Government's appeal brief - March 11, 1999 -- Part 2

A. The District Court Erred In Entertaining Defendants'
Facial Challenge In The Context Of This Case.

1. Principles discussed in Ward v. Rock Against Racism, 491 U.S. 781 (1989), make clear that defendants should not have been allowed to proceed with a facial challenge to the Forest Service's regulatory scheme. Ward involved a facial challenge by a sponsor of a rock concert to New York City's regulations concerning the volume of amplified music at performances using the bandshell in Central Park. The city's regulation required bandshell users to employ sound-amplification equipment and a sound technician provided by the city. Relying principally on Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (4-3 decision), the applicant in Ward argued that the regulation at issue "places unbridled discretion in the hands of city officials charged with enforcing [the regulation]," 491 U.S. at 793, because, in the applicant's view, there was nothing in the language of the regulation

to prevent city officials from using sound amplification as a means to censor the message being conveyed. See 491 U.S. at 793 ("According to respondent, there is nothing in the language of the guideline to prevent city officials from selecting wholly inadequate sound equipment or technicians, or even from varying the volume and quality of sound based on the message being conveyed by the performers.").

In addressing the facial challenge in Ward, the Court noted that it is an "'extraordinary doctrine' that permits facial challenges to some regulations of expression * * *." 491 U.S. at 794 (quoting Lakewood v Plain Dealer Publishing Co, 486 U.S. 750, 787 (1988) (4-3 decision) (White, J., dissenting)). The Court then stated that " [o]ur cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that 'ves[t] unbridled discretion-in a government official over whether to permit or deny expressive activity."' 491 U.S. at 793 (quoting Lakewood v. Plain Dealer Publishing Co., 486 U.S. at 755). The Court went on to explain that the "grant of discretion that respondent seeks to challenge here is of an entirely different, and lesser, order of magnitude, because respondent does not suggest that city officials enjoy unfettered discretion to deny bandshell permits altogether," 491 U.S. at 793-794, but, rather, only that there is unfettered discretion in attaching terms and conditions to the grant of the permit. In sum, the Court's prior cases allowed facial challenges only because the applicant argued that, under

the licensing scheme at issue, a government official enjoyed unfettered discretion to deny a permit outright.

2. Although the Ward Court did not decide whether the district court properly entertained the facial challenge advanced in that case (because the Court decided that the facial challenge "failed on its merits," 491 U.S. at 794 10/), the Court's analysis of why "facial challenges" were entertained in prior cases is important, and there is "no reason not to apply the Court's [analysis] in the case at bar." United States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996). 11/ Indeed, consistent with the analysis in Ward, a year later, in FW/PBS. Inc. v. City of Dallas, 493 U.S. 215, 223, 226 (1990), the Court ruled that plaintiffs had standing to assert a facial challenge to certain aspects of a licensing scheme (id. at 223-230), but not to other aspects
____________________________________

10/ In Point I(B), infra, we demonstrate why defendants' facial challenge in this case also fails on its merits.

11/ Even if the Court's discussion were only dicta, it would be entitled to "due deference." United States v. Baird, 85 F.3d at 453. In Tennison v. Paulus, 144 F.3d 1285, 1286 (9th Cir. 1998), this Court permitted a facial challenge in a First Amendment case even though plaintiffs had "fail[ed] to provide a single example of how the Act has been applied to violate any constitutional rights of any specific individual. " The Court cited its earlier decision in Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir. 1997), in support of this ruling. Significantly, neither Tennison nor Nunez involved a licensing scheme. Moreover, neither case mentioned Ward. Tennison relied on Plain Dealer, and Nunez relied principally on Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973), but as the discussion in the text demonstrates, neither Plain Dealer nor Broadrick involved "the entirely different, and lesser, order of magnitude" (Ward, 491 U.S. at 794) of challenge at issue in Ward and here. Thus, neither Tennison nor Nunez should control the outcome of this case. See also Roulette v. City of Seattle, 97 F.3d at 303 (discussing Broadrick and the facial challenge doctrine).

