REED LEE

J.D. Obenberger & Associates

Attorneys & Counselors-at-Law

Three First National Plaza, Suite 3700

Chicago, IL 60602

(312) 558-6420

Attorney for Plaintiffs Black, Newbre,

Johnson, and Bernstein

MARIANNE DUGAN (OSB # 93256)

1216 Lincoln Street

Eugene, OR 97401

(541) 485-2471

Local Counsel for Plaintiffs Black, Newbre,

Johnson, and Bernstein

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ALEXIS BLACK, BRIAN MICHAELS, )

BARRY ADAMS, CARLA NEWBRE, JOHN )

JOHNSON, and SUSAN BERNSTEIN, ) CIVIL NO. 97-1798-AA

)

Plaintiffs, ) CERTAIN PLAINTIFFS' ) MEMORANDUM OF LAW

v. ) IN OPPOSITION TO ) DEFENDANTS' MOTION TO

RUSSEL ARTHUR, et al., ) DISMISS

)

Defendants. )

__________________________________________)

Abood v. Detroit Board of Education, 431 U.S. 209 (1977) 21

Arcara v. Cloud Books, Inc., 478 U.S. 697, 708 (1986) 20

Ashwander v. Tennessee Valley Authority, 279 U.S. 288, 341 (1936) 3

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n. 10 (1963) 16

Blodgett v. Holden, 275 U.S. 142, 148 (1927) 11

Bunker Hill Co. v. E.P.A., 572 F.2d 1286 (9th Cir. 1977) 7, 8

Carey v. Brown, 447 U.S. 455 (1980) 19

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534 (1993) 20

City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988) 17, 18, 30, 33

City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) 12

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) 20

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) 13, 14, 15

Conley v. Gibson, 355 U.S. 41, 45-46 (1957) 3

Connecticut Light and Power Co. v. N.R.C., 673 F.2d 525, 530-31 (D.C. Cir. 1982) 7

Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985) 12, 20, 33

DeJonge v. State of Oregon, 299 U.S. 353 (1937) 23, 24

Edmond v. United States, 117 S. Ct. 1573, 1578 (1997) 11

Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) 13, 17, 30

Freedman v. State of Maryland, 380 U.S. 51, 58-59 (1965) 18, 30, 31

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229 (1990) 31

Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979) 20

Gustafson v. Alloyd Company, 513 U.S. 561, 574 (1995) 9

Hague v. C.I.O., 307 U.S. 496, 512 (1939) 24

Hartford Fire Insurance Co. v. California, 509 U.S. 764, 811 (1993) 3

Healy v. James, 408 U.S. 169, 186-87 (1972) 25

Herndon v. Lowry, 301 U.S. 242, 259-61 (1937) 24

Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995) 23

Mayo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994) 3

Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,

797-98 (1984) 18

Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977) 20

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) 23, 24, 25, 32

National Electronics Manufacturers Association v. EPA, 99 F.3d 1170, 1172 (D.C. Cir.

1996) 7

Niemotko v. Maryland, 340 U.S. 268 (1951) 12, 19

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979) 11

Noto v. United States, 367 U.S. 290, 299 (1961) 25

Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37,

45-46 (1983) 12

Perry v. Sindermann, 408 U.S. 593 (1972) 20

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) 14

Pickering v. Board of Education, 391 U.S. 563 (1968) 20

Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972) 19

Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973) 7

Riley v. National Federation of the Blind, 487 U.S. 781, 802 (1988). 18, 21, 30, 31

Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 828

(1995) 19

Schnieder v. State, 308 U.S. 147 (1939) 15

Shelton v. Tucker, 364 U.S. 479, 488 (1960) 21, 24, 25

Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) 13, 17, 18, 30

Simon & Schuster, Inc. v. Members of the New York State Crime Victims’ Board, 502

U.S. 105, 116 (1991) 19, 21

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975) 16, 33

Stromberg v. State of California, 283 U.S. 359 (1931) 24

Texas v. Johnson, 491 U.S. 397 (1989) 12

Thornhill v. State of Alabama, 310 U.S. 88, 97 (1940) 18

Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641-42 (1994) 13, 14, 19, 21, 30

Union Oil Co. of California v. Federal Power Commission, 542 F.2d 1036, 1041

(9th Cir. 1976) 6-7

United States v. Alaska, 117 S. Ct. 1888, 1918 (1997) 9

United States v. Grace, 461 U.S. 171, 177 (1983) 14

United States v. Menasche, 348 U.S. 528, 538-39 (1955) 9

United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2nd Cir. 1977) 7, 8

United States v. O’Brien, 391 U.S. 367, 376 (1968) 14-15

United States v. Rainbow Family, 695 F. Supp. 294, 314 (E.D. Texas 1988) 3, 30, 34

Walters v. Metropolitan Educational Enterprises, Inc., 664 117 S. Ct. 660, 664 (1997) 11

Ward v. Rock Against Racism, 491 U.S. 781 (1989) 13, 15, 27, 28

Washington Trollers’ Association v. Kreps, 645 F.2d 684, 686 (9th Cir. 1981) 7

Wayte v. United States, 470 U.S. 598 (1985) 21

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943) 21, 23

Whitney v. State of California, 274 U.S. 355, 375 (1927) 24

Wooley v. Maynard, 430 U.S. 705 (1977) 21

Yick Wo v. Hopkins, 118 U.S. 356 (1886) 21

Young v. American Mini-Theatres, Inc., 427 U.S. 50 (1976) 20

U.S. Const., 1st Am. passim

U.S. Const. Art. 6 cl. 2 27

5 U.S.C. § 553 6

5 U.S.C. § 556 6

5 U.S.C. § 557 6

16 U.S.C. § 551 1

36 CFR § 251.50(a) 1, 5

36 CFR § 251.50(c) 5, 9

36 CFR § 251.51 5

36 CFR § 251.54(e)(1) 29

36 CFR § 251.54(e)(2) 1, 28, 29

36 CFR § 251.54(f)(5) 30, 31

36 CFR § 251.54(h)(1)(viii) 28

36 CFR § 251.60(a)(1)(i) 31

60 Fed. Reg. 45258 (1995) passim

4 R Rotunda and J. Nowak, Treatise on Constitutional Law: Substance and Procedure

(2nd ed. 1992) 13, 21

L. Tribe, American Constitutional Law (2nd ed. 1988) 13, 20

On April 23, 1998, the Plaintiffs filed their Second Amended Complaint ("complaint") in this case challenging certain administrative regulations promulgated by the United States Department of Agriculture to govern the use of National Forest System lands. The Plaintiffs have in the past and, unless prohibited or chilled, will in the future use National Forest lands for the purpose of gathering with others to express and exchange their ideas and to worship and pray for peace. (Complaint ¶¶ 6-11, 15-16). If more than 73 other persons gather for these purposes with any one of the Plaintiffs, the Forest Service will define that gathering as a "noncommercial group use" of National Forest lands. (Id. ¶¶ 20, 22). The challenged regulations require that before any such "noncommercial group use[]" is made of National Forest lands, a formal authorization must be obtained from the Forest Service. 36 CFR § 251.50(a). The Plaintiffs’ challenge is principally, though certainly not entirely, directed to a quite peculiar feature of the Forest Service’s permit system: while the challenged regulations do not require that an application for a group use authorization be signed by anyone, 36 CFR § 251.54(e)(2)(i), they do require that the authorization itself be signed by someone designated by the permit holder, Id. § 251.54(h)(1)(viii), and they apparently contemplate, but they do not expressly require, that the signer must sign as an "agent for the group" which will use the authorization, see, e.g., 60 Fed. Reg. 45274 (August 30, 1995) (final rulemaking, response to comments).

