North Carolina Rainbow Case
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
IN THE.UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
UNITED STATES, No. F-1469782
SEAN P; DEVEREUX
Attorney at Law
Asheville, N.C. 28802
BRIAN MICHAELS, OSB # 92560
259 East 5th Ave.
Eugene, Oregon 97401
Attorneys for Defendants
DEFENDANT'S MOTIONS TO DISMISS
DEFENDANT herein. Moves this Court for its Order Dismissing
this action as follows:
1. Motion for Order of Dismissal for Selective Enforcement/
Malicious Prosecution/Abuse of Process.
2. Motion for Order of Dismissal Based Upon Regulations Written
to Deprive Rainbow Gathering of First Amendment Activity.
3. Motion for Order of Dismissal Based Upon Regulation Granting
Unfettered Discretion to Forest Service.
4. Motion for Order of Dismissal for Lack of Prompt Judicial
Review of Agency Action.
5. Motion for Order of Dismissal Based Upon Defendant
Wingeier's Absence of Mens Rea.
These Motions are based upon the Outline of Constitutional
Issues filed herewith;
RESPECTFULLY SUBMITTED this day of October, 1996,
BRIAN MICHAELS, OSB: 92560
Attorney for Mr. Wingeier
II. REGULATIONS ARE WRITTEN TO DEPRIVE RAINBOW GATHERING OF FIRST AMENDMENT ACTIVITY.
No governmental interest is served by requiring a signature on a
piece of paper, except to subject Defendant to criminal sanctions
for exercise of Defendant's First Amendment activity.
36 C.F.R. Sec. 251.54(h)(1) states in part,
"An authorized officer shall grant an application for a special
use authorization for noncommercial group use upon a
(viii) A person or persons 21 years of age or older have been
designated to sign and do sign a special use authorization on
behalf of the applicant."
See Wisconsin v. Yoder, 406 U.S. 205, 218, 219 (1972) (A law that
affirmatively compels \Defendant under threat of criminal
sanction, to perform acts undeniably at odds with fundamental
tenets of his religious beliefs is unconstitutional. See also,
Braunfield v. Brown, 366 U.S. 599, 605 (1961)).
III. REGULATION GRANTS UNFETTERED DISCRETION TO FOREST SERVICE
(the Regulations grant unfettered discretion to a) require
"such terms and conditions [to a permit] as the authorized
officer deems necessary",  b) the Chief of the Forest Sercice
to insert additional terms and conditions in a permit without
specific guidelines,  and to set the duration of the gathering.
 See 36 C.F.R. Sec. 251.56(a)(2).
 See 36 C.F.R. Sec. 251.52, which states, in part:
"Special use authorizations shall be issued, granted, amended, renewed,
suspended, terminated, or revoked by the Chief [of the Forest Service], or through delegation, by the Regional Forester, Forest Supervisoir, District Ranger or other forest officer, and shall be in such form and contain
in the permit.
 The unfettered discretion to include Permit conditions the
Forest Service deems necessary is a de facto content based
restriction in violation of Defendant's rights of assembly,
association, and speech under the First and Fourteenth Amendments
to the United States Constitution. City of Lakewood v. Plain
Dealer Publ. Co., 486 U.S. 750, 759-760 (1988); Freedman v.
Maryland, 380 U.S. at 59; Cox v. Louisana, 379 U.S. 536 (1965);
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); Shuttlesworth
v. Birmingham, 394 U.S. 147, 151 (1969); United States v. Abney,
354 F.2d 984, 986 (1976); A Quaker Action Group v. Morton, 170
U.S. App. DC 124, 142, 516 F.2d 717, 735 (1975); Forsyth County ,
Georgia v. The Nationalist Movement, 505 U.S. 123, 130-137
IV. REGULATIONS LACK PROMPT JUDICIAL REVIEW
The Regulations lack prompt judicial review when a forest
officer determines a) that a noncommercial group permit is
needed; b) whi is required to sign for a noncommercial group
permit application; and c) that he or she will deny, revoke or
[2 continued] such terms, stipulations, conditions, and
agreements as may be required by the regulations of the Secretary
and the instructions of the Chief." (Emphasis added).
 See 36 C.F.R. Sec. 251.56(b)(1), which states, in part:
" [E]ach 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 authorizaiton and to be reasonable in light of all
circumstances concerning the use." (Emphasis added).
suspend a permit.
See Freedman v. Maryland 380 U.S. 51, 58-59 (1965) (Only a
judicial determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression: only a procedure
requireng a judicial determination suffices to impose a valid
final restraint; the procedure must also assure a prompt final
judicial decision, to minimize the deterrent effect of an interim
and possibly erroneous denial of a license); Bantam Book,s v.
Sullivan, 372 U.S. 58, 70 (1963) (Any system of prior restraints
of expression comes to this Court bearing heavy presumption
against its Constitutional validity. *** We have tolerated such
a system only where it operated under judicial superintendence
and assured an almost immediate judicial determination of the
validity of the restraint); and City of Lakewood v. Plain Dealer
Publ. Co., 486 U.S. 750, 759-760 (1988).
V. DEFENDANT WINGEIER LACKED MENS REA.
Defendant wanted to immediately leave the area once he was
informed that more than 75 people were on site and he would be
cited for violation of the regulations. Despite Defendant's
desire for immediate departure, Forest Service officers charged
Defendant with use and occupancy of forest lands without a signed
For the reasons outlined herein, Defendant Moves this Court for
its Order Dismissiong this Action
RESPECTFULLY SUBMITTED this 29 day of October, 1996,
Brian Michaels OSB #92560
Attorney for Mr. Wingeier
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Motion was served
on the following attorney  by depositing a copy in the United States Postal Service in a properly addressed envelope with adequate postage thereon, or [X} by leaving the same at his office with a responsible partner or employee.
Assistant United States Attorney
100 Otis Street
Asheville, NC 28801
This the 29 day of October, 1996.
PITS, HAY, HUGENSCHMIDT & DEVEREUX
137 Biltmore Avenue
Asheville, NC 28801
Jennifer C. King