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

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

__________________________________________
                                                                        )       Cause No. CR-00-5037-GF-RFC
UNITED STATES OF AMERICA,               )
        Plaintiff,                                                   )               DEFENDANT'S REPLY TO
                                                                         )               PLAINTIFF'S TRIAL 
                  vs.                                                   )               MEMORANDUM      
                                                                          )
BARRY ADAMS,                                           )
        Defendant, Pro Se                                )             

COMES NOW the Defendant, pro Se, with Stand-by counsel, and files this Reply to Plaintiff's Trial Memorandum.

"Gathering of the Tribes 2000" was a peaceable assembly on national forest lands for purposes of Prayer, speech, petition, assembly, association. Annually, around the 4th of July, since 1972, individuals and groups of many backgrounds, races, cultures, religions, beliefs, practices, creeds, have come together to form a Circle in Silence on the 4th of July, a Ceremony of Peace. This is an inclusive Circle, free and open to all peoples of the Earth and Sky, a Prayer for all the peoples of the Earth. This "prayer" encompasses the "Gathering" itself, how it forms, its diversity, the generations of peoples, coming together to embrace peace, community, equality, respect, common sense ways of living or being, sharing common ground together. All these attributes contribute to the Gathering, making it a unique expression, in itself a form of Speech, Prayer, Petition.

National Forest lands, public land held in trust and stewardship for the peoples of America and the World, are a traditional and appropriate place for Annual Gatherings to happen. Gathering participants include a broad diversity of individuals and groups, many of which have conflicting viewpoints on many matters, some of deepest personal importance and spiritual devotion. A delicate balance is needed for such a diverse assembly of groups and individuals, who ordinarily do not affiliate with one another, to come together on common ground, in peaceable assembly and tolerance. Where conflict exists, peace relies on equal standing of the parties. Public lands are a traditional forum for these peaceable assemblies, and provide a basis for equality among participants; equal standing on common ground. Equality is essential to maintain this Peaceable assembly as a true "Rainbow-style" Gathering.

These Gatherings are often associated with the Hippie culture, the flower children of the '60's, continuing through to the Year 2000. Many other peoples from a broad range of cultures have attended these Gatherings, spawning many Gatherings, large and small, all around the World. Many distinct customs, conventions of language, and forums for sharing have developed over the many years of Gathering, and passed along or learned on-the-common ground, at the Gathering, and in other arenas in the World. Many participants regard the Gathering as "holy days", a seasonal celebration, like Christmas, Chanukah, Kwanza or Ramadan.

In all these years of Annual Gatherings, the Forest Service and the U.S. government has related to Gatherings in various discretionary ways, ranging from blockades to cooperation. On different National Forests and in different years, different legal situations take place. At times, Forest Service has not demanded a "permit", but simply worked with volunteers concerning the care of the land and the people who attend. This approach has generated good working relationships with District Rangers, resource and health professionals, and law enforcement. Some Gatherings have received permits through the actions of self-designated individuals who have simply stepped forth, regardless of legal implications, and signed a permit on behalf of all other Gathering attendees. And at other times, the Forest Service has simply issued such permits unilaterally.

The Forest Service resource and recreational branches, at every Gathering, in all years, sought out and communicated with various individuals and groups within the Gathering, and worked out the practical-tactical necessities of maintaining environmental quality and good health and public safety. Regardless of the "permit politics", these resource personnel discovered within the assembly many individuals and groups who were eager to work out the stewardship problems of the land and the people.

Now the Forest Service has designed, in the current regulation, a licensing scheme with a built in Hobson's Choice. It is legally impossible for any person to sign on behalf of this Annual Gathering and others like it, without giving false or misleading information to a federal officer. The diversity and differences of Gathering attendees precludes any individual or group from legally acting as 'agent,' 'designated signer', or 'representative' of said Gathering. The structure of a Gathering has no governing body, but adheres from equal standing, peace amongst differences; assembly without Authority. It is virtually impossible for such a broad diversity to overcome its cultural and ideological differences to a degree that would permit them to agree on designating a given "representative" to sign a "permit", thereby signing away their option of liability and redress of grievance. The Forest Service is well aware of how Gatherings operate, and of the diversity of groups and individuals who attend. This licensing scheme is used by the Forest Service to discriminate against the forms of Worship and Speech expressed by this Gathering: inclusive community, egalitarian association, assembly without Authority.

Cultural discrimination, like that addressed in Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is the underlying cause of this conflict;

"The legislative history that does exist, however, indicates that amendment was intended to prevent so-called "hippies" and "hippie communes" from participating in the food stamp program. See H. R. Conf. Rep. No. 91-1793, p. 8; 116 Cong. Rec. 44439 (1970) (Sen. Holland)." " For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the [413 U.S. 528, 535] public interest, justify the 1971 amendment." 345 F. Supp., at 314 n.11."

