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

________________________________________________________________________



UNITED STATES OF AMERICA,                    ) Cause No. CR-00-5037-GF-RFC 
                                             ) 
                   Plaintiff,                ) 
                                             )          MOTION FOR 
           vs.                               )        RECONSIDERATION 
                                             )       OF ORDER TO DISMISS  
BARRY ADAMS,                                 ) 
                                             ) 
                   Defendant, Pro Se         )    (Oral Arguments Requested)

________________________________________________________________________

COMES NOW the Defendant, pro se, with stand-by counsel and respectfully makes Motion for Re-Consideration of Judge's Order to Dismiss. Defendant so moves this Court, knowing that this is not an usual action, because it appears that the Court's Order of January 16, 2001, has been based, at least in part, on a significant factual error, contained in part A of the Court's interpretation of defendant's arguments. Defendant respectfully submits before the Court that this error has caused his defense to be dismissed without consideration of his intended arguments. Defendant deems it is imperative for sake of the defense's case that this Court give judicial review of this matter. Defendant makes this Motion in good faith, within due process, upon sound reasoning and not to delay proceedings.

A. Factual Error In Reading Prejudices Court Against Defense

The basis for this Motion resides in the following portion of this statement used by this Court in its reasoning in its Order dismissing defendant's Motion for Dismissal, dated November 15, 2000. See Order of United States Magistrate Judge, dated January 16, 2001, pg. 2, part A (Individuals vs. Groups);

"Adams attempts to bolster his argument by stating that he was not a participant or spectator at the gathering and that he is not a Rainbow member "as the government conceptualizes it to be." " (emphasis added)

Defendant submits that this statement is inaccurate; defendant did not argue "that he was not a participant or spectator at the gathering." Defendant can only surmise that this misunderstanding was due to a "failure to communicate" upon his part, in his pro se written briefs before this Court.

For this Court's Re-Consideration of defendant's Motion to Dismiss, defendant now re-submits the following statements and references from his Memorandum and Reply briefs that were submitted in support of his Motion to Dismiss. These stipulations establish this Court's reasoning in consideration of defendant's Motion to be factually incorrect. 1. See Defendant's Memorandum in Support of Motion to Dismiss (November 15, 2000), at pg. 12:

 

"Forest Service know Adams is an outspoken proponent of his faith and of his rights, and he expresses the viewpoint: First Amendment of the Constitution guarantees him religious liberty and access to the national forest (other public lands) , for the practice of his Creed. The current citation was issued to him mid-speech; he was ticketed while expressing his views concerning this regulation, in order to "silence" his speaking out on Forest Service policies. See Attachment C, Citation Report." (emphasis added)

Within the referenced and attached "Citation Report" is an officer's statement of having witnessed Adams presence at this Gathering. Defense submitted this document to the Court, as supporting material attached to the Memorandum, on November 15, 2000. 2. See Defendant's Memorandum in Support of Motion to Dismiss (November 15, 2000), at part D, pg. 18:

"Defendant Adams was cited as a "participant", not as a leader or agent. Adams stands apart, as an individual, not of any group, in accordance with his faith, or creed. Adams attended the Gathering, as an individual. Adams entered the national forest to pray and to worship, seeking religious liberty. "Unaware whether someone from the "Rainbow Family" - as defined by the government, had signed a permit, on July 2nd, 2000, in mid-speech Adams is cited." (emphasis added)

3. See Defendant's Memorandum in Support of Motion to Dismiss (November 15, 2000), at pg. 19:

"Forest Service "discretion", while not "vast or overbroad", according to the government, nevertheless is sufficient to determine Adams' "purpose" for being in the national forest: being a leader in this Rainbow Family of the Forest Service." (emphasis added)

4. See Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition (December 28, 2000), at pg. 2:

"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." (emphasis added)

5. See Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition (December 28, 2000), at part A.(2), pg. 6:

"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 Re(p)ly 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." (emphasis added)

6. See Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition (December 28, 2000), at pg. 7:

"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."

7. See Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition (December 28, 2000), part E.(1), pg. 13:

"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 attendance, 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." (emphasis added)

In this "Statement of Dennis Havig" submitted by this defendant, there is a statement about Adams presence. Defendant would not have submitted this Statement into Court records if he was attempting to "bolster his argument by stating that he was not a participant or spectator at the gathering."

8. See Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition (December 28, 2000), at pg. 14:

"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)." (emphasis added)

Based on these statements and based on the statements contained in Discovery submitted by defendant in the "Citation Report", and Dennis Havig's "Statement", and references and statements made in other Motions before this Court, it does not seem reasonable this Court could have determined Adams is seeking to maintain some sort of fiction about not being at this "Gathering". If this Court perception is Adams is seeking to maintain such a fiction, this would certainly prejudice this Court against defendant; surely this prejudice would affect Court's judgement concerning other aspects of Adams defense i.e. right to Creed, selective prosecution, viewpoint discrimination etc.. Rather Adams defense is one of maintaining he attended this Gathering, however, he was not an individual "qualified" for citation.