In an ordinary permit system, such as those which commonly govern the use of public streets for parades or the use of public parks for meetings or religious gatherings, an individual applicant submits an application, perhaps signed by that individual, and the licensing official grants a permit, which is very commonly signed by the public official who authorized its issuance. In contrast, the Forest Service’s scheme is unusual in that the permit or authorization must be signed not only by the issuing official but by someone legally representing those who will use National Forest lands under the authorization. This special requirement is no accident, for the Forest Service believes that it imposes upon the using "group" certain liabilities which would not otherwise exist under applicable law. E.g. 60 Fed. Reg. 45274, 45286.

The Defendants Arthur, Carpenter, and the Forest Service (collectively "the Government") moved to dismiss that complaint on May 11, 1998, arguing that the challenged administrative regulations are constitutionally valid as a matter of law. They do not dispute that the Plaintiffs’ use of National Forest lands is protected expression or religious exercise, but they contend that the challenged permit scheme is a valid regulation of the time, place, and manner of the Plaintiffs expressive and religious activities. Mtn at 19-20.

Plaintiffs Bernstein, Black, Johnson, and Newbry (collectively "these Plaintiffs") now submit the following memorandum of law in opposition to the Defendants’ motion to dismiss the complaint. They first set forth their argument that the Department of Agriculture improperly promulgated the challenged regulations because they failed to notify those who might comment of the proposed regulations that the Forest Service had in its possession certain reports and information which would have assisted commenters in responding to the proposed regulations. (See Complaint ¶¶ 54-59). They next assert that, as a matter of statutory construction, the challenged regulations do not apply to their use of National forest lands, despite the Forest Service’s contrary view. (See Id. ¶¶ 29-33). Finally, they argue that, if the regulations are construed to apply to any of them when they gather with more than 73 other persons, those regulations are unconstitutional under the circumstances of their gatherings. (See Id. ¶¶ 34-53). Thus the order of the arguments presented here is consistent with this Court’s prudential reluctance to decide unnecessary constitutional questions, see, e.g., Ashwander v. Tennessee Valley Authority, 279 U.S. 288, 341 (1936)(Brandeis, J., concurring), and it serves to highlight the Government’s inconsistency or constitutional error in arguing, on the one hand, that the noncommercial group use requirements apply to any assemblage of at least 75 persons and, on the other hand, that the authorization signature requirement imposes legal liabilities upon that "group" which would not exist between the individual gatherers absent the required signature.

Since the Government has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), this Court must evaluate its motion by taking all of the complaint’s well-pleaded facts as true and drawing all reasonable factual inferences in favor of the Plaintiffs’ claims. Mayo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994), cert. den’d sub nom. California Department of Corrections v. Mayo, 513 U.S. 1081 (1995). This Court may dismiss the complaint only if "it appears beyond doubt that the Plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Hartford Fire Insurance Co. v. California, 509 U.S. 764, 811 (1993); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In addition, since a motion to dismiss for failure to state a claim attacks a complaint on its face, this Court must ignore the substantial factual allegations which the Government recites in support of its motion to dismiss, principally in the guise of citing portions of its own resolution of factual disputes which arose as a result of comments on the proposed regulations, 60 Fed. Reg. 45258-95 (Aug. 30, 1995), and of findings in other cases involving what the Forest Service refers to as "Rainbow Family Gatherings," e.g. United States v. Rainbow Family, 695 F. Supp. 294, 314 (E.D. Texas 1988). None of these Plaintiffs were parties in any of the litigation cited by the Government, and the factual determinations which the Government reached at the close of the administrative comment period do not bind this Court in the face of contrary factual allegations in the complaint. While the Government is surely entitled to raises its own factual allegations by way of answer, it may not rely on them in support of a motion to dismiss. Unless this Court ignores the Government’s extraneous factual assertions, it must treat this motion as one for summary judgment under Rule 56. Cf. Fed. R. Civ. P 12(b).

Factual Background

Since 1972 large numbers of individuals, among them each of the Plaintiffs, have from time to time gathered on National Forest lands in order to pray for peace, practice their religion, develop, express, and exchange their environmental, social, and political views with others who gather with them. (Complaint ¶¶ 2, 15). Each of these individuals brings to these gathering a different mix of religious and political interests, but each chooses to gather with others on National Forest land because of a belief in the importance of public land or because of a desire to repair to undeveloped areas in order to practice their religion or express this views. (Id. ¶ 15). In every year since 1972, there has been at least one such gathering, and in recent years there have been several each year located in National Forests throughout the United States. (Id. ¶¶ 15, 16). The availability of these regional gatherings make it possible for many who could not afford the time and expense of traveling to a single, annual, nation-wide gathering to enjoy the religious and political benefits of attending a gathering with others. (Id. ¶ 16).

After managing these gatherings, remarkably successfully, for many years through the promulgation of operating plans which, for each gathering designated locations, permissible land uses, prescribed camping, food preparation, sanitation, and safety procedures, (Id. ¶¶ 19), the Government decided to adopt administrative regulations requiring individualized special use authorization for each such gathering. (Id. ¶¶ 19, 20). As the Government itself concedes, its efforts at imposing a permit requirement for these gatherings have twice been invalidated as a result of litigation involving certain gatherers. (Id. ¶ 20). After the most recent invalidation, the Government undertook notice and comment rulemaking and promulgated regulations which purport to define any gathering, where the gathers exceed 74 in number, as a "noncommercial group use." 36 CFR § 251.51. The regulations then require that a special use authorization be obtained, in advance, for each such "noncommercial group use" through an administrative process prescribed by the regulation. Id. § 251.50(a) and (c). This process requires, inter alia, that a person or persons, at least 21 years of age, be designated to sign, Id. § 251.54(e)(2)(i)(E), and in fact sign, Id. § 251.54(h)(1)(viii), the special use authorization once it has been issued by the appropriate Forest Service official. Although the written regulations nowhere expressly require as much, the Government has predicated its entire permitting scheme of the belief that this person must sign the authorization not as an individual but "as an agent for the group" which will be using National Forest lands under the special use authorization. E.g. Fed. Reg. 45274, 45286.

