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

Attorney Bill Hooks, Stand-by Counsel
P.O. Box 747
Helena, Mt. 59624
Ph. (406) 442-9349
Fax (406) 443-1282

                                             
UNITED STATES OF AMERICA                        )
                                                )       Cause
                Plaintiff,                      )No. CR-00-5037-GF-RFC
                                                )
        vs.                                     )  Reply to Defendant's Consolidated  Opposition
                                                )       Plaintiff's Memorandum of Dismissal
BARRY ADAMS,                                    )      
                                                )
                Defendant, Pro Se               )
 ________________________________________________________________________

COMES NOW the Defendant, pro Se, in a Reply Brief to answer Plaintiff's arguments in Opposition to Defendant's Motion to Dismiss.

Summary

Plaintiff's "Consolidated Memorandum", combines plaintiff's responses to two distinct Motions to Dismiss, filed seperately by two distinct individual defendants, Adams and Demars. This long brief, brings into play the same arguments advanced by the Forest Service, in multiple cases, as justification for their discriminatory application of the non-commercial regulation at 36 C.F.R. 251 and 261. In this consolidation, the plaintiff largely brushes off Defendant Adams' claims of "religious hardship" and "viewpoint discrimination." And, even though Adams stands before this Court as an individual defendant, with such right to due process, nonetheless, Adams has been "grouped" with Mr. Demars.

Plaintiff denigrates Adams' position by stating Adams' would be a "law unto himself," like one who stops traffic in the middle of a city just to express his opinion. Plaintiff's's Opposition Brief, pg. 8. In fact, what Adams would have is equal protection under the law, to exercise his rights of expression on a traditional public forum. See Colacurcio v. City of Kent, No. 96-36197 (9th Cir. 1998). 1/ Adams, like all citizens, is entitled to certain inalienable rights of individual sovereignty; his pursuit of happiness, is seeking to practice his faith and Creed 'in a reasonably remote area of the National Forest', in a place where others, choosing to do so of their own free will, may peaceably assemble, or Gather, for prayer, worship, speech, petition, association, or assembly.

Plaintiff has stipulated that defendant Adams, is an individual, and has been charged only as a "participant" of a peaceable assembly for the purposes of expression, held on National Forest land. Plaintiff's's Opposition Brief, (see footnote).pg. 17. But such charges are inconsistent with the Federal Constitution. De Jonge v. Oregon, 299 U.S. 353, 365 (1937).

".... consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime." also "But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge." (emphasis added)

It remains unclear, then, on what grounds Adams was selected from among over 20,000 other participants for this special treatment. Adams would contend he was selectively targeted because of his petitions to the Forest Service for the Forest Service to end discrimination against him and these Annual Gatherings

Defendant Adams' as applied arguments remain largely intact. Adams indicated a series of events through which he came to be charged with the alleged crime. The 9th Circuit specifically did not rule on as applied issues, but only on specific aspects of facial neutrality. See Black v. Arthur, 201 F.3d 1120. The government's denial of Adams' proposed application, reveals the inconsistencies of its regulation. One of these hinges on how the government has applied the "signature requirement," the provision "that one person sign a permit on behalf of the group." See Plaintiff's's Opposition Brief, pg. 2. Adams also raises a number of challenges to the "content-neutral" decisions made by various courts. Adams Brief indicated that several courts have decided this regulation is content-neutral, not that he agreed with these decisions. The defendant contends that "circumstances of this case" do warrant a facial challenge, and these challenges have merit.

Arguments

A. The Regulation is Unconstitutional as it has been Applied to Adams.

1. This regulation, as it has been applied, prevents an individual, from application and use of National Forest lands for a forum of 74 or more persons.

Defendant Adams, who lives in Montana, understood the Annual Gathering was coming to the Idaho-Montana area. In seeking information on this situation, he contacted the Allegheny National Forest in Pennsylvania, site of the 1999 Annual Gathering. The Allegheny directed Adams to contact Incident Commander Bill Fox for any information concerning the 1999 Gathering, which he did. See Attachment 1, Allegheny Letter. Again seeking information, Adams contacted the Regional Forester's office in Missoula, MT and was again directed to contact I.C. Fox for any information concerning Gatherings, which he did. See Attachment 2, Adams' Fax to Regional Office. Hence, sole authority in these matters rested with I.C. Fox. See Adams' Motion Brief, Attachment E.

