Barry E. Adams,
Appearing Pro Se
P.O. Box 8574
Missoula, MT 59807
Msg./Fax: (406) 825-0044

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

________________________________________

                                                Cause No. CR-00-5037-GF-RFC 
UNITED STATES OF AMERICA,
                Plaintiff, 
				
         vs.
		                                 MEMORANDUM IN SUPPORTOF MOTION TO DISMISS
BARRY ADAMS,
                Defendant, Pro Se. 
				                            (Oral Argument Requested) 
_________________________________________

COMES NOW THE Defendant, Pro Se, and files with this Court this Memorandum in Support of Motion to Dismiss.

MOTION

The regulation 36 CFR 251 and 261 is unconstitutional in this application because it unfairly discriminates against this individual on the basis of his personal spiritual orientation as expressed in his viewpoints, culture, beliefs, faith, and creed. This viewpoint discrimination has interfered with defendant’s First Amendment Rights, including his freedom of prayer, worship, speech, expression, petition, and assembly. Therefore defendant respectfully moves this court to affirm that charges against the defendant shall be dismissed.

ARGUMENTS

A.

Defendant Adams makes his argument in this case that the Forest Service permitting scheme has been unconstitutionally applied to him as an individual, 1/ and as a result he was cited under a “group” use regulation. Adams contends, in this case, for him to be issued a citation, he would have to be someone “qualified” to be cited, by the “discretion” of the Forest Service. Adams would not only have to be a “participant”, or a “spectator”, who has attended the assembly of individuals, called “Gathering of the Tribes 2000”, but he would have to be a “member” and one of the “leaders or agents”, a potential “designated signer” of the “group” called “Rainbow Family of Living Light”, the potential “Holder” of a permit for ‘group” regulation, for “use or occupation of national forest systems lands”, for the “Gathering of the Tribes 2000”. see Attachment A, “Gathering of the Tribes 2000” This “group” and its “members” are whom the Forest Service considers to be criminally liable for violation of this “group” use application and permit process. This group as defined by the Forest Service, and various Courts:

“members of the Rainbow Family, a loosely structured group of people who gather periodically on National Forest land to pray for peace and to discuss political and environmental issues. Their gatherings have occurred at least once annually since 1972 and have become more frequent in recent years. Attendance at the weeks-long events can exceed 20,000 people.” Black v. Arthur, 201 F. 3d 1120, (9th Cir. 2000), affirming, 18 F. Supp. 2d 1127 (D. Or. 1998)

To pursue their prosecution of Adams, Forest Service, at their “discretion”, years ago identified Adams as a “member”, and one of the “leaders or agents” of this “Rainbow Family”. In a recent civil case, Black v. Arthur, 201 F.3d 1120 (9th Cir. 2000), where Adams brought suit against the Forest Service, only as an individual, not as part of any group, he was “tagged,” or identified, as a “member” of this “group”, by the court. 2/

Defendant Adams maintains, in accordance with his personal faith, he is not now or ever been, nor can he ever be, a “member” of the “Rainbow Family of Living Light” as the government conceptualizes it to be, let alone be considered one of its “leaders or agents”. Defendant Adams affirms that his spiritual/religious faith, his “creed,” 3/ precludes him from being a “member” of any “religious group”, particularily the Government sponsored version of the alleged “religious group” defined by the Forest Service, i.e., “Rainbow Family of Living Light Inc.”, “Rainbow Nation” or “Rainbow Family unincorporated association”.

B.

In a recent decision, White v. Lee, the Ninth Circuit Court of Appeals stated firmly that “(i)n the First Amendment context, courts must look through forms to the substance of government conduct.” See White v. Lee, --- F.3d ----, 2000 WL 1407125 (9th Cir.(Cal.)), No. CV-95-01757-MHP (Sept 27, 2000). 4/

In the present case, Defendant Adams finds himself facing prosecution by a plaintiff he has faced before, under similar situations, who is again prosecuting him for similar charges. Adams asks this Court to look beyond the form and into the substance of the government’s application of the regulation, Title 36, C.F.R. 251 and 261, which has, again, effectively “chilled” the Defendant’s right to practice his spiritual “Creed,” i.e., the beliefs and practices of his personal faith.

