October 11, 1999

To the Brothers, Sisters, and Children of the Rainbow and to the Attorneys handling Permit Cases:

i am writing this to make perfectly clear the government's deception respecting the administrative appeals process, which requires exhaustion prior to seeking judicial review, which process is found in the F.S. regulatory scheme.

i touched upon it in my earlier communicade but because it took me so long to draft that communicade and the discussion re the adm. appeals process was addressed near its end, i want to be sure everybody understands how the Govt. is lying to the Courts that the adm appeals process does not apply to noncommercial group use permits.

i wish to quote at length from the U.S. Govt.'s memorandum in a non-Rainbow case [it actually is an earth first case]. i am using this memorandum right now because the Govt's position is stated more clearly in it then in the Reply Brief they filed in my case. But it is the same argument, and therefore the same deception.

In what is entitled "Governments Response in Opposition to Defendant's Motion to Dismiss" in U.S. v Flynn [a case rising June 29, 1998 - the memorandum was filed either in late 1998 or early 1999], the Govt. wrote as follows:

"Defendant concedes that the regulations allow immediate judicial review under the Administrative Procedure Act, 5 U.S.C. Sections 501-706, of denial of a permit application. He argues, however, that the regulations require exhaustion of a potentially lengthy administrative appeals process before an applicant or permit holder may challenge terms or conditions in federal court. Defendant is wrong. But the regulatory administrative appeals process is not available to noncommercial group use permit applicants or holders, and such person may therefore immediately go to court.

"The administrative appeal process, codified at 36 C.F.R. Sections 251.80 - 251.102, is available only to a limited class of parties, a class that does not include Defendant or others like him. Only persons who are responding to a FORMAL SOLICITATION [i am adding emphasis here, not in original] from the Forest Service may invoke the regulations' administrative remedies. 36 C.F.R. Section 251.86(a)("Only the following may participate in the appeals process provided under this subpart: [a]n applicant, who, IN RESPONSE TO A PROSPECTUS OR WRITTEN SOLICITATION OR OTHER NOTICE BY THE FOREST SERVICE, [this emphasis is in the Govt memo], files a formal written request for a written authorization to occupy and use National Forest System land . . . . ")(emphasis added). [here the Govt has a footnote which follows]. The Forest Service has consistently interpreted this portion of the regulatory scheme to make administrative appeals available only when the agency formally solicits applications. See, e.g. In re Epley, #07-04-12-06-01 (May 1, 1997), discretionary review denied, #97-04-00-0024 (July 15, 1997). [a footnote here will be omitted]. The Forest Service never formally solicits applications for noncommercial group uses, and there is no evidence of such a solicitation in this case. Accordingly, Defendant and any other applicants for noncommercial group uses may go directly to court to challenge any terms or conditions the Forest Service imposes. [here is another footnote that follows]"

The first footnote from above states:

"Similiarly, a holder of a noncommercial group use permit is not compelled to participate in an administrative appeals process under 36 C.F.R. Section 251.86(b). That section makes administrative remedies available to a permit holder seeking 'relief from a written decision related to that authorization." Thus, a plaintiff wishing to challenge a term or condition in federal court may do so the moment he receives the permit, since at that point there is no "written decision" from which to appeal."

The second footnote from the above states:

"If this Court finds that the application of the Forest Service's appeal regulations to noncommercial group uses prevents prompt judicial review, the severability arguments explained in part III.C of this brief suggest that this Court should simply rule that the First Amendment bars the application of the appeal regulations to noncommercial group uses. Such a ruling would prevent the Forest Service from requiring exhaustion before an applicant for or holder of a noncommercial group use authorization brings a dispute to district court. As explained above, the Forest Service does not believe that it can require exhaustion in the noncommercial group use context anyway."

First, i want to make some quick observations, the meaning of which should be self evident:

1) the Govt states the Forest Service has consistently interpreted this portion of the regulatory scheme to make administrative appeals available only when the agency formally solicits applications. it then cites only one case - In re Epley. Folks, In re Epley is a commercial use case. It involved the appeal of Epley's Inc. concerning Mr. Epley's application for a special use permit to conduct outfitting and guiding on the Krassel Ranger District, Payette National Forest.

Second, it has nothing to do with terms or conditions - it clearly involves a Denial of a Commercial Use Permit.

