Black v. Arthur

• Decision Date: 25 August 1998
• Docket Number: Civil No. 97-1798-HA.
• Citation: 18 F.Supp.2d 1127
• Parties: Alexis BLACK, Brian Michaels, Barry Adams, Carla Newbre, John Johnson, and Susan Bernstein, Plaintiffs, v. Russel ARTHUR, in his official capacity as Special Agent Law Enforcement Officer of the Forest Service of the United States Department of Agriculture; John Carpenter, in his official capacity as Special Agent Law Enforcement Officer of the Forest Service of the United States Department of Agriculture; Forest Service of the United States Department of Agriculture, Defendants.
• Court: U.S. District Court — District of Oregon

18 F.Supp.2d 1127

Alexis BLACK, Brian Michaels, Barry Adams, Carla Newbre, John Johnson, and Susan Bernstein, Plaintiffs, v. Russel ARTHUR, in his official capacity as Special Agent Law Enforcement Officer of the Forest Service of the United States Department of Agriculture; John Carpenter, in his official capacity as Special Agent Law Enforcement Officer of the Forest Service of the United States Department of Agriculture; Forest Service of the United States Department of Agriculture, Defendants.

Civil No. 97-1798-HA.

United States District Court, D. Oregon.

August 25, 1998.

COPYRIGHT MATERIAL OMITTED

Marianne G. Dugan, Western Environmental Law Center, Eugene, OR, Brian L. Michaels, Eugene, OR, Reed Lee, JD Obengerger & Assoc., Chicago, IL, for Alexis Black, Carla Newbre, John Johnson, Susan Bernstein.

Brian Micheals, Eugene, OR, pro se.

Brian Micheals, Eugene, OR, for Barry Adams.

James L. Sutherland, Asst. U.S. Atty., Eugene, OR, Thomas W. Millet, U.S. Dept. of Justice, Federal Programs Branch, Washington, DC, D. James Greiner, U.S. Dept. of Justice, Civil Division-Federal Programs Branch, Washington, DC, for Russell Arthur, John Carpenter, United States Forest Service.

OPINION AND ORDER

HAGGERTY, District Judge.

I. INTRODUCTION

Plaintiffs filed this case on December 18, 1997, challenging the U.S. Forest Service noncommercial group use regulation. On May 11, 1998, defendants moved to dismiss all counts for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon review of the complaint and the parties' briefs, this court grants defendants' motion to dismiss for the reasons set forth below.

II. BACKGROUND

The present case stems from a 1997 "Annual Rainbow Family Gathering" in the Ochoco National Forest in central Oregon. Before the gathering, a member of the Rainbow Family applied for a special use permit, but no member would sign the permit on behalf of the Rainbow Family. As a result, at the gathering, Forest Service officials either cited or threatened to cite plaintiffs for violation of the noncommercial group use regulation because the special use permit was not signed. Plaintiffs allege that they intend to continue attending Rainbow Family Gatherings in the future, and fear further citation or arrest based on the requirement of the noncommercial group use regulation that special use permits be signed by a representative of the Rainbow Family. Complaint ¶ 6-11.

Plaintiffs in this case have attended Rainbow Family Gatherings for 15-25 years. The Rainbow Family is an unincorporated, loosely-structured group of individuals that regularly gathers in undeveloped sites in National Forests to "pray for peace, discuss environmental and other contemporary political and social issues, and exchange, develop express and demonstrate their ideas and views." Complaint ¶ 15. Annual gatherings have occurred in different National Forests on and around July 4 since 1972. These gatherings draw more than 20,000 participants and last for a month or more. Smaller regional gatherings take place throughout the year in National Forests across the country. Complaint ¶ 16; see also USDA, Final Rule, Land Uses and Prohibitions, 60 Fed. Reg. 45,258, 45,262 (Aug. 30, 1995) ("Final Rule").

Prior to the gatherings, Rainbow Family members "contact[] local business, civic, and community organizations ... to prepare for the gathering, help to provide for needs of gatherers, help to prevent adverse impacts on the surrounding communities, and help to promote understanding of gatherings on the part of the people living or working in the area," as well as meet "with local resident, civic, religious, and business groups to facilitate a more friendly environment." Complaint ¶¶ 9, 11.

At the gatherings, participants meet in central locations to pray and discuss common interests. All services are provided free of charge, but donations are accepted. Participants camp in tents and vehicles, construct numerous pit latrines and trash areas, and provide food from a central kitchen area. Sanitation is a major concern because all activities take place in undeveloped wilderness far from electricity, waste disposal facilities, reliable water sources, and medical facilities.

