UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

__________________________________________________
                                                  )
ALEXIS BLACK, BRIAN MICHAELS,                     )
BARRY ADAMS, CARLA NEWBRE, JOHN                   )
JOHNSON, and SUSAN BERNSTEIN,                     )
                    Plaintiffs,                   )
                                                  )
                v.                                )
                                                  ) CASE NO. 97-1798-HA
RUSSEL ARTHUR, an individual, and in his          )
official capacity as Special Agent Law            )
Enforcement Officer of the Forest Service of the  ) MOTION TO DISMISS
United States Department of Agriculture; JOHN     ) ALL COUNTS AS TO
CARPENTER, an individual, and in his official     ) OFFICIAL DEFENDANTS
capacity as Special Agent Law Enforcement         )
Officer of the Forest Service of the United States)
Department of Agriculture; FOREST SERVICE         ) ORAL ARGUMENT
of the United States Department of Agriculture    ) REQUESTED 
                    Defendants                    )
__________________________________________________)

TABLE OF CONTENTS
Table of Authoritiesiii
Preliminary Statement1
Regulatory Framework: The Noncommercial Group Use Regulation2
Background6
The Present Action10
Argument12
I. THIS COURT SHOULD DISMISS COUNT I OF THE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)12
A. The noncommercial group use regulation's authorization requirement is a constitutional time, place, and manner regulation of the use of the national forests for expressive activities12
1.The noncommercial group use regulation is content neutral13
2.The noncommercial group use regulation is narrowly tailored to serve significant government interests. 15
3.The noncommercial group use regulation leaves open ample alternative channels for expression 17
B.The signature requirement is a necessary and ancillary part of the noncommercial group use regulation. 18
II.THIS COURT SHOULD DISMISS COUNTS II, III, AND IV UNDER FED. Rs. CIV. P. 12(b)(1) AND 12(b)(6)20
A.Counts II-IV all depend on the Plaintiff's erroneous premise that the signature requirement is unconstitutional. Rejection of this premise mandates dismissal of all three counts for failure to state a claim. 20
B.Even if Plaintiffs are correct that the noncommercial group use regulation is unconstitutional, Counts II, III, and IV suffer from fatal jurisdictional and jurisprudential flaws requiring dismissal under Rule 12(b) 21
1.This Court should dismiss Count II because the Complaint makes no allegation of action under color state law, because neither the United States nor the Forest Service is a "person" within the meaning of section 1983, and because section 1983 does not waive the federal government's sovereign immunity from suit 21
2.This Court should dismiss Counts III and IV because they fall within the "Due Care" exception to the FTCA, because Plaintiffs have failed to exhaust, and because the Complaint fails to allege the Oregon state law elements of malicious prosecution and intentional infliction of emotional distress22
a. This Court lacks subject matter jurisdiction under the "Due Care" exception to the FTCA24
b. This Court lacks subject matter jurisdiction because Plaintiffs have failed to exhaust administrative remedies27
c. This Court should dismiss Counts III and IV because Plaintiffs have failed to state claims under Oregon tort law27
Conclusion30

ii

TABLE OF AUTHORITIES
FEDERAL
Billings v. United States, 57 F.3d 797 (9th Cir. 1995)11
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)12
Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996), cert. denied, 117 S. Ct. 513 (1996)19
Cadwalder v. United States, 45 F.3d 297 (9th Cir. 1995)27
Cannon V. University of Chicago, 441 U.S. 677 (1979)21
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)12,15,16,25
Coffey v. United States, 387 F. Supp. 539 (D. Conn. 1975)25
Dale-Murphy v. Winston, 837 F.2d 348 (9th Cir. 1987)11-12
Dalehite v. United States, 346 U.S. 15 (1953)24
Dupree v. United States, 247 F.2d 819 (3d Cir. 1957)24-24
FDIC v. Meyer, 510 U.S. 471(1994)22-23
Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059 (9th Cir. 1991), cert. denied, 504 U.S. 914 (1992)16
Goodwill Industries of El Paso v. United States, 218 F.2d 270 (5th Cir. 1954)24
Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994)14
Gutierrez de Martinez v. Lamagno, 115 S. Ct. 2227 (1995)23
Hallet v. United States Department of Navy, 850 F. Supp. 874 (D. Nev. 1994)28
Hatahley v. United States, 351 U.S. 173 (1956)25
Heckler v. Chaney, 470 U.S. 821 (1985)24
Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981)14-15

iii

Hydrogen Technology Corp. v. United States, 831 F.2d 1155 (1st Cir. 1987), cert. denied, 486 U.S. 1022 (1988)24
Jerves v. United States, 966 F.2d 517 (9th Cir. 1992)27- 28
Kentucky v. Graham, 473 U.S. 159 (1985)11, 21
Klein v. United States, 268 F.2d 63 (2d Cir. 1959)25
Lambertson v. United States, 528 F.2d 441 (2d Cir.), cert. denied, 426 U.S. 921 (1976) 25
McNeil v. United States, 508 U.S. 106 (1993)27
Meyer v. Fidelity Savings, 944 F.2d 562 (9th Cir. 1991), rev'd in other part sub nom. FDIC v. Meyer, 510 U.S. 471 (1994)23
Mitchell v. Forsyth, 472 U.S. 511 (1985)12
Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515 U.S. 1161 (1995)15
Mundy v. United States, 983 F.2d 950 (9th Cir. 1993)22
Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252 (2d Cir. 1975)25
NAACP Western Region v. City of Richmond, 743 F.2d 1346 (9th Cir. 1984)16
Ngiraingas v. Sanchez, 495 U.S. 182 (1990)21
One World One Family Now v. City and County of Honolulu, 76 F.3d 1009 (9th Cir. 1996), cert. denied, 117 S. Ct. 554 (1996) 13, 15-176
Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604 (9th Cir. 1993)3,16
Powell v. United States, 233 F.2d 851 (10th Cir. 1956)24
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969)13
Simpkins v. District of Columbia Government, 108 F.3d 366 (D.C. Cir. 1997)12
Smith v. United States, 101 F. Supp. 87 (D. Colo. 1951), aff'd, 196 F.2d 222 (10th Cir. 1952)24
Sprecher v. Graber, 716 F.2d 968 (2d Cir. 1983)23
Stonecipher v. Bray, 653 F.2d 398 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982)21

iv

United States v. Johnson, III, - - F. Supp. - -, I997 WL 797098 (W.D.N.C. Dec. 11, 1997)2,10,12-13,16
United States v. Mitchell, 445 U.S. 535 (1980)22
United States v. Parsons, 967 F.2d 452 (10th Cir. 1992)19
United States v. Rainbow Family, 695 F. Supp. 294 (E.D. Tex. 1988)1, 6, 8-9,16
United States v. Second National Bank of North Miami, 502 F.2d 535 (5th Cir. 1974), cert. denied, 421 U.S. 912 (1975)20
United States v. Sherwood, 312 U.S. 584 (1941)22
United States v. Smith, 499 U.S. 160 (1991)12, 22-23
United States v. Worthington, 822 F.2d 315 (2d Cir. 1987), cert. denied, 484 U.S. 944(1987)19
Ward v. Rock Against Racism, 491 U.S. 781 (1989)12-13, 16
Wheeldin v_Wheeler, 373 U.S. 647 (1963)21
Will v. Michigan Department of State Police, 491 U.S. 58 (1989)21
Willis v. United States, 600 F. Supp. 1407 (N.D. Ill. 1985)26
STATE CASES
McGanty v. Staudenraus, 901 P.2d 841 (Or. 1995)29
Rogers v. Hill, 576 P.2d 328 (Or. 1978)28
Rose v. Whitbeck, 562 P.2d 188 (Or. 1977), modified in other part, 564 P.2d 671 (Or. 1977)28
FEDERAL STATUTES, REGULATORY MATERIALS, AND RULES
5 U.S.C. 701-065,11
16 U.S.C. 5512
18 U.S.C. 1001(a)18
28 U.S.C. 267423

