U.S. v. McFadden, Criminal Action No. 98-03046-01CR.

• Decision Date: 04 August 1999
• Docket Number: Criminal Action No. 98-03046-01CR.,Criminal Action No. 98-03047-01CR.
• Citation: 71 F.Supp.2d 962
• Parties: UNITED STATES of America, Plaintiff, v. Kirk E. McFADDEN and Tony Nenninger, Defendant.
• Court: U.S. District Court — Western District of Missouri

71 F.Supp.2d 962

UNITED STATES of America, Plaintiff, v. Kirk E. McFADDEN and Tony Nenninger, Defendant.

Criminal Action No. 98-03046-01CR.

Criminal Action No. 98-03047-01CR.

United States District Court, W.D. Missouri, Southern Division.

August 4, 1999.

Thomas M. Larson, U.S. Attorney's Office, Kansas, MO, for U.S.

Federal Public Defender, Federal Public Defender's Office, Springield, MO, for Defendant.

ORDER

ENGLAND, United States Magistrate Judge.

Pending before the Court is defendants' supplemental motion to dismiss the two-count information against them.

Defendants assert that the regulations governing noncommercial assembly of 75 or more persons in the National Forest are facially unconstitutional because they allow the issuing officer unbridled discretion in imposing terms and conditions on the permit holder. Defendants specifically contend that: 1) the regulations under which they are charged are not a valid time, place and manner restriction because they allow Forest Service officers unfettered discretion to impose terms and conditions regarding minimizing damage and protecting the public interest, which constitute a prior restraint on their freedom of expression; 2) the regulations allow the officers unlimited discretion to determine the duration of the event; 3) the regulations allow unfettered discretion to revoke or suspend a permit without granting prompt judicial review and do not allow prompt review to challenge arbitrary terms and conditions; and 4) the requirement that the holder of the fee indemnify the United States for any damages is more than a nominal fee and therefore, violates the First Amendment guarantee of freedom of expression.

The specific regulations at issue, 36 C.F.R. § 251.56, Terms and Conditions, provide that:

(a) Each special use authorization shall contain: (1) Terms and conditions which will * * * (ii) minimize damage to scenic and aesthetic values and fish and wildlife habitat and otherwise protect the environment. (b) Duration and Renewability-(1). Requirements. If appropriate, each special use authorization will specify its duration and renewability. The duration shall be no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization and to be reasonable in light of all circumstances concerning the use.

Defendants contend that these provisions allow a government agent to allow his or her personal views to affect the terms and conditions of the authorization regarding what might be in the public interest, what might be "scenic and aesthetic," what might be the appropriate duration of an event, and whether to revoke any group use authorization based on his or her personal view about the message conveyed by the group. It is their contention that such schemes of prior restraint are presumed to be constitutionally invalid and that the regulations, which allow for arbitrary application, are inconsistent with a valid time, place and manner regulation.

Defendants also challenge the portion of the regulatory scheme that governs suspension or revocation of a group use permit. Specifically in regard to the time limits on granting or denying the authorization, defendants contend that these are illusory because the officers can suspend or revoke the authorization at any time for any reason that would have justified its denial at the outset. They also assert that provisions purporting to grant judicial review are illusory, as a practical matter, because there can be no review when the event is already ongoing, and there is no provision for prompt judicial review to contest a term or condition attached to the special use authorization.

It is also contended that the regulatory scheme is unconstitutional in that it requires an applicant to agree to pay the United States for any damages that may result from the event, which creates the untenable situation in which an individual must agree to pay for the right to assemble. Specifically in regard to the Rainbow Family gatherings, defendants allege that the regulations are unacceptable because the group is composed of citizens who are loosely affiliated, and who cannot reasonably be expected to assume complete financial responsibility for whoever might show up. Because the fee could be more than nominal, defendants assert that the provision is unconstitutional.

The government contends, at the outset, that applicable law does not allow defendants to bring a facial challenge to portions of the regulatory scheme that have never been applied to them. They assert that defendants cannot allege that any of the dangers of which they complain have ever occurred because they have never had any issued permit. It is the government's contention that facial challenges are generally disfavored, and that the issues raised in this case, i.e., unfettered discretion in imposing terms and conditions, payment for causing damage, revocation and suspension issues, and judicial review provisions only become relevant after the Forest Service has issued a permit.

Regarding a facial challenge, although there is support in Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), for the proposition that defendants' facial challenge should be barred outright, there is also support for allowing a party to bring a facial challenge in cases where a regulation is challenged on the basis of unbridled discretion of the decision-maker. FW/ PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-25, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Based on defendants' allegations, this Court finds that it is in the interests of justice to address the merits of defendants' claims that the provisions at issue are an unconstitutional prior restraint because they fail to properly limit the decision maker's discretion.

The Court notes, initially, that many of the arguments advanced by defendants have been rejected in other districts. See United States v. Johnson, 159 F.3d 892, 896 (4th Cir.1998) (upholding the regulatory scheme at issue as narrowly tailored to serve goals of Forest Service in protecting resources, allocating space, and addressing public health and safety concerns); Black v. Arthur, 18 F.Supp.2d 1127 (D.Or.1998), appeal pending, No. 98-3604 (9th Cir.) (rejects many of the arguments advanced by defendants in this case, finding that the regulations do not impose a prior restraint); United States v. Masel, 54 F.Supp.2d 903, 914 (W.D.Wis.) (rejecting facial challenge to terms and conditions of the regulations).

The law is clear that a permit-granting provision is constitutionally valid if it is narrowly drawn, with reasonable and objective criteria for granting it, and with adequate procedural safeguards. FW/PBS, 493 U.S. at 226-28, 110 S.Ct. 596.¹ Therefore, even regulations that restrict expressive conduct are constitutionally permissible, with the proper substantive and procedural safeguards. Ward, 491 U.S. at 794, 109 S.Ct. 2746; United States v. Kistner, 68 F.3d 218, 221 (8th Cir.1995) (finding language imposing terms and conditions necessary "to preserve peace and tranquility" and "to prevent dangers to public health and safety" constitutionally valid).

In this case, the Court agrees with the government that the language regarding "danger to scenic and aesthetic values" is not unconstitutionally vague in the context of the National Forest System, regardless of defendants' wholly speculative contentions to the contrary. There is no question that the government has a substantial interest in maintaining national forests in an attractive condition for the use and...