Specifically, this regulation, at Section 251.54 (g)(3)(ii)(h), requires that “a person or persons 21 years of age or older have been designated to sign a special use authorization on behalf of the applicant.” The government’s application of this section of this regulation has wrongfully suppressed, overtly and covertly, Adams’ beliefs and practices, and is an egregious form of “viewpoint discrimination.” 5/ See Spence v. Washington, 418 U.S. 405 (1974).

On July 2, 2000, Adams was cited with criminal charges and burdened with the threat of imprisonment and fine as a consequence of practicing his longheld Creed.

As the 9th Circuit court recognizes in White v. Lee;

“Informal measures, such as "the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation," can violate the First Amendment also. Id. [FN8] This court has held that government officials violate this provision when their acts "would chill or silence a person of ordinary firmness from future First Amendment activities." Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999) (citation omitted).” White v. Lee, --- F.3d ----

The Defendant’s right to First Amendment protections is supported further by the decision in Church of Lukumi Babalu v. City of Hialeah, 508 U.S. 520 (1993). 6/

In previous cases concerning this regulation, the government has argued, and in various cases the Courts have concurred, that this Regulation is content-neutral and can stand to Constitutional tests. 7/, including the “designated signer” part of the rule. 8/ It is important to note, however, that facial neutrality does not preclude the possibility that the regulation discriminates against a particular viewpoint when applied in a particular context. 9/ See Church of Lukumi Babalu v. city of Hialeah, 508 U.S. 520 (1993).

Defendant Adams contends, whether or not the form of this Regulation is in fact facially or content neutral, in practice, it singles out Adams beliefs and practices for prosecution.

Moreover, the Plaintiff, in accordance with its policies concerning Civil Rights and Non-discrimination, should seek to alleviate this discriminatory effect. See Civil Rights Handbook, USDA Forest Service (date/code). 10/ Indeed, the Justice Department, in an amici brief supporting portions of the Religious Freedom Restoration Act (RFRA, 1993), as it relates to federal statutes, maintained,

“RFRA thus prohibits federal laws, such as the Fair Housing Act, from being applied so as to "substantially burden a person's exercise of religion" unless the application of that burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. 2000bb-1(a) and (b).” Thomas and Baker v. Anchorage Equal Rights Commission, --- -- --- (9th), Nos. 97-35220, 97-35221, Brief for the United States as Amicus Curiae Supporting Appellants and Urging Reversal, Add. B, Excerpts from Plaintiff-Appellant's Brief in Heart of Atlanta Motel, Inc. v. United States, No. 64-515 [51-55].

The current Regulation “substantially burdens” Defendant’s “exercise of religion,” and is far from constituting the “least restrictive means.”

C.

The “Roots” of the present citation of Barry Adams, AKA Plunker, begin in Federal District Court of Texas, in 1988, in a Civil Suit brought against “Rainbow Family”, “Rainbow Nation”, and Adams as a named defendant. See U.S. v. Rainbow Family, also Barry Adams, Pro Se, 695 F. Supp. 294 (E.D. Tex.1988). In that case, Forest Service and Justice Department Attorneys sued Adams under rule (17)(b) of Rules of Procedure, and Texas Incorporation Laws, and under Rule 4(d)(3) of the Federal Rules of Civil Procedures. 11/

In Texas, the Government notably submitted as evidence, certain individuals’ personal interpretations, their viewpoints and beliefs, even documents submitted in other Courts by persons in affinity with what is called “Rainbow Family.” The government put forward one such viewpoint, notably “Rainbow Nation” version among many, as if it constituted a factual or objective account of the beliefs and practices of “Rainbow Family.” The “Rainbow Nation” viewpoint, based largely on the views of Eugene Hector, AKA Michael John, includes court documents, a defined set of beliefs and practices, complete with religious “offices,” e.g., “spiritual focalizer of the healing arts,” “keeper of the holy water,” etc. See Attachment B, Exhibit A, U.S. v. Adams, 695 F. Supp. 294 (E.D. Tex.1988), The government, in seeking “agents or leaders” of “Rainbow Family”, in order to pursue suit, supported this hierarchical viewpoint even though it was contradicted and objected to by Adams’, appearing Pro Se, and other individual accounts (in fact, regardless of testimony or documents entered in this case, of filings by various individuals, in other courts, some on behalf of “Rainbow Family”, no legal proof was presented that these filings were legally authorized by “Rainbow Family”, only by the persons doing the filing). Adams testified on behalf of his own defense. 12/

Despite the doubts cast on the government’s supported version of “Rainbow Family”, and on whether they had been properly served and whether they were a proper class, the court’s ruling supported the government’s interpretation by endorsing an interpretation of “Rainbow Family” as being the same legal entity as “Rainbow Nation”and as an organized body capable of selecting “agents”.

