Remarkably, defendants barely mention two Ninth Circuit decisions upholding the constitutionality of the regulation under which they were charged - United States v. Linick 195 F.3d 538, (9th Cir. 1999) (regulation constitutional in light of interpretive rule) and Black v. Arthur, 201 F.3d 1120 (9th Cir. 2000) (Upholding signature requirement), affirming, 18 F. Supp. 2d II 27 (D. Or. 1 99 8). Numerous other courts have also upheld the regulations. United States v. Johnson. 159 F.3d 892 (4th Cir. 1998) (finding that the Forest Service's regulations satisfy the time, place, and manner test), affirming United States v. Johnson, 988 F. Supp. 920 (W.D.N.C. 1997) (same); United States v. Kalb, -F..3d.-, 2000 WL 1811392 (3d Cir. Dec. 12, 2000) (upholding regulation in light of facial and as applied challenges), affirming, United States v. Kalb, 86 F. Supp. 2d 509 (W.D. Pa. 2000); United States v. McFadden, 71 F. Supp. 2d 962 (W.D. Mo. 1999) (Magistrate Judge's Opinion holding that regulation does not confer nbridled
discretion on Forest Service officials). United States v. Masel, 54 F. Supp. 2d 903 (W.D. Wisc. 1999) (Magistrate Judge's Opinion holding that regulation does not confer unbridled discretion in Forest Service officials), aff d, No. 98-10014-X-0 I (W.D. Wis. Mar. 16, 2000).
Indeed, as the Third Circuit stated in its recent opinion, "[B]ecause of the 'many legal contests between the Rainbow Family and the Forest Service"' this Court is not writing "on a blank slate."
Slip Op. at 4.
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Defendants' "as applied" arguments, which essentially boil down to their disagreement with the requirement that one person sign a permit on behalf of the group, must fail. Neither these individuals nor, the Rainbow Family, the group, with which they gathered in this case, may opt out of generally applicable laws that they or it decides are inconsistent with political or
religious belief, regardless of how deeply or sincerely those beliefs are held. See, e.g., Cox v. New Hampshire, 312 U.S. 369, 374 (194 1) ("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.").
Defendants also advance a number of challenges to provisions that were not even applied to them. The Court should reject these arguments. First, defendants may not raise the "facial" arguments articulated in their brief, because they may not invoke the extraordinary and disfavored remedy of a facial challenge under the circumstances of this case. Second, even if properly
before the court, defendants' facial challenges must be rejected because they are without merit. This Court should deny defendants' motions.
BACKGROUND AND REGULATORY FRAMEWORK
This case is one of several disputes between the United States and members of the Rainbow Family. As one court has explained:
The Rainbow Family is an unincorporated, loosely-structured group of individuals that regularly gathers in undeveloped sites in National Forests to pray for peace, discuss, environmental and other contemporary political and social issues, and [to] exchange, develop, express, and demonstrate their ideas and views. Annual gatherings have occurred in different National Forests on and around July 4 since 1972. These gatherings draw more than 20,000 participants and last for a month or more. Smaller regional gatherings take place throughout
the year in National Forests across the country.
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Black v. Arthur, 18 F. Supp. 2d 1127, 1130 (D. Or. 1998), aff'd 201 F.3d 1120 (9th Cir. 2000).
Although the Rainbow Family often displays an admirable concern for the preservation of the National Forest System, problems associated with loosely organized conglomerations of 20,000 or more persons in remote areas of the forests are inevitable. In the past, the Forest Service has encountered difficulties stemming from the increasing use of the National Forest System by large groups. USDA, Final Rule, Land Uses & Prohibitions, 60 Fed. Reg. 45,258 (Aug. 30, 1995) [hereinafter "Final Rule"]). 1/ As the court found in Black, 18 F. Supp. 2d at 1130, "[i]mproperly closed latrines, eroded and compacted soil, destruction of vegetation, and litter have been problems at previous [large group events]." Problems associated with Rainbow Family Annual Gatherings have on occasion been more serious. For example, in the 1987 Annual Gathering in North Carolina, inadequate sanitation resulted in an outbreak of shigellosis, a form of bacterial dysentery transmitted by contamination from human waste. The contamination resulted from the scattering of uncovered human waste. Flies, bare human feet, and other vectors spread the shigellosis bacteria. Two physicians from the Centers for Disease Control in Atlanta visited the 1987 Annual Gathering from July 4-11 and estimated that 65% of those remaining suffered from shigellosis. By the middle of August, 25 states reported outbreaks of the disease traced to persons attending the Gathering. Similarly, in the 1991 and 1992 Annual Gatherings in Vermont and Colorado, uncovered human waste was left scattered throughout the forest and latrines were often dug too
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1/ The Final Rule preamble to the promulation of the regulatory framework at issue in this case includes an exhaustive review of applicable First Amendment case law, demonstrating the Forest Service's awareness of its constitutional duties and its attempt to conform the regulatory scheme to First Amendment strictures.
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close to rivers or other sources that Gatherers used for drinking and cooking water. See Final Rule at 45,263-64. 2/ In addition, competing or inappropriate proposed uses of the National Forest System by groups other than the Rainbow Family have posed threats to physical safety. See, @., Final Rule at 45,281 (describing how a group called "We The People" sought to meet at
sites where previous Mississippi National Guard military training had resulted in leftover unexploded ordnance and where the National Guard had scheduled ongoing tank maneuvers).
To preserve National Forest System resources, to address concerns of health and safety, and to allocate space among competing users, the Forest Service promulgated the noncommercial group use regulation in 1995. Final Rule, at 45,258, 42,262-64, 45,278 (describing the public interests the noncommercial group use regulation was designed to protect).
