BRIAN MICHAELS
259 East Fifth Avenue
Eugene, Or 97401
Phone (541) 687-0578
Fax (541) 686-2137

Attorney For Plaintiffs

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

ALEXIS BLACK, BRIAN MICHAELS,
BARRY ADAMS CARLA NEWBRE,
BRUCE (John) JOHNSON, and
SUSAN BERNSTEIN,

Plaintiffs

v

John RUSSEL ARTHUR, in his official capacity as Special Agent Law Enforcement Officer of the Forest Service of the United States Department of Agriculture; JOHN CARPENTER, in his offlcial capacity as Special Agent Law Enforcement Officer of the Forest Service of the United States Department of Agriculture; FOREST SERVICE of the United States Department of Agriculture,

Defendants.

PLAINTIFFS MICHAELS AND
ADAMS' RESPONSE TO
DEFENDANTS' MOTION TO
DISMISS

Plaintiffs Michaels and Adams herein appear in Response to Defendants' Motion to Dismiss; although separately from the remaining Four Plaintiffs, Adams and Michaels herein join in the Response of the other Four Plaintiffs.

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TABLE OF CONTENTS
TABLE OF AUTHORITIES3
CASES3
OTHER AUTHORITIES6
I.LEGAL STANDARD FOR MOTION TO DISMISS FRCP 12(B)(6) FAILURE TO STATE A CLAIM7
II.CONVERTING MOTION TO DISMISS TO MOTION FOR SUMMARY JUDGMENT8
III.INTRODUCTION12
IV.RESPONSE TO MOTIONS II, III, AND IV.23
A.ANALYSIS26
1.Fully Protected Speech26
2.Government Restrictlon on Speech27
B.CONTENT NEUTRAL28
1.Content Biased28
2.Unbridled Discretion29
3.As Applied30
C.SIGNIFICANT STATE INTEREST31
D.ALTERNATIVE AVENUES OF COMMUNICATION32
E.NARROWLY TAILORED34
V.INDEX OF ATTACHMENTS39

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TABLE OF AUTHORITIES
CASES
Bay Area Peace Navy, 914 F2d 1224 (9th Circuit 1990)33
Board Of Trustees of State University Of New York V FOX, 492 US 469, 109 S Ct. 3028, 106 L Ed2d 388 (1989)25
Carey v. Brown 447 US 455, 100 S Ct 2286, 65 L Ed2d 263 (1980)27 & 35
Carl A. Hass Auto. Imports,, Inc. v Lola Cars Ltd. ND. III. 1996, 933 F. Supp. 3538
Carter v. Stanton,, 405 US 669, 92 S Ct 1232, 31 L Ed2d 569 (1972)9
City of Cincinnati v Discovery Network, 507 US 410, 113 S Ct 1505 123 L Ed2d 99 (1993)35 & 37
City of Laude v Gilleo, 512 US 43, 113 S Ct 2038, 129 L Ed2d 36 (1994)12 & 29
Clark V Community for Creative Non-Violence, 468 US 288, 104 S Ct 3065 (1984)18
Cohen v Koenig, 25 F3d 1168 (2d Cir. 1994)7
Conley V Gibson, 355 US 41, US Ct 99, 2 L Ed2d 80 (1957)7
Cortec Industries, Inc.. V Sum Holding L. P. . C.A.. 2 (NY) 1991, 949 F2d 42, Cert. denied 112 S Ct 1561, 503 US 960, 118 L Ed2d, 2089
Duncan V Santiniello, D.Mass 1995, 900 F.Supp 5478
Foti V Menlo Park, (9th Cir App NO 97-16061, at 4160-4161, Decided May 1, 1998)12, 13, 27, 28, 29, 30 & 37

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Frazee v Illinois Department of Employment Security, 489 US 829 (1989)32 & 33
Frisby v. Schultz. 487 US 474, 108 S Ct 2495, 101 L Ed2d 420(1988)13, 14, 27 & 38
Gaudia Vaishnava Society v City & County of San Francisco, 952 F2d 1059, (9th Circuit 1990)30
Grillo v John Alden Life Ins. Co., D.Minn.. 1996, 939 F.Supp 6859
Hague v Committee for Industrial Organization. 307 US 496, 59 S Ct 954, 83 L Ed2d 420 (1988)14 & 26
Hurley v Irish-American Gay, Lesbian & Bisexual Group of Boston,515 US 557, 115 S Ct 2338, 132 L Ed2d 487 (1995)13
International Society for Krishna Consciousness, Inc. v Lee, 505US 672, 101 S Ct 2559, 69L Ed2d 298(1992)27
Judical Watch. Inc v Clinton. 880 F Supp. 1, 7 (D.DC l995)7
Lennon v Screen Creations, 939 F.Supp 287 (SD NY 1996)7
Locicero v Leslie, D.Mass 1996, 948 F.Supp 1010
Marilyn Miglin,, Inc v Gottex Ind..., Inc., SD NY 1992, 790 F. Supp. 124511
Maldonado-Coronel] v McElroy, SD NY 1996, 943 F. Supp. 3768
Members of the City Council Of Los Angeles v Taxpayers of Vincent, 466 US 799, 104 S Ct 2118, 80 LEd 2d 772 (1984)13, 19, 28,32, 38
Miree v DeKalb County, Georgia 433 U.S. 25, 97 S Ct 2490, 53 L Ed2d 557 (1977)7

