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in the past that have challenged the permit requirement for Rainbow Gatherings.
Descriptions adapted from his book by Butterfly Bill, based on original court records obtained from http://prop1.org
About a week before the July 1st starting day in 1988, The Forest Service law enforcement officers (LEOs) put up roadblocks on all of the roads leading into the site of the national gathering in Texas. The Rainbows carried in supplies thru the woods and continued to set up kitchens using a path that they started calling the Ho Chi Minh Trail.
Some Rainbow gatherers with legal experience filed a complaint in a local federal court, and a judge named William Wayne Justice ruled that the closure violated the First Amendment rights of the Rainbow Family to peaceably assemble. He ordered the Forest Service to remove all the blockades
Justice Justice based his ruling on a case two years earlier in Arizona where a Rainbow brother named Gideon Israel had challenged his ticket for camping without a “special use authorization”. The regulation at that time had recognized two different types of “group events”, a “recreation event”
that involves competition, entertainment, or training such as, but not limited to, animal or vehicle races or rallies, dog trials, fishing contests, rodeos, fairs, regattas, and games.
and a “special event”
for the purpose of expression or exchange of views or judgments.
Different sets of criteria were stated for the granting of the different types of permits.
In his final ruling Justice wrote:
The Forest Service requires groups of ten or more people who gather on Forest Service land “for the purpose of expression or exchange of views or judgments” to apply for a special use permit. Such a regulation impermissibly singles out those who wish to gather in order to exercise their First Amendment rights. The Court finds that this regulation is therefore unconstitutional.
[This was basically quoting the decision of the judge in Gideon Israel's case]
In response to this, the Forest Service issued an “interim rule” that was published in May of 1988, two months before the Texas gathering. It eliminated the distinction and created a single category of “group event”. Justice noted that this was contrary to the usual practice of allowing a period for “public comment” before enacting a change in regulations that was announced well enough in advance for everybody concerned to learn about it. In his conclusion he wrote:
The appropriate action for a court to take where a regulation has been improperly adopted, without notice and opportunity for comment, is to declare the regulation ineffective.
So in spite all of the objections of the first judge being addressed in the new version of the regulations, the Forest Service could not enforce it because there had been no proper period of public comment. It was on this technicality, more than the broader issue of First Amendment rights, that the Justice ordered the blockade be lifted.
Five years after the Texas gathering, the Forest Service responded with another rewriting of the regulations that again did away with the distinction between the two types of activities, and in their words:
contained specific, content-neutral criteria for evaluating applications for noncommercial group uses and noncommercial distribution of printed material and required that the same criteria be applied to those activities regardless of whether they involve the exercise of First Amendment rights.
They published the proposed rule changes in the Federal Register and announced a 90 day comment period that ended in August of 1993. 603 people commented, and on August 30, 1995 they published in the same place their Final Rule.
Only three modifications came about as a result of the comments: a ban on distributing printed matter was removed, the number of participants required to make it a group use was increased from 25 to 75, and the definition of “commercial use” no longer included events for which there was a entrance fee, but only “where the primary purpose is the sale of a good or service”. Otherwise, to the constitutional objections of the people who did comment they replied that they:
may enforce reasonable time, place, and manner restrictions on First Amendment activities. Such restrictions are appropriate:
where they are content-neutral,
where they are narrowly tailored to further a significant governmental interest, and
where they leave open ample alternative channels for communication of information.
Three significant governmental interests were defined and discussed:
protecting forest resources,
promoting public health and safety, and
allocating space among competing users.
As they contended, as long as a regulation fits all of these criteria, it does not violate free speech and expression rights of forest users.
To incorporate these concepts into the new regulations, a new paragraph was added to Title 36, Part 251, Subpart B of the Code of Federal Regulations.
During Seed Camp for the Arizona national in 1998, some LEOs came around demanding that someone sign a permit. The Family presented a united front, and nobody was intimidated into signing one. But one brother named Strider volunteered to accept a ticket for violating the group camping regulation, because he wanted to challenge the regulations in court.