Thirdly, the reviewing officer wrote: The Forest Service did not solicit Epley's application, and the application was not submitted in response to a prospectus, solicitation, OR NOTICE." He then ruled the adm appeal was properly dismissed. I pointed out in my previous communicade how the cover letter and noncommercial group use permit packet circulated by the F.S. may very well be a "solicitation" by the Forest Service, but in any event, it would be "[other] notice by the F.S." - Epley doesn't apply.

2) Also, the subsection respecting the denial of a noncommercial group use permit, 251.54(2), states in its text: "A denial of an application under paragraphs (h)(1)(i) through (h)(1)(viii) of this section [Subsection (h)(1) applies to noncommercial group use permits] constitutes final agency action and is immediately subject to judicial review."

The subsection respecting the suspension or revocation of a noncommercial group use permit, 251.60(a) likewise states in its text: "(ii) Revocation or suspension of a special use authorization under this paragraph constitutes final agency action and is immediately subject to judicial review."

Well, if the administrative appeals process does not apply to noncommercial group uses, as the Govt asserts, then it would have been unnecessary, and it is superfluous to put the above text in the regulatory scheme. thus, it is clear that the adm. appeals process does apply to some written decisions respecting noncommercial group uses. why put the above text in if the administrative appeals process itself excludes noncommercial group use permits? It obviously doesn't exclude such permits or uses.

Okay, those are the quick observations. Now to go on with additional observations.

i noted in my earlier communicade that the Govt only asserted that the adm appeals process doesn't apply to noncommercial group uses in its Reply Brief, arguing in the District Court that it was valid and the time periods were reasonable. i want to point out examples where the Govt argued the applicability of the adm appeals process to noncommercial group use permits [remember, that is what my case involves]

In the Government's Response Memo to my Motion to Dismiss, it writes: "Any applicant for a noncommercial group use permit may challenge the terms and conditions in an A.P.A. action." page 20.

In the same Response Memo, at footnote 8, the Govt does not argue that the Adm Appeals Process does not apply to noncommercial group uses, nor to the terms or conditions subsection. Instead it argues that i don't have standing to challenge the Adm Appeals Process, because "he cannot allege that he sought an administrative determination in the first place" and also:

"In addition, the Supreme Court has held that administrative exhaustion requirements are valid where, as here, a statute requires such exhaustion. See, Darby v Cisneros, 509 U.S. 137 (1993); 7 U.S.C. 6912(e). Finally, the regulations allow a permit holder to request a stay of a condition pending exhaustion. 36 C.F.R. Section 251.91."

Why would the Govt write this if the administrative appeals process and exhaustion requirement did not apply to noncommercial group use permits?

At oral argument, the Govt's attorney, rather than saying we don't need to talk about the adm appeals process in this case because it does not and cannot apply, states: "It actually is an extraordinarily complicated administrative process because . . . ." Transcript page 45 - 6

Also at oral argument, the Govt's attorney discusses the time periods, rather than just saying, wait, they don't apply in any event. "There are time limits [in the administrative appeals process], that's correct Your Honor, now, the time that the Forest Service can act. And what I'm suggesting is that it [the Forest Service] would act much more quickly than those time limits." Transcript page 47.

And now for the two biggies: the Govt's attorney also told the District Court Judge Roger Strand in my case: "Now, those time limits again are designed to apply to all Forest Service decisions that are governed by this entire regulatory scheme. ITS REGULATORY SCHEME DOES NOT DEAL ONLY WITH NON-APPLICATIONS NOR NONCOMMERCIAL REVIEW [sic] USES." Transcript page 47

And ". . . . a strong indication that the Forest Service knows that it will have to act very quickly in order to provide prompt administrative review and allow the plaintiff the constitutional access to the court." Transcript page 48.

Also, at page 31 of the Transcript, the Govt's attorney states: "It provides for prompt administrative judicial review." this is a classic example where the court reporter screwed it up in my case: The Govt's attorney actually states: "It provides for prompt administrative and judicial review."

Please see my oral argument at page 51 where i stated: "He -- he used the phrase at the beginning of the oral argument prompt -- it provides [for] prompt administrative and judicial review. But he didn't really tell you what the time limits were and what time frames we're talking about here."