In brief, the Forest Service regulations codified at 36 C.F.R. part 25 1, subparts B and C, and 36 C.F.R. part 261, subpart A, require those wishing to use or occupy National Forest System land in noncommercial groups of 75 or more to obtain a special use authorization or permit to do so.. 3/ Persons wishing to obtain an authorization must provide minimal information in a short application form. 36 C.F.R. § 251.54(d). One of the pieces of information the
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2/ The 1987, 1991, and 1992 Annual Gatherings resulted in soil compaction, destruction of vegetation, and exposed tree roots. Gatherers left filled garbage bags, cigarette butts, and plastic utensils throughout the sites. Id. Eroded soil from paths leading down to sources of fresh water threatens the quality of stream banks and, thus, the long-term quality of the water.
3/ The Forest Service regulations have recently been recodified so that the subsections referred to by certain courts considering challenges to these regulations may be different than those referred to by the parties in this litigation. No relevant substantive changes, were made to the regulations.
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applicant must provide is "[t]he name of the person or persons 21 years of age or older who will sign a special use authorization on behalf of the proponent." 36 C.F.R. § 251.54(d)(2)(i)(E). The application need arrive at a Forest Service office only 72 hours in advance of the proposed event, and a permit issues automatically 48 hours after delivery unless the Forest Service denies it in writing, giving reasons for the denial. 36 C.F.R. § 251.54(g). The Forest Service may reject the application only if it fails to meet one of eight narrow, content-neutral criteria. 36 C.F.R. §251.54(g)(3). If some alternative time, place, or manner of use would meet all the criteria, the Service must offer this alternative. 36 C.F.R. § 251.54(g)(3)(iii). If issued, a permit must state the duration of the permitted use to be "no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization and to be reasonable in light of all of the circumstances." 36 C.F.R. § 251.56(b)(1). The regulation
goes on to specify that the following are the relevant criteria for determining the length of the permitted use: "(i) resource management direction contained in land management and other plans; (ii) public benefits provided; (iii) cost and life expectancy of the authorized facilities; (iv) financial arrangements for the project; and (v) the life expectancy of associated facilities, licenses, etc." Id.
The Forest Service may issue a permit subject to terms and conditions that will carry out the purposes of otherwise applicable state and federal statutes, rules, standards and regulations, as well as those that will "minimize damage to scenic and esthetic values." 36 C.F.R. §251.56(a)(1)(i). In addition, each special use authorization must contain terms and conditions
that (i) protect Federal property and economic interests; (ii) manage
efficiently the
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lands subject to the use or adjacent thereto; (iii) protect other lawful users of the lands adjacent to or occupied by such use; (iv) protect lives and property; (v) protect the interests of individuals living in the general area of the use who rely on the fish, wildlife, and other biotic resources of the area for subsistence purposes; (vi) require siting to cause least dama ge to the environment, taking into consideration feasibility and other relevant factors; and (vii) otherwise protect the public interest.
36 C.F.R. § 251.56(a)(1)(ii). Once issued, an authorization for a
noncommercial group use may be revoked only for one of the following four reasons: (1) noncompliance with one of the eight criteria allowing denial of the permit; (2) noncompliance with other applicable law or the terms and conditions of the authorization; (3) failure of the holder to exercise the privileges granted by the authorization; or (4) by consent of the holder. 36 C.F.R. § 251.60(a)(1)(i).
Finally, the regulations outline internal administrative appellate remedies
applicable to disputes regarding certain special use authorizations (e.g., ski area and outfitting or guiding permits). Although exhaustion of these remedies is mandatory whenever they are available, 7 U.S.C. § 6912(e), we will demonstrate below that they were not and are not available either to defendants or any other person applying for or holding a noncommercial group use authorization. Thus, any person wishing to challenge a term or condition imposed in a noncommercial group use permit may do so immediately under the Administrative Procedure Act, 5 U.S.C. §§ 501-706.
ARGUMENT
I. The noncommercial group use regulation, including the signature requirement, is a constitutional time, place and manner restriction.
Since at least 1941, the Supreme Court has made clear that the federal
government may regulate the time, place, or manner of expressive activity by means of a content neutral permit system. See Cox, 312 U.S. at 574-76; see also, e.,g., Forsyth County v. Nationalist Movement,
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505 U.S. 123, 130 (1992). The thrust of Defendant Barry Adams' motion, however, is that the Forest Service may not apply its content neutral permit system to him. He thus seeks to render this established government power, necessary here to the protection of natural resources and other vital national interests, a nullity. No personal belief system, no matter how deeply and sincerely held, whether religious or political or otherwise, can justify his refusal to comply with an otherwise valid generally applicable law such as the noncommercial group use regulation. Cox, 3 12 U. S. at, 5 74 ("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
Division, Department of Human Resources of Oregon v. Smith, 494 tJ.S. 872,
878-80 (1990). Adams' suggestion that persons need comply only with laws they find consistent with the fundamental tenets of their political or religious creed would turn each person into "...a law unto himself." Employment Division, 494 U.S. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166-67 (1879)). This is not the law. See Masel, 54 F. Supp. 2d at 920 ("[T]o credit defendant's
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."). Because as we now show, the regulation meets the test for time, place, and manner restrictions, there is no constitutional reason, it cannot be applied to these or any other individuals.
A. The regulation meets the test for time, place, and manner restrictions.
"[I]n a public forum the government may impose reasonable restrictions on
time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the
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content of the regulated speech, that they are narrowly tailored to serve a significant goveimmental interest, and that they leave open ample alternative channels for communication of the information."' Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). 4/ We do not dispute that Rainbow Family Gatherings involve speech or expressive conduct that is constitutionally protected under the First Amendment. See Final Rule. Thus, the critical inquiry is whether the Forest Service's regulation comports with
the constitutional restrictions placed on time, place, and manner regulations: that is, can the regulation "be justified without reference to the content
of the regulated speech?"; is it "narrowly tailored to serve a significant government interest?"; and does it "leave open ample alternative channels for communication of the information?" Ward, 491 U.S. at 791.
