Federal appeals court upholds Forest Service rules on group gatherings

Thursday, November 11, 1999

Federal regulations requiring noncommercial groups of 75 or more people to obtain a special-use permit before gathering on National Forest Service land do not violate the First Amendment, a federal appeals court has ruled.

Two members of the Rainbow Family, a group that gathers in natural surroundings to celebrate nature, were charged with violating the regulations because they did not obtain a permit prior to a June 1998 gathering at Apache-Sitgreaves National Forest in Arizona.

The defendants, Michael D. Linick and Henry G. Bailey III, argued that the regulations violated the First Amendment because they vested unbridled discretion in Forest Service officials to issue or deny a permit. The regulation provides that a special-use permit may contain such “terms and conditions as the authorized officer deems necessary to … otherwise protect the public interest.”

A federal district court dismissed the charges, finding that the language of the regulations was overbroad. The 9th U.S. Circuit Court of Appeals agreed in its Nov. 9 decision United States v. Linick that the language was troubling. The court wrote that “the Forest Service’s broad discretion to attach terms and conditions to a permit can be abused in a manner that could limit the use of public land by parties who hold political views that are disfavored by the Forest Service.”

However, the 9th Circuit determined that an interpretive rule issued by the Forest Service last September made the regulatory scheme constitutional. That interpretive rule provides:

“The imposition of terms and conditions in noncommercial groups is limited to those designed to further the three public interests identified by the Forest Service in promulgating the noncommercial group use, i.e., the need to address concerns of public health and safety, to minimize damage to National Forest System resources, and to allocate space among actual or potential uses and activities.”

According to the 9th Circuit, the “interpretive rule preserves the constitutionality of the regulatory scheme because the scheme now satisfies the three-part test for time, place and manner regulations.”

In First Amendment jurisprudence, time, place and manner restrictions on expressive activity are constitutional if they:

  • Are content-neutral or apply without regard to the content of the expressive activity.
  • Are narrowly tailored to serve a significant government interest.
  • Leave open ample, alternative means for communication.

The court determined that the Forest Service’s regulatory scheme passed the constitutional test. The court noted that the scheme served the government’s significant interests in health and safety, land-use management and protection of National Forest System resources.

The appeals court also determined that the regulatory scheme left open alternative methods of communication because the scheme “does not affect groups with fewer than 75 people.”

“Defendants also have not shown why it is imperative for Rainbow Family to gather in a national forest, as opposed to some other location,” the appeals court wrote.

Even though the 9th Circuit found the Forest Service regulations constitutional, the court dismissed the charges against Linick and Bailey based on due-process concerns. Due process requires that individuals have notice of what conduct runs afoul of the law.

Because the defendants were charged prior to the issuance of the September interpretive rule, the appeals court determined that the defendants had “inadequate notice about the danger of being successfully prosecuted under this newly and narrowly construed regulatory scheme.”

Officials with the Department of Justice could not be reached for comment today because of the federal holiday.