“[1] The first question for consideration is whether the defendant Rainbow Family, also known as the Rainbow Nation, the Rainbow Family of Living Light, and the Gathering of the Tribes, is an entity subject to suit and against which an injunction might be entered.” ...
“The evidence reveals that the Rainbow Family, although informal and loosely-knit, nonetheless operates as an organization, with decision-making "councils," individuals who acts as agents, representatives, or leaders on a voluntary basis, and which has an informational network.” U.S. v. Rainbow Family, 695 F.Supp. 294, Judge’s Opinion [June 1, 1988].

Since that time, Defendant Adams, and others, who objected to this version of “Rainbow Family,” have been prosecuted because of their difference of their beliefs 13/ from the government’s description upheld in that case. The government’s de facto determination of what constitutes the “rainbow creed” has “entangle(d) the State with religion.” See Spence v. Washington, 418 U.S. 405 (1974) 418 U.S. 405 No. 72-1690. 14/

The current regulation 36 CFR 251, proposed in 1993 and promulgated in 1995, was published with repeated references to “Rainbow Family” as a specific group, and the Texas case.

As recently as last fall, 1999, in U.S. v. Kalb, Beck and Sedlacko (W.D. PA 2000), heard before the U.S. District Court for the Western District of Pennsylvania, Incident Commander Bill Fox testified and supported this viewpoint of “Rainbow Family.” In this case, the district judge supported the introduction of evidence by the Forest Service to support similar claims and definitions as to what is “Rainbow Family”, and “who” is “Rainbow Family.” see U.S. v. Kalb, Beck and Sedlacko (W.D. PA 2000), Gov. Ex 3. Again, “Rainbow Family was represented as a specific “group” etc. with certain practices and certain trappings of an organized religious group. The governments evidence in this case includes independent publications that affiliate themselves with gatherings; “All Ways Free,” “Rainbow Guide,” i.e. Rainbow Nation Directory, and “Mini-Manual,” are not official documents but reflect various person’s individual versions of “Rainbow Family.”15

In the Pennsylvania case, the Court, in its Opinion, accepted the Government’s definition of “Rainbow,” based in part on the Government’s exhibit 3, entitled "Rainbow Guide" (Gov. Ex. 3). In fact, the entire Rainbow Guide is only a few peoples version or viewpoint of what is “Rainbow”. The government uses these viewpoints to support its claims because this viewpoint fits in with the government’s licensing scheme, not because it is represents a factual description of “rainbow.”

The “Rainbow Guide” cited by the government in Pennsylvania includes a description of a “Main Council” (p.8) as follows:

“MAIN COUNCIL - Main Council is held at rainbow noon in Main Meadow to deal with the business of the gathering and provide an open forum for anyone and announced by 3 repeated blowings of the conch shell. It is the only time decisions affecting the Gathering can be made.”....
“At Main Council in New Mexico it was consensed (sic) that the Annual Gathering and the council should begin on June 21 and end on July 10 allow more time to synthesize our community and The Rainbow Family Tribal Council. ...This controversial decision begs us to look at the purpose and form of Main Council.”

The defendant Adams disagrees with this government supported viewpoint and, as an individual, has petitioned this agency, and the courts, notably in 1997, Adams v. Arthur 201 F 3d.1120, 1123-1124 (9th Cir. 2000), for judicial review of this licensing scheme.

To Adams the ‘Rainbow Family” is not a “who” or a “what,” but a “Tao” or “Way”, or Creed. “Rainbow Family” is a spiritual ideal, and no one can legally file in court for “Rainbow Family” anymore than they can legally file in court on behalf of “Jesus Christ”. The “Annual July Gatherings” sponsored by the “Rainbow Family,” are “peaceable assemblies for purposes of expression,” the essence of which is the Prayer Circle in Silence on the Fourth of July. According to Adams “personal beliefs,” this Circle is Open in the Center (i.e. the focus of Gathering) so that no single person, group, ideology, creed or practice, will dominate or displace any other. The Circle represents an inclusive and balanced, or equitable, relationship among all viewpoints. Some groups, or individuals who peaceably assemble, “rainbow-way” sponsor ideologies and viewpoints that are hierarchical in nature. Some have elders, some leaders, some have strongly delineated hierachries existent within their religious group i.e. Khrisna’s for example, other Fundamental Christians, Hasidic Hebrews, Buddhists etc... While at Rainbow-Way Gatherings, these groups and individuals maintain their own hierarchies within their own encampments, within their own persons, however, they do not seek to impose their hierachial ways on others who are Gathered on the common ground of the Gatherings. Instead they share their viewpoints and their ways, as others do who share their viewpoints and ways who are non-hierachial, in respect to others who are present, in respect to the common guiding principles of the Gatherings of peace and sharing, equality and tolerance.