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One World, One Family now v City of honolulu, 76 F3d 1009, ( 9th Circuit 1996 )37 & 38
Perry v Los Angeles Pol ice Department, . 121 F3d 1365 (9th Circuit 1997)25 & 27
Project 80's. Inc. v City of Pocatello. 942 F2d 635 (9th Circuit, 1991)25 & 37
Shelly v Trafalgar House Public Ltd. Co., D.Puerto Rlco 1999 918 F.Supp 515, recon denied 973 F.Supp 739
Strother v South Cal, Permenante Medical Group, 79 F3d 859 (9th Cir 1996)7
United States v Grace, 461 US 171, 103 5 Ct 1702 (1983)26
United States v Kokinda,. 497 US 720, 110 S Ct 3115, 111 L Ed2d 571 1990)26
United States v Rainbow Family, 695 F.Supp 294, (ED Texas, 1988)14, 25 & 26
Village of Schaumberg v Citizens for a Better Environment, 444 US 620, 100 S Ct 826, 63 L Ed2d 73 (1980)32, 35, 37
Ward v Rock Against Racism, 491 US 781, 109 5 Ct 2746, 105 L Ed 2d 661 (1989)16, 18, 19, 25, 28
Whitehead v AM Intern, Inc., ND Ill 1994, 860 F. Supp 128010
Williams v Gorton, 529 F 2d 668, (9th cir 1976)8
Young Womanís Christian Assín of Natíl Capitol Area, Inc v Allstate Ins. Co. of Canada, DDC 19094, 158 FRD 610

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OTHER AUTHORITIES
Rule 12 (b) (6)7 & 9
Rule 569
36 Cfr 251.54 (h) (1)27, 31, 34 & 36
36Cfr 251.54 (h) (2)10, 23, 29 & 34

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I. LEGAL STANDARD FOR MOTION TO DISMISS FRCP 12(b)(6)
FAILURE TO STATE A CLAIM

It is well settled that a Motion to Dismiss shall be reviewed by the District Court as a matter of law and not upon questions of fact. "Plaintiff factual allegations must be presumed true end liberally construed in favor of plaintiffs when reviewing the adequacy of a complaint for purposes of a Rule '2(b) motion." Judicial Watch, Inc. v Clinton, 880 F Supp. 1,7 (D.DC 1995) (citing Miree v DeRalb County, Georgia, 433 U.S. 25,27 n.2, 97 S Ct 2490,2492 n.2, 53 L Ed2d 557 (1977) ) . "In judging the legal sufflciency of the complaint against a Rule 12(b)(6) challenge, the Court must accept all factual allegations in the complaint as true. Cohen v Koenig, 25 F3d 1168, 1171-72 (2d Cir. 1994). The Court may only dismiss the action where 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v Gibson, 355 US 41, 45-46, 78 US Ct 99, 101-02, 2 L Ed2d 80 (1957)." Lennon v. Screen Creations, 939 F.Supp 287 (SD NY 1996). (Emphasis added. Citations and Quotation in original.) "'Complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of claim which would entitle plaintiff to relief.. Strother v South. Cal. Permenante Medical Group, 79 F 3d 859 (9th Cir 1996) (Emphasis added.) 'Beyond doubt, is therefore the Standard this Court should apply in reviewing Defendants' Motion to Dismiss.

7


Additionally, Courts have held it not to be a Court's function on Motion to Dismiss to "weigh evidence which might be presented at trial, but merely to determine whether complaint itself is legally sufficient.. Duncan v Santaniello, D.Mass. 1995, 900 F.Supp. 547. For these reasons, and because DiomiSoal is an extremely harsh remedy, Courts view the granting of such Motions with uniform disfavor. (Ordinarily a motion to dismiss should be disfavored, and doubts should be resolved in favor of the pleader." Williams v Gorton, 529 F 2d 668,672 (9th Cir 1976).

LEGAL THEORY

Similarly, it is not necessary that the Complaint allege the correct legal theory upon which relief may be obtained. "In reviewing pleadings on motion to dismiss for failure to state a claim, court looks to four corners of complaint and evaluates legal viability of allegations contained in complaint." Maldonado-Coronel v McElroy, SD NY 1996, 943 F.Supp 376. 'Plaintiff can plead right legal theory, wrong legal theory, or even no legal theory at all without impacting on complaint's sufficiency." Carl A. Hass Auto, Imports, Inc. v Lola Care Ltd., ND. 111.1996,, 933 F Supp. 353.

II. CONVERTING MOTION TO DISMISS TO MOTION FOR SUMMARY JUDGMENT
(Allowing For Further Discovery)

The standard for whether a Motion to Dismiss should be converted to Summary Judgment Motion is whether or not the Motion to Dismiss was based at all or in part on supporting documents and

8


whether or not the District Court actually took cognizance of them. (see Grillo v John Alden Life Ins, Co., D.Minn.1996 939 F Supp. 685. and Shelly v Trafalgar House Public Ltd. Co., D.Puerto Rico 1996, 918 F Supp. 515, recon denied 973 F Supp. 73.) Courts have also adopted the rule that once Court has decided to accept and not exclude material outside the four corners of the complaint it MUST convert the Motion to Dismiss to one for Summary Judgment. See Carter v Stanton, 405 US 669,671, 92 S Ct 1232,1234, 31 L Ed2d 569 (1972), "[Where] matters outside the pleadings were presented And not excluded by the court, [t]he court was therefore required by Rule 12(b) to treat the motion Ah one for summary Judgment, and to dispose of it as provided in Rule 56." ("Rule that consideration of extraneous material causes a Motion to Dismiss to be translated into a Motion for Summary Judgment la mandatory." Cortec Industries. Inc. v Sum Holding L.P., C.A.2 (NY)1991, 949 F2d 42, cert. denied 112 S Ct 1561, 503 U.S. 960, 118 L Ed2d 208.)

It is certain from Defendants, extraneous material both added to the Motion and contained therein under the guise of 'Preliminary Statement' , that the government causes this court to be cognizant of and considerate of 'facts outside the four corners of the Complaint. While the government's 'Preliminary Statement' is not an affidavit per se, it is a sworn statement by the United States Attorney and intended to be received with the weight of truth. As can be seen from Plaintiffs' Responsive Preliminary statement, there is a great deal of contested issues of material fact.

