[This was going to be a chapter in my book Rainbow Gatherings. In the final version, this and two more chapters were condensed considerably, broken into parts, and inserted into the main story. They were based on original court records obtained from prop1.org.
A shortened version of the part immediately below was placed at the beginning of Chapter 15, The Too Easy Gathering, about the 1996 Missouri gathering.]
– Butterfly Bill
A new rule
On September 29, 1995 some changes to the Forest Service regulations went into effect.
Title 36, Part 251, Section 251.50 of the Code of Federal Regulations had said:
(a) All uses of National Forest System lands, improvements, and resources, except those provided for in the regulations governing the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222), are designated “special uses.” Before engaging in a special use, persons or entities must submit an application to an authorized officer and must obtain a special use authorization from the authorized officer unless that requirement is waived by paragraph (c) of this section.
It went on to say:
(c) A special use authorization is not required for noncommercial recreational activities such as camping, picnicking, hiking, fishing, hunting, horseback riding, and boating, as well as noncommercial activities involving the expression of views such as assemblies, meetings, demonstrations, and parades, except for:
A new item was added to the exceptions:
(3) Noncommercial group uses as defined in Sec. 251.51 of this subpart.
Section 251.51 first defined “noncommercial” thus:
Commercial use or activity — any use or activity on National Forest System lands
(a) where an entry or participation fee is charged, or
(b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.
Noncommercial use or activity — any use or activity that does not involve a commercial use or activity as defined in this section.
Then it defined “group”:
Group use — an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators.
This meant that a Rainbow Gathering now fit the definition of a noncommercial group use, since it had more that 75 people attending, and it was, even in the words of many a Howdy Folks sent out by its focalizers, “a totally free and noncommercial event”. And as such, it now required a “special use authorization” issued by “an authorized officer”. A shorter name for this special use authorization was also provided among the definitions:
Permit — a special use authorization which provides permission, without conveying an interest in land, to occupy and use National Forest System land or facilities for specified purposes, and which is both revocable and terminable.
For years, the position of the Rainbow Family was expressed by what I had written down in the Mini-Manual in 1995, words that I had carried forth from the previous version:
We do not sign permits or agreements with the government. Our nonhierarchical structure gives nobody the authority to sign such a thing, and we are exercising our rights, guaranteed by the Constitution, to assemble peaceably.
These words were accompanied by a quote of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
In the eyes of almost all gathering goers, any rule or law requiring a permit to gather from the Forest Service, and which gave them the power to deny such a permit, was an abridgement of the Family’s right to assemble, and therefore unconstitutional. “Our God-given rights” in the words of some of the most vocal gatherers, part of the life, liberty, and pursuit of happiness that our Creator had endowed us with unalienably, as it said in the Declaration of Independence. To sign a permit was surrendering these rights and the first step on a slippery slope that led to more and more losses of our freedom.
Section 251.54 went on to describe what must be done to obtain a permit:
(a) Early notice. When an individual or entity proposes to occupy and use National Forest System lands, the proponent is required to contact the Forest Service office(s) responsible for the management of the affected land as early as possible in advance of the proposed use.
(b) Filing proposals. Proposals for special uses must be filed in writing with or presented orally to the District Ranger or Forest Supervisor having jurisdiction over the affected land (Sec. 200.2 of this chapter) …
(c) Rights of proponents. A proposal to obtain a special use authorization does not grant any right or privilege to use National Forest System lands. Rights or privileges to occupy and use National Forest System lands under this subpart are conveyed only through issuance of a special use authorization.
(d) Proposal content –
(1) Proponent identification. Any proponent for a special use authorization must provide the proponent’s name and mailing address, and, if the proponent is not an individual, the name and address of the proponent’s agent who is authorized to receive notice of actions pertaining to the proposal.
(2) Required information –
(i) … A proponent for noncommercial group uses shall provide the following:
(A) A description of the proposed activity;
(B) The location and a description of the National Forest System lands and facilities the proponent would like to use;
(C) The estimated number of participants and spectators;
(D) The starting and ending time and date of the proposed activity; and
(E) The name of the person or persons 21 years of age or older who will sign a special use authorization on behalf of the proponent.
This all presented complications to several of the ways the Family made gatherings happen.
“Early notice” was vaguely defined, and sometimes, when the gathering was to be in high mountains where scouting for sites had to wait until the previous winter’s snow had melted, it was hard to look at potential sites much before the last few weeks of May, less than a month before the first Seed Campers would arrive.
The requirement that a certain individual be designated to represent the Family was contrary to the idea that there were no leaders. No individual could act as a representative of all the gatherers, and give the rangers assurances that their requests would be carried out. Nobody in the Family had the powers of a manager or administrator who could give orders and have punitive powers to enforce them. The gathering had no owners or elected officials, or individuals who could coordinate the whole gathering.
It was only thru respect gained from one’s work and thru one’s powers of persuasion that one person could get other Rainbow folks to comply with requests and be effectively a leader, and then only in certain narrow ranges of activities. To get things done, one had to work thru many people and councils, and it was felt that FS rangers succeeded the most when they learned to deal with these directly, as gatherers do. The Forest Service wanted a person to relay and execute orders, and no gatherer could be guaranteed to be able to do this.
In addition, Sec. 251.56 (d) said:
Liability. Holders shall pay the United States for all injury, loss, or damage, including fire suppression costs, in accordance with existing Federal and State laws.
Theoretically this meant the permit signer could be asked to pay all the costs of the law enforcement officers that came every summer to the national gathering, as well as the cost of putting out a forest fire if one started, or any other costs they deemed necessary. One person could owe hundreds of thousands of dollars. So far this hadn’t happened (no individuals in the Family were asked to pay for the cost of extinguishing the Wyoming fire) but it remained a possibility.
Permits before this rule
This was not the first time the Forest Service demanded that a permit be issued for a Rainbow Gathering. They had done it off and on since the very first gathering in 1972. Plunker wrote these words in an article called “Permit Herstory” that I originally found on the website www.welcomehome.org:
In 1972 in Colorado, the U.S. Forest Service told us that we needed a permit to Gather and that we would not receive one, for a variety of reasons. At one point we were blockaded by the government (varying agencies), went to U.S. District Court, and we were denied the right to Gather. The People, bottled up in the town of Granby, Colo., marched out of the parking lot where they were living, waiting for the blockade to lift – under gun (meaning that armed government personnel were stationed around the camp and in the hills between the People and the Gathering where another 1,000 people were already gathered). The blockade was finally broken and the People gathered in peace. (I have written 53 pages on the legal history of the Gatherings. Upon specific request I would send a copy to the Council Liaison crew in Michigan).
For the next several Gatherings the permit process was largely ignored. The government insisted that we have one, we insisted that we would not, and that was the status of matters until Montana, 1976. Under reassurances that the government would not try to regulate us out of existence, to make a long story short, our Liaison crew at the time negotiated a permit for our Montana Gathering. We then had a permit in Montana 1976, New Mexico 1977, and Oregon 1978.
In Oregon in 1978, the local county government decided to begin regulating us. We realized at the time that if the opportunity presented itself, these various government agencies would halt us through regulatory processes. We resisted all attempts on the part of the county or the State of Oregon to impose regulations (other than the state health inspector’s recommendations). For a complete herstory of the Oregon scene, there is a copy of a report I did and the U.S. Forest Service reports on each of these Gatherings.
In Arizona, 1979, we had a permit, and this was one of the better phases of government-Rainbow relations. All through the entire permit process, I repeatedly objected to our need or the government’s right to “permit” us anything related to peace assemblies. I also objected (as did many of the Council) to paying for a permit, based on the fact that this is a type of tax and that the money would be going to the general fund of the government (federal), and that some of the money would then be used for the Offense Department (making weapons), which we all object to.
In West Virginia in 1980, we had poor relationships with the Forest Service. In the end we negotiated a “permit under protest” in which we wrote out and listed our protests, and had hundreds of folks at the Gathering sign. We were in court twice during the West Virginia event over the permit process. I ain’t going to explain it all, but the gist of the matter was that we determined that it was unhealthy for our Council to apply or accede to the permit process.
In Washington, 1981, we refused to apply for a permit. Instead we tried to negotiate a “working agreement” of the type that we subsequently put together in Idaho, 1982. The government sent to us a permit after the Washington Gathering in 1981, and requested that we that we send them the required $25 fee. They attached the “working agreement” that the Council had worked out with the Washington Forest Supervisor. We sent a letter back to them refusing to sign the permit and refusing to pay the permit fee (tax).
In Idaho 1982, the government came to Council, approx. June 21, 1982, in the form of Gene Benedict, Forest Supervisor officer, who indicated that the U.S. Forest Service expected us to apply for a permit. The Council could not reach consensus on making such an application.
We sat in a council, about 40 people out of the 100 or so folks who were gathered at that time, maybe more. The camp was well represented. The feather was passed and we all discussed the various viewpoints.
When Gene indicated that it was very hard to try to get several thousand people to agree to the permit, but that there were only the few in number there at that time (approx 100 to 200), and that the government could move us out of the site with so few of us present, I replied that it was true. The government could move the few of us, the hundred or so, and we would have to move around the state in peace. But the fact is, we had done that move in Arkansas in 1975, and we wound up traveling around the state until the 27th of June. This was a drag on our energies, the government’s energies, and every little town that we stopped at. I expressed what an immense drag that it would be to have us few Rainbows wandering around the state of Idaho looking for another site and not being allowed to gather somewhere and stay, and thousands of other Rainbows wandering around looking for the rest of us. What a picture!
The ranger, Gene, was able to see the difficulties in that scenario, and at that time we began to negotiate the “working agreement” that we finalized in a formal signing in Council (at the Gathering) – two originals, exchange of originals, and copies of originals. Our people signed for the Rainbow Tribal Council and Gene Benedict signed for the Forest Service on July 3rd, I believe. We felt that the government and local sheriff’s authorities overstepped their duties regarding our Gathering and we sent the letter to Dave Scott and to the U.S. Attorney’s office. We had hoped for a definite reply. One additional point is that the Mud Creek “affinity group” in Idaho apparently were ready to apply for a permit but were turned down by the Forest Service and run out of that site by the sheriff. The reason the Forest Service refused them was because the Gathering Council itself remained up on the hill. (Divide and conquer is an old story.)
Permits declared unconstitutional
In 1988, The Forest Service law enforcement officers (LEOs) put up roadblocks on all of the roads leading into the site of the national gathering in Texas. But the Rainbows carried in supplies thru the woods and continued to set up kitchens. (There was a path thru the woods that they started calling the “Ho Chi Minh Trail”.) Some Rainbows with legal experience filed a complaint in a local federal court, which became USA v. Rainbow Family. A judge appropriately named William Wayne Justice (Justice Justice) ruled that the closure violated the First Amendment rights of the Rainbow Family to peaceably assemble, and he ordered the Forest Service to remove all the blockades.