Every individual, and every group, through their own expression of Peace, tolerate one another, i.e. the nature of a peaceable assembly, share the common ground with one another, i.e. places that are not personal encampments. As long as the Circle is Open to All, and the Center of this Circle remains open, there is a “potential” for each person to have an equal opportunity to share their viewpoints, beliefs, practices, creeds, speech, expression.

According to Adams personal belief, this Circle can only form where there is no ruling hierarchy or group, or ideology specifically in charge; no one viewpoint, and no persons or person, can “run the show” if all are truly equal. These individuals, Adams among them, will peaceably assemble, join in this Circle, with other peoples, groups, individuals as long as the assembly, ‘Gatherings sponsored by the Rainbow Family”, or other assemblies, as long as there is no ruling hierarchies, no official, or unofficial leaders etc. Many individuals and groups that will peaceably assemble in affinity with other peoples, groups and individuals to celebrate their common humanity, do not thereby intend to organize as a unified ideology, unincorporation or adopt official views or membership responsibilities. The spiritual affinity of the Circle, is one that allows the natural differences between individuals to be maintained within an “inclusive” process or way of gathering, without pressure for conformity. The enactment of the circle is in its essence a “voluntary” expression on the part of every individual, regardless of their personal disposition or beliefs concerning the authenticity of hierarchical authority. According to the Rainbow Creed, as practiced by Adams, all are Welcome; the nature of worship, speech, association and assembly, in the Rainbow-style, is one of acceptance of all people regardless of whether they believe in hierarchical Creeds or not. While the government may believe differently, this does not diminish Adams’ right to First Amendment protections;

"Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981).

Further, according to Adams’ viewpoint, the National Forests, as public lands, are the appropriate setting for this Annual Gathering, not simply because no other place can accommodate such large numbers, but because public land is a traditional commons. Gathering on land shared in common and held in common, re-enforces the framework that no ruling ideologies, no rulers, no hierarchy prevails. Hence any person who comes, experiences their equal standing in the Circle, as well as their equal right to be on public land, on the common ground, with an equal say in what happens. The Forest Service rejects this non-hierarchical, inclusive form of assembly and ceremony, and objects to Adams’ personal views based on his “Rainbow Creed”. Forest Service know Adams is an outspoken proponent of his faith and of his rights, and he expresses the viewpoint: First Amendment of the Constitution guarantees him religious liberty and access to the national forest (other public lands) , for the practice of his Creed. The current citation was issued to him mid-speech; he was ticketed while expressing his views concerning this regulation, in order to “silence” his speaking out on Forest Service policies. See Attachment C, Citation Report. “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).16

The signature requirement on the special use application and permit allows the Forest Service to force their preference for hierarchy on large assemblies of individuals. Under this requirement, an assembly of 75 or more individuals on the national forest must either organize into a recognizable group and adopt a hierarchical order, i.e., the capacity to designate “legal agents or representatives,” or else be denied legitimate access to public lands.17 See Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972).

Furthermore, the Forest Service has created a regulation designed to require a designated “paper chief,” or “designated signer;” or alternately, to prosecute individuals, spectators or participants, whom they regard as potential agents of the assembly. Defendant Adams received the following response from the government when he inquired as to the acceptability of applying for special use access to National Forest to gather an assembly of persons of 75 or more persons, as an individual in search of a forum/soapbox, and signing such application as “contact,” as an alternative to falsely presuming to be“legal agent” for an assembly of autonomous individuals. See Attachment D, Bschor letter, USDA Forest Service, W.O. (May 2000):

“The hypothetical noncommercial group use application included in your March 28, 2000 letter is insufficient in several respects, however. the primary deficiency in the application is inclusion of your name or the name of the group. Under 36 C.F.R. 251.50(c)(3), noncommercial groups of 75 or more people must submit an application and receive a permit for the Forest Service before gathering on National Forest System lands. The Rainbow Family of Living Light, a noncommercial group, will be gathering on National Forest System lands this summer in numbers exceeding 74 people. Therefore, the Rainbow Family, not Barry Adams, must apply for and receive a permit for that gathering. Barry Adams or someone else who is designated by the group must complete and sign the application and sign the permit on behalf of the group. The courts have uniformly upheld the right of the Forest Service to require someone to sign the application and permit on behalf of the group.”