The government's Attachments, while public record, are

9


intended not as addressing any of the allegations in the Complaint on point, as is required, but rather add material for this Court to consider by collaterally attacking the credibility of the Complaint. Whatever it is that happened in Florida is of no relevant consequence to the allegations of these Plaintiffs in this Complaint. A history of the litigation over 36 CFR regulations is impertinent, unless it demonstrates a concise Res Judicata, or other fatal flaw central to the claim, requiring dismissal at this stage by eliminating the need for any further development of 'facts That is not the case in any of the extraneous material so preaented, (See Whitehead v AM Intern, Inc., ND Ill 1994, 860 F Supp. 1280 (consideration of EEOC material accusations in subsequent Title VII Motion to Dismiss.); Locicero v Leslie, D.Mass 1996, 948 F Supp. 10 (Considered Transcript of former proceeding to determine legal malpractice in that proceeding.); Young Woman's Christian Ass'n of Net. CAD. Area, Inc. v All State Ins. Co. of Canada, DDC 1994, 158 FRD 6, (Consideration of Insurance Policies attached to Motion to Dismiss because they were explicitly referenced in Complaint AND were central to the claim.)

The government's reliance upon facts not dispositive or central to the claims and otherwise so irrelevant may only be viewed as attacking the credibility of the Complaint and may not proceed as a Motion to Dismiss. Their Motion must be converted to a Motion for Summary Judgment and the parties allowed to present supporting material and expand discovery. "When party submits affidavits or other evidence in connection with Motion to Dismiss, court has two

10


options' it may exclude additional material and decide motion on basis of complaint alone, or it may convert motion to warrant for summary judgment and give all parties opportunities to present supporting material."Marilyn Miglin, Inc. v Gottex Ind., SD,SD NY 1992, 790 F Supp. 1245.

Plaintiffs maintain the manner in which the government presented extraneous materials, with full knowledge of the weight allegations made by the United States Government will carry in this or any Court, and that these allegations are not so central as to be dispositive, but rather are presented to be persuasive, and are in deep conflict with Plaintiffs' statement of those facts, Defendants, Motion To Dismiss is required as a matter of law to be denied or converted into a Motion for Summary Judgment and the parties allowed to expand discovery in order to present supporting materials.

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III. INTRODUCTION

Notwithstanding the generalized perception of neutrality signature requirement may otherwise hold within a permit processing scheme, the underlying premise of the First Amendment is designed to promote freedom - freedom of expression, freedom of thought, freedom of religion - the measure of which is to what extent the boundaries of thoughts, ideas and actions are permitted to prosper beyond that of any singular governing expectation or perception. An examination of the facto underlying this cause will operate to include within the boundaries of permissible First Amendment activlty that which prior to examination was otherwise presumed left outside -that the people can peaceably assemble in large numbers and for long durations with the absence of any formalized organizational structure and Still satisfy all legitimate government interests And in this case, the Court will find that Defendant United States Forest Service has written annual reports stating just that point.

In City of Ladue v. Gilleo, 512 US 43,60, 113 S Ct 2038, 129 L Ed2d 36 (1994), Justice O 'Conner noted (as adopted in Foti v Menlo Park, (9th Clr App No 97-16061, at 4160-4161, Decided May 1, 1998),

"[I]t is quite true that regulations are ocasionally struck down because of their content-based nature, even though common sense may suggest that they are entirely reasonable. The content distinctions present in this ordinance may, to some, be a good example o f this . But though our rule has flaws, it has substantial merit as well. . . . [I]t reflects important insights into the meaning of the free speech principle -- for Instance,

12


that content loaned speech restrictions are especially likely to be improper attempts to value some forms of speech being used by the government to distort public debate.

"The reasonableness, harmlessness, or worthiness of an idea is irrelevant."

Group of Boston, 515 US 557,579 (1995) cf Foti, Supra, At 4161.

There is no quarrel with the Government's stated legitimate interests in maintaining the Forests. The difference of opinion we face is whether or not the means employed to sati sfy those interests are sufficiently content neutral and narrowly tailored and allow ample alternative avenues for all kinds of speech and other protected freedoms or whether they operate to knowingly single out certain types of speech and thought from allowable participation under the false premise of being unable to satisfy legitimate government interests. "A statute is narrowly tailored if it targets and eliminates no more than the exact source of 'evil' it seeks to remedy.- Frisby v Schultz, 487 US 474,485, 108 S Ct 2495,2503 (1988) City Council of Los Angeles v Taxpayers For Vincent, 466 US 799,808-810, 104 5 Ct 2118, 2130-2132 (1984). The absence of a signature on a piece of paper does not in end of itself present a source of 'evil' this regulation need seek remedy. At stake here in only the will of that portion of the Forest Service uncomfortable with the manner certain these assemblies choose to organize. Not at stake here is the safety of the Forests.

"Forest Service Lands are the type of forum in which

13


expressive activity has historically occurred, and in which public expression of views must be tolerated to the maximum extent * * * Regulation of expressive activity in such a forum must therefore be narrowly tailored as to time place and manner * * *." United States v Rainbow Family, 695 F Supp. 294, 308 (ED Texas, 1988). (Emphasis added). (See Also Hague v CIO, 307 US.496,515, 59 S Ct 954,963-964, for the proposition that parks have immemorially been held in trust for the use of the public for public assembly and debate.) When examining regulations involving speech in traditional public fore, such regulations Must be Judged against the stringent standards this Court has established for restrictions on speech in such fora, "Frisbv, Supra, at 474, 477-479, at 2497, 2499-2500. (Emphasis added.) The bone of contention between the parties to this action is whether or not an event may be conducted lawfully without traditional political structures, and whether or not the absence of such political structure is in and of itself a form of First Amendment expressions of thought, speech, petition, and religious ideas.