In each inquiry (to the Allegheny National Forest, to the Regional Forester's office in Montana, and to Incident Commander Fox) defendant Adams communicated his individual standing; i.e., he indicated that he was only a private citizen, an individual, and not a legal representative of "Gathering of the Tribes 2000" or "rainbow family," because of his Creed. Nevertheless, Adams was solicited to sign a permit application on behalf of 'rainbow family.' According to the Plaintiff's's Opposition Brief, pg 28,

"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." (Emphasis added). But Adams was formally solicited; he was presented with application, permit and a copy of the 36 C.F.R. 251 regulations by Incident Commander Fox during an informal, informational meeting with Fox and another concerned citizen, "Electric Ed" Tunis, at the Shack restaurant in Missoula on March 8, 2000. See Attachment 3, Statement of William C. Fox. Adams had stated in writing to Fox, prior to this meeting, and again verbally at the beginning of this meeting, that he was only there in his own stead, as an individual. Therefore Adams was formally solicited. See U.S. v. Baugh, 187 F.3d 1037, (C.A.9 (Cal.) 1999).

After reflection, on March 28, 2000, Adams sent a letter "Re: Application For Special Use," to the Washington Office of the Chief of the Forest Service and to I.C. Fox. See Attachment 4, Adams Letter Re: Application For Special Use. This letter gave written 'notification' of a proposed use of National Forest land, for a forum where 74 or more persons potentially would assemble.2 Adams outlined what he proposed, and provided some background concerning why he felt he could only act as an informal 'contact' for an assembly of 74 or more persons, and explaining that he lacks presence and authority to act as a "group" and therefore he was only applying, as an individual seeking 'use.' As far as signing for a 'group', Adams indicated he was faced with a Hobson's Choice3, a dilemma between the regulation's signature requirement and its prohibitions against false statements to the government; Adams could not legally construe himself as an 'agent' of other individuals or groups who might attend said forum, because of his spiritual/religious Creed and his knowledge of the law. See Thomas and Baker v ERC No. 97-35220, 97-35221 (9th Cir 1998).4

Adams received no response to his letter, either orally or in writing, until Dennis Bschor, the Director of Recreation, Heritage and Wilderness Resources, of the USDA Forest Service wrote him on May 15, 2000, over six weeks after his application. But the regulation provides, at 36 C.F.R. 251.54 (g)(3)(i) [7-1-99 version], that such an application, if not replied to within 48 hours, is to be considered granted.

"All applications for noncommercial group uses shall be deemed granted and an authorization shall be issued for those uses pursuant to the determination as set forth below, unless applications are denied within 48 hours of receipt. Where an application for a noncommercial group use has been granted or is deemed to have been granted and an authorization has been issued under this paragraph, an authorized officer may revoke that authorization only as provided under Sec. 251.60(a)(1)(i)."

Therefore, Adams had reason to consider his proposed use as granted. However, Bschor's letter indicated to the contrary that the Forest Service was denying his proposal and/or would deny any similar proposal, stating repeatedly that an individual cannot apply because it is a "group" permit; e.g., "As discussed above, the Forest Service will reject a noncommercial group use application that is not submitted on behalf of the group, since the application is for a noncommercial group use." See Attachment D Motion Brief, Bschor Letter, pg 2 at 6&7. Thus defendant Adams was denied the right to a forum on National Forest lands (where potentially 74 or more persons may assemble), because he is an individual. And, the regulation's 48-hour statutory approval provision was summarily revoked, or selectively withheld, denying Adams any recourse to administrative or judicial appeals processes.