In the current case, Forest Service has developed a special group, National Working Group, an incident management study group, to develop a National Strategy concerning large group activity on National Forest. This Group "appears" to study these Gatherings and various individuals believed to be its 'leaders, or organizers". This "study' is not scientific, but has taken the form of a criminal investigation and surveillance. A 'special' group of Law Enforcement was created; the National Incident Management Team, whose sole purpose is to 'manage" these Gatherings, as Federal Emergencies -- simply because no one can legitimately sign a permit.

Rather than display good customer service policy or institute forest planning that includes large group assemblies on national forest, instead the Forest Service does no resource planning, obstructs efforts at voluntary cooperation, and acts surprised when the "rainbows" show up. In their communications to the local communities, instead of promoting tolerance, or informing the public these gatherings have been happening regularly on national forests for years without any major problems developing, bar none, the Forest Service created a "Heckler's Veto", scaring the local communities with false portrayals of 'rainbows' as "scofflaws" and criminals. Persons and groups who attend these Gatherings have come to expect a 'police-state' on the threshold of the peaceable assembly. This has chilled the rights of many attendees and resulted in a "siege mentality" at many Gatherings.

In recent years, the Forest Service has singled out persons it believes to be 'leaders, organizers" of these Gatherings, and prosecutes these persons. In 1999, the criteria for identification of these people were 1) persons who communicated with the Forest Service, health personnel, or community 2) persons who communicated with other Gathering attendees. For many years, there were many, many people who "met' this criteria.

In Oregon, 1997, Councils, Circles of people met with the Forest Service resource and recreation personnel, and in turn individuals, groups and the Forest Service expressed to one another in these Councils, i.e. forums, their concerns and proposals. These concerns and proposals were then shared throughout the Gathering, individual to individual et al. This harmonious relationship of good communications helped in developing operating plan guidelines addressing the concerns shared between Resource and Recreation and Gatherers. But this goodwill and communications did not extend to the Law Enforcement Incident Team, nor to settling the "politics' over the 'permit". Rather than encouraging volunteer efforts, the Incident Team singled out and cited the very persons who communicated with local communities or Forest Service. Adams was among those cited in Oregon, 1997.

Again in Pennsylvania, in 1999, Forest Service singled out individuals who helped communicate with Forest Service or helped communicate health and resource concerns among gatherers. These government actions are well-known among gatherers and have chilled the rights of volunteers to the point that only a few are now willing to step forward and become the object of prosecution. Defendant Adams is among these few.

Barry Adams, AKA plunker, was born and raised in Montana, U.S. Navy 1963-1966, honorably discharged, and is one of the "originators" of "Rainbow-style" Gatherings. Upon learning of the Annual Gathering coming to Montana, Idaho in the Year 2000, Adams made a conscientious choice to do what he could, as a Montanan, to help alleviate potentially harmful confrontations between Gatherers and Forest Service and Montana. Therefore Defendant Adams knowingly stepped into "harm's way" by approaching the Forest Service and communicating with them. Mr Adams accepted this "inevitability of prosecution" because of his sense of personal faith and responsibility as an individual Montanan, and because of his long association with the Gatherings, and his many years of petition and prayer, for redress of grievances, to the Forest Service, the Government and the Courts -- i.e. a petition for the Forest Service to stop their continued discrimination against this Gathering and against him personally, because of his beliefs and practices, and Creed.

Defendant Adams has been charged with violating the regulation: 36 C.F.R. 261.10(k). Defendant Adams allegedly violated the regulation on or about July 2, 2000. Defendant Adams must be tried first because Adams intends to testify for Mr. DeMars, in his trial. It is defendant Adams understanding that Mr. Michaels, counsel for DeMars, has communicated with Mr. McLean, counsel for the government, to correct this error.

In the government's Consolidated Trial Brief, pg 2:

"There are four elements of the crime charged against each defendant: 1) use; 2) of National Forest land; 3) by a non-commercial group of 75 or more persons either as participants or spectators; and 4) without special use authorization. United States v. Kalb, 234 F.3d 827, 831 (3rd Cir. 2000); United States v. Johnson, 159 F.3d 892 (4th Cir. 1998). This regulation and the penalty for its violation apply to individuals who use the National Forest system as part of a group. Kalb at 831." (emphasis added)

(1) In this case, defendant intends to prove he "participated" and "attended' the "Gathering of the Tribes 2000" solely as an individual, with a separate legal identity to the "Rainbow Family" or "Rainbow Family of Living Light, unincorporated association".

(A) The "1) use 2)of this National Forest land was allocated for the "use" of a specific "non-commercial group", and not to defendant Adams. This "space' or "forum" was 'designated' by the Forest Service to be the Site of the "Gathering of the Tribes 2000", and this 'space' was allocated to be reserved exclusively for the 'Rainbow Family" or "Rainbow Family of Living Light, a loosely structured unincorporated association", and not to defendant Adams.