As court after court around the country, including the Ninth Circuit, has found, all three questions are answered in the affirmative. See, e. g.,. United States v. Linick, 195 F.-3d 538, (9th Cir. 1999); United States v. Kalb, 2000 V,[L 1811392 (3d Cir. Dec. 12, 2000); United States v.
Johnson, 159 F.3d 892 (4th Cir. 1998). In Linick, the Ninth Circuit found that in light of an Interpretive Rule promulgated by the Forest Service - a rule in effect at the time Adams and Demars gathered on National Forest System land in a group of 75 or more persons without a permnit - the regulation is a valid time, place and manner restriction. Linick, 195 F.3d at 543. Therefore, as that controlling authority holds, and as we now explain, the regulation is constitutional.
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4/ Permit requirements, such as the noncommercial group use regulation at issue in this case, are common time, place, and manner restrictions on constitutionally protected speech. See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 155-56 (1969).
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1. The regulation is content neutral.
Defendant Adams concedes that, as the Ninth Circuit has held, the regulation is content neutral. Adams Brief at 5 ("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."). Linick, 195 F.3d at 543. Indeed, the regulatory scheme does not regulate the content of speech.
The regulation addresses "the governmental interest in reducing the actual
or potential damage to national forest system lands that may occur as a consequence of having large groups use these lands ***." Johnson,
159 F.3d at 895. The regulation, as well as USDA's exhaustive comments accompanying its issuance, make clear that the regulation serves three purposes. Id. See also Final Rule at 45,258-93. It is "designed to (1) protect resources and improvements on National Forest System lands,' (2) 'allocate space among potential or existing uses and activities,' and (3) 'address concerns
of public health and safety."' Johnson, 159 F.3d at 895 (quoting Final Rule at 45,262). None of these important public interests depends or otherwise refers to the content of any communicative message. Moreover, the
regulatory scheme applies to all groups of 75 or more regardless of their views,, the content of their speech, or the group's identity.
In addition, the neutrality of the regulation is also apparent on its face. Hunters, campers, family picnickers, and Rainbow Family gatherers all must obtain authorization if their numbers exceed 74; they need not obtain such authorization if their numbers remain under 75. As the Johnson court noted, "The current regulations governing permitting of non-commercial group use do not facially discriminate between expressive and other types of activities, resulting in an 'invidious classification' as was found unconstitutional in [United States v. Rainbow Family, 695
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F. Supp. 294 (E.D. Tex. 1988)]." Johnson, 988 P. Supp. at 924 (W.D.N.C. 1997), aff d, 159 F.3d 892 (4th Cir. 1998). Rather, because the regulations "require all non-commercial groups in excess of 74 persons to apply for special use authorization, they are neutral as to the content of the [Rainbow] Family's expressive activity - even if they have the incidental effect
of requiring a large percentage of Family Gatherings to obtain permits because their numbers regularly exceed 74 persons." Id.; see also Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 648-49 (1981). 5/
2. The regulation is narrowly tailored to serve
significant government interests.
As the Ninth Circuit held in Linick. the regulation is also narrowly tailored to serve significant government interests. Linickl 195 F.3d at 543. The Forest Service's interest in protecting the aesthetic beauty of the national forests and preserving the National Forest System's natural resources is analogous to the interest in maintaining the attractiveness of Washington, D.C.'s Mall area that all nine Supreme Court justices found significant in Clark . See 468 U.S. at 296 (opinion of the Court), and 468 U.S. at 308
(Marshall, dissenting). There can be little doubt as to the government interest in protecting all users of the National Forest, including Rainbow Family members, from outbreaks of shigellosis or the dangers of unexploded ordnance. See Final Rule at 45,263-64, 45,28 1. The Forest Service has found that "[t]he competition for available sites in the national forests among
animals, plants, and humans has increased as more
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5/ Adams cites a number of cases for the proposition that this Court should look beyond the regulation's content neutrality. But, as Adams' descriptions of those cases readily demonstrate, those cases involves situations where the government has prohibited conduct "because the conduct
[was] undertaken for religious reasons," Adams Br. at 5-6, n. 9. Here, the Forest Service has targeted conduct not protected First Amendment Activities.
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demands and restrictions have been placed on use of the national forests, Requiring a special use authorization allows the agency to act as a kind of "reservation desk" for proposed uses and activities, including noncommercial group uses." Final Rule at 45,266. Requiring advance notice allows the Forest Service to assure, for instance, that groups do not meet in places already scheduled for National Guard tank maneuvers. Id. at 45,281. It also allows the Forest Service "to minimize any damage that may occur" to National Forest sites. Johnson, 159 F.3d at 896.
Further, with respect to narrow tailoring, the Supreme Court has warned lower courts not to second
guess the government's judgment as to how to further the public interest. Clark, 468 U.S. at 299. As the Third Circuit acknowledged in evaluating this regulation, "[t]he Supreme Court makes clear in Ward that in order to pass constitutional muster, a time, place, and manner restriction need not be the 'least restrictive means' of vindicating the government's interests." Kalb, 2000 WL 1811392 at *3; One World One Family Now v. City of Honolulu, 76 F.3d 1009, 1014n.9(9thCir.1996)(upholding a "valuable, but perhaps imperfect means of addressing the targeted problem") (internal quotation and citation omitted). A time, place, and manner restriction is narrowly tailored if the government "could
reasonably have determined that its interests would be served less effectively without [the regulation] than with it." Ward, 491 U.S. at 801; Clark, 468 U.S. at 297 (upholding a regulation because "the
parks would be more exposed to harm without the sleeping prohibition than with it").