The existence of such a peaceable event exist itself is self evident, That this event exists as a living example to demonatrate a working viable and responsible community sharing common ground without traditional or any other identifiable governing structure, and can do so in a setting where everything from entry to eating to sleeping and living is free of charge, is characteristic of the very expression of ideas, thought, petition, action, and religion

14


that is by nature the First Amendment to the United States Constitution.

That such a peaceable event can and does exist as a viable and responsible Assembly of individuals is a statement of fact. And the group stating this fact year after year i. the Forest Service itself - despite what the 'Background' Section to the Government's Motion to Dismiss may otherwise pretend.

For it is Forest Service Annual Reports which confirm the credibility of such a peaceable event, and the absence of the need for a signature to accomplish the government's interests. An excerpt from the 1997 Rainbow Gathering Forest Service Report, at Page 7, contains the following statement: "Our requirements for a signed Special Use Permit create an air of confrontation end anxiety, has little to do with the success, or lack thereof, of gathering management, and costs far more in litigation than it is capable of accomplishing on the ground." The Report goes on to any,

"The objective of the Special Use Permit is to provide us with the legal teeth to ensure that the government' s interests are protected. Despite the lack of a signed permit i n previous gatherings, it appears that, for the moat part, those objectives have been met, which means there are other ways to meet this need. Accomplishment has occurred through the cooperative development of an operating plan and a restoration plan. Thus shore appear to be viable alternatives to the permit that will meet our objectives." Emphasis added.

Attached as Exhibit 1 is the opening two pages of the Oregon Health Division Report, providing their experience, viewpoints, and

15


perceptions of this scenario.

The government's Section entitled 'Background' provides a factual summary comprised of conclusory remarks by Forest Service employees unrelated to resource management, and designed to create a basis for this signature requirement as applied to this group's expressive conduct and little else. ("The principal inquiry in determining content neutrality, in speech cases generally, and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v Rock Against Racisms, 109 S Ct 2746, 2754, 491 US 781,791 (1989). It is the intention of Plaintiffs to address the three gatherings, out of twenty-six Annual gatherings, the government alluded to in the 'Background' Section as their basis for requiring a signature. Once distilled, their attitude will boil down to a mere expression of the Government' s disregard and utter disdain for the manner in which this large group chooses to govern itself. (See Page 7 Governments Motion to Dismiss, "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. " )

Upon an examination of the facts, this Court will find that, (a) North Carolina in 1987 was conducted only after the State of North Carolina failed in its Attempt to enjoin the event, the state and Federal Law Enforcement Officers continued blockading the main

16


ingress and egress roadways, interrupting supplies and garbage removal, At the end, the Government arrested the clean up crew prior to completion of their appointed rounds. (See Exhibit 2, Newspaper photo and caption of Defendant Arthur arresting a member of the clean up crew at North Carolina, 1987); (b) Vermont and Colorado were never the subject of complaints and then. plaintiffs are prepared to offer evidence both from attendees who provided clean up and from Forest Service workers who oversaw clean up and restoration activities. (See Exhibit 3, Forest Service Report on clean up and restoration at Vermont Gathering, and Exhibit 4, Forest Service Report on clean up and restoration at Colorado Gathering 1992. There are 45 photos of the Colorado cleanup available for this count's review, should they be requested. including such facts in the Government's Motion to Dismiss begs for Summary Judgment proceeding to fully explore and examine those 'facts

What North Carolina teaches us and what the facts of Oregon prominently display is that without Law Enforcement exercising their authority over political issues unrelated to resource management, conservation, and restoration, the expressive conduct of this First Amendment activity operates in a clean and responsible manner according to those Forest Service personnel charged with the responsibility of caring for and managing the National Forest's resources.

Such reaction to the content of this assembly's expressive

17


conduct deserves the sort of strict scrutiny reserved for content specific regulations. As can be seen from the preamble to the Group Use Regulations, this Regulation is targeted at Rainbow Gatherings and the structure by which they choose to govern. Attached to this Memorandum is the Motion to Dismiss in criminal Case NO. 97-2049M with it' s attachments excluding the full reproduction of the Preamble and Regulat ions as published in the Federal Register, In favor of least redundancy I will defer to the text of Motion to Dismiss the criminal case for remaining argument surrounding the signature requirement, its attendant justifications, and the total absence of any of the States justifications being at all relevant in the operation by Forest Service Law Enforcement.

The government's memorandum relies almost exclusively upon Ward v Rock Against Racism, 109 S Ct 2746, 491 US 781 (1989); ; and Clark v Community For Creative Non-Violence, 468 US 288, 104 S Ct 3065 (1984) for the advancement of their regulation as Content neutral, quoting several sections from each case propounding the deference of the Courts to the State's choice of means of achieving a justifiable end. The Government's reliance is misplaced. Both Ward and Clark uphold a legltimate government interest protected from intrusion by the expressive conduct itself in much the same way the Court upheld the ban on posting leaflets on government property as a means of protecting the government's interest in

18


eliminating visual blight. (See, City Council of Los Angeles v. Taxpayers For Vincent 466 US 799,810, 104 S Ct 2118,2132 (1984) "Here, the substantive evil - visual blight - is not merely a possible by-product of the activity, but is created by the activity itself.") It is the activity itself - loud music in Ward, and camping in Clark - which themselves make up the substantive evil the Court said the government has a legitimate interest in repelling. This is specifically not the case when discussing the presence or absence of a signature Itself.

Although 'lees restrictive means' is technically an out dated phrase <see Ward. Supra, at 2757, and at 789-90), the concept is fully intact when addressing a direct known phenomena rather than "some imaginable alternative that might be less burdensome on speech." (Id., at 2757, and at 789-90; emphasis added). Ward addresses that point directly when preserving the notion that the regulation must not target more than the exact source of the 'evil' it seeks to remedy (Id., at 2759), and goes on to affirm that, "[i]f the city's regulatory scheme had a substantial deleterious effect on the ability of the Bandshell performers to achieve the quality of sound they des ire, respondent's concerns would have considerable farce." (Id., at 2759. Emphasis added.) And that is precisely the issue poorly phrased AS 'least restrictive means'.