He based his decision on how Section 251.50 at that time stated that two of the exceptions for which a special use authorization were required were:
A “recreation event,” for which a special use permit must be obtained under the regulations, is defined as “a planned, organized, or publicized recreational activity engaged in by a total of ten (10) or more participants and/or spectators, that involves competition, entertainment, or training such as, but not limited to, animal or vehicle races or rallies, dog trials, fishing contests, rodeos, fairs, regattas, and games.
A “special event” for which a special use permit is also required, is defined as “a meeting, assembly, demonstration, parade, or other activity, engaged in by ten (10) or more participants and/or spectators, for the purpose of expression or exchange of views or judgments.”
He noted that:
Based upon this definitional distinction between “recreation events” and “special events,” the regulations prior to May 10, 1988, also established separate standards for the denial or issuance of a special use permit.
A special use permit for any use other than a “special event” (i.e., for recreation events or for commercial uses of National Forest lands), may be denied if
(1) the proposed use “would be inconsistent or incompatible with the purpose(s) for which the lands are managed, or with other uses;”
(2) the proposed use “would not be in the public interest;”
(3) the “applicant is not qualified;”
(4) the use would “otherwise be inconsistent” with federal or state law; or
(5) the “applicant does not or cannot demonstrate technical or financial capacity.” [36 C.F.R. s 251.54(h).].
As to “special events” themselves, different criteria for the denial or issuance of a special use permit are set forth in the regulations than for other uses. The regulations provide that a permit application is to be granted unless the reviewing officer determines that:
(1) The special event would conflict with another use which has been previously approved by special use authorization, contract, or approved operating plan; or
(2) The special event would present a clear and present danger to the public health or safety; or
(3) the special event would be of such nature or duration that it could not reasonably be accommodated in the particular place and time applied for; or
(4) The application proposes activities that are contrary to the provisions of Part 261 of this chapter [concerning prohibited uses of National Forest lands and property] or the provisions of any other Federal or State criminal law. [36 C.F.R. s 251.54(i)].
Thus, on their face, the regulations distinguish between expressive and other forms of conduct, and provide different grounds for the approval or denial of a special use permit based upon that distinction.
Because of this facial differentiation between expressive activity and other forms of group activity in the National Forests, the permit regulations were held invalid under the First Amendment, two years ago, by the United States District Court for the District of Arizona. [United States v. Israel, (May 10, 1986).]
The “Israel” in the case he mentioned was a Rainbow brother named Gideon Israel, who had volunteered to be one of two accepting a ticket for an unpermitted regional gathering in Arizona. The ruling in that case was short and simple:
The Forest Service requires groups of ten or more people who gather on Forest Service land “for the purpose of expression or exchange of views or judgments” to apply for a special use permit. Such a regulation impermissibly singles out those who wish to gather in order to exercise their First Amendment rights. The Court finds that this regulation is therefore UNCONSTITUTIONAL.
The Forest Service has every right to regulate large-group use of government land. If the Forest Service wishes to regulate large groups its regulation must not only be content-neutral, but must apply to ALL large groups.
IT IS ORDERED that the defendants’ motions to dismiss are GRANTED. The criminal charges pending against defendants are DISMISSED.
“Content neutral” meant that the regulation did not depend on what was being said, written, or expressed in any other way by the people subject to the regulation. Conservative Republicans were supposed to be subject to the same permissions and restrictions as Rainbow anarchists.
Justice Justice continued in his own ruling:
The Israel ruling prompted the Forest Service to revise the regulations, in the form of the interim rule published May 10, 1988. The interim rule does not alter the general special use permit scheme outlined above; rather, it amends the existing regulations in several respects. Most notably, the interim rule eliminates the previous distinction between “special event” and “recreation event,” and creates instead a single category of “group event” for which a special use permit is required. …
A “group event” requiring a special use permit is defined under the interim rule as “an organized or publicized activity involving, or expected to attract, twenty five or more persons and the use of National Forest System lands, resources, or facilities.”
He went on to state:
The interim rule was published on May 10, 1988, and states that it is to take effect upon publication. Moreover, no opportunity was provided for public comment or participation in advance of the publication; rather, the interim rule provides for opportunity to comment from the date of publication until July 11, 1988. …
Thus, it is incontestable that the interim rule was adopted without adhering to the requirements either for prior notice and comment, or for publication thirty days in advance of the date the rule is to take effect, as specified in 15 U.S.C. s 553(b), (c), and (d). …
The Forest Service obviously could have drafted and published proposed revisions to the regulations for public comment immediately after the Israel decision, or even as late as the fall or winter of 1987-1988, had it so desired; but it did not do so, for unexplained reasons.
In short, it appears that the Forest Service has itself been dilatory in failing to offer the proposed revisions to the special use regulations long before now.
In conclusion he said:
The appropriate action for a court to take where a regulation has been improperly adopted, without notice and opportunity for comment, is to declare the regulation ineffective.
It should be noted that it was mainly because of the procedural detail of insufficient notice, and not the broader issue of First Amendment rights, that the Justice made his ruling.
The Forest Service strikes back
Five years after the Texas gathering, the Forest Service responded with another rewriting of the regulations that again did away with the distinction between the two types of activities, and in their words. In 36 CFR Parts 251 and 261, Land Uses and Prohibitions, Final Rule, that they published in the Federal Register on August 30, 1995, they wrote:
As a result of these court rulings, on May 6, 1993, the Forest Service published a proposed rule to regulate noncommercial group uses and noncommercial distribution of printed material on National Forest System lands in compliance with First Amendment requirements of assembly and free speech (58 FR 26940).
To achieve this goal, the proposed rule contained specific, content-neutral criteria for evaluating applications for noncommercial group uses and noncommercial distribution of printed material and required that the same criteria be applied to those activities regardless of whether they involve the exercise of First Amendment rights. The proposed rule also required an authorized officer to notify an applicant in writing of the reasons for denial of a special use authorization and provided for immediate judicial review of a decision denying an authorization.
And this time they presented it to the world in the proper manner:
In addition to publishing the proposed rule in the Federal Register, the Forest Service gave direct notice of the proposed rule to numerous interested parties and invited their comments. The comment period for the proposed rule lasted 90 days, closing August 4, 1993.
In this same article the Forest Service says it got 603 comments. These comments were quoted and responses were given, with some of the similar comments grouped together and given a common response.
A few of the comments did have an effect in changing the final version of the rules. One concerned distributing printed matter on Forest Service land:
The Department has carefully examined the special use authorization requirement for noncommercial distribution of printed material. Based on the comments received on resource impacts and on the Department’s review of resource impacts associated with noncommercial distribution of printed material, the Department has determined that these impacts are not significant enough to warrant regulation at this time. Therefore, the Department has removed from the final rule the special use authorization requirement for noncommercial distribution of printed material.
Several people complained that the threshold number for a group, 25 (up from 10 in the 1980 version), was too small. This was changed to 75:
Based on its review of the comments on the numerical cutoff for a group and of the adverse impacts associated with group uses, the Department has determined that a 25-person threshold is too low and that 75 people would be a more appropriate threshold for applicability of the rule.
The Department recognizes that any numerical threshold is arbitrary in that a group of 74 people could have as much impact on forest resources as a group of 75, and that 25 people could have more impact than 100, depending on the type of activity and the characteristics of the site. Nevertheless, the Department believes that a numerical threshold is the fairest and most objective standard for applicability of the rule and that groups with 75 or more people tend to have a greater impact on National Forest System lands than smaller groups.
The original definition of “Commercial use or activity” was:
any use or activity on National Forest System lands involving the charge of an entry or participation fee, or the purchase, sale, or exchange of a product or service, regardless of whether the use or activity is intended to produce a profit.
The final version had this changed to:
any use or activity on National Forest System lands
(a) where an entry or participation fee is charged, or
(b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.
The addition of “where the primary purpose is the sale” was in response to complaints that:
… the definition for commercial use or activity is too vague and broad and could include activities that are considered to be noncommercial. For example, respondents felt that the following could be considered a commercial activity under this definition:
A scout troop sharing food; A school troop pooling meal and travel expenses; An activity involving the exchange of cleanup chores; An exchange of pocket knives; Bartering; Children trading beads or baseball cards; or A hug, smile, or handshake.
Respondents felt that bonding could be required if the costs of the activity were supported in part by donations; that the term “commercial” should apply to business activities that generate a profit, rather than to the exchange of gifts or barter; and that a better definition of commercial use or activity” would include the phrase “having profit as the primary aim.”
The Department agrees that the definition for commercial use or activity in the proposed rule was ambiguous and could be construed to include some activities that are noncommercial. However, the Department believes that uses or activities that do not have profit as the primary aim may still be considered commercial and that the phrase “having profit as the primary aim” is too vague and too difficult to apply to all the uses and activities on National Forest System lands.
Instead, the Department has clarified the definition for commercial use or activity in the final rule to include only those uses or activities (1) where an entry or participation fee is charged, or (2) where the primary purpose is the sale of a good or service.
Other objections: the First Amendment
But they had reasons for disregarding all the rest of the objections, including the ones that were based on the classic Rainbow arguments. They said:
Freedom of Assembly. Approximately 175 respondents stated that requiring permits for expressive activities violates the constitutional right of assembly. Most of these respondents indicated that the First Amendment right of assembly is absolute and that any attempt to regulate assemblies on public land is invalid per se.
To this they responded:
… the Supreme Court has repeatedly held that the government may enforce reasonable time, place, and manner restrictions on First Amendment activities. Such restrictions are appropriate where they are content-neutral, where they are narrowly tailored to further a significant governmental interest, and where they leave open ample alternative channels for communication of information. Clark v. CCNV, 468 U.S. at 293. …
Permits have been recognized as constitutional restrictions of time, place, and manner for expressive activities when specific and objective standards guide the licensing authority.
The final rule does not restrict, and is not intended to restrict, freedom of thought or expression, nor does the final rule prohibit expressive activities. Rather, the final rule establishes a permit system with specific and objective standards that further the significant governmental interests of resource protection, allocation of space in the face of greater restrictions on the use of public land, and promotion of public health and safety.
The final rule presumes that a special use authorization will be granted and restricts the content of an application to information concerning time, place, and manner for activities subject to the rule. Under the final rule, if an application is denied and an alternative time, place, or manner will allow the applicant to meet the evaluation criteria, the authorized officer must offer that alternative.
To be stated more simply, this meant that the Forest Service could bar one group of people from doing something that would interfere with others in the same place at the same time, like not allowing a motorcycle rally to take place next to a bird watching retreat. But they must find either another place or time for the motorcyclists, or another for the bird watchers. If all have equal opportunity to do their thing at some time, and none is favored by the Forest Service, this maintains freedom of assembly.
“Time, place, and manner” was invoked in the responses to more of the Rainbow comments:
Free Exercise of Religion. Forty-eight respondents commented that the proposed rule infringes on the free exercise of religion. Specifically, these respondents stated that permits are unconstitutional as applied to religious activity, citing Shuttlesworth and Cantwell [two court cases];
that Rainbow Family Gatherings are protected under the free exercise clause of the United States Constitution;
that Rainbow Family Gatherings involve the exercise of religion;
that Rainbow Family Gatherings are a religious experience;
that Rainbow Gatherings provide spiritual growth;
that the woods are the Rainbow Family’s church;
The final rule does not infringe and is not intended to infringe upon the free exercise of religion. Under Shuttlesworth and Cantwell, permits have been recognized as constitutional restrictions of time, place, and manner for activities involving the expression of views, including religious gatherings, when specific and objective standards guide the licensing authority.