Because the Plaintiffs and those who gather with them do not gather under the auspices of any corporation or other form of organization, they cannot act as a group, either to appoint agents or for any other purpose. (Complaint ¶ 17). Since the Government is unwilling to accept a signature of an individual permit holder, as an individual, the Plaintiffs and other gatherers have concluded that it is simply not legally possible for anyone to sign the special use authorization as the Government requires. (Id. ¶¶ 17, 19-22). For this reason, gatherings have recently proceeded without formal authorization. (E.g. Id. ¶ 23). The gatherers, on the other hand, continue to respect the authority of the Forest Service resource management personnel to act as stewards of the National Forest lands, and they continue to cooperated in the execution of operating plans issued by the Forest Service for each gatherings. (Id. ¶¶ 19, 20).

Because an annual gathering commenced in 1997 in the Ochoco National Forest without the prior issuance or a special use authorization, the Government cited or threatened to cite each of the Plaintiffs for gathering without the required permit. (Id. ¶¶ 6-11, 23). Each individual Plaintiff had taken an active role in making that gathering, and previous gatherings, happen in a safe and peaceful manner, and each was, as a result, singled out for citation by the Government. (Id. ¶¶ 6-11). After the cited Plaintiffs responded to their citations through Plaintiff Michaels, who happens to be an attorney, the Government dismissed the complaints against them. (Id. ¶ 23). This lawsuit followed seeking to enjoin future enforcement of the challenged regulations against the Plaintiffs when they gather with others in the National Forests.

The Department of Agriculture promulgated the "noncommercial group use" regulations challenged here through so-called "notice and comment" rulemaking. Despite the relative informality of this process, compare 5 U.S.C. § 553, with 5 U.S.C. §§ 556, 557 (1988), it was designed and intended by Congress to provide the interested public with a meaningful opportunity to participate in the development of administrative regulations by commenting upon proposed regulations before they become final. To this end, an agency is required to publicly propose regulations which it is considering and to provide an opportunity for the public to comment on the proposed regulations. 5 U.S.C. § 553(b). Before it adopts any final regulations, the agency is required to consider the comments which it has received. It typically responds to those comments as part of its final rulemaking, as the Department of Agriculture did here. These comments then become a part of the "notice and comment record," Union Oil Co. of California v. Federal Power Commission, 542 F.2d 1036, 1041 (9th Cir. 1976), which enables a reviewing court to assess both the factual basis for any final rules and the agency’s reasons for adopting them. For this reason, this record "must contain sufficient factual data, however informally presented, to provide substantial evidentiary support for the action taken." Ibid.

Beyond providing a basis for ultimate judicial review, the notice and comment process must also provide the public with a meaningful opportunity to comment on proposed administrative regulations. This requires that the public be informed, before the period for comment actually closes, cf. Bunker Hill Co. v. E.P.A., 572 F.2d 1286 (9th Cir. 1977), of the factual bases which the agency has for proposing a regulation. To meet the requirements of § 553, an agency must provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully. National Electronics Manufacturers Association v. EPA, 99 F.3d 1170, 1172 (D.C. Cir. 1996); quoting Florida Power & Light Co. v. United States, 846 U.S. 756, 771 (D.C. Cir. 1988). Where the agency has based its proposal on information known to it but not generally known to the public, it must notify the public of that information if non-agency commenters are to have a genuine opportunity to fully address the agency’s proposal. "To suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether." United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2nd Cir. 1977). "It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that [to a] critical degree, is known only to the agency." Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973), cert. den’d, 417 U.S. 921 (1974); see also Connecticut Light and Power Co. v. N.R.C., 673 F.2d 525, 530-31 (D.C. Cir. 1982). For these reasons, an agency must provide to the public basic data and other information sufficient to enable an interested or affected person to comment intelligently on its proposals. Washington Trollers’ Association v. Kreps, 645 F.2d 684, 686 (9th Cir. 1981).

The complaint alleges that, in this case, the Government relied upon data which it had long collected in the form of reports known, at least informally, as "Rainbow Reports." (Complaint ¶ 56). These reports were not known to the general public or to many who commented of the Department’s proposed regulations. (Id. at 56-57). These reports contained detailed accounts of the Forest Service’s past dealings with so-called "Rainbow Family Gatherings," including accounts of the Forest Service’s largely successful use of "operating plans" to regulate the gatherings. (Cf. Id. ¶¶ 19, 20). Had they been available to those who commented on the proposed regulations, the public would have been aware of several available alternatives to the proposed regulatory scheme and could have suggested how those alternatives might better protect the expressive and religious rights of the Plaintiffs and others who gather with them. Indeed, comment on this subject, together with the Department’s response would have put this Court in a better position to evaluate many of the claims which the Plaintiffs advance here. But in this case, the Government apparently knew what it wanted to do. It knew, too, that the Rainbow Reports would provide a basis to dispute some of the factual conclusions and glosses which the Department reached in the course of its final rulemaking. While the Department was not required to actually publish all of the Rainbow Reports as part of its proposal, it should at the very least have notified the public of their existence and made them available for inspection during the comment period. Bunker Hill Co. v. E.P.A., 572 F.2d 1286 (9th Cir. 1977). Instead, it concealed their very existence and provided a classic occasion for the observation that "[t]o suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether." United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir. 1977). For this reason alone, this Court should hold that the administrative regulations challenged here cannot properly apply to the Plaintiffs.

All of the administrative regulations challenged here depend for their application upon the definition of the term "group." None of the special use application or authorization requirements pressed by the Government against the Plaintiffs apply at all unless the gatherings which they attend amount, as the Government contends, (Complaint ¶ 22), to "noncommercial group uses" of National Forest lands. Section 251.50(c) expressly exempts noncommercial activities on National Forest lands from any special use requirements unless a special use authorization is specifically required by other administrative orders or regulations not at issue here or unless the activities amount to "noncommercial group uses as defined in § 251.51 of this subpart." 36 CFR § 251.50(c)(3). Section 251.51 does not define "noncommercial group uses" as such. Instead, it separately defines "noncommercial use or activity" and "group use." Presumably, Section 251.50(c)(3) contemplates taking these two separate definitions together to arrive at a definition of "noncommercial group uses." There has never been any dispute that the gatherings which the Plaintiffs attends are wholly noncommercial in nature. (Complaint ¶ 20). There has always been, on the other hand, a sharp dispute between the Government and gatherers over whether the Plaintiffs and the other individuals who attend gatherings with them constitute any sort of "group" in any legally meaningful sense.

