North Carolina Rainbow Case


vs.                                      DOCKET NO. F1469799

vs.                                      DOCKET NO. F1789813
WILLIAM V. LeTEMPT          

vs.                                      DOCKET NO. F1790048

vs.                                      DOCKET NO. F1469792


COME NOW the defendants, John E. Johnson, III, William V. LeTempt, Jeffery O. Pike and Daniel Gallagher, to move this Court to dismiss the charge herein. In support of this motion, the defendants respectfully contend to the Court that 36 Code of Federal Regulations S261.10(j) on its face violates the First Amendment of the United States Constitution and, further, that the regulation, whether or not constitutional on its face, was unconstitutionally enforced in this instance.



On June 14, 1996, United States Forest Service officials heard a "rumor" that "the Rainbows were gathering somewhere in the district." [2] Based upon this rumor, the Forest Service, the North Carolina Wildlife Resources Commission and the Madison County Sheriff's Office began "monitoring the situation." That same day, Forest Service Law Enforcement Officer Wilt Stribling went to the "Bluff" area of the Pisgah National Forest where, in a meadow known as "Puncheon Camp," he came upon a large tent, a tarp and a handful of people who identified themselves as members of the Rainbow Family. Stribling, who had "years of experience in dealing with the group," [3] later reported:

Stribling explained to Pike and Latempt [sie] that he was familiar with the rainbow family, and advised them that: the group would be responsible for damage done to the area. At this time, Stribling advised Pike and Latempt of the Forest Service group regulations, and that a permit was required for a gathering of more than 75 people. Stribling also advised Pike and Latempt that state and federal law would be consistently enforced at the site without exception, and went over the violations commonly associated with this type group, including resource damage, unconfined animals, drug use, nudity, and interfering with officers.

[1] No evidence has been received by the Court in this matter. This statement of the facts, based upon the investigative notes of the officers and various informal witness interviews, is necessarily tentative. It is the hope of defense counsel that any inaccuracies will be corrected by evidence presented at the hearing.

[2] Documentation of Rainbow Gathering, Frank Roth, Operations Assistant, United States Forest Service, p. 1.

[3] Case Report," June 17, 1996, Wilt Stribling, United States Forest Service, p. 11.


The following morning, June 15, at approximately 7 a.m., Stribling returned to Puncheon Camp, accompanied by Frank Roth, an "operations assistant" with the Forest Service. The two men found approximately a dozen parked cars and several tents. Roth later reported:

Wilt [Stribling] and I walked up the old logging road into the wildlife field to see what impacts had occurred and the potential for future impacts. The roadbed had poor drainage and was heavily shaded making it difficult for the road to dry. There were several tents around the edge of the field and the cooking facility is about five feet from a perennial stream. There were several walking paths that had already been made around the edge of the field adjacent to the creek. [4]

Just before dark on Saturday, June 16, four Forest Service officers and one Madison County deputy sheriff approached the Rainbow camp. Some, or all, of the law enforcement officers, wearing camouflage outfits, snuck up on the campsite. At least one officer seems to have been equipped with infra-red binoculars, apparently for use in surreptitiously counting family members in the area. When the officers decided that there were 75 people "assembled" in the campsite, in the woods near the
[4] The Forest Service has proposed timber sales which would result in extensive logging of the Bluff area, including Puncheon Camp. This logging certainly has "potential for future impact." The proposed logging site is within sight of the Appalachian Trail. Apparently, the identify of the "impacter" is of more significance to the Forest Service than the degree of impact.

It should be noted as well that no citations were issued to Rainbow Family members for damaging National Forest lands, even though the Rainbow encampment continued into the following week. The defendants will present evidence that, following the gathering, Puncheon Camp was policed of all litter and was reseeded with grass. The defendants contend that their gathering had no detrimental impact on the National Forest.


campsite and in the parking area at least one hundred yards from the campsite, the officers emerged from hiding to demand that the family members fill out a permit application. When those present declined to submit a group application, the officers selected five "leaders" and charged them with assembling without a permit in violation of 36 Code of Federal Regulations Sec. 261.10(j).