v

28 U.S.C. 2675(a)23, 26
28 U.S.C. 2679(b)(1)12, 22
28 U.S.C. 2679(d)(1)22
28 U.S.C. 268022
28 U.S.C. 2680(a)23-24
42 U.S.C. 19832, 11, 21
36 C.F.R. 251.50(a)3, 25
36 C.F.R. 251.50(c)3
36 C.F.R. 251.50(c)(3)3
36 C.F.R. 251.512-3
36 C.F.R. 251.54(e)(1)4,18
36 C.F.R. 251.54(e)(2)(i)(E)4
36 C.F.R. 251.254(e)(2)(i)(A-E)4,18
36 C.F.R. 251.54(f)(2-3)4
36 C.F.R 251.54(f)(5)4-5,16
6 C.F.R. 25I.54(h)(1)(i-ii)5
36 C.F.R. 251.54(h)(1)(i-viii)16
36 C.F.R. 251.54(h)(1)(iv)5
36 C.F.R. 251.54(h)(1)(v)5
36 C.F.R. 251.54(h)(1)(v)(A-E)5
36 C.F.R. 251.54(h)(1)(vi)5
36 C.F.R. 251.54(h)(1)(vi)(A-D)5
36 C.F.R. 251.54(h)(1)(vii)2, 5

vi

36 C.F.R. 251.54(h)(1)(viii)1, 6, 10
36 C.F.R. 251.54(h)(2)5,17
36 C.F.R. 251.56(a)6
36 C.F.R. 251.60(a)(1)(i)6
36 C.F.R. 251.60(a)(1)(ii)6,17
36 C.F.R. 261.1b3
35 C.F.R. 261.10(k)2, 3, 10, 25
Final Rule, Department of Agriculture, Land Uses and Prohibitions, 60 Fed. Reg. 45,258, 45,258(Aug. 30 1995)passim
Fed. R. Civ. P. 4(e)12
Fed. R. Civ. P. 12(b)(1)20
Fed. R. Civ. P. 12(b)(6)12, 20, 23, 28, 29
Fed. R. Civ. P. 23(b)(2)9

vii

PRELIMINARY STATEMENT

In this action six members of the Rainbow Family seek a declaratory judgment, injunctive relief, and damages against the United States Department of Agriculture, Forest Service, and two of its Special Agents, who are sued in both their individual and official capacities.[1] The Rainbow Family is an unincorporated association of persons that gathers in numbers often exceeding 20,000 at least once per year in national forests to "share many common interests and political values or ideals, and express those shared ideas and interests through Rainbow Family activities." United States v. Rainbow Family, 695 F. Supp. 294, 298 (E.D. Tex. 1988). "[A]lthough informal and loosely-knit, [it] nonetheless operates as an organization, with decision-making 'councils,' individuals who act as agents, representatives, or leaders on a voluntary basis, and . . . an informational network." Id (alterations added). The Forest Service is an agency of the United States Department of Agriculture ("USDA") charged with administration of the nation's national forests. Final Rule, Department of Agriculture, "Land Uses and Prohibitions," 60 Fed. Reg. 45,258, 45,258 (Aug. 30, 1995) [hereinafter "Final Rule"].

The gravamen of Plaintiffs' action is that a portion of a Forest Service regulation requiring noncommercial groups of more than 74 persons to obtain a permit before Gathering in a national forest violates their rights under the First Amendment. Specially, Count I of Plaintiffs' Complaint alleges that 36 C.F.R. 251.54(h)(1)(viii), which allows the Forest Service to issue a noncommercial group use authorization only after an application is signed by a person

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[1] To date, no defendant has been served. Through this rnotion, the Official Defendants only (the Forest Service, Defendants Arthur and Carpenter in their official capacities, and the United States) waive service. Defendants Arthur and Carpenter in their individual capacities do not waive service of process. See infra.

1

designated to do so on behalf of the group applying for the authorization, violates their belief that all forms of representation and hierarchical structure are improper.[2]

Counts II-IV of the Complaint relate to enforcement of the permit requirement against Plaintiffs at the Rainbow Family's recent Gathering in the Ochoco National Forest in Eastern Oregon. Pursuant to 35 C.F.R. 261.10(k), several of the Plaintiffs were cited for occupying National Forest System lands without the necessary permit. Complaint 6-12. Plaintiffs allege that the citations violated their rights under 42 U.S.C. 1983, and that the two officers who issued them committed the torts of malicious prosecution and intentional infliction of emotional distress under Oregon law. Plaintiffs' section 1983 claim and their two state law tort claims depend upon their erroneous assertion that the 36 C.F.R. 251.54(h)(1)(vii) violates their First Amendment rights, the basis of Count I. As we will explain, however, even if Plaintiffs are correct that the signature requirement is unconstitutional, a host of well-established statutory and jurisprudential doctrines require dismissal of Counts II-IV.

REGULATORY FRAMEWORK: THE NONCOMMERCIAL GROUP USE REGULATION

Pursuant to statutory authority, 16 U.S.C. 551, the USDA has promulgated regulations administered by the Forest Service governing any "special use" of National Forest System lands. 36 C.F.R. subpart B. A special use is any use other than one involving timber, mining, or

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[2] In seperate litigation, a North Carolina District Court upheld the permitting scheme that Plaintiffs challenge, including the signature requirement, against a First Amendment attack by members of the Rainbow Family in United States v. Johnson, III, -- F. Supp --, 1997 WL 797098 (W.D.N.C. Dec. 11, 1997). The Johnson court held that the authorization scheme constituted a valid time, place, and manner restriction on expression. Id. It is not clear whether John Johnson, III, a defendant in the North Carolina litigation, is the same person as Plaintiff John Johnson in this action.

2

grazing. 36 C.F.R. 251.50(a). Subject to certain exceptions explained below, any person wishing to engage in a special use must obtain authorization, i.e. a permit to do so. 36 C.F.R. 251.50(a), 261.10(k). A person who engages in a special use without the necessary authorization is subject to a fine of up to $500.00 or imprisonment for up to 6 months, or both. 36 C.F.R. 261.1b.

One type of special use subject to the authorization requirement is a "noncommercial group use," defined as any activity conducted on National Forest System lands involving 75 or more people, either as participants or spectators, in which either (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. Accordingly, a Gathering of 75 or more persons for purposes of self-expression or exchange or ideas, such as a Rainbow Family Gathering, is a noncommercial group use governed by 36 C.F.R. part 251 subpart B. [3]

The regulation provides certain exemptions from the permitting requirement. In particular, no special use authorization is required for "noncommercial recreational activities," e.g. camping and hiking, or "noncommercial activities involving expression such as assemblies, meetings, demonstrations, and parades," unless the special used falls within the definition of a noncommercial group use. In the latter case, no exemption applies, and the would-be user of a national forest must comply with the noncommercial group use regulation. 36 C.F.R. 251.50(c), 251.50(c)(3). Effectively, this means that all noncommercial uses involving 74 or fewer spectators or participants need not be authorized, regardless of whether the use is for

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[3] the line between commercial and noncommercial uses is analogous to the line between commercial and noncommercial speech in First Amendment jurisprudence. See, e.g., Outdoor Systems, Inc. v. City of Mesa, 997 F. 2d 604, 613 (9th Cir. 1993).