Section 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." At first blush, this definition might appear to rely upon circular logic in using the term "group" to define the term "group use." The well-settled presumption is, however, that all terms included in a statute or regulation are intended to be there and that they are intended to make a difference. United States v. Alaska, 117 S. Ct. 1888, 1918 (1997)(court should "avoid an interpretation of a statute that renders some words altogether redundant" (internal quotation marks omitted)); Gustafson v. Alloyd Company, 513 U.S. 561, 574 (1995)(same); United States v. Menasche, 348 U.S. 528, 538-39 (1955). In this case, for instance, the words "a group of" could have been left out entirely without rendering the definition of "group use" semantically insensible. Indeed, had those words been left out of the definition, the Government’s case for a very broad interpretation of "group use," (Mtn at 14-18), would have considerably more appeal, at least viscerally. But the definition does include these words; and their inclusion indicates an intent to restrict the application of the noncommercial group use regulations to "groups" which are something more than merely what the remaining words describe: a collection of "75 or more people, either as participants or spectators."

Essentially begging the surplusage question, the Government argues that since the term "group" is not further defined within the regulations at issue here, it could have a very broad meaning, (Mtn at 15 n. 5), which reduces it to nothing more than "75 or more people, either as participants or spectators." The Plaintiffs do not dispute that the English language includes senses of the term "group" which are very broad and diverse. Disciplines such as taxonomy, chemistry, and mathematics, and organizations such a the Army and Air Force, for instance, have developed highly specialized and sometimes quite abstract definitions of the term. See Webster’s Ninth New Collegiate Dictionary at 539 "group" (1991). Common parlance also plainly admits of the use of the term in reference to almost any collection of people or things, however haphazard or temporary that collection may be. There can be no doubt, for instance, that it makes a certain amount of semantic sense to speak of the collection of individuals on a city bus at any particular time as a "group." The question arising under the challenged regulations, however, is not whether a dictionary contains all of the broad definitions and meanings for which a party might want to contend, but rather whether the very loose sense of "group" advanced by the Government has any legally significant meaning in the context of the administrative regulations at issue here.

In this respect, the nature of the Government’s purpose in promulgating the regulations becomes significant. As detailed at considerable length infra, one of the Government’s principal goals in requiring a user’s signature on the special use authorization for a noncommercial group use is 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 the National Forest System lands." 60 Fed. Reg. 45274, 45286 (Aug. 30, 1995). Yet it just does not make any legal sense at all to speak of holding an entire audience at a musical concert "responsible for the actions of its members as a whole" even though it does make sense in other contexts to speak of an audience as a "group" and of individual attendees as "members" of the audience. Even more importantly, as argued infra, unless the "group" to which the noncommercial group use regulations apply has a fair degree of internal structure to begin with, the Government’s "group" liability scheme will run very seriously afoul of established constitutional protections when applied to expressive or religious assemblies. See infra at 21-27. This Court must, of course, interpret a statute or administrative regulation so as to avoid rendering it unconstitutional "if there is a reasonable interpretation available." Edmond v. United States, 117 S. Ct. 1573, 1578 (1997); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979); Blodgett v. Holden, 275 U.S. 142, 148 (1927). In this case, there is: the term is "group" should be limited to those organizations which have sufficient internal structure that they can legitimately bear the liability relationships which the Government seeks to impose through the issuance and execution of a special use authorization. For these reasons, this Court should narrowly construe the term "group" and avoid the serious constitutional questions presented by the Government’s position in this case.

III. The First Amendment Prohibits the Enforcement of the Government’s Noncommercial Group Use Regulations Against the Expressive and Religious Gatherings Which the Plaintiffs Attend.

The complaint amply alleges, (Complaint ¶¶ 2, 15), and the Defendants agree, (Mtn at 19), as they must, that the Plaintiffs have used and seek to use National Forest lands for the purposes of expression and religious exercise which are presumptively protected by the First Amendment to the United States Constitution. Cf. Texas v. Johnson, 491 U.S. 397 (1989)(political demonstration in public park); Niemotko v. Maryland, 340 U.S. 268 (1951)(religious gathering in public park). Furthermore, the Defendants do not dispute that the National Forest lands of interest to the Plaintiffs constitute a traditional public forum for expression and religious exercise. Cf. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985); Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45-46 (1983). For these reasons, this Court must review the portions of the Forest Service administrative regulations challenged here under the heightened scrutiny required by the First Amendment. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986)("[w]here a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force ").

Contrary to the Government’s suggestion in this case, (cf. Mtn at 18-19), v. Rock Against Racism, 491 U.S. 781 (1989), and Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), cited by the government, did not involve challenges to the permit requirements but rather to blanket prohibitions against sleeping in a park or requirements to use a municipal employee to mix sound for a concert in a park. All of the terms used here are defined and elaborated immediately infra.

there are three different types of First Amendment scrutiny applicable here because, as specified in the complaint, (Complaint ¶¶ 34-39, 40-46, 47-53), the challenged provisions regulate presumptively protected expression and religious exercise in at least three different ways. Cf. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641-42 (1994); Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, (1992); see also 4 R Rotunda and J. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 20.10, 20.46, 20.47 (2nd ed. 1992); L. Tribe, American Constitutional Law §§ 12-2, 12-3 (2nd ed. 1988)(appropriate level of constitutional scrutiny depends upon the way in which the government has chosen to regulate expression).

1. Time, Place, and Manner Scrutiny

First, as the Government itself notes, (Mtn 18-20), the Forest Service’s regulation is expressly designed to regulate the time, place, and manner of expression and religious exercise on National Forest lands. Statutes, ordinances, and administrative regulations which merely restrict the time, place, and manner of expression or religious exercise are subject to an intermediate form of judicial scrutiny which is considerable more searching than the rational basis scrutiny which the Court’s ordinarily apply to legislation challenged under other constitutional provisions. See, e.g., Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 640-42, 664 (1994). A time, place, and manner regulation will be upheld, if but only if, "the restrictions are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." United States v. Grace, 461 U.S. 171, 177 (1983); see also Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). As with all regulation of presumptively protected expression and religious exercise, the government bears the burden of establishing each of these elements in order to sustain a time place and manner regulation. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 664 (1994)(government must demonstrate that the harms at which it has aimed its time, place and manner regulation "are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way"); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986)(citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), as a case where government properly bore burden of justifying time, place, and manner regulation); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, (1984)("it is common to place the burden upon the Government to justify impingements on First Amendment interests").

For the purposes of this motion, these Plaintiffs assume that there is no longer any appreciable difference between the intermediate scrutiny which has traditionally been applied to time, place, and manner regulations and that articulated in United States v. O’Brien, 391 U.S. 367, 376 (1968), for review of regulations reaching expressive conduct in a way that incidentally restricts certain forms of expression. See Ward v. Rock Against Racism, 491 U.S. 781, 796-802 (1989); but see Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94, 299 (1984)(distinguishing between time, place, and manner scrutiny and O’Brien scrutiny). Thus while "a regulation of the time, place, and manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests," no analysis properly applying intermediate First Amendment scrutiny includes a requirement that the government adopt that particular time, place, and manner regulation which is "the least restrictive or least intrusive means of doing so," out of all of the possible alternatives, Ward at 798.

