I hope this edited version of the transcript is, despite its
less-than-neat appearance, more accurate and reads clearer than
the court reporter's product. And with this initial hope, i further
hope it proves helpful in the defense of those who have been,
or may in the future be cited by the Forest Service.
With Heart, Mind, and Spirit,
(signed Strider)
Strider [aka Michael D. Linick]
PO Box 3773.
Tucson, Arizona 85722
Oregonstrider@Yahoo.com
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, No. CR 98-502 PHX RGS
Plaintiff, Phoenix, Arizona
October 15, 1998
vs. 9:35 A.M.
MICHAEL D. LINICK aka
STRIDER,
Defendant.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE ROGER G. STRAND
UNITED STATES DISTRICT JUDGE
DEFENDANT'S MOTION TO DISMISS
Court Reporter.
William A. McNutt III, RMR
230 N. First Ave., Room 7404
Phoenix, Arizona 85025
(602) 253-0707
Proceedings recorded by mechanical stenography, transcript produced
by computer-aided transcription.
WM. A. MCNUTT III, RMR
2
APPEARANCES:
For the Plaintiff:
United States Attorney
By: PETER M. JAROSZ, Esq.
230 N. First Ave., Room 4000
Phoenix, Arizona 85025
United States Department of Justice
Civil Division
Federal Programs Branch
By: D. JAMES GREINER, Esq.
P.O. Box 883
Washington, D.C. 20044
For the Defendant:
MICHAEL D. LINICK, Esq.
In Propia Persona
WM. A. MCNUTT III, RMR
(Proceedings convened in open court at 9:35 A.M )
THE COURT: Good morning, ladies and gentlemen. This is the
time set for hearing matters on the court's criminal calendar.
Will the clerk please call the next item on the docket?
THE CLERK: CR 98-502, United States versus Michael D. Linick,
hearing on motion to dismiss.
THE COURT: Will the parties please note their appearances
for the record?
MR. JAROSZ: Your Honor, Peter Jarosz and James Greiner for
the United States, Your Honor. Good morning.
THE COURT: Good morning.
MR. JAROSZ: Mr. Greiner will be arguing the motion, Your Honor.
THE COURT: All right, thank you.
MR. LINICK: My name is Michael D. Linick, that is my legal
name, but here I'm Strider. And I'll be arguing the case on behalf
of myself as a pro per.
[Seated] next to me is Randall Amster, and he's a licensed
attorney-from New York, I believe. And he teaches at the university
here. He's just assisting me.
THE COURT: All right.
MR. PETERS: I'm Don Peters for the ACLU. I'm not planning
to say anything unless you tell me otherwise, but I'm here.
4
THE COURT: All right, that's fine, sir, and thank you for
noting your appearance.
And this is the defendant's motion and you may proceed.
MR. LINICK: Your Honor, do I do it from here or l do I step
to -
THE COURT: If you would do it from the podium, that would
be helpful.
MR. LINICK: -- the podium?
THE COURT: Just into the -- the microphone's a little better,
I think.
MR. LINICK: Good morning, Your Honor.
THE COURT: Good morning.
MR. LINICK: Before I proceed, the Court should have five documents.
And I'd just like to maybe do a quick inventory here, because
I don't know what actually the Court has physically received -
THE COURT: Well, I think that's a good idea.
MR. LINICK: -- or was actually filed.
THE COURT: Let me tell you what I have right now, then you
can tell me what perhaps I should have in addition.
MR. LINICK: Okay.
THE COURT: I have the defendant's motion to
5
dismiss, and it is -- let me get the date that you placed on it.
That would be September 16th. And then I've got the plaintiff's
response to that motion, filed on September 30th, and dated the
same date.
And then, I have your reply that is dated October 7th.
And then I have the government's notice of supplemental authorities
dated October 9th.
And that's all that I have.
MR. LINICK: Okay. You should have an amicus brief from the
American Civil Liberties Union, as well.
THE COURT: I do not have that before me. Perhaps counsel can
tell me when that was filed.
MR. GREINER: I know -- don't know the date, Your Honor, but
it was some weeks back.
MR. LINICK: I have that information, too.
THE COURT: The clerk tells me that it's in the file, although
we don't have a copy of it with the materials. I will give it
to the clerk at this point to make a copy, but we do have that
document.
MR. LINICK: Okay. And the other thing, just to make sure the
Court has -- 'cause there was a little confusion at the time,
I filed it -- attached to the motion to dismiss, there should
be actually five exhibits, motion to dismiss exhibits.
6
Two of them are quite lengthy because the Court has the preamble
to the final rule, which I will be discussing.
And both sides -- the government also submitted a version
of it, too, a copy of it in a different format.
THE COURT: Well, I have a document and I'm sure that probably
includes -
MR. LINICK: And the regulations themselves are attached to
[the Motion to Dismiss], a copy of those.
THE COURT: All right.
All right. Then I believe we have everything that is relevant
to the issues that you present, and you may proceed.
MR. LINICK: Thank you, Your Honor.
First of all, I want to address the standing issue, because
the government -
THE COURT: Well, the court finds you have standing. Okay.
MR. LINICK: Okay.
THE COURT: So you may proceed.
MR. LINICK: Thank you very much. That takes care of quite
of bit of argument.
36 CFR, which is referring to the regulation, provides --
and let me grab a copy -
7
THE COURT: Sure.
MR. LINICK: That's [Section] 251.56 It starts Subsection (a)
general: "Each special use authorization shall contain,"
and then there's a Subsection (1) and it lists some things.
THE COURT: Right.
MR. LINICK: Then it goes and says with that introduction of
Subsection (a):
"Each special use authorization shall contain ***
such terms and conditions as the authorized
officer deems necessary to --"
and then if you go to Subsection [(2)](vii),
"-- otherwise protect the public interest."