because plaintiffs had never been threatened with application of those provisions (id. at 230-36). 12/

a. As applied here, Ward's analysis makes clear that the district court should not have entertained defendants' facial challenge to the regulatory scheme. Defendants do not allege that Forest Service officials enjoy unfettered discretion to grant or deny a special-use permit. Nor could they, since a permitting officer's reasons for denying a permit are specifically established by 36 C.F.R. 251.54(h)(1). Indeed, the permitting official must grant a permit unless the proposed activity is
inconsistent with any of eight specific, content-neutral criteria (none of which is challenged as unconstitutional). Under 36 C.F.R. 251.54(h)(1), "[a]n authorized officer shall grant an application for a special use authorization for a non-
_____________________________

12/ The Court has emphasized that facial challenges to the constitutionality of statutes or regulations are disfavored because they deprive a court of any factual setting upon which to ground legal analysis. FW/PBS. Inc. v. Dallas, 493 U.S. 214, 223 (1990). Generally, facial challenges are allowed "sparingly and only as a last resort * * *. " Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). See also National Endowment for the Arts v. Finley 118 S. Ct. 2168, 2175 (1998) ("Facial invalidation 'is, manifestly, strong medicine."') (quoting Broadrick, 413 U.S. at 613). Facial challenges are particularly disfavored when leveled against laws regulating conduct, even expressive conduct, instead of pure speech. Broadrick, 413 U.S. at 615 ("[P]articularly where conduct and not merely speech is involved, we believe that the overbreadth of the statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."). Furthermore, facial challenges to licensing schemes that allegedly lacked adequate procedural safeguards, such as Freedman v. Maryland, 380 U.S. 51 (1965), involved the procedural safeguards accompanying the denial of a permit application, not procedures applicable after the permitting authority decided to allow the speech to go forward.

commercial group use" (emphasis added) unless the proposed activity: (i) is prohibited by 36 C.F.R. part 261, subparts A or B.; (ii) is- inconsistent with the applicable forest land and resource management plan required by 36 C.F.R. part 219; (iii) will materially impact sensitive resources or lands identified in Forest Service Handbook 1 909.15, Chapter 30; (iv) will delay, halt, or prevent
administrative use of an area by the Forest Service or other scheduled or existing uses; (v) violates state and local public health codes; (vi) poses a substantial danger to public safety; (vii) involves non-federally funded paramilitary training or exercises; or (viii) a person 21 years of age or older has not signed the permit on behalf of the applicant. See also Black v. Arthur, 18 F. Supp. 2d at 1134 (the
permitting official "must" grant an application unless the application fails to meet the requirements of 36 C.F.R. 251.54(h)(1)(i)-(viii)). Thus, the regulation contains specific limitations on the permitting official's discretion to deny a permit, and contrary to the district court's conclusion, Forest Service officials do not enjoy unbridled discretion at the critical first step of the permitting process. See also
Black v. Arthur, 18 F. Supp. 2d at 1134.

b. Defendants, instead, argue that Forest Service officials-like the city officials in Ward-enjoy an "unbridled discretion" (CR 21 at 9) at the second step of the permitting process, when terms and conditions can be attached to the permit. Ibid. But that is precisely "the entirely different, and lesser, order of magnitude"

that the Ward Court made clear was not involved in the cases where facial challenges in licensing schemes had been permitted prior to Ward. In its brief oral ruling, the district court stated that 36 C.F.R. 251.56(a)(2)(vii) "grants an inappropriately broad range of discretion to the applicable official discharging responsibilities * * * under the regulatory scheme" (ER 87), without recognizing that the discretion the court referred to was at the second level of the permitting process. 13/

Moreover, in this regard, the fact that the regulatory scheme provides rigid and short time limits on administrative decisionmaking and allows for prompt judicial review of denials eliminates the need to permit a facial challenge. Any abusive application of terms and conditions can be reviewed by a court as final agency action generally in time to permit protected speech to go forward. Cf., e g, FW/PBS, 493 U.S.- at 227-228 (licensing scheme that fails to provide for prompt decisionmaking and judicial review of licensing decisions is subject to facial invalidation). In addition, there is no record of abusive practice by the Forest Service in its administration of the licensing provision or in the application of terms and conditions on permits that independently suggests that a facial challenge should
________________________

13/ We disagree that the portion of the regulations authorizing the imposition of terms and conditions by the permitting official grants unfettered discretion to that official. See discussion, infra, Point I(B). At this point, however, it is enough to note that any claim of unfettered discretion at the second step of the permitting process is insufficient to permit defendants' facial challenge to proceed under the Supreme Court's jurisprudence.