Given the foregoing, it is clear that the "permit requirement serves the government's interest in protecting the National Forest System while protecting the citizenry's right to enjoy its use in a narrowly tailored manner by providing a minimally intrusive system to notify Forest Service personnel of any large groups that will be using the forest so that the personnel, through
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advance preparation, can minimize any damage that may occur." Johnson, 159 F.3d at 896. Accord Kalb, 2000 WL 1811392 at *4.
3. The regulation leaves open ample alternative channels for expression.
The regulatory scheme leaves ample avenues open for communication.
Linick, 195 F.3d at 543; Kalb, 2000 WL 1811392 at *4. The Rainbow Family, as well as all other groups, may gather for communication and expression just as they did before, so long as they obtain the necessary permit and allow the Forest Service to carry out its congressional mandate to protect and preserve the national forests. Nothing in this regulation addresses any group's ability to gather on state or private property. Kalb, 2000 WL 1811392 at *4. Applicants may also hold events on federal land which does not fall within Forest Service jurisdiction or keep the number of participants in an
event below 75. Id. The narrow nature of the regulation's restrictions demonstrates that ample alternative hannels of communication remain open.
Furthermore, if a proposed use fails to meet one of the narrow, content-neutral criteria governing grant or denial of the application, the Forest Service is required to offer an alternative if one is available that meets all eight criteria. See 36 C.F.R. § 251.54(g)(3)(iii).
B. The signature requirement is constitutional.
Defendant Adams argues that the signature requirement is unconstitutional,
Adams Brief at 14-16, though he acknowledges that, as courts have held, it is content neutral. Adams Brief at 5. Specifically, Adams complains about what he calls the "designated signer" requirement that, pursuant to Section 2'51.54(g)(3)(ii)(H), the person who signs the application must have been
"designated" to sign by the group.
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At the outset, it is important to emphasize that the signature requirement repeatedly has been upheld as part of a valid time, place, and manner restriction. See e.g.,. United States v. Johnson, 159 F.3d at 895-896; Kalb, 2000 WL 1811392 at **3-4. In Black, the Ninth Circuit found the signature requirement constitutional on its face, though it did not examine a specific application of the requirement. Black, 201 F.3d at 1123-24. The signature requirement plays an important role in the overall
framework of the noncommercial group use regulation by serving at least two interests. First, "[b]y signing a special use authorization on behalf of the group, the agent or representative gives the authorization legal effect and subjects the group to the authorization's terms and conditions." Final Rule at 45,286. The Forest Service's attempts to protect the governmental interests articulated above have been frustrated in the past in part by the Rainbow Family's diffuse organizational structure. "[I]nformal agreements
made with one individual or subgroup have not been respected by other group members. It has thus been difficult for the agency to obtain commitments from the Rainbow Family on issues pertaining to the Gatherings." Id. at 45,267.
The signature requirement resolves this difficulty. By signing the
permit, the agent or representative, as a matter of federal law and regardless of the law of any particular state, binds the group and its individual members as a whole to the terms and conditions of the permit and gives the permit legal effect. Id. ("The special use authorization process will enhance the agency's ability to achieve its objectives by allowing the agency to obtain commitments from the Rainbow Family that apply'to the group as a whole."). Kalb, 2000 V& 1811392 at *4 (endorsing this rationale).
Second, the signature requirement deters intentional false statements to the Forest Service
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which might cause an erroneous denial or grant of an authorization application. An applicant for a noncommercial group use authorization must submit basic. information sufficient to allow the Forest Service to make an informed time, place, and manner decision. 36 C.F.R. § 251.54. 18. U.S. C. 1001 (a) criminalizes the making of any "materially false, fictitious, or fraudulent statement or representation" as to "any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the
United States." Thus, the signature requirement helps assure that the Forest Service's permitting decision is made with accurate information. Adams' argument that the regulation is unconstitutional because "the Forest Service designed a licensing scheme specifically set up to stop" Adams and other Rainbow Gathering attendees, see Adams Brief at 15, is without merit.
First, the signature requirement (and the regulation in general) applies to all
gatherings by groups of 75 or more persons and not just to gatherings
of the Rainbow Family. Moreover, given the damage to National Forest sites and the health problems that have arisen out of such large gatherings (see pp. 2-4, supra , the content neutral regulatory scheme is a reasonable attempt to eliminate or minimize those problems through the advance notice provided by the group use pen-nit requirement. See United States v. Johnson, 159 F.3d at 896 (the permit requirement gives notice to Forest Service personnel so that "through advance preparation," they "can minimize any damage that may occur"). Even if the regulatory scheme were promulgated out of an animus toward the Rainbow Family, that would not undercut the constitutionality of the scheme because the government's motives for the adoption of a regulation are irrelevant in "intermediate" scrutiny of time, place, and manner restrictions. See Foti v. City of Menlo Park, 146 F.3d 629, 634 n.1 (9th Cir. 1998) ("There is no doubt that the City passed these ordinances in response to Foti and Larsen's
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activities or that the City specifically sought to restrict their protests ***. Whether the statute was based on an 'alleged illicit legislative motive,' however, does not affect our determination of whether the statute was enacted to suppress the content of speech (citing United States v. O'Brien,
391 U.S. 367, 383 (1968)). O'Brien, the first Supreme Court case to articulate the intermediate scrutiny standard, states:
It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated, "The decisions of this court from the beginning lend no support whatever to the exercise of
lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted." McGray v. United States, 195 U.S. 27, 56 (1904).
O'Brien, 391 U.S, at 383. The O'Brien Court noted that there were certain exceptions to this general rule, such as bills of attainder cases, see 391 U.S. at 383-84 n.30, and more recent case law has identified certain Equal Protection and Establishment Clause challenges as additional exceptions. See, e.g., Grossbaum v. Indianapolis-Marion City Building, 100 F.3d 1287,
1292-93 (7th Cir. 1996), cert. denied 117 S. Ct. 1822 (1997). Nevertheless, O'Brien explained at length that an inquiry into official motive is not permissible in an intermediate scrutiny case. 391 U.S. at 382-86.