So this regulation gives the authorized officer carte blanche
authority to determine what is "in the public interest,"
which is a vague and overbroad term, and [to] impose any condition
that that individual deems necessary -- one individual deems necessary
-- "to protect the public interest."
And I submit that this language renders the entire regulatory
scheme unconstitutional because certain conditions could -- I
should say that we're dealing with First Amendment liberties and
rights involved in this case, the right to -- First Amendment
right to worship and religion, the First Amendment right to expression,
and the First Amendment right to association and assembly.
So, three different constitutional rights are at stake, are
involved.
8
This regulation gives one individual within the Forest Service
the right to attach any condition that he [or she] deems necessary
[to protect] "the public interest." And this is a fatal
defect in the regulations.
THE COURT: Let me ask you this.
If the court agreed with you in that respect, is it -- would
it be an appropriate option for it to simply declare that Subsection
(vii) is overly broad, and thus unconstitutional, but nonetheless,
go forward with the balance of the regulation if it deemed that
to be appropriate?
MR. LINICK: Well, I believe the Court could indicate that
[the Dept. of Agriculture] could go back and repeal that [sub]
section (vii) but right now, in -- of course it would require
-- whether Forest Service people would know of any decision you
made. If it was a published decision, it might give them guidance.
I -- I'm not sure that the Court is supposed to be rewriting
legislation. [The Court] could give an interpretation or construction.
That's often done.
THE COURT: I think generally we're not supposed to rewrite
legislation.
MR. LINICK: What's that? Pardon, Your Honor?
THE COURT: I think generally courts are not supposed to rewrite
legislation. I think we're often accused of doing that.
9
MR. LINICK: Right.
THE COURT: But we're not really to do that.
MR. LINICK: But in -- but that's not the only defect in these
regulations. I think the Court can say that as written it's unconstitutional.
[The Dept. of Agriculture] could amend it. It probably wouldn't
take them very much time if it's only to strike that one subsection
[(vii)].
But, everything that they've done to date is under this phraseology.
And it wouldn't have retroactive [effect] -- what this Court [does
re striking (vii)] shouldn't have any retroactive effect. Again,
it would be rewriting legislation.
Now, [the Dept. of Agriculture] could amend these regulations
to remove [subsection (vii)], but that would only take care of
one defect [in the current regs]. I'm also indicating that terms
and conditions that are deemed necessary "to protect the
federal economic interest" - - as opposed to property, the
Forest Service land - but [also] to this broad language of anything
that "protects the federal economic interest."
Which could be abandoning [the activity] because they have
to have too many law enforcement, or keeping it small, saying
[an event or activity] could only have 100 people there [on site],
because, otherwise it's going to cost us [the F.S.] a lot of money
to enforce it or something, or to supervise it, things of that
nature.
10
That [phrase "to protect the federal economic interest"]
gives, again, unbridled discretion. And that subsection also has
the additional defect, number one, not being a time, place and
manner type restriction, but also [the Dept of Agriculture] have
identified three interests that these -- why they're [passing]
these regulations.
And in none of them is there [a] significant government interest
that protects the financial treasury of the United States, which
is basically what this broad language is protecting, [this language]
"the federal economic interest". It doesn't even say
["to protect] the Forest Service budget."
So, they could determine anything, just gives them unbridled
discretion. So that's another particular defect in the regulation.
So the Court would not only have to say, well, (vii) is unconstitutional,
but the Court may also say that Section (2) Subsection (i) or
1, Roman numeral i is also unconstitutional, and then [the Court
is] going a step further in amending and rewriting this legislation.
That's the second point [in my Motion to Dismiss], a second
phrase that gives [the F.S.] this unbridled, unfettered discretion,
and it also does not meet any of their interests that they've
identified, which is 1) competing use, to allocate land fairly
among competing users, 2) to protect property and to protect the
Forest Service property, which is the real estate and land, and
the trees and those things,
11
and lastly, 3) to protect health and safety of people. And "protecting
the federal economic interest,'' it's just way overbroad, too
vague, and gives them unbridled discretion.
Another defect -- again the Court's going to be rewriting
-- this is my reading of Subsection Sub (b) -- is that the duration
shall be no longer than that individual -- that authorized officer
-- deems necessary to accomplish the purpose of the authorization.
This sounds like our gathering is a -- if the facts are ever
introduced that need to be introduced in this case. [The National
Gathering] used to be July 1st through July 7th. It's now been
changed by council, by consensus. The official dates are basically
June 28th through July 10th, and that's the period of time we
have determined [necessary for our National Gathering].
In fact, we have lengthened it because that's the period of
time that we feel is necessary for us to be on the land gathering
and doing what we're doing there, to express our views, and share
information, and share our music, which is a form of communication,
to share our prayers and to gather with each other and associate
with each other.
Under this -- the wording of this particular regulation -
we can apply, if we were to do so, for a permit for those period
of times and the Forest Service can come back and say, "Well,
we feel you could accomplish all that in three days. We'll give
you a permit for three days,"
12
rendering us, of course, illegal [beyond the three days]. We're
expecting to gather and exercise our constitutional rights at
least from the 28th [of June] through the 10th [of July].
So those are three defects in just "conditions and terms"
phrases. And as I go on, any time this Court has any questions
feel free to ask me.
THE COURT: All right.
MR. LINICK: And I do want to point out that I have -- unfortunately
the case [which preceded]mine; I was hoping mine would proceed
first so this -
THE COURT: I'm sorry. Say that again.
MR. LINICK: Well, I'd -- a case preceded mine that I was hoping
actually would not precede mine, a decision, that was the Black
case, a case which came out of Oregon as a published decision.
And the Court would probably want to know, well how is that
[case] different. And I could tell the Court that these issues,
as I presented these issues, were not presented to that court.
That [the Oregon] court was dealing mostly with other issues
in depth, and that's about "group"- whether the Rainbow
Family is a group or not, whether the group use definition falls
within it -- and about the APA procedures, et cetera.