be permitted here. Cf. National Endowment for the Arts v. Finley, 118 S. Ct. at 2179 (constitutionality of provision that does not directly prohibit speech, but simply withholds government sponsorship, will be sustained "[u]nless and until" there is evidence that it has been "applied in a manner that raises concern about the suppression of disfavored viewpoints"). Accordingly, the district court erred in extending the "extraordinary doctrine" (491 U.S. at 794) governing facial challenges
to allow defendants' facial challenge in the instant case. 14/

B. In Any Event, Defendants' Facial Challenge Fails On Its Merits.

1. The regulation meets the test for time, place, and manner restrictions.

We assume for the purposes of this appeal that the National Forest System is a public forum. "[I]n a public forum the government may impose reasonable restrictions on time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave
____________________________

14/ In Roulette v. City of Seattle, 97 F.3d 300, this Court held that plaintiffs could not bring a facial challenge to a Seattle ordinance-restricting sitting or lying on certain sidewalks during certain hours of the day-because, in the Court's view, sitting or lying on a sidewalk is not sufficiently expressive to merit First Amendment protection. The same reasoning could also apply to use of the National Forest System. We have not made that argument in this case, however, and have instead conceded that use of the National Forest System involves sufficiently expressive content to warrant First Amendment protection (see Point I(B), infra). In our view, defendants' facial challenge is impermissible for the reasons stated here in Point I(A), and should clearly fail for the reasons stated in Point I(B), infra.

open ample alternative channels for communication of the information."' Ward v. Against Racism, 491 U.S. at 791 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). See also Foti 146 F.3d at 635-636. And we have not disputed that Rainbow Gatherings involve speech or expressive conduct that is constitutionally protected under the First Amendment. See CR 30; see also Final Rule. Thus, the critical inquiry is whether the Forest Service's regulations comport with the constitutional restrictions placed on time, place, and manner regulations: that is, can the regulations "be justified without reference to the content of the regulated speech?"; are they "narrowly tailored to serve a significant government interest?"; and do they "leave open ample alternative channels for communication of the information?" Ward, 491 U.S. at 791; Foti, 146 F.3d at 635636. As we now demonstrate, all three questions are answered in the affirmative. Therefore, the regulations are constitutional.

First, the regulatory scheme does not regulate the content of speech. The regulations address "the governmental interest in reducing the actual or potential damage to national forest system lands that may occur as a consequence of having large groups use these lands * * *." United States v. Johnson, 159 F.3d 892, 895 (4th Cir. 1998). 15/ The regulations, as well as USDA's comments accompanying
___________________________

15/ United States v. Johnson sustained the constitutionality of the regulatory scheme in the face of a challenge similar to the one raised here. 159 F.3d at 895896.

them, make clear that the regulations serve three purposes. Ibid. "They are designed to (1) 'protect resources and improvements on National Forest System lands,' (2) 'allocate space among potential or existing uses and activities,' and (3) 'address concerns of public health and safety."' Ibid. (quoting Final Rule at 45,262). None of these important public interests depends or otherwise refers to the content of any communicative message. Moreover, the regulations apply to all groups of 75 or more regardless of their views or the content of their speech.

Further, as stated above (in Point I(A)), the permitting official does not have unfettered discretion to deny a permit. A permitting officer's reasons for denying a permit are specifically established by a defined list of eight content-neutral requirements in 36 C.F.R. 251.54(h)(1)(i)-(viii) (see discussion, supra, at 21-22), and these criteria do not permit grants or denials based on the applicant's viewpoint or the evaluation of the content of the applicant's speech. See also Black v. Arthur, 18 F. Supp. 2d at 1134 (the permitting official "must" grant an application unless the application fails to meet the requirements of 36 C.F.R. 251.54(h)(1)(i)-(viii)). Nor does the permitting official have unfettered discretion to attach terms and conditions to the grant of a permit. The terms and conditions that the Forest Service may attach to a permit are limited to those designed to assure compliance with otherwise applicable health and safety standards, to minimize damage to federal property and resources and other environmental aspects of the forests, to allocate scarce

resources, and to protect the physical safety of all those in the National Forest System. See 36 C.F.R. 251.56(a)(1) & (2); see also Black v. Arthur, 18 F. Supp. 2d at 1134. Hence, the permitting official cannot use the provisions at 36 C.F.R. 251.56(a)(1) & (2) to impose onerous terms or conditions so as to, in effect, deny a permit to groups whose views or speech the official finds distasteful.