Adams submits further, that the Forest Service' denial of an authorization on grounds of his individuality is inconsistent with previous actions of the Forest Service in which they have issued such permits to individuals. In particular, Adams himself was issued such a permit in June, 1987, as an individual not signing, by the Forest Service, under an earlier version of the same "group" regulation. The District Ranger at Plains, Montana unilaterally issued a Permit for the "Barry Adams Gathering." See Attachment 6, Montana Gathering Poster, Permit and Map.

2. Under this regulation, Individuals have no access to Judicial Review or Administrative Appeals.

As noted above, Adams had no access to 'immediate judicial review or administrative appeal," when he was denied his application as an individual. Adams nevertheless petitioned the Forest Service by responding to Bschor's letter with a written petition of appeal, but received no reply or review of the situation. See Attachment 5, My Rely To Forest Service, May 26, 2000. The only contact he received after the Bschor letter was a phone call from Fox on May 17, during which Fox again solicited him again to "sign" on behalf of the "group." See Attachment 3, Statement of William C. Fox. Adams later sent notice of his intention to move to Court over this matter, and was beginning to arrange such procedures when "Gathering of the Tribes 2000" took place. See Attachment 7, Adams Notice of Intent to Sue. Adams attended this Gathering and was subsequently cited.

In seeking judicial review of this matter, Adams was faced with a similar situation to that which he brought suit against Forest Service, in 1997 in Adams v. Arthur, cited as Black v. Arthur, 201 F.3d 1120 (9th Cir. 2000). In that case, Adams sued as an individual, but the District Court and the 9th Circuit ruled Adams was a "member of the Rainbow Family," implying he was not entitled to suit as an individual. Adams had no recourse of petition of these rulings, in that, whatever he may say concerning his own legal status concerning his "non-membership" relationship to "Rainbow Family, unincorporated association" he was sufficiently 'tagged' and his petition to the Courts in 1997 went unheeded. Instead, Adams should have been granted "Noerr-Pennington immunity" to protect his rights, then and now, as an individual, to petition the Forest Service, and should also have had the right to petition in the Courts. See White v. Lee, -- .3d --, (9th Cir. Sept. 27, 2000).

Adams attended the "Gathering" as his annual pilgrimage of faith. Not being able, as an individual, to apply for said use, his active legal status was one of 'actus reus.' Accordingly, Adams attended in a state of "innocent trespass;" i.e., having faith the regulation is unconstitutional, and cannot be applied against an individual.

"A trespass to land, committed, not recklessly, but through inadvertence or mistake, or in good faith, under an honest belief that the trespasser was acting within his legal rights. Elk Garden Big Vein Mining Co. v. Gerstell, 100 W.Va. 472, 131, S.E. 152, 153" Black's Law Dictionary, pg. 927. This position is aptly expressed by Attorney Garhardt in U.S. v. Kalb 5/ -- F.3d. --, (W.D. of Pa 2000), Joint Motion For Judgement Of Acquittal And Supporting Memorandum Of Law (see "A. Under 36 C.F.R. §261.10(K) Only The Group, Not Individuals, Is Liable To Citation.")

"An individual who is incapable of an act cannot be guilty of violating a regulation that requires that act. For example, in United States v. Dalton, 96 F. 3d. 121 (10th Cir. 1992), the Court held that the due process clause of the Fifth Amendment bars prosecution of an individual for not registering a firearm where the registration of that firearm was impossible. The Court held that where a statute has an essential element which is the failure to do an act that a person is legally incapable of doing, they cannot be held criminally liable for it. Similarly, in United States v. Spingola, 464 F. 2d. 909 (7th Cir., 1972), the Court noted that if an individual were to be able to show that they were incapable of causing the filing of a Government form, they could not be held criminally liable for that failure to file."

Only the group could designate the person to sign the permit. In the absence of that designation, no person can sign for the group." "The group, and only the group, is liable for a criminal violation of this section. The actus reus element of this crime can only be committed by a group." (emphasis added) Unlike the defendants in that case, a different set of circumstances applies in regards to Adams; i.e. the element of his crime is solely as an individual participant, not as a leader. Also unlike the defendants in Pennsylvania, Adams did submit an initial application, which was not denied within 48 hours, but denied weeks later. This different set of circumstances renders the 'actus reus' arguments in Kalb, particularly relevant to Adams' case.