Moreover, in Turner Broadcasting System, Inc. v. FCC, 512-U.S. 622, 652 (1994), the Court reaffirmed the principle that official motive is irrelevant when considering the constitutionality of a content-neutral restriction upon expressive conduct, or even speech itself. And the rule announced in O'Brien and reiterated in Turner applies to the actions of administrative agencies as well as to acts of Congress. See Grossbaum, 100
F.3d at 1290-94. Thus, defendants' claims of retaliation or animus, even if true, are irrelevant and cannot undercut the constitutionality of the content-neutral, noncommercial group use regulations. See Ward, 491
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U.S. at 791 (citation omitted) ("'A regulation that serves purposes unrelated to the content of the expression is deemed neutral, even if it has an incidental effect on some speakers or messages and not others."')..
Adams also asserts that the requirement that the person who signs the application be "designated" by the group to sign forces those who attend Rainbow Family gatherings to "either organize into a recognizable group and adopt a hierarchical order ... or else be denied access to public lands," Adams Br. at 14. Adams suggests this provision requires groups to implement some sort of formal procedure to designate a person to sign the permit. The regulation contains no such requirement, however. Nothing in the regulations require any formal procedure and the Forest Service has never insisted upon such a procedure. The group must simply provide the name of a person to be a contact for the group. No court has seen a constitutional problem with this requirement. See Black, 201 F.3d. at 1123-24. 6/
C. The terms contained in the Forest Service permit are constitutional.
1. The provision "The holder shall hold harmless the United States from damage to life or property arising from the holder's occupancy or use of
National Forest System lands under this permit" is constitutional.
Demars argues that the inclusion of this waiver of liability on the
noncommercial group use permit "does not serve a legitimate and constitutional regulatory function" and "creates an
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6/ Relatedly, Adams argues that the Forest Service identified him as a "leader" and that his status as a "leader" is somehow relevant. Adams Brief at 2, 19. It is not clear yet on this record whether the Forest Service identified him as a leader in this case, and, in any event, being a leader is not an element of the crime Adams committed. Proof of a violation of 261.10(k) requires only that the government "demonstrate: 1) use, 2) of National Forest land, 30 by a noncommercial group of 75 or more persons, either as participants or spectators, 4) without special use authorization."
Johnson 159 F.3d at 894. Accord Kalb, 2000 VVL 1811392 at *4 (quoting Johnson).
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undue and unconstitutional 'chilling effect' on the defendant's [and others'] exercise" of First Amendment rights. Demars Brief at 1-2. It is unclear how this condition in any way burdens anybody's exercise of First Amendment rights, but, in any case, it is clearly a constitutional restriction on the manner of use of National Forest System lands. As an initial matter this provision is obviously content neutral. Moreover, it clearly serves an interest identified by the Forest Service - "Protection of forest resources and facilities." Final Rule at 45,262. The authority to impose such a term comes originally from the Organic Act, 16 U. S.C. § 551, which gives the Secretary of Agriculture broad power to promulgate rules to protect the National Forest. As part of its exercise of that authority, the Forest Service promulgated 36 C.F.R. 251.56(d)(1), which provides that: "Holders shall also indemnify the United States for any and all injury, loss, or damage, including fire suppression." In addition to protecting the government from liability arising from the holder's use or occupancy. the provision encourages holders to act more carefully by making clear that the United States is not liable for damages suffered in connection with the holder's occupancy or use of
National Forest System land.'
2. The provision requiring the holder "to permit free and unrestricted access to and upon the premises at all times for all lawful and proper purposes not inconsistent with the intent of the permit or with the reasonable exercise and enjoyment by the holder of the privileges thereof" is constitutional.'
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7/ Demars further alleges that the language "arising from the holder's occupancy or use of National Forest System lands under this permit" is unclear. Demars at 3. It is hard to see how this language could be any clearer. The term is meant to apply to liability that arises
in connection with a holder's use or occupancy of the land. If the liability does not arise in connection with a holder's use or occupancy of the land, the term does not apply.
8/ As Demars notes in his motion, the sample permit he has submitted states that the holder must "permit free and unrestricted access to and upon the premises at all times for all lawful and proper purposes not consistent with the intent of the permit or with the reasonable exercise and enjoyment by the holder of the privileges thereof." As Demars acknowledges, this is a typographical error and should read "inconsistent with the intent of the permit." The Forest Service had previously corrected this error, though Mr. Demars apparently received an uncorrected version inadvertently.
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Demars' next argues that this requirement that the holder permit others use of and access to the land, so long as that access is not inconsistent with the holder's use and enjoyment of the land is somehow unconstitutional. Demars' Brief at 4.' This claim is equally puzzling and equally meritless. This term in
the permit is simply an implementation of 36 C.F.R. §251.55(b)(3) which preserves the Forest Service's "right to require common use of the land or to authorize the use by others in any way not inconsistent with a holder's existing rights and privileges...... Id , Again, this requirement clearly serves one of the three interests identified by the Forest Service and discussed supra
- to "allocate space among potential or existing uses and activities." Final Rule at 45,262. Contrary to Demars' assertion, the term is clear and
does not leave Forest Service agents with "unbridled discretion."
With this term, the Forest Service is simply requiring permit holders to allow others access to the land being used by the holder, so long as such access is not inconsistent with the holder's enjoyment of the land. 9/
III. Defendants' facial arguments fail because (A) they cannot bring a facial challenge in the present context, (B) even if properly raised these arguments lack merit, and (C) any constitutionally problematic provisions may be severed, leaving the regulatory scheme intact.