This First Amendment activity would lose the source and quality of its expressive conduct if it were forced to govern itself in a manner different than the one it has chosen from

19


inception. This absence of form as a govern) ng principle poses no threat to any of the government's interests, and as quoted above by the Oregon Forest Service Report, the Operating and Restoration plane are an identifiable alternative means of achieving the government's legitimate interests.

On page 12 of the government's Motion, under the Section titled 'Background', intended to persuade this court toward a political objective is the phrase, "[s]ince the 1995 promulgation of the non-commercial group use regulation, the Forest Service has attempted to protect the natural resources in the National Forest System lands from the inevitable threat posed by a group of 20,000 persons without resort to citations * * * ." This sort of rhetorical hyperbole is typical of the politically motivated monologue the government repeatedly holds with anyone whose ear they may have. They go on for no reason at all to discuss their inability to 'select, appropriate 'members', as representatives of this 'class' without explaining why. They do not cite this Court to any problems with the 'inevitable threat' that occurred in Florida, but that no longer is the point And then to blame the Rainbow Family, for their errant litigiousness? Stating to this Court that their non criminal judicial resolution was 'thwarted', the rhetoric rises to new heights, (See pages 12-13 of Government's Motion to Dismiss). For one thing, Injunctions are not in the final analysis non criminal in nature, for, if successful, people are held in Contempt. An examination of the Order of the Florida Court quickly

20


provides such a conclusion. By default, individuals are held in Contempt for attending a Rainbow Gathering anywhere in the United States. If litigation technique can be a reflection of promulgation technique, this is not a federal agency neutral to the content of those attending this activity.

Nor does the government provide this Court with any of the transcripts from North Carolina in 1996 wherein each and every government witness testified to how well the area was kept and how well clean up went, etc. etc. All despite the fact 'Forest Service Officers arrived at the scene with applications ready for signature * * * but no one would sign.' ( See Page 13, Government's Motion) Nor did the government mention that there were five not four citations, because the government dismissed at Judgment of Acquittal the fifth citation (the only defendant represented by MR. Brian Michaels).

Try as it might to characterize these Plalntiffs and these events as singularly organized memberships, there is no basis in fact or law for this proposition. The Government's attachments referencing their attempt at injunctive relief in Florida highlight this point. There is no money charged through a centralized group, no one gets paid, all food is free and healthy, people arrive and park and live free of charge and free of authoritative reward. Why else would those who attend choose to attend and work so hard if not for a strongly held belief? And why, if the government chooses to dislike this type of belief should it be permitted to stamp at

21


out for no reason relating to protection of the forests. This Federal agency hen knowingly passed a regulation excluding a certain form of speech while posing at first blush to appear 'content neutral,.

By way of their Motion to Dismiss, the government has overtly sought to dispose of Plaintiff's Complaint by persuading this Court with 'facts' outside the four corners of the Complaint. Should this Court feel at all persuaded by any of the government's allegations, or of Plalntiffs responses thereto, then this Court is obligated to convert the government's Motion to Dismiss into a Motion For Summary Judgment and flush out these 'facts fairly.

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IV . RESPONSE TO MOTIONS II, III AND IV

Plaintiffs Mlchaels and Adams would like to introduce this Court first to the fact that despite mention in the Government's Memorandum, we do not belong to a group titled Rainbow Family or other such reference, nor do we know of such a group that counts or contains 'members', nor do we know of any such group that horde individuals out as leaders, organizers, etc. There is an event, begun 26 years ago firmly and specifically upon the premise that a community can temporarily exist where there are no fees, no leaders, no representatives, no formalized separation between any of those in attendance; no profit can be garnished, no power can be maintained. Yet, under this umbrella people can live free and safe, and preserve the Forests around them. It is this concept, wrought with religious, political and cultural definition, that had prospered all these years, and spawned ground this earth. Not any group, or members, or such other human definition. At the heart of the government's regulations is the rejection of that concept as viable form of 'speech' - political, economic, religious.

One need examine 36 CFR 251.54(h)(2) to see that the Forest Service must offer an alternative time, place and manner for any Of the eight criteria A if one would allow the event. The eighth criteria is to have someone designated by the applicant to sign or does sign on behalf of the applicant. As you can see from the Oregon Report Supra, there was an alternative to this criteria that

23

was acceptable but the Forest Service chose to exercise its discretion and denied this event a permit, by way of granting the Operating Plan, which was subsequently utilized as the body and soul of the Permit. The signature has taken on the meaning of an end to itself, albeit a political end, while it is described in these proceedings as a means to achieve an end.

Plaintiffs have never expressed dissatisfaction with receiving a Permit and all of the interests that go along, we merely wish to do so in a manner respectful of our message, and does not infringe upon our ability to express that message in the medium we choose, When there were no Regulations this method was successfully termed an Operation Plan. The same as was used this year in Oregon, 1997 a copy of which in attached hereto. During a time when there wee no permit signed, Plaintiff Adams and co-plaintiff Johnson worked successfully with a Federal Prosecutor in the apprehension, investigation, and prosecution of a wanted child molester uncovered at a Rainbow Gathering. The case received national attention on both 'Prime Time Live' with Dlane Sawyer and the 'Justice Files'. A copy of the Prime Time Live segment is attached hereto in order for this Court to see how other parts of the Federal Government discuss the value of this activity. Additionally, this tape reveals quite cogently the benefits that may be realized through a respectful rather than distasteful rapport.