3

hunting wildlife, riding horses, protesting injustice, or exchanging views on the proper way to live. All noncommercial uses involving 75 or more spectators or participants, however, must be authorized, regardless of character or purpose of the noncommercial use.

To apply for a noncommercial group use authorization, the applicant must provide the following: the applicant's name and mailing address; if the applicant is an organization, the name of an individual authorized to receive notice of the actions regarding the application; a description of the proposed activity; the location and a description of the National Forest System lands or facility the applicant desires to use; an estimate of the number of participants and spectators; the starting and ending dates and the time of the activity; and 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), 251.254(e)(2)(i)(A-E). The applicant must deliver Forest Service 72 hours in advance of the beginning time of the proposed activity. 36 C.F.R. 251.54(f)(5). No other information is required. 36 C.F.R. 251.54(e)(2)(i)(E).

If the Forest Service issues no decision on the application within 48 hours of receiving it, it is deemed granted and authorization must issue forthwith. 36 C.F.R. 251.54(f)(5). During this 48-hour period, the proper Forest Service officer must acknowledge receipt of the application in writing; assess the applicant's qualifications; complete an environmental assessment mandated by statute; determine compliance with other applicable laws; consult with other interested parties, including other law enforcement agencies and the general public; and "take any other action necessary to fully evaluate and make a decision to approve or deny the application and to prescribe suitable terms and conditions." 36 C.F.R. 251.54(f)(2-3). If the Forest Service denies the application, it must notify the applicant in writing of its reasons for doing so, and the denial is "final agency action" subject to immediate court challenge under the

4

Administrative Procedure Act, 5 U.S.C. 701-06. 36 C.F.R. 251.54(h)(2). If some alternative time, place, or manner of use would satisfy the concerns of the Forest Service that led to the denial, the Service must offer this alternative. Id.

The regulations provide that the Forest Service "shall" grant an application for a special use authorization if the requested use meets eight narrowly defined, content neutral criteria. The first three criteria concern consistency with otherwise applicable law "unrelated to the content of the expressive activity," including the relevant Forest Land and resource management plan of the relevant forest area promulgated pursuant to statute, as well as the environmental concerns for sensitive areas outlined in the Forest Service's National Environmental Policy Act procedures Handbook. 36 C.F.R. 251.54(h)(1)(i-ii). The fourth criterion is whether the requested use will interfere with other previously scheduled or ongoing uses. 36 C.F.R. 251.54(h)(1)(iv). Successive applications for special uses of the same national forest area are processed on a first come, first serve basis. 36 C.F.R. 251.54(f)(5). The fifth criterion addresses health concerns, a subject of particular importance in Rainbow Family Gatherings. 36 C.F.R 251.54(h)(1)(v); see infra "Background" section. The regulation directs the Forest Service to focus on sanitation, waste disposal, spread of disease, and water supply. 36 C.F.R. 251.54(h)(1)(v)(A-E). The sixth criterion addresses public safety. It prohibits any consideration of a "heckler's veto" by excluding concerns about the possible reaction to the users' identity or beliefs from nonmembers of the group that is seeking authorization." 36 C.F.R. 251.54(h)(1)(vi). Indeed, the Forest Service may look only to potential for physical injury to the applicants and others and the adequacy of emergency ingress and egress. 36 C.F.R. 251.54(h)(1)(vi)(A-D). The seventh criterion prohibits use for military or paramilitary exercises unless these exercises are federally funded. 36 C.F.R. 251.54(h)(1)(vii). Finally, the eight criterion provides: "A person or

5

persons years of age or older [shall] have been designated to sign and do sign a special use authorization on behalf of the applicant." 36 C.F.R. 251.54(h)(1)(viii).

The Forest Service may grant a requested authorization subject to terms and conditions necessary to carry out the purpose of applicable law, minimize the environmental impact to the area to be used, and protect the safety of all lawful users. 36 C.F.R. 251.56(a). Once issued, an authorization for a noncommercial group use may be revoked only for one of the following four reasons: (A) noncompliance with one of the eight criteria articulated above; (B) noncompliance with other applicable law or the terms and conditions of the authorization; (C) failure of the holder to exercise the authorization granted; or (D) by consent of the holder. 36 C.F.R. 251.60(a)(1)(i). Revocation or suspension of a previously granted authorization is final agency action subject to immediate challenge under the APA. 36 C.F.R. 251.60(a)(1)(ii).

BACKGROUND

This lawsuit is the latest stage in a series of court disputes arising out the desire of the Rainbow Family to hold Gatherings in the national forests. Most of this history is detailed in the exhaustive preamble to the official promulgation of the noncommercial group use regulations at issue in this case, see Final Rule, 60 Fed. Reg. at 45257-93, in United States v. Rainbow Family, 695 F. Supp. 294 (E.D. Tex. 1988) [hereinafter Rainbow I ], and in United States v. Rainbow Family, 695 F. Supp. 314 (E.D. Tex. 1988) [hereinafter Rainbow II ]. This history will only be summarized here.

For over two decades, Rainbow Family members have met in "Gatherings" in various undeveloped sites in national forests "to celebrate life, worship, express ideas and values, and associate with others who share their beliefs." Final Rule, 60 Fed. Reg. at 45,262. The largest of

6

these events are the annual Gatherings, in which as many as 20,000-plus people from across the United States and internationally attend. Id. Although the Rainbow Family often shows a commendable concern for sanitation and preservation of the environment, id. at 45,263, the sheer volume of persons in attendance has caused difficulties in these areas in the past, and other problems unique to a chosen site have arisen. Moreover, the Rainbow Family's decentralized organizational structure and aversion to any form of hierarchy or representation have complicated Forest Service attempts to address these issues. Id.

For example, in the 1987 Gathering in North Carolina, inadequate sanitation resulted in an outbreak of shigellosis, a form of bacterial dysentery transmitted by contamination from human waste. The contamination resulted from the scattering of uncovered human waste; flies, bare human feet, and other vectors spread bacteria. Two physicians from the Center for Disease Control in Atlanta visited the 1987 Gathering from July 4-11 and estimated that 65% of those remaining suffered from shigellosis. By the middle of August, 25 states reported outbreaks of the disease traced to persons attending the Gathering. Similarly, in the 1991 and 1992 Gatherings in Vermont and Colorado, uncovered human waste was left scattered throughout the forest and latrines were often dug too close to rivers or other sources that Gatherers used for drinking and cooking water. Id. at 45,263-64.

Environmental damage and litter has also resulted from the Gatherings. Eroded soil from paths leading down to sources of fresh water have threatened the quality of stream banks and, thus, the long-term quality of the water. The 1987, 1991, and 1992 Gatherings resulted in soil compaction, destruction of vegetation, and exposed tree roots. Gatherers left filled garbage bags, cigarette butts, and plastic utensils throughout the sites. Id.

7

Other difficulties have arisen that were specific to the sites chosen for the Gathering. For instance, in the 1992 Gathering in Colorado, one of the main access roads to the chosen site had previously been scheduled for use as a timber hauling route. The traffic congestion caused by the Gathering required last-minute alteration of the timber hauling operations, resulting in higher costs to the hauler and the government. Id. at 45,281.

The difficulties attending large group events in the national forests are by no means unique to Rainbow Family Gatherings. In 1993, for instance, a group called "We The People" sought to meet in a site that had previously been used by the Mississippi National Guard for military training purposes and that was then in use by the National Guard for military exercises. Leftover unexploded ordnance posed a threat to physical safety, as did ongoing National Guard tank maneuvers. Id. at 45,281.

