CIVIL ACTION NO. L-88-68-CA
A temporary restraining order was entered on may 12, 1988, and extended on may 19, 1988, which temporarily restrained and enjoined the defendants from holding any Spring Council or other meeting of twenty-five persons and more in any National Forest in the State of Texas, or from organizing or preparing for any such meeting, unless a special use permit was obtained from the U.S. reasons act forth below, the magistrate's recommendations as to the constitutionality of the special use permit regulations shall be', and they are hereby, adopted in part, with respect to the *clear and present danger" criterion, and rejected in part in all other respects.
Although the government apparently disagrees that First Amendment concerns are raised by the special use permit regulations, it cannot reasonably be disputed that the activities in which the defendants seek to engage 'expressive" in nature and accordingly within the ambit of the First Amendment. The record fully reflects -that the defendants' anticipated councils, gatherings or meetings in the National Forests will involve significant expressive activity. For example, individual defendants have testified that Rainbow Family gatherings and councils involve exchange of views on many subjects, including political topics, as well as educational seminars and various forms of worship. Moreover, many of those associated with the Rainbow Family view their very participation or association in such events as political statements (for example, some argue for peace and the ecology, while others are in opposition to hierarchical, coercive systems of government). Even the act of camping in the National Forests may have political connotations and qualify as protected symbolic activity. See, e.g., U.9. v. Albany, 534 P.2d 984, 985 (D.C.Cir, 1976)(per curiam) (sleeping in Lafayette Park in protest vigil is expressive activity); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1994) (Assuming, but not deciding, that overnight sleeping in connection with demonstration is expressive Conduct "protected to some extent by the First Amendment"). Thus, it is unquestionable that rights of speech, worship, and association, closely guarded under the First Amendment, are operative here. Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam) (right of association); Spence v. Washington, 410 U.S. 405 (1974) and Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) (symbolic conduct)l Now York Times Co. v. Sullivan, 376 U.S. 254, 266, 269-72 (1964) (expression of views upon public question and "Unfettered exchange of ideas" are highly protected under the First Amendment).
It also cannot reasonably be disputed that the public Forest Service land* are the type of forum in which expressive activity has historically occurred, and in which public expression of views must be tolerated to a maximal extent. Hague v. C.I.O., 307 U.S. 496 (1939)(use of public streets and parks for exchange of ideas has 'from ancient times been a part of the privileges' of citizenship). In contrast to military bases or other government facilities that have been designated for a particular us* or function and may be closed to expressive Activity, see United States v. Albertini, 472 U.S. 675 (1985), and Greer v. S2ock, 424 U.S. $28 (1976) (military base is nonpublic forum); Monterey County Democratic Central committee v. U.S. Postal Service, 012 F.2d 1194 (9th Cir. 1987) (post office is nonpublic forum); Halo v. Dept. of Energy, 806 F.2d 910 (9th to atomic energy testing area is cir. 1996) (road leading to atomic energy testing areas is nonpublic, forum, even though civilians are occasionally allowed to use it)t the National Forests are traditionally open to any user seeking to engage in appropriate recreational or other activities, including those involving speech worship or association. See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass'n 108 s . Ct. 1319, 56 U.S.L.W. 4292? 4293 (April 19, 1988) (historic use of National Forest site* for Indian religious purposes); United States V. Beam, 686 F.2d 252, 256;57 (5th Cir. 1982) (describing various groups' use of National Forest System lands in Texas). Regulation of expressive activity In such a forum must therefore be narrowly tailored as to time, place and manner, and serve substantial governmental interests as well as leave open ample alternative channels. of communication. Clark, supra , 468 U.S. at 2931 Perry Education-Association v._ Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1993). Any prior restraint on expressive activity in such a context is particularly suspect. Perry, 460 U.S. at 45-46; Lovell V. Griffin, 303 U.S. 444, 451 (1938).
Although duly enacted laws are ordinarily presumed to be Constitutional, when a law infringes on the exercise of First Amendment rights, its proponent bears the burden of establishing its Constitutionality. Eq., A.C.O.R.N. V. Municipality of (Golden Colo., 744 F-2d 739, 746 (10th Cir. 1984); Rosen V. Port Of Portland, 641 P.2d 1243, 1246 (9th Cir. 1981); Espinosa v. Rusk, 634 P-2d 477, 482 (10th Cir. 1980), summarily aff'd, 456 U.S. 951 (1982). "Broad prophylatic rules in the area of free expression are Suspect. Precision of regulation is the touchstone...." Schaumberg v. Citizens for Better Environment, 444 U.S. 620, 637 (1980)(quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).
In this light, the explicit regulatory distinction, between expressive
activity and all other forms of activity, appears to be in and
of itself, an invidious classification by the ,government, singling
out for special treatment the contemplated exercise of free speech,
worship, or association. Perhaps most importantly, the faci&4
distinction between expression and other activity 'may have the
effect of curtailing the freedom to associate (which] is subject
to the closest scrutiny," NAACP v. Alabama, 357 U.S.
449, 460-61 (1958), by burdening associations planned for expression
of views with special requirements not imposed elsewhere. Further,
the government is free, under the regulations, t* find that a
proposed event will be "for the purposes of expression or
exchange of views or judgments,' 36 C.P.R. 5251.50(l), without
any apparent limitation on its discretion. As noted by defendants
in their objections, it is the very existence of such power to
discriminate, on the basis of a person's expression of views or
association with others, which may render a regulation unconstitutional.