In the Motions 2-5 portions of his brief, Demars challenges
portions of the regulatory scheme - those governing terms and conditions, duration of the permit, and judicial review that were never applied to him. Defendant does not contend that he (or anyone else in their
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9/ It is not clear how the cases cited by Demars on page four of his brief even apply to this situation.
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group) filed a permit application with the Forest Service and thus was ever in any danger of having these portions of the regulatory scheme actually applied to him. Accordingly, defendant may proceed with these arguments, if at all, only under a facial challenge. But as we now demonstrate, he may not bring a facial
challenge in this case. Moreover, even if defendant is allowed to proceed with these challenges, they are without merit.
A. Defendant cannot raise a facial challenge to portions of the regulatory scheme never applied to him.
Because they deprive a court of any factual setting upon which to ground legal analysis, "facial challenges to legislation are generally disfavored," FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223 (1990), and
are allowed "sparingly and only as a last resort," Broadrick
v. Oklahoma, 413 U.S. 601, 613 (1973). See also National Endowment for the Arts v. Finley, 118 S. Ct. 2168, 2175 (1998) ("Facial invalidation 'is, manifestly, strong medicine."') (quoting Broadrick, 413 U.S.
at 613). Facial challenges are particularly disfavored when leveled against laws regulating conduct, even expressive conduct, instead of pure speech.
Broadrick, 413 U.S. at 615 ("[Particularly where conduct
and not merely speech is involved, we believe that the overbreadth of the statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.").
In Lakewood, the Supreme Court set forth a two-part test
governing when a First Amendment facial challenge may be made to an allegedly overbroad licensing scheme. First, the regulation must confer upon a governmental official or agency "substantial power to discriminate
based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers." 486 U.S. at 759. Second, "[t]he law must have a close enough nexus to expression,
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or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks." Id. Applying this test, the Ninth Circuit in Linick permitted a facial challenge to a portion of the regulation - 36 C.F.R. § 251.56(a)(1)(ii)(G) that
allows the Forest Service to impose terms and conditions that "otherwise protect the public interest" - that is not at issue here. In Linick. the court found that a facial challenge was appropriate because that provision gave the Forest Service the authority "to impose such onerous terms on the use of public land by certain groups so as to render impractical their use of the land for expressive activities. Linick, 195 F.3d 542. But see Kalb, 2000 WL 1811392 at *7 n.9 (explicitly rejecting Linick).
The challenged regulations here - the Forest Service's ability to "protect federal property and economic interests, revocation of the permit, and judicial review - do 'not target First Amendment activities."' Kalb, 2000 WL 18113 92 at * 6 (citation omitted). Indeed, unlike the challenged 'revision in Lakewood, these provisions are "'not directed narrowly and
specifically at expression or conduct commonly associated with expression."' Id. (citation omitted). Thus, Demars' reliance on Lakewood to support his ability to bring a facial challenge is misplaced. Indeed, in Lakewood, the Court specifically noted, "In contrast to the type of law at issue in this case, laws of general application that are not aimed at conduct commonly associated with expression and do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken, carry with them little danger of censorship." Lakewood, 486 U.S. at 760-61. In such cases, the Court noted, a facial
challenge in impermissible.
Because the noncommercial group use regulation is a law of general application that is targeted at conduct not speech, and because the Forest Service may only grant or deny
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speech based on a set of content neutral reasons, this Court should reject Demars' facial challenges. See Kalb, 2000 WL 1811392 at **5-7. The Supreme Court's decision in Ward v. Rock Against Racism, 491 U.S. 781 (1989), also counsels against permitting a facial challenge in this case. There, the Court recognized that facial challenges are only appropriate in cases "involving licensing schemes that 'vest unbridled discretion in a government official over whether to permit or deny expressive activity."'
Id. at 793 (quoting Lakewood, 486 U.S. at 755) (emphasis added). The Ward Court noted that discretion exercised only after the government decides to allow expressive conduct to go forward "is of an entirely
different, and lesser, order of magnitude." 491 not claim that city officials enjoy unguided discretion to deny the right to speak altogether, it is open to question whether respondent's claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority." Id. radio101.
The Ward Court's analysis compels the conclusion that defendant may not bring a facial challenge in this case. The provisions he seeks to challenge, those governing terms and conditions, duration, and judicial review of requirements imposed in permits, become relevant only after the Forest Service has issued a permit, i.e., has decided to allow expressive conduct to occur. In such a case, no prior restraint can occur and no chilling effect on free speech may be inferred. As in Ward, the danger that the Forest Service will suppress speech once it has decided to allow that speech to occur is of an entirely different, and lesser, order of magnitude than that needed to support a facial
challenge. radio101.
As in Ward, any danger is best assessed in specific factual circumstances. Accordingly, this case does not fall within the narrow class of
permissible facial
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challenges.
B. Even if permissible, defendant's facial challenges fail on the merits.
1. The Forest Service's ability to "Protect Federal property and economic interests" through terms and conditions on permits is constitutional.
Relying primarily on Lakewood, defendant alleges that the portion of the regulation that allows the Forest Service to impose terms and conditions that "protect Federal property and economic interests" (36 C.F.R. § 251.56(a)(1)(ii)(A)) delegates unbridled discretion to the Forest Service. Demars Brief at 4-1 1.
As an initial matter, Demars asserts that this provision is not a "proper time, place or manner restriction" because it is "not narrowly tailored to serve a significant government interest" and "does not in fact serve any of the three significant interests identified" by the Forest Service. Demars Brief at 5. Contrary to defendant's assertion, this provision is clearly content neutral and narrowly tailored to serve one of the Forest Service's three proffered rationales for the
regulatory scheme - "Protection of forest resources and facilities." Final Rule 45,262. This regulation gives the Forest Service the ability to protect its valuable natural resources, as we as the improvements it has
made on National Forest System land.