Similarly, this final rule is a general regulation in the public interest, does not involve any religious test, and does not unreasonably obstruct or delay activities subject to the rule. Therefore, the final rule is not open to any constitutional objection under the Free Exercise Clause of the First Amendment, even if some of the activities subject to the rule are for a religious purpose.
The need for a permit at all
Some of the commenters questioned why any regulations were necessary at all:
Approximately 130 respondents wrote that the Forest Service has not established a significant interest in requiring a special use authorization for Rainbow Family Gatherings. These respondents stated that concerns associated with Rainbow Family Gatherings have not materialized;
that there has been no significant damage in 20 years of Rainbow Family Gatherings;
that the Rainbow Family has had gatherings of up to a few thousand people for over a two-week period without major impact to the land or input from the Forest Service;
that there is no reason to believe that any similar group would behave differently; and
that reports of Rainbow Family Gatherings do not describe any adverse impacts associated with the Gatherings, which have less impact on forest resources than twelve Boy Scouts.
These respondents further stated that there is no hazardous situation, taking of an endangered species, or out of the ordinary resource damage associated with Rainbow Family Gatherings;
that the forest is left in better condition after Rainbow Family Gatherings, unlike the way most campers and hunters leave public lands;
that at the 1993 Rainbow Family Gathering in Alabama, campsites were carefully planned, garbage was neatly collected and recyclables separated, signs were posted so as to ensure no significant impact on trees, latrines were strategically placed and plainly marked, and an effort was made to notify all Rainbow Family members of the presence of endangered fresh water mussels in a creek at the site;
that there has never been a serious illness or public health problem at a Rainbow Family gathering;
that Rainbow Family Gatherings usually occur without adverse impact to public health, safety, land, or property;
that the Rainbow Family does not need to be regulated by the Forest Service because it has an internal consensus process for regulating itself;
that the Rainbow Family takes care of parking; water supply, kitchen hygiene, latrines, and camp safety;
that the agency’s concern for public health and safety is specious; and that considerations of public health are not related to the purposes of the rule.
These assertions were challenged:
Forest Service experience is that the Rainbow Family has encouraged gatherers to pick up trash, recycle, compost, protect water sources by not camping or washing near them, naturalize campsites and trails, use latrines, and bury waste. The Rainbow Family also has shown a concern for sanitation at the Gatherings. Nevertheless, the annual Gatherings have a considerable impact on the national forest sites selected by the Rainbow Family and in some instances on public health and safety as well. Controlling or preventing adverse impacts on forest resources and addressing concerns of public health and safety are two purposes of this rule.
At the 1987 Gathering in North Carolina, for example, impacts included soil compaction and loss of vegetation in the paths to various camps and in the surrounding fields. At the end of the Gathering, there were four acres of fields and about eight miles of paths 12 to 25 feet wide with compacted soil and complete loss of vegetation. Only the latrines near the fields where activities took place were covered; latrines in outlying camps were left open with human waste exposed.
The Forest Service had to complete rehabilitation of the site because the Rainbow Family had failed to rehabilitate it adequately. Garbage and trash were not always removed promptly from collection points and piled up. Although the garbage and trash were separated, they were mixed together in receptacles provided by the county. At the end of the Gathering, the Forest Service had to remove a dump truck load and a pickup truck load of garbage that had been left along the sides of the main road through the site.
A serious public health threat arose at the 1987 Gathering. At the site of this Gathering, many Rainbow Family members did not boil water from springs that were high in fecal coliform bacteria. During the week of July 1-4, many people had diarrhea and fever. As people at the Gathering became sick, they used the latrines less and less. Uncovered human wastes were scattered where people traveled and camped. Many people went barefoot and their stepping in uncovered human wastes helped transmit the disease.
No mention was made of how the cleanup crew in North Carolina was prevented from doing their job by being arrested by the FS LEOs, but they went on to list other inadequacies of cleanup in Minnesota, Vermont, and Colorado.
They also defended the presence of so many LEOs:
Approximately 25 respondents commented that law enforcement at Rainbow Family Gatherings is unnecessary. These respondents stated that there are no threatening incidents at Rainbow Family Gatherings;
that Rainbow Family members police themselves;
that Rainbow Family members always comply with Forest Service regulations;
that all serious problems and violent individuals are brought to the attention of local law enforcement;
that Rainbow Family Gatherings have posed fewer security problems than other gatherings of equivalent size;
that there are a smaller number of incidents each year; …
The Department disagrees that law enforcement at Rainbow Family Gatherings is unnecessary. Most Rainbow Family members who gather on national forests are peaceful and law abiding. As several respondents noted, however, the annual Gatherings attract some who are not.
Consumption of alcoholic beverages is not condoned by the Rainbow Family and is discouraged within the main Gathering. A separate camp, known as “All Camp, is usually set up along the access route to the main Gathering for those who drink alcoholic beverages. “A” camp has been a problem at several Rainbow Family Gatherings because of its location. “A” Camp gatherers have panhandled, extorted money, and confiscated liquor from people entering the Gathering. Gatherers at “A” Camp also have harassed law enforcement officers and Forest Service personnel.
Forest Service and local law enforcement officers issue a sizeable number of citations for various violations of federal and local law at Rainbow Family Gatherings. For instance, at the 1987 Gathering, there were 311 violations, including citations for driving violations, resource violations, public nudity, impeding traffic, public nuisance, and interfering with an officer. After the Gathering, marijuana plants sprouted where the soil had been dug up by members of the Rainbow Family to plant flowers. Within three weeks after the Gathering, the Forest Service found seventeen marijuana plants approximately one to two feet tall growing from seeds scattered from the handling of marijuana.
To the accusation that the Forest Service was deliberately picking only on the Rainbow Family:
Seventy-two respondents stated that the proposed rule is a direct attack on the Rainbow Family or is written with the Rainbow Family in mind. Specifically, these respondents believed that the Rainbow Family is the group most affected by the proposed rule; that no other group is mentioned in showing a need for the regulations
The intent of this rule is not to break up or prohibit any group uses, including Rainbow Family Gatherings. Rather, the intent of this rule is to control or prevent harm to forest resources, address concerns of public health and safety, and allocate space. In United States v. Israel and United States v. Rainbow Family, the Forest Service was not attempting to prohibit the Rainbow Family Gathering, but rather to enforce existing group use regulations where the Rainbow Family had failed to obtain a special use authorization.
One person representing the whole Family
Then they took up the classic argument that no individual can represent a group that doesn’t exist:
Approximately 19 respondents indicated that it is not appropriate to make one individual responsible for an entire group. Specifically, these respondents stated that individual group members will no longer be responsible for themselves;
that individuals should accept responsibility only for themselves;
that it is reasonable for a group to give a person’s name in the spirit of cooperation, but that it is not reasonable to require one person to assume responsibility for others;
that a group should take responsibility for itself, and that if one person signs a permit, the group’s solidarity will be broken;
that this requirement is unreasonable if a group is not a legal entity and acts by consensus rather than by hierarchy;
that if no representative from the group will sign because the group has no leader and because decisions are made by consensus.
It is not appropriate or necessary for each member of a group to sign a special use authorization. It is also not appropriate or necessary for one member or a few members of a group to assume personal responsibility for the actions of other group members. Individual group members are personally responsible for their own actions. A person who signs a special use authorization for a noncommercial group use acts as an agent for the group, but does not assume personal responsibility for the group’s actions.
However, it is appropriate and necessary to ensure that a group will be responsible for the actions of its members as a whole that relate to the use and occupancy of National Forest System lands by requiring a person or persons to sign a special use authorization as an agent or representative of the group. Requiring that a person or persons sign the special use authorization on behalf of the group will not weaken the group’s solidarity; on the contrary, this requirement can serve to enhance the group’s solidarity by ensuring that the group will take responsibility for its actions. By 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. …
As shown by the reports on the 1991 and 1992 Rainbow Family Gatherings, if a group does not designate a representative or representatives, the Forest Service has to deal separately with various individual members and subgroups. Informal agreements made with one individual member or sub-group are not always respected by other group members, which makes it difficult for the agency to obtain commitments from the group as a whole. The special use authorization process will allow the agency to obtain commitments from the Rainbow Family that apply to the group as a whole.
There were other comments on finer points of the language in specific sections, but the Forest Service defended its position against all of these.
A new reality
So now there were new regulations requiring someone to come forth from the gatherers and apply for and be granted a permit by the local National Forest Supervisor. For seven years, since the Texas decision, there had been no such requirement, and no possible justification for the Forest Service LEOs to try to block the entry to a Rainbow Gathering. But now there was a new set of rules, carefully crafted by the Forest Service so they could not be annulled again by a court decision. The old protests by the Family about the permit being an unconstitutional abridgement of out right to assemble were no longer regarded as valid; now it was a time, place, and manner restriction that was content-neutral and narrowly tailored to fit a specific government interest.
And as many people in the Family as before were against the very idea of someone asking for permission to gather, and as many of them were willing to go the path of defiance and risk the consequences of confronting the police rather than submit and sign, or support someone else signing.
This opposition was by no means universal in the Family. Some people didn’t take the liability provisions seriously; they believed that no reasonable person could expect one person in a group consisting largely of poor hippies to be able to pay hundreds of thousands of dollars, so nobody in the Forest Service would make such a demand. The signature was just a rendering unto Caesar of what was Caesar’s; the presence of a permit didn’t have to affect any of our praying, playing, or partying. And there was the simple fact that out of ten thousand people who disagreed among themselves about many things, the Forest Service would likely be able to find one person to put pen to paper who was not moved by the disapproval of others, and that one signature was all they would need.
There were others who had the same opinion that I did, that “freedom of assembly” didn’t mean that the Rainbow Family could just plop its ass down anywhere it wanted and say to the rest of the world, “Fuck you, we’ve got our constitutional rights.” The Family had to consider not only the rights of others who might want to be in that same forest, but their needs, desires, and fears as well.
And most of the resource rangers (the ones were not law enforcement) were motivated by a love of the land and a sincere desire to preserve it. They were hired by the government, which was ultimately responsible to the people, to protect the land which was set aside for the use of all the people, and if the Rainbow Family was as dedicated to ecological preservation as its most vocal advocates said it was, it was hypocrisy not to cooperate with the Forest Service as much as possible. The resource rangers had not only the right, but the duty to monitor our activities, advise us on how to act in order not to harm the forest, and raise objections and even bring in law enforcement if they observed us actually harming it.