Kramer vs. Price, 712 F.2d 174, 177 (1983), vacated
as moot.723 r.2d 1164 (5th Cir; 1984).
Although it carries a heavy burden to do so, the government has made no effort to explain or to justify why First Amendment activities are viewed differently under the regulations from other forms of activity, or to prove that the exercise Of such rights will not be treated differently from other forms of activity. It follows that the classification system established by the regulations which on its face singles out expressive conduct and requires that such conduct be treated differently from other activity, is in itself, invalid under the First Amendment.
Beyond the fact that the structure of the regulatory scheme targets expressive activity, the regulations do not establish-" sufficiently precise standards concerning the denial or approval of permit applications where expression is concerned. In circumstances, such as these, where the government requires that a permit or license be obtained before a group of persons may gather to engage in expressive activity, the United States Supreme Court has stated that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth V. City of Birmingham, 394 U.S. 147, 150-51 (1969). The constitutional problem with standardless discretion, to approve or deny a permit affecting expressive activity, lies in the fact that such a law "creates a threat of censorship that by its very existence chills free speech." A.C.O.R.N., Supra, 744 F.2d at 746. Indeed although not a ground for the court's holding, Lee, oul2ra, n*24,the record herein and other cases reveal cause for concern the National Forest System land or property, remain valid And enforceable.
By virtue of the holdings above -- that the interim rule is not presently in effect, and that the regulations requiring a special use permit for "special events" are unconstitutional there is no legal ground for-the preliminary injunction demanded by the government. It bears reiterating that the government has solely requested, as preliminary injunctive relief, that the defendants be required to secure a special use permit before they hold or prepare for a Spring Council or Summer Gathering in the National Forests in Texas.7
Denial of the plaintiff's motion for preliminary injunction does not, however, deprive it of other remedies at law. A perusal of applicable statutes and regulations disclose that several other remedies are available to the government for the alleged harms to public health and safety, and to National Forest property or lands, which the government sought to forestall .through the issuance of a preliminary injunction.
For example, violations of Forest Service regulations (assuming
they are valid and constitutional) are punishable by a fine of
up to $500.00 and six months imprisonment. 16 U.S.C. 5551; See
also 36 C.F..R. $261.16. Available to the Forest Service if
an abundance of unchallenged regulations promulgated for the protection
of the National Forests and tailored to control the various abuses
that the plaintiff fears, and which are wholly unrelated to the
special use permit regulations. See, 36 C.F.R S261.3 (prohibiting
interference with a Forest Service officer engaging in official
duties); 36 C.F.R. S261.4
(prohibiting public disturbances and disorderly conduct); 36 C.F.R. S2 1.9 (prohibiting damage to government property or endangered flora); 36 C.F.R. S5261.11 and 261.14(q) (regulating the disposal of refuse and sewage); 36 C.P.R. S261.12(d) (prohibiting the restriction of access to Forest System roads); 36 C.P.R. S261.14 (protecting developed recreation and camp sites). Forest Service personnel are also conferred the power to make arrests, not only to enforce the Forest Service's own regulations, but also for violations of federal and state drug laws and other criminal conduct. See, e.g., 16 U.S.C. 5559 (power to arrest for violations of Forest Service regulations); 16 U.S.C. 5559b and 5559c (authorizing Forest Service personnel to investigate, and make arrests for, violations of federal controlled substance laws under 21 U.S.C. SSBOI et seg.); 16 U.S.C. SS$9d (authorizing Forest Service personnel to cooperate with federal and state law enforcement officials in the enforcement of federal and state controlled substance laws)l 16 U.S.C. 5551& (permitting the Forest Service to cooperate with state officials in the enforcement of state laws and local ordinances).
Additionally, 18 U-S-C, S1853 makes it a substantive misdemeanor unlawfully to cut or injure trees within the jurisdiction of the Forest Service, and 18 U.S.C. $1863 imposes criminal sanctions on those who trespass upon National Forest Service lands that lawfully have been closed or restricted pursuant to the Service's regulations. In this regard, executive officers of the Service are empowered to close areas of the National Forests, where such action is necessary, for reasons of public health, public safety, fire hazards, or for the protection ,of threatened vegetation and wildlife. 36 C.P.R. 55261.50, 261.52, 261.53. Such officers may limit a variety of conduct by restriction and limitation orders, including public nudity. lee 36 C.P.R. 55261.2 and 261.58(j). Besides the criminal sanctions that may be imposed, the Service has the authority to seize, impound, and remove personal property from its forests, in order to protect, and ensure access to, areas within its jurisdiction. 36 C.P.R $262.12.
Finally, the Assimilative Crimes Act, 18 U.S.C. $13, if applicable,
would give the plaintiff plenary power to enforce state penal
laws within federal lands, whenever such state laws are not displaced
by analogous federal statute and regulations, or contrary to federal
policy. See United States v. Fesler,.781 P.2d 384, 390
(5th cir. 1906), cert. denied, 476 U.S. ills (1986); United
States v. Brown, 608 F.2d $51, 553 (5th Cir. 1979). Consequently,
where statutes of the United States and regulations of the Forest
Service do not specifically limit or proscribe conduct,, the plaintiff
might resort to the penal laws of the State of Texas for authority
to maintain public order within its bailiwick.
Further, it appears that the government otherwise has available to it a panoply of statutory and regulatory grounds to prevent the alleged harms posed by a gathering or meeting of twenty-five or more defendants on Forest Service lands. Although these provisions may provide the government with an adequate remedy at law for the harms alleged here, it is unnecessary to pass upon that question at this point.