DECLARATION OF WILLIAM THOMAS

I, William Thomas, hereby declare under penalty of perjury, that the following is a true and accurate representation of my beliefs and actions:

1. My affiliation with the Rainbow Family began in August, 1988, when several people approached me in Lafayette Park, Washington, D.C., and told me that the Rainbow Family Council had dispatched them, as a "Legaliaison" to gather information about NFS plans to amend 36 CFR 251 and 261. This Legaliaison team was concerned that the Forest Service scheme would transform their constitutionally protected gatherings into a crime.

2. They asked whether I would be willing to work with their Legaliaison as a volunteer. It was explained that no individual is authorized to speak for the Rainbow Council, which speaks only by consensus during the first week of July each year.

3. Because many, if not most, Rainbow Family members reside in rural areas, without ready access to the Federal Register, or government publications, the Rainbow Council devised Legaliaison as a method by which to keep the Rainbow Family and friends abreast of developments in the regulatory process through telephone, mail, and word of mouth. This was intended to serve the purpose of advising interested parties about the provisions of the proposed rule to facilitate informed public comment.

4. Since the "United States" began it has been recognized that the people have a right to peaceably assemble on public lands. As an idealist, freedom of peaceable assembly on public lands for expression and/or religious exercise affects a much broader spectrum than the Rainbow Family Gathering. Today the Rainbow Family, tomorrow the Boy Scouts -- or whoever.

5. The first Rainbow Family Gathering of the Tribes happened in 1972. The motivating purpose of that gathering was "to pray for world peace and the healing of the planet." Since then, each year, from July 1-7, an annual Gathering, attracting thousands of people, has traditionally expressed the same purpose. The focal point of the gathering is the Silence, which culminates in the Prayer at noon on July 4th

6. Since at least 1986 the National Forest Service (NFS) has consistently labored to implement a regulatory scheme which, for economic reasons (performance bonds and insurance), and/or philosophic reasons (e.g., "inalienable rights" transcend "permits"), would have the direct and proximate effect of transforming the "Rainbow Family gathering" into "a crime."

7. In the first version of this regulatory scheme a federal district court held the rule "impermissible single(d) out those who wish to gather in order to exercise their First Amendment rights," and found the regulation to be unconstitutional. United States v. Israel, No. Cr-86-027-TUC-RMB (May 15, 1986). Exhibit 1.

8. In Texas, 1988, a federal district court prevented the NFS from stopping the National Rainbow Family gathering. See, United States v. The Rainbow Family, 694 F. Supp. 294, (June 1, 1989, J. Justice, U.S. ED Tex. CA No. L-88-68).

9. On August 11, 1988, together with the Legaliaison group from Texas, I attended a meeting with Dale Robertson, director of NFS, and group of NFS regulatory and enforcement personnel.

10. The NFS delegation announced they had a responsibility to protect the National Forests. The Legaliaison delegation, agreed that protecting the forests was an important responsibility, but explained, because of its non-heirarchical structure, the Rainbow Family could not apply for a "Group Use Permit." Legaliaison reminded NFS that in the past all parties had been bound to the provisions of "Operations Plans," which had a proven history of satisfying all forest protection concerns.

11. At first, the Forest Service agreed to act in "an attitude of positive cooperation." Consistent to Chief Robertson's promise NFS provided a copy of the rulemaking proposal. Exhibit 2 (Charles R. Hartgraves letter, March 16, 1988).

12. This open, cooperative NFS attitude facilitated dissemination of information to the Rainbow Family. Supra, ¶ 3. However, NFS apparently did not consider the Rainbow feed back..

13. Beginning in January, 1990 Marian Connolly, the individual responsible for drafting the NFS gathering regulation revision, became, for me, the sole contact on the revision..

14. Ms. Connolly stated the NFS had a congressional mandate to protect public lands, and, therefore, the gathering regulation was necessary.

15. In February, 1990, Ms. Connolly submitted a proposed regulation, unresponsive to Rainbow Family concerns, to the Office of Management and Budget.

