United States v. Kalb

• Decision Date: 12 December 2000
• Docket Number: Nos. 00-1733,00-1734 and 00-1746,s. 00-1733
• Citation: 234 F.3d 827
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, V. JOAN H. KALB, APPELLANT IN NO. 00-1733 UNITED STATES OF AMERICA, V. GARRICK M. BECK, APPELLANT IN NO. 00-1734 UNITED STATES, V. STEPHEN M. SEDLACKO, APPELLANT IN NO. 00-1746
• Court: U.S. Court of Appeals — Third Circuit

Page 827

234 F.3d 827 (3rd Cir. 2000)

UNITED STATES OF AMERICA,

V.

JOAN H. KALB, APPELLANT IN NO. 00-1733

UNITED STATES OF AMERICA,

V.

GARRICK M. BECK, APPELLANT IN NO. 00-1734

UNITED STATES,

V.

STEPHEN M. SEDLACKO, APPELLANT IN NO. 00-1746

Nos. 00-1733, 00-1734 and 00-1746

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued October 26, 2000

Filed December 12, 2000

Appeal from the United States District Court for the Western District of Pennsylvania District Judge: Honorable Maurice B. Cohill, Jr, (D.C. Crim. No. 99-cr-00074E) (D.C. Crim. No. 99-cr-00075E) (D.C. Crim. No. 99-cr-00076E) [Copyrighted Material Omitted]

David W. Ogden Assistant Attorney General Harry Litman United States Attorney Michael J. Singer, Esquire Howard S. Scher, Esquire United States Department of Justice Civil Division, Appellate Staff 601 D Street, N.W. Washington, D.C. 20530-0001 Benjamin P. Cooper, Esquire (Argued) United States Department of Justice Civil Division P.O. Box 883 Washington, D.C. 20044 Counsel For Appellee

John P. Garhart, Esquire (Argued) 1001 State Street Renaissance Centre Erie, PA 01651 Counsel For Appellants in Nos. 00-1733 and 00-1734 Before: BECKER, Chief Judge, MANSMANN and FUENTES, Circuit Judges.

Bruce A. Antkowiak, Esquire (Argued) One Northgate Square Greensburg, PA 15601 Counsel For Appellant in No. 00-1746

Before: BECKER, Chief Judge, MANSMANN and FUENTES, Circuit Judges.

OPINION OF THE COURT

Mansmann, Circuit Judge.

These appeals comprise the latest installment in a series of legal skirmishes waged between the group known as "The Rainbow Family" or "The Rainbow Family of Light" and the United States Forest Service. Garrick Beck, Joan Kalb, and Stephen Sedlacko, participants in a 1999 Rainbow Family gathering, appeal from Judgments in Criminal Cases entered following the conviction of each of a misdemeanor violation of 36 C.F.R. S 261.10(k): "Use or occupancy of National Forest System land or facilities without special-use authorization when such authorization is required." These appellants challenge the Forest Service regulations, arguing that the relevant regulations do not apply to them as individuals and, in the alternative, that the regulations are constitutionally infirm both facially and as applied. Because we are convinced that the challenged regulations were properly applied to the individual appellants and do not transgress constitutional requirements, we will affirm the Judgments in a Criminal Case entered by the District Court.

I.

The facts underlying this appeal are set forth in detail in the opinion of the District Court, United States v. Kalb, 86 F. Supp. 2d 509 (W.D. Pa. 2000). Accordingly, our recounting of the facts is brief. For a period of weeks during the summer of 1999, some 20,000 people attended a Rainbow Family¹ gathering in Pennsylvania's Allegheny National Forest. Each of the appellants was present at that gathering and was identified by a Forest Service criminal investigator as having had some role in organizing or administering the event.

In early July 1999, these three individuals were issued citations charging each with use of Forest Service land without special use authorization in violation of 36 C.F.R. S 261.10(k).² Related regulations provide that such "special use authorization" must be obtained for "noncommercial group uses." Id. S 251.50."Special uses" include all uses other than timber harvesting, grazing and mineral extraction. Id. "Group use" is defined as "an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators." Id. S 251.51.

The application for a permit is a simple one-page document which essentially requires the applicant to supply information concerning the location and description of the National Forest System land upon which the activity will take place, the facilities that the applicant seeks to use, the estimated number of participants and spectators, the starting and ending times and dates for the proposed activity, and the name of an adult who will sign a special use authorization on behalf of the applicant. Id. S 251.54.