Defendants' broadstroke analysis of Plaintiffs, Complaint avoids the premise that First Amendment activity may not be

24


regulated in a manner that restricts or prohibits a certain message. Such regulations have been held unconstitutional as not content neutral and not narrowly tailored. In Perry v Lou Angeles, 121 F3d 1365,1369 (1997), the Ninth Circuit Court of Appeals, citing Ward v Rock Against Racism, 491 US 781,791, 109 S Ct 2746, 2753, 105 L Ed2d 661 (1989), implicitly held that if the government adopted a restriction because of disagreement with the message it conveys then the regulation is not content neutral. Again, in Project 80's, Inc. v City of Pocatello, 942 F2d 635, 638 (9th Circuit 1991), citing York v Fox, 492 US 469,480, 109 S Ct 3028,3035, 106 L Ed2d 388 (1989), held that, "restrictions which disregard far less restrictive and more precise means are not narrowly tailored.

In what Defendants term Rainbow II, United States v Rainbow Family, 695 F Supp. 294, 325 (ED Texas, 1988), the Court held that "even an otherwise valid statute can not be applied in a manner designed to suppress First Amendment activity, or out of hostility to a particular group." That Court's assessment of this Federal Agency,. hostility toward groups termed 'Rainbow Gatherings' is well documented and will be addressed Infra. Suffice it to cay for now, in its Final Order the United States District Court for the Eastern District of Texas found the "Forest Service has not been motivated in this litigation solely out of concern for public health and safety; but rather has been motivated, at least to some degree, by hostility to the Rainbow Family." (Page 29, Memorandum Opinion,

25


Final Order, April19,1989,CivilOrderBook1,Volume10,Docket

Page No. 104, )

A. ANALYSIS

1. Fully Protected Speech

First this Court will consider whether the activity involved here is accorded full protection under the First Amendment .

There is no dispute that the activity involves human behavior including religious practices, deliberate assembly, political and religious discourse, political and religious association, among other behaviors too numerous for mention. " The expressive nature of these gatherings brings it under the purview of First Amendment protections of speech And association. " Rainbow I, 695 F Supp. 294, 308 (ED Texas, 1988). There is also no dispute this activity takes place in a public forum - a place that has "immemorially been held in trust for the use of the public . . . for the pu rposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v Committee for Industrial Organization. 307 US 496, 515, 59 5 Ct 954 963, 83 L Ed2d 420 (1988). The Supreme Court along with the Ninth Circuit Court of Appeals has repeatedly recognized public streets and parks as the archetype of public forum, and has afforded strict scrutiny as the examination standard of any regulation of speech thereto. United States v. Kokinda, 497 US 720,727, 110 S Ct 3115,3119, 111 L Ed2d 571 (1990);

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Frisby v. Schultz 487 US 474, 108 S Ct 2495, 101 L Ed2d 420 (1988); U.S. v Grace, 461 US 171, 103 S Ct 1702 (l983); Foti v Menlo Park, (9th Cir No. 97-16061, decided May 1, 1998); Perry v Los Angeles Department, 121 f3d 1365 (9th Clr 1997); (regulation of speech in a traditional public forum "is subject to the highest scrutiny. " Lee, 505 US 672,678 (1992).)

2. Government Restriction on Speech

Because the First Amendment fully protects the activities at issue here, the question is whether the government kiss placed legitimate restrictions upon this activity. Here, the government is allowing forms of activity upon Forest System Lands that satisfy all 8 criteria of 36 CFR 251.54(h)(1) while not allowing group activities whose form of speech prevents them from satisfying criteria No. 8. The government has stated its interests in the FIRST seven criteria. "When a government allows some forms of protected speech but prohibits other forms of protected speech, the Equal Protection Clause is implicated, and the government must show that the distinctions are 'finely tailored to serve substantial state interests,' Carey_ v Brown, 447 US 455,461-62, 100 S Ct 2286,2290-91, 65 L Ed2d 263 (1980).'" Perry, Supra, at 1368. (citation in original.) "In a traditional public forum, time, place, and manner restrictions on protected speech are acceptable

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only if they are content neutral, serve a significant government interest in a narrowly tailored fashion, and leave open ample alternative communication channels." Id., at 1368-69. (citations and quotations omitted.)

B. CONTENT NEUTRAL

1. Content Biases

Courts have long recognized the infirmity of regulations designed to quash a certain form of speech or a certain message conveyed. Members of the City Council of Los Angeles v Taxpayers For Vincent, 466 US 789,804, 104 S Ct 2118,2128, 80 L Ed2d 772 (1984) (implicitly rejecting an ordinance where there is evidence that the ordinance was designed to supress certain ideas that the city finds distasteful or that it has been applied to [Plaintiffs] because of the views that they express.") Ward v Rock Against Racism, 491 US 781,791, 109 S Ct 2746,2753, 105 L Ed2d 661 (1989) (implicitly rejecting restriction adopted "because of disagreement with message it conveys."); Menlo Park, Supra., at 4165 (Court takes exception to "Menlo Park having obviously adopted the ordinance to specifically target [Plaintiffs'] activities."). The Operating Plan was pled by Plaintiffs as being in the Forest Service Regulations previously and was quite successful. The elimination of this alternative from their current regulations is the result of political animosity toward the message, and not out of concern for the Forests.

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Suffice it at the s stage of the proceedings that Plaintiffs adequately pled these regulations are designed to suppress this type of activity and not other types of activity in National Forest Land. Plaintiffs similarly pled with sufficinet specificity an animosity toward this group, and how it related to the change in the Regulations requiring the Signature on behalf of the group in order to lawfully assemble. In its Final Memorandum Opinion, Supra. , the Court in both Rainbow I and II found the Forest Service added the signature requirement to the regulations back then specifically directed At Rainbow Gatherings, (see Pages 27, 28 and 29 of said Memorandum Opinion attached hereto). See also, City of Ladue v Gilleo, 512 US 43,52 (1994), cited in Menlo Park, Supra, at 4167 "Exemptions from an otherwise legitimate regulation of a medium of speech may be noteworthy for a reason quite apart from the risks of viewpoint and content discrimination: they may diminish the credibility of the government's rationale for restricting speech in the first place." (Emphasis added.)