After the gatherings, several Rainbow Family members remain on site to clean-up the area and return it to its natural state. Final Rule at 45,263-264. However, not all gatherings have resulted in perfect restoration. Improperly closed latrines, eroded and compacted soil, destruction of vegetation, and litter have been problems at previous gatherings. Id.

Plaintiffs in this case challenge the Forest Service regulations that govern "special uses" of National Forest System lands by noncommercial groups of 75 or more people. 36 C.F.R. §§ 251.50, 251.51, 251.54, 251.56, 251.60, and 261.10. Special uses include any activities besides logging, mining, or grazing. 36 C.F.R. § 251.50(a). Any person wishing to engage in a special use must first obtain a permit from the Forest Service. Any violation of the special use permitting regulation may result in a fine of up to $500 or imprisonment of up to 6 months or both. 36 C.F.R. §§ 261.1b, 261.10(k).

"Noncommercial group use" is defined as any activity conducted on National Forest Service lands involving a group of 75 or more people, either as participants or spectators, in which (a) no entry or participation fee is charged, and (b) the primary purpose of the activity is not the sale of a good or service. 36 C.F.R. §§ 251.51, 251.54. To apply for a noncommercial group use permit, the applicant must provide the following: (1) the applicant's name and mailing address (if the applicant is an organization, the name and individual authorized to receive notice of actions regarding the application); (2) a description of the proposed activity; (3) the location and a description of the National Forest System lands and facilities the applicant desires to use; (4) an estimate of the number of participants and spectators; (5) the starting and ending dates and the time of the activity; and (6) the name of a person 21 years of age or older who will sign the special use authorization on behalf of the applicant. 36 C.F.R. §§ 251.54(e)(1) and (e)(2)(i)(A-E).

Specifically, plaintiffs raise five claims in their complaint regarding the noncommercial group use regulation: (1) it does not apply to Rainbow Family Gatherings because the Rainbow Family does not fit within the regulatory term "group;" (2) it fails the First Amendment test for time, place, or manner regulations; (3) it fails the First Amendment test for prior restraints upon expression and religious worship; (4) it fails the First Amendment strict scrutiny test, which is necessary because the Forest Service's motive for adopting the regulation was animus toward the Rainbow Family; and (5) it was promulgated in violation of the notice and comment provision of the Administrative Procedure Act ("APA"). Under claims 2, 3, and 4, plaintiffs particularly attack the constitutionality of the signature requirement. 36 C.F.R. § 251.54(e)(2)(i)(E).

III. STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief can be granted is subject to a stringent standard of review. The appropriate standard for deciding to dismiss a claim is whether "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Moreover, the review is limited to the complaint and all allegations of material fact are taken as true and viewed in the light most favorable to the nonmoving party. Cassettari v. Nevada County, Cal., 824 F.2d 735, 737 (9th Cir.1987). The issue, however, is not whether the pleading party will ultimately prevail, but whether that party is entitled to offer evidence in support of its claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

IV. ANALYSIS

Before proceeding with the merits of the motion to dismiss, the court will address plaintiffs' request to convert this motion to dismiss into one for summary judgment. Motions to dismiss are converted to motions for summary judgment when "matters outside the pleadings are presented to and not excluded by the court." Fed.R.Civ.P. 12(b). However, there are several exceptions to that general rule. For example, courts are allowed to take judicial notice of matters in the general public record, including records and reports of administrative bodies and records of prior litigation, without converting a motion to dismiss into a motion for summary judgment. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.1988); Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1953). In this case, defendants refer to the preamble to the Final Rule (Final Rule, 60 Fed.Reg. 45,258 (Aug. 30, 1995)) and certain documents in prior district court litigation.

Pursuant to Federal Rule of Evidence 201, this court takes judicial notice of the preamble to the Final Rule because it is the record of an administrative body that contains relevant information on the background and purpose of the challenged regulation. However, this court excludes reference to the documents from prior litigation because they are not a basis of res judicata for these parties. Because this court will consider only the complaint and matters of public record in resolving this motion to dismiss, it need not be converted to a motion for summary judgment.

A. "Group use"

The Forest Service's special use regulation does not require a permit for noncommercial use of National Forest System lands unless a "group use" is involved. 36 C.F.R. § 251.50(c)(3). "Group use" is defined as "an activity conducted on National Forest System lands that...