Instead of respecting the internal processes i.e. political beliefs of minority people who peaceably assemble to practice their Creed, the Forest Service designed a licensing scheme specifically set up to stop individuals, like Adams, who seek to practice a Creed, a way of unity that involves non-hierarchical forms. Rainbow-style Gatherings are an organism, a peaceable assembly, not an ‘organization”, incorporated or unincorporated.

In summary, the Forest Service has difficulty in managing, or dealing with the diversity of persons, individuals and groups who attend these Gatherings, which became known as Rainbow Gatherings, actually Rainbow-Style Gatherings, and the internal processes at work within these Gatherings, processes well-known to the Forest Service. Confronted with this management problem, Forest Service developed the current form of 36 CFR 251 regulation, including in it certain criteria targeted against Adams Viewpoint of “Rainbow Family”: non-hierarchical, inclusive, with the right to access the public lands for prayer, worship, speech, assembly, association, petition, guaranteed by the First Amendment: supporting in the regulation only the beliefs and viewpoints of those who believe “Rainbow Family” i.e. a “group” capable of “appointing an agent”, a “paper chief”.18

The government has stated repeatedly the people who come to Gatherings can legally ‘appoint an agent or representative’ but they simply won’t.19 In fact, no such process within ‘Rainbow-style’ Gatherings exists; nor can one, and maintain the essence of the expression of this peaceable assembly. Confronted with resistance from persons like Adams, who feel their Creed is subverted via this ‘permit’ scheme. The government furthers its “coercion” through public claims that Adams and others like him are ‘scofflaws” etc.. Forest Service has instituted an “Incident Management Team” and deals with the advent of these persons peaceably assembling, as an “emergency”, makes inflammatory statements in the press, contacts local law enforcement, alerting them to the lawless nature of this “Rainbow Family of Living Light”. See Attachment E, Fox letter requesting “emergency status”, and Fox letter to Mike Batista.

All of this acts as a “chill” to discourage Adams, and others like him, from seeking to exercise his First Amendment rights. Individuals, 75 or more, seeking to access national forests (or other public lands) for purposes of assembly must either conform to the ‘hierarchical viewpoint’ furthered in the Regulation, or be prosecuted, or leave the public lands.20 In Adams’ view, it would be easier to “appoint” a ‘representative” to be a ‘paper chief’ for a combined “group” of the People of Israel and the People of Palestine than it is to “designate’ a ‘paper chief” for the Peoples, Individuals and Groups who attend annual “Rainbow-style” gatherings.

This is similar to the situation addressed in the case concerning the “Santeria Religion,” Church of Lukumi Babalu v. City of Hialeah, 508 U.S. 520 (1993). In place of the “Santeria” worship, i.e. Church of Lukumi Babalu, with a centered theme of “animal sacrifice”, this Court has individuals, adherents to a spiritual Creed, whose centered theme is a “Circle of Peace.” Annually (and at other times throughout the year, throughout the Earth), on the Fourth of July, a Circle in Silence for Peace on Earth, Open, Free to All, and the entire World is Invited. Adams and thousands of folks who share a similar point of view about Circling in Peace, in this Way, come togather, in peaceable assembly on National forest land.21 Some are adherents to this Rainbow Way of Gathering, (as Adams perceives it), others among the multitudes, adherents to various creeds and religions or perhaps just plain folks, who come to share this “Ceremony”. For nearly (30) years, these Rainbow-style Gatherings have been happening every July 1-7, main days.

All kinds of internal processes go on within these Gatherings. Peoples who ordinarily may not associate or even tolerate one another i.e pro-choice and pro-choice, animal rights activists and hunters and fishers, Hebrews and Palestinians, Khrisnas (many different sects) and Fundamental Christians, anarchists and religionists, “hippies” and “straights”, individuals who believe marijuana is a Sacrament and/or medicine and people who are “down” on folks who do what they consider to be drugs.