The case went up before a judge instead of a jury because group camping without an authorization is a misdemeanor offense, and juries decide only on felonies. Strider spoke in court pro se with a lawyer friend advising him, and presented several objections to the permit signing scheme in the regulations. But the judge addressed only one of them in his final opinion. He ruled that the words “otherwise protect the public interest” at the end of a list of “terms and conditions as the authorized officer deems necessary” were words that “grant an inappropriately broad range of discretion to the official” and are “deemed as a matter of law to be inappropriate by the Court”. The citation was dismissed.
At the Oregon national gathering in 1997, The people in Seed Camp again presented a united front to the LEOs who approached them and asked that someone sign a permit, and six of them were given tickets
Three were targeted for tickets essentially because of the pre-gathering work they did, in particular going to town and connecting with store-keepers, social service agencies, and the like, in an attempt to set up some lines of communication and address any concerns they might have. At no time were any of the three of them asked to sign a permit.
One of those people had never entered into a conversation with the FS and was targeted only due to the fact that on that town trip Carla Newbre visited the incident command post to request that notification be given onsite for any upcoming town meetings. This person also introduced herself to the head LEO and for her courtesy was one of the five people placed on their “list.”
Plunker offered himself as a ticketee in place of her, and the FS accepted that.
One other person who was on the list (they came into camp one day with the five names already decided and ticket books in hand) was not onsite, and once again, the FS accepted a substitute volunteer, who demanded he be given a ticket.
It was just assumed by those onsite that solidarity would be maintained, no permit would be applied for, and that the five people ticketed would fight the case in court and win. Thousands of people were even prepared for a FS blockade of the camp, should things come to that. Solidarity was maintained, except for the one young woman who signed the permit – anonymously – on her way out of the gathering.
This woman was at her first gathering with a preschool aged child, and was approached in the parking lot by some LEOs who presented her with the papers and threatened her with fines and jail time if she didn’t sign. After doing so, she was frightened enough that she left and didn’t return. The court records of the suit by the Rainbows against the Forest Service say that she signed the application on her way out and she signed the permit itself when she was back in her hometown of Portland.
As a result, the ticketees never got to fight that case. Some of them later sued the FS for selective enforcement, especially challenging the signature requirement.
One of the six ticketees was a licensed attorney, and he filed against two Forest Service law enforcement officers for “violation of civil rights” and “malicious law enforcement”, asking for monetary compensations of $400,000 for each plaintiff, then after getting a brief filed by the Forest Service lawyers in response, he abandoned this motion and filed another asking that the judge issue a “declaratory judgment” that parts of the regulations did not apply to Rainbow Gatherings and that other parts were unconstitutional.
He claimed that what the Forest Service called “the Rainbow Family” was in fact nothing more than a temporary collection of gatherers. It was not incorporated or registered in any form under any laws, and it was not a membership organization. It had no legal authority to appoint agents who could enter into binding contracts. This structurelessness was “an integral and inextricable feature of the Rainbow Gathering, indeed the only unifying force among those attending”. This ideal of no structure and no authority, but instead voluntary cooperation, was objectionable to Forest Service law enforcement and the underlying basis for the punishments. The regulation was worded such that it could only be applied to groups with “established internal authority” and imposed a structure on the gathering that was not real and not wanted.
Also, out of all the regulations there were that required someone to sign an application and then get a permit from an official, only this one required that the permit be signed by the recipient as well. The only reason for this addition was so the Forest Service could subject the group to additional “terms and conditions” above and beyond those ordinarily imposed by law upon everyone. As such, it was not narrowly tailored, because it imposed a special burden on the Rainbow Gathering by requiring a signature, and it served no significant government interest that wasn’t already served by existing law.
There were no “express substantive and procedural standards” to insure a permit was not denied “upon constitutionally improper grounds such as an effort to suppress a distasteful viewpoint or form of worship”. It also allowed the officials to impose additional conditions after the permit was granted, or even revoke a permit later, and thus be “able to effect untimely denials as easily as timely ones”. This could be done “by administrative action alone”.
