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U.S. v. KALB

March 16, 2000

UNITED STATES OF AMERICA,
V.
JOAN H. KALB, GARRICK M. BECK, AND STEPHEN M. SEDLACKO.



The opinion of the court was delivered by: Cohill, Senior District Judge.

OPINION

Introduction

The three defendants above-named were each charged by Information with a misdemeanor for violation of 36 C.F.R. § 261.10(k): "Use or occupancy of National Forest lands without authorization when such authorization is required."*fn1

The regulations considered here govern the noncommercial assembly of 75 or more persons in a national forest. The defendants argue that the regulations are either unconstitutional or simply don't apply to them as individuals.

We conducted a two day bench trial, and directed the parties to file proposed Findings of Fact and Conclusions of Law. In accordance with Fed.R.Crim.P. 23(c) we make the general finding that each defendant is guilty as charged and will dismiss their motions for Judgment of Acquittal. In addition, we make the following Findings of Fact and Conclusions of Law.

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. See, e.g., United States v. The Rainbow Family, 695 F. Supp. 294 (E.D.Tex. 1988). The Rainbow Family, or "Rainbow Family of Living Light," as it is sometimes called is, as one court stated:

". . . 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. Annual gatherings have occurred in different National Forests on and around July 4 since 1972. These gatherings draw more than 20,000 participants and last for a month or more. Smaller regional gatherings take place throughout the year in National Forests across the country."

Black v. Arthur, 18 F. Supp.2d 1127, 1130 (D.Or. 1998), aff'd, 201 F.3d 1120 (9th Cir. 2000).

The violation of 36 C.F.R. § 261.10(k) is the same charge which many defendants have faced in reported cases as a result of Rainbow Family gatherings. Participants in these gatherings consistently refuse to sign the permit application as required by 36 C.F.R. § 251.50.

The instant citations were issued to defendants Sedlacko and Beck on July 2, and to Kalb on July 5, 1999, in the Bear Creek area of the Allegheny National Forest, Pennsylvania, during a "gathering" of the Rainbow Family.

In late June and early July, 1999, some 20,000 people gathered in the Allegheny National Forest to participate in, or observe, the Rainbow Family gathering.

The Code of Federal Regulations requires noncommercial groups of 75 or more to apply for a permit (often called a "special group use" permit) to gather in a national forest. 36 C.F.R. § 251.50(a). The application is a simple one page document, which each of the three defendants refused to sign. Gov.Ex. 6, 36 C.F.R. § 251.54.

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 Court of Appeals for the Third Circuit has not directly addressed this question. However, this argument was recently rejected by the United States Court of Appeals for the Ninth Circuit. Black v. Arthur, 201 F.3d 1120 (9th Cir. 2000).

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.

William C. Fox, of Missoula, Montana, a criminal investigator for the U.S. Forest Service, was present at the Allegheny National Forest as the "incident commander" for a national team that is responsible for managing large group events in national forests. (T. 7).

He testified that when he was present at a Rainbow Family gathering in Arizona in the summer of 1998, he was informed by defendant Garrick M. Beck that the Rainbow Family would have a national gathering in the Allegheny National Forest in 1999. (T. 8). He had first met Mr. Beck in March, 1998 in Santa Fe, New Mexico. Mr. Fox said that he also saw an announcement of the 1999 gathering on the Rainbow web site on the Internet. (T. 10). Mr. Fox was quite familiar with these events, having first attended a Rainbow Family gathering in 1992 in Colorado. (T. 10). He knew that there were occasional regional Rainbow gatherings as well as national ones (T. 12), and in conversations with Beck he learned something of the internal organization of the Rainbow Family; it was then that Beck suggested that Fox work with a group he called the "peace keepers", or "Shanti-Sena" of the Rainbow Family, in anticipation of the Allegheny Forest Gathering. An exhibit entitled "Rainbow Guide" (Gov.Ex.3) describes the so-called councils thus:

COUNCILS

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.

In addition to this description of the Councils, there is also a description of the "Main Council" at page 8 of the Rainbow Guide:

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 ecopsychedelic 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?
At Main Council in New Mexico it was consensed (sic) that the Annual Gathering and the council should begin on June 21 and end on July 10 allow more time to synthesize our community and The Rainbow Family Tribal Council. Seven days goes by quickly. A longer Main Council would lead to a clearer vision of the tribal village. A strong tribal coalition can transform unconsciousness and archaic forms of decision-making into creative enlightened potentials.
This controversial decision begged us to look at the purpose and form of Main Council.
Now with twenty days of council, what can we do? Its up to you. Participate and help redefine Main Council.

Mr. Fox also identified a Rainbow Family manual on how to put on a gathering. (Gov.Ex.1). He had also printed his own copy of the manual from the Rainbow web site. This exhibit defines Shanti-Sena (the group Mr. Beck suggested Mr. Fox work with) as follows:

Shanti-Sena

Shanti-Sena means "Peace Center"! There are no "Rainbow Police." We are secure because we watch out for each other. We are All Shanti-Sena. Experienced Shanti-Sena hold regular peace keeping workshops which everyone is encouraged to attend at least once. Do you know what to do in an emergency?

The Rainbow Family appears to base much of its organization and activities on the ways of the American Indians, or Native Americans as they are sometimes called. The manual states in part: "There is no authoritarian hierarchy here. We have a tribal anarchy where we take care of each other, because we recognize that we are all O ne." (Gov.Ex.1). It also states:

Gathering on Public Lands

Our Permit to Gather reads as follows: "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 peaceable (sic) to assemble and to petition the government for redress of grievances."

On the last page this underlined statement appears: "Please do not sign any permits for ...


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