Until recently, the Forest Service's attempts to address the effects of events involving large numbers of people have met with varying degrees of success. Prior to 1986, Forest Service special use authorization regulations distinguished between expressive group activity and other forms of group activity and provided different grounds for the approval of a special use authorization request based upon this distinction. Rainbow I, 695 F. Supp. at 301. Because of this distinction, the United States District Court for the District of Arizona invalidated this set of regulations in 1986. Id. (citing United States v. Israel, No. CR-86-027-TUC-RMB (D. Ariz. May 10, 1986)). In response, the USDA issued amended regulations two years later in the form of an interim rule published May 10, 1988. The United States District Court for the Eastern District of Texas held these amendments invalid in Rainbow I [4] because they had not been promulgated in

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[4] in Rainbow I, the United States sued the Rainbow Family seeking an injuction against the 1988 Gathering in Texas until the Rainbow Family obtained a special use permit. The rulings

8

compliance with the APA's notice and comments requirements. Id. at 302-06. The Rainbow I court also express doubts as to the constitutionality of the 1986 regulations, focusing on the distinction between expressive and other activity as well as the amount of discretion given to Forest Service officials when responding to requests for special use authorizations. Id. at 306-13.

In response, the Forest Service undertook an exhaustive review of its interests in regulating special uses of national forests by large numbers of persons as well as Supreme Court time, place, and manner jurisprudence. Final Rule, 60 Fed. Reg. at 45,258-93. The result was the noncommercial group use regulation promulgated to be part of the overall special use regulations. Id. at 45,293-95.

Since the 1995 promulgation of the noncommercial group use regulation, the Forest Service has attempted to obtain compliance by the Rainbow Family regarding its Gatherings. In 1996, the United States sued the Rainbow Family and several of its members in the United States District Court for the Middle District of Florida, after they refused to apply for a permit, seeking a declaratory judgment that the noncommercial group use regulation was constitutional and an injunction against holding the annual Gathering in the Osceola National Forest without the necessary authorization. In this suit, the United States sought to invoke a procedure used in Rainbow I, namely, certification of a defendants' class pursuant to Fed. R. Civ. P. 23(b)(2). See Attachment A (copy of the Complaint); Rainbow 1, 695 F. Supp. at 298-99. Despite serving at least a dozen named defendants, see Attachment B (copy of summonses), the United States' desire for a definitive, non-criminal judicial resolution of the issue with respect to the Rainbow

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summarized above were made in the context of the court's denial of the United States' request for preliminary relief. In Rainbow II, the court ordered the Rainbow Family to comply with "discrete health and sanitation provisions appropriate for an outdoor Gathering of large numbers of persons," but denied all other relief. 695 F.Supp. at 330.

9

Family was thwarted when most served defendants suffered default judgments and those that did appear lacked attorneys, suggesting that they would not serve as adequate class representatives. See Attachment C (order dismissing the case).

Having little alternative, the Forest Service began issuing citations for violations of the noncommercial group use regulation. On June 17, 1996, members of the Rainbow Family held an event in the Pisgah National Forest in North Carolina in which over 75 people participated. Forest Service officers arrived at the scene with applications ready for signature and explained the noncommercial group use regulation to the event's participants, but no one would sign an authorization application. Four participants were then cited for violating 36 C.F.R. 261.10(k). After trial, a magistrate judge assessed each $10.00 and fined each $50.00. On appeal, the United States District Court for the Western District of North Carolina upheld the noncommercial group use regulation against the defendants' First Amendment attack, stating that the regulation was a valid time, place, and manner restriction. United States v. Johnson, lll, - - F. Supp. --, 1997 WL 797098 (W.D.N.C. Dec. 11,1997).

THE PRESENT ACTION

The present action stems from a Rainbow Family event in the Ochoco National Forest in Oregon. Pursuant to 35 C.F.R. 261.10(k), several of the Plaintiffs were cited for occupying National Forest System lands without the necessary permit. Complaint 6-12. These citations were dismissed after the United States declined to oppose the Plaintiffs' Motions to Dismiss.

On December 18, 1997, six Rainbow Family members filed the Complaint. The Plaintiffs purport to bring their action under the Federal Tort Claims Act, the First and Fourth Amendments to the United States Constitution, and the APA. Complaint 4. Count I seeks a

10

declaration that the signature requirement of the noncommercial regulation, 36 C.F.R. 251.54(h)(1)(viii), violates the First Amendment, as well as an injunction against its enforcement. Complaint 16-17. Count lI invokes 42 U.S.C. 1983. Complaint 18-19. Counts III and IV purport to state claims under Oregon common law, specifically malicious prosecution and intentional infliction of emotional distress. Complaint 20-35. The Complaint identifies as defendants Special Agent Russel Arthur, in his individual and official capacities; Special Agent John Carpenter, in his individual and official capacities; and the Forest Service. Complaint 13-15. The Complaint's Prayer for Relief is unclear, but it appears to request millions of dollars in compensatory, "special,'' and punitive damages from unspecified defendants.

The Complaint as filed implicates the interests of three groups of potential defendants: (1) the Forest Service and Defendants Carpenter and Arthur in their official capacities, see Kentucky v. Graham, 473 U.S. 159,165-67 (1985) (holding that a suit against federal officers in their official capacities is a suit against the federal government); (2) Defendants Carpenter and Arthur in their individual capacities; and (3) the United States, which should be substituted as the defendant for Defendants Carpenter and Arthur in their individual capacities as to Counts III and IV of the Complaint, the tort claims under Oregon law, see Motion to Substitute, filed herewith. Through this motion, the Official Defendants, namely groups 1 and 3 identified above, waive service of process. Defendants Carpenter and Arthur in their individual capacities do not waive service of process. [5]

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[5] If Plaintiffs choose to serve their Complaint upon Defendants Carpenter and Arthur in their individual capacities, hornbook law would require it to be dismissed upon motion. The APA provides no cause of action against a private Individual. 5 U.S.C. 701-06. Section 1983 applies to persons acting under color of state, not federal, law, Dale-Murphy v. Winston, 837

11

ARGUMENT

I. THIS COURT SHOULD DISMISS COUNT I PURSUANT TO FED. R. CIV. P. 12(b)(6).

Although Count I of the Complaint appears to limit its attack upon the noncommercial group use regulation's signature requirement, the signature requirement does not exist in isolation. Instead, it is an ancillary part of an overall authorization scheme designed to regulate the time, place, and manner of the use of the national forests for expressive activities. Accordingly, this memorandum demonstrates that the overall scheme is constitutional, then discusses the interests served by the signature requirement.

A. The noncommercial group use regulation's authorization requirement is a constitutional time, place, and manner regulation of the use of the national forests for expressive activities.

It is well established that even in a public forum such as a street, public park, or national forest, the government may regulate the time, place, and manner of expressive and

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F.2d 348, 355 (9th Cir. 1987), and the Complaint makes no allegation of state action or the presence of a state official. See Billings v. United States, 57 F.3d 797, 799 (9th Cir. 1995). The Federal Tort Claims Act's exclusivity provision provides that any suit against any United States employee in his or her individual capacity regarding acts within the scope of employment and sounding in state tort law must proceed against the United States. 28 U.S.C. 2679(b)(1). As explained in the Motion to Substitute filed herewith, this means that Counts III and IV must be dismissed as to the individual defendants. See United States v. Smith, 499 U.S. 160, 165 (1991). Plaintiffs have stated no claim under the doctrine of Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). If they were to do so, however, it is difficult to see how such a claim could survive a motion to dismiss based upon qualified immunity. The fact that a United States District Court has upheld the noncommercial group use regulation against First Amendment attack would dispose of the question of whether the individual defendants acted with a reasonable belief as to the regulation's constitutionality. See United States v. Johnson, III, --, F. Supp.--, 1997 WL797098 (W.D.N.C. Dec. 11, 1997); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Moreover, if the individual defendants are to be served in a Bivens suit, they must be served as individuals pursuant to Fed. R. Civ. P. 4(e). Dale-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987); Simpkins v District of Columbia Government, 108 F.3d 366, 369 (D.C. Cir. 1997).

