MASEL TRIAL OPTIONS -v3

Synopsis:

        (Per 2 conversations (Mo.5jy99, Su.22au99) & E-Memos to date...)

The Major Issue:  Group Use liability imposed upon individual alleged to be an 'Agent' ('Leader', 'Organizer) of a 'Group', or in the alternative, upon any participant or spectator.

Arguments: 

1)    They can't have it both ways... per rule (§251.54(h)(viii)), someone must be 'designated' to sign*, so by definition it is applied upon a 'group' with such powers of 'agency'.  If applied randomly to anyone present, it presupposes an implied standing as a "de facto agent": 
    For a 'Moose Lodge' outing, this infers that any member of the organized "group" can assume representative standing on its behalf; for a 'Rainbow Gathering', it confers such standing where it does not exist, and creates a liable entity `de novo` for purposes of enforcement.  This poses fundamental problems of personal jurisdiction & `mens rea` in the enforcement scheme.

•  Bad logic [A= Agent/Group, B= Individual/Gathering, C= FS Regs]:
            Reality & Law... (A ≠ B), therefore (A:C ≠ B:C)
            Govt position... (C:A = C:B), therefore (A = B)

2)    Establish limited jurisdiction of the Regulation... If 'Group Use' enforcement is properly constrained to 'Groups', then it cannot be applied to a 'Gathering', which as a consensual public assembly does not have the legal capacity to comply:  It lacks the basic elements of agency & vesting needed to enter into a permit.  This argument must be brought forward in order to substantiate the claim that the Defendant could not make a false statement by signing the permit application.

The Major Conceptual Snag:  In the Defendant's Motion to Dismiss, the term "Rainbow Family" is used repeatedly as a proper noun -- clearly suggesting that it is a "group" -- and opposition to the permit requirement is stated as a 'belief' in accord with its non-hierarchal structure -- putting the issue on a footing of defiance rather than necessity.

Problematic Facts in the Record:  Ben posted public info on the event, openly negotiated w/ FS officials, a 'Rainbow Council' received & repllied to a letter from the FS, Ben played a major role in the drafting of the response, and allegedly agreed to accept a citation "on behalf of" the gathering.  ....(others?)....

Tactical Need/ Balancing Evidence: 
••  Bring countervailing facts to Trial, emphasizing lack of delegated powers to do anything, the primacy of personal participation & contribution.  Educate the Court on this distinction, which is essential to the difference between a 'Group' vs. 'Free Assembly'.  I has everything to do with the legal capacity & standing of individuals, and the rights explicitly preserved for individuals under the 1st Amendment. 
••  Show iniquities & fallacies of the 'Group Use' enforcement protocol..........

Suggested SCA Testimony, If Called:

[Intro:  ID, education, professional credentials as planner, attended 1st Gathering in '72.]

1)  2nd Gathering, Rainbow '91:  Looked for leaders of an "organization", never found any.
            [It may walk & talk like a Duck, but  it's Not a Duck!...
            [ ie, highly organized "Rainbow" events without an Organization

2)  MO Rainbow Gathering '96:  "Holy Shit Permit" enacted in Milwaukee, nullified on-site.
            [fraudulent  deal conveying representation & liability, misrepresented terms,

3)  Green Mtn NF (VT), Jun.97:  FS presents GU permit package for "Granville Group".
            [creating a fictional entity for purposes of regulation]

4)  Ocala NF (FL), Feb.98:  Volunteer Application to FS (2/11/98), after Juniper Prairie burnout.**
            [alternative to regulation w/o vicarious liability, spurned by FS officials]

5)  Daniel Boone NF (KY), May.99:  Closure powers for GU Enf't, by Sup'r Order, 12my99.
            [new authorities per FS policies, removal of people from the woods w/o civil action]
            [ major policy promulgation in violation of 5 USC 553... again]

6)  Expert Opinion, as Environmental Planner: 
        ••  Gatherings, generally...  Town-building & -disappearing, high standards of citizen stewardship, historic experiment in Social Ecology.
        ••  Group Use Rule... Not a proper land use regulation, no rational basis in demonstrated "significant impacts" to be regulated, violation of NEPA standards, vicarious liabilities imposed for contributing in the public domain, cooperation disabled.  Therefore, this restriction does not reasonably serve Agency purposes ('Lack of Fit'), and furthers no significant or compelling govt interest.
        ••  Targeted Restriction...  Threshold of 75 also approximates the minimum number of people required to comprise & conduct a "gathering", with full services in-place.  Raised from 25 in the original proposed rule, arguably the final regulation still singles out gatherings as a distinctive type & scale of expressive activity in the NFs.  In effect, the sweep of the restriction is narrowed to virtually exempt other kinds of 'noncommercial uses', and apply to public gatherings almost exclusively.  This is tantamount to de facto content control, to the extent that assembly is a unique form of 1st-Amendment expression unto itself.
        ••  Inescapable Prosecution...  the Permit as the generally accepted means of land use regulation is derived from tort (nuisance) law, and therefore presupposes a 'Party' subject to civil/regulatory liability.  (It largely works in environmental law because there usually IS a person or entity capable of acting in a legal capacity.)  Because of this premise the permit requirement is inimical to a true 'Free Assembly', which has no delegative means to comply, and therefore police presence & enforcement is automatically 'triggered' on 1st Amendment events.


    ////////////////FOOTNOTES////////////////

*  The Forest Service twists the meaning of this provision in applying the regulation:
    ~ 1st Twist (NC'96):  Feds may 'designate' leaders, at their prerogative,
        profiling 'Members of the Rainbow Family' & defining those acting as leaders.
    ~ 2nd Twist (FL & MO'96):  Alternatively, Feds can grab any Joe who shows...

** [Reference SCA letter to District Ranger (Lake George District, Ocala NF), with docs cited:]

    "...I go in a spirit of quiet enjoyment and cooperation, with the intent of helping others and making the public event as clean, safe, harmonious, and healing as possible. 
I hereby volunteer to help out in the woods, according to guidelines of USDA Forest Service ‘Human Resource Programs’ (publication FS-538), and the Volunteer Application & Agreement presented herewith.
        Attachment C:  Volunteer Application for Natural Resource Agencies (# 0596-0080)
        Attachment D:  Agreement for Individual Voluntary Services   (FS-1800-7)"