B. The "Signature requirement"

For a person to sign away the liability rights of thousands of other persons, and to do so, while at the same time being personally protected from liability would seem to be an oddity within the law. And, according to this regulation, to sign for an "unincorporated entity", a potential signer must "show papers" upon request. 36 C.F.R. 251.54(d)(2)(ii)(E).

1. Signature Requirement does not prevent Fraudulent statements.

Contrary to plaintiff's contention that "accurate information" comes through this signature requirement, quite the opposite is true. On at least two occasions, Missouri 1996 and Oregon 1997, persons with no legal right to sign an application on the behalf of those Annual Gatherings, or "Rainbow Family", were solicited and did in fact sign such application and permit, and the Forest Service accepted these self-designated "signers" in complicity and in violation of 36 C.F.R. 251.54. As noted by the Plaintiff, "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.'" See Plaintiff's Opposition brief, pg. 15.

The government has decreed "Rainbow Family" to be an "unincorporated association" or "entity" since 1988. U.S. v. Rainbow Family, 695 F.Supp. 334 (E.D. TX 1988). As noted in his previous Brief, Adams disagrees with this secular definition. Furthermore, it appears in the regulation that such an entity must be able to produce "papers" to establish its legitimacy or good tanding. In this case, it is unclear what, if any, "Rainbow Family" documents are available to legitimize this as an "entity," as required under 36 C.F.R. 251.54(d)(2)(ii)(E).

'E. If the proponent is a partnership, association, or other unincorporated entity: a certified copy of the partnership agreement or other similar document, if any, creating the entity, or a certificate of good standing under the laws of the State.' (emphasis added)

If no such "agreement", "document" or "certificate of good standing" exists, then how can "Rainbow Family" be determined to be such an entity? The absence of such documents is put forth as sufficient grounds for denial of an application. So is the government asserting that such documents exist? Or, does it maintain to the contrary that such entity may lack documentation, but still be denied access to National Forests on these grounds, at the discretion of an authorized officer? Furthermore, if the status of such entities is determined by Courts or agencies, what is to prevent a "self-designated signer" or agency-designated signer from fraudulently claiming to sign for others, when no agreements exist to establish an entity.

2. Signature is not necessary to achieve government's interests.

Plaintiff further asserts that the 'signature requirement' does not require the group to adopt formal procedures to designate a representative. Plaintiff's Opposition brief, at pg. 17. However, this interpretation is quite different than the one given to Adams last May by Dennis Bschor, as discussed above. Bschor wrote as follows:

"Therefore, the Rainbow Family, not Barry Adams, must apply 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." ..."2.
As stated above, you or someone designated by the group must sign the application and permit on behalf of the group to give them legal effect." (emphasis added) See Attachment D, Motion Brief, Bschor letter, pg.1. Now Plaintiff asserts that "The group must simply provide the name of a person to be a contact for the group." Still however, no recourse is offered to an individual "contact", who is solicited by the Forest Service to sign a permit if the group defined by the Forest Service does not or cannot name that person as its designated agent. If the group lacks the structure or uniformity to agree on naming such an individual, such as a peace consensus between disagreeing religious sects, then designation of a "signer' can become a prohibitive requirement. For example, if two or more sects cannot agree on a "representative", then a process for agreement must be determined before the peace circle even commences.

If however, as Plaintiff states, the Forest Service' quot;interest" in someone signing, is actually only needing a "contact" for these rainbow-style Gatherings (i.e., 74 or more persons assembled on National Forest in the Rainbow Way of expressive association), then Adams' March 28th proposal was sufficient to achieve this. Adams outlined an "alternative" to resolve the Forest Service concerns behind the signature issue, communication through informal contacts, notification and the use of operating plan guidelines. Such "alternatives" are well-known to the Forest Service. This is how the Forest Service has traditionally "managed" rainbow-style Gatherings for many years; operating plan guidelines have been worked out between various groups, circles of individuals and Forest Service. And this approach has proven to be successful with respect to the stewardship responsibilities of the Forest Service. 6/

