C. Thirdly, i will note separately from the foregoing that
the new interpretative regulation doesn't say that whenever or
wherever the phrase "public interest" is used in Chapter
251, that phrase shall refer to the 3 public interests identified
on August 30, 1995. Therefore the phrase "public interest"
remains broadly read, beyond the 3 identified public interests
in other subsections within the same regulatory scheme, specifically
the denial of a commercial use permit - Section 251.54(i)(2) even
- as an aside - a commercial use implicating free expression,
worship (e.g Promise Keepers), and/or association, and the suspension
or revocation of a commercial use permit - Section 251.60(b).
Thus, the phrase "public interest" has different meanings
in different subsections within the same regulatory scheme even
though prior to September 2, 1999 nobody could have known this.
I refer to the Govt's own exhibit attached to its Reply Brief
- Page 2 of Exhibit B - the 1997 Epley administrative case.
To quote from Page 2:
"Permits may be denied for many reasons AT THE DISCRETION
OF THE FOREST SERVICE, including a potential land use conflict
OR THE PERMIT IS GENERALLY NOT IN THE PUBLIC INTEREST."
And then they cite subsection 251.54(i).
[To the attorneys: i will be glad to forward a copy of the
Govt's Exhibit B, the Epley case, in which this statement
appears upon request].
So there [in 251.54(i)] the phrase "public interest"
is not limited by ejusdem generis or otherwise to the 3 public
interests identified in 1995.
Judge Haggerty in Black v Arthur and the Magistrate
Judge in the Missouri case merely accepted the Govt's assertion
that the phrase "to otherwise protect the public interest"
in subsection (a)(2)(vii) was to be limitedly read and not broadly
read by the Forest Service authorized officers - it is only read
in a limited way for noncommercial group use permits. It still
means something else for commercial use authorizations. Yet, before
September 2, 1999, just a month ago, nobody [including authorized
officers] could conceivably have known that it has two meanings
- a limited one for noncommercial group uses and a broader, unlimited
one for commercial uses.
And both Judges failed to realize that the result of their
interpretation, urged by the Govt, is that the phrase "public
interest" means one thing in one subsection within the regulatory
scheme - 251.56(a)(1)(vii) - that it is limited therein - but
that the same phrase has a different, broader meaning in other
subsections within the same regulatory scheme - in 251.54(i)(2)
i submit that the Govt asserted the limited reading of
(vii) to Judge Haggerty and other cases such as Missouri, not
because the Forest Service was in fact interpreting it in a limited
way but because they saw the problem with the language and seek
to prevail in litigation arising since 1995.
And back in 1980, when they first enacted this "to
protect the public interest" phraseology, the Forest Service,
not recognizing the problem with this phraseology [after all it
was 8 years before Lakewood v Plains Dealer and before
T.J. South], liked the idea that 251.56(a) - including
(a)(2)(vii) - would be broadly read. Somehow it was good for the
users, but clearly it gave themselves the power and unbridled
discretion to broadly decide what is in the "public interest."
And with power, there are abuses, especially towards people whose
views may be unpopular.
And here lies the severe - in fact overwhelming - problem
with the lengthy time periods found in the administrative appeals
process and i must tell you that the Govt is trying to pull the
wool over this Court's eyes. [Goodwater, this is where your Judge
was just plainly wrong - he accepted the Govt's argument that
all applicants for a noncommercial group use permit may challenge
a term or condition directly in court and do not have to go through
the administrative appeals process].
If you look at note 9 on page 11 of its Reply Brief, the
Govt states: "Even if the Court were to reject this argument
and find that the administrative appeals process applies to noncommercial
group uses (and thus prevents prompt judicial review), that [sic]
Court should sever the appeals process from the noncommercial
group use regulatory scheme . . . . "
The Govt is suggesting that the administrative appeals
process does not apply to noncommercial group uses (again, they
ignore the fact that even commercial uses may implicate First
Amendment freedoms, including expression.)
First, the Govt never advanced this argument at all until
its Reply Brief - it argued in the Court below tat inter alia,
the Administrative Appeals Process and Exhaustion requirement
were valid under Darby, See Note 8 on Page 22 of the Govt's initial
response to my Motion to Dismiss, that the regulations allow a
permit holder to request a stay of a condition pending exhaustion,
see same note. At oral argument before Judge Strand, the Govt
attorney stated, the regulatory scheme provides for prompt administrative
and judicial review - transcript page 31, ER page 50 and where
i repeat what he said at transcript page 51, ER page 70, lines
17 -19 and where he attempted to discuss the time periods. He
never told Judge Strand, "wait, we don't need to discuss
the time periods in this case because the administrative appeals
process does not apply to noncommercial group uses which is what
is involved in this case."