All these different folks, sharing a common ground, a common peaceable assembly, in the Rainbow Way: All are Welcome, come in Peace.

The Rainbow Way of Gathering is a miracle to behold. For the Circle of Peace to happen, there must be no ruling ideology, no rulers, no leaders; there must be perceived equality on the common ground, of the Gathering. Individual choice, individual responsibility, individual pursuit of happiness; faith in the individual to make the right choice and the individual will do so, because after all that individual has come, of his/her own free will to this Rainbow-style Gathering.

Seeking some form of Peace, for themselves, these individuals find Peace through tolerating others, even those different than themselves, who in turn tolerate. The Unity and Peace of the Rainbow-style Gathering is only achieved through this mutual respect individuals connect with, when they gather in equality with one another; no different it would seem than the Peace sought in the World, by everyday people.

And what is the real problem here? Why the emergency situation? Why is Adams or others like him being harassed and prosecuted off the public lands? It is because of a supposedly “content-neutral regulation of general applicability”, whose functions is to ensure health, public safety, environmental concerns. And partly because of its signature requirement: to assemble with more than 74 people on public land, you must become a recognizable group, must designate a signer, who acts as the legal agent or representative of this group. Not just a “contact’ for the assembly of individuals, but a “paper chief”.

This culturally insensitive regulation imposes “religious hardship” on Adams and similarly situated individuals. The government’s argument in Appelle Brief in the Pennsylvania 1999 should suffice to sum up why the government has bestowed this “membership” on Adams:

“The difficulty is, of course, that any group with any set of views could make the same choice that the Rainbow Family alleges it has made. No personal belief system, no matter how deeply and sincerely held, whether religious or political or otherwise, can justify refusal to comply with an otherwise valid, generally applicable law such as the noncommercial group use regulation. Cox. 312 U.S. at 574 (“One would not be justified in ignoring the familiar red traffic light because he thought he had a religious duty to disobey the municipal command or sought by that means to direct public attention to the announcement of his opinion.”); Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 878-80 (1990). This is not the law. See Masel, 54 F. Supp. 2d at 920 (“T]o credit defendants argument would allow the Rainbow Family or any other group to avoid the permit requirement simply by maintaining that it had no leaders or agents that could sign the permit, thereby gutting the entire special use authorization scheme.”) See U.S. v. Kalb, Beck, and Sedlacko, Crim. No(s) 99-0074ME, 99-0075ME and 99-0076ME (W.D.Penn., 2000), [pg.23].

D.

Defendant Adams was cited as a “participant”, not as a leader or agent. Adams stands apart, as an individual, not of any group, in accordance with his faith, or creed. Adams attended the Gathering, as an individual. Adams entered the national forest to pray and to worship, seeking religious liberty.

Unaware whether someone from the “Rainbow Family” - as defined by the government, had signed a permit, on July 2nd, 2000, in mid-speech Adams is cited. The bestowed “membership” made Adams, potentially one of the “leaders or agents”, ripe for prosecution.

The government wants Adams to accept the bestowed “membership”, in this religious group not of his choosing, not in accordance with his Creed. Further, Adams must accept being a leader or agent, of this religious group, accept some title like “elder’ or ‘designated signer”, also not in accordance with his Creed. Or not enter the national forest to pray, worship, speak, if there is a likelihood 74 other folks will be in the same area (whether he would be there or not). Or be cited under this regulation.

Forest Service has discretion as to who can be cited. There are exceptions:

“C. Group use, which Forest Service regulations define
as “an activity conducted on National Forest system
lands that involves a group of 75 or more people, either
as participants or spectators,” is not vague or overbroad.
Contrary to defendants’ assertion, the rule clearly does
not apply (and has not been applied) to individuals who
“show up for a few minutes.” Defendants’ reliance on
City of Chicago v. Morales is misplaced. Unlike the
police officers in Morales, who had ‘vast discretion’ to
determine whether an individual was remaining ‘in any
one place with no apparent purpose,” the discretion of
Forest Service officials is sharply circumscribed.”See
U.S. v. Kalb, Beck, and Sedlacko, Crim. No(s) 99-0074ME,
99-0075ME and 99-0076ME (W.D.Penn., 2000), pg.16.

Forest Service “discretion” includes identifying who is a ‘member’ of the “Rainbow Family”, Further, identifying who is the choice of the ‘Rainbow Family” to be its “leaders and agents”. Adams is “in”, and a leader of the religious “Rainbow Family” ‘gang’- as the Forest Service conceptualizes, supports it to be, whether he wants to be “in” or not.