In the few years after the introduction of the new rules I got into many an argument on alt.gathering.rainbow about signing permits. I didn’t have any objection to someone signing a piece of paper to demonstrate good faith with the Forest Service. But ten years later, after observing some of decisions they made and experiencing some of the things their LEOs had done in the name of enforcing the permit requirement, and some of the restrictions they had imposed as part of granting it, I became very much against it.
But here in 1995, the Permit was back, and it would affect some of the gatherings to come profoundly. The next national gathering to be held with the new rules in effect would be next summer in Missouri.
[This was going to be another chapter. The Oregon part was shortened and placed in the middle of Chapter 16, The Shanti Sena Gathering.]
The Permit Challenged
The Oregon case of 1997
On July 1, 1997, Sec. 251.54 looked like this.
The five Rainbow gatherers who were given tickets at the Oregon gathering along with a sixth person attempted to sue the Forest Service, and initiated Black, Michaels, Adams, Newbre, Johnson, & Bernstein v. Arthur & Carpenter in the U.S. Court for the District of Oregon on Dec. 18, 1997. One of the six was a licensed attorney, and he wrote up the motions. It named two Forest Service policemen as defendants.
There were four “counts”, or complaints, in the suit. The first asked for “Declaratory and injunctive relief against enforcement of 36 CFR 251.54(h)(1)(viii), signature requirement”, and said that “unless this provision is declared unconstitutional … Defendants will continue to conduct excessive Law Enforcement activity in a manner designed to impair, chill, and otherwise intimidate participation in this First Amendment activity.”
The second claimed “violation of civil rights”, by the officers and the Forest Service establishment behind them. They had “chilled and impaired” the rights of the Rainbows to freedom of speech, expression, religion, and association. They had singled out each one of the Rainbows for special abusive treatment that did not serve any legitimate law enforcement concerns. They had been chosen for this because of work they had done in the surrounding communities before the gathering, counteracting the scare tactics of the Forest Service, or because they were lawyers who had been successful in confronting the Forest Service in court.
The third and fourth counts alleged “Damages for malicious prosecution” and for “Intentional infliction of emotional distress.” The ticketees were “cited to appear in Federal Court, thereby placing them in harm’s way of court imposed conditions of release and further criminal proceedings”.
It named each plaintiff and how that person was distressed. One was a mother attending the gathering with two minor age sons. Another was a man there with his wife and two 14 year old girls, one of whom was his daughter. A third was a man who was holding an infant son in his arm at the moment he was given the ticket. A fourth was a woman who had “recently suffered the sudden loss of her son, whom the Forest Service had met and was aware of his passing.”
The fifth was there with her two dogs, “each of whom has been a long time faithful companion” and one of which was “deaf and requires special care and attention due to increasing medical problems and old age.” She was also a social worker who worked in cooperation with her hometown’s police department, and “the threat of criminal prosecution was especially traumatic as it could very well have impacted upon her livelihood.”
The Forest Service’s actions resulted in “exacerbating the emotional distress experienced by” all these Rainbow folks “due to [their] responsibilities for” all these other people.
These counts were followed by a “Prayer for Relief” of $100,000 for each count ($400,000 total) for each individual plaintiff, as well as attorney fees, and “any and all other damages or relief this Court may find equitable and just”.
The Forest Service response
The Forest Service responded on the 20th of February, 1998 with a “Motion to dismiss all counts as to official defendants”.
Before presenting their formal arguments, they talked at length about the shigellosis outbreak at the North Carolina gathering, and how at other gatherings there had been problems like litter, soil erosion and compaction along trails, and destruction of vegetation. They said,
Although the Rainbow Family often shows a commendable concern for sanitation and preservation of the environment … the sheer volume of persons in attendance has caused difficulties in these areas in the past, and other problems unique to a chosen site have arisen. Moreover, the Rainbow Family’s decentralized organizational structure and aversion to any form of hierarchy or representation have complicated Forest Service attempts to address these issues.
Then they defended the constitutionality of the regulation. It was a “time, place, and manner restriction” that could “be justified without reference to the content of the regulated speech”.
It was “content neutral”; it was not formulated out of any disagreement with what the Rainbows expressed, or any desire to suppress it, but only out of concerns for “significant government interests.” They named three of these interests: protecting forest resources, promoting public health and safety, and allocating space among competing uses. These had nothing to do with what the Rainbows were expressing. The regulation applied equally to family picnickers, hunters, and Rainbow gatherers. All had to get a permit if their numbers exceeded 74, no matter what activities they engaged in.
It was “narrowly tailored”. It required only that a permit be applied for no less than 72 hours before the start of the activity, and required the Forest Service to respond within 24. There were seven conditions clearly described in the regulation, and the Forest service had to grant a permit if the proposed activity met all of them. No more conditions could be added by the permitting official. All of these conditions were tailored to serve these three significant government interests, and nothing more.
It “left open ample alternative channels for expression”. It prohibited no medium or manner of speech or expression. If a particular time, place, or manner were inappropriate for a proposed use, the Forest Service had to provide an alternative if one were available.
And the signature requirement was “a necessary and ancillary part” of the regulation. The difficulty that the Forest Service had had in the past with informal agreements, made with individuals or subgroups in the Family not being respected by other group members, would be solved by having a permit being signed by a representative, and this act would bind the group to the terms of the permit. It would also discourage false statements being made to the Forest Service that would lead to permits granted on the basis of erroneous information, since they would have the name and address of the signer and would be able to bring charges in court if that person lied.
Since the second, third, and fourth counts also depend on the premise that the regulation is unconstitutional, they all should be dismissed. There were some other more obscure legal flaws with Rainbows’ suit: that one couldn’t sue individuals working for the federal government working in their official capacity, only the abstract entity that is the United States (but you could sue a state official); that you couldn’t sue a federal employee acting with “due care” in executing a regulation, even if it is found to be invalid; and that the Rainbows had “failed to exhaust administrative remedies” before initiating the suit.
The Rainbows try again
On April 23, the Rainbow lawyer filed a “Second Amended Complaint”, which replaced the four counts of the first one with five new ones. Instead of asking for compensation for damages, the six plaintiffs asked that the judge issue a “declaratory judgment” that parts of the regulations did not apply to Rainbow Gatherings and that other parts were unconstitutional. They also asked for an injunction restraining the Forest Service from enforcing those parts of the regulations. The only money asked for was compensation for legal costs.
Before presenting its formal argument as five “counts”, this motion made some “general allegations”.
“What the Forest Service called ‘the Rainbow Family’ is in fact nothing more than a temporary collection of gatherers. It is not incorporated or registered in any form or forum under any laws, and it is 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 authority, but instead voluntary cooperation, was “objectionable to the Defendants and the underlying basis for the designed punishment” of the law enforcement branch of the Forest Service. In contrast, relations with the resource branch had been increasingly favorable over the years. They had been releasing “Rainbow Reports” that had documented the success of the cleanup crews after all of the gathering – with only one exception (North Carolina), where the LEOs had arrested some of the crewmembers and evicted the rest. The Rainbows had been able to cooperate with the resource rangers for years by getting together and formulating “operating plans”, which served successfully to protect resources and ensure health and safety without having to have a permit signed by a representative.
How the Forest Service had no need for a signed permit was exemplified by the circumstances in which the permit was signed at this Oregon gathering. A woman had been told by a Forest Service LEO that the National Guard would be called shut down the gathering if she didn’t sign, so she signed the application just before leaving and signed the permit herself from her home in Portland. There was no way this person could have reasonably been considered a go-between for the Forest Service and the gatherers, or someone legally responsible for the gatherers’ actions.
In light of these general allegations, the motion stated five counts, or specific complaints:
The first of these was that the regulation was worded such that it could only be applied to groups with “established internal authority relationships” and “sufficient internal structure and legal authority to bind its members and to be legally liable for their actions or omissions”. Since the Rainbow Family was not such a group, the only parts of the regulation that applied to it were the parts concerning non-commercial, non-group uses, which required no advance notice or permit at all. The regulation imposed a structure on the gathering that was not real and not wanted.
The second count noted that 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 not only by the official granting it, but 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, laws that already adequately served the government’s significant interests. As such, is 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.
The third count alleged that the regulation “imposed a system of prior restraint upon expression and religious worship”, one that did not “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”. And it also allowed the official 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”. Even if a rejected applicant was able to get “immediate judicial review”, the burden of proof was on the applicant.
The fourth count said that the regulation was deliberately targeted at 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. “USFS personnel have long been aware of the inability of individual gatherers to bind one another without their consent, and many resource management personnel within USFS have developed ways of successfully cooperating with gatherers even in light of this circumstance.” “The Forest Service refused to acknowledge that many gatherers voluntarily took part in cleanup efforts, and instead insisted that such efforts to protect resources they could only be insured by imposing a collective legal liability.” This imposition “impermissibly chills the willingness of both groups and individuals to engage in expressive activities with others who may not be personally known to them”.
The fifth count was “insufficient notice of rulemaking”. The Forest Service had not made the “Rainbow Reports” known and available before the 90 day public comment period, 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.
All of the counts ended by saying that “unless restrained by this Court”, the Forest Service would continue to enforce “against the Plaintiffs” a requirement that a special use authorization be issued. “Against these continuing enforcement efforts, Plaintiffs have no adequate remedy at law, and they are entitled to equitable relief from this Count.” They asked for “a declaratory judgment” that that part of the regulation was “void and unenforceable”, and “a permanent, and if necessary a temporary and preliminary, injunction” restraining the Forest Service from enforcing it. In addition it asked for “their costs in this litigation together with their reasonable attorneys’ fees.”
The judge’s decision
On the 25th of August, after the Arizona gathering, the judge issued his “opinion and order” that dismissed the suit, deciding against the Rainbows.
The “opinion of this Court” was 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, and “there is no indication that “group” has any other than the common meaning: an assemblage of persons located or gathered together or considered together because of some similarities.” The internal structure of the group was irrelevant.
The opinion of the court was also that the regulation was indeed content neutral, because it applied equally to all groups of 75 or more, and was narrowly tailored to serving the public interests of protecting forest resources, promoting safety and health of forest users, and allocating space among competing uses, all of which were substantial. 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 people in 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 was a prior restraint on religious freedom that “delegates unbridled discretion to the permitting official because it does not set standards for granting or denying permits.” There were seven conditions clearly set out in Section 251.54(h), they 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; they had published them in the Federal Register, an address was given for comments, and the public was given 90 days to comment. “The administrative Procedure Act does not require that every bit of background information used by an administrative agency be published for public comment.” “The basic data upon which the agency relied in formulating the regulation was available to petitioners for comment.”
In the end he said, “For the reasons stated above, it is ordered that defendants’ motion to dismiss … is granted with respect to all counts contained in plaintiffs’ second amended complaint.”
[The following was condensed into one paragraph and placed in Chapter 17, The Warm Fuzzy Gathering.]
The Arizona case of 1998
On July 1, 1998, Sec. 251.56 looked like this.
During Seed Camp for the 1998 gathering in Arizona, Forest Service law enforcement officers again came around demanding that someone apply for and sign a permit. The Family presented a united front this time, and nobody was intimidated into signing one. A brother named Strider volunteered to accept a ticket, so that he could challenge the regulations in court.
