The opinion of the court was delivered by: Cohill, Senior District Judge.
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.
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
". . . 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
throughout the year in National Forests across the
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
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 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
In addition to this description of the Councils, there is also
a description of the "Main Council" at page 8 of the Rainbow
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
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
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
On the last page this underlined statement appears: "Please do
not sign any permits for ...