As such the Regulation requiring the signature on behalf of the group is not content neutral.

2. Unbridled Discretion

It should be noted here 36 CFR 25l.54(h)(2) puts unbridled discretion in the hands of the Authorized Officer to examine the Application to see if the eight criteria are met (including whether there is a signature as per criteria No. viii),

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and if they are not, then, "[i]f an alternative time, place, or manner will allow the applicant to meet the eight evaluation criteria, an authorized officer shall offer that alternative." Inclusion of evaluation criteria No. viii could only fall under the 'manner' alternative. Yet, an alternative 'Operating Plan' we. offered, nay preferred by the Resource Management team of the Forest Service (See Forest Service Report, Supra.), and was not considered. See Gaudia Vaishnava Society v City And County of San Francisco, 952 F2d 1059,1065-66 (9th Cir 199), cert denied, 504 US 914, 112 S Ct 1951, 118 L Ed2d 1059(1992) (Finding Unbridled Discretion in hands of Police Chief deemed Ordinance Facially invalid.); and Menlo Park, Supra., at 4165(Pinding Discretion combined specifically targeting plaintiffs facially invalid.).

3. As Applied

Plaintiffs maintain that all that has been discussed above and pled in their Complaint amounts to an 'as applied' evaluation as well, as per Menlo Park, Supra, at 4157-58, discussing as applied challenges and their significance to Plaintiffs being singled out, as well as the relationship to facial and other challenges. Plaintiffs sufficiently pled that the Forest Service previously included the Operating Plan alternative in their Regulations and enjoyed a great deal of success. The elimination of that option in the current Regulations is the result of political animus, and not out of concern for any legitimate interest.

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Plaintiffs here return this Court to the Section of this Response discussing Legal Standards for Motions to Dismiss Infra, and that portion discussing that appropriate legal theory need not be pled. Although the government has not dissuaded this Court from the presence of properly pled allegations of this regard, and the Complaint alleges sufficient facts which rise to the level of a proper claim, the particular legal theory pled may differ slightly from that recognized by the Court to be appropriate.

C. SIGNIFICANT STATE INTEREST

There is no question but that the interests the government tenders in the protection of these Forests, and the health, safety and welfare of those partlcipatlng in activities in and upon these Forests, are valid government objectives for public forum activity. The dispute between these parties on this issue is two-fold. First, the signature criteria in 36 CFR 251.54(h)(1)(viii) is not end (legitimate interests) onto itself, but rather a means to achieve such an end. Located at criteria i through vii is where protection of all States legitimate government interest reside. Satisfaction of those criteria by an event thereby satisfies all legitimate interests. Criteria viii is superfluous,

Second, the continual wholesale trading in of truth for political bias when describing this particular First Amendment activity and the satisfaction of these significant government

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interests is not itself demonstrative of a significant government interest. As the District Court in Texas found, as a matter of fact, "the Forest Service has not been motivated in this litigation solely out of concern for the public health end safety; but rather has been motivated, at least in part, by hostility to the Rainbow Family. " (Page 29, attached hereto. ) Such hostility and animosity, so great as to be undeniable to a Federal Court Judge may be indicative of Justice Brennan's concerns that a Government's "asserted interest may be only a facade for content-based suppresalon.. Vincent, Supra., at 822 (Brennan, J., dissenting.) (discusaing aesthetics.)

D. ALTERNATIVE AVENUES OF COMMUNICATION

At Pages 27-28 the government makes some noise about their Regulation leaving open alternative avenues of communication. The cases cited in this regard are misplaced and inapposite to the ideas pro jected upon their screen. These Plaintiffs attend this event for reasons that are special and personal to them. There is a religious component about these event as acknowledged by the State Department of Health Report attached hereto. See Frazee v Illinois Department of Employment Security, 489 US 829 (1989) for the proposition that, 'we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization [but rather

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one's] refusal [may be] based on a sincerely held religious belief. Id, at 835. This religiosity is echoed also in the 'Prime Time' segment attached hereto,

There is no other place these assemblies can occur, nor is there any other place these assemblies choose to occur. If these events had another avenue of communication, then what the government is actually acknowledging is that such an assembly can satisfy the necessary legitimate interests, but need go somewhere else only to satisfy this Regulation's polltical bias. That is what the cases cited by the government say - - quite specifically. Alternatlve avenue means just that. In each of the cases cited, the Courts described and identified alternative avenues to tee-shirt sales as well se to telephone soliciting.

This analysis in more analogous to Bay Area Peace Navy v United States. 914 F2d 1224 (9th Cir 1990), wherein the Ninth Circuit maintained that a 75-yard security Zone established by the Coast Guard effectively prevented Plaintff from reaching its intended audience. Id., at 1229-1230. The Court emphasized that obvious alternatives such as passing out pamphlets or holding demonstrations on other land were "not viable alternatives because the invited visitors, who are the Peace Navy's intended audience, are not accessible from those positions." Id , at 1229. The ideas projected, the speech spoken and demonstrated cannot reach any audience but for the experience itself. To experience such a community for any duration is the message, and the only real manner

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the message can be heard.

The government's reliance upon 36 CFR 2$1.54 (h)(2) for this particular proposition is almost comical. It denotes a further lack of appreciation of their actions relating to sil encing this message. If (h)(2) really did offer the alternative manner it could be designed for, than the requirement in criteria vii of (h)(l) would not be enforced with such gusto and the Operating Plan alternative would be engaged. But this Agency does not desire any channel for this message to be communicated, which is precisely why that particular alternative was not considered despite their own Regulation.