3. "Signature requirement" interferes with the "internal affairs" of this 'expressive association"

This signature imposes, on the temporary expressive association of Gathering peoples, the advent of someone to act as a "paper chief' or 'agent or representative' for the Gathering as a whole. This constitutes interference in the 'internal affairs' of this ''expressive association'. In Boy Scouts v. Dale, -- U.S. -- (June 28, 2000), the Supreme Court ruled, that an expressive association need not accept a 'member' it did not want, particularily if admitting this "member" significantly impaired the expressive association's purpose. In this case, the unwanted 'member' is someone who acts as a "legal representative" for the assembly. Gatherings are regularly attended by many 'intimate associations' with their own legal identity, and many individuals who seek to retain their individual sovereignty, and only engage in the Gathering as a temporary expressive association, as an expressive activity, peaceable assembly. See U.S.Constitution, First Amendment, also, Montana Constitution, section 4-9.

The advent of a 'signature requirement' has caused turmoil within the Gatherings, as it portends some form of "governing body". The Gatherings are guided by principles of associational choice, equality and voluntary participation. The Forest Service has 'alternatives' to this "signature requirement', which they can use at their 'discretion'.

"Government actions that may unconstitutionally burden this freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire." Id., at 623. Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, "[f ]reedom of association ... plainly presupposes a freedom not to associate." Ibid. also, "The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private iewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988)."

Boy Scouts v. Dale, -- U.S. -- (Decided June 28, 2000). Accordingly, Forest Service, in application, in this circumstance, in compliance with the regulation, should offer an "alternative".

C. The Regulation Discriminates According to Age.

According to the 3rd Circuit ruling in Kalb, the application must contain the name of an "adult."7 In the regulation, this "adult" must be "21 years of age or older". This constitutes age discrimination. Forest Service and USDA "non-discrimination" policies prohibit such discrimination because of age. See Adams' Motion Brief.

Additionally, the Montana Constitution describes an "adult" with all attendant rights as follows:

"Section 14. Adult rights. A person 18 years of age or older is an adult for all purposes, except that the legislature or the people by initiative may establish the legal age for purchasing, consuming, or possessing alcoholic beverages."

Although this aspect of the "signature requirement' does not apply to Adams who is over 21, it remains evident that this requirement deprives adult citizens, aged 18-20, of equal rights and access to privileges governed by this regulation. Additionally, it interferes with one of the central themes, main purposes associated with these Gatherings, inter-generational communication, sharing, unity, and human equality. D. "Intimate Associations" within the Gathering lose their Rights.

The rights of certain 'intimate associations," such as the Khrisnas, who regularly attend Gatherings,8 are also violated through the application of this regulation. These "intimate associations" have no legal way to seek redress of grievances. The government has taken the position that, regardless of whether such groups are 'sovereign" within their own "intimate association," at the Gathering, they are in fact, 'rainbow family' members. According to the government, there are only "individuals and subgroups" at these Gatherings. See Plaintiff's Opposition brief.

Again, the Forest Service does not recognize in applying this regulation that there are significant 'intimate associations" attending the gathering, that seek to retain their distinct legal identities. Rather, in determining this 'group's identity", the Forest service chooses to ignore the presence of many such "intimate associations,' like the Khrisnas, in favor of carrying on their licensing scheme. If the Forest Service were to acknowledge these "intimate' associations, it would likewise have to find a way to fit these associations into 'membership" in the "Rainbow Family". Obviously, the Khrisnas (many sects of them) have been before Courts, even the Plaintiff mentions one case. The Khrisna's are noted for many court cases protecting the rights of their 'intimate religious association." Under this licensing scheme, the Khrisnas, among others, lose all rights of representation when someone signs away the liability for all the Gatherers; i.e., that person likewise signs away the liability of the Khrisnas. This cannot be Constitutional because it violates the Khrisna's right to Freedom of Religion.