Second, the "permit requirement serves [the government's interest in protecting the National Forest System while protecting the citizenry's right to enjoy its use] in a narrowly tailored manner by providing a minimally intrusive system to notify Forest Service personnel of any large groups that will be using the forest so that the personnel, through advance preparation, can minimize any damage that may
occur." United States v. Johnson, 159 F.3d at 896. The information requested from the applicant is limited, and the content-neutral criteria under which the Forest Service may deny a permit application are also limited. See pp. 5-8, supra. In addition, the regulations prescribe short time frames for processing-an application and permit immediate judicial review of a denial. See pp. 5-6, supra. 16/

Third, alternative avenues for the same expression are plainly available.
_____________________

16/ In Ward, 491 U.S. at 789-90, the Supreme Court ruled that time, place, and manner restrictions need not be the "least restrictive means" of achieving the government's interests to survive constitutional attack. Rather, the test for narrow tailoring in this context is whether the government "could reasonably have determined that its interests would be served less effectively without [the regulation] than with it." Id. at 801. Clearly, that is the case here. See Final Rule and discussion, supra, at pp. 8-11.

Applicants may hold events on non-National Forest System land or keep the number of participants in an event below 75. Furthermore, if a proposed use fails to meet one of the narrow, content-neutral criteria governing grant or denial of the application, the Forest Service is required to offer an alternative if one is available that meets all eight criteria. See generally United States v. Johnson, 159 F.3d 892 (finding that the Forest Service's regulations satisfy the time, place, and manner test); Black v. Arthur, 18 F. Supp. 2d 1127.

In sum, the Forest Service's regulatory scheme imposes time, place, and manner restrictions that are entirely consistent with the First Amendment.

2. The regulation does not grant unbridled discretion to the Forest Service.

The district court determined that the regulatory scheme is not narrowly tailored because, in its view, one subsection in the regulations-subsection (vii) of 36 C.F.R. 251.56(a)(2) - "grants an inappropriately broad range of discretion to the applicable official discharging responsibilities * * * under the regulatory scheme." ER 87. The district court did not specify how Section 251.56(a)(2)(vii) granted this "inappropriately broad range of discretion," but it appears that the court accepted defendants' view that, under the aegis of Section 251.56(a)(2)(vii), an official could impose any term or condition that, in the official's view, "protected the public interest" and, in so doing, use that provision to impose terms or

conditions that would be so onerous as to, in effect, deny a permit based on the official's distaste for the applicant's views or the content of the applicant's speech. The district court was clearly in error.

Section 251.56(a)(2)(vii) can be properly read to exclude the broad reading suggested by defendants. See Tennison v. Paulus, 144 F.3d at 1287 ("a narrowing construction of an impermissibly overbroad statute can save it from unconstitutionality") (citing Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992)). See also United States v. Wunsch, 84 F.3d 1110, 1118 (9th Cir. 1996) ("in evaluating a facial challenge to a state law, the court should consider any limiting construction that a state court or enforcement agency has proferred") (citing Village of Hoffman Estates v. Flipside. Hoffman Estates. Inc., 455 U.S. 489, 494 n.5 (1982)). See also Ward, 491 U.S. at 795 ("Administrative interpretation and implementation-of a regulation are, of course, highly relevant to our analyses."). 17/ Moreover, it is proper to permit defendants' prosecution to proceed in light of the narrowing construction. See Melugin v. Hames, 38 F.3d 1478 (9th Cir. 1994).

a. Under the ejusdem generis principle of statutory interpretation, "'a general
__________________________

17/ Courts have routinely avoided alleged constitutional problems in time, place, and manner regulations by accepting narrowing constructions of arguably loose language advanced by permitting authorities. See, e . g., Cox v. New Hampshire, 312 U.S. 369, 375-78 (1941); Stokes v. City of Madison, 930 F.2d 1163, 1169-70 (7th Cir. 1991); Postscript Enterprises v. City of Bridgeton, 905 F.2d 223 (8th Cir. 1990); see also Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) ("Facial overbreadth has not been invoked when a limiting construction has been could be placed on the challenged statute.") (emphasis added).