There is mention, however, by Judge Hagarty * in that case
-- this is the Oregon case. It's Black v. Arthur,
[* "Judge Hagarty" is actually District Judge Ancer
Haggerty]
13
I believe is the short title for it, being the names of [the first
listed] people involved in that case. But, that case was not really
briefed about the issues that I presented to this Court.
I actually took an independent look at this. [There has been]
other litigation, of course -- there's a North Carolina case that's
now on appeal to the 4th Circuit. And the Oregon case is taking
place and the supplemental authorities included some Missouri
cases.
But, what I had done is I had taken a fresh look at these
regulations and I saw these very clear problems with it, very
clear unconstitutional aspects of this vague language of -- that
they could apply terms and conditions in "the public interest,"
that are deemed necessary in "the public interest."
I saw the phraseology, so I've briefed it in detail to this Court.
Judge Hagarty didn't have that benefit. All that happened-and
[the relevant page] is attached to my reply memorandum -- is the
plaintiffs in that particular case -- being a civil rights suit,
the plaintiffs were people who participate or attend gathering
events, Rainbow events -- but they, in just a sentence -- and
it's attached to the brief, it wasn't even a special point but
[some of the plaintiffs] mention that the terms and conditions
can give unbridled discretion. They don't talk, there's no mention
at all
14
about this phrase "and to protect the public interest."
There's no discussion at all in those memorandums from either
side [in Black] about the phrase "federal economic interest."
There's no issue presented at all in those cases about Subsection
(b), about controlling the duration [of an event or activity].
Basically Judge Hagarty comes back, looks at this as maybe
one point that [the plaintiffs] were raising -- [the plaintiffs]
were really raising objection to one condition that the Forest
Service imposes, that someone from the Family or someone associated
with the gathering has to sign for the permit, actually physically
apply, and sign, for the permit.
That's what [the plaintiffs in Black] were objecting
to. They didn't point out this language [in 36 CFR 251.56]. And
nowhere in Judge Hagarty's decision do you find where he says
this phrase "to protect the public interest" is not
-- does not give [the F.S.] unbridled discretion or [that it]
does give [the F.S.] unbridled discretion, [the latter of] which
would, of course, would mean that they would have won, the plaintiffs.
But nowhere does he discuss this phrase. He just takes it
out of [context], and in the response basically he says "no,
they could only apply conditions that are limited to protect the
environment, protect the health and safety."
And in fact, there are certain conditions in those subsections
that actually do that, in specific, objective terms -- terms in
which the Forest Service can [exercise], of course,
15
some discretion, [such as] to determine what will protect the
environment, what will protect public safety, what will protect
health.
But, nowhere in the phrase "in the public -- to protect
the public interest" does it use the words that it is limited
to these things that Judge Hagarty points out. So basically Judge
Hagarty didn't have the benefit of this -- these issues really
being defined and narrowed to -- narrowly given to him. He didn't
have that benefit.
He came back with just one line, without any discussion about
these particular phrases. And quite frankly, Judge Hagarty is
wrong in this aspect.
This subsection (vii) "to protect the public interest"
has no limitations. Any Forest Service line person could [think],
"I could do anything I want." There's nothing in it
that indicates that he's limited to the environmental interest,
public safety and health, and those items.
Judge Hagarty unfortunately didn't have the benefit of this
issue being really briefed in detail. This Court does.
And I would ask this Court to exercise judicial independence,
as the District of Oregon is bound by [the Black decision]
- but this Court has judicial independence and [the Black
decision] is not binding precedent upon it.
16
And I ask the Court to look at these particular phrases that
I point out and these particular problems with the regulations
in a fresh way, as I presented them, and see that there is no
limitation [upon] line officer, front line officers or the person
issuing permits to the known groups that appear that take 75 or
more persons or spectators to kick in this [regulation] for noncommercial
group use.
And in some cases if it's commercial use, then it would only
take maybe three people, four people, five people; they need a
permit, if they charge a charge, an entry charge or participation
charge.
So, there's many front line or lower line officers who are
giving permits out and making these decisions. And they have no
way to know that subsection (vii), about "the public interest,"
is limited as Judge Hagarty seems to suggest. It's just not there
that someone could read these and know that; it doesn't say that.
The other thing I want to point out is about the administrative
appeal system. And I do want to point out a case that the Court
should look at about how if an administrative appeal system is
set up, that if there's an indefinite time that it could drag
on, that's unconstitutional.
And that's Redner, R-E-D-N-E-R, v. Dean, D-E-A-N. That's a relatively
recent case. It's 29 F3d 1495. It's
17
an 11th Circuit 1994 case.
THE COURT: Well, I'm sorry. What was the page?
MR. LINICK: 29 F3d 1495. It's an 11th Circuit, 1994 [case].
And that's going to be helpful. I may discuss [it] -- I have a
few things I can point out to the Court from that case, but here's
a defect in this aspect.
And this [is], I believe,Point 5 -- there's seven different
points in my memorandum. I'm only going to be speaking to a few
of them right now 'cause I really need to point out some details
about these points, especially this one. But there's seven points
in [my memorandum of Points & Authorities]. I believe this
is the fifth one, but I could be wrong on the number.
And what -- I've looked closely at the administrative scheme.
What happens, the Forest Service can apply a term or condition
to a permit that [is] issued and [which] could have the effect
of almost precluding [the] particular event.
I could use an example among us that comes to mind. We use
slit trenches, the open style slit trenches for [human] waste.
And this has worked over the years. We have a protocol how to
deal with it, how [a slit trench is] supposed to be built, the
width of them, the depth of them, covering them with lime or ash
before they're covered over, where we put them.
So we have a definite protocol.
18
We have very talented people who participate [in] and attend
gatherings and know these things. I particularly don't. I'm not
a specialist in that area, but we have people who know water.