Strider filed a motion to dismiss the charges against him on September 16, 1998, in a federal district court, initiating United States v. Linick. He appeared pro se, writing and filing the motions by himself. He had an attorney friend who gave him advice and who sat by his side when the oral arguments were being presented in the courtroom, but he did all the talking himself.
He alleged that the “regulatory scheme was unconstitutional under the First Amendment of the United States Constitution as it unduly interferes” with his “freedom of expression, freedom of assembly, and/or freedom of religion”, and that it was also unconstitutional “under the Fifth Amendment protection respecting a fundamental liberty interest under the doctrine of substantive due process.” He presented seven basic reasons it was.
The first reason was that it gave the permit granting officer “unfettered and unbridled discretion to attach terms and conditions” to the permit that could “effectively bar or unduly restrict the defendant’s [and others’] exercise of free expression”. As the regulation was worded, one of the reasons that an officer might impose a term or condition was that it “otherwise protects the public interest”. This phrase was not clarified further in the words of the regulation, and as a result it was left to the officer’s personal interpretation. This “vested unbridled discretion and power in the hands” of the officer to “infringe upon peoples’ constitutional rights of free expression, association, and/or religion”.
The second reason was that the same unbridled and unfettered discretion was given to the officer to “protect federal … economic interests”. (The ellipsis dots were inserted by Strider, the regulation said “protect federal property and economic interests”.) This had nothing to do with the three significant government interests; it was not necessary to protect resources, promote public health and safety, or allocate space among competing uses. “A municipality could bar a parade or speech by a Nazi organization or other unpopular group because the municipality might have to pay police officers to work overtime … in order to prevent violence generated by the parade or speech. Or a municipality could attempt to bar a Fourth of July parade merely because it does not have enough officers to handle traffic control and would otherwise have to pay third parties to do so”.
The third reason was that more unbridled and unfettered discretion was given to the officer to limit the duration of the event. “It is not only highly repugnant to the First Amendment guarantees … to allow a government official the unbridled discretion to limit the length of the exercise of these guarantees to that period of time the official believes necessary to accomplish the expression, worship, and/or association, it violates these guarantees and cannot be sustained.”
The fourth reason was that while the regulation provided for immediate review in court if a permit was denied, it did not provide for that same review of any individual term or condition that the official imposed after granting the permit. This could only be addressed thru a procedure with several possible 30-day waiting periods between actions.
The fifth reason was that while the official had to state reasons for denying a permit, that person was not required to give reasons for imposing terms and conditions. “All an authorized officer might say respecting why he or she attached a particular term or condition to a special use authorization is ‘I think such term or condition is necessary in the public interest.’”
The sixth reason was that the part of the regulation that said the permit holder must “pay the United States for all injury, loss, or damage, including fire suppression costs” had an “undue chilling effect” on the Rainbows’ “exercise of free expression, assembly, and religion”. “An individual attending the Rainbow Gathering who has considerable assets may have such assets jeopardized and even taken away for the negligence of some other individual attending the Gathering who may not be able to pay a judgment for their negligence, and … therefore the individual with assets may not attend the Gathering”.
The seventh reason was that the definition of “commercial use” was too vague. If a small entry fee were charged for an event to barely cover the expenses of putting on the event, a fee that produced no profit, that event could still be unfairly called commercial. “A church group may hold a ‘bake sale’ on NFS lands, primarily as a social get together … and secondarily to raise a little money for a cause, whereas the authorized officer or other governmental employee may look at the sale of baked goods … as the primary purpose of the get-together.” The regulations for granting commercial permits also allowed one to be denied because it was “not in the public interest”.
The Forest Service responds
The Forest Service filed a response on September 29. Again they stated that the regulations were constitutional time, place, and manner restrictions that were content neutral and narrowly tailored to serve the significant government interests of protecting forest resources, promoting public health and safety, and allocating space among competing users; and that they left open ample alternative channels for expression.
Then they said that Strider’s argument that the regulation “delegates unbridled discretion to the permitting official” lacked merit. Strider’s arguments regarding terms and conditions were “hypothetical and consist of a parade of horribles about what the Forest Service might do. He can point to no burdensome term or condition that was actually imposed upon him.” He had never applied for a permit, and the permit that the Forest Service offered to the Rainbow Family “did not contain any onerous terms or conditions.” A person could not challenge the constitutionality of a law unless that person had actually been harmed by it. As a result, Strider did not have the “standing” to challenge the law.
And even assuming he had standing, his arguments lacked merit. The official was not given unbridled discretion; that person was bound by the conditions clearly described in Sec. 251.56(a).* National Forest lands were used for such activities as logging, mining, and grazing, so it was legitimate for the regulations to concern them. The power to impose time restrictions allowed the Forest Service “to prevent monopolization of a National Forest System site by groups who no longer need it.” The only alternative was to let each group decide for itself how long, and this would not let the Forest Service allocate space among competing users.
The regulation did not require a written explanation for the denial of a permit, so it need not require one for imposition of terms and conditions either. “The reason for most of these conditions is likely to be apparent from their face.” It was absurd to imagine that the First Amendment excused people for being responsible for starting forest fires. And his objections about commercial permits were more hypothetical speculation about matters that didn’t affect him directly.
On October 6, Strider filed a reply. He said he did indeed have standing, because he was charged with a crime under the regulatory scheme, and he had to violate it in order to be brought to court where he could challenge it. If he had complied with it, the best he could have done is challenge a particular term or condition.
He reasserted his objections to the official being able to determine the duration of time. “If the regulation stated that “the duration of a special use authorization shall be no longer than is necessary to avoid a conflict with another user of the same site”, such would pass muster as a specific, objective standard which does not leave unbridled discretion within the hands of the permitting official. But the language as now written is “the duration shall be no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization.”
And he said he never asserted that people should not be held responsible for damages from such things as forest fires. If a member of a group negligently started a fire, that person should be liable as an individual, and not the group or the permit holder.
The judge’s decision
In his final ruling, the judge found that “the regulatory provisions involved in this case, the non-commercial group use regulations as would be applied to the defendant, are impermissibly broad in that 251.56(a)(2)(vii) … grants an inappropriately broad range of discretion to the official discharging responsibility cast upon he or she under the regulatory scheme.” The regulation was “deemed as a matter of law to be inappropriate by the Court” and the defendant “would not be under a lawful obligation to make application for such a permit”. (He made no mention of any of Strider’s other points.) He granted Strider’s motion to dismiss.
This decision was taken to an Appeals Court by the Forest Service, and this is discussed in the next section.
[This was going to be another chapter. A shortened version of the Pennsylvania part was placed at the beginning of Chapter 18, The Second Hungry Drum Gathering.]
The Permit Prevails
The Pennsylvania case of 1999
At the national gathering in Pennsylvania, the Forest Service LEOs began the tactic of determining who the “leaders of the Rainbow” were, and targeting them to receive citations for group camping without a permit. The three they chose were Garrick, Stephen Principle (not a legal but a Rainbow name), and Joanee Freedom (likewise). Stephen had been heavily involved in the 1988 Texas court case. The Forest Supervisor decided Joanee was a leader after he observed her at a council objecting loudly to another person who was offering to sign the permit. She started out by saying, “You have no right to speak for anyone else but yourself!”
With logic not unlike that of the Turkish army commanders in World War I who started their extermination of the Armenians by first going after the village leaders, the LEOs acted like they thought that the energy that kept the Rainbow going could be doused by removing a few key individuals upon whom the gathering depended. Only these three received citations, otherwise the LEO presence deep inside the Pennsylvania gathering was mostly non-evident to me.
But their selection of these three people as “the leaders of the Rainbow” didn’t seem to be a selection that would have been made by someone who had spent time inside the gathering and learned thru intimate experience who the key people were. They picked two of the Rainbows because they had come forth to initiate contact with the Forest Service. Garrick “had met with some local community people at a fire hall sometime in June 1997” according to the court record. “He was thereafter sought out by National Forest Service personnel to discuss other aspects of the activities in the Allegheny National Forest in late June and July 1999.” Joanee “spoke with National Forest Service personnel regarding an operating plan for the activities.”
Stephen was first asked by an officer on a trail at the gathering where Garrick was, and when he replied that he thought Garrick had gone into town, the officer asked him if he could get a message to Garrick to call the officer, and Stephen said he might be able to do that. Later that afternoon Garrick had gotten back and the two of them went together to a meeting Garrick had arranged with the LEOs. At that meeting Garrick was issued his ticket after he stated again that he refused to sign a permit, and Garrick said he didn’t wish to be the only person to get a citation. The officer asked Stephen if he would accept one, and Stephen said yes.
All three went to a joint trial in the U.S. District Court for the Western District of Pennsylvania, for criminal violation of CFR 32, Sec. 261.10 Occupancy and Use, which included:
The following are prohibited:
(k) Use or occupancy of National Forest System land or facilities without special-use authorization when such authorization is required.
The penalty for this violation was a term of up to six months in a federal prison and a fine of up to $500.
They obtained the services of four lawyers, one with the American Civil Liberties Foundation. These attorneys filed a motion for acquittal, initiating United States v. Kalb, Beck, and Sedlako.
The arguments in the brief they filed were designated by letters and numbers. Most of them revolved around the concept of “group” that they saw the U.S. government as having, one that “shows both its absurdity and the profound constitutional problems which would be present if that interpretation were correct”.
Their first argument was that under the regulations “only the group, not individuals, is liable to citation”.
“Simply put, it is the position of the Defendants’ that this regulation does not, and cannot, make criminal the actihipsons of an individual. Rather, to the extent it imposes criminal liability, it imposes criminal liability only upon a group” “Only a group needs to get the permit”. … “Only a group can be liable if they do not get it.”
If the regulation had said that it was a violation for “any person to organize or assist in organizing” a gathering of individuals exceeding 75 in number without having obtained permit”, that person could justifiably be ticketed. But the regulations didn’t specify this.”
This being the case, the regulations “infringe on free association in an impermissibly vague way”. They cited another case where a law was struck down that “made it a criminal offense for a person to loiter with a known street gang member and to fail to obey an order by a police officer to disperse upon that observation” “Friends, relatives, or total strangers might unwittingly engage in forbidden activity simply by engaging in conversation with a gang member.” The FS regulations could put anyone at or near a Rainbow Gathering in a similar predicament. Anyone there for any reason could be liable under it. “Included within the list of potential defendants would be individuals who showed up for 5 minutes to observe the festivities, to deliver a pizza, or to gather news about the event.” “The individuals here, no matter how one characterizes them, did nothing individually to violate the law. They are prosecuted for their mere presence.”
They went on to say that the definition of “group use” by the regulations was not only vague, but “overbroad”. The arbitrary number of 75 could suddenly make criminals out of people who came together spontaneously. “Fourth of July campers, otherwise unknown to each other, would violate the regulation by coming together spontaneously in song around a communal campfire. Once the seventy-fifth person raised her voice in song, or even gazed on the other assembled seventy-four, the regulation would be violated, by one and all.”