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communicative activities. Ward v. Rock Against Racism, 491 U.S. 781,791 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984). Permit requirements, such as the noncommercial group use regulation at issue in this case, are common time, place, and mariner restrictions upon constitutionally protected speech. See, e.g. Shuttlesworth v. Citv of Birmingham, 394 U.S. 147, 150-51, 155-56 (1969). Courts apply "intermediate scrutiny" [6] to such regulations and uphold them if they (1) "can be justified without reference to the content of the regulated speech," (2) "are narrowly tailored to serve a significant government interest," and (3) "leave open ample alternative channels for communication of the information." Ward, 491 U.S. at 791, One World One Family Now v. City and County of Honolulu, 76 F.3d 1009, 1012 (9th Cir. 1996), cert denied, 117 S. Ct. 554 (1996). In particular, and contrary to the implication in Plaintiffs' Prayer for Relief, the Supreme Court has held specifically that time, place, and manner restrictions need not be the "least restrictive means" of achieving the government's interests to survive constitutional attack. Ward, 491 U.S. at 789-90, 800.

1. The noncommercial group use is content neutral.

The principal inquiry in determining the content neutrality of time, place, and manner restrictions is

"whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 491 U.S. at 791. A regulation that "serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id.

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[6] In United States v. Johnson, III, -- F. Supp. --, 1997 WL 797098 (W.D.N.C. Dec. 11, 1997), the court quoted a "strict scrutiny" public forum case but then applied the 3-part intermediate scrutiny test articulated above. Id. at ** 3-5.

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The lengthy discussion in the preamble to the promulgation of the noncommercial group use regulation demonstrates its neutrality. Final Rule, 60 Fed. Reg. at 45,258-93. As the preamble states, this regulation was designed to serve at least three interests: (1) protecting forest resources and facilities; (2) promoting the safety of those using the forest from physical danger or disease; and (3) allocating space among competing uses of the national forests. Each of these interests is unrelated to the expressive content of any activity that might take place pursuant to a noncommercial group use regulation. 60 Fed. Reg. at 45258, 45262-64, 45278.

Moreover, the neutrality of the regulation is apparent on its face. Hunters, campers, family picnickers, and Rainbow Family gatherers all must obtain authorization if their numbers exceed 74; they need not obtain such authorization if their numbers remain under 75. See Grossman v. City of Portland, 33 F.3d 1200,1206-07 & n.13 (9th Cir. 1994) (contrasting ordinances that ''discriminate[,] against speech" with those that apply only to "large groups" such as "fifty or more persons"). As the Johnson, III court noted, "The current regulations governing permitting of non-commercial group use do not facially discriminate between expressive and other types of activities, resulting in an 'invidious classification' as was found unconstitutional in Rainbow I." 1997 WL 797098, at *4. Rather, because the regulations "require all noncommercial groups in excess of 74 persons to apply for special use authorization, they are neutral as to the content of the [Rainbow] Family's expressive activity -- even if they have the incidental effect of requiring a large percentage of Family Gatherings to obtain permits because their numbers regularly exceed 74 persons." Id.; see also Heffron v. International Society of Krishna Consciousness, Inc., 452 U.S. 640, 648-49 (1981).

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2. The noncommercial group use regulation is narrowly tailored to serve significant government interests.

Three of the Forest Service's interests are articulated immediately above. If the noncommercial group use regulation may be upheld with respect to any one of these three interests, it its constitutional. Heffron v. International Society of Krishna Consciousness Inc., 452 U.S. 640, 650 n.13 (1981). In fact, each interest is significant. The Forest Service's interest in protecting the aesthetic beauty of the national forests and preserving the National Forest System's natural resources is analogous to the interest in preserving the beauty of the Waikiki boardwalk that the Ninth Circuit found significant in One World, or to the interest in maintaining the attractiveness of Washington, D.C.'s Mall area that all nine Supreme Court justices found significant in Clark. Clark, 468 U.S. at 296 (opinion of the Court), and 468 U.S. at 308 (Marshall, J., dissenting); One World, 76 F.3d at 1012-13. There can be little doubt as to the government's interest in protecting all users of the National Forest, including Rainbow Family members, from outbreaks of shigellosis or the dangers of unexploded ordnance. See 60 Fed. Reg. at 45263-64, 45281. Finally, the Forest Service has found that "[t]he competition for available sites in the national forests among animals, plants, and humans has increased as more demands and restrictions have been placed on use of the national forests. Requiring a special use authorization allows the agency to act as a kind of 'reservation desk' for proposed uses and activities, including noncommercial group uses." 60 Fed. Reg. 45266. Requiring advance notice allows the Forest Service to assure, for instance, that groups do not meet in places already scheduled for National Guard tank maneuvers. Id. at 45,281.

Moreover, the Forest Service did not articulate these interests in a vacuum. It based them on its decades of experience in dealing with the national forests and provided specific examples

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of instances in which large group events had threatened these interests in the past. See supra "Background" section; see also Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) (holding that courts should defer to findings of this nature), Cert. denied, 515 U.S. 1161 (1995). Two courts have agreed in the context of Rainbow Family Gatherings, finding that large unregulated groups can cause deterioration of the site, Rainbow II, 695 F. Supp. at 328, and "can have potentially serious adverse effects on public health." Johnston, III 1997 WL 797098, at *4.

Regarding narrow tailoring, the Supreme Court has warned lower courts not to second guess the government's judgment as to how to further the public interest. Clark, 468 U.S. at 299. The fit of means to ends need not be perfect. Ward, 491 U.S. at 800 ("[R]egulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative."); One World, 76 F.3d at 1014 n.9 (upholding a "valuable, but perhaps imperfect means of addressing the targeted problem") (internal quotation and citation omitted). Generally, a time, place and manner restriction is narrowly tailored if the government "could reasonably have determined that its interests would be served less effectively without [the regulation] than with it." Ward, 491 U.S. at 801; Clark, 468 U.S. at 297 (upholding a regulation because "the parks would be more exposed to harm without the sleeping prohibition than with it").

The noncommercial group use regulation is narrowly tailored. Applicants need seek authorization only 72 hours before their proposed use. 36 C.F.R. 251.54(f)(5); see NAACP Western Region v. City of Richmond, 743 F.2d 1346, 1357-58 (9th Cit. 1984) (citing with approval regulations requiring notice of similar duration). A strict 48-hour time limit governs the Forest Service's response, 36 C.F.R 251.54(f)(5), even though such a limit is not necessary to render the regulation constitutional. Outdoor Systems, lnc. v. City of Mesa, 997 F.2d 604, 614

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(9th Cir. 1993). The Forest Service may deny an application only on the basis of several carefully and specifically defined reasons, 36 C.F.R 251.54(h)(1)(i-viii), thus distinguishing this case from those in which a permitting authority is given unfettered discretion as to whether to grant a permit. Cf. Gaudiva Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059, 1062-65 (9th Cir. 1991), cert. denied, 504 U.S. 914 (1992). If an alternative place or time is available, the Service must offer this alternative. 36 C.F.R 251.54(h)(2). Denial of an application and revocation of a previously issued permit are immediately appealable under the APA. 36 C.F.R. 251.54(h)(2), 251.60(a)(1)(ii). In short, the noncommercial group use regulation represents the effort of an agency that has gone the extra mile in drafting as narrow a time, place, and manner restriction as it could, given the importance of the interests at stake.