The regulation also deliberately targeted Rainbow gatherers because it had requirements that that they especially would not be able to meet. It imposed a “vicarious liability” upon all gathering goers. The Forest Service refused to acknowledge that many gatherers voluntarily took part in cleanup efforts and cooperated with resource officials, and instead insisted that such efforts to protect resources they could only be insured by imposing a collective legal liability.
And there had been “insufficient notice of rulemaking”. The Forest Service had compiled several “Rainbow Reports” from resource rangers that praised the cleanup efforts at gatherings, and had not made them known and available before the 90 day public comment period in 1995, and if they had, the nature of the comments might have been different and the final rules might have taken a form more favorable to Rainbow ways.
On the 25th of August in 1998, after the next national gathering in Arizona, the judge dismissed the suit, deciding against the Rainbows.
The judge ruled that “the definition of ‘group use’ clearly includes Rainbow Gatherings.” A word in a regulation must be taken to have its “common, broad meaning” unless another meaning is clearly spelled out in the regulation. The internal structure of the group was irrelevant.
The regulation was content neutral, because it applied equally to all groups of 75 or more, and was narrowly tailored to serving the public interests of protecting the forest, promoting safety and health, and allocating space among competing uses. It also left ample alternatives for expression, because the Forest Service was required to offer an alternative time, place, or manner if a permit was not granted, and it did not affect groups of 74 or less. And “finally, because the burden imposed on expression by the regulation is not substantially greater than a burden imposed by alternative regulations, it is irrelevant that the alternatives to this regulation might equally serve the government’s interests.”
The court disagreed that the permit requirement “delegates unbridled discretion to the permitting official because it does not set standards for granting or denying permits.”, as the judge in Gideon Israel’s case had. There were seven conditions clearly set out that were all content-neutral and had nothing to do with speech or religion, and the official was required to grant a permit if they all were met.
To the allegation that the regulation was deliberately targeted at the Rainbow Family, the judge said, “Even if the Forest Service’s motive in adopting the regulations was animus towards Rainbow gatherers or their message, the regulation is … facially neutral and justified without reference to the content of speech.” Simply because the Rainbows felt unable to meet the signature requirement, did not make the regulation unconstitutional. “The regulation imposes the signature requirement equally upon all applicants, regardless of the content of their speech.”
And finally the judge decided that all the rules for proposing rules had been followed by the Forest Service, and they did not require that “every bit of background information used by an administrative agency be published for public comment”.
During Seed Camp the LEOs came around with a permit application looking for a signer. When they found unanimous refusal, they began a tactic they used for a few years after of trying to determine who the “leaders of the Rainbow” were, and targeting them to receive citations for group camping without a permit. The three they chose were Garrick Beck, Stephen Principle (not a legal but a Rainbow name), and Joanee Freedom (likewise). Stephen had been heavily involved in the 1988 Texas court case, and Joanee was one of the main sources of focalizing energy for CALM. Only these three received any citations, otherwise the LEO presence deep inside that gathering was mostly non-evident to me.
Their selection of these three people as “leaders of the Rainbow” seemed to have been because these three had been the ones who took the initiative in contacting the local resource rangers to let them know a gathering was coming. At a meeting arranged with the LEOs, Garrick was presented with a permit and he refused to sign, and he was issued a ticket. He said he didn’t want to be the only person to get a citation, and Stephen said he would also accept one.
All three went to a joint trial for criminal violation of CFR 32, Sec. 261.10, which included:
The following are prohibited:
(k) Use or occupancy of National Forest System land or facilities without special-use authorization when such authorization is required.
The penalty for this misdemeanor violation was (and still is) a term of up to six months in a federal prison and a fine of up to $500. They obtained the services of four lawyers.
In their “motion for acquittal” they said:
Simply put, it is the position of the Defendants’ that this regulation does not, and cannot, make criminal the actions of an individual. Rather, to the extent it imposes criminal liability, it imposes criminal liability only upon a group. … Only a group needs to get the permit … only a group can be liable if they do not get it.
What the Government refers to as the “group” of attendees at the so-called “Rainbow Family Gatherings” doesn’t have any legal existence of its own and it can’t appoint agents of its own under applicable law.