16. From my perspective, subsequent to Ms. Connolly joining the process any semblence to a cooperative NFS attitude was replaced by one of secrecy and combativeness.

17. I wrote to OMB, and suggested that others do the same.

18. According to Ms. Connolly, some folks apparently took my advice. Ultimately that particular draft of the regulation was sent back to the drawing board From Ms. Connoly's point of view, she hadn't been secretive or uncooperative, but just "goofed."

19. In February, 1992, when Ms. Connolly again maintained that NFS had a congressional mandate to protect public lands, I didn't disagree. However, I reminded her that for many years the NFS had successfully dealt with Rainbow gatherings using nothing more obtrusive than an "Operations Plan." This phone conversation was followed by a detailed letter to Ms. Connolly, documented by references to NFS reports showing that peaceable assemblies pose no threat to public lands.

20 Although I specifically requested that Ms. Connoly identify any factual inaccuracies in my analysis, she never responded to any of my specific inquiry.

21. In November, 1993 Ms. Connolly informed me that the final draft of the proposed regulation had been completed, and she expected it to be published in the Federal Register in the near future.

22. Contrary to the agreements made at the August, 1988 Legaliaison/Forest Service meeting, the Ms. Connolly also refused to provide a draft of the rulemaking proposals, and NFS denied subsequent Freedom of Information Act (FOIA).requests for a copy of the draft. (February 10, 1993).

23. Ms. Connolly explained she was not sure when the regulation would be published in the Federal Register, because then-President Bush had imposed a moratorium on non-essential regulations.

24. In a telephone conversation in January, 1993, Dina Apple of the Department of Agriculture, Solicitor's Office, revealed then-Secretary of Agriculture (Madigan) had exempted the regulation from President Bush's moratorium.

25. On or about January 22, 1993, Leon Penetta, the incoming Director of OMB, directed, "no proposed or final regulation should be sent to the Federal Register for publication until it has been approved by an agency head ... appointed by President Clinton."

26. I learned from phone calls to OMB, NFS and Agriculture that the proposed amendments to 36 CFR 251 & 261 had been exempted from President Clinton's hold on President Bush's regulations, and were under consideration at OMB. I had reason to believe that the Clinton administration was not familiar with the regulation.

27. For example, during January and February, 1993 USDA Secretary Mike Espy's Office was informing interested parties that a person could not be arrested under the Forest Service's proposed amendments to 36 CFR 251 and 261.

28. In a letter dated February 25, 1993 I advised the Secretary's Office that Section 261.1(b) provides penalties of up to six months in prison and $500.00 fine.

29. To date no reply to my letter has been received.

30. In January, 1993 I also contacted Carol Rasco, Director of President Clinton's Domestic Policy staff. Ms. Rasco was unfamiliar with the proposed rulemaking. She referred me to Kathy Way.

31. After two telephone conversations with Ms. Way, on February 20, 1993, I sent her copies of my earlier correspondence with Ms. Connolly (supra, ¶¶ 15, 16, 17) to support my contention that the agency just hasn't articulated any rational connection between any specific facts indicating a rational threat to Forest Services lands that would justify a regulation to transform "rights," guaranteed under the First Amendment, into "a privilege," subject to agency discretion.

32. I explained my personal belief that freedom of expression and assembly are integral to the welfare of any democratic society, and my concerns that the proposed rules would adversely effect every individual in the United States. Supra, ¶ 4. I suggested to Ms. Way that she arrange a meeting between any interested members of the public, NFS and USDA representatives to establish a clear understanding of necessity for the proposed rule.

33. Ms. Way told me that she would explore the issue with USDA personnel.

34. Subsequently, I received a letter from Ms. Connolly, dated March 22, 1993, which acknowledged receipt of my earlier correspondence (supra, ¶¶ 16, 18, 29), but did not address my assertions that there was no factually based need for the proposed rulemaking. Exhibit 3.

