On July 5, 1999, at the direction of Officer Schultz, Officer
Burd issued a citation to Ms. Kalb. (Vol.II, T. 132).
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.
Conclusions of Law
The main thrust of the defendants' argument is that they cannot
be cited as individuals since they have not been designated by
the Rainbow Family to act on the group's behalf. According to the
defendants' brief, page 13, the group "refused" to designate
anyone to act, therefore these defendants are immune from
prosecution. This argument was discussed and rejected by a court
of appeals as recently as February 9, 2000. Black v. Arthur,
201 F.3d 1120 (9th Cir. 2000). See also, United States v.
Masel, 54 F. Supp.2d 903, 920 (W.D.Wis. 1999); United States v.
Rainbow Family, 695 F. Supp. 294, 298 (E.D.Tex. 1988).
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.
The defendants further argue that the noncommercial group use
regulation is unconstitutional in that it abridges their rights
under the First Amendment. This proposition has also been
rejected. "The exercise of civil liberties depends upon the
existence of `an organized society maintaining public order;'
thus civil liberties must occasionally give way to laws `designed
to promote the public convenience in the interest of all.'"
Masel, 54 F. Supp.2d at 907 (quoting Cox v. State of New
Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049,
The Fourth Circuit Court of Appeals thoughtfully discussed this
issue in United States v. Johnson, 159 F.3d 892 (4th Cir.
1998). The case arose, as so many other "Rainbow Family cases"
have, this time, during a gathering in the Pisgah National
Forest, North Carolina.
Four individuals were cited for their refusal to apply for a
special use permit. One of their defenses was that the Forest
Service permit requirement violated their First Amendment free
speech and freedom of association rights. They argued that the
regulations were unconstitutional because they burdened
"substantially more expression than necessary to further the
government's legitimate interests." 159 F.3d at 895 (quoting from
appellants' brief). The law is clear that when "expressive
conduct" occurs on public grounds, the government can impose
reasonable "time, place and manner" restrictions. Ward v. Rock
Against Racism, 491 U.S. 781, 789, 109 S.Ct. 2746, 105 L.Ed.2d
661 (1989). Furthermore, such restrictions are constitutionally
valid "as long as they are (1) content neutral, (2) `narrowly
tailored to serve a significant governmental interest,' and (3)
`leave open ample alternative channels for communication of the
information.'" United States v. Johnson, 159 F.3d at 895,
quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746; see also
Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123,
129-30, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). The court then
went on to hold that the regulations clearly serve three
purposes: to protect resources and improvements on National
Forest System lands, allocate space among potential or existing
uses and activities, and readdress
concerns of public health and safety. Id. at 895; 60 Fed. Reg.
45, 258, 45, 262 (1995).
The opinion then stated: "The permit serves these three
purposes in a narrowly tailored manner by providing a minimally
intrusive system to notify Forest Service personnel of any large
groups that will be using the forest so that the personnel,
through advance preparation, can minimize any damage that may
occur." Id. at 896.
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;" it is not an abridgment of First Amendment freedoms if
the law is narrowly tailored to serve a significant governmental
interest. Ward, 491 U.S. at 791, 109 S.Ct. 2746; Masel,
54 F. Supp.2d at 907. We thus reject the argument that the
requirement of a permit is violative of the First Amendment.
Defendants also argue that the term "group use" as defined in
36 C.F.R. § 251.51 is "vague and overbroad." This is another
argument advanced in many Rainbow Family cases; it likewise has
been analyzed by the courts and then dismissed. See Black,
18 F. Supp.2d at 1132 and cases cited therein. From the many examples
in the Rainbow Family printed material, as quoted in our Findings
of Fact, it is clear that the Rainbow Family is a well organized
group. We thus reject the argument that their use of national
forest lands is not a "group use."
The defendants, in their supplementary brief, have raised a
facial challenge to the regulations, citing United States v.
Linick, 195 F.3d 538 (9th Cir. 1999). In Linick a district
court judge had considered a Rainbow Family facial challenge to
36 C.F.R. § 251.56(a)(2)(vii). This is the provision that states
in pertinent part: "Each special use authorization shall contain:
(2) Such terms and conditions as the authorized
officer deems necessary to . . . . (vii) otherwise
protect the public interest."
In that case two members of the Rainbow Family were charged in
an information with use of the Apache-Sitgreaves National Forest,
Arizona, in June, 1998, without a permit. The district court
granted the defendants' motion to dismiss, ruling that the quoted
section gave Forest Service officers "impermissibly broad
discretion in violation of the First Amendment" and was therefore
unconstitutional on its face. Linick, 195 F.3d at 541.
The Court of Appeals for the Ninth Circuit affirmed the
dismissal of the citations, relying particularly on City of
Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct.
2138, 100 L.Ed.2d 771 (1988). In that case a city ordinance gave
the mayor of Lakewood the authority to grant permits to place
newsracks on public property. The ordinance allowed the mayor to
attach to the permit any "terms and conditions deemed necessary
and reasonable." Id. at 754, 108 S.Ct. 2138. The Supreme Court
suggested that this resulted in the mayor having "impermissible
discretion to deny expressive activity." See id. at 769, 108
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. See Fed. Reg. 48,959. The rule
stated in relevant part:
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 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." Linick, 195 F.3d at 543.