term following more specific terms means that the things embraced in the general term are of the same kind as those denoted by the specific terms."' United States v. Lacy, 119 F.3d 742, 748 (9th Cir. 1997) (quoting United States v. Baird, 85 F.3d at 453). Applying ejusdem generis here means that the "public interest" referred to in subsection (vii) is no broader than the categories listed in subsections (i)-(vi), which address the various aspects of the public interests identified by the Forest Service in the Final Rule-i.e.,, the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns. See also Black v. Arthur, 18 F. Supp. 2d at 1134 (adopting a narrowing construction substantively the same as the one advanced here). On the other hand, to read subsection (vii) as broadly as the district court and defendants suggest would mean that subsection (vii) would
"swallo[w] up the rest of the [regulation]," United States v. Colacurcio, 84 F.3d 326, 333 n.5 (9th Cir. 1996) (internal quotation marks and citation omitted)-an entirely unreasonable reading of the regulation.

United States v. Colacurcio is instructive. In Colacurcio, this Court had to decide whether a magistrate judge had the statutory authority to conduct a probation revocation hearing without defendant's consent. After finding that none of the specific terms of the statute provided such authority, this Court rejected the government's argument that a "catch-all" provision that grants magistrate judges the

authority to perform "such additional duties" (28 U.S.C. 636(b)(3)) provided the requisite authority. This Court noted that giving such a broad reading to "such additional duties" would not only "nullify" specific language that appeared to withhold such authority but quoted with approval Justice Scalia's dissent in Peretz v. United States, 501 U.S. 923,- 955 (1991), stating that "[t]he canon of ejusdem
generis keeps the 'additional duties' clause from swallowing up the rest of the statute." 84 F.3d at 333 n.5 (internal quotation marks omitted). Here, too, the proper application of ejusdem generis narrows the reach of subsection (vii) as discussed above, prevents subsection (vii) from swallowing up the rest of the regulatory scheme, and establishes the scheme's constitutionality. 18/

b. In addition, it is proper to allow such a narrowing in the context of a criminal prosecution and then to permit that same prosecution to proceed under the narrowed construction. See, e g, Melugin v. Hames, 38 F.3d 1478 (9th Cir. 1994). Melugin was convicted for interference with official proceedings because of a letter that he sent to an Alaska court concerning a motion for summary judgment filed by his opponent in a civil action. Melugin was concerned that the motion would be granted and would pretermit a trial and thus threatened in his letter to the
________________________

18/ The ejusdem generis principle derives from the recognition that "if the legislature had intended general words to be used in their unrestricted sense they would have made no mention of the particular classes." Aqua-Marine Constructors Inc. v. Banks, 110 F.3d 663, 677 (9th Cir. 1997) (internal quotation marks and citation omitted).

court to "kill the things" if the summary judgment motion were granted. 38 F.3d at 1481. The statute at issue made it a criminal offense to "threate[n] anyone with the intent to * * * affect the outcome of an official proceeding." 38 F.3d at 1483. Melugin was convicted based on his letter and appealed. On appeal, Melugin argued inter alia that the statute was overbroad in violation of the First Amendment because the term "threaten" also included conduct protected by the First Amendment such as "requests of litigants which reflect their self-interest" that were coupled with threats to file "motions to compel" or "motions for sanctions." Id. at 1485. The Alaska Court of Appeals rejected the overbreadth argument because it narrowed the term "threat" to include only a "true threat," which it defined as a threat to inflict physical injury or to take the life of a person and which, the court noted, is not constitutionally protected speech. See 38 F.3d at 1484-85. Thus, the Alaska Court of Appeals upheld Melugin's conviction based on the narrowing construction applied in the context of Melugin's prosecution, and this Court affirmed the denial of Melugin's habeas petition based on the narrowing construction applied by the Alaska Court of Appeals. 19/

Melugin is fully consistent with Supreme Court jurisprudence on the
____________________

19/ Judge Canby's dissent in Melugin did not take issue with the principle that a narrowing construction in the context of a prosecution could permit that prosecution to proceed. Instead, Judge Canby's dissent was based on his view that the narrowing to "true threats" did not remove all of the First Amendment infirmities in the statute.