We have people who know, there's people who know, how to do the
slit latrines and trenches.
Well, the Forest Service could say, "Because of health
problems in the past we're going to require you to have port-a-potties."
Those bucks -- we call them bucks from where I'm from 'cause that's
the company -- I don't know what they're called here but it's
the little metal things you see at construction sites and they
have at events.
And they could say, "You're going to have to have one
of those for every 100 people that attend." And that would
be [prohibitive for] us as far as expense, because we don't deal
with money. We don't have money.
The only money we get, that anybody gets at a gathering --
basically there's not an exchange of money. We don't use money
other than [what] people put in a magic hat that goes around at
the dinner circles, and [people] contribute as freely as they
want.
And they don't have to. [If] people don't have money, [if
they] don't want to contribute, they don't. People have -- seem
to be awfully generous at times after the event begins if it's
a very feeling-good type event. If there's shades of
19
paranoia because the Forest Service [is] doing what [it's] doing,
that changes how people respond and such.
But when things are good, people are very generous. But this
doesn't happen in advance. This happens when the gathering's in
full force. So it happens if they were to require [rental] of
those port-a-potties, we couldn't have a gathering.
We -- we may want to appeal this to a judge. We may want an
independent person, [an] independent member of the government,
independent judiciary, looking at this term, because we believe
sometimes that the Forest Service may even impose conditions entirely
so that we can't gather.
So, we would want, again, [a] court, as fast as possible,
that a court look at this, [and] say, "Well, were you doing
slit trenches okay? Are they healthy? Would they pass a reasonable
man standard?"
And the administrative procedure sets out at Subsection 251.94(b),
that's 251 point 94 Subsection (b) in conjunction with 251.99(c),
sets forth the minimum time frame for a decision concerning a
term or condition [to wind its way] through the Forest Service
administrative appeals scheme.
What the first one [251.94(b)] does is allows after the complainants
- [those] who complain about a term or condition - files a notice
of appeal, the Forest Service, [through] the
20
deciding officer, has 30 days to respond [to the notice of appeal].
The decision under 251.99, Subsection (c) gives the reviewing
officer, 30 days minimum - it gives [him] that potential [period
of time] before he has to issue a decision.
So there's a minimum 60 days locked into this as a possibility
of how long it would take to drag a complaint about the terms
and conditions that were imposed [through the system to] exhaust
the administrative appeals procedure.
Section 251.89, Subsections (l) and (2), allow the reviewing
officer to grant an extension of time, for example, for the Forest
Service to file that initial response to the complaint, or [to]
the notice of appeal as they call it.
So, not only could it be 60 days, but the Forest Service [can]
say on the 30th day, "We still can't get our response in,
we need to get a little bit more information to attach to it.
Can we have an extension?" There's no limit on how long this
extension [may] be.
There's nothing that says it [can] be only 15 days, one 15-day
extension. There's no limit on how long [the] reviewing officer
who's an employee of the Forest Service can grant that extension.
There's other things. The reviewing officer can also ask for
[additional] information [Section 251.95(c)].
21
That could extend [the Administrative Appeal process] further.
And it also contemplates a reply to the Forest Service, too. [The
process] gives up to 20 days for a reply by [the] applicant or
by an intervenor [Section 251.94(c)]
So if an intervenor enters into it and asks, "We want
to reply to the Forest Service response," they have 20 days
to file that. So, in other words, this could go on for several
months. Well, the gathering can't wait while this winds itself
[through the Administrative Appeals process], and we exhaust this.
And I don't want to say that under Darby -- Darby
didn't involve constitutional and First Amendment rights, noncommercial
free speech, noncommercial free expression. And Darby is
cited by the government in its response brief.
And I don't mean to imply that the Forest Service under these
circumstances can't have an administrative appeal process that
we have to exhaust, or someone has to exhaust before they could
get into court for prompt judicial review about a term and condition
that could be very onerous.
I'm not saying that [the F.S.] can't have any, but it has
to be [prompt] in the area of where the event has to have a decision
[promptly] so you can get into court, [for example], a parade
permit many people apply for. Now, [the current] regulatory scheme
may be
22
appropriate for a business establishment trying to get a license,
because the only loss there is [is] lost revenue until it goes
through this administrative process, [perhaps] 60 days, 80 days,
100 days.
[This administrative appeals process] might pass constitutional
muster on something like that business establishment trying to
get a license to open up in a zoning area that they're not supposed
to and they're questioning it, or [respecting] terms and conditions.
But when we talk about someone applying for a parade permit,
that parade may be over by the time -- the time that is designated
[for the parade], by the date. [The designated date could be passed]
by the time you get through this system.
And the regulations, as far as applying for the permit, say
that you have to do it before 72 hours of your event. It's a real
quick one, because they saw the problem. It's set up that you
have to make the application "not less than 72 hours before
the event," are the words I'm trying to find.
So, [the regs] require that, and then they have 48 hours
to decide whether to give you the permit or not, and also under
what conditions.
So, [the F.S.] could deny [a permit], or give you a permit
within that 48 hours with conditions; if they don't do anything
within that 48 hours [the permit's] considered
23
granted just by operation of the regulations. And that's stated
within the regulation.
So if the Forest Service went back to the drawing board and
changed their regulations, saying, "Well, we do want an upper
line officer to review a lower line officer's decision on a condition
if someone has a complaint about it before they jump into court,"
they can do that all within a 48-hour or 72-hour period [from
when the permit is granted] through [fax], corrspondence, or whatever
it takes to get in there on that emergency [basis] or on that
type of scheme.
So [an administrative appeals process] that allows for 48-hour
review by a higher ranking officer could probably pass constitutional
muster, as long as you can then quickly get into court before
the event would be over, and [while] you can [still] have it and
get quick or prompt judicial review.