(B) Defendant Adams has been identified and/or cited by Forest Service, or Courts, as a "member of the Rainbow Family of Living Light, unincorporated association", prior to the Year 2000. In the Year 2000, Mr. Adams "disassociated" himself from having any legal relationship to this 'group" i.e. "have not now or ever been a member of the Rainbow Family", in all communications and relationships with the Forest Service, Governor's office, media, and the public. Defense testimony and exhibits will show this communication, and this relationship. "Rainbow Family" is not on trial, Barry Adams, aka plunker, is on trial. See Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 543 (1963);

"This Court has repeatedly held that rights of association are within the ambit of the constitutional protections afforded by the First and Fourteenth Amendments. NAACP v. Alabama, 357 U.S. 449 ; Bates v. Little Rock, 361 U.S. 516 ; Shelton v. Tucker, 364 U.S. 479 ; NAACP v. Button, 371 U.S. 415 ." ".... as was said in NAACP v. Alabama, supra, "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the `liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." 357 U.S., at 460 ."

"The First and Fourteenth Amendment rights of free speech and free association are fundamental and highly prized, and "need breathing space to survive." NAACP v. Button, 371 U.S. 415, 433 . "Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." Bates v. Little Rock, supra, 361 U.S., at 523 ."

(2) Defendant Adams will bring forth documents and witness of communication and relationship beginning in January 2000, with Forest Service and Mr. Fox, only as a 'private citizen", an "individual", not as a 'representative of the Rainbow Family or the Gathering of the Tribes 2000".

(3) Defendant will present evidence and testimony he was selected out to be 'silenced", selectively prosecuted:

(A) Because of his belief and practice of his Creed, Adams is one of the initiators of the "Rainbow-style" or "Rainbow Way' of "Gathering': 'peaceable assembly on public land for purpose of expression", for prayer, worship, speech, petition.

(B) Because of his "legal stance" as an individual i.e. legally identifying himself not as a "member' or 'representative" of the 'Rainbow Family, unincorporated association", particularly in the Year 2000.

(C) The government cited Adams in an effort to silence his constant petitioning Forest Service, over the years: Defendant was given a citation in mid-speech concerning the 'application" and 'permit' process, by Agent Poague and Agent Moe.

(D) Adams applied for use of national forest land solely as individual, in the Year 2000. Forest Service did not reply within the requisite 48 hours, therefore de facto granting his application, subsequently a denial was forthcoming weeks later. Adams then gave "notice of suit" to Forest Service.

The government has based its case, in part on Kalb, and this Court based its decisions in its Order to Dismiss Defendant's Motion to Dismiss, in part, on this Kalb case in Pennsylvania. That case has relevance, particularly the testimony of Mr. Fox and Mr. Poague, concerning the identification of "Rainbow Family" or 'Rainbow Family of Living Light". The government legally defined, in its case, "Rainbow Family of Living Light as a "loosely structured unincorporated association", complete with "trappings" i.e. decision-making councils, elders etc.. Additionally, the government legally defines the attendees of these Gatherings, many groups and individuals who enjoy their own legal identities, as 'individuals and sub-groups" all 'members" of the "Rainbow Family", part of the 'group".

At Trial in Kalb, government presented what they considered to be valid evidence and witness of the existence of this "Rainbow Family" as an 'identifiable group' with 'members'. Government presented witness and evidence that demonstrated to that Court that those defendants in that case were 'leaders, organizers" and/or 'members' of said 'Rainbow Family of Living Light, unincorporated association".

In that case in Pennsylvania, no testimony or facts were introduced by the defendant's in dissent of their being labeled 'members" of "Rainbow Family" or "Rainbow Family of Living Light" which the government has legally defined as a "loosely structured unincorporated association". Those defendants also did not present facts or testimony or contradict the legal existence of the "Rainbow Family" or "Rainbow Family of Living Light, unincorporated association". Defendant's, in that case, did object to the defendant's being labeled as 'leaders". This element of crime was removed from this defendant's case.

The relevance of the Kalb case in Pennsylvania is evident in the Order of this Court in dismissing Defendant's Motion to Dismiss. And because of the relevance this Court and this Plaintiff places in that District Court and in the 3rd Circuit, the testimony and evidence presented by the government in that case, and the circumstances surrounding the citation of those defendants is relevant to this defendant's case.

The government, in that case, presented a definition of what "Rainbow Family" is, and what 'Gatherings" are; this defendant contends this was an inaccurate portrayal. No factual evidence was presented by any of the defendants, in that case, therefore these definitions stand, and the 3rd Circuit Court of Appeals relied only on the factual testimony and evidence as presented by the government.

Defendant Adams, faced with a Hobson's Choice in this circumstance, selected what he considers to be a legal path to walk, in resolution of this situation the District Court in Pennsylvania expressed as taking up too much court time and energy.

Within this regulation is contained the elements of solution to end the confrontational relationship between Forest Service and these Gatherers. Forest Service could apply this regulation in a culturally sensitive manner through the use of the section of the regulation concerning "shall offer an alternative".

Defendant Adams petitions this Court for a full hearing on this matter. Defendant Adams petitions this Court for full redress of grievance, due process. Adams will proceed to be 'on point" with testimony and evidence but respectfully asks leave of this Court to present a full picture of these circumstances.