They also found overbroad the wording that the signer must be someone “designated by the group”. If the group had not formed yet, it could not designate a representative. “The regulations do not allow a leader, qua leader, or an organizer, qua organizer, of an assembly to apply for a permit; only an individual designated by the group for that specific purpose may sign the permit on behalf of the group. Nor would self-designation by an individual … be advisable since every statement to a federal employee in an official matter is subject to prosecution, and imprisonment for up to five years, if untrue.”
At the Gathering you might find “a leader who merely leads or guides … by the consent of, but without authority over, those who voluntarily and perhaps temporarily choose to follow.” You won’t find a leader who “has coercive power over those required to follow” such as “execution, imprisonment, fine, discharge or expulsion from the organization.” The Forest Service, for its convenience, only wishes to grant permits to groups which “have a formal hierarchical structure capable of binding its members.” and “authorizes an individual to deal with the Forest Service on the group’s collective behalf.”
This being the case, the regulations were not “content neutral” in the case of a Rainbow Gathering, because the anarchy itself was an expression. Acting together without leaders was in itself a statement about how we thought people could and should live. “By excluding those mistrustful of authority, by excluding those unwilling to join a group, by excluding those unwilling to surrender their individual autonomy to the group, the Forest Service regulations impermissibly infringe on the rights of individual speech, assembly, and association protected by the First Amendment.”
The Rainbow lawyers went on to say that the signature requirement was “designed to impose upon the ‘group’, and ultimately the signer, certain liabilities which would not otherwise exist” and this had “a chilling effect” upon the gatherers.
In an ordinary permit system, like one given by a city for a parade or a sporting event, the applicant signs an application and the official granting it signs the permit. Only the Forest Service requires two signatures on the permit.
The signature of the applicant, as the FS had stated in their Final Rules in 1995, was “to ensure that each ‘group’ using the National Forest lands will be responsible for the actions of its members as a whole”. “However, the First Amendment places very substantial limits upon the Government’s authority to impose vicarious liability.” “Because such vicarious liability can very seriously chill the willingness of individuals to associate with one another for expressive purposes, the mere threat of such liability, especially when it is left as vague and undefined as it is in this case, directly burdens expressive association.”
“An individual associating with others, especially for political purposes, can never be entirely sure of the complete agenda which other individuals bring to their common association, and he or she cannot be held responsible if others eventually sway a political meeting in directions which he or she has never endorsed.”
“What the Government refers to as the “group” of attendees at the so-called “Rainbow Family Gatherings” doesn’t have any legal existence of its own and it can’t appoint agents of its own under applicable law. Recognizing this, the Government is left to argue that federal law will impose vicarious liability relationship even where none would exist under settled state law.” This assertion “amounts to the suggestion that it is altogether free to impose whatever blanket ‘group’ liabilities it desires upon those who enter National Forest land to communicate or worship with more than 74 others.”
“Under these circumstances, it is quite likely that the Government’s notion of ‘group responsibility’ will degenerate ultimately into an effort to hold individuals who seem like leaders to the Government liable for the actions of those who more casually attend gatherings.”
To impose such a liability with these regulations was unconstitutional for the following reasons:
First, “the challenged regulations cannot stand as time, place, and manner restrictions on expression because the authorization signature requirement is substantially more burdensome than necessary to achieve any legitimate governmental objective”
The Government’s legitimate interests of protecting the land, preparing to assist forest users, and preventing conflicts between them by providing a place they can make reservations, were all adequately served by systems that didn’t require an agent for the group to sign a permit. “Indeed, the only legitimate interest which the Government can assert that warrants any kind of signature requirement at all is … preventing fraud.” “But this interest can be fully served, indeed better served, by requiring that an individual requesting such use sign a statement, in his or her individual capacity, attesting to the truth of any information provided.”
Second, the regulations “in a number of subtle ways, … leave Forest Service officials with impermissibly broad substantive and procedural discretion in determining whether to permit expression”.
The authorizing officer could attach unspecified terms and conditions to the permit to “otherwise protect the public interest”, and this gave him “unbounded discretion” to place restrictions. The permit could be revoked after it was granted, and altho there was a process for an independent judge to review a revocation, there was none for a permit that remained in effect but had unreasonable restrictions.
And third, the signature requirement was “targeted at the defendants and those with whom they gather”.
“The Government’s peculiar requirement that an “agent of the group” sign a special use authorization could not have been more ‘narrowly tailored’ to discourage and prevent gatherings of the type attended by the Defendants, and the Government was plainly well aware of this fact.” “Instead, it pressed forward with its effort to get what it calls the “Rainbow Family” to take collective responsibility for something.”
Whether this effort was motivated by mere paternalism or by an urge for retaliation arising from the gatherers’ long history of exercising and asserting their First Amendment rights, the Government’s action … leaves the unmistakable impression that the peculiar signature requirement challenged here was targeted at the ‘Rainbow’ gatherers.
The First Amendment simply does not permit the Government to promulgate a regulation which it knows will not trouble the Boy Scouts when they want to camp in the woods but which is deliberately designed to antagonize particular speakers or worshippers, such as the Defendants, to the point of chilling their interest in the National Forest altogether.
After this the Rainbow lawyers concluded by saying:
WHEREFORE, this Honorable Court is respectfully requested to enter a Judgment of Acquittal as to all Defendants for the reasons that (1) under 36 C.F.R. § 261.10(k) only the group, not individuals, is subject to citation or (2) the Forest Service’s non-commercial group use permit regulations are unconstitutional.
The Forest Service responded with a plaintiff’s response, which I have not been able to find. I was able to find the defendants’ response to it, which mostly repeated and embellished the points they had already presented in their first brief.
The final ruling
The judge’s final opinion began with some “findings of fact”:
For many years there have been legal skirmishes between a group known as “the Rainbow Family” and the United States Forest Service. [The Rainbow Family is] “an unincorporated, loosely-structured group that regularly gathers in undeveloped sites in National Forests to pray for peace, discuss environmental and other contemporary political and social issues, and [to] exchange, develop, express, and demonstrate their ideas and views.” …
The thrust of their defense is that no one was designated by the Rainbow Family to sign the application because the Rainbow Family is not an entity of any sort, and therefore no one can act on its behalf. Without some sort of designation or authority emanating from the Rainbow Family, so the argument goes, none of these three defendants can be responsible for the failure to obtain a permit.
The judge rejected this, and wrote in his “Opinion”:
The Government argues that because 36 C.F.R § 251.51 defines ‘group use’ as ‘an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators,’ (emphasis supplied) these three defendants could be cited, since, in the opinion of the Forest Service officers who had contact with them, they not only were participants, but appeared to have leadership roles at the gathering.
To support this argument the judge referred to some testimony by the FS Incident Commander who was at the gathering. This is the leader of the band of Forest Service police that comes to the gathering every summer on orders from Washington to supplant the local forest LEOs, because the FS regards the gathering as an “incident”, like a fire or a riot. He said that Garrick had contacted him and told him that there would be a gathering in the Allegheny National Forest in 1999, and they had had a face to face meeting in Garrick’s hometown of Santa Fe. That was enough to indicate leadership to the commander.
He said that Garrick had suggested that he work with “Shanti-Sena”, which the judge put in quotes in his brief. Then the judge said, “An exhibit entitled ‘Rainbow Guide’ (Gov. Ex. 3) describes the so-called councils thus:” and quoted the section on “Council” in the Mini-Manual, which by 1999 had been embellished somewhat from what I had written in 1995:
We gather in council circles to voice and creatively resolve the issues and concerns of our ever evolving Gathering. Participation in a council requires a focused mind, a listening ear, and an open heart as we make critical decisions on how to best serve the Gathering. The power to listen is sacred to the process. Councils occur regularly on all workings of the gathering. They include: Main Council, Coop Council, Vision, Clean-up, Legal team, Shanti Sena, CALM. Info, Rainbow Guide, All Ways Free, Focalizers, Kitchens, Firewatch, Bus Village and any other special event, issue, or aspect. Councils are excellent opportunities to help create the Gathering.
Then he quoted the section on “Main Council”:
Main Council is held at rainbow noon in Main Meadow to deal with the business of the gathering and provide an open forum for anyone and announced by 3 repeated blowings of the conch shell. It is the only time decisions affecting the Gathering can be made.
With the evolution of diverse councils caring for the many needs of the village the question is asked “Where is Main Council now?”
There was a time when it lasted for days without end. We shared openly what we were learning during the eco-psychedelic revolution. We expressed fears or anger and went away clearer. We addressed all issues, focused our heart songs, and healed our relations. We gave room for all people to share our experience and we were healed. With enthusiasm we unlocked the mysteries of why we were together as a Rainbow People. Maybe the time to sit together in this way has come again?
These were mostly the words of Michael John, who had been lamenting the slow demise of the “Council on the Land” that was said to meet every day from July 1 to 7, but in actuality had been having appreciable numbers of people only on the first one or two days with a considerable decline in attendance thereafter. It was known for the same meandering oratory that is encountered at Vision Council. But the judge took Michael’s words as accurate testimony.
Then the judge quoted some more from the 1999 Guide and noted the section on Shanti Sena and the Guide’s quotes of the First Amendment and some other statements advising people not to sign permits. Another government exhibit he referred to was an announcement with directions to the gathering. he went on:
In addition, Mr. Fox identified a “Rainbow Guide.” (Gov. Ex. 3 ). On the front page is a picture of a man and woman sitting in front of a teepee. The Guide contains more details on gatherings, definitions, words, and phrases used by the Rainbow Family, and the names and addresses of “Focalizers,” people “who let you know what’s happening where and when, and who you want to Contact when you have info to share”.
Then he noted that the Guide had a P.O. Box address for it. He continued:
Mr. Fox testified that he had met “focalizers” both in 1998 and 1999. They let the Forest Service know “where the kitchens were going to be located, where certain individuals were located if we needed to contact somebody. There were times when people stepped forward saying, you know, we’re not going to sign, you know, a permit. We’re not going to submit an application.”
“The focalizer tended to do all of’ the speaking and the other folks just would sit there and listen. Generally it was the focalizer that I would have the conversation with.”
Mr. Fox identified the defendant, Joan H. Kalb, as the focalizer listed in the Guide as “Joanee Freedom.” Mr. Fox stated that defendant Garrick M. Beck never identified himself as a focalizer, …but clearly, during the couple of years that, you know, year and a half, that I’ve known Garrick, he is an individual who is very articulate and very involved with the gatherings. Attended a number of the gatherings himself, and clearly he was an individual, in my opinion, that knows what’s going on at these gatherings.
Mr. Fox’s testimony was quoted further, describing several attempts to get Garrick or Joanee to sign a permit, including one at Spring Council, that all brought nothing but refusals. He described Stephen’s receipt of the ticket after Garrick’s, and then said that “had written a column in a Rainbow tabloid (Gov. Ex. 7) under the name “Stephen Principle” with the headline: “Stephen Principle” with the headline: ‘Permit-tion and our right to gather.’”, and this was further evidence that he was a leader. (I surmise that the “tabloid” was All Ways Free.)
