U.S. v. Masel

• Citation: 54 F.Supp.2d 903
• Decision Date: 07 June 1999
• Docket Number: No. 98-10014-X-01.,98-10014-X-01.
• Parties: UNITED STATES of America, Plaintiff, v. Bennett A. MASEL, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

54 F.Supp.2d 903

UNITED STATES of America, Plaintiff, v. Bennett A. MASEL, Defendant.

No. 98-10014-X-01.

United States District Court, W.D. Wisconsin.

June 7, 1999.

COPYRIGHT MATERIAL OMITTED

Robert Anderson, Asst. United States Attorney, Madison, WI, for Government.

Jeff Scott Olson, Madison, WI, for Defendant.

OPINION AND ORDER

CROCKER, United States Magistrate Judge.

OPINION

This case presents a First Amendment challenge to various aspects of a regulatory scheme that requires certain groups and individuals to obtain a permit prior to using or occupying National Forest System land. Plaintiff United States has charged defendant Bennett Masel with violating a regulation that prohibits non-commercial groups of 75 or more persons from occupying National Forest System land without first applying for and receiving a special use permit. 36 C.F.R. § 261.10(k). The alleged violation occurred in early September, 1998, during a gathering of the Rainbow Family of Living Light, a looseknit, unincorporated association that gathers periodically in the national forests. Defendant, who agreed to accept the citation on behalf of the gathering, admits that the group exceeded 75 people and that they did not have a special use permit.

Before the court is defendant's motion to dismiss the citation on the ground that the regulation is unconstitutional on its face and as applied to him. Specifically, defendant contends that the regulation unconstitutionally burdens expression because it does not contain adequate procedural safeguards to limit the discretion of those administering it and is not narrowly tailored to a legitimate government interest. He also contends that the regulation is unconstitutional as applied to him because it was "legally impossible" for him to sign an application for a special use permit on behalf of the entire Rainbow Family gathering; the government failed to offer the reasonable alternative of waiving the signing requirement; and the proposed permit that was presented to him by Forest Service Officers contained provisions that exceeded the scope of the regulations.

The government responds that this court should not entertain defendant's facial challenge because he has not alleged that procedural safeguards are lacking with respect to the decision whether to grant or deny a permit in the first instance. The government maintains, moreover, that the permit scheme is a reasonable time, place and manner restriction that was constitutionally applied to the defendant.

As explained in the discussion that follows, I conclude that the challenged provisions are facially constitutional and were properly applied to the defendant. First, the terms and conditions provision presents too remote a risk of censorship to allow this court to entertain a facial challenge to the provision. Second, the permit requirement is a reasonable time, place and manner regulation that does not unduly restrict either associational or individual expressive freedoms. Finally, the regulation was properly applied to the defendant.

I. BACKGROUND FACTS

A. The Rainbow Family

The Rainbow Family is a loose-knit, unincorporated association that has no officers, no written articles, bylaws, constitution, rules or regulations, or any written documents of any kind. Masel Affidavit, Dkt. 6, Ex. A, ¶ 2. In fact, there are really no "members" in a formal sense. The only dividing line between who is a "member" and who is not a member is who chooses to attend and who chooses not to attend a particular gathering. Id.

The Rainbow Family gathers regularly in the national forests to celebrate life, to worship, to express ideas and values, and to associate with others who share their beliefs. USDA, Final Rule, Land Uses and Prohibitions, 60 Fed.Reg. 45,258, 45,262 (Aug. 30, 1995) ("Final Rule"). Rainbow Family gatherings have occurred since at least 1980. Masel Affidavit, ¶ 3. The largest of the gatherings is the group's annual gathering which is held at an undeveloped site each summer and attracts as many as 20,000 people. Final Rule at 45,262. At Rainbow Family gatherings, attendees engage in a system of decision-making in open councils. Decisions are not made by vote, but by full consensus, consistent with the group's rejection of hierarchial or representative forms of government in favor of a system of universal equality. Masel Affidavit, ¶¶ 8 & 9.