II. The Issues

This Court has before it these issues:

1. Whether the government can validly require the defendants to obtain a "special use permit" before they can hold any gathering or meeting of 75 persons or more in any National Forest;

2. Whether the Forest Service selectively enforced 36 CFR 261.10(j) in this case?

III. Argument

A. Facial Invalidity

The defendants contend that the charges against them should be dismissed, in the first instance, because the regulations governing special use permits for the National Forest system are unlawful, unconstitutional and without binding effect upon the defendants.

The activities in which the defendants were engaging in the national forest in June, 1996 were clearly "expressive" in nature and, therefore, protected by the First Amendment. United States v. Rainbow Family, 695 F.Supp. 294, 308 (E.D. Texas, 1988).

For example, individual defendants have testified that Rainbow Family gatherings and councils involve exchange of views on many subjects, including political topics,


as well as educational seminars and various forms of worship. Moreover, many of those associated with the Rainbow Family view their very participation or association in such events as political statements (for example, some argue for peace and the ecology, while others are in opposition to hierarchical, coercive systems of government). Even the act of camping in the National Forests may have political connotations and qualify as protected symbolic activity. See e.g., U.S. v. Abney, 534 F.2d 984, 985 (D.C. Cir. 1976)(per curiam) (sleeping in Lafayette Park in protest vigil is expressive activity); Clark v. Community for Creative Non-Violence 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)(assuming, but not deciding that overnight camping in connection with demonstration is expressive conduct "protected to some extent by the First Amendment:). Thus, it is unquestionable that rights of speech, worship and association, closely guarded under the First Amendment, are operative here. Id., 695 F. Supp. at 308.

National Forest lands are intended for recreation, to be sure, but they are, first and foremost, public lands. Public streets or parks are included in that category of forum where the public expression must be tolerated to a maximal extent. E.G. Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)(use of public streets and parks for exchange of ideas has "from ancient times been a part of the privileges" of citizenship). The National Forests are traditionally open to any user seeking to engage in appropriate recreational or other activities, including those involving speech, worship or association. See, e.g. Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S.Ct. 1319, 1321-23, 99 L.Ed.2d 534 (1988)(historic use of National Forest sites for Indian religious purposes); United States v. Beam, 686 F.2d 252, 256-57 (5th Cir. 1982)(describing various groups' use of National Forest System lands in Texas). "Regulation of expressive activity in such a

forum must therefore be narrowly tailored as to time, place and manner, and serve substantial governmental interests, as well as leave open ample alternative channels of communication." Rainbow Family, 695 F.Supp. at 309, citing Clark, supra, 486 U.S. at 293, 104 S.Ct. 3069; Perry Education Association v. Perry Local Educators' Ass'n 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). "Any prior restraint on expressive activity in such a context is particularly suspect." Rainbow Family, 659 F.Supp. at 309.

"Broad prophylactic rules in the area of free expression are suspect. Precision of regulation is the touchstone. . .." Schaumberg v. Citizens for Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980)(quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340-41, 3 L.Ed.2d 405 (1963).

The prior restraint aspect of a permit or license requirement was considered in Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) where it was held that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional."

The regulations at issue here, Sec. 251 et seq., are nothing if not broad, their enforcement completely within the discretion of Forest Service officials with a demonstrated animus toward the Rainbow Family. For example, under S251.55(h)(3), an "authorized officer" may deny a permit application, if


"(3) The planned event or use would be of such nature and duration that it could not reasonably be accommodated in the particular place and time applied for, considering such factors as damage to resources or facilities, interference with ongoing resource program activities, or impairment of other public uses authorized for the area."