The regulations recognized only groups which
have a formal hierarchical structure capable of binding its members.
authorize an individual to deal with the Forest Service on the group’s collective behalf.
This being the case, the regulations were not “content neutral” in the case of a Rainbow Gathering, because the anarchy itself was an expression. Acting together without leaders was in itself a statement about how we think people could and should live.
By excluding those mistrustful of authority, by excluding those unwilling to join a group, by excluding those unwilling to surrender their individual autonomy to the group, the Forest Service regulations impermissibly infringe on the rights of individual speech, assembly, and association protected by the First Amendment.
Several other objections were also raised, but these were the ones that the judge addressed in his final ruling.
The Forest Service lawyers in their response introduced the 1999 Rainbow Guide as an exhibit. In his final opinion the judge quoted the section on “Council” in the Mini-Manual, which by 1999 a brother named Michael John had embellished considerably from what Butterfly Bill had written in 1995:
We gather in council circles to voice and creatively resolve the issues and concerns of our ever evolving Gathering. Participation in a council requires a focused mind, a listening ear, and an open heart as we make critical decisions on how to best serve the Gathering. The power to listen is sacred to the process. Councils occur regularly on all workings of the gathering. They include: Main Council, Coop Council, Vision, Clean-up, Legal team, Shanti Sena, CALM, Info, Rainbow Guide, All Ways Free, Focalizers, Kitchens, Fire Watch, Bus Village, and any other special event, issue or aspect. Councils are excellent opportunities to help create the Gathering.
The judge went on to say:
The Guide contains more details on gatherings, definitions, words, and phrases used by the Rainbow Family, and the names and addresses of “Focalizers,” people “who let you know what’s happening where and when, and who you want to contact when you have info to share.”
Then he referred to some testimony from the Incident Commander of the LEOs. He said he had:
met “focalizers” both in 1998 and 1999. They let the Forest Service know where the kitchens were going to be located, where certain individuals were located if we needed to contact somebody. … The focalizer tended to do all of’ the speaking and the other folks just would sit there and listen. Generally it was the focalizer that I would have the conversation with.
The judge rejected the precedent of Strider’s case because the Forest Service appealed his case and that court upheld the constitutionality of the regulation (but also upheld Strider’s dismissal because the new regulation was not yet in effect at the time of his citation). The judge in this case said that in the revised regulation:
The imposition of terms and conditions in noncommercial group use permits is limited to those designed to further the three public interests identified by the Forest Service in promulgating the noncommercial group use rule, i.e., the need to address concerns of public health and safety, to minimize damage to National Forest System resources, and to allocate space among actual or potential uses and activities.
It no longer granted an inappropriately broad range of discretion to the official, as the judge had found in Gideon Israel’s case, but now limited the official to serving these three specified interests.
The judge summarized by saying:
It is clear from the testimony of the government witnesses that there was never any animosity or acrimony between the Forest Service personnel and the defendants; indeed, they were on a first-name basis. The defendants simply refused to sign the permit application when requested to do so by the officers after lengthy conversations with them.
It is also clear from the trial testimony and the exhibits that there is quite a complete internal organization of the Rainbow family in the form of the Councils and committees. The members simply attempt to avoid the permit application requirements by refusing to designate an applicant.
On this basis, the judge rejected “the main thrust of the defendants’ argument” that
they cannot be cited as individuals since they have not been designated by the Rainbow Family to act on the group’s behalf”:
The defendants have not only fit the definition of “participants” in this gathering but also, as discussed in our findings of fact, had leadership roles as spokespersons for the Rainbow Family. They are certainly valid objects of prosecution.
In the summer of 2002, the three camping convicts went to three separate minimum security federal prisons to serve 90-day terms.
Plunker was one of three people picked out by the Forest Service at the 2000 Montana national gathering as “Rainbow leaders” to receive tickets for camping without a noncommercial group use permit. The second was Val a brother who always came to the gathering in a flatbed truck with coils of black PVC pipe loaded on the back, and was one of the principal engineers in laying out the plumbing system that carried water from the springs down to the populated part of the gathering and branched out to several main kitchens. The third was Kalif, a brother who was frequently to be seen at the place where incoming vehicles first entered the gathering, directing them to the appropriate parking areas or to the drop off points for supply loads.