Id. at 799-800 (1988)(footnote omitted). Thus while the government is not required to adopt the least restrictive time, place, and manner regulation imaginable, it is not free to adopt an unduly broad or burdensome regulation in the guise of a time, place, and manner regulation. Even where the government can establish that its regulation is actually aimed merely at the time, place, and manner of expression or religious exercise, its regulation will fail the "narrowly tailored" requirement if the government has rejected or overlooked alternatives which fully serve its significant interests while imposing substantially less burden upon expression or religious exercise.

2. Prior Restraint Scrutiny

Second, whenever the government decides to implement any regulation of expression or religious exercise by means of a system which requires that the speaker or worshipper obtain official approval in advance of the expression or religious exercise, the government must demonstrate that its regulatory scheme satisfies the very rigorous scrutiny applied to prior restraints. While prior restraints upon expression are not invalid per se, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n. 10 (1963), they all come before the courts bearing a "heavy presumption against [their] constitutional validity." Id. at 70; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975).

Id. at 559 (emphasis in original). Beyond this, it is well settled that any system requiring a license, permit, or similar official authorization in advance of expression, religious exercise, or "conduct commonly associated with expression" carries a serious danger of censorship. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988). Whenever a licensing official has the authority to permit or deny expression or religious exercise in advance on a case-by-case basis, the law recognizes the danger that that official may base the licensing decision on an official or even a personal distaste for the message to be conveyed of the religion to be practiced. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, (1992). Furthermore, the law recognizes two additional constitutional difficulties presented by a system of prior restraint. First, the very possibility of close, unfettered pre-expression administrative review may chill the willingness of some potential speakers or worshippers even to apply for official permission. Lakewood at 757-58. Second, even if a willing applicant submits an application and even if the licensing official unconstitutionally denies that application because of official or personal distaste for the content of the expression or religious exercise, it will generally be quite difficult to identify such surreptitious censorship unless a reviewing court can measure the reasons for the licensor’s decision against established criteria for issuance or denial or the permit in question. Id. at 758.

For these reasons, whenever a government decides to further its substantial or compelling concerns by requiring an advance license for expression, religious worship, or conduct commonly associated with either, the licensing scheme must contain "narrow, objective, and definite" substantive standards to constrain licensing discretion. Nationalist Movement at 131; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969). The courts cannot simply rely upon the good faith of the government officials involved to avoid unconstitutional censorship, Lakewood at 770; the objective standards narrowly constraining the licensor’s authority "must be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice." Ibid. Just as the First Amendment requires that all constitutionally valid prior restraint systems be fettered by objective standards to minimize the risk of improper censorship by official denial of a permit necessary for expression or religious exercise, so too must they contain strict procedural standards to insure that a licensing official cannot accomplish by inaction what could not constitutionally be accomplished by an actual decision of a license application. Accordingly, in order to rebut the "heavy presumption" that its prior restraint upon expression or religious exercise is unconstitutional, the government must show that the licensor bears the burden of justifying any administrative denial of a permit and that the prior restraint system provides, "by statute or authoritative judicial construction that the [licensor] will, within a specified brief period, either issue a license or go to court to restrain" the planned expression or religious exercise. Freedman v. State of Maryland, 380 U.S. 51, 58-59 (1965); see also Riley v. National Federation of the Blind, 487 U.S. 781, 802 (1988).

It is well settled that, in the absence of the foregoing substantive and procedural constraints, a prior restraint scheme poses such a serious threat of unconstitutional censorship that it is invalid on its face. It makes little difference whether a facial challenge to a prior restraint system is permitted because every application of the permit requirement poses an unacceptable risk of impermissible censorship or because the unfettered official substantive or procedural discretion will deter some parties from even applying for a permit and thus result in some unnecessary self-censorship, compare Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797-98 (1984), with Id. at 798-800. For either reason, it has long been established that "a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969)(footnote and citations omitted); see also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-62 (1988); Thornhill v. State of Alabama, 310 U.S. 88, 97 (1940). Thus, where a prior restraint upon expression or religious exercise is involved, "one has standing to challenge a statute on the grounds that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license." Freedman v. State of Maryland, 380 U.S. 51, 56 (1965).

3. Strict Scrutiny

Third, the complaint alleges that the challenged regulation is deliberately aimed at a particular set of speakers and worshippers, the Plaintiffs among them, who have a long history of exercising their constitutional rights on National Forest lands (Complaint ¶¶ 48-53), and who have suffered considerable harassment at the hands of Forest Service law enforcement personnel while doing so (id. ¶ 49). Where the government has targeted expression or religious worship because of its message or because of the identity of the speakers or worshippers, its regulations and actions are subject to the "most exacting scrutiny" when reviewed by the courts. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994). "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." Simon & Schuster, Inc. v. Members of the New York State Crime Victims’ Board, 502 U.S. 105, 116 (1991); see also Carey v. Brown, 447 U.S. 455 (1980)(invalidating residential picketing statute which permitted labor picketing but prohibited picketing on all other subjects); Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972)(invalidating school picketing statute for same reason). "In the realm of private speech or expression, government may not favor one speaker over another." Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 828 (1995); see also Neimoko v. State of Maryland, 340 U.S. 268, 272 (1951)(invalidating permit refusal where "[t]he conclusion is inescapable that the use of the park was denied because of the City Council’s dislike for or disagreement with the [Jehovah’s] Witnesses or their views.").

Ordinarily, the government’s motivation is judged to be content based or content neutral on the face of the challenged regulation itself, see Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994), citing Frisby v. Schultz, 487 U.S. 474, 481 (1988), but cases are legion where the courts are required to look behind the mere words of the challenged regulation or government action, see, e.g., Turner at 645-46, citing United States v. Eichman, 496 U.S. 310, 315 (1990)("[a]lthough the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is related to the suppression of free expression"); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534 (1993)("Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt"); see also L. Tribe, American Constitutional Law §12-5 (2nd ed. 1988). Occasionally, the government itself benefits from this more searching inquiry. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)(upholding ordinance which expressly singled out theaters for differentially restrictive zoning regulation on account of the content of the films shown; government’s purpose was to combat nonexpression-related "secondary effects" of such theaters); Young v. American Mini-Theatres, Inc., 427 U.S. 50 (1976)(same). More often, however, courts invalidate an otherwise permissible government action because a challenger has shown that it was motivated by distaste for a speaker’s message. E.g. Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977); Perry v. Sindermann, 408 U.S. 593 (1972); Pickering v. Board of Education, 391 U.S. 563 (1968). In any event, full evaluation of a claim of content-based discrimination does require careful factual evaluation of any claim that the government has acted because of a dislike of a message, speaker, or worshipper. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985)(remanding for further consideration of official motivation even when challenged action appeared content-neutral on its face); see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 708 (1986)(O’Connor, J., joined by Stevens, J., concurring and necessary to majority)(facially neutral government action as pretext for content discrimination warrants strict scrutiny); Wayte v. United States, 470 U.S. 598 (1985)(challenge to selective enforcement of criminal law in retaliation for expression); Yick Wo v. Hopkins, 118 U.S. 356 (1886)(inferring racially discriminatory intent from pattern of licensing under facially neutral licensing ordinance).

