT BALES
Assistant United States Attorney
4000 U.S. Courthouse
230 North First Avenue
Phoenix,. AZ 85025
AZ State Bar # 010147
ph: (602) 514-7500

Attorneys for the United States

September 29, 1998

FRANK W. HUNGER
Assistant Attorney General

THOMAS W. MILLET

(signed)
D. JAMES GREINER
United States Department of Justice
Civil Division Federal-Programs Branch
P.O. Box 883
Washington, D.C. 20044
ph: (202) 616-0673
fx: (202) 616-8202
VA Bar # 40774