Plunker challenged his citation, appearing pro se, and in his first motion for dismissal Plunker contended basically that the Forest Service forced its own hierarchical model of a religious group on the Rainbow Family in demanding that it appoint a representative. The Rainbow Family was:
not a “who” or a “what,” but a “Tao” or “Way”, or Creed. “Rainbow Family” is a spiritual ideal, and no one can legally file in court for “Rainbow Family” anymore than they can legally file in court on behalf of “Jesus Christ”.
… this Circle can only form where there is no ruling hierarchy or group, or ideology specifically in charge; no one viewpoint, and no persons or person, can “run the show” if all are truly equal.
The government wants Adams to accept the bestowed “membership”, in this religious group not of his choosing, not in accordance with his Creed. Further, Adams must accept being a leader or agent, of this religious group, accept some title like “elder’ or ‘designated signer”, also not in accordance with his Creed.
The Forest Service replied, as they had in the previous cases, that the group use regulation was a constitutional time, place, and manner restriction that is narrowly tailored to fit the specific government needs of protecting Forest Service resources, insuring public safety, and deciding between competing uses in a way that leaves open ample alternative channels for expression. Furthermore the signature requirement was a valuable means of ensuring that the group would adhere to the terms of the special use authorization and of protecting against fraudulent statements.
In the opening paragraph of their brief they said:
In their motions to dismiss, defendants Adams and Demars take what can only be described as a “shotgun” approach in challenging the constitutionality of the Forest Service’s group use regulations. Thus, defendants make a variety of arguments in the apparent hope of stumbling upon a constitutionally problematic provision.
Plunker responded in a second motion by expounding further on the signature requirement. He felt he could only act as “an informal contact” and that he “lacked the presence and authority to act as a group”. Therefore he was “only applying as an individual seeking use.” He was faced with:
a Hobson’s Choice, a dilemma between the regulation’s signature requirement and its prohibitions against false statements to the government.
The trial started at 9 in the morning and was over at half past 3 that afternoon. All three were found guilty as charged. The judge in his final ruling didn’t seem to address many of the points that Plunker raised. Instead he stated:
the constitutionality of the group use permit scheme, as interpreted by the Forest Service, is determined under the traditional three-part test used to analyze regulations governing the use of public forums
… the government may regulate the time, place, and manner of expressive activity that occurs in a public forum so long as the regulatory scheme (1) is content-neutral, (2) is narrowly tailored to serve a significant government interest, and (3) leaves open ample alternatives for communication.
Adams concedes the first two prongs of this test but argues that the permit scheme fails the third prong because it does not leave open ample alternatives for communication. We find this argument to be without merit. …
The judge said there was nothing preventing the Rainbow Family from having its gatherings on private, state, or non-National Forest federal land, or from gathering in groups of less than 75 other than their own preferences, and all these alternatives were available to them.
He continued. Plunker:
asserts that an individual should not be punished merely because he or she was present during the time that improper group use occurred, arguing that to do so is to punish one for association, which is prohibited. This hypothetical situation is not the case before the court.
In his opinion Plunker was obviously a leader at this gathering, knew of the permit signature requirement, and chose to ignore it.
we find Adams’ argument that he was selectively prosecuted to be without merit. The evidence showed that the Forest Service cited Adams (along with two other participants) based on his role as an organizer of the 2000 gathering.
Val was sentenced to 10 days imprisonment and ordered to pay a fine of $500. Kalif was ordered to pay the same amount, but he had been in previous non-Rainbow related trouble with the law and he was sentenced to six months. Plunker paid the same fine, and he was sentenced to 90 days. The Forest Service tried to get the judge to order him to pay a “restitution” of $7,529.39 for cleanup and law enforcement expenses, but the judge rejected this, saying that even if a permit had been signed, the signer would have no such liability. After appealing and failing, Plunker finally served his sentence in the summer of 2005 in a minimum security federal detention center in Seattle, Washington.