Demars' argument that the phrase "necessary to protect the federal economic
interest" is unconstitutionally "vague and overbroad" ignores Ward. In Ward. the Supreme Court considered a challenge to a city sound quality ordinance requiring the city to ... provide the best sound for all events and to ... insure appropriate sound quality balance with respect for
nearby residential neighbors and the mayorally decreed quiet zone."' 491 U.S. at 794 (quoting the relevant ordinance). The Court upheld the ordinance, stating, "While these standards are undoubtedly
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flexible, and the officials implementing them will exercise considerable discretion, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Id. See also Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc)
(upholding ordinance that gave the Commissioner of Transportation "discretion to remove a newsstand that 'endangers public safety or property"'); MacDonald v. Chicago Park Dist., 132 F.3d 355, 361 (7th Cir. 1997) (vacating a preliminary injunction preventing enforcement of a permitting scheme authorizing denial of a permit application if the use or activity "would present an unreasonable danger to ... health and safety") (quoting Chicago Park District Code §C(5)(e)); United States v. Kistner, 68 F.3d 218, 221 (8th Cir. 1995) (upholding a permitting
scheme allowing imposition of terms and conditions necessary "to preserve
peace and tranquility" and "to prevent dangers to public health and safety").
Like the regulatory schemes found permissible in Ward, Graff ,
MacDonald and Kistner, 36 C.F.R. § 251.56(a)(1)(ii)(A) does not delegate unbridled discretion to the Forest Service. There is nothing unconstitutionally vague about the phrase "protect Federal property and
economic interests," words similar to the economic portions of the regulatory scheme upheld in Graff. Should this Court conclude otherwise, "it should, of course, construe the [regulation] to avoid constitutional problems, if the [regulation] is subject to such a limiting construction." New York v. Ferber, 458 U.S. 747, 769 n.24 (1982). Courts have routinely avoided alleged constitutional problems in time, place, and manner regulations by accepting narrowing constructions of arguably loose language advanced by permitting authorities. See, e.g., Cox, 312 U.S. at 575-78; see also
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) ("Facial overbreadth
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has not been invoked when a limiting construction has been or could be placed on the challenged statute.") (emphasis added).
In this case, a limiting construction of the phrase defendant attacks is readily apparent. Congress has recognized that all public lands have economic value and that the United States should be compensated for commercial-use of public lands and corresponding resources. 43 U.S.C. § 1701(a)(9). The Forest Service, by congressional directive, engages in numerous revenue-generating activities in the National Forest System, including charging fees for such economic enterprises as campground concessions and ski resorts operating on National Forest System land. See 36 C.F.R. § 251.50(a). Thus, the phrase "protect Federal property and economic interests" refers to the government interests in generating revenue through the authorization of the use of public land, an interest that the courts have repeatedly deemed legitimate and content neutral. See, e.g., MacDonald, 132 F.3d at 359-60 (user
fees); Jacobsen v. City of Rapid City, 128 F.3d 660, 664 & n.2 (8th Cir. 1997). 10/
2. The First Amendment does not compel the Forest Service
to' allow indefinite occupation of the National Forest System.
Demars also argues that the regulatory scheme "gives the
authorized officer unbridled and
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10/ Demars also suggests ways in which the Forest Service might hypothetically use this power to bar speech. Demars Brief at 10. Hypotheticals demonstrating how the Forest Service might violate its regulations, however, are not sufficient. Broadrick, 413 U.S. at 617-18 (1973) ("[W]e do not believe that [a statute] must be discarded in toto because some persons' arguably protected conduct may or may not be caught or chilled by the statute."). Future allegations that the Forest Service has abused its ability to revoke permits can be addressed on a case-by-ease basis through "as applied" challenges. See also Kalb. 2000 WL 1811392 at *7 (citations omitted) ("Although we acknowledge that there is some theoretical possibility that the 'terms and conditions' provision could be invoked to chill protected speech, we are not persuaded that '[t]he risk that Forest Service officials will use nefariously any discretion afforded to them by the ... provision is ... great enough to justify invoking the "extraordinary doctrine" that permits facial challenges.")
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unfettered discretion to limit the duration of defendant's [and other's] exercise" of First Amendment rights. Demars Brief at 1 1. Because the regulation's directive governing how long a permit may last sufficiently constrains the Forest Service's discretion, defendant's argument is without
merit. 11/ Interestingly, defendant quotes only half of the relevant portion of the regulatory scheme, the half stating that a special use authorization should be "'no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization and to be reasonable in light of all circumstances concerning the use."' Demars Brief at I 1 (quoting 36 C.F.R. § 251.56(b)). Defendant neglects to mention, however, that the regulations go on to specify what the relevant "circumstances" are in content-neutral and specific language,
including concerns of resource management and preservation of
the facilities and area to be used. See supra "Regulatory Framework" (quoting the language in full). It is simply not possible, given the Forest Service's interests in conserving the National Forest System against human abuse, in addressing concerns of public health and safety, and in allocating space among competing users, to allow each applicant to determine for itself how long it should be allowed to occupy federal land.
The noncommercial group use regulation recognizes this fact and allows the Forest Service to limit the duration of a permit so as to protect legitimate, content-neutral public interests. Nothing in the regulation purports to allow manipulation of permit duration to suppress disfavored speech.
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11/ Oddly, Demars argues that this provision "is not a place, time, or manner restriction." Demars Brief at 12. It is, of course, a time restriction.
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3. Immediate judicial review is available of any terms and conditions imposed.
