November 12, 1999

Strider's proposed oral argument before the Ninth Circuit

This case involves Rainbow Gatherings. And, quote, "it cannot reasonably be disputed", unquote, the words of District Court Judge Justice used in the 1988 Rainbow Case from Texas, that such gatherings involve the Freedom of Expression, the Freedom of Association, and the Freedom of Worship and Prayer -- one of the Annual Gathering's central events, if not THE central event, is a silent prayer circle followed by an "Om" on the Fourth of July, in which literally thousands of people participate.

And, quote, "it cannot reasonably be disputed," unquote, for there can be no doubt, that this case involves a governmentally created "prior restraint" - a licensing scheme requiring the federal government's permission to engage in such freedoms in an unquestionable public forum, a scheme giving one person within the Forest Service, the authorized officer, the power to attach terms and conditions to the permission, and also control the length - or in the word used in this scheme, the "duration" - of the exercise of First Amendment Freedoms and the Fifth Amendment regarding fundamental liberty interests re at a minimum the right to associate [Waters v Barry].

And "terms and conditions" attached to that governmental permission, it cannot reasonably be disputed, can have the de facto effect of precluding citizens from engaging in expression, association, and/or worship and prayer as they wish to do, thereby denying their constitutional right to do so.

i need to discuss the new interpretative regulation [36 C.F.R. 251.56 (a)(1)(ii)(G)] enacted September 2, 1999 and effective September 9, 1999, submitted to this Court by the Government on September 13, 1999. This new interpretative regulation totally supports my position in this case, and Judge Strand's [my trial court judge] decision, regarding the phrase "to otherwise protect the public interest" found in the terms and conditions subsection to the regulatory scheme, [and actually undercuts the Govt's case against me as well as against other defendants around the country with cases arising before September 9, 1999].

This new regulation provides that "IN THE CONTEXT OF NONCOMMERCIAL GROUP USES, the Forest Service SHALL interpret the term "public interest" in the terms and conditions subsection to refer to [and consequently to be limited to] the three public interests identified by the Forest Service on August 30, 1995." [Emphasis added].

A. First, this Court needs to do what none of the District Courts did, which is to examine the history of the terms and conditions subsection. 36 C.F.R. 251.56(a) was first enacted on June 6, 1980 [see Vol 45 of the Federal Register at page 38330], which incidentally was 8 years before the decision Lakewood v Plains Dealer which decision first questions terms and condition provisions in licensing schemes, but more importantly, 15 years before the Preamble of August 30, 1995 referenced to in the new interpretative regulation!

The [only] comment in 1980 regarding the terms and condition subsection (a), which included back then and of course still includes 251.56(a)(1)(vii), which comment can be found at 45 Federal Register, page 38325, states:

"No substantive changes were recommended. SOME COMMENTERS SUGGESTED THE LANGUAGE WAS TOO BROAD BUT WE BELIEVE HAVING IT SO will allow better flexibility in tailoring authorizations to fit the actual situation. This should benefit holders as well as assuring proper use of the land."

The Preamble to the Final Rule, in which the 3 "public interests" were first identified and to which the new interpretative regulation refers is dated [was first published on] August 30, 1995. But in said Preamble of August 30, 1995 there was and is no comment regarding 251.56(a) - [nor anything limiting the broad construction given this subsection in 1980]. The only comment in this Preamble regarding the terms and conditions subsection discussed subsection 251.56(e) respecting bonds and such is not involved here.

Thus, there was, until September 2, 1999 no way for a Forest Service authorized officer [nor member of the public] to know that the term and condition phraseology "to otherwise protect the public interest," first appearing in 1980 and interpreted broadly then, became limited in 1995 to the 3 public interests identified in the 1995 Preamble. [For the attorneys out there, the new interpretative regulation prospectively, from September 2nd or September 9th 1999, fulfills with respect to noncommercial group use permits, the language from Lakewood "This presumes the mayor will act in good faith and adhere to standards absent from the ordinance's face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows E.g. Freedman v Maryland. The doctrine requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice. This Court will not write nonbinding limits into a silent state statute."]

B. Secondly, it cannot be emphasized enough that this new regulation of a month ago clearly states that it only applies to noncommercial group uses, meaning that subsection 251.56(a)(1)(vii), "to otherwise protect the public interest", still means something else for the other type of authorization - for commercial use - and therefore is not limited to the 3 public interests identified on August 30, 1999 respecting commercial use permits. If it were otherwise, the Dept of Agriculture. would not have limited the new interpretative regulation to "in the context of noncommercial group uses ..." as it does, but would have said simply "the phrase 'to otherwise protect the public interest' as used in this subsection [251.56(a)] - the terms and conditions subsection - shall refer to the 3 public interests identified on August 30, 1995." But they didn't use language such as this - they specifically limit the new interpretative regulation to noncommercial group uses. Thus there remains 2 different meanings to this phraseology "to otherwise protect the public interest" - one for noncommercial group uses where it is limited to the 3 public interests identified on August 30, 1995 and another for commercial uses which is not limited to the 3 public interests [but which is interpreted broadly as per the comment to the 1980 enactment of the subsection]. As a consequence, the Govt is in effect rejecting there own argument of ejusdem generis and how the Forest Service has been interpreting the phrase until Sept 9, 1999 - there being two meaning for this phrase - one for noncommercial group use and another for commercial use.

Is the Govt suggesting ejusdem generis only applies to noncommercial group uses, and not to commercial group uses? And what clairvoyance one must have to foresee that the Forest Service had two different interpretations for the phraseology "to otherwise protect the public interest" - one for noncommercial group uses and a second for commercial uses - until September 2, 1999 when it made it clear that it has two separate definitions or interpretations for this phrase. [The attorneys out there should note that the Govt argued severance in my case - sever (vii) from the scheme and let the prosecution proceed. i would think that they would drop this argument in light of the enactment of the new interpretative regulation - that they don't want (vii) severed because then it could not be used [and interpreted broadly] respecting commercial use permits as the new regulation allows.

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) and 251.60(b).

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

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 of it.