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       St.Louis MO • www.Free-Assembly.org
     _//\______________________________an Association of Volunteers__/

      15 September 2022                  ~ REPORT & COMMENTARY ~

                Vermont gathering gets an Operating Plan
                ~ a tactical breakthrough on the ‘Group Use’ Regs
                ___________________________________________________

__BACKDROP____

        The ‘Permit’ controversy confronting the Rainbow gatherings has been stalemated for the last 12 years. 
After the early era of prosecuting alleged leaders, then the mass citation tactics and straw-dog signer ploys since 2001, the Forest Service backed off in 2010, seemingly called a truce and issued a good Operating Plan for the “Peaceable Assembly” in Pennsylvania.

Arguably they were induced to do so by gatherers’ successful court fights after 2005 – especially the WVa’05 appeals that overturned nine convictions, and the lawsuit against fraudulent signers in NM’09, nullifying that permit and shredding the whole legal scheme.  They saw new constitutional arguments that they could not sidestep or surmount, and our ability to fight back… so they needed to avoid the next confrontation on these issues, and any decisive court case that they would lose.

Of course this could not last:  With Incident Command pushing enforcement policies in DC, OpPlans showed up with bad Rainbow ‘Group’ language & liabilities, lousy terms, separate fire permit requirements, and new signature demands.  Then they were abandoned entirely, substituting “Design Criteria” directives that were unilateral, non-negotiable, and do not authorize any special use.  As a result, every gathering since 2017 has been declared illegal, piling up political black marks.  The 50th Anniversary Rainbow Gathering in Colorado got hostile treatment, and the Forest Supervisor emphatically deemed it to be “unauthorized”.

Meanwhile since the Forest Service has not pushed or prosecuted on permits for awhile, gatherers have been lulled into complacency:  Most believe things are going along okay and nothing needs to be done – but the Regs still stand as law and can land on them hard anytime.
        NextGens know little of this historic fight, and are unready with much at stake.

__INITIATIVE____

        Rainbow’22 in Colorado was far away, so in the Northeast there were strong sentiments & skills for a regional gathering in August.  In light of the escalating FS Permit game, this seemed an opportunity to get a proper Operating Plan and set up a strong legal position to change the game.  So an Idea was brought to the vulnerable folks up-front, preparing to go to the woods in Vermont:

••  Don’t wait for Feds to show up… at the outset let 2 attendees propose ‘Individual Volunteer’ agreements to the District Ranger, giving notice of this assembly, requesting an OpPlan and offering to cooperate in support::: 
    No phony Permit signed, no fake Group implicated… preserving personal standing of participants, seizing the high ground for a legal gathering in the only way they can do so lawfully.

This idea has been brewing for a long time, observant of all the Regs cases and thought-out with care to be legally safe for volunteers, encumbering no others – and this seemed a good moment for a Win/Win scenario:  Either the FS accepts the Volunteer proposals and Grants OpPlan authorization, setting a valuable agency precedent – Or they Deny within 48 hours, and an unbeatable case against the Regs can go straight to federal court in a good constitutional Circuit.  There were great odds on winning the easy way.

Discussions on all this moved by email and phone over most of a week, then the idea was brought to a planned crew conference call in-prep for the gathering, laying out the logic and offering tech support if they liked it.  The only stated concern was that it might disrupt their good relations with local Foresters… In fact this approach in good-faith was more likely to make them better, taking the heat off of everybody.
    There was no other debate, no consensus suggested… the option was simply presented and left in their hands, to consider as they chose in their process.