Plaintiff states "group identity" does not matter in this case. See Plaintiff's Opposition brief, pg. 10. However, since there are many diverse groups, and many individuals, attendees, who are unaffiliated, except within the expressive activity of this "Annual Gathering" , there is no actual way or mechanism by which a person or persons could ever legally obtain permission to act as a legal agent to be able to sign an application and permit on behalf of all of these. The Gathering is a peaceable assembly, i.e., only a temporary "expressive association," attended by many diverse groups and individuals with vast differences and entrenched positions concerning their own sovereignty. The rights of Secular groups are also violated when the government begins to assign membership, which would sign away the liability rights of these groups.

E. Equal Protection

1. Equal protection if an "assembly or forum is opened"
Equal protection would seem to invalidate Adams' citation. According to documents obtained through discovery, it is clear that District Ranger Dennis Havig and the Incident Command knew "hundreds" of Gatherers were present on the Beaverhead National Forest as early as June 5, 2000. See Attachment 8, Statement of Dennis Havig. However, it was not until July 2, 2000 that Adams was cited, by which time several thousands of people were in attendence, engaged in expressive association and expressive activity. According to Plaintiff's arguments it appears that all of these people were liable for citation as spectators or participants, yet Adams was selected from among them. This would seem to be a violation of Equal Protection.

"Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone." "But these justifications for selective exclusions [408 U.S. 92, 99] from a public forum must be carefully scrutinized. Because picketing plainly involves expressive conduct within the protection of the First Amendment, see, e.g., Thornhill v. Alabama, 310 U.S. 88 (1940); also Shuttlesworth v. Birmingham, 394 U.S., at 155 , discriminations among pickets must be tailored to serve a substantial governmental interest. Cf. Williams v. Rhodes, 393 U.S. 23 (1968)." Chicago vs. Morales, 527 U.S. 41, 52 (1999).

The Incident Command was in place, with an "emergency" declared in January, long before any violation existed. Yet, when hundreds of people, i.e., over 74, were present in June, none were cited. Thousands of people were allowed to engage in expressive activity prior to Adams citation on July 2. And thousands more enjoyed this expression all around him without being singled out for prosecution and criminalization. The groups, including Khrisnas, Hasidic Hebrews, Christians, Rastafarians, vegans, Deaf Tribe, Friends of Montana, and many others, were tolerated by the Forest Service, allowed use of the forum without citation. The forum for the assembly was clearly "opened up" to all these other people. But it was denied to Adams.

In addition, it appears from discovery that Adams was targeted for surveillance. According to surveillance reports, contained in Discovery, Adams was observed to be participating in this temporary "expressive association" for a number of days, prior to his citation. Thus, even though this regulation is considered 'Constitutional" according to various Courts, it appears that Adams was denied equal protection, and singled out for prosecution, merely for being a "participant". See DeJonge vs. Oregon, 299 U.S. 353, 365 (1937).

2. Equal protection in application: Annual Gatherings have been alternately 'outlawed" or "managed through alternative means" at discretion of Forest Service. Permits have been granted unilaterally by Forest Service.

The Forest Service is well aware of the 'internal processes" within these 'Gatherings' and specifically how to work cooperatively to achieve health and sanitation, environmental goals. It is through communication through the internal Forums known as "councils" or "circles.' Although these circles are not 'decision-making' bodies, as is claimed even by some attendees, they nevertheless are the main vehicles of internal communication; i.e., forums. It is through these "councils and circles" that the operational aspects of these Gatherings take place. These operational aspects, i.e. "operating plans" were worked out verbally in the years 1972-1982.

In Idaho, 1982, Regional Forester Gene Benedict, communicated with and negotiated with nearly all of the attendees of the Annual Gathering. A circle of interested people (approx 100 of several thousand attendees), calling themselves "Rainbow Family Tribal Council" (representing only themselves), acted to communicate with the Forest Service concerning health, sanitation, environmental and public safety concerns. In this spirit of cooperation, the result of this communication and negotiation was the development of an Operating Plan agreement, which is the model of present day Rehabilitation and/or Operating plans utilized by resource and recreation Forest Service personnel as guidelines to these large 'rainbow-style" peaceable assemblies. See Attachment 9, Idaho Gathering Operation Plan.