applicability of a narrowing construction. The Supreme Court has stated that "[o]ur cases indicate that once an acceptable limiting construction is obtained, it may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants." Dombrowski v. Pfister, 380 U.S. 479, 491 n.7 (1965); see also Osborne v. Ohio, 495 U.S. 103, 119 (1990) ("Courts routinely construe statutes so as to avoid the statutes' potentially overbroad reach, apply the statute in that case, and leave the statute in place."); Massachusetts v. Oakes, 491U.S. 576, 584 (1989) (plurality opinion); Younger v. Harris, 401 U.S. 37, 50-51(1971) (discussing Dombrowski and concluding that "a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problem."). 20/

c. Dombrowski v. Pfister and its progeny, moreover, shed light on the meaning of the "fair warning" proviso. In Dombrowski, the Court held that the statute before it did not provide such notice because "no readily apparent [narrow] construction suggests itself as a vehicle for rehabilitating the statute[] in a single prosecution." 380 U.S. at 491. The Court further observed that the conduct before
it was "not within the reach of an acceptable limiting construction readily to be anticipated as the result of a single criminal prosecution and is not the sort of 'hard
________________________

20/ The Supreme Court has applied this rule to both federal and state statutes, eliminating any contention that The federalism concerns at issue in Younger and Dombrowski play any role in the application of this doctrine. See, e.g., Hamling v. United States, 418 U.S. 87 (1974).

core' conduct that would obviously be prohibited under any construction." 380 U.S. at 491-92 (emphasis added). See also United States v. Hogue 752 F.2d 1503, 1504 (9th Cir. 1985) ("A defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the rule in question."). Consistent with Dombrowski, this Court, in Melugin v. Hames, had no trouble rejecting Melugin's argument that he was not given fair warning that his conduct was prohibited under the challenged statute. "Melugin's implied threat to kill the subjects to whom his letter was addressed falls squarely within the 'hard core of cases to which the ordinary person would doubtlessly know the statute unquestionably applies."' 38 F.3d at 1486 (internal quotation marks and citation omitted). Further, in Osborne v. Ohio, the Court
looked to the "goal" of the statute in deciding whether its concededly overbroad terminology put the public on notice of the type of conduct subject to prosecution.

Consistent with the foregoing, prosecution of Linick's and Bailey's failure to obtain a permit may go forward under a narrow construction of subsection (vii) for three reasons. First, a narrow construction of subsection (vii) is "readily apparent." See discussion, supra, at 28-30; and see Black v. Arthur 18 F. Supp. 2d at 1134. 21/

Second, no matter what construction is given to subsection (vii), a reasonable
person of ordinary intelligence would know from the clear language of the
_______________________________

21/ See also, e.g., Sante Fe Springs Realty v. City of Westminster, 906 F. Supp. 1341, 1366 (C.D. Cal. 1995).

regulatory scheme that the gathering of a group of 75 or more persons in the National Forest System without a permit is the sort of "hard- core" conduct that is obviously prohibited under any construction of subsection (vii). The Information charged defendants with a violation of 36 C.F.R. 261.10(k), use of National Forest System land without a permit, and the criteria for grant or denial of a permitting application appear at 36 C.F.R. 251.54(h). Defendants have not argued that the Forest Service may not require a permit. In short, defendants "had notice" that the failure to obtain a noncommercial group use permit "was criminal," Osborne, 495 U.S. at 116, no matter what construction was applied to 36 C.F.R. 251.56(a)(2)(vii).

Third the "goal" of the regulatory scheme, to prevent unregulated gatherings of large size from endangering the national forest system and its users, was apparent at the time defendants engaged in the conduct at issue from (a) the face of the noncommercial group use regulation, (b) the preamble to the Final Rule at 45,258 et seq., and (c) the discussion in United States v. Johnson, 988 F. Supp. 920
(W.D.N.C. 1997), aff'd, 159 F.2d 892 (4th Cir. 1998). Defendants subverted this clear goal when they chose to gather in a large group without a permit. See generally, Osborne, 495 U.S. at 111-122.

________________

In sum, the "public interest" referred to in 36 C.F.R. 251.56(a)(2)(vii) is no

broader than the categories listed in subsections (i)-(vi), which address the various aspects of the public interests identified by the Forest Service in the Final Rule- i.e., the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns. Under that narrowing construction, subsection (vii) allows the Forest Service to impose terms and conditions that are not specifically
addressed in subsections (i)-(vi) that further these three public interests. And, under this narrowing construction, the regulatory scheme is constitutional, and the prosecution of Linick and Bailey should be allowed to proceed. Moreover, under any construction of subsection (vii), defendants had "fair notice" notice that the failure to obtain a permit in the context of their group gathering was criminal.
Consequently, for this additional reason, the prosecution of the defendants should be allowed to proceed.

