United States v. Johnson ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-5023
JOHN E. JOHNSON, III; WILLIAM V.
LETEMPT; JEFFERY O. PIKE; DANIEL
GALLAGHER,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-96-98)
Argued: September 25, 1998
Decided: October 28, 1998
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
BULLOCK, Chief United States District Judge for the Middle
District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Wilkinson and Chief Judge Bullock joined.
_________________________________________________________________
COUNSEL
ARGUED: Eric Jason Foster, PITTS, HAY, HUGENSCHMIDT &
DEVEREUX, P.A., Asheville, North Carolina; Brian L. Michaels,
Eugene, Oregon, for Appellants. Kenneth Davis Bell, First Assistant
United States Attorney, Charlotte, North Carolina, for Appellee. ON
BRIEF: Sean P. Devereux, PITTS, HAY, HUGENSCHMIDT &
DEVEREUX, P.A., Asheville, North Carolina, for Appellants. Mark
T. Calloway, United States Attorney, Thomas R. Ascik, Assistant
United States Attorney, Ellen Horstein, Office of the General Coun-
sel, UNITED STATES DEPARTMENT OF AGRICULTURE, Ashe-
ville, North Carolina, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This appeal involves a challenge to federal regulations that prohibit
a noncommercial group of 75 or more persons from using the national
forests without first obtaining a permit. Because the Government
presented ample evidence to support convictions for violating these
regulations and because application of the regulations here did not
infringe upon First Amendment rights, we affirm.
I.
The Government charged John E. Johnson, III, William V.
LeTempt, Jeffrey O. Pike, and Daniel Gallagher with violating 36
C.F.R. § 251.50 (1998), 36 C.F.R. § 261.51 (1998) and 36 C.F.R.
§ 261.10 (1998) which prohibit occupancy or use of any national for-
est system lands by groups of 75 or more persons without first obtain-
ing a special use authorization permit from the National Forest
Service. After a bench trial, the court convicted each defendant of this
offense and sentenced each to pay a fine of $50 or perform eight
hours of community service; the court stayed the sentences pending
appeal.
These convictions arise from a gathering in June 1996 of the Rain-
bow Family in the Pisgah National Forest, located in Madison
County, North Carolina. The Rainbow Family is a group that periodi-
cally gathers in natural surroundings, particularly to celebrate the sol-
stices and equinoxes.
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On June 14, 1996, when members of the Rainbow Family began
gathering in the Puncheon Camp area of the Pisgah National Forest,
Officer Walt Stribling informed Pike and LeTempt of the group's
obligation to obtain a special use permit if the group grew to over 75
persons. On June 16, Officer Stribling, along with Deputy Sheriff
Lamar Worley, returned to the forest and counted 66 people at the
campfire circle and "in excess of 100 people" in the surrounding Pun-
cheon Camp area. Officer Stribling then told Pike that it appeared that
the 75 person threshold had been exceeded and if that was so, a per-
mit was necessary.
On June 17, Stribling again returned to the park; Forest Officer
Frank Roth accompanied him. They determined that, at a minimum,
79 members of the Rainbow Family group had gathered in the forest,
including the four defendants. For an hour, the officers talked with the
defendants regarding the need to apply for a permit and expressly told
them that the number of group members counted was 79, and so a
permit was required. The officers gave the defendants the opportunity
to sign for and obtain a permit at that time but each defendant refused
to do so. The officers then issued each defendant a notice of violation
of the regulations.
In addition to the officers' trial testimony as to the June 17 meet-
ing, a videotape of the conversation, which confirmed the officers'
account, was admitted into evidence at trial. Moreover, each of the
defendants testified at trial and confirmed this account in all critical
respects.
Specifically, Gallagher testified that he knew about the 75-person
rule well prior to the June gathering, that the officers had explained
it again on June 17, and that he "estimated" that there were "maybe
50, maybe 60" Rainbow Family members present on June 17, but that
he did not count them. Johnson admitted that he too had not counted
the Family members, but that he had heard the officers state that they
had counted more than 75 people; he also acknowledged that he had
participated in other gatherings in which a permit was necessary.
LeTempt volunteered that he was "very familiar" with the 75-person
rule and that he had thought at the start of the gathering that atten-
dance could exceed 75. He recalled that, although he had not per-
formed a count of his own, he had disputed Officer Roth's statement
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that more than 75 people were present. LeTempt acknowledged that
shortly after Officer Roth informed him of the results of his count, he
offered to reduce the numbers in the group by morning. Pike testified
that he thought there were about "50 people or so" but that he too did
not count the members in attendance. None of the defendants denied
that on June 17 the officers notified them that a permit was necessary
because the 75 person limit had been exceeded and that the officers
gave them an opportunity to apply for and obtain the required permit,
an opportunity that they rejected.
After a bench trial, a magistrate judge convicted the defendants of
failing to obtain the necessary special use permit. The judge specifi-
cally noted that none of the defendants disputed the agents' account,
reflected in the tape, that the agents had told the defendants that the
75-person limit had been exceeded, that a permit was necessary, and
that they could apply for one that night. The defendants appealed their
convictions to the district court, which upheld the magistrate judge's
decision. See United States v. Johnson, 988 F. Supp. 920 (W.D.N.C.
1997).
On appeal to this court, the defendants maintain that we must
reverse their convictions because the regulations require the Govern-
ment to prove not only that 75 or more persons were in attendance,
but that each of the defendants knew the group was this large. Alter-
natively, the defendants argue that application of the regulations to
them violated their First Amendment free speech and free association
rights. We consider each claim in turn.