So basically what they could do is, as a hypothetical, and
I'm speaking of hypotheticals because this is a motion to dismiss,
and I believe the Court can, of course, take judicial notice of
the preamble of the final rule, and we both [the government and
I] submitted it. And, oh, I should go back to it in case I did
forget that, and I'm going to jump back just real quickly.
When we talk about that phraseology of "protect the public
interest" -- and I'm claiming that it
24
gives unbridled discretion to the line officer or the Forest Service
officers -- in the preamble, the Department of Agriculture actually
admits this. And they do it on page 44 of the government's version
of the [Preamble]. It's found at 60 Federal Register 45277.
And this again is jumping back a little bit, and I'll jump
forward to the administrative appeal process in a moment. But,
it says on page 44 of the government's version [of the Preamble],
it's actually Section 45277 "Under the proposed and final
rules, applications for noncommercial group uses cannot be granted
or denied at will, on the basis of prejudice, on the basis of
what might happen," and then this is the key, "or on
the basis of a personal interpretation of the public interest."
[The Department of Agriculture] themselves are admitting that
that is not the specific, objective standard necessary. And in
this case it's for granting or denying a permit.
I submit it's still vague, it's still overbroad, it still
gives that unbridled discretion as far as imposing conditions.
It goes on to say: "Rather, these applications must be
granted or denied on the basis of a specific,
25
neutral evaluation criteria at 251.54, Subsection (h)(1) that
vest little or no discretion in an authorized officer." Again,
I don't want to say that they can't have any discretion. It's
got to be, though, discretion exercised in the context of some
narrowly specific, objective standards, such as some of those
standards I'm not challenging.
Some of the standards in that particular section 251.56 I
recognize as those type of specific, objective standards. But
then they have this catchall, this last phrase of "protect
the public interest" that allows them to do anything they
want.
So I'm -- what I'm saying is the Department of Agriculture
even admits that my argument is correct.
There's also the point as I have standing, I should -- I'm
going to mention again also, before it slips my mind, is that
the last [point] I mention about commercial speech -- and I have
the right under the standing doctrines of -- in Shuttleworth
-- in Shuttleworth, which was a criminal prosecution, and
in [Freedman v. Maryland], and T.J. South v. Town of
Lowell I have the standing to, even if it doesn't apply to
me, I have standing to attack even those parts of the regulations,
and therefore commercial speech, which could just be people
26
charging a small participation fee, there the regs use for the
granting or denying of the permit that the authorized officer
can grant it or deny it in his discretion in the public interest.
And they use the words in the regulations "in his discretion
in the public interest."
And these cases are that -- that most of the cases talk about
how this applies to the granting and denying of permits. There's
language, of course, in cases about terms and conditions. But
most of them are, the cases that have come out of this chain of
authorities [are], about applying for and denying permits.
And here, for those people engaging in commercial free speech,
commercial expression, just by charging a small entry fee for
participation, of a few dollars to defray their expenses, that
gives that Forest Service officer, if he doesn't like those views
that this particular group is expressing, he could do this in
the public interest within his -- within his discretion. And there's
nothing to control that exercise [of discretion].
And so that's another defect which I'm asserting that I have
a right [to assert] under the case law.
In any event, so, as far as the administrative procedure is
[concerned], yes, they could, under Darvy and under the
fact that, yes, there could be exhaustion requirements, but it
can't be exhaustion requirements that is so
27
onerous and so burdensome and by the length of it that it could
cause you not to be able to exercise your constitutional right
to free speech and expression just because you're trying to weave
your way through; that they're granting extensions 'cause they
[may be] hostile to your views, or for whatever reasons, if you
need more information, and meanwhile the minutes are ticking away
on the clock while you want the event to take place.
And in our case we don't even know where our sites are until
[shortly before the start of the Gathering] and the evidence at
trial would show this. I'm just going to submit that we go up
to the highest elevations to do what we're doing. We go up to
very high elevations, 6,000, 7,000 feet, I believe have been some
gathering sites, and there's snow on the ground.
We don't find our sites until maybe a week or two before the
scheduled event and we have 72 hours after the application to
be before a Court outside the 72-hour period, but hypothetically,
we apply for it when we find the site, two weeks before.
They attach a term and condition, let's say about the port-a-potties.
We can't afford it; we have no money to do it. They're saying,
well, to challenge that you have to go through this, and actually
of this at least 60-day minimum.
And there, by the way, isn't only one level of review. [the
regs] actually provide for a second level of
28
review, too, within the administrative system, which may have
the same time periods except for, I think, the reply brief is
excluded on that.
But, there's a second level of review -- within their administrative
[appeal] process, which would again put additional length to any
decision before we could get into court, or anybody could get
into court.
And that's section 251.99 Subsection (d), which basically
there [is], at least in some cases, two levels of that [which]
you have to go through before you can have exhaustion, be considered
having exhausted [the] administrative appeal process and go into
court.
And that is not prompt judicial review, which is , necessary
when you're exercising noncommercial free speech, and the right
to associate, and the right to worship as you see fit.
I think anything else would be repeating myself.
Does Your Honor have any further questions?
THE COURT: Not at this point. We'll hear what your loyal opposition
has to say here.
MR. LINICK: Thank you, Your Honor.
THE COURT: Thank you.
MR. GREINER: Your Honor, my name is D. James Greiner. I'm
with the Federal Programs Branch of the
29
Department of Justice appearing on behalf of the United States.
Your Honor, I'll be making, in the broad sense, two basic
points today. The first is that I would like to revisit the issue
of standing.
And perhaps I've mislabeled it in light of Your Honor's question
this morning about whether Section (vii) of the particular portion
of Section 251.56(a) of the regulatory scheme that -- that the
defendant attacks is in essence severable from the rest of the
regulatory scheme, so that this case could go forward even if
this [Court] were to rule that Section (vii) were unconstitutional.