Even though this Council, called "Rainbow Family Tribal Council" did not speak for all attendees (nor did it seek too) nonetheless, this Circle of individuals and groups, made said agreement, went over it in the Circle, with all who would have a say concerning what was proposed in the Operating Plan, and then it was signed by "Rainbow Family Tribal Council" indicating those persons, in that Circle, all were in consensus as to what the agreement said.... Gene Benedict then signed for the Forest Service, "originals" were exchanged.(see attachment)

The Persons and Groups, who Gathered with one another, for that year, held to the agreement. Not all people, who may regularly attend similar Gatherings, are in agreement as to whether the "council' was anything more than it purported to be, which was a Circle of folks who agreed in Consensus to 'practical-tactical" aspects of this Operating Plan agreement. The Forest Service, upon working out this "alternative", unilaterally issued a Permit for this Annual Gathering. See Attachment 10, Permit.

In the June 24, 1984, 'original" regulation concerning groups "9 or more persons" must get a permit, there was a section on a District Ranger (authorized officer) to have the right to offer an Operating Plan as an 'alternative' to signing a "permit." This option was left out of subsequent regulations when this 1984 version was found to be "unconstitutional" in U.S. vs. Gideon Israel, (Arizona, 1985). However, the 'practical-tactical' aspects of dealing with the actual concerns of the Forest Service i.e. health, environmental etc. are still worked out through 'operating plans" or through 'rehabilitation plans".

Annual Gatherings, have in different years been through an array of situations where a Gathering has suddenly been issued a Permit, or an authorization. Forest Service, at its "discretion" to interpret/apply its regulation, either offers an 'alternative", or it chooses not to offer an 'alternative". Adams pointed this out in his letter of notification; certain times where the Forest Service has solicited and accepted the signature of individuals on applications and permits, knowing those individuals were "self-designated". See Attachment 4.

Annual Gatherings have been authorized in this 'self-designated' way in 1976-1979, under the 'camping' regulation of the day. Also, after a court battle, in 1987, the Gathering was authorized to continue by District Judge Santelle. 1988, the Annual Gathering was legal after Justice Justice ruled the 36 C.F.R. 251 version of its day, un-Constitutional. 1988 until 1995, no regulation was in place, the Annual Gathering was managed through "alternatives", so, in effect these Annual Gatherings were legal. 1996 and 1997, Forest Service accepted "self-designated" persons to sign an application and permit. In 1997, Adams received a citation, and his citation was dismissed, because a "self-designated" person signed an application and permit. See Black v. Arthur. Also, Arizona, 1998, regulation had to be constitutionally "corrected', See U.S. v. Linick.

This event is an Annual peaceable assembly, a traditional Circle of Peace. See Attachment 11, Caspar Star Tribune article (7/6/00). In some years this 'forum" has been "opened." In other years, at the discretion of the Forest Service, no "alternatives' are offered or utilized, and the forum is declared illegal. It would seem, to this defendant, this "on again, off again" opening and closing of the Traditional Forum to this unique "peaceable assembly' must bespeak a lack of Equal Protection. The Forest Service opens the door and then closes the door, according to their variable perceptions or interpretations of the regulation (according to the mood of the Forest Service). And this changes from year to year, and varies between regions, between resource and recreation, and law enforcement. Forest Service personnel are divided over their interpretation/application of this regulation. For example, Mike Lohrey, Incident Commander in 1997, recommended in the Oregon Report, at pg. 7, that the Forest Service,

"1) Develop a waiver for the special use permit for large groups that has demonstrated the ability to meet objectives outlined in the operating plan and restoration plan for a 5 year period. Rely on a signed operating plan/restoration plan to meet our needs to ensure that our interests are protected." Also pg. 8 "Alternative 1 is recommended. Since the waiver would still be part of the process it should not affect current litigation, and will end the confrontational aspects of managing the event."

The "Annual Gathering" is a world-renowned celebration. The variable applications of this regulation, have undermined equal protection of those who seek to gather.