Thus whenever it can be shown that the government has acted because of its distaste for a particular message, speaker, or worshipper, the First Amendment requires the application of the "most exacting scrutiny" on judicial review. This "most exacting scrutiny" is also required whenever the government requires an individual to say something he or she would prefer not to say, Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994); Riley v. National Federation of the Blind, 487 U.S. 781, 798 (1988); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943), or to personally associate with expression from which the individual would prefer to distance him- or herself, Abood v. Detroit Board of Education, 431 U.S. 209 (1977)(collective bargaining unit member cannot be compelled to finance union expression on matter unrelated to contract negotiation and enforcement); Wooley v. Maynard, 430 U.S. 705 (1977)(reversing a conviction for taping over "Live Free of Die" on license plate affixed to individual’s own automobile). In any case, under this "most exacting scrutiny" a court will invalidate a challenged governmental regulation or action unless the government shows that it "is necessary to serve a compelling [government] interest and [that it] is narrowly drawn to achieve that end," Simon & Schuster, Inc. v. Members of the New York State Crime Victims’ Board, 502 U.S. 105, 118 (1991), and that no less expression-restrictive alternative is available to the government, Shelton v. Tucker, 364 U.S. 479, 488 (1960); 4 R Rotunda and J. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 20.10 (2nd ed. 1992).

One of the Government’s stated purposes in promulgating and enforcing the challenged noncommercial group use authorization requirement is to ensure that the "group" using the National Forest lands will be "responsible for the actions of its members as a whole that relate to the use and occupancy of the National Forest System lands." See, e.g., Fed. Reg. 45286 (August 30, 1995).at 21-27.

In addressing, during its final rulemaking, comments criticizing the authorization signature requirement challenged here, the Department responded:

60 Fed. Reg. 45274 (Aug. 30, 1995). The Government cannot and does not now disclaim this purpose as a principal motivation for the challenged signature requirement. (Mtn at 28).

In the first place, it is worth noting that the Secretary of Agriculture – or whomever is ultimately responsible for the final rulemaking analysis – is certainly entitled to his opinion concerning what will "enhance [a] group’s solidarity," but he may not impose that opinion upon the Plaintiffs or others.

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Citizens, and other individuals for that matter, remain free to decide for themselves when a "group’s solidarity" is worth enhancing and, if so, just how to attempt to do that. Even more importantly, it is also worth noting that the quoted opinion is astonishingly naive concerning the effects of vicarious liability relationships within expressive associations or assemblies. This naiveté is quite remarkable – not to say disappointing – in light of the fact that asserted vicarious responsibilities within expressive associations and assemblies have expressly concerned the United States Supreme Court for over 60 years. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); DeJonge v. State of Oregon, 299 U.S. 353 (1937). Indeed, it is quite significant that, while the final rulemaking analysis gleefully and repeatedly recites the constitutional test for time, place, and manner regulation of expression and religious exercise (e.g. 60 Fed. Reg. 45259-60), and while it often asserts the legitimacy and substantiality of some of the interests which it offers in support of the final rule (e.g. id. at 45262), it pays no attention whatsoever to the restrictions which the First Amendment imposes upon the assertion of vicarious liabilities within expressive associations or assemblies. Anyone familiar with the full scope of our contemporary First Amendment jurisprudence is left with the inescapable conclusion that the Department simply missed an important constitutional issue in its final rulemaking analysis.

The United States Supreme Court long has long recognized that an individual cannot be held responsible for an idea, aim, or objective of an expressive association unless he or she joins or participates in that expressive association with the specific intent of furthering that idea, aim, or objective. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908, 920 (1982)("right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected," "[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence"); DeJonge v. State of Oregon, 299 U.S. 353, 365 (1937)("peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceful political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score"); see also Stromberg v. State of California, 283 U.S. 359 (1931)(invalidating individual’s conviction for waving red flag). It was for this very reason that the Supreme Court eventually invalidated applications of the criminal syndicalism laws which made it unlawful to join any organization which advocated the forcible overthrow of governments, DeJonge at 365-66, and it was this principle which also came to protect teachers, Shelton v. Tucker, 364 U.S. 479, 485-87 (1960), labor organizers, see, e.g., Hague v. C.I.O., 307 U.S. 496, 512 (1939), and even early civil rights workers from the taint of their "communist" associations, Herndon v. Lowry, 301 U.S. 242, 259-61 (1937). The First Amendment thus requires that, in the context of expressive associations and assemblies, any individual responsibility must be genuinely personal to the individual and not vicariously derived from an association or from other individuals who participate in the same association. Any other result would surely chill virtually all expressive association and assembly out of existence. 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, cf. Whitney v. State of California, 274 U.S. 355, 375 (1927)(Brandeis, J., joined by Holmes, J. concurring in opinion vindicated in Brandenburg v. State of Ohio, 395 U.S. 444, 447 (1969))(arguing Ms. Whitney could not be convicted for participating in meeting which adopted militant platform over her active opposition).

More recently, the United States Supreme Court has also expressly addressed the other side of this same coin: the First Amendment also places meaningful limits upon the extent to which a "group," even a group which has decided to organize itself under the law or other applicable regulations, can be held responsible for those who choose to associate with it. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 931 (1982)("[t]o impose liability without a finding that the NAACP authorized – either actually or apparently – or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment"); Healy v. James, 408 U.S. 169, 186-87 (1972)(campus student organization could not be denied recognition because of affiliation with national group which advocated, inter alia, unlawful action). Again, any contrary result would chill many political and perhaps religious associations out of existence. Even where a formally established expressive or religious organization purports to exercise considerable discipline over its formal members, it cannot be made an insurer of its members’ actions. It cannot be made vicariously liable for the frolics of its members. Political and religious associations are no more capable than individuals of assessing the complete agenda of each person who offers support for their cause.