Forest Service “discretion”, while not “vast or overbroad“, according to the government, nevertheless is sufficient to determine Adams’ “purpose” for being in the national forest: being a leader in this Rainbow Family of the Forest Service. This ‘discretion’ of the Forest Service “qualified” Adams for criminal liability. Otherwise Adams could not have been cited. Whether being in this “religious gang” is in accordance with his personal Creed or not.

The government’s obligation in this situation is addressed in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S., at 884,

“As we noted in Smith, in circumstances in which
individualized exemptions from a general requirement
are available, the government "may not refuse to extend
that system to cases of `religious hardship' without
compelling reason." ibid., quoting Bowen v. Roy, 476
U.S., at 708 (opinion of Burger, C.J.).

Accordingly, Adams, whose practice of faith is directly and adversely effected by the regulation here, is entitled to a consideration of alternatives to prosecution and being hindered in his access to the national forest. Further, in Church of Lukumi Babalu v. City of Hialeah, 508 U.S. 520 (1993);22

“The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.”

Adams’ religious burden is not a necessary consequence of the Forest Service fulfilling its stewardship requirements.

“The Department of Agriculture has identified three significant interests involved in its licensing scheme respecting National Forest System lands: (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. 60 FR 45262.” 23 The Forest Service has alternatives and flexibility with which to address these management issues when “culturally different minority peoples” seek access to National Forest lands.

Alternative means are available to the Forest Service by which they can achieve these without violating Adams, and others, Constitutional Rights. It is Impermissible for Forest Service to Support one religious View over another, deny Adams a right to his personal beliefs, and deny access to the public forum to individuals who simply practice non-hierachial ways of assembling. Specifically, the Forest Service, under their own directive contained in the current regulation, should offer an ‘alternative” to those assemblies of individuals who are not a recognizable “group”, or who are unable to “designate” a signer24 “If an alternative time, place, or manner will allow the applicant to meet the eight evaluation criteria, an authorized officer shall offer that alternative.” 36 CFR § 251.54(H)(iii)25. A culturally sensitive Forest Service can obtain its stated objectives through communication, identification and cooperation with the internal processes of assemblies of 75 or more persons, rather than with the hard edge of authority, i.e., persecution and prosecution.

This is further supported by the USDA Non-Discrimination Statement, as published on USDA website,26 which states;

"The U.S. Department of Agriculture (USDA) prohibits
discrimination in all its programs and activities on the
basis of race, color, national origin, sex, religion, age,
disability, political beliefs, sexual orientation, or marital
or family status.”

And, the rules under 7 CFR 15 governing practices of the U.S. Department of Agriculture, state the following with respect to “Non-discrimination”:

Sec. 15.3 Discrimination prohibited: (a) General. No
person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation
in, be denied the benefits of, or be otherwise subjected
to discrimination under any program or activity of the
applicant or recipient to which these regulations apply.
These regulations apply, but are not restricted, to
unequal treatment in priority, quality, quantity, methods
or charges for service, use, occupancy or benefit,
participation in the service or benefit available, or in the
use, occupancy or benefit of any structure, facility, or
improvement. [7 CFR 15.3, revised Jan. 1, 2000]

Accordingly, the USDA Forest Service, in prosecuting Adams for the practice of his Creed, has violated his civil rights of worship, speech, expression, association, assembly. Adams has a right to religious liberty. The Forest Service has violated its constitutional directives, as well as its own regulations and policies concerning civil
rights.

CONCLUSION

Exceptions are made in who can receive a citation, at the “discretion” of the Forest Service. Based on defendant’s arguments of “viewpoint discrimination”, ‘religious hardship”, he should be one of those exceptions. Therefore, the charges against Adams should be dismissed with prejudice.
Respectfully submitted,

DATED this November 15, 2000


________________________
Barry Adams, pro Se

ATTACHMENTS:

A. Invitation: “Gathering of the Tribes 2000”

B. Gov. Ex. A., U.S. v. Adams, 695 F. Supp. 294 (E.D.Tex.1988).

C. Citation Report, (July 2, 2000) re: No.F2741755, Duane Moe .

D. Dennis Bschor letter, USDA Forest Service, W.O. (May 2000).

E. Fox letter requesting “emergency status”, and Fox letter to Mike Batista.