Perhaps I placed the wrong label on the argument that I wanted
to make.
I have phrased it in terms of standing, but perhaps I should
have phrased it in terms of severability. So I'd like to discuss
that particular issue with the Court, and then I'd like to address
why in the United States' view defendant is wrong on the merits.
Before I do that, though, I'd like to give the Court just
a very brief background of what the Forest Service was trying
to do in promulgating the noncommercial [group] use regulation
and the particular problems it was responding to, and the very
narrow set of regulations that it promulgated in an attempt to
respond to these problems.
30
Now, for several decades the courts have recognized the United
States' duty to protect public land and resources by regulating
the time, place and manner of expressive activity. And particularly
the courts have noted a danger to the public interest associated
with events involving extremely large numbers of people.
Now, in this record and the defendan'ts motion for, I believe
an extension of time or perhaps to exceed the page limit, it's
clear that the Rainbow Family gathering that gave rise to this
Information involved 25,000 people.
I'll note, Your Honor, that these Rainbow Family gatherings
and other events like them that are covered by regulation do not
take place in parks or in public streets. They take place in remote
and in some cases environmentally sensitive areas of the National
Forest system.
In the face of the dangers associated with groups involving such
large numbers of people, the Forest Service acted to protect the
public interest by promulgating the noncommercial group regulation
in 1995.
Now, this regulation requires that groups of 75 or more persons
wishing to hold an event in the National Forest system must obtain
a permit to do so.
The regulatory scheme narrow -- as defendant concedes, the
regulatory scheme narrowly describes the factors that the Forest
Service may consider in deciding a
31
permitting request. It requires a response to permitting application
within 48 hours.
It provides for prompt administrative and judicial review
of Forest Service decisions, and includes a number of other provisions
designed to cover the discretion of Forest Service decision-making,
and to assure the permit requests are acted upon in a neutral
manner.
Since the promulgation of the regulation, as we've shown the
Court, that three different District Courts have upheld the noncommercial
group regulation against constitutional attack.
They particularly like to discuss the Black v. Arthur
decision that the defendant raises. The Black court did
indeed pass upon the precise arguments the defendant is making
in this case. The defendant suggests that the plaintiffs in the
Black case were not -- did not provide the court with as
good a set of briefs as he provided in this case. But, that is
simply not a reason why this Court -- why that should not, why
the Black case should not stand as persuasive authority
for this Court.
And we believe that the Black's rejection -- Black
court's rejection of the arguments that defendant Linick makes
in this case are something that this Court should find persuasive.
32
Now turning to the arguments directly -
THE COURT: Well, what portions of the Black case are
you citing me to?
MR. GREINER: Well, I -- if you'll give me a moment to go to
the precise opinion, Your Honor.
There is a portion of the Black case which we quoted
in our brief that says that the Black plaintiffs argued,
and they phrased their argument in terms of prior restraint, that
the Black plaintiffs are arguing that the Forest -- the
regulation delegates to the Forest Service too much discretion
in both the criteria used to evaluate the permitting application,
as well as the terms and conditions portions of the regulations.
And the Black court rejected both of those arguments.
And in the copy that we submitted to the Court, because when
we submitted it, it was not yet available on Westlaw, the relevant
language occurs at page 12 -- pages 11 and 12, where the Black
court speaks of -- the label is C, "Prior Restraint"
by case.
That is the label that the Black plaintiffs used for
their argument that -
THE COURT: Well, let me see if I can find where you are. Where
are you in the -- do you have a Westlaw opinion in front of you?
MR. GREINER: I don't, Your Honor. But it's
33
Subsection C, labeled "Prior Restraint."
THE COURT: All right.
MR. GREINER: It would be 2 -- well, maybe 3(c) -- 4(c), excuse
me, because of the Roman numeral 4 is an analysis. Then there's
Section C, Prior Restraint.
THE COURT; All right.
MR. GREINER: That is the portion of the court's opinion that
deals with the arguments that were made, that the defendant is
making in this case. And the court rejected them.
Now, in terms of whether defendant has the ability to raise
many of the arguments that he does, what the Court asked the defendant
earlier this morning was whether this Court could rule that the
very last section, Section Roman numeral little (vii) of 256,
or perhaps 512.56, the portion of the regulations that he cited,
[is unconstitutional] and still allow the case to proceed against
this defendant. We believe the answer to that question is "yes,"
that this Court could rule, although we believe it shouldn't,
this Court could rule the portion of the regulatory scheme unconstitutional,
but it would not affect the case against this particular defendant.
And that is the essence of our standing argument. Perhaps
we have mislabeled it, but the argument that we're making is that
if acceptance of a particular portion of
34
defendant's argument is correct means nevertheless come to the
conclusion that the case against defendant must proceed on unchanged.
Then the Court should simply not reach the issue. It should
simply say that, "Resolution of this issue does not affect
the case against the defendant that I have before me, and therefore
that either the defendant has standing or that the portion of
the regulatory scheme is severable, or for whatever reason I simply
will not consider that argument because it will not affect the
chain of events against this particular defendant, the litigation
against this particular defendant."
So that is the essence of our standing argument. We think
it's fairly clear defendant is charged in this case with violating
a portion of the regulations that required him to obtain a permit
before using the National Forest system for this gathering. That
portion is 36 CFR, Section 261.10(k).
He has not been charged under the separate portion of the regulatory
scheme that prohibits failure to obey a term and condition of
a permit. That is a separate portion of the CFR.
The criteria that the Forest Service uses to decide whether
to grant a particular permitting application are codified at a
different portion of the regulatory scheme
35
in the terms and conditions, although we will be argue -
THE COURT: Well, clarify this for me. What are you saying
the charge is, that -- that -- that -- that the plaintiff here
did not secure a permit?
