North Carolina Rainbow Case

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA

               IN THE.UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF NORTH CAROLINA
            ASHEVILLE DIVISION


UNITED STATES,                       No. F-1469782
                Plaintiff,  

      v.                             


STEPHEN WINGEIER   
        
                Defendants

SEAN P; DEVEREUX
Attorney at Law
P.O. Box2868
Asheville, N.C. 28802
704/255-8085 OCT
FAX/251-2760 /996

BRIAN MICHAELS, OSB # 92560
259 East 5th Ave.
Eugene, Oregon 97401
541/687-0578
FAX/686-2137

Attorneys for Defendants

DEFENDANT'S MOTIONS TO DISMISS

DEFENDANT herein. Moves this Court for its Order Dismissing this action as follows:

1. Motion for Order of Dismissal for Selective Enforcement/ Malicious Prosecution/Abuse of Process.

2. Motion for Order of Dismissal Based Upon Regulations Written to Deprive Rainbow Gathering of First Amendment Activity.

3. Motion for Order of Dismissal Based Upon Regulation Granting Unfettered Discretion to Forest Service.

4. Motion for Order of Dismissal for Lack of Prompt Judicial

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Review of Agency Action.

5. Motion for Order of Dismissal Based Upon Defendant Wingeier's Absence of Mens Rea.

These Motions are based upon the Outline of Constitutional Issues filed herewith;

RESPECTFULLY SUBMITTED this day of October, 1996,

By:
BRIAN MICHAELS, OSB: 92560
Attorney for Mr. Wingeier

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II. REGULATIONS ARE WRITTEN TO DEPRIVE RAINBOW GATHERING OF FIRST AMENDMENT ACTIVITY.

No governmental interest is served by requiring a signature on a piece of paper, except to subject Defendant to criminal sanctions for exercise of Defendant's First Amendment activity.

36 C.F.R. Sec. 251.54(h)(1) states in part,

"An authorized officer shall grant an application for a special use authorization for noncommercial group use upon a determination that:
***
(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."

See Wisconsin v. Yoder, 406 U.S. 205, 218, 219 (1972) (A law that affirmatively compels \Defendant under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of his religious beliefs is unconstitutional. See also, Braunfield v. Brown, 366 U.S. 599, 605 (1961)).

III. REGULATION GRANTS UNFETTERED DISCRETION TO FOREST SERVICE

(the Regulations grant unfettered discretion to a) require "such terms and conditions [to a permit] as the authorized officer deems necessary", [1] b) the Chief of the Forest Sercice to insert additional terms and conditions in a permit without specific guidelines, [2] and to set the duration of the gathering.

[1] See 36 C.F.R. Sec. 251.56(a)(2).

[2] See 36 C.F.R. Sec. 251.52, which states, in part:

"Special use authorizations shall be issued, granted, amended, renewed, suspended, terminated, or revoked by the Chief [of the Forest Service], or through delegation, by the Regional Forester, Forest Supervisoir, District Ranger or other forest officer, and shall be in such form and contain

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in the permit.

[3] The unfettered discretion to include Permit conditions the Forest Service deems necessary is a de facto content based restriction in violation of Defendant's rights of assembly, association, and speech under the First and Fourteenth Amendments to the United States Constitution. City of Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750, 759-760 (1988); Freedman v. Maryland, 380 U.S. at 59; Cox v. Louisana, 379 U.S. 536 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969); United States v. Abney, 354 F.2d 984, 986 (1976); A Quaker Action Group v. Morton, 170 U.S. App. DC 124, 142, 516 F.2d 717, 735 (1975); Forsyth County , Georgia v. The Nationalist Movement, 505 U.S. 123, 130-137 (1992).

IV. REGULATIONS LACK PROMPT JUDICIAL REVIEW

The Regulations lack prompt judicial review when a forest officer determines a) that a noncommercial group permit is needed; b) whi is required to sign for a noncommercial group permit application; and c) that he or she will deny, revoke or [2 continued] such terms, stipulations, conditions, and agreements as may be required by the regulations of the Secretary and the instructions of the Chief." (Emphasis added).

[3] See 36 C.F.R. Sec. 251.56(b)(1), which states, in part:

" [E]ach special use authorization will specify its duration and renewability. The duration shall be no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorizaiton and to be reasonable in light of all circumstances concerning the use." (Emphasis added).

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suspend a permit.

See Freedman v. Maryland 380 U.S. 51, 58-59 (1965) (Only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression: only a procedure requireng a judicial determination suffices to impose a valid final restraint; the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license); Bantam Book,s v. Sullivan, 372 U.S. 58, 70 (1963) (Any system of prior restraints of expression comes to this Court bearing heavy presumption against its Constitutional validity. *** We have tolerated such a system only where it operated under judicial superintendence and assured an almost immediate judicial determination of the validity of the restraint); and City of Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750, 759-760 (1988).

V. DEFENDANT WINGEIER LACKED MENS REA.

Defendant wanted to immediately leave the area once he was informed that more than 75 people were on site and he would be cited for violation of the regulations. Despite Defendant's desire for immediate departure, Forest Service officers charged Defendant with use and occupancy of forest lands without a signed permit.

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CONCLUSION

For the reasons outlined herein, Defendant Moves this Court for its Order Dismissiong this Action

RESPECTFULLY SUBMITTED this 29 day of October, 1996,

Brian Michaels OSB #92560 Attorney for Mr. Wingeier

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Motion was served on the following attorney [] by depositing a copy in the United States Postal Service in a properly addressed envelope with adequate postage thereon, or [X} by leaving the same at his office with a responsible partner or employee.

Tom Ascik
Assistant United States Attorney
100 Otis Street
Asheville, NC 28801

This the 29 day of October, 1996.

PITS, HAY, HUGENSCHMIDT & DEVEREUX
137 Biltmore Avenue
Asheville, NC 28801
(704) 255-8085

By: (signed)
Jennifer C. King
Paralegal