B. Factual Error is Germane to Defense.

Defendant submits further that the Court's factual error documented above, led to correspondingly erroneous conclusions and is, accordingly, germane to this defense.

1. One of the essential arguments in Adams' defense is the following: Adams was not "qualified" to receive a citation, because the Forest Service did not allocate the Gathering Site to Adams; rather, the "space' was allocated to "Rainbow Family of Living Light, unincorporated association". See Memorandum Brief, at pg. 8-9, 14, 18. On these pages are clear statements concerning the fact that Forest Service has defined "Rainbow Family of Living Light, unincorporated associatrion" as a legal entity. While defendant does not agree "Rainbow Family of Living Light, unincorporated association" legally exists; even if it does legally exist, he is neither an "associate member" nor a designated "agent" of said "group," to which the Forest Service had allocated this "space."

According to arguments presented by defendant in support of his Motion to Dismiss, the government informed Adams prior to the event that,

"Rainbow Family, not Barry Adams, must apply for and receive a permit for that gathering. Barry Adams or someone else who is designated by the group must complete and sign the application and sign the permit on behalf of the group." (emphasis added). See quote, Defendant's Memorandum in Support of Motion to Dismiss (November 15, 2000) at pg. 14 and Attachment D (Bschor Letter, pg 2 at No. 6&7).

Adams was not "designated by the group" and was pre-emptively denied an application on his own behalf, because the government identified "Rainbow Family" as the "group" to which this "space" has been allocated. In Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, the Supreme Court decided a case of "whose Soapbox is this anyway?" and the decision came down to the forum, the "space' being rightfully in use by the Irish War League, and they can exclude, from their "space' or 'soapbox', certain other individuals or groups not consistent with their Speech. See also Reply brief, at pg 5. In this case, defendant's legal position is analogous to that of the "Gay, Lesbian and Bisexual Group of Boston". Therefore, even though Adams was at the Gathering, said "space", "forum" or soapbox" was not allocated to him.

In their Consolidated Memorandum In Opposition To Defendants' Motions to Dismiss, the Forest Service identifies one of "three significant interests" as being "allocation of
space."

"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." (emphasis added) See Consolidated Memorandum In Opposition To Defendants' Motions to Dismiss, at pg. 19.

Accordingly, in this case the 'space' was not allocated to Adams, but rather to the "Rainbow Family of Living Light, unincorporated association."

The government appears to concur with this interpretation in the following statements:

"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 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 WL 1811392 at *4 (endorsing this rationale)." (emphasis added) See Consolidated Memorandum In Opposition To Defendants' Motions to Dismiss, pg. 14.

And again, at pg. 28 of the same document,

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)" (emphasis added). Clearly the government, and this Court in its Order, has identified the "group" that this 'space' was allocated to as the "Rainbow Family" or "Rainbow Family of Living Light". And the government, in many documents, has identified this "Rainbow Family of Living Light" as an "unincorporated association", a legal entity. Only "a Rainbow" of this "group" can be cited because the Forest Service' "reservation desk" had allocated this "space" only to this secular or religious corporation. Adams maintains he was an individual, with a separate legal identity, who attended this Gathering in practice of his Creed. See Defendant's Memorandum in Support of Motion to Dismiss (November 15, 2000), part A, pg. 1-3.

2. Adams argued in his Motion and Reply briefs that his application for "use" of National Forest lands was denied, according to the Forest Service, because only "groups" can check in at the 'reservation desk" in this regulation. Adams contends he was an individual who attempted to apply for such "use" of National Forest lands and was refused because he was an individual; i.e., he was not able to apply - actus reus. .

"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." (emphasis added) See defendant's Reply Brief, at pg. 7.

(3) Defendant stipulates in his briefs and in other Motions before this Court that he attended this Gathering to obtain legal standing, in order to get any judicial review in this matter. Adams had to place himself "in harm's way" to get due process and a hearing on these issues, and to "stake a colorable claim" of violations of his religious liberty, and rights to his viewpoint and speech, association and assembly. See Reply brief, at part H. This is a "Hybrid Case", with "Colorable Claims." p.18.

This is entirely in line with the 9th Circuit's En Banc Opinion in Thomas v Anchorage Equal Rights (August 4, 2000). The requirements for such "standing" are outlined in footnote No. 3 of that case

3. The "irreducible constitutional minimum of standing contains three elements:" (1) injury in fact; (2) causation; and (3) likelihood that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Thomas v Anchorage Equal Rights , U.S. 9th Circuit En Banc, case No. 9735220v2 (August 4, 2000).

C. Conclusion

Based on a correction of this factual error and arguments presented as to why reconsideration is germane to the defense, defendant Adams makes Motion to move this Court for a Reconsideration of Judge's Order to Dismiss.

Defendant, pro Se, attempted to contact Mr. McLean, Attorney for the Plaintiffs, by phone January 22, 2001, concerning the filing of this Motion, but he was unavailable.

Defendant left a phone message on Mr. McLean's "voice mail".

Respectfully submitted,

DATED this January 22, 2001

 

________________________
Barry Adams, pro Se