Black, Michaels, Adams, Newbre, Johnson, & Bernstein v. Arthur & Carpenter, Oregon (Dec. 18, 1997)

At the Oregon national gathering in 1997, The people in Seed Camp again presented a united front to the LEOs who approached them and asked that someone sign a permit, and six of them were given tickets

Three were targeted for tickets essentially because of the pre-gathering work they did, in particular going to town and connecting with store-keepers, social service agencies, and the like, in an attempt to set up some lines of communication and address any concerns they might have. At no time were any of the three of them asked to sign a permit.

One of those people had never entered into a conversation with the FS and was targeted only due to the fact that on that town trip Carla Newbre visited the incident command post to request that notification be given onsite for any upcoming town meetings. This person also introduced herself to the head LEO and for her courtesy was one of the five people placed on their “list.”

Plunker offered himself as a ticketee in place of her, and the FS accepted that.

One other person who was on the list (they came into camp one day with the five names already decided and ticket books in hand) was not onsite, and once again, the FS accepted a substitute volunteer, who demanded he be given a ticket.

It was just assumed by those onsite that solidarity would be maintained, no permit would be applied for, and that the five people ticketed would fight the case in court and win. Thousands of people were even prepared for a FS blockade of the camp, should things come to that. Solidarity was maintained, except for the one young woman who signed the permit – anonymously – on her way out of the gathering.

This woman was at her first gathering with a preschool aged child, and was approached in the parking lot by some LEOs who presented her with the papers and threatened her with fines and jail time if she didn’t sign. After doing so, she was frightened enough that she left and didn’t return. The court records of the suit by the Rainbows against the Forest Service say that she signed the application on her way out and she signed the permit itself when she was back in her hometown of Portland.

As a result, the ticketees never got to fight that case. Some of them later sued the FS for selective enforcement, especially challenging the signature requirement.

One of the six ticketees was a licensed attorney, and he filed against two Forest Service law enforcement officers for “violation of civil rights” and “malicious law enforcement”, asking for monetary compensations of $400,000 for each plaintiff, then after getting a brief filed by the Forest Service lawyers in response, he abandoned this motion and filed another asking that the judge issue a “declaratory judgment” that parts of the regulations did not apply to Rainbow Gatherings and that other parts were unconstitutional.

He claimed that what the Forest Service called “the Rainbow Family” was in fact nothing more than a temporary collection of gatherers. It was not incorporated or registered in any form under any laws, and it was not a membership organization. It had no legal authority to appoint agents who could enter into binding contracts. This structurelessness was “an integral and inextricable feature of the Rainbow Gathering, indeed the only unifying force among those attending”. This ideal of no structure and no authority, but instead voluntary cooperation, was objectionable to Forest Service law enforcement and the underlying basis for the punishments. The regulation was worded such that it could only be applied to groups with “established internal authority” and imposed a structure on the gathering that was not real and not wanted.

Also, out of all the regulations there were that required someone to sign an application and then get a permit from an official, only this one required that the permit be signed by the recipient as well. The only reason for this addition was so the Forest Service could subject the group to additional “terms and conditions” above and beyond those ordinarily imposed by law upon everyone. As such, it was not narrowly tailored, because it imposed a special burden on the Rainbow Gathering by requiring a signature, and it served no significant government interest that wasn’t already served by existing law.

There were no “express substantive and procedural standards” to insure a permit was not denied “upon constitutionally improper grounds such as an effort to suppress a distasteful viewpoint or form of worship”. It also allowed the officials to impose additional conditions after the permit was granted, or even revoke a permit later, and thus be “able to effect untimely denials as easily as timely ones”. This could be done “by administrative action alone”.

The regulation also deliberately targeted Rainbow gatherers because it had requirements that that they especially would not be able to meet. It imposed a “vicarious liability” upon all gathering goers. The Forest Service refused to acknowledge that many gatherers voluntarily took part in cleanup efforts and cooperated with resource officials, and instead insisted that such efforts to protect resources they could only be insured by imposing a collective legal liability.

And there had been “insufficient notice of rulemaking”. The Forest Service had compiled several “Rainbow Reports” from resource rangers that praised the cleanup efforts at gatherings, and had not made them known and available before the 90 day public comment period in 1995, and if they had, the nature of the comments might have been different and the final rules might have taken a form more favorable to Rainbow ways.

On the 25th of August in 1998, after the next national gathering in Arizona, the judge dismissed the suit, deciding against the Rainbows.

The judge ruled that “the definition of ‘group use’ clearly includes Rainbow Gatherings.” A word in a regulation must be taken to have its “common, broad meaning” unless another meaning is clearly spelled out in the regulation. The internal structure of the group was irrelevant.

The regulation was content neutral, because it applied equally to all groups of 75 or more, and was narrowly tailored to serving the public interests of protecting the forest, promoting safety and health, and allocating space among competing uses. It also left ample alternatives for expression, because the Forest Service was required to offer an alternative time, place, or manner if a permit was not granted, and it did not affect groups of 74 or less. And “finally, because the burden imposed on expression by the regulation is not substantially greater than a burden imposed by alternative regulations, it is irrelevant that the alternatives to this regulation might equally serve the government’s interests.”

The court disagreed that the permit requirement “delegates unbridled discretion to the permitting official because it does not set standards for granting or denying permits.”, as the judge in Gideon Israel’s case had. There were seven conditions clearly set out that were all content-neutral and had nothing to do with speech or religion, and the official was required to grant a permit if they all were met.

To the allegation that the regulation was deliberately targeted at the Rainbow Family, the judge said, “Even if the Forest Service’s motive in adopting the regulations was animus towards Rainbow gatherers or their message, the regulation is … facially neutral and justified without reference to the content of speech.” Simply because the Rainbows felt unable to meet the signature requirement, did not make the regulation unconstitutional. “The regulation imposes the signature requirement equally upon all applicants, regardless of the content of their speech.”

And finally the judge decided that all the rules for proposing rules had been followed by the Forest Service, and they did not require that “every bit of background information used by an administrative agency be published for public comment”.

September 16th, 2016 by John Anderson