2) There is nothing in the regulations re administrative
appeals process that says it doesn't apply to written decisions
- including terms and conditions attached to a permit - respecting
a noncommercial group use authorization. See 251.80(a) and especially
(b), 251.82(8) and see Page 3 of Exhibit 2 - the proffered permit
[in my case] attached to my Motion to Dismiss where it says:
"15. Any changes to this permit, its provisions,
or requirements may be subject to appeal per 36 C.F.R. Part 251,
Subpart C, as amended."
[Attorneys please note that the proffered permit in my
case - which is probably identical or very similar to the permits
offered in your cases - can only be used for noncommercial group
uses as clause 13 therein states: This permit may be revoked or
suspended only in accordance with 36 CFR 251.60(a)(1)(i). If you
look at 36 CFR 251.60(a)(1), it applies to, and only to, noncommercial
group uses. 36 CFR 251.60(a)(2) applies to all other special uses.
Therefore, the proffered permit in my case and probably yours,
which contains clause 15, and its language that the administrative
appeals process may apply, is a non-commercial group use permit.
A commercial use permit would not contain the language in clause
13 referring to 251.60(a)(1) but will refer to 251.60(a)(2).
3) And the govt's argument to this Court found in its Reply
Brief that essentially i would have been entitled to prompt judicial
review to a term or condition such as the "hold harmless"
clause because the administrative appeals system would not have
been applicable to me under the circumstances is plain, downright
wrong, intentionally misleading, and is an example of the Govt's
attempt to play a game with this Court.
The Govt states at page 10 of its Reply Brief:
"[Strider's] error is that the administrative appeal
process, see 36 C.F.R. 251.80 - 251.102 by its own terms is applicable
only to a limited class of parties, a class that does not include
[Strider], or other applicants for a noncommercial group use
permit. Only persons who are responding to a formal solicitation
from the Forest Service may invoke the regulations' administrative
remedies. See 36 CFR 251.86(a). And, 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 [the exhibits A and B attached to its reply
brief]. The Forest Service never formally solicits applications
for noncommercial group use permits, and there is no evidence
of such a solicitation in this case."
But 36 C.F.R. 251.86(a) does not require a formal solicitation.
It provides, and the Govt ignores, that it applies to an applicant,
who, in response to a prospectus or written solicitation OR OTHER
NOTICE by the Forest Service .... [Emphasis added]. So if a Forest
Service officer says, if a person who hasn't applied for a permit,
"you have 75 or more people here and you now need to apply
for a permit," this will qualify as "other notice by
the Forest Service". If the Govt wants to argue ejusdem generis
and assert "OR OTHER NOTICE" should be read to be limited
to written notice as opposed to my oral notice example, suffice
it to say that Page 1 of my exhibit 2 attached to my original
Motion to Dismiss is a cover letter accompanied to proffered permit
in my case. This cover letter is in writing and addressed to the
"Rainbow Family Gathering". It begins "Enclosed
you will find information relative to Noncommercial Group Uses
on the Apache-Sitgreaves National Forests. Please review the information
and form completely prior to making application for a permit.
The material includes the form, "Special-Use Application
and Permit for Noncommercial Group Uses", [and] a copy of
the regulations for noncommercial group uses found in 36 CFR 251
Subpart B and C."
* * * *
If application is to be made for a permit for noncommercial
group use, a completed application is to be submitted to us a
minimum of 72 hours prior to the event . . . "
This cover letter may very well be a written solicitation
for a application for a permit, [the Govt argues "formal
solicitation", while the regulation merely states "written
solicitation" - but perhaps these mean the same thing] but
it is, without a doubt, "Other Notice by the Forest Service"
and it is written [if ejusdem generis even applies here]. Moreover,
the statement of probable cause in my case, which is part of the
court record, appearing as page 3 of the Excerpts of Record filed
by the Govt in my case states: I [law enforcement officer David
Leveille] am personally aware that permit application packets
had been distributed on June 14th and on June 16th to several
rainbow family members at this site, but no permit had been applied
for as of this date [June 19th]."
So the permit application packets, which included the cover
letter i quote from and the proffered permit, may very well be
a "written solicitation" under 251.86(a). But at the
very least it is "other notice by the Forest Service.
There is also a catch 22 here. If i had applied for a permit
in my case following this "written solicitation" or
this "other notice" but did not sign the permit, choosing
to challenge it in the administrative appeals system, i could
still be charged with use and occupancy of N.F. system lands without
a special use authorization when such is required, because by
not signing the actual permit, and challenging the duration decision
or a term or condition, i still don't have a permit. If i signed
for the permit, i would then be a party to the administrative
appeals process under 251.86(b) and have to exhaust the process
before going to court. But the proffered permit states: "Clause
16. This permit accepted subject to the conditions set forth herein,
including any conditions in any exhibits attached to and made
a part of this permit." And the signatories line states:
"I have read and understand the terms and conditions and
AGREE TO ABIDE BY THEM."