With breathtaking imprecision, S251.60(b) provides:

"A permit may be suspended, revoked, or terminated, in the discretion of the authorized officer, for reasons in the public interest."

The odds of the Rainbow Family being issued a permit are slim indeed in a ranger district which will not tolerate -- even in an area earmarked for commercial logging -- a muddy roadbed or a cook tent beside a stream. Further, under S251.52, any "forest officer" may issue, grant, amend, renew, suspend, terminate, or revoke a special use permit. These Forest Service officers, working overtime presumably, slipped through the woods in camouflage, in order to count Rainbows through infra-red binoculars in the obvious hope of a confrontation. The present regulation leaves the limits on Rainbow Family members' First Amendment rights entirely at the whim of such officers.

Nor does the review process offer meaningful protection against arbitrary prior restraint. Subsection 251.60(f) provides:

Immediate temporary suspension of a special use authorization, in whole or in part, may be required when the authorized officer determines it to be necessary to protect the public health or safety or the environment. In any such case, the superior of the authorized officer will, within 10 days of request of the holder, arrange for an on-the-ground review of the adverse conditions with the holder. Following this review the superior will take action to affirm, modify or cancel the temporary suspension as soon as possible.

The typical Rainbow gathering would be over by the time the superior reviewed those conditions said to be adverse. Certainly, this gathering would have been. The vague "as soon as possible" language could result in the indefinite suspension of a permit. [5] The unwieldiness of the "appeal" process set forth in Sec. 251,80 et seq serves to sanction rather than avert the prior restraint of Rainbow expression.

B. Selective Enforcement

Government officials may not enforce criminal statutes in a selective fashion. Yick Wo v. Hopkins, 118 U.S. 356 (1886); See also Two Guys v. McGinley, 366 U.S. 582 (1961). A defendant is entitled to a dismissal of an indictment upon a showing that other persons similarly situated have not been prosecuted. United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972); United States v. Insco , 495 F.2d 204 (5th Cir. 1974) United States v. Falk, 479 F.2d 616 (7th Cir. 1973 ten bane); United States v. Steele, 461 F.2d 1184 (9th Cir. 1972). See also Wayte v. United States, 470 U.S. 598 (1985)(discussion of equal protection standard and First Amendment challenge of alleged selective prosecution).
[5] Again, in the instance of timely review, the defendants' first amendment rights are too important to leave within the discretion of the Forest Service. In Rainbow Family, United States District Court Judge Justice criticized the "dilatory tactics" of the Forest Service in waiting two years to amend its regulation and, then, arguing in his court that an immediate need justified the service' s failure to allow a public comment period. 695 F.Supp. at 305-206.


The regulations are specific only in their obvious attempt to target Rainbow gatherings. Even those most critical of the various philosophies espoused by the Rainbow Family must admit to the durability of those philosophies: in a variety of configurations and incarnations, the Family members have been taking to the National Forests for 25 years. Perhaps the most enduring tenet of the Rainbow creed is their rejection of hierarchical forms of government. They have no leaders, no board of directors, no executive branch whatever. The word goes out and Family members appear in the National Forest "like mushrooms after a spring rain." Thus, the gathering itself is an expression of a political -- if not spiritual -- belief.

Aware from years of experience that the expression of this belief is the hallmark of the Rainbow Family, the Forest Service drafted 36 CFR Sec. 251.55:

(h) Response to applications . . . for a group event for the public expression of views. An authorized officer shall grant an application for authorization for a group event for the purpose of public expression of views, unless the officer determines that

(5) There is no person or entity authorized to sign a special use authorization on behalf of the group applying for an authorization and/or there is not a person or entity willing to accept responsibility for the group's adherence to the terms and conditions of the permit.

