Office of the Circuit Executive

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEXIS BLACK,
Plaintiff,
and
BRIAN MICHAELS; BARRY ADAMS,
Plaintiffs-Appellants,
v.
RUSSEL ARTHUR, an individual and
in his official capacity as Special
                                                     No. 98-36044
Agent Law Enforcement Officer
                                                     D.C. No.
of the Forest Service of the United
                                                     CV-97-01798-ALH
States Department of Agriculture;
JOHN CARPENTER, an individual and
in his official capacity as Special
Agent Law Enforcement Officer
of the Forest Service of the United
States Department of Agriculture;
UNITED STATES FOREST SERVICE,
United States Department of
Agriculture,
Defendants-Appellees.
                               1541

ALEXIS BLACK; CARLA NEWBRE;
JOHN JOHNSON; SUSAN BERNSTEIN,
Plaintiffs-Appellants,
and
BRIAN MICHAELS; BARRY ADAMS,
Plaintiffs,
v.
RUSSEL ARTHUR, an individual and
                                                     No. 98-36046
in his official capacity as Special
                                                     D.C. No.
Agent Law Enforcement Officer
                                                     CV-97-01798-ALH
of the Forest Service of the United
States Department of Agriculture;
                                                     OPINION
JOHN CARPENTER, an individual and
in his official capacity as Special
Agent Law Enforcement Officer
of the Forest Service of the United
States Department of Agriculture;
UNITED STATES FOREST SERVICE,
United States Department of
Agriculture,
Defendants-Appellees.
Appeals from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
September 15, 1999--Portland, Oregon
Filed February 9, 2000
Before: Ruggero J. Aldisert,1 Andrew J. Kleinfeld, and
William A. Fletcher, Circuit Judges.
_________________________________________________________________
1 Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
                               1542

Opinion by Judge William A. Fletcher
_________________________________________________________________

COUNSEL
Reed Lee, JD Obengerger and Associates, Chicago, Illinois,
for plaintiffs-appellants Black, et al.
Brian Michaels, Eugene, Oregon, for plaintiffs-appellants
Michaels, et al.
Howard S. Scher, United States Department of Justice, Wash-
ington, D.C., for the defendants-appellees.
_________________________________________________________________
OPINION
W. FLETCHER, Circuit Judge:
Appellants argue that a United States Forest Service regula-
tion requiring group use permits for use of National Forest
lands is unconstitutional. Our recent decision in U.S. v. Linick,
195 F.3d 538 (9th Cir. 1999), holding that the regulation in
question is not unconstitutionally overbroad, forecloses part
of their argument. It does not foreclose, however, other argu-
ments, including appellants' central argument in this case that
the Forest Service cannot constitutionally require the signa-
ture of a Rainbow Family member as a condition of granting
a permit.
I
Appellants are members of the Rainbow Family, a loosely
structured group of people who gather periodically on
National Forest land to pray for peace and to discuss political
and environmental issues. Their gatherings have occurred at
least once annually since 1972 and have become more fre-
quent in recent years. Attendance at the weeks-long events
can exceed 20,000 people.
                               1545

In the past, the Rainbow Family customarily has communi-
cated with the Forest Service prior to the gatherings in order
to plan logistics. This communication has yielded "operating
plans" detailing things like the location of food preparation
areas, the location of latrines, the timing of gathering activi-
ties, and the nature of clean-up and restoration activities.
After Forest Service regulations implementing procedures for
the operating plans were held unconstitutional in 1988, see
United States v. Rainbow Family, 695 F. Supp. 294, 312-13
(E.D. Texas 1988), the regulations were amended. Appellants
challenge Subpart B of the amended regulations, 36 C.F.R.
S 251.
Subpart B governs "special uses," meaning uses other than
timber harvesting, grazing, and mineral extraction. See 36
C.F.R. S 251.50(a). Most people engaging in a special use,
e.g., hikers, campers, hunters and boaters, do not need a per-
mit. See 36 C.F.R. S 251.50(c). Section 251.50, however,
requires special use authorizations for some non-commercial
group uses. See 36 C.F.R. S 251.50(c)(1)-(3). Rainbow Fam-
ily gatherings constitute such a group use because they
involve gatherings of 75 or more people. See 36 C.F.R.
SS 251.50(c)(3), 251.51.
Appellants challenge the special use permit regulation as
unconstitutional. They assert that because the regulation vests
unbridled discretion in the Forest Service, it constitutes an
invalid prior restraint. In addition, they strenuously object to
the signature requirement found in S 251.54(h)(1)(viii),2
which they maintain constitutes an invalid prior restraint and
an invalid time, place, and manner restriction. The district
court dismissed plaintiffs' action for failure to state a claim.
We affirm the dismissal, although for different reasons from
those given by the district court.
_________________________________________________________________
2 This regulation has recently been renumbered. The signature require-
ment can now be found at 36 C.F.R. S 251.54(g)(3)(ii)(H).
                               1546