II.
The federal regulations at issue here, promulgated pursuant to 16
U.S.C. § 551 (1998), prohibit any "use or occupancy of National For-
est System land or facilities without special-use authorization when
such authorization is required." 36 C.F.R. § 261.10(k). The regula-
tions provide that such "special use authorization" must be obtained
for "noncommercial group uses," id.§ 251.50, and defines "group
use" as "an activity conducted on National Forest System Lands that
involves a group of 75 or more people, either as participants or spec-
tators." Id. § 251.51.
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Thus proof of a violation of these regulations requires the Govern-
ment to demonstrate: (1) use, (2) of National Forest land, (3) by a
non-commercial group of 75 or more persons, either as participants
or spectators, (4) without special use authorization. The defendants
claim that, in addition, the Government must demonstrate that they
knowingly violated these regulations, i.e. in this case that each defen-
dant knew that 75 or more persons were present in the forest at the
time the officers issued notices that they had violated the regulations.
The regulations, as well as the legislative history, see 60 Fed. Reg.
45258 (1995), are "silent concerning the mens rea required for a vio-
lation." Staples v. United States, 511 U.S. 600, 605 (1994). Accord-
ingly, to resolve the necessity of a mens rea requirement would
require us to engage in a somewhat complicated inquiry. See United
States v. X-Citement Video, 513 U.S. 64 (1994); United States v.
Cook, 76 F.3d 596 (4th Cir. 1996). However, the facts of this case
eliminate the need for us to engage in that analysis here.
Even if the Government must prove beyond a reasonable doubt that
each defendant knowingly violated the regulations, in the case at hand
the Government unquestionably met this burden. Indeed, after hearing
extensive evidence, which we have briefly outlined above, the magis-
trate judge found that each defendant had "knowledge about the law"
and knowledge "that there could reach a critical number, which could
bring into bearing the permit process and then the opportunity of each
defendant to avoid the problem by signing the permit or having some-
body else sign the permit." Those findings are amply supported by the
record. The Government offered abundant, uncontroverted evidence
that the officers expressly informed the defendants that more than 75
members of their group were gathered in the national forest on June
17, that the defendants concededly heard and understood this mes-
sage, and that the defendants offered the officers nothing to refute the
count -- not even their own count of Rainbow Family members.
Therefore, the trial judge did not err.
III.
Alternatively, the defendants maintain that the Government's appli-
cation of the regulations to them violated their First Amendment free
speech and free association rights. They assert that the regulations
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should be deemed unconstitutional because they "burden[ ] substan-
tially more expression than necessary to further the government's
legitimate interests." Brief of Appellants at 14.
Neither party disputes that Rainbow Family gatherings constitute
expressive conduct. See United States v. The Rainbow Family, 695 F.
Supp. 294, 308 (E.D. Tex. 1988). Further, the parties agree that when
expressive conduct occurs on public grounds, like a national forest,
the Government can impose reasonable "time, place, and manner"
restrictions. See Ward v. Rock Against Racism , 491 U.S. 781, 789
(1989). The parties also agree that such restrictions are constitution-
ally valid as long as they (1) are content-neutral, (2) "narrowly tai-
lored to serve a significant governmental interest" and (3) "leave open
ample alternative channels for communication of the information." Id.
at 791. Finally, the defendants do not contend that the regulations fail
to achieve content neutrality or to leave open ample alternative chan-
nels of communication.
The defendants' single contention is that the regulations are not
narrowly tailored to satisfy any legitimate government interest. They
assert that a governmental interest in reducing the actual or potential
damage to national forest system lands that may occur as a conse-
quence of having large groups use these lands does not justify the reg-
ulations. More specifically, the defendants argue that because
obtaining a signature on a permit application does not render the sig-
natory financially liable for group damage to the lands, the regula-
tions do not lead to any actual repair of damaged property. The
defendants maintain that if the Government were truly interested in
reducing such damage, it would make every person in the group sign
the application.
Because the defendants posit too limited a view of the interests
served by the regulations, their arguments miss the mark. The regula-
tions, as well as the Department of Agriculture's comments accompa-
nying them, make clear that the regulations serve three purposes.
They are designed to (1) "protect resources and improvements on
National Forest System lands," (2) "allocate space among potential or
existing uses and activities," and (3) "address concerns of public
health and safety." 60 Fed. Reg. 45,258, 45,262 (1995).
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The permit requirement serves these three goals in a narrowly tai-
lored manner by providing a minimally intrusive system to notify For-
est Service personnel of any large groups that will be using the forest
so that the personnel, through advance preparation, can minimize any
damage that may occur. See, e.g., 36 C.F.R.§§ 251.54(h)(1)(i-vi) and
(h)(2)(1998); 60 Fed. Reg. 45,258, 45,260, 45,262, 45,266, 45,272-
45,273, 45,279-45,280. Indeed, the defendants have pointed to no evi-
dence suggesting that the permit system does not properly and nar-
rowly serve these significant governmental interests. Thus, we must
reject the defendants' assertions that application of the regulations to
them violated their First Amendment rights.
IV.
Members of the Rainbow Family, like all other citizens of this
country, are entitled to the fair administration of justice and to the
enjoyment of their Constitutional rights, including the precious rights
of free speech and free association. But, like other citizens, they must
comply with lawful government directives. In this case, they willfully
violated neutral government regulations narrowly tailored to protect
the national forest system lands for use by all. Accordingly, their con-
victions for violating the special use regulations are
AFFIRMED.
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