MR. GREINER: The charge in the Information specifically, that's
correct, Your Honor, yes. To answer your question, the charge
in the Information is for use of the National Forest system land
within a group of [seventy]-five or more persons without having
obtained a particular permit.
And that is prohibited by 36 CFR, Section 261.10(k), a different
portion of the CFR.
THE COURT: So what happened in that case was no application
or the application that was made was not acted on.
MR. GREINER: There was no application whatsoever, Your Honor.
And in fact, that's one of the reasons why we raised this argument
in terms of standing. Defendant or -- does not allege and cannot
aver that he or anyone else --
THE COURT: I understand that standing argument.
MR. GREINER: -- ever -- ever -- ever applied for -- ever told
the Forest Service how a particular grant or denial criterion
or a particular term or condition might affect their desire to
use the National Forest system -- system sites. There was simply
no application in this case.
And we believe that we phrased it, again in terms
36
of standing, that the -- that that simply carries things too far.
Shuttlesworth and its progeny allow the defendant to
challenge without applying for a permit, number one, the requirement
that they -- he obtain a permit, and number two, the criteria
that the Forest Service uses in deciding whether to grant or deny
a particular permitting application. It does not allow him to
take the third step of challenging terms and conditions regulations
that were never applied to him and that he was never threatened
with. And the "threatened with" language is the particular
-- is the particular language that's in the 2nd Circuit case that
we cited in our brief. The name of it escapes me at the precise
moment.
Therefore, the essence of the argument we're raising, Your
Honor, is that accepting basically all of the arguments in the
plaintiff's -- in the defendant's motion to dismiss as true, the
Information in this case, given the charge against him, would
still have to proceed.
And therefore, the considerations of judicial efficiency say
that this Court should not reach those arguments. It should simply
deny the motion to dismiss and allow the Information to proceed.
Now, turning to defendant's arguments on the
37
merits, one of the critical distinctions that the defendant I
believe is missing in this case is the difference between terms
and conditions regulations and criteria dealing with grant or
denial.
What the Shuttlesworth court and other courts were worried
about when they said correctly that the First Amendment required
a narrow -- or required that regulatory permitting schemes provide
definite criteria, was the specter of a group that wished to come
to a particular site use to hold a particular event, applied for
a permit, and the permitting authority simply said denied, and
you would have no reason to understand why that denial decision
was made.
And so they took steps, the courts took steps, for instance,
to encourage written denial so that there would be a reason on
-- stated on the record in addition.
But in the case of a permit which is granted, but pursuant
to certain terms and conditions, the imposition of the term or
condition by the permitting authority will in almost all cases
provide its own reason and its own basis for review.
To use the example that the defendant has provided in this
particular case, if the Forest Service were to say, "We will
need to have a port-a-potty or a --" whatever the proper
term is in Oregon, or in Arizona. I'm from South
38
Carolina, so I might use a different one, but whatever the proper
term is.
"We need to have a port-a-potty for 100 people out there."
The reason for a particular condition is evident from its very
face. The Forest Service is worried about sanitation concerns.
And therefore that provides a basis upon which a reviewing administrative
authority or a court can review a particular term or condition.
And so, there is a real difference between a grant or denial
of a permit pursuant to certain criteria, which the defendant
again does not challenge in this case, and the imposition of terms
or conditions that the permitting authority, in case the Forest
Service necessarily needs flexibility in dealing with in order
to deal with unforeseen circumstances.
Now, as an example of unforeseen or unforeseeable circumstances
I'd like to pick up on the defendant's theme of sanitation. At
one of the past Rainbow Family gatherings -this is detailed in
the preamble.- I mean it's actually cited and discussed in our
background section in our brief, there was a multi-state shigellosis
outbreak that required the Center for Disease Control to be called
in to deal with. This is obviously a very serious matter. And
it had to do with sanitation concerns because shigellosis is
39
spread by the contact of bare human feet, among other things,
with fecal matter.
And that is the kind of thing that the Forest Service needs
to -- flexibility in order to deal with and to regulate in the
public interest in order to do that.
And so, what we're dealing with here is the terms and conditions
portions of the permit -- permitting scheme, which are separate
from the grant or denial. And the Forest Service needs some flexibility
to tailor terms and conditions that will be applicable in many
cases only to the particular site in the National Forest system,
to a particular environmental and ecological setting, to a particular
season, and to a particular nature of a proposed use.
And I remind the Court that the National Forest system is
not like the -- in some cases the National Parks system. The National
Forest system stretches across the entire country, and includes
a variety of economic -- or excuse me, ecological and environmental
and other settings.
And a permitting authority attempting to write regulations that
deals with such a wide variety of situations needs to have some
flexibility to tailor conditions to a particular time, place and
manner.
Now, given this type of -- these types of considerations the question
really is not the one that I
40
think the defendant is asking this Court to decide, which is whether
the noncommercial group use regulations as written are susceptible
to an unconstitutional reading, but whether the Court can find
a constitutional reading which, by the way, is the one that the
Forest Service intended. And nothing in the Forest Service use
of the term "public interest" in the -- in the portion
of the regulation dealing with terms and conditions suggests that
the Forest Service has sought to vest itself with authority to
put whatever sorts of terms and conditions upon group events whose
message it disapproves of.
This Court, we believe, should follow the Black v. Arthur
court, and the Santa Fe Realty court. The Santa Fe Realty
court was a case cited by [defendant]. And we also cited it in
our brief in -- in both of those cases the courts' --
THE COURT; What's the difference between Santa Fe Realty
and the Black case?
MR. GREINER: Well, the Black case is more on point
because it dealt precisely with a particular regulation. The Santa
Fe Realty case is analogous because it was dealing with --
it was not dealing with the precise set of regulations here, it
was dealing with, I believe, a city ordinance that dealt with
terms and conditions.