E. NARROWLY TAILORED

Next, the Court must examine whether the ordinance 14 narrowly tailored to serve the interests of the government in protecting and preserving Forest System Lands and maintaining the Health, Safety, and welfare of the public

Even when the government's interests are substantial, the means chosen to effectuate them must be narrowly tailored. In the area of free expression, '[b]road prophylactic rules . . . are suspect. Precision of regulation must be the touchstone.' Village of Schaumberg v Citizens For a Better Environment, 444 US 620,631, 100 S Ct 826,836 61 L Ed2d 73 (1980). A government must serve its legitimate interests, but it must do so by narrowly drawn

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regulations designed to serve those interests without unneceasarlly interfering with First Amendment freedoms.' Id.," (Perry v Los Angeles Police Department, 121 F3d 1365,1369 (9th Cir 1997) (Citation in original.)

In discussing the Supreme Court's analysis of narrowly drawn regulations designed to serve government interests the Ninth Circuit in Perry examined Carey v Brown, City of Cincinnati v Discovery Network, and Schamberg for the proposition that what is excluded by the regulation defines its legitimacy. In each instance the Court acknowledged the interest advanced by the government as valid. However, when the Courts found that same interest similarly impacted by other permissible conduct, a regulation was not 'sufficiently tailored, to the interests of the governing body. In Carey, picketing was prohibited in residential areas except for labor pickets. Court recognized the interest in protecting residential privacy, but found "nothing inherent in the nature of peaceful labor picketing that would make it any less disruptive of residential primacy." Carey v Brown, 447 US 45S,466, 100 S Ct 2286,2292, 65 L Ed2d 263 (1980). In Cincinnati, the Court found the newsracks containing commercial handbills "no more harmful than the permitted newsracks." City of Cincinnati v Discovery Networks 507 US 410,418, 113 S Ct 1505,1510 123 L Ed2d 99 (1993). In Schaumberg, the Court applied the same analysis to a distinction in the Regulation between types of groups who could solicit door to door

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and types who could not, The Court further noted that genuine concerns about preventing f raud and harassment were already sufficiently covered by other statutes.

Here we are faced with the same issue as in the cases cited above. The regulation permits aesemblies who can have one person over 21 years of age sign on behalf of those attending, participating or spectating, while not allowing assemblies who can not. In this instance Plaintiffs agree with the Court's analysis that, as here, there is a substantial government interest that needs to be met, but that assemblies without a signature are no more disruptive or harmful than those with a signature. The history of these assemblies prove that point . The success of Gatherings during the period when there were no regulations requiring 8 signature (discussed further below) provide a perfect window of opportunity for examination. Minimally, for purposes of this Motion to Dismiss, the Court can accept as true that each and every one of these annual events was successful in their efforts to satisfy all legitimate interests. Even the Government can only allude to two out of the eight events between 1988 and 1995. This Court should further note that genuine concerns about preventing harm to the forests and protecting the public are addressed in criteria i through vii of 36 CFR 251.54(h)(1), as well as other local and federal health and safety regulations.

In considering whether a regulation is significantly tailored

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the courts also consider whether there are less restrictive, obvious less burdensome, and more precise means as "alternatives to the restriction on * * * speech [ as ] certainly a relevant consideration in determining whether the fit between ends and means is reasonable." City of Cincinnati, at 413 n.l3, 1510 n.l3. Se. also Project 80's Inc., at 638 ("restrictions which disregard far less restrictive and more precise se means are not narrowly tailored. )

The Operating Plan was pled by Plaintiffs as being in the Forest Service Regulations previously and was quite successful. It was only taken out as a reaction to these Gatherings and these Plaintiffs' beliefs. This alternative in States by Plaintiffs in their Complaint and by the Forest Service in their own Reports as being A less restrictive, less burdensome and more precise, nay preferable, alternative means to fit the government's interests. The elimination of this alternative from their current regulations la the result of political animosity toward the message, and not out of concern for the Forests.

The other analysis applied to the 'narrowly tailored' test is whether the government's interests "would be achieved less effectively absent the regulation." Ward, at 1014, at 2758. See Menlo Park, at 4170; and One World One Family Now v City of Honolulu, 76 f3d 1009, 1013-14 (9th Cir 1996). For at least purposes of this proceeding, this Court may accept as true the fact

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that during the times there was no regulations, and thereby no one over 21 signed on behalf of the others, the interests of the Forest Service were equally if not preferably achieved. One World also adopted the notion from Ward that a regulation restricting substantial quantity of speech that does not create the same evils is not 'narrowly tailored`. Id., at 1014. See also Frisby, and Vincent, Supra. ("a statute is not narrowly tailored if it targets and eliminates no more than the exact source of evil it seeks to remedy. " Frisby, at 485, 2503 Vincent' at 808-810, 2130-2132 This regulation has both targeted and eliminated the assembly and beliefs of these Plaintiffs. And yes that may in fact be the exact source of 'evil' these regulations seek to eliminate, but that 'evil' is not targeted at the Forests but at ourselves.

RESPECTFULLY SUBMITTED This 8th Day of June, 1998, BY:

BRIAN MICHAELS
Attorney For Plaintiffs
Michaels and Adams

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INDEX OF ATTACHMENTS

Exhibit 1: Excerpt from the 1997 Oregon Health Report.

Exhibit 2: Newspaper photo and caption of Defendont Arthur, at 1987 National Gathering is North Carolina. .

Exhibit 3: Forest Service Report on Cleanup and Restoration at 1991 National Gathering in Vermont.

Exhibit 4: Forest Service Report on Cleanup and Restoration at 1992 National Gathering in Colorado

Exhibit 5: Memorandum Opinion - Pages 27, 28 & 29

Exhibit 6: Motion To Dismiss, Criminal Case No. 97-2049M

Exhibit 7: Operation Plan used at the 1997 National Gathering in Oregon. As attached to Special Use Application and Permit issued.

Exhibit 8: Prime Time Live segment. Letter From United States Attorney Stuart GraBois dated May 28, 1998

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