Then the judge summarized what he had presented so far with:
It is clear from the testimony of the government witnesses that there was never any animosity or acrimony between the Forest Service personnel and the defendants; indeed, they were on a first-name basis. The defendants simply refused to sign the permit application when requested to do so by the officers after lengthy conversations with them.
It is also clear from the trial testimony and the exhibits that there is quite a complete internal organization of the Rainbow family in the form of the Councils and committees. The members simply attempt to avoid the permit application requirements by refusing to designate an applicant.
On this basis, the judge rejected “the main thrust of the defendants’ argument” that “they cannot be cited as individuals since they have not been designated by the Rainbow Family to act on the group’s behalf”:
The defendants have not only fit the definition of “participants” in this gathering but also, as discussed in our findings of fact, had leadership roles as spokespersons for the Rainbow Family. They are certainly valid objects of prosecution.
He also said the he agreed with the Forest Service that the regulations were a constitutional time, place, and manner restriction that is narrowly tailored to serve a significant government interest:
The national forest lands are a precious asset of this nation. While the members of the Rainbow Family may regard the environment as something to be guarded and treasured, and while they may be conscientious about protecting those lands when they are present on them, other groups may not be. It would be an impossible assignment for the Forest Service to predict that one group will not harm a national forest and that another group might. There must be some method in place to maintain “the public order”.
Then the judge brought up Strider’s case, and pointed out that the Forest Service had issued an “interpretive rule” in response to the findings in that case (and published it in the Federal Register, just as they did Final Rules):
The imposition of terms and conditions in noncommercial group use permits is limited to those designed to further the three public interests identified by the Forest Service in promulgating the noncommercial group use rule, i.e., the need to address concerns of public health and safety, to minimize damage to National Forest System resources, and to allocate space among actual or potential uses and activities.
The Forest Service had taken the decision in Strider’s case in 1998 to a Court of Appeals, which affirmed Strider’s acquittal. This decision relied heavily on the precedent of another case where a city ordinance that allowed the mayor to grant permits to place newspaper racks on public property was struck down. “The ordinance allowed the mayor to attach to the permit any ‘terms and conditions deemed necessary and reasonable.’”
The Ninth Circuit Court then took an unusual step. The gathering in question had occurred in June, 1998. In September, 1999 (perhaps in response to the holding of the district court in Linick), the Forest Service issued an interpretive rule relative to 36 C.F.R. §251.56. …
The court then went on to hold that the interpretive rule served to preserve the constitutionality of the regulatory scheme because the scheme now satisfies the three-part test for time-place-manner regulation. … However, the interpretive rule came more than a year after the citations were given to the defendants. Thus, the court held that while the interpretive rule now preserved the constitutionality of the regulation, it was not retroactive in effect. The court then affirmed the district court on its dismissal of the information, but reversed the district court’s ruling that the regulation itself was unconstitutional.
The judge then said that he “declined to follow the holding” in Strider’s case, because he felt the other case cited in the appeal decision was not really analogous to this one.
In his conclusion, the judge said:
The defendants are guilty as charged. It would be impossible to estimate the judicial resources that have been expended through the years in the many legal contests between the Rainbow Family and the Forest Service. In this case alone, Forest Service personnel from Georgia and Montana had to be separated from their regular duties to come to Pennsylvania to testify, as did personnel assigned to duties in the Allegheny National Forest. Obviously, scarce resources of the Court, the Justice Department and the Forest Service have been expended to handle this case and the many others involving the Rainbow Family through the years, and always of the same issue — refusal to apply for a permit.
It’s not as if the issues considered here were “landmark” in nature; time and again the Rainbow Family has made the same arguments and had them rejected by courts all over the United States.
While the “mouse-that-roared” syndrome sometimes has the appeal of tweaking the authorities on the nose, we hope that the time to stop has finally arrived.
All three defendants were sentenced to three months imprisonment and ordered to pay fines of $500. After an unsuccessful appeal, each went to separate federal prisons in the summer of 2002.
The regulation is amended
In the July 1, 2000, publication of the Code of Federal Regulations, the interpretative rule was codified. A new paragraph was added after 251.56(a)(1)(ii), right after the words “(G) Otherwise protect the public interest”:
Note to paragraph (a)(1)(ii)(G): The Department is making explicit its preexisting understanding of Sec. 251.56(a)(1)(ii)(G) of this subpart in the context of authorizing noncommercial group uses of National Forest System lands. Section 251.56(a)(1)(ii)(G) provides that each special use authorization shall contain such terms and conditions as the authorized officer deems necessary to otherwise protect the public interest. In the context of noncommercial group uses, the Forest Service interprets the term “public interest” found in Sec. 251.56(a)(1)(ii)(G) to refer to the three public interests identified by the Forest Service on August 30, 1995. These public interests include the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns. Under this construction, Sec. 251.56(a)(1)(ii)(G) allows the Forest Service to impose terms and conditions that are not specifically addressed in Sec. 251. 56(a)(1)(ii)(A)-(F) but only those that further these public interests. The Forest Service shall implement and enforce Sec. 251. 56(a)(1)(ii)(G) in accordance with this interpretation.
The most significant words in this paragraph, as best as I can make out, are:
In the context of noncommercial group uses, the Forest Service interprets the term “public interest”…to…include the protection of resources and improvements, … the allocation of space among … uses, … and public health and safety concerns …[This clause] allows the Forest Service to impose terms and conditions that are not specifically addressed in [the 6 other clauses] but only those that further these public interests.
[A shortened version of the following was placed toward the end of Chapter 19, The Montana Gathering.]
The Montana case of 2000
At the Montana gathering in 2000, three more “leaders of the Rainbow” were given tickets for group camping without a permit. One was Val, a brother who always came to the gathering in a truck with coils of black PVC pipe loaded on the back, and was one of the principal engineers in laying out the plumbing system that carried water from the springs down to the populated part of the gathering and branched out to several main kitchens. The second was Kalif, a brother who was frequently seen at the place where incoming vehicles first entered the gathering, directing them to the appropriate parking areas or drop off points for supply loads. The third was Plunker.
On Nov. 15th, 2000, Plunker, acting pro se, filed a motion to dismiss his charges in the U.S. District Court for the District of Montana, Great Falls Division. It stated:
The regulation 36 CFR 251 and 261 is unconstitutional in this application because it unfairly discriminates against this individual on the basis of his personal spiritual orientation as expressed in his viewpoints, culture, beliefs, faith, and creed. This viewpoint discrimination has interfered with defendant’s First Amendment Rights, including his freedom of prayer, worship, speech, expression, petition, and assembly.”
[He presented lots of ideas that he had written about earlier in his Legal Hipstory.]
His first argument was like one advanced in the Pennsylvania case, that he was cited as an individual under a law that applied only to groups. He would not only have to be a “participant”, or a “spectator”, but also a “member” and one of the “leaders or agents”, a potential “designated signer” of the group. Plunker maintained that “in accordance with his personal faith”, he could never be a “member” of the “Rainbow Family of Living Light” as the government conceptualizes it to be, let alone be considered one of its “leaders or agents”. “His spiritual/religious faith, his ‘creed,’ precludes him from being a ‘member’ of any ‘religious group’, particularly the Government sponsored version of the alleged ‘religious group’ defined by the Forest Service.”
In his second argument Plunker asked the court to “look beyond the form and into the substance of the government’s application of the regulation”.
As the 9th Circuit court recognizes in White v. Lee, “Informal measures, such as “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,” can violate the First Amendment also. This court has held that government officials violate this provision when their acts would chill or silence a person of ordinary firmness from future First Amendment activities.”
The Defendant’s right to First Amendment protections is supported further by the decision in Church of Lukumi Babalu v. City of Hialeah, “The government has argued, and in various cases the Courts have concurred, that this Regulation is content-neutral and can stand to Constitutional tests., including the “designated signer” part of the rule. It is important to note, however, that facial neutrality does not preclude the possibility that the regulation discriminates against a particular viewpoint when applied in a particular context.”
In referring to these, Plunker was no longer making a “facial challenge” to the regulation, which alleges that that the statute was always unconstitutional under all circumstances. Instead he was making an “as applied challenge”, which alleges that the statute may be partly unconstitutional because it inflicts a specific and particular injury (in this case the threat of prosecution made to him). Whether or not the regulation was facially or content neutral, in practice it singled out Plunker’s beliefs and practices for prosecution. It “substantially burdened” his exercise of religion, and was “far from constituting the least restrictive means.”
In his third argument, Plunker said that the Forest Service had submitted as evidence various writings from Rainbow publications and presented them as if they “constituted a factual or objective account of the beliefs and practices of “Rainbow Family”. In the 1988 Texas case some of these were pieces by Michael John which described “a defined set of beliefs and practices, complete with religious ‘offices’, e.g. ‘spiritual focalizer of the healing arts,’ ‘keeper of the holy water,’ etc.” “No legal proof was presented that these filings were legally authorized by ‘Rainbow Family’, only by the persons doing the filing.”
Likewise in the 1999 Pennsylvania case the Forest Service had presented parts of the Mini-Manual as if they were established scripture. This led them to conclude that:
The evidence reveals that the Rainbow Family, although informal and loosely-knit, nonetheless operates as an organization, with decision-making ‘councils’, individuals who acts as agents, representatives, or leaders on a voluntary basis, and which has an informational network”, and this organization could be regarded as a legal entity which can act as a party in a legal transaction.
But to Plunker the Rainbow Family was:
…not a “who” or a “what,” but a “Tao” or “Way”, or Creed. “Rainbow Family” is a spiritual ideal, and no one can legally file in court for “Rainbow Family” anymore than they can legally file in court on behalf of “Jesus Christ”.
The prayer circle on the Fourth, the central purpose of the gathering, was “open in the center … so that no single person, group, ideology, creed or practice, will dominate or displace any other.”
Some groups, or individuals who peaceably assemble “rainbow-way” sponsor ideologies and viewpoints that are hierarchical in nature. Some have elders, some leaders, some have strongly delineated hierarchies existent within their religious group … While at Rainbow-Way Gatherings, these groups and individuals maintain their own hierarchies within their own encampments, within their own persons, however, they do not seek to impose their hierarchical ways on others who are gathered on the common ground of the Gatherings.
According to Adams’ personal belief, this Circle can only form where there is no ruling hierarchy or group, or ideology specifically in charge; no one viewpoint, and no persons or person, can “run the show” if all are truly equal.
The signature requirement on the special use application and permit allows the Forest Service to force their preference for hierarchy on large assemblies of individuals. Under this requirement, an assembly of 75 or more individuals on the national forest must either organize into a recognizable group and adopt a hierarchical order, i.e., the capacity to designate “legal agents or representatives,” or else be denied legitimate access to public lands.
In his fourth argument Plunker said that he had been informed by the officer giving him the citation that he was considered to be a “member” of the Rainbow Family and one of its “leaders”.