3. The noncommercial group use regulation leaves open ample alternative channels for expression.

The authorization requirement leaves ample avenues open for communication to the Rainbow Family and all others seeking to use the national forests. In fact, the Ninth Circuit has upheld other ordinances imposing greater restrictions on the method and manner of expression. The One World court, for instance, upheld a flat ban on T-shirt sales on the public streets of Waikiki, 76 F.3d at 1012-15, and in Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515 U.S. 1161 (1995), the court upheld a nearly blanket restriction on automated telephone solicitations. In contrast to these cases, the noncommercial group use regulation prohibits no medium or manner of speech or expression. The Rainbow Family, as well as all other groups, may gather for communication and expression just as they did before, so long as they obtain the necessary permit and allow the Forest Service to carry out the congressional command to protect and preserve the national forests. Nothing in this regulation addresses any group's ability to

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gather on private property. And if a particular time, place, or manner is inappropriate for a proposed use, the Forest Service must provide an alternative if one is available. 36 C.F.R. 251.54(h)(2). In short, the narrow nature of the regulation's restrictions demonstrates that ample alternative channels of communication remain open.

B. The signature requirement is a necessary and ancillary part of the noncommercial group use regulation.

The signature requirement plays an important role in the overall framework of the noncommercial group use regulation by serving at least two interests. First, "[b]y signing a special use authorization on behalf of the group, the agent or representative gives the authorization legal effect and subjects the group to the authorization's terns and conditions." Final Rule, 60 Fed. Reg. at 45,286. The Forest Service's attempts to protect the governmental interests articulated above have been frustrated in the past in part by the Rainbow Family's diffuse organizational structure. ''[I]nformal agreements made with one individual or subgroup have not been respected by other group members. It has thus been difficult for the agency to obtain commitments from the Rainbow Family on issues pertaining to the Gatherings. Id. at 45,267. The signature requirement resolves this difficulty. By signing the permit, the agent or representative binds the group as a whole to the terms and conditions of the permit. Id. ("The special use authorization process will enhance the agency's ability to achieve its objectives by allowing the agency to obtain commitments from the Rainbow Family that apply to the group as a whole").

The second interest served by the signature requirement is deterring intentional false statements to the Forest Service which might cause an erroneous denial or grant of an authorization application. An applicant for a noncommercial group use regulation must submit

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basic information sufficient to allow the Forest Service to make an informed time, place, and manner decision. 36 C.F.R. 251.54(e)(1), 251.54(e)(2)(i)(A-E). 18 U.S.C. 1001(a) criminalizes the making of any ''materially false, fictitious, or fraudulent statement or representation" as to "any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States." While a person may violate this statute without signing a document, a signature is often critical evidence as to the identity of the person who made the statement. Compare, e.g., United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992) (upholding conviction for false statement based on handwriting analysis of a signature) with United States v. Worthington, 822 F.2d 315, 319 (2d Cir. 1987) (discussing the government's reliance on circumstantial evidence made necessary by the lack of a signature on the document including the false statement) cert. denied, 484 U.S. 944 (1987). Thus, the signature requirement helps assure that the Forest Service's permitting decision is made with accurate information.

Given the necessary and ancillary role of the signature requirement in the overall noncommercial group use regulation, it is not clear whether this court need analyze it separately under time, place, and manner law. See Bland v. Fessler, 88 F.3d 729, 733 (9th Cir. 1996) (analyzing separately different portions of an overall regulatory scheme), cert denied. 117 S. Ct. 513 (1996). If so, the signature requirement is constitutional. It is content neutral because it applies to all groups evenly and was not adopted because of disagreement with any particular message or view. It serves the significant government interests in obtaining prima facie evidence of the authority of the agent or representative to act on behalf of the group, authenticating the application and permit, and deterring misstatements, and a signature is the most traditional of all methods to achieve these ends. Finally, the requirement does not foreclose other means of

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communication or expression; indeed, it is designed to facilitate such expression by allowing it to take place in an appropriate time, place, and manner. [7]

II. THIS COURT SHOULD DISMISS COUNTS II, III, AND IV UNDER FED. Rs. CIV. P. 12(b)(1) AND 12(b)(6).

A. Counts II-IV all depend on the Plaintiffs' erroneous premise that the signature requirement is unconstitutional. Rejection of this premise mandates dismissal of all three counts for failure to state a Claim.

Counts II, III, and IV allege "violation of civil rights," "malicious prosecution," and "intentional infliction of emotional distress." Each of these claims depends on its face upon the assertion that the noncommercial group use permit is unconstitutional. See Complaint 15(a) (referring to "unconstitutional use of law [e]nforcement presence, activity, and intrusion"); id. 21 (alleging that "Defendants did without lawful authority" cite Plaintiffs), id. 30 (alleging that the issuance of a citation is "behavior outside that tolerated by the norms of society"). As section I of this memorandum has demonstrated, neither the noncommercial group use regulation nor the ancillary signature requirement is unconstitutional. Since Counts Il-IV all depend upon Plaintiffs' erroneous assertion that some portion of the regulation is unconstitutional, their entire Complaint must be dismissed for failure to state a claim.

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[7] Although not mentioned in the published opinion, the magistrate judge in the Johnson, III litigation specifically addressed and rejected a Rainbow Family member's defense to a citation resting on the alleged unconstitutionality of the signature requirement. See Attachment D (copies of the relevant portion of the transcript).

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B. Even if Plaintiffs are correct that the noncommercial use regulation is unconstitutional, Counts II, III, and IV suffer from fatal jurisdictional and jurisprudential flaws requiring dismissal under Rule 12(b).

1. This Court should dismiss Count II because the Complaint makes no allegation of action under color of state law, because neither the United States nor the Forest Service is a "person" within the meaning of section 1983, and because section 1983 does not waive the federal government's sovereign immunity from suit.

Section 1983 provides, "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable" for such deprivation. 42 U.S.C. 1983 (emphasis added). The italicized terms demonstrate section 1983 applies only to (i) a person who (ii) acts under color of state law. Both of these elements are missing in this case.

The absence of the second element is the most glaring. The Complaint is devoid of any mention of a state official, from Oregon or any other state. This omission compels the conclusion that the Complaint fails to state a claim as to the Forest Service or against Defendants Arthur and Carpenter in their official capacities. Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981) ("[P]laintiff] has no cause of action against the IRS under section 1983 because the IRS is a federal agency and its agents performed no acts under color of state law."), cert. denied, 454 U.S. 1145 (1982); Wheeldin v. Wheeler, 373 U.S. 647, 650 n.2 (1963) (holding that a plaintiff could not invoke section 1983 to sue a congressional staffer issuing a subpoena because the staffer "was not acting 'under color' of state or territorial law") (citations omitted); Kentucky v.Graham, 473 U.S. 159, 165-67 (1985) (holding that a suit against federal officers in their official capacity is a suit against the federal government); Cannon v. University of Chicago, 441 U.S.

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677, 700 n.27 (1979) ("But 1983 is assuredly not available for suits against the United States . . .").