Okay - so at no time did the Govt argue in the District Court that the administrative appeals process doesn't apply to non-commercial group uses. In fact there is nothing in the administrative appeals process regulations which would not have it apply to noncommercial group uses; in fact to the contrary the intent of the process is that it would apply to all special uses, including noncommercial group uses. See for example 251.80(a): This subpart provides a process by which those who hold or, in certain instances, those who apply for written authorizations to occupy and use National Forest System lands, may appeal a written decision by an authorized Forest Service line officer with regard to issuance, approval, or administration of the written instrument." [i would submit that the terms or conditions attached to a permit regard the issuance and/or approval and possibly the administration of a written instrument" [the permit would be the written instrument]. [Attorneys, please note that i generally speak about a terms or conditions decision but the duration decision by the forest Service - how long they grant the permit for - is a decision regarding the issuance and/or approval of a written instrument. in fact, a limited duration, less than the gathering wants, is even more an infringement on the exercise of 1st amendment rights than possibly a term and condition. and the duration decision would first have to be challenged through this administrative appeals process, and will be moot well before you ever see a courtroom. Keep this strongly in mind when arguing this case: The duration decision made by the F.S. authorized officer under 251.56(b) will first have to be challenged under the administrative appeals system, and will surely be moot once the event ends.

251.80(b) states even more clearly: "The rules in this subpart seek to offer appellants a fair and deliberate process for appealing and obtaining administrative review of decisions regarding written instruments that authorize the occupancy and use of National Forest System lands." [attorneys, please understand that the special use authorization or permit is the written instrument and the attaching of terms and conditions to it - or even the F.S.'s decision re the "duration" of the permit - are decisions regarding the written instrument.

And also 251.82(a)(8) provides: "The rules of this subpart govern appeal of written decisions of Forest Service line officers related to issuance, denial, or administration of the following written instruments to occupy and use National Forest System lands, including but not limited to, (8) Special use authorizations issued under 36 C.F.R. part 251, subpart B, except . . . . " [Attorneys, the exceptions do not apply here].

Please note that noncommercial group use permits are issued under 36 C.F.R. part 251, subpart B. Therefore, there is nothing in the administrative appeals process scheme that excludes or shows any intent to exclude noncommercial group uses from its terms.

Well, to keep going, the Govt tries to argue that 251.86(a) and (b) are the subsections that preclude an attack of terms or conditions attached to a noncommercial group use authorization through the administrative appeals process, thereby allowing prompt judicial review. I have already shown in my earlier communicade how they are wrong re 251.86(a) - the Govt intentionally ignores the language "other notice by the Forest Service" and translate (a) to require "formal solicitation". And they do give "other notice" if not "written solicitation", specifically the noncommercial group use authorization packet, with its cover letter, the blank application, and a form permit with some blanks that need to be filled in.

But what about 251.86(b)? If i had signed for a permit, and wanted to challenge a term or condition or the duration decision, would i have had to first exhaust the administrative appeals process or could i have gone directly to court? The answer is i would have first had to exhaust the administrative appeals process [if i am not in fact precluded from mounting any challenge because one of the clauses states that the permit is accepted subject to the conditions or words to that effect - i don't have it in front of me at this moment - plus the holder of the permit "agrees to abide by the conditions" when it is signed.] But assuming that this doesn't preclude all challenges to the terms and conditions and duration decision, do you have to exhaust the adm appeals process before going to court? the answer is yes [the Govt doesn't give any authority supporting its footnote in the Earth First case above].

251.86(b) provides that a party to the adm. appeals process includes: "The signatory(ies) or holder(s) of a written authorization to occupy and use National Forest System land covered under Section 281.82 [see above where i cite (8)] of this subpart who seeks relief from a written decision related to that authorization."

i would submit that a term or condition attached to a permit, or the duration decision, the decision by the F.S. as to how long the event will be allowed to take place, the dates being placed/written on the permit, are "written decisions" related to that authorization.

Attorneys - this argument is totally supported by the definition found in Section 251.81 respecting "Decisions regarding a written instrument or authorization to occupy and use National Forest System lands." This definition states:

"A broad, all inclusive phrase used throughout this subpart to connote the full range of actions and decisions a forest officer takes to issue written instruments, or to manage authorized uses of National Forest System lands, INCLUDING, BUT NOT LIMITED TO, ENFORCEMENT OF TERMS AND CONDITIONS, and suspension, cancellation, and/or termination of an authorization."

Okay, that's it for now. to Lorax and Peace, please circulate this additional communicade in the same manner you circulated my first one of a few days ago. i would do it myself but i have spent a long time on this, don't know exactly how to do it, and i still have to write a separate communicade to Ben Masel's attorney. /so i appreciate your help in getting this into the right hands.

With Heart, Mind, and Spirit,