In a couple days a stalwart sister from that crew got back and agreed to proceed, and the work got done to prepare the paper trail.  Purportedly another guy was going to step up as the 2nd volunteer, but he backed down – so only her package was submitted by fax to the Rochester District Ranger on August 18:
        ~ VolAgrmt_jBurt-sgFS(r.pdf        <( Form + Letter, 3 pp. redacted – direct link )

The proposed Agreement was counter-signed and approved by the District Ranger the same day.  Then after the weekend the FS delivered an Operating Plan at Texas Falls as agreed:
        ~ RainbowOperatingPlan_Texas Meadows08222022.pdf        <( 4 pp. )

    So, the plan WORKED, with a few glitches… we won:
    A rad direct action for a radically legal gathering.
    Then to ponder the path this opens, and the potentials of really doing this right…

__IMPLICATIONS____

[]      Any ‘special use’ of National Forest land has to be proposed by ‘somebody’ for the FS to approve it – basic public land law, normal procedure for everybody, not the problem.  But the standard Group Use application does only one thing – get a Permit for a ‘Group’… if none exists, signers are false agents of a fictional entity, attendees are bound without consent or protection, and the Permit is fraudulent. 18 USC 1001.  If this is the only way to apply, citizens in assembly are excluded from authorization.  That’s the real problem.

    If you can’t get the squares to think outside the box, get a better box: The Volunteer program for all federal land agencies is designed for individual citizens to help in particular ways as agreed… SO stand in that frame:  Adapt the standard Volunteer form to serve as a special use application with the needed points of notice, and demand an Operating Plan per 36 CFR 261.1a. 
    That’s all our Sister did in Vermont – a personal agreement just to help an OpPlan work for the gathering at Texas Falls, speaking for no one else but enabling safe cooperation with Foresters on the land.

[]      The signed Volunteer deal is made public to be understood and accountable:
it is an “individual” Agreement by definition at the top [√], with a personal commitment limited to the stated scope and protected from liability.  The key language is in Par.24 – the ‘Description of Service’, scribed for the agency as submitted: The intent is set forth concisely, and it provides for a collaborative OpPlan to authorize this assembly in precise terms.  Par.33 is amended in the cover letter to protect the volunteer’s ability to document the work  The rest is boilerplate for all kinds of volunteers, no controversy.

    When the District Ranger signed in acceptance, that Agreement took full legal effect.  For the first time in 40 years the Forest Service acknowledged a ‘Rainbow’ proposal on clear personal standing, and agreed to an OpPlan authorizing a gathering properly as an assembly of individuals. This is a breakthrough on the Regs, demonstrating a workable model for a sustainable constitutional solution.

[]      The Vermont VolApp strategy evolved from decades of gatherers’ legal struggles and aspirations for good Operating Plans & fair treatment, in lieu of bad Permits & harassment.  It is also aligned with the amended rules proposed in the CFR Petition submitted to USDA (June 2018, Sept. 2021) – which would mandate OpPlans for “public assembly” as a distinct special use, and allow attendees to cooperate safely as volunteers.  This model has been examined and supported by seasoned gatherers & attorneys in broad discussions to date. 

    Moreover this approach is wholly mindful of Rainbow creed and gathering traditions:  Everybody is a “volunteer” for Everything to be done… working with good foresters on site care & cleanup is one of them, a proud expression of citizen stewardship on public land.  The only hazard is ‘Drainbow’ politics – the blind opinions & factional flak that always show up, and are doing so again.  This stuff needs to be talked about and understood… to make any real momentum, people must be informed on what’s real.

[]      Ultimately the Regs still have to be changed… as long as they are in-place, they can and will be misused against the gatherings.  The Fed bureaucrats in DC have ineptly dumped our Petition twice, but it still lays out optimal provisions for the future, meeting fair regulatory purposes and constitutional tests in the public interest.  That campaign has to be renewed and pursued creatively, knowing its strengths:

     The VolApp move in Vermont took a strong ethical and legal position:  It showed good faith with true public interests in the woods, and local Foresters affirmed that this works OK for them.  it also put them on a spot… if this proposal were Denied, it would set up a solid court challenge against the Regs “as-applied” in restricting speech – the ideal favored position in 1st Amendment law, still available on this path.

        All in all, a most instructive initiative on all sides…
        will see what happens next time if folks do it right.
        ____________________________________

        Respectfully,
                                __scottie addison, Rapporteur____
                                   St. Louis, Missouri