The government wants Adams to accept the bestowed “membership”, in this religious group not of his choosing, not in accordance with his Creed. Further, Adams must accept being a leader or agent, of this religious group, accept some title like “elder’ or ‘designated signer”, also not in accordance with his Creed.
Plunker cited another case in which part of the final opinion was:
In circumstances in which individualized exemptions from a general requirement are available, the government “may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.
Likewise Plunker, whose “practice of faith” was “directly and adversely effected by the regulation”, was “entitled to a consideration of alternatives to prosecution and being hindered in his access to the national forest.”
Alternative means are available to the Forest Service by which they can achieve these without violating Adams’, and others, constitutional rights. … A culturally sensitive Forest Service can obtain its stated objectives through communication, identification and cooperation with the internal processes of assemblies of 75 or more persons, rather than with the hard edge of authority, i.e., persecution and prosecution.
In conclusion Plunker said:
Exceptions are made in who can receive a citation, at the “discretion” of the Forest Service. Based on defendant’s arguments of “viewpoint discrimination”, “religious hardship”, he should be one of those exceptions. Therefore, the charges against Adams should be dismissed with prejudice.
The Forest Service replies
On Dec. 15th, the attorneys for the Forest Service responded with a “motion for reconsideration of order to dismiss”, and ended its opening paragraph with:
In their motions to dismiss, defendants Barry Adams and Val Demars take what can only be described as a “shotgun” approach in challenging the constitutionality of the Forest Service’s group use regulations. Thus, defendants make a variety of arguments in the apparent hope of stumbling upon a constitutionally problematic provision. Some of these arguments constitute facial challenges to the regulations, while others are objections to those portions of the regulations applied to them.
Then they described the shigellosis outbreak in North Carolina and the uncovered human waste that was at the Vermont Gathering and the latrines too close to the streams in Colorado that were mentioned in Final Rule back in 1995 (they didn’t mention any of the problems in Missouri), and reiterated most of the justifications for the regulations that were advanced in that publication and in their replies in the Oregon and Arizona cases.
They said again that the group use regulation was a constitutional time, place, and manner restriction that is narrowly tailored to fit the specific government needs of protecting Forest Service resources, insuring public safety, and deciding between competing uses that leaves open ample alternative channels for expression. Furthermore the signature requirement was a valuable means of ensuring that the group would adhere to the terms of the special use authorization and of protecting against fraudulent statements. And the First Amendment did not “compel the Forest Service to allow indefinite occupation of the National Forest System”, and contrary to the allegations of the Rainbow attorneys, immediate judicial review was available for any of the terms and conditions imposed.
Plunker responded to the FS’s reply with more reasons that the regulations were unconstitutional as they were being applied to him.
This regulation, as it had been applied, prevented an individual from using National Forest lands to host a forum of 74 or more persons. All of his attempts to contact the Forest Service and relay information resulted in him being referred to the Incident Commander, who did nothing but demand that he sign a permit as an agent or representative of the group.
He felt he could only act as “an informal contact” and that he “lacked the presence and authority to act as a group”. Therefore he was “only applying as an individual seeking use.” He was faced with “a Hobson’s Choice, a dilemma between the regulation’s signature requirement and its prohibitions against false statements to the government.”
Furthermore, he was unable to seek any judicial review because he was not allowed to sue as an individual, but only as an agent of a group.
The signature requirement did not prevent fraudulent statements. The permit signed for “The Church of Divine Compost” in Missouri and the permit signed by the woman in Oregon who never returned to the gathering (both described in my first book) were sufficient examples of this.
The signature was not necessary to achieve government’s interests. A person who did not sign any official papers could still serve as an informal contact person and serve the Forest Service’s needs just as well.
The signature requirement had “caused turmoil within the Family, as it portends some form of governing body”, and interfered with its free expression.
The regulation also discriminated according to age, in stating that the applicant must be 21 years or older, while the constitution of the state of Montana stated that the age of adulthood is 18.
He was selected from among thousands of people present at the gathering to be cited, and not until the 2nd of July after there had been hundreds present on the site for a month. This denied him equal protection before the law, as all the others there were also liable for citation as spectators or participants.
In the past, the gatherings had been alternately outlawed or “managed through alternative means” at the discretion of the Forest Service. Permits had also been granted unilaterally by them. There had been times that the rangers had conferred with the gatherers thru their own councils and circles, and the agreements achieved there had been adhered to by the vast majority of the gatherers. These alternated with times of confrontation and threats of legal punishment. As such, the Family had not been granted equal protection under the law as it had been applied over the years.
And the regulations made possible a “Heckler’s Veto” of the gathering, where permission was not granted because of fears of how people in the surrounding communities might react to the beliefs expressed there, fears exacerbated “when there is an ‘emergency’ declaration and subsequent negative propaganda, spread by the Forest Service, concerning the ‘illegal’ nature of this Gathering.”
The final ruling
The court denied Plunker’s motions to dismiss and the three men were tried on February 5, 2001. In their pre-trial memorandum, the FS attorneys said:
The trial should not be allowed to become a political forum or a rehash of past Rainbow Family/Forest Service relations. Therefore the government intends to object often and strenuously to any defendant’s efforts to inject matters irrelevant to the limited issue which remains for trial.
The trial started at 9 in the morning and was over at half past 3 that afternoon. All were found guilty as charged.
Plunker appealed the verdict, and in August of 2004 an opinion was issued by the U.S. Court of Appeals for the Ninth Circuit. In his final ruling the senior judge said:
…the constitutionality of the group use permit scheme, as interpreted by the Forest Service, is determined under the traditional three-part test used to analyze regulations governing the use of public forums
…the government may regulate the time, place, and manner of expressive activity that occurs in a public forum so long as the regulatory scheme (1) is content-neutral, (2) is narrowly tailored to serve a significant government interest, and (3) leaves open ample alternatives for communication.
Adams concedes the first two prongs of this test but argues that the permit scheme fails the third prong because it does not leave open ample alternatives for communication. We find this argument to be without merit. …
His conclusory assertion that the national forests are vital to the Rainbow Family gathering represents, at most, his personal preference. As another circuit has observed, these regulations do not preclude the use of state or private property for Rainbow Family gatherings, they do not affect the right of the Rainbow Family to meet on federal land that does not fall within the Forest Service jurisdiction, and they do not affect their right to gather in a National Forest in groups of fewer than seventy-five people. …
Next, we reject Adams argument that an individual cannot be prosecuted for violation of the group use permit requirement found in the National Forest System regulations. We find persuasive the reasoning of Kalb [the Pennsylvania case], in which the Third Circuit held that the fact that the Rainbow Family did not have a formal leadership structure did not preclude prosecution of individual gathering participants who had leadership or spokesperson roles. …
The record demonstrates that these requirements were satisfied with respect to each of the appellants. Each knew of the permit requirement, that the gathering of which they were a part was large enough to implicate that requirement, and that an application for a permit had not been made. Armed with that knowledge, these individuals could have avoided liability under the regulations by opting not to participate in the gathering on National Forest land where it was clear that a special use authorization was required and had not been granted. …
Adams asserts that an individual should not be punished merely because he or she was present during the time that improper group use occurred, arguing that to do so is to punish one for association, which is prohibited. This hypothetical situation is not the case before the court. We do not suggest that, were an individual merely to join a group gathered in a national forest, of a size such that a permit was required but had not been obtained, that the individual would be guilty of use or occupancy of National Forest system land or facilities, the misdemeanor defined by the regulation. Adams was an organizer of this gathering of 22,000 people, so the case of the mere individual who joins in without responsibility for the large gathering is not before us. …
Finally, we find Adams argument that he was selectively prosecuted to be without merit. The evidence showed that the Forest Service cited Adams (along with two other participants) based on his role as an organizer of the 2000 gathering.
The Government has broad, but not unfettered discretion in deciding whom to prosecute. … The Government can be selective choosing whom to prosecute; however, it cannot base its decisions on factors such as race, religion, or other arbitrary classifications. …
Here, Adams was prosecuted based on his role as an apparent organizer and his participation in the gathering. This decision was not based upon an impermissible factor and was within the Government’s discretion. That others were not ticketed does not mean that they were not potentially criminally liable. Adams argument that the failure to ticket all attendees shows a discriminatory effect is without merit.
By this argument, the Government would always be required to ticket all persons violating a law or ticket no one. So long as the Government’s choices do not have a discriminatory purpose or effect, they are legal.
Val was sentenced to 10 days imprisonment and ordered to pay a fine of $500. Kalif was ordered to pay the same amount, but he had been in previous non-Rainbow related trouble with the law and he was sentenced to six months. Plunker paid the same fine, and he was sentenced to 90 days. The Forest Service tried to get the judge to order him to pay a “restitution” of $7,529.39 for cleanup and law enforcement expenses, but the judge rejected this, saying that even if a permit had been signed, the signer would have no such liability. After appealing and failing, After appealing and failing, Plunker finally served his sentence in the summer of 2005 in the Federal Detention Center in Seattle, Washington.
Butterfly Bill‘s personal opinion on the permit requirement, as of 2012.
In the seventeen years since the institution of the permit requirement in Sec. 251, I have observed no correlation between someone signing a permit and the way we are treated by the Forest Service LEOs. Whether one is signed or not, they continue to be predators around the edges of the gathering, in the parking lot, and on the roads leading in – stopping vehicles and subjecting them to searches where personal possessions are strewn about inside and sometimes thrown out onto the road with no regard for their possible damage or any offers to help clean up the mess they made afterwards. They look for petty violations such as burned out lights, objects hanging from rear view mirrors, or failure to signal for a turn (on forest roads in the middle of the woods) to make reasons to stop you – if they offer a reason at all; sometimes I have had to pass thru roadblocks on the way into a gathering where they arbitrarily chose vehicles to stop. They issue tickets for marijuana possession and confiscate stashes. They go on patrols in groups thru the interior of the gathering, and look for people smoking weed or letting their dog walk around without a leash. All of this goes on even if a proper permit has been applied for and signed by both parties. Little that the LEOs do shows that they are trying to protect us and insure our safety; instead it shows that they deliberately want to harass us and scare away newcomers.
When someone has signed a permit, they have usually made no efforts to use that person as the go-between that they say they desire. Only Garrick in 2003 actually had something resembling this kind of relationship. Other times they have accepted signatures from people who were not even present on the gathering site. (One time they even accepted a signature for a person representing “The Church of Divine Compost”.) They have shown that they will accept a signature from anyone they can persuade, regardless of how aware that person really is of what is going on at the gathering and how much that person would really be able to help.
In 2006, 2007, 2008, 2010, and 2012, the Family was able to negotiate Operating Plans with the resource rangers that addressed all of the “significant government interests” discussed above in a manner that was much more direct and effective. (Examples can be found here and here.) Good relations with the resource rangers and letters from them approving of our cleanup have resulted with these, even without someone taking on the legal responsibilities of signing a permit.
For these reasons I have become opposed to the permit plan described in Sec. 251, because it has been shown over the years to be unnecessary and ineffective, and too easily used as justification for police harassment.