For the foregoing reasons, its has long been clear that the First Amendment requires that the government regulate expressive associations and assemblies very carefully. "In this sensitive field, the [government] may not employ means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488 (1960). In particular, where issues of group liability arise in the context of presumptively protected expressive activity, the First Amendment demands "precision of regulation." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982). This the Government has altogether failed to do. Ignoring the long-established constitutional requirement that vicarious liabilities may imposed within expressive associations only "according to the strictest law," Claiborne Hardware at 919; Noto v. United States, 367 U.S. 290, 299 (1961), it has eschewed the required case-by-case analysis of agency and vicarious liability relationships, proved upon clear and convincing evidence, cf. Id. at 299-300 (intent of member in joining organization "must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by force or violence might be punished . . . because of . . . unprotected purposes which he does not necessarily share"). Instead, without even remotely indicating (anywhere in the course of some 40 pages’ of analysis in the Federal Register) that it had any idea of what it was doing, it decided to impose, by a peculiar requirement that an agent or representative sign the special use authorization itself, some sort of unexplained blanket liability upon a user "group" for the unspecified actions of its "members."

This effort would be problematic enough, in a constitutional sense, when applied to a political or religious organization with a separate legal existence, with an established internal authority structure, and with a defined membership – all of which describe both the Communist Party at issue in Noto and the NAACP at the time of the Claiborne County boycott. It is even more outrageous in light of the fact that the Department and the Government knew when it promulgated the challenged regulation that it would apply it to what it terms the "Rainbow Family of Living Light" and the "Rainbow Family Gatherings." 60 fed. Reg. 45259-89. As specified in the complaint, the so-called Rainbow Family is not an organization in the sense of the Communist Party or the NAACP. (Complaint ¶ 17). So it is especially puzzling to the Plaintiffs how the Government can even speak of "members of the Rainbow Family." The Government has not even begun to explain, for instance, how it would apply its notion of "member[ship]" to an assembly of religious pilgrims gathered to examine a religious relic which, for reasons of his or her own, the relic’s custodian has chosen to display to those interested in the peace and sanctity of remote National Forest land. Indeed, it is altogether unclear how the government would even apply its notions of "member" "agent" and "representative" to the audience gathered at the musical concert at issue in Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The complaint in this case expressly alleges that 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 that it can’t appoint agents of its own under applicable law. Complaint ¶ 17. Recognizing this, the Government responds that, in promulgating the challenged regulation, it intended that federal law will impose vicarious liability relationship even where none would exist under settled state law. To be sure, federal law is supreme, within its sphere, over state law, Const. Art. 6 cl. 2, but the Government’s 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 73 others. Claiborne Hardware, and the long and firmly-settled line of cases upon which it relies, flatly refutes this suggestion. Those cases recognize that the imposition of vicarious liabilities beyond those already imposed by existing law will very likely burden and chill expression association and religious exercise to a constitutionally unacceptable degree.

In light of the applicable constitutional scrutiny set forth supra at 13-21, and of the Government’s stated purpose to impose some new but undefined blanket "group" liability upon any set of 75 or more common-purpose users of National Forest land, see supra at 21-27, the noncommercial group use authorization application and signature requirements cannot constitutionally be enforced in the context of the gatherings which the Plaintiffs attend. This memorandum details the unconstitutionality of these requirements under each of the applicable First Amendment tests immediate infra.

1. Time, Place, and Manner Scrutiny

The Government cannot justify, even as a mere time, place, and manner regulation, its requirement that at least one "agent for the group," e.g. 60 Fed. Reg. 45274 (Aug. 30, 1995), be designated to sign, 36 CFR § 251.54(e)(2)(i)(E), and in fact sign, Id. § 251.54(h)(1)(viii), the special use authorization for a noncommercial group use. Such a requirement fails at least two of the elements of the constitutional test for time, place, and manner regulations. First, especially in light of the complete lack of "precision of regulation" concerning the "group" liability which it intends to impose by this signature requirement, the Government’s objective to create a new but undefined "group" liability upon signature of an authorization is simply illegitimate for all of the reasons detailed supra at 13-16. An illegitimate governmental purpose, cf. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989), is, of course, ipso facto insubstantial and insignificant within the meaning of the time, place, and manner test. Second, also for the reasons detailed supra, the creation of an undefined and otherwise nonexistent "group" liability attendant upon the signature of an authorization will seriously chill the willingness of reasonable individuals to sign an such authorization and it will substantially burden the expression and religious worship which proceeds under such a signed authorization.

As noted supra at 15, time, place, and manner review does not require that the Government adopt the least restrictive possible regulation of expression or religious exercise, but it does demand that the Government forego regulations which are substantially more burdensome than available alternatives. Ward at 799-800. The peculiar requirement that an "agent for the group" sign an authorization issued by the Government is just such a regulation. The only one of the Government’s purposes which is uniquely served by the challenged signature requirement is the illegitimate one of imposing a blanket liability upon the group. All of the other interests which the Government advances can be served at least as well, and sometimes better, by other regulations, requirements, or procedures available to the Government here. The Government’s legitimately significant interests in protecting National Forest lands, preparing to assist those who will be using the National Forests, preventing conflicts among uses of the National Forests, and serving as a "reservation desk" to allocate use of particular National Forest lands on a first-come, first-served basis can all be fully served by a system which assesses proposed land uses on a case-by-case basis but does not require an "agent for the group" to sign a special use authorization. Indeed, the only interest which the Government has ever asserted that requires any kind of signature requirement at all is the interest in preventing fraud in connection with a request to use National Forest land. 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 statement made in connection with an application for such use. § 251.54(e)(1) and (2), indicate just how poorly the Government thought its legitimate interests through in its effort to impose a "group" liability on any substantial set of land users in the National Forests.

Because the requirement that an "agent for the group" sign a special use authorization chills and burdens expression and religious exercise on National Forest land substantially more than alternatives readily available to the government, and because that requirement uniquely serves only an illegitimate governmental interest, the challenged signature requirement cannot survive even the time, place, and manner scrutiny which is most generous to the Government. Even under this scrutiny, the mere assertion of government interests is not enough. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 664 (1994). Just as the Turner Court remanded that case for an assessment of how well the challenged regulations served the governments asserted interests, so too this Court should permit this case to proceed to discovery and trial on that issue.

2. Prior Restraint Scrutiny

The Government’s requirement that each noncommercial group use apply for, receive, and sign a special use authorization before using National Forest lands cannot survive as a prior restraint upon the Plaintiffs’ expression and religious exercise on that land. As detailed supra at 16-18, a requirement for advance official permission for expression and religious exercise can be enforced only if the discretion of the licensor is fettered by "narrow, objective, and definite" substantive standards, Nationalist Movement at 131; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969), and strict procedural standards, Riley v. National Federation of the Blind, 487 U.S. 781, 802 (1988); Freedman v. State of Maryland, 380 U.S. 51, 58-59 (1965), governing the issuance or denial of an application for such permission. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988). Since another court has previously advised the Government of these requirements, see United States v. Rainbow Family, 695 F. Supp. 294, 314 (E.D. Texas 1988), the Government has, in many particulars, circumscribed its official’s discretion as the constitution requires.