At least one other court has found that the Rainbow Family, although informal and loosely-knit, nonetheless "operates as an organization, with decision-making `councils,' individuals who [act] as agents, representatives, or leaders on a voluntary basis, and which has an informational network." United States v. Rainbow Family, 695 F.Supp. 294, 298 (E.D.Tex.1988).

B. The Summer 1998 Gathering at Nicolet National Forest

In mid-August, 1998, Forest Service Officer Mark Borcovan learned that the Rainbow Family of Living Light was planning a gathering at the Secret Lake area of the Chequamegon/Nicolet National Forest in northern Wisconsin. From the time the first participants began arriving on August 18 to the time the last of them left on September 10, 1998, Officer Borcovan closely monitored the number of participants camping in the area surrounding Secret Lake.

On August 20, 1998, Officer Borcovan, District Ranger Butch Fitzpatrick, and Assistant Ranger for Resources Jeff Herrett met with two of the first people to occupy the Secret Lake site. The officers gave the individuals a copy of the Special Use Permit Application and a "Frequently Asked Questions" sheet regarding the application and permitting process. While patroling the Secret Lake area on August 29, Officer Borcovan determined that the gathering had exceeded 75 persons, therefore making it necessary for the group to apply for a special use permit pursuant to National Forest System regulations. Officer Borcovan, Ranger Fitzpatrick and Officer Brandy Sly went to the Rainbow Family site the following day, where they spoke with three participants. The officers presented the individuals with a letter that outlined resource and logistical concerns, along with two copies of a Special Use Permit Application and Special Use Permit. The individuals agreed to take the documents and present them before the Rainbow Council that evening.

On August 31, Officer Borcovan met the defendant who introduced himself as one of the individuals responsible for scouting and bringing the gathering to the forest. Other gathering attendees with whom Officer Borcovan had spoken had also mentioned the name "Ben" as one of the "focalizers" or scouts for the gathering. On September 3, 1998, Officer Borcovan spoke with the defendant and informed him that, based on the head count he had conducted on August 29, the Rainbow Family gathering would have to obtain a special use permit. Borcovan presented defendant with a copy of a permit and operating plan that was ready for signature and informed him that he would like the Council to inform the Forest Service by September 5 if they had signed the documents. Head counts on September 5 and 6 revealed that the group still exceeded 75 people. Office Borcovan met with Masel on Monday, September 7 and informed him that he was going to issue a citation pursuant to 36 C.F.R. § 261.10(j) for the group's failure to obtain a special use permit based on his count of the number of individuals in the Secret Lake area over the weekend. Defendant agreed to accept the citation on behalf of the gathering.

II. ANALYSIS

A. Introduction

The First Amendment's prohibition on laws abridging the freedom of speech is not absolute. The Supreme Court has long held that "[t]he rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place at any time." Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). Underpinning this notion is the recognition that the exercise of civil liberties depends upon the existence of "an organized society maintaining public order;" thus, civil liberties must occasionally give way to laws "designed to promote the public convenience in the interest of all." Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). To use a real-world example, "[o]ne would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions." Id.

When the government passes a law in an area that is within its power to control, the question becomes whether the government has overstepped its bounds and unwarrantedly abridged First Amendment freedoms. Id. Permit schemes that impose time, place and manner restrictions on protected expression will be upheld if the law is justified without reference to the content of the regulated speech, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citations omitted).¹ In addition, the permit scheme must contain adequate procedural safeguards to limit the discretion of the officials charged with enforcing it. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 226, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).

B. Regulatory Framework

The regulations at issue in this case were promulgated by the Department of Agriculture pursuant to 16 U.S.C. § 551, which authorizes the Secretary of Agriculture to make provisions to protect the public forests against destruction by fire and depredations and to make such rules and regulations as will preserve the National Forest from destruction by regulating occupancy and use. 16 U.S.C. § 551. More specifically, the regulations provide that all uses of National Forest System lands are "special...