Demars concedes that the regulations allow immediate judicial review (under
the Administrative Procedure Act, 5 U.S.C. § § 501-706), of denial of a permit application or in the event a permit once granted is suspended or revoked. Demars Brief at 13-14. He argues, however, that the regulations require exhaustion of a potentially lengthy administrative appeals process
before an applicant or permit holder may challenge terms or conditions in federal court. Id.. Defendant is wrong, and this Court should follow Kalb and reject his argument. Kalb, 2000 WL 1811392 at *8 ("We are convinced that the government's construction of the relevant regulations is reasonable and that the judicial review provisions of the
regulatory [scheme] are not constitutionally infirm.").
The administrative appeal process, codified at 36 C.F.R.
§§ 251.80-251.102, is available only to a limited class of parties, a class that does not include Demars or others like him. Only two classes of
persons may invoke the regulations' administrative remedies. 36 C.F.R.
§251.56(a) & (b). The first class includes those who are responding to a formal solicitation. 36 C.F.R. § 251.86(a) ("Only the following may
participate in the appeals process provided under this subpart: [a]n applicant who, in response to a prospectus or written solicitation or other notice by the Forest Service, files a formal written request for a written authorization to occupy and use National Forest System land. . . . ") (emphasis added). The Forest Service has consistently interpreted this portion of the regulatory
scheme to make administrative. appeals available only when the agency formally solicits applications. See, e.g.. In re Epley, #97-04-1206-01 (May 1, 1997). discretionary review denied, 97-04-00-0024 (July 15, 1997). As the
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Court found in Kalb, "the government's interpretation of its own regulations is entitled to controlling weight, and this particular interpretation has been adopted by at least one court." Kalb, 2000 WL 1811392 at *!. See also United States v. Larionoff, 431 U.S. 864, 872
(1977) (quoting Bowles v. Seminole Rock Co. 325 U.S. 410, 414 (1945)) (courts must give "controlling weight" to the. an agency's interpretation of its own regulation ... un ess t at 1 interpretation] is plainly erroneous or inconsistent with the regulation."'); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (holding that a court "must give substantial deference to an agency's interpretation of its own regulations"). The Forest Service formally solicits applications from concessionaires to provide services to the public, but never formally solicits applications for noncommercial group uses. Nor is there any evidence of such
a formal solicitation in this case. The Forest Service's attempt to obtain compliance with the regulations - by presenting an application to members of the Rainbow Family - does not constitute a formal solicitation.
In addition, 36 C.F.R. § 251.86(b) makes administrative remedies available to "[t]he signatory(ies) or holder(s) of a written authorization to occupy and use National Forest System land covered under § 251.82 of this subpart who seeks relief from a written decision related to that authorization." Thus,. an immediate challenge to a term or condition could be pursued in
federal court the moment the permit is denied. But, for example, a Rainbow who objected to terms and conditions would not have signed the permit (if he had, he Would be agreeing to terms on behalf of the Rainbow Family) and thus would not be a "signatory" or holder," and, moreover, a permit with terms and conditions is not a "written decision" within the meaning of the regulation. Accordingly, defendants and any other applicants for noncommercial
group uses may go
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directly to court to challenge any terms or conditions the Forest Service imposes.
C. Any portions of the regulatory scheme found constitutionally
problematic may be severed, allowing this prosecution to go forward.
The facial portion of Demars' Brief attacks isolated provisions of the overall regulatory framework. As explained above, we believe that such a facial attack on portions of the regulatory scheme is impermissible in this case, and that in any event defendants' arguments lack merit. To the extent this Court disagrees, however, it should sever any offending portion of the regulatory scheme. This prosecution would then move forward, because defendant has not been charged under any of the provisions they facially attack. "[A] court should refrain from invalidating more of the statute than is necessary .... (W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid."' Alaska Airlines, Inc. v. Brock 480 U.S. 678, 684 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)). The presumption is that any offending provision of
a law must be severed if the remainder may function as an operative whole. Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam). The absence of an explicit severability -clause "does not raise a presumption
against severability." Alaska Airlines, 480 U.S. at 686. Indeed, "the unconstitutional provision must be severed unless the statute in its absence is
legislation that Congress would not have enacted." Id. at 685 (emphasis added). Here, there can be little question that the regulatory scheme can function as a coherent whole even if all of the provisions defendants attack in their motion were struck. The regulations allow the Forest Service to impose 11 types of terms and conditions protecting national policies;
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ten would remain even if 36 C.F.R. § 251.56(a)(1)(ii)(A) were deemed unconstitutional, and it seems obvious that the Forest Service would wish to be able to protect the interests these provisions cover even if it could not "protect federal property and economic interests." Similarly, if this Court finds that the application of the Forest Service's appeal regulations to noncommercial group uses prevents prompt judicial review, the Court should bar the application of the appeal regulations to noncommercial group uses, thus preventing the Forest Service from requiring exhaustion before an applicant for or holder of a noncommercial group use authorization brings a dispute to district court. 12/
In short, striking all of the provisions defendants attack facially in their
Motion would still leave unaffected most of the important provisions, including the requirement that noncommercial groups of 75 or more apply for a pen-nit before using the National Forest System, the criteria for grant or denial of the
application and ten types of ten-ns and conditions the Forest Service may impose. This is a coherent permitting scheme allowing the Forest Service to protect critical national resources and to address concerns of public health and safety. Under Alaska Airlines, then this Court should sever any offending provisions and allow the prosecution of defendants to go forward.
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12/ As explained above, the Forest Service does not believe that it can require exhaustion in the noncommercial group use context.
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CONCLUSION
For the foregoing reasons, this Court should deny defendants' motions.
DATED this 15th day of December, 2000.
SHERRY SCHEEL MATTEUCCI
___________________________
KRIS A. McLEAN
Assistant U.S. Attorney
___________________________
BENJAMIN P. COOPER
United States Department of Justice
Federal Programs Branch
Civil Division
P.O. Box 883
Washington, DC 20044
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