II
[1] As a threshold matter, we reject appellants' contention
that the challenged Forest Service regulation does not apply
to them because a Rainbow Family gathering does not have
an internal governing structure that would make it a "group."
"Group use" is defined in the regulations as "an activity con-
ducted on National Forest System lands that involves a group
of 75 or more people, either as participants or spectators." 36
C.F.R. S 251.51. It is undisputed that Rainbow Family gather-
ings involve more than 75 people. The Rainbow Family's
internal governing structure, or lack thereof, is not relevant to
whether such gatherings fall within the scope ofS 251.51.
[2] Appellants argue that the special use regulations consti-
tute an invalid prior restraint because they vest unbridled dis-
cretion in the Forest Service to determine who gets a permit
and under what conditions. We recently resolved that issue in
a criminal proceeding brought against members of the Rain-
bow Family. See United States v. Linick, 195 F.3d 538 (9th
Cir. 1999). In Linick, we held that although 36 C.F.R.
S 251.56(a)(2)(vii) once "vest[ed] the Forest Service with the
power to restrict the use of public land for an unlimited num-
ber of reasons," it no longer does so. Id.  at 541. The Forest
Service's recently-promulgated interpretive rule, see 64 Fed.
Reg. 48,959 (1999), "saves the scheme" by enforcing "a self-
imposed limit on the Forest Service's previously unbridled
discretion in attaching terms and conditions to permits."
Linick, 195 F.3d at 542-43. In light of the interpretive rule, we
held that 36 C.F.R. S 256.56 constitutes neither a facially
invalid prior restraint nor a facially invalid time, place, or
manner restriction. See id. at 543.
[3] Appellants further argue that the Forest Service regula-
tion should be subjected to strict scrutiny because, though
ostensibly content-neutral, it was in fact intended to target the
Rainbow Family and to stifle its message. The impetus for the
Forest Service's amending its regulation regarding group use
                               1547

permits may, indeed, have been its prior experience with
Rainbow Family gatherings. But, as we wrote in Foti v. City
of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998), even if the
Forest Service had specific experiences in mind when it
adopted the challenged regulation, "[t]he appropriate level of
scrutiny is tied to whether the statute distinguishes between
prohibited and permitted speech on the basis of content." The
challenged regulation manifestly does not so distinguish;
rather it is a generally-worded, facially neutral permit regula-
tion applicable to all groups of 75 or more people, whether the
activity at issue is speech or not.
[4] Finally, appellants argue vigorously that the require-
ment of 36 C.F.R. S 251.54(h)(1)(viii) that a permit be signed
by a member of a group renders the regulation unconstitu-
tional. Appellants maintain that this section, which requires a
person 21 years of age or older to "sign a special use authori-
zation on behalf of the applicant," 36 C.F.R.S 251.54(h)
(1)(viii), impermissibly chills speech by imposing "an unde-
fined and unlimited vicarious liability upon the using
`group.' " We find nothing in the regulation that gives the
Forest Service a "vague and undefined" power to impose "un-
explained blanket liability." To the contrary, the group liabil-
ity imposed for violation of the permit is strictly confined. As
we construe the regulation (and as the government agreed at
oral argument), the only group liability provided under the
regulation for failure to comply with the permit is revocation
and suspension of the permit. See 36 C.F.R.S 251.60(a)(1).
[5] Appellants maintain, further, that an individual signing
a permit on behalf of the Rainbow Family will be subject to
individual liability as a result of his or her signature. We do
not construe the regulation to permit such liability against an
individual signer. An individual who signs a permit under the
regulation does so as an agent for the group and provides his
or her name and address solely in order to allow "notice of
actions pertaining to the application" to be communicated to
                               1548

the group. See 36 C.F.R. S 251.54(e)(1);3 see also S 251.54-
(h)(1)(viii). We construe the regulation as providing for no
individual liability whatsoever as a result of the signature,4
and the government explicitly agreed with this construction at
oral argument. An individual may, of course, be subject to lia-
bility for his or her individual acts, but that liability is neither
increased nor decreased as a result of signing the permit on
behalf of the group.
III
We emphasize that no specific application of the chal-
lenged regulation is before us here. This case does not pres-
ent, and we do not decide, whether the Forest Service's group
permitting process has been or will be unconstitutionally
applied to the Rainbow Family.
AFFIRMED.
_________________________________________________________________
3 This provision is now found at 26 C.F.R. S 251.54(d)(1).
4 We note that Section 251.56 (d) provides that "[h]olders shall pay the
United States for all injury, loss, or damage, including fire suppression
costs, in accordance with existing Federal and State laws." Because indi-
viduals who sign an application as an agent for a group do not thereby
become holders, see 36 C.F.R. SS 251.51, 251.54(h)(1)(viii), there is no
possibility that they could be held personably liable under this provision.
                               1549



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