F. "Heckler's Veto"

A "Heckler's Veto" of the Annual Gathering and Rainbow Family, comes about when there is an "emergency" declaration and subsequent negative propaganda, spread by the Forest Service, concerning the "illegal" nature of this Gathering. See Motion Brief, Attachment E.

'The sixth criterion adresses whether the proposed activity poses a substantial danger to public safety. it prohibits any consideration of a 'heckler's veto" by excluding 'concerns about the possible reaction to the users' identity or beliefs from non-members of the group that is seeking authorization." 36 C.F.R. 251.54(h)(1)(vi). indeed, the Forest Service may look only to potential for physical injury to the applicants and others and the adequacy of emergency ingress and egress. 36 C.F. R. 251.54 (h)(1)(vi) (A)-(D)." Black v Arthur, 201 F.3d 1120, Appellee Brief, pg.7.

The Forest Service is well-aware of the internal processes of these gatherings and has worked successfully with individual volunteers on many occasions. However, rather than accepting these internal processes, and working collaboratively with citizens to promote a safe and healthy event, the Forest Service has ignored their regulatory directive; i.e. 'shall offer an alternative", and instead promotes a hostile and prohibitive stance concerning these peaceable assemblies of more than 74 people. See 3rd Circuit Decision in Kalb (go to state or private lands).

The Forest Service should respect the Gathering, all attendees, and adopt means that are "significantly less restrictive of associational freedoms," thereby complying with their own regulation by "offering an alternative".

"But the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden "by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." Roberts, supra, at 623. Boy Scouts v. Dale. As noted above, the Forest Service is aware of effective alternative means of obtaining its interests in similar situations; e.g., notification, operating plan guidelines. Therefore these interests can and should be achieved accordingly.

H. This is a "Hybrid Case", with "Colorable Claims."

A variety of Adams' First Amendment rights are abridged by this regulatory scheme, including his pursuit of happiness, worship, prayer, petition, redress of grievance, equal protection, due process, and access to national forest for a forum wherein Adams may partake in this Annual Ceremony, in its traditional setting. Adams therefore makes a 'colorable claim', as an exemption under Employment Division v. Smith, 494 U.S. 872, 878-80 (1990).

"And the only cases in which the Supreme Court has invalidated laws regulating expressive conduct are those in which it has concluded that the government has prohibited such conduct "precisely because of its communicative attributes." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 576 (1991) (Scalia, J., concurring in the judgment) (citing United States v. Eichman, 496 U.S. 310 (1990), Texas v. Johnson, 491 U.S. 397 (1989), Spence v. Washington, 418 U.S. 405 (1974), Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969), Brown v. Louisiana, 383 U.S. 131 (1966), and Stromberg v. California, 283 U.S. 359 (1931)). There was no serious argument..." "Because, under the rule we announce today, a free exercise plaintiff must make out a "colorable claim" that a companion right has been violated -- that is, a "fair probability" or a "likelihood," but not a certitude, of success on the merits.." Thomas and Baker v. ERC, at 390, 398, 399, 400.
All through his Memorandum to dismiss and in this Reply brief, Adams has pointed out various flaws in this regulation, and flaws in its applicability toward him. Adams has traditionally Gathered on national forest lands since 1972, celebrating his belief in a universal relationship of peace. At times the Forest Service in their discretion has fulfilled their "customer pledge', have been in compliance with their non-discrimination policies. 9/

The Forest Service failed to comply with their own regulation, i.e., they did not offer an "alternative", to an individual applicant, Adams. Nor offered an "alternative' to the Annual Gathering. In addition, they have, at other times, at their 'discretion" either opened the forum, under some "alternative" or set up a "police state" on the threshold of this peaceable assembly and have targeted and prosecuted Adams and others.

Defendant Adams has a 'colorable claim', and asks this Court to give due consideration to his arguments in support of this "hybrid" case.

Conclusion

Defendant has been subject to viewpoint discrimination, lack of equal protection, right to petition, religious hardship, arbitrary discretion, lack of judicial review and due process. This Court should dismiss this charge with prejudice.

respectfully submitted,
DATED this December 28, 2000
_____________________________
Barry Adams, pro Se