II.

ANY REGULATORY PROVISION FOUND
UNCONSTITUTIONAL SHOULD BE SEVERED
FROM THE REMAINDER OF THE REGULATIONS,
ALLOWING THE PROSECUTION TO PROCEED.

The district court found the regulations unconstitutional only because of subsection (vii) of 36 C.F.R. 251.56(a)(2). That provision, if not subject to the narrowing construction advanced above (in Point I(B)(2)), should have been severed from-the remainder of the regulations. Thus, the prosecution for failure to obtain

a permit should have been allowed to proceed because neither Linick nor Bailey had been charged with a violation that stemmed from terms or conditions imposed under subsection (vii).

"'[A] court should refrain from invalidating more of the statute than is necessary * * *. [W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid."' Alaska Airlines. Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)). The presumption is that any offending provision of a law must be severed if the remainder may function as an operative whole. Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam). The absence of an explicit severability clause "does not raise a presumption against severability." Alaska Airlines, 480 U.S. at 686. Indeed, "the unconstitutional provision must be severed unless the statute in its absence is legislation that Congress would not have enacted. " Ii. at 685 (emphasis added). The severability principle, moreover, applies to administrative regulations. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988).

Here, there can be little question that the regulatory scheme could function as a coherent whole even if the provision the district court found offensive were stricken from the regulations. The regulations allow the Forest Service to impose

11 types of terms and conditions protecting national policies; ten would remain even if subsection (vii) of 36 C.F.R. 251.56(a) were stricken. In this connection, it seems obvious that the Forest Service would still want to be able to protect the interests these provisions cover even if it could not take into account matters that a Forest Service official might think would "otherwise protect the public interest."

Moreover, striking subsection (vii) would still leave unaffected (i) the requirement that noncommercial groups of 75 or more apply for a permit before using the National Forest System; (ii) the criteria for grant or denial of the application; (iii) the 48-hour time limit for a decision; (iv) ten types of terms and conditions the Forest Service may impose; (v) the criteria for revocation or suspension of an issued permit; (vi) immediate judicial review of all noncommercial group use permitting decisions; and (vii) penalties for noncompliance. This is a coherent permitting scheme allowing the Forest Service to protect critical national resources and to address concerns of public health and safety. The district court did not mention a constitutional defect in any of the other sections of the regulatory scheme under which Linick and Bailey were charged. At worst then, under Alaska Airlines, the offending provision-subsection (vii) of Section 251.56(a)(2)-should be severed from the regulatory scheme and the prosecution of the defendants allowed to proceed.

CONCLUSION

For the foregoing reasons, the district court's judgment should be reversed

Respectfully submitted,

DAVID W. OGDEN
Acting Assistant Attorney General

JOSE de JESUS RIVERA
United States Attorney

MICHEL JAY SINGER
(202) 514-5432 '
HOWARD S. SCHER
(202) 514-4814
Attorneys. Appellate Staff
Civil Division. Room 9124
Department of Justice
601 D Street. N.W.
Washington. D.C. 20530-0001

MARCH 1999

STATEMENT OF RELATED CASES

This case is related to Black v. Arthur, Nos. 98-36044-& 98-36046, and the government would request that Black v. Arthur and the instant case be set for oral argument on the same calendar before the same panel.

CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of March, 1999, I served the foregoing BRIEF FOR THE APPELLANT upon the following persons by causing an original and 15 copies to be delivered via U.S. mail, first-class postage prepaid, to:

Ms. Cathy Catterson
Clerk, United States Court of Appeals
for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526

and by causing two copies to be delivered via U.S. mail, first class postage prepaid,
to:

Michael D. Linick
P.O. Box 3773
Tucson, AZ 85722

Donald M. Peters
Miller, LaSota, PLC
5225 North Central, Suite 235
Phoenix, AZ 85012

(signed)
Howard S. Scher, Attorney

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(e)(4) of the Rules of this Court and Rule 32(a)(7)(C) of the Fed. R. App. P. (effective December 1, 1998), I hereby certify that this brief is double spaced (except for extended quotations, headings, and footnotes) and is proportionately spaced, using CG Times font, 14 point type. Based on a word count of my word processing system, this brief contains 10,208 words (including the cover page, captions, the Certificate of Service, the Statement of Related Cases, and the instant Certificate of Compliance) and fewer than an average of 280 words per page, including footnotes and quotations.