Moreover, neither Defendants Carpenter and Arthur in their official capacities nor the Forest Service is a ''person" within the meaning of section 1983. Ngiraingas v. Sanchez, 495 U.S. 182 (1990) (holding that Guam was not a "person" within the meaning of section 1983 because it was a federal entity); Will v. Michigan Department of State Police, 491 U.S. 58 (1989) (holding that neither a state nor its officials acting in their official capacity are "persons" under section 1983). Under this reasoning, neither federal officers in their official capacities nor a federal administrative agency like the Forest Service is a person within the meaning of section 1983. Nor does section 1983 waive the Forest Service's sovereign immunity frown suit. See FDIC v. Meyer, 510 U.S. 471, 484 (1994); United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Sherwood, 312 U.S. 584, 586 (1941). Because no waiver of sovereign immunity exists under section 1983, the Official Defendants may not be sued under this statute.

2.This Court should dismiss Counts III and IV because they fall within the "Due Care" exception to the FTCA, because Plaintiffs have failed to exhaust, and because the Complaint fails to allege the Oregon state law elements of malicious prosecution and intentional infliction of emotional distress.

The Federal Tort Claims Act [hereinafter "FTCA"] provides the exclusive remedy for any claims, like Counts III and IV of the Complaint, alleging injury from state law torts committed by a federal employee within the scope of his or her official duties. 28 U.S.C. 2679(b)(1). When a complaint alleges that federal employees have committed torts while acting within the scope of their employment, the Attorney General or her designee may so certify, and the United States may move to substitute itself as the defendant in place of the individual federal employees. 28 U.S.C. 2679(d)(1). If the FTCA applies, its exclusivity provision shrouds the individual

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federal employees in absolute protection from liability. United States v. Smith, 499 U.S. 160, 164-65 (1991). The United States is filing a certification and motion to substitute itself in place of Defendants Arthur and Carpenter as to Counts III and IV contemporaneously with this motion.

Once the United States is substituted as the party defendant, the question becomes whether the suit may proceed against the United States. 28 U.S.C. 2680 lists several circumstances in which the United States is not liable for the torts of its employees. "When a claim falls within a statutory exception to the FTCA's waiver of sovereign immunity, the court is without subject matter jurisdiction to hear the case." Mundy v. United States, 983 F.2d 950, 952 (9th Cir. 1993); see also FDIC, 510 U.S. at 480-83. In that event, the plaintiff may not proceed against either the United States or the federal employees as individuals. Gutierrez de Martinez v. Lamagno, 115 S. Ct. 2227, 2233 (1995); Smith, 499 U.S. at 164-65.

In addition to the exceptions listed in section 2680, there are at least two other limits to the liability of the United States under the FTCA. First, 28 U.S.C. 2675(a) requires a would-be FTCA plaintiff to exhaust administrative remedies before filing suit. Second, since the FTCA makes the United States liable in tort only "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. 2674, a plaintiff must state a claim under state tort law or suffer dismissal under Rule 12(b)(6).

In this case, the Complaint may not proceed against the United States for three reasons. First, because the Plaintiffs are using a state law tort suit to challenge the legality of the noncommercial group use regulation, their suit is barred by the "Due Care" exception appearing in the first clause of 28 U.S.C. 2680(a). Second, the Complaint includes no allegation that the Plaintiffs have exhausted administrative remedies, and in fact they have not done so. Third, the

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Complaint fails to allege facts sufficient to state claims of malicious prosecution or intentional infliction of emotional distress under Oregon law. [8]

a. This Court lacks subject matter jurisdiction under the "Due Care" exception to the FTCA. ..

28 U.S.C. 2680(a) includes two separate clauses providing separate exceptions to the FTCA's waiver of sovereign immunity. The second clause is the frequently litigated "Discretionary Function" exception. [9] The first clause, the subject of comparatively few reported cases, provides that the United States shall not be liable for "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid. 28 U.S.C. 2680(a). This "Due Care" exception to the FTCA "bars tests by tort action of the legality of statutes and regulations. Dalehite v. United States, 346 U.S. 15, 33 (1953). As one court has succinctly stated:

By enacting the ["Due Care" exception], the Congress refused the consent of the United States to be sued for damages which may have been sustained as a result of the action of its agents or employees in the execution of a regulation, whether valid or invalid. Thus, in determining whether a claim is within the jurisdiction of

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[8] Moreover, Counts III and IV must still be dismissed as to the Forest Service even if suit lies against the United States. "Where the FTCA governs, its remedy is exclusive and a government agency may not be sued in its own name." Meyer v. Fidelity Savings, 944 F.2d 562, 566 (9th Cir. 1991), rev'd in other part sub nom FDIC v. Meyer, 510 U.S. 471 (1994). "The FTCA . . . authorizes suite only against the United States itself, not its individual agencies." Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir. 1983).

[9] The discretionary function exception is applicable to this case to the extent that Plaintiffs claim that Forest Service officials violated some law by choosing to cite them instead of other participants in the Ochoco Gathering. See Complaint 9 (alleging a "singling. . .out" of Plaintiff Johnson), 24 (alleging that Defendants "singled out" Plaintiffs), 25 ("specifically singled out"), 26 ("specifically singled out"), 27 ("specifically singled out"). An officer's choice as to which of 75 or more persons violating a public safety ordinance should receive a citation is an exercise in prosecutorial discretion due great deference from the Judiciary. See Heckler v. Chaney, 470 U.S. 821, 832 (1985).

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the court under the act, the sole question goes to the existence of the regulation and not to its legality or illegality.

Smith v. United States, 101 F. Supp. 87 (D. Colo. 1951) (emphasis in original), aff'd, 196 F.2d 222 (10th cir. 1952); see also Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1160-61 & n.5 (1st Cir. 1987) (holding that the FBI was not liable for destroying a fake heat generator in the course of a fraud investigation conducted with due care), cert. denied, 486 U.S. 1022 (1988); Dupree v. United States, 247 F.2d 819, 824 (3d Cir. 1957); Powell v. United States, 233 F.2d 851, 854 (10th Cir. 1956); Goodwill Industries of El Paso v. United States, 218 F.2d 270, 272 (5th Cir. 1954). In general, a federal employee acts with due care if he follows the regulation he is charged with enforcing. Dupree, 247 F.2d at 824 n.23; Hatahley v. United States, 351 U.S. 173, 184 (1956) (holding that the government's failure to give notice pursuant to a regulation precluded finding of due care); Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1261-62 (2d Cir. 1975) (holding that an agency does not act in execution of regulations when it fails to follow them, and "another way of saying the same thing" is that such an agency was not exercising due care in its execution of the regulations).

In determining the applicability of the exceptions to the FTCA's limited waiver of sovereign immunity, a court must look, "not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts.'' Lambertson v. United States, 528 F. 2d 441 (2d Cir.), cert. denied, 426 U.S. 921 (1976). "[T]o permit plaintiff to recover by 'dressing up the substance' of [one claim] in the 'garments' of [another] would be to judicially admit at the back door that which has been legislatively turned away at the front door." Id. At 445 (alterations added, internal quotation and citation omitted). "The question here presented is not . . . whether [plaintiff] has asserted a [particular tort], but whether Congress intended to bar

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this type of suit, under whatever legal theory brought, by its exclusion from the waiver of governmental immunity in the Tort Claims Act ...." Klein v. United States, 268 F.2d 63 (2d Cir. 1959); see also Coffey v. United States, 387 F. Supp. 539, 540 (D. Conn. 1975) (A plaintiff may not avoid an exception "merely by artistry of his pleadings.").