35. I spoke again to Ms. Way in late March, 1993, when she told me the materials I had sent to her (supra, ¶ 31) were "a good representation of (my) side of the issue."

36. I agreed my summary only represented my perspective of the situation, but pointed out that Ms. Connolly's letter of March 22, 1993 illustrated she had not posed any substantial objection to my representations, and that the best method for Ms. Way to weigh the merits of the issue was to listen to all parties in a meeting.

37. Ms. Way agreed with that suggestion, and said she would arrange for such a meeting.

38. On May 6, 1993 the Forest Service published the proposed rulemaking. Federal Register, Vol. 58. No. 86, pg. 26940. The Background section of the publication briefly outlined the problem the agency faced: "The First Amendment of the United States Constitution provides in part that the government may not abridge the freedom of speech or the right to assemble peaceably. U.S. Const., Amend." Id., 26940, Background.

39. To circumvent this First Amendment problem, but lacking tangible facts to justify the proposed rule, the Forest Service's proposed rule relies on the Forest Service's "congressional mandate to protect the national forests" (Id. 26940), while explaining in considerable detail how the proposal has been tailored to comply with the opinions of two Federal District courts (United States v. Israel, and United States v. Rainbow Family. Id. 26940, also, supra, ¶¶ 7, 8.

40. In a telephone conversation on May 9, 1993 Ms. Way agreed to communicate with the Forest Service and arrange a meeting between Forest Service representatives and individuals concerned with the Forest Service's proposed amendments. Ms. Way agreed the meeting would take place on July 21, 1993.

41. On or about July 18, 1993, I was contacted by Ms. Way, and informed that she had nearly completed arrangements for the scheduled July 21, 1993 meeting. She said the meeting would occur in the DOA building, and that she was waiting for the DOA to get back to her with the exact room number.

42. On July 20, 1993, I received a message that Ms. Way had cancelled the meeting. When I contacted her by telephone, she was apologetic, explaining that during the course of arranging for a room in the DOA building she was contacted by Ellen Hornstein, of the DOA General Counsel's office, and told that it was improper for a White House official to conduct "ex parte" communications regarding the rulemaking proposal.

43. In a telephone conversation, on or about July 26, 1993, Ms. Hornstein confirmed Ms. Way's explanation, insisting that it would be improper for a White House official to conduct "ex parte" communications regarding the rulemaking proposal, because of the on-going public comment period.

44. I agreed that an ex parte communication would be inappropriate, reminding her that I was not suggest an ex parte meeting, but an open public meeting involving members of the public, Forest Service officials, supervisory administration personnel and members of Congress.. Because 5 USC 609(4) provides that the "head of the agency ... shall assure ... the conduct of open conferences or public hearings," I admitted, it was difficult to imagine the legal authority by which Ms. Hornstein felt empowered to dictate policy to the White House. It was as if I were speaking to myself.

45. On July 23, 1993 Ann E. Mates, Recreation Director, Green Mountain & Finger Lakes National Forests, submitted a requested response to "proposed rules for noncommercial group uses and the distribution of noncommercial printed material" Exhibit 4), which doesn't appear on the Forest Service's log of public comment received in response to the proposed regulation.

46. It is significent that Ms. Mates' response is absent from the official log. Her response also highlights a couple of other issues that deserve serious public discussion as well.

47. First, Ms. Mates notes, "we could be regulating spontaneity out of existence."

48. Second, Ms. Mates refers to the "operating plan" (supra, ¶ 14) as "one of the best 'tools' we used at the Rainbow gatherings." Yet the final rulemaking (Federal Register, August 30, 1995, Vol. 60, No. 168, pgs 45258-45295) fails to explain why the agency ignored this proven, less restrictive alternative.

49. After the public comment period had ended, I continued efforts to cause a meeting to discuss the rulemaking. In December, 1993 Ms Hornstein again entered the picture after tentatively arrangements for another meeting were ended by DOA officials who mentioned Ms. Hornstein the party who declared such a meeting would be inappropriately "ex parte."

William Thomas