Each of the appellants was advised by a Forest Service representative of the need for the Rainbow Family to apply for a special use permit and was asked to sign the permit application. Each refused.

In August 1999, the appellants were charged with violating the Forest Service regulations and, after a two-day bench trial in October 1999, each were found guilty. On June 1, 2000, each of the appellants was sentenced to a three-month term of imprisonment and was directed to pay a special assessment. A $500 fine was assessed against two of the appellants.³ These sentences were stayed pending the filing and resolution of any appeal. These timely appeals followed and were consolidated for disposition.

II.

The appellants raise a number of challenges to the Judgments entered against them. We consider these challenges seriatim, mindful that because of the "many legal contests between the Rainbow Family and the Forest Service," we do not write on a blank slate. Kalb, 86 F. Supp. 2d at 517.

We address first the contention that the regulations underlying the appellants' convictions criminalize only group rather than individual conduct: "This statute has no actus reus element that can be committed by an individual."

We reject this position because it is unnecessary that the statute specifically set forth the individual as the actor as opposed to the group; the statute need not begin "No person shall . . ." (as appellants argue) for individual liability to attach to a violation. The liability of an individual -- or a group -- occurs when the four requirements of the statute are proven.

Not one court considering the application of 36 C.F .R. S 261.10(b) has hesitated to apply that section to individual defendants. We are not persuaded to chart a different course here. In rejecting the appellants' argument, we are guided by the opinion in United States v. Johnson, 159 F.3d 892 (4th Cir. 1998). There, the court clarified that proof of a violation of section 261.10(k) requires the government to demonstrate: 1) use, 2) of National Forest land, 3) by a noncommerical group of 75 or more persons, either as participants or spectators, 4) without special use authorization.

Id. at 894. The record demonstrates that these requirements were satisfied with respect to each of the appellants. Each knew of the permit requirement, that the gathering of which they were a part was large enough to implicate that requirement,⁴ and that an application for a permit had not been made. Armed with that knowledge, these individuals could have avoided liability under the regulations by opting not to participate in the gathering on National Forest land where it was clear that a special use authorization was required and had not been granted. The record is devoid of any indication that it was "imperative for [the] Rainbow Family to gather in a national forest, as opposed to some other location, to pray and to discuss their views." United States v. Linick, 195 F .3d 538, 543 (9th Cir. 1999).

To read the regulation and the penalty for its violation as inapplicable to individuals who use the National Forest System as part of a group, with deliberate disregard for the group permit requirement, would effectively eviscerate the special use authorization process. We decline to do so.

III.

The appellants next attack particular aspects of the regulations on constitutional grounds, arguing first that the regulations are impermissibly vague and overbroad because they fail to establish standards for the public and for those enforcing the regulations "sufficient to guard against the arbitrary deprivation of liberty interests." City of Chicago v. Morales, 527 U.S. 41, 52 (1999).

"It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits. . . ." Id. at 56 (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402, 403 (1966)). The regulations here do not foster uncertainty. Unlike the ordinance at issue in Morales, the regulations clearly define what conduct is prohibited; there is no need for speculation.⁵ Accordingly we reject appellants' allegation that the regulatory scheme is unconstitutionally vague.

IV.

The appellants next contend that the regulation requirement that a special use authorization permit be signed by a member of the group burdens the First Amendment rights of individuals attending a Rainbow Family gathering. According to the appellants,"[t]he challenged regulation is unconstitutional because it is not narrowly tailored to serve a significant governmental purpose nor does it leave open ample alternate channels of communication." By now there is a body of caselaw addressing the constitutionality of the signature requirement; this requirement has been upheld uniformly and we will uphold it here.

Even where expressive conduct takes place in a public forum, the government may impose reasonable "time, place and manner" restrictions on that conduct. United States v. Johnson, 159 F.3d at 895 (citing Ward v. Rock Against Racism, 491 U.S. 781, 789 (1989)). These restrictions comport with constitutional requirements if they (1) are content neutral; (2) are "narrowly tailored to serve a significant governmental interest," and (3) "leave open ample alternative channels for communication of the information." Ward, 491 U.S. at 791. The appellants do not dispute that the signature requirement is content neutral. They argue instead that the requirement is not narrowly tailored and that it forecloses alternative channels of communication.

These appellants represent that they and other participants in the Rainbow gatherings meet as "individuals who admit of no structure for leadership or hierarchy of decision-making." They then contend that the "refusal...