The "substance" of Counts III and IV is that Forest Service employees Arthur and Carpenter engaged in malicious prosecution and caused severe emotional distress by citing plaintiffs for a violation of the noncommercial Group use regulation, 36 C.F.R. 251.50(a), 261.10(k). See Complaint 21 (claiming that Plaintiffs were cited "without proper lawful authority"); id. 30 (alleging that "[c]iting a citizen to appear in a Federal Courthouse under threat of criminal penalties is behavior outside that tolerated by the norms of society"). Conspicuously absent from the Complaint is any allegation that (i) Plaintiffs and their compatriots were not in fact violating the regulation, or (ii) that Defendants did not exercise due care in issuing the citations. [10] According to their own legal theories, Plaintiffs are attempting to obtain damages from the Defendants because of enforcement of the noncommercial group use regulation. Under the Due Care exception and Smith v. United States, quoted supra., the only question is the existence of the noncommercial group use ordinance, something Plaintiffs concede by challenging it under the First Amendment. Counts III and IV are thus on all fours with the allegations in Willis v. United States, 600 F. Supp. 1407,1414 (N.D. Ill. 1985), in which the court commented, "The gravamen of plaintiff's 'conversion' complaint is not that the D.E.A.

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[10] On this subject, Defendants are unaware of any duty under state or federal law to avoid issuing a citation to one violating a regulation because she is in the presence of her two dogs, see Complaint 33, or because he or she has children, see Complaint 31-32, 34-35. See United States v. Second National Bank of North Miami, 502 F.2d 535, 549 (5th Cir. 1974) (holding that the common law tort rule requiring a duty to exist before a defendant may be found liable applies in the FTCA context), cert. denied, 421 U.S. 912 (1975).

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agents took his property without statutory authority, but rather that the statutes and regulations which authorized the seizure are unconstitutional on their face or as applied to him. The FTCA is an improper vehicle for such a complaint."

b. This Court lacks subject matter jurisdiction because Plaintiffs have failed to exhaust administrative remedies.

28 U.S.C. 2675(a) provides that a plaintiff may not bring an FTCA action "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section." As the Ninth Circuit noted, "'[t]he statutory procedure is clear.' A tort claimant may not commence proceedings in court against the United States without first filing her claim with an appropriate federal agency and either receiving a conclusive denial of the claim from the agency or waiting for six months to elapse without a final disposition of the claim being made." Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992) (quoting Caton v. United States, 495 F.2d 635, 638 (9th Cir. 1974)). "The administrative claim requirements of Section 2675(a) are jurisdictional in nature, and thus must be strictly adhered to. . . . Section 2675(a) establishes explicit prerequisites to the filing of suit against the Government in district court. It admits of no exceptions." Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995) (internal quotation marks, alterations, and citations omitted).

In this case, Plaintiffs attempted to present their claim to the Forest Service on December 18, 1997. On that same day, they filed suit. See Attachment E, Declaration of Mary Lee Maloney, and attachments. In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court

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held that federal courts lacked subject matter jurisdiction over FTCA suits filed after a plaintiff had presented a claim to an agency but before either the agency had issued a final denial or six months had run. Accordingly, Plaintiffs' suit is premature, and this Court lacks subject matter jurisdiction over it. In an identical case, one court had the following to say:

It is an understatement to say that [the plaintiff] has failed to comply with the jurisdictional prerequisites of filing suit under the FTCA. Not only did he commence his action without first receiving a final denial of his claim and without allowing six months to elapse, the filing of this action on the same date as the administrative claim indicates that [the plaintiff] had no intention of submitting the claim to the administrative process. These actions fly in the face of one of Congress' central objectives in enaction 2675(a): "to encourage administrative settlement of claims against the United States and thereby to prevent an unnecessary burdening of the courts."

Hallet v. United States Department of Navy, 850 F. Supp. 874, 882 (D. Nev. 1994) (quoting Jerves, 966 F.2d at 520)).[11]

c. This Court should dismiss Counts III and IV because Plaintiffs have failed to state claims under Oregon tort law.

Count III of the Complaint is labeled "Malicious Prosecution." "In order to recover for this tort, the burden is upon the plaintiff to prove each of the following elements: (1) the institution or continuation of the original criminal proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in the plaintiffs favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceeding; and (6) injury or damages because of the prosecutions." Rose v. Whitbeck, 562 P.2d 188, 190 (Or. 1977), modified in other part, 564

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[11] The Forest Service responded to Plaintiffs' administrative claim by letter on December 24, 1997. Declaration of Mary Lee Maloney, attachments. Although the content of this letter is irrelevant, since Plaintiffs filed suit a week before receiving it, we note that this correspondence was not a final denial because "[n]owhere in the letter does the [Forest Service] declare that it has reached a final conclusion regarding [Plaintiffs'] claims ... nor does it inform [Plaintiffs] that [their] next step ... is to file suit in district court." Jerves, 966 F.2d at 520.

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P.2d 671 (Or. 1977); Rogers v. Hill, 576 P.2d 328, 331-32 (Or. 1978). Plaintiffs' Complaint fails to allege the fifth element listed above, "lack of probable cause for the proceeding." There is nothing in the Complaint, no matter how liberally construed, that could be read to include the allegation that the Forest Service lacked probable cause to believe that Plaintiffs were violating the noncommercial group use regulation. The majority of paragraphs 20-27 consist of Plaintiffs' aspersions on the motives of the Forest Service officers who issued the citations, these allegations at most go to the malice element of the malicious prosecution tort, although we doubt that these allegations satisfy this element. These statements are silent regarding probable cause. Accordingly, Plaintiffs' claim must be dismissed under Rule 12(b)(6).

Count IV of the Complaint is labeled "Intentional Infliction of Emotional Distress." Under Oregon law, "'To state a claim for intentional infliction of severe emotional distress, a plaintiff must plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendants acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.'" McGanty v. Staudenraus, 901 P.2d 841, 849 (Or. 1995) (In Banc) (quoting Sheets v. Knight, 779 P.2d 1000 (1989)). Plaintiffs' Complaint fails to allege the first and third elements, particularly the first. "[T]o satisfy the initial element of this tort, a plaintiff must allege that the defendant acted with the purpose of inflicting severe emotional or mental distress on the plaintiff. 'It is not enough that [the defendant] intentionally acted in a way that causes such distress.'" McGanty, 901 P.2d at 849 (quoting Parton v. J.C. Penney Co., 719 P.2d 854 (Or. 1986)). In this case, Plaintiffs allege only that Defendants "knowingly" issued a citation "for purposes intended to disrupt their First Amendment activities and not to achieve otherwise legitimate governmental ends." Complaint 29. Nowhere do Plaintiffs allege that any

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Defendant acted with the intent to inflict severe emotional distress. In addition, issuing a citation pursuant to a regulation, even if the regulation is subsequently ruled invalid, hardly constitutes an extraordinary transgression of the bounds of socially tolerable conduct. Accordingly, their claim must be dismissed under Rule 12(b)(6).

CONCLUSION

For the reasons stated above, this Court should dismiss Count I of the Complaint under Rule 12(b)(6) arid Counts II-IV under Rules 12(b)(1) and 12(b)(6).

Respectfully submitted,

Of Counsel:

ELLEN R. HORNSTEIN
United States Department of Agriculture
Office of the General Counsel
Natural Resources Division
Room 4621 South
1400 Independence Avenue, SW
Washington, DC 20250

DATED: 2/ 20 / 98

Attorneys for the Official Defendants

FRANK HUNGER
Assistant Attorney General

KRISTINE OLSON
United States Attorney

(signed) D. James Greiner
DENNIS G. LINDER
THOMAS W. MILLET
D. JAMES GREINER (VA Bar # 40774)
United States Department of Justice
ph: (202) 616-0673, fx: (202) 616-8202

Regular Mail:
DateCivil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044

Federal Express:
Civil Division, Federal Programs Branch
901 E Street, N.W. Rm. 935
Washington, D.C. 20004

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