The defendants have no objection to the policing of what Officer Stribling in his report dubbed "the violations commonly associated with this type group, including resource damage, unconfined animals, drug use, nudity, and interfering with officers." In fact, the CFR sets forth a specific regulation to


combat each of these ills. There is no need for the regulation requiring that "some person or entity" sign an application on behalf of the assembled Rainbows. [6] The ability of the Forest Service to regulate resource damage or drug use or nudity is in no way contingent upon the Rainbow Family members electing a representative to sign the permit application. [7] If Rainbow Family members break the law, they can be arrested at that time, just like anyone else.

Therefore, the interests to be balanced against the defendants' First Amendment rights are not the public's right to be protected from drug use or nudity or resource damage but the Forest Service's professed "need" for a signature on an application.

The regulations as presently promulgated clearly target the Rainbow Family. Virtually all of the 37 pages of agency commentary to the most recent version of Secs. 251 and 261 deal with the Rainbow Family and their 25-year-old conflict with the Forest Service. Federal Register, August 30, 1995, 45258-45295.

It may be that the Forest Service has chosen to selectively

[6] The defendants expect to present evidence that many of the assembled Rainbow Family members offered to accept personal responsibility for any impact which they had on the National Forest. None were willing to sign as representatives of the group. The willingness of individuals to accept responsibility should have allayed Forest Service fears about destruction of resources and the other problems posed by group assembly.

[7] In many instances over the years, the Rainbow Family has cooperated with local Forest Service personnel to develop, in advance of a gathering, an "operations plan," which, in setting forth certain conditions, serves as a de facto, but unsigned, permit application.


enforce its regulation in this instance. At the hearing on this motion, the defendants will seek to establish that, since the promulgation of the current regulations, groups of more than 75 people have assembled on Forest Service lands not just within the Pisgah National Forest or this ranger district but within Madison County, at Max Patch, Mill Ridge and elsewhere, without obtaining a special use permit and without drawing the sort of scrutiny which the Rainbow Family has been given.

Finally, there is no support in the facts of these cases for the Forest Service officers' choice of "leaders." The citation of the five defendants is clearly arbitrary and capricious. Defendant Gallagher, for example, was not even camping at the site. He lives in the nearby town of Hot Springs and had been present at the gathering for less than two hours, when he was nominated as a leader by the officers and handed a citation. As he had planned all along, he returned that night to his home in Hot Springs. He had played no part in selecting the site or in organizing the gathering. Another defendant, Stephen Wingeier convinced of the futility of persuading the Forest Service officers that he could not "lead" his fellow campers into authorizing him to sign a permit application on their behalf, packed up and returned to his home in Atlanta. When Defendant John Johnson asked the officers for their names and began taking notes of their discussion with the campers, Johnson was designated a "leader" and served with a citation. Far from being a leader, Johnson, apparently, was not even


a member of the Rainbow Family.

Under S261(10)(j), it is impossible for a citizen to govern his own conduct so as to conform to the law. At the moment when Gallagher sat around the campfire with 73 others, he was utterly blameworthy. Then, with the arrival of one more person at that campfire -- an arrival over which neither Gallagher nor the others had any control -- Gallagher, along with Pike, Letempt, Wingeier and Johnson, "committed a crime."

For these reasons, the defendants respectfully request this Court to dismiss the charges against them.

Respectfully submitted this the 23rd day of October, 1996.

Attorneys for the Defendant

By: (signed )
Sean P. Devereux
P.O. Box 2868
Asheville, North Carolina 28802
Telephone: (704) 255-8085


I HEREBY CERTIFY that a copy of the foregoing Motion to Dismiss was [ ] served on the following by depositing a copy in United States Postal Service in a properly addressed envelope with adequate postage thereon, or [x] by leaving same at his office with a responsible partner or employee.

Mr. Thomas R. Ascik
Assistant United States Attorney
100 Otis Street, Room 207
Asheville, NC 28801

This 23rd day of October, 1996.

Terri M. Pettis
Legal Assistant

Case Contents | Rainbow Cases | Rainbow Regulation Page
1601 Pennsylvania Ave.