In a similar vein, the Government recognizes the constitutional requirement that any decision of its administrators be subject to prompt judicial review. It has thus expressly provided that a denial of an application for a special use authorization for a noncommercial group use is a final administrative action, subject to judicial review – if the applicant takes the Government to court. But that provision falls short of the clear constitutional requirement that regulation provide, expressly or by "authoritative judicial construction that the [licensor] will, within a specified brief period, either issue a license or go to court to restrain" the planned expression or religious exercise. Freedman v. State of Maryland, 380 U.S. 51, 58-59 (1965)(emphasis added). The requirement that the Government bear the burden of initiating judicial review of any adverse administrative action is an important one, see Riley v. National Federation of the Blind, 487 U.S. 781, 802 (1988), because it ensures that one wishing to speak or worship will not simply be discouraged by an improper administrative denial and simply take his or her expression or worship elsewhere or try another time. Freedman at 59. As the complaint alleges, this result would deprive many of the benefits of a gathering which would have otherwise occurred at a time and place making it possible for them to attend. Complaint ¶ 16. Although there are circumstances under which the First Amendment does not require the licensor to bear the burden of initiating court action, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229 (1990), this is not one of them. Absent the challenged regulations, the gatherings of the type which the Plaintiffs attend occur several times and in several National Forests each year. Complaint ¶ 16. For this reason, the dangers which led the Supreme Court to articulate this requirement are fully present here. Again, however, the Government’s irresistible urge to impose a "blanket" group liability upon any set of more than 74 individuals using National Forest land for a common purpose led it to run seriously afoul of settled constitutional requirements.

There is little point in closely fettering administrative discretion in processing an application for advance official permission for expression or religious worship if the issuing official retains the unbridled discretion to place whatever restrictions, conditions, or burdens he or she chooses into the permit itself. In the ordinary case, where a parade, meeting, or similar permit merely authorizes the requested expression or worship at a particular time and place, specifies conditions and limitations imposed as a result of existing law, and simply reminds the holder that those in attendance will be subject to all other existing statutes, regulations, and requirements, the specific content of the permit itself is unlikely to pose any additional danger of the type inherent in any system of prior restraint. Here, however, by the government’s own admission, the special use authorization is intended to accomplish a very different purpose. The final rulemaking analysis repeatedly states, though it never even begins to explain, that the agent’s signature "gives the authorization legal effect." E.g. 60 Fed. Reg. 45274 (Aug. 30, 1995). This may well be true of the issuing official’s signature, but it simply cannot be true of the user’s agent’s signature unless the authorization is designed to impose upon the using group some requirements, conditions, and obligations which the Government could not enforce against anyone absent the group’s acquiescence. This Court need not reach the issue of whether and when the Government can insist on such additional requirements, conditions, and obligations, and it need not decide whether the Government can ever impose wholly new obligation as part of an official authorization to speak or worship. In this case, it suffices to invalidate the current regulations as prior restraints that the Government has expressly announced its intentions and deliberately designed its special use authorizations to impose an unspecified "group" liability, which would not otherwise exist, on expressive or religious associations and assemblies. Quite apart from the "precision of regulation" which is always required in connection with imposing vicarious liabilities within expressive associations and assemblies, cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982), the First Amendment requires that prior restraints be fettered in all of their particulars which pose a danger of arbitrary official censorship. The current regulations may envision some sort of "group" liability but they do not directly impose it. Instead, they leave each issuing official free to prescribe the conditions and extent of liability on a case-by-case basis in each authorization, even as previous speakers and worshippers come back for additional authorizations for addition gatherings. This is precisely the danger of a prior restraint system. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759-60 (1988)(invalidating annual re-licensing of newspapers’ news racks by mayor). It is precisely why all such systems are presumptively unconstitutional. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). And it is precisely why the Government cannot overcome that presumption in this case. Since the complaint properly asserts the foregoing defects in the Government’s system of prior restraint, this Court should deny the Government’s motion to dismiss.

3. Strict Scrutiny

Even if the challenged administrative regulations could pass muster under time, place, and manner scrutiny, they must nevertheless fall here because they are subject to a judicial scrutiny which is nearly always fatal. As set forth supra at 19-21, the First Amendment requires that this Court apply strict scrutiny to the challenged regulations if the Government promulgated them as a result of a distaste for a particular viewpoint, speaker, or worshipper. Even where the Government offers justifications for challenged actions which appear reasonable and neutral on their face, a careful factual inquiry, essentially precluding the dismissal which the Government seeks here, is required where the challenger alleges that the Government’s action was motivated by such an unconstitutional purpose. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985)(remanding for further consideration of official motivation even when challenged action appeared content-neutral on its face). The complaint amply alleges the animosity between those who gather with the Plaintiffs and some elements of the Forest Service, (Complaint ¶¶ 18-19, 22-27), and it reflects the fact that gatherers have twice invalidated the Government’s regulations in actions brought by the Government against them, (Id. ¶ 20). Even the Government’s own final rulemaking analysis reflects the history of tension between the government and those who gather on National Forest lands. 60 Fed. Reg. 45259-89 (Aug. 30, 1995)(mentioning "Rainbow Family of Living Light" beginning on second page of lengthy analysis). These circumstances alone would suffice to warrant the careful factual inquiry required in Cornelius. But here there is an additional telling detail. 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 Plaintiffs, and the Government was plainly well aware of this fact. E.g. 60 Fed. Reg. 45274. Yet the government did not choose to implement a more traditional permit system which does not require that the user sign the permit itself. Instead, it pressed forward with its effort to get what is 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, and the language which has supported it, 60 Fed. Reg. 45259-89, and which still supports it, (Mtn at 18), 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 Plaintiffs, to the point of chilling their interest in the National Forest altogether.

Upon strict scrutiny, of course, the challenged regulations must fail. Even if all of the Government’s asserted legitimate interests actually supported the challenged signature requirement and even if they could all be deemed "compelling," there are numerous less speech-restrictive alternatives which are plainly available to the government. The complaint alleges, for instance, that the government has successfully regulated their gatherings in the past by promulgating "operating plans" which govern the appropriate details of each gathering. (Complaint ¶¶ 19-20). These "operating plans" provide but one of many less restrictive alternate regulations which will adequately serve all of the Government’s legitimate interests while putting an end to the campaign on the part of some in the Forest Service directed at driving the Plaintiffs and their fellow gathers out of the National Forests.

For all of the foregoing reasons, this Court should deny the Government’s motion to dismiss the Second Amended Complaint and should permit this case to proceed through discovery and, if necessary, trial.

Respectfully submitted,

ALEXIS BLACK, CARLA NEWBRY,

by:____________________________________

Reed Lee, Esq.

and:______________________________________

Marianne Dugan, Esq.