And in both of these two cases the courts applied
41
a construction of the regulatory scheme that limited the permitting
authority to what the permitting authority was attempting to do
in the first place, which was to give itself the power to impose
terms and conditions that -- that show the kind of content neutral
interest that gave rise to -- for the need for the permitting
regulation in the first place.
And we believe that this Court should follow the Black
-- the Black decision and the Santa Fe court, and
adopt a similar construction of these particular regulations.
In the preamble, in the structure of the regulations as a
whole it is simply clear as a bell the Forest Service has not
sought to give itself a power to impose whatever terms and conditions
it pleases upon groups whose message it disapproves of.
And the Forest Service submits, or the United states actually
in this case, submits that's the proper way for the Court to deal
with this question, is number one do not reach it.
But number two, if it does reach it, to follow the Black
and Santa Fe courts and to adopt a narrowing construction
in the sense that it's the one the Forest Service intended, which
is not to give itself the kind of discretion that the defendants
would impute to it.
42
Now, in terms of some type -
THE COURT: Let me just interrupt for a moment. How much longer
do you anticipate your argument?
MR. GREINER: Actually, Your Honor, not very much longer. I'm
happy to take a break now, but unless the Court has any questions
-
THE COURT: Well, we'll take our morning recess. The Court
has other matters on the calendar, as well. And we'll reconvene
in 15 minutes.
MR. GREINER: Very well, Your Honor.
(Recess at 10:30 A.M. until 10:55 A.M. in open court.)
THE COURT: The record may reflect the presence of counsel.
You may proceed. And the parties, I should say. And you may proceed.
MR. GREINER: Yes, Your Honor. Again, D. James Greiner from
the Department of Justice appearing for the plaintiff United States.
I only have one or two more short things to say.
I'd like to briefly address the argument raised in the amicus
brief by the American Civil Liberties Union. I understand the
Court may have had a chance to review that.
THE COURT: I have.
MR. GREINER: Basically it makes it that the Forest Service's
First Amendment requires that the taxpayers foot the bill for
damage. That's a particular -
43
THE COURT: I'm sorry. What?
MR. GREINER: The taxpayers foot the bill for any particular
damages that a particular group causes for the National Forest
system in the context of a group event.
And the rule that the Forest Service has really promulgated
in this particular case, and it is through the terms and conditions
portion of the permitting regulation, so this argument is indeed
subject to all of the standing considerations we raised previously.
But the rule is, you pay for what you break.
And if that particular group causes damage to a National Forest
system site, they're responsible for the economic consequences
of it. And if a person, and in the context of a Rainbow Family
gathering the reason its folks are allowed on a particular site
that is in essence monopolized by Rainbow Family is some people
by some means, some members of the family or the group causes
damage, it has to pay for that damage.
And that is the -- that is the -- we believe the First Amendment
certainly allows the Forest Service and taxpayers, like any sub-land
set of land owners to say that a group that comes and wishes to
use their land, and causes damage to it by, for instance, cutting
down trees or negligently setting fires, will have to pay for
the resulting damage.
44
Finally, in terms of the timing matters the defendant has
raised, the time periods that he cited to you are all time maximums.
They are all time limits. There's a strong indication that the
Forest Service knows that it would have to act in many cases much
more quickly than the sort of string of hypotheticals that he's
spun out for you when he was before you.
And that is that the Forest Service requires that a person
asking for a noncommercial group use permit only has to apply
72 hours prior to the event. And so the Forest Service, by promulgating
that rule, certainly understood that if -- for any administrative
review to be meaningful, it would have to take place within that
-- within that time constraints set by that regulation and by
the application itself.
Now, the Forest Service has, of course, requested in the regulations
that any person or group desiring to use a particular National
Forest site come in as early as it possibly can, because the Forest
Service's experience in the past has been that many of the problems
can be worked out if the group will simply come forward, but as
stated -- and apply and discuss its concerns with the Forest Service.
But as I stated before in the context of the standing disputes,
there was no application in this particular case.
45
Therefore, I -- again, we believe that the defendant's attack
upon the time limits within an administrative review scheme is
really unripe and is really not properly before the court, because
we're so far removed from anything that happened in this particular
case that it's -- we believe it -- there's no -- simply insufficient
facts for this Court to make -
THE COURT: What do the regulations provide regarding -- in
that regard?
MR. GREINER: In regard to which?
THE COURT: Well, the timing that -
MR. GREINER: The regulations require that the Forest Service
-- that -- the Forest Service requires that a group wishing to
use a particular National Forest system site come in at [least]72
hours prior to the holding of the event. And as long as there's
72 hours prior to the holding of the event, then that -- they
are within the regulatory time limit. After --
THE COURT: Regulatory time limit for what?
MR. GREINER: For application. Otherwise the application can
be denied as untimely.
THE COURT: All right. And then, so suppose it is denied for
whatever reason. Then what kind of review process is there in
that regard?
MR. GREINER: It actually is an extraordinarily
46
complicated administrative process because parts of it depend
upon whether a particular decision was written or oral.
If my understanding of the regulatory scheme -and it is set
out in great length in the copy of the regulations that the defendant
has submitted, is that certain -- certain decisions are immediately
appealable, but -- within the regulatory scheme, but only if they
are written, and others are if they're oral. Then the party's
entitled to go directly to District Court.
THE COURT: Wasn't that part of their objection, is that if
the regulatory scheme as it's written doesn' t assure them of
the opportunity to have their application for a permit reviewed
and ruled upon in a manner that would be timely for a large group
to plan its organization?
MR. GREINER: And what we're -- that's correct, Your Honor,
they did make that statement. What we're suggesting in response
is that, number one, a great deal of that is within their control
because they're required to come in in 72 hours, but they can
certainly come in much earlier. And if they do, then there will
obviously be the time allowed for this type of more considered
review. But they don't --
THE COURT: Let me just ask you this. Notwithstanding the fact
there's variation depending upon