Therefore, if i apply for a permit but don't sign it so
i can utilize 251.86(a), i can still be charge with the offense
with which i was charged, gathering without a permit essentially.
If i sign for the permit to escape criminal prosecution, the F.S.
can come back and say you cannot challenge a term or condition
because you accepted the permit subject to all the terms and conditions
and you agreed to abide by them [even if they are unconstitutional,
illegal, overly burdensome, onerous, etc]. And as i explain hereafter,
any challenge to a term or condition for a annual gathering will
be moot before i get through even the first time period of the
appeals process, let alone the entire appeals process.
4) And under 251.86(a) and (b), i would have been a party
to the administrative appeals process and would have therefore
had to exhaust it before going to court if i questions the "duration"
decision of a permit, or a term or condition attached to a permit.
And any such challenge would be moot before i got to court. the
annual gathering runs only 13 days - from June 28 through July
10 - and the Govt doesn't tell you that oftentimes we don't even
know what forest it will be in, let alone which site will be practical
for the gathering, until perhaps a week or two before the start.
Yet the very first stage of this administrative appeals process
gives the Forest Service 30 days in which to respond essentially
to my complaint [notice of appeal] about the duration decision
of the Forest Service or a term or condition applied to a permit.
Not even taking into account the other time periods - the 20 days
for a reply by an intervenor or the complainant, 30 days for a
decision by the reviewing officer, the grant of indefinite extensions
of times by the reviewing officer, the gathering of additional
information by the reviewing officer, or a second level of review,
the first 30 day period alone for the Forest Service response,
which period i don't believe can be shortened but which clearly
can be lengthened or extended, will still be happening or occurring
after our event has ended. And once the event has ended, the case
for that year is moot.
I have written a lot here and perhaps some of it may not
be clear - please send any questions you may have to me and i
will try to answer them. i actually have more things to say, most
particularly about two clauses in the permit proffered to me -
the "hold harmless" clause and the clause essentially
making every person who attends a gathering vulnerable to loosing
their personal assets, monies, etc, for the act or conduct of
another person attending a gathering, either merely as a spectator
or as a participant. this goes contrary to the Supreme Courts
ruling in a case cited in the Wisconsin [Masel] decision - NAACP
v. Claiborne Hardward Co. This clause imposing group liability
[which arises out of a separate subsection to the regulatory scheme
- 251.56(d) "Holders shall pay the United States for all
injury, loss, or damage,..." - works at follows: The forest
service will not allow a person to apply for and sign a permit
for a Rainbow Gathering, either regional or annual, as an individual.
they told Gary Stubbs this at the 1998 California all-state gathering.
They will only allow a person to sign as a representative of the
Rainbow Gathering or in their minds the Rainbow Family. Thus,
if someone were to apply and sign the permit, it can only be as
a representative or agent of the Rainbow Gathering or Rainbow
family. Thus the person signing the permit is the Signatory and
the holder of the permit is the Rainbow Family.
Well, if the U.S. wants to sue for damages, including the
costs of fire suppression, they sue in the name of the Rainbow
Family, not against the signatory. If the U.S. obtains a judgment
against the Rainbow Family, as holder of the permit, the U.S.
can then collect the judgment by going after any member of the
Rainbow family who may have the assets to cover the judgment.
[perhaps they will only go after an individual's assets who actually
attended the gathering in which the liability arose]. But they
get around the Claiborne case by saying we are not making
passive members who did not cause the damage LIABLE, we are only
seeking liability against the holder, the Rainbow Family. We are
merely collecting the judgment from whoever we can identify as
a member of this unincorporated association or group. In other
words, they will be distinguishing between trying to make a passive
member liable in the first place and collecting from anybody who
is a member of the group.
Claiborne clearly speaks about liability as opposed
to collection. People with significant assets may avoid attending
gatherings if their assets can be attacked to satisfy a judgment
caused by some unknown person attending a gathering. i cannot
think of a greater chilling effect on the exercise of first amendment
freedoms - to possibly lose your home or nest egg because of someone
else's conduct or action, whether merely negligent or intentional.
i have more to say about the "hold harmless"
clause but will wait until i have more time or in response to
particular questions. My email address is Oregonstrider@Yahoo.com.
With Heart, Mind, and Spirit,
Please forgive any spelling errors, typos, dangling sentences
- i am not going to proofread this communicade as it has taken
me hours to write and it is too important to delay the dissemination