United States v. Kalb , 234 F.3d 827 ( 2000 )

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
12-12-2000
United States v. Kalb
Precedential or Non-Precedential:
Docket 00-1733
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Filed December 12, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 00-1733, 00-1734 and 00-1746
UNITED STATES OF AMERICA
v.
JOAN H. KALB,
Appellant in No. 00-1733
(D.C. Crim. No. 99-cr-00074E)
UNITED STATES OF AMERICA
v.
GARRICK M. BECK,
Appellant in No. 00-1734
(D.C. Crim. No. 99-cr-00075E)
UNITED STATES
v.
STEPHEN M. SEDLACKO,
Appellant in No. 00-1746
(D.C. Crim. No. 99-cr-00076E)
Appeal from the United States District Court
for the Western District of Pennsylvania
District Judge: Honorable Maurice B. Cohill, Jr .
Argued
October 26, 2000
Before: MANSMANN, ALITO and FUENTES, Cir cuit Judges.
(Filed December 12, 2000)
David W. Ogden
Assistant Attorney General
Harry Litman
United States Attorney
Michael J. Singer, Esquire
Howard S. Scher, Esquire
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Washington, D.C. 20530-0001
Benjamin P. Cooper, Esquire
(Argued)
United States Department of Justice
Civil Division
P.O. Box 883
Washington, D.C. 20044
COUNSEL FOR APPELLEE
John P. Garhart, Esquire
(Argued)
1001 State Street
Renaissance Centre
Erie, PA 01651
COUNSEL FOR APPELLANTS
in Nos. 00-1733 and 00-1734
Bruce A. Antkowiak, Esquire
(Argued)
One Northgate Square
Greensburg, PA 15601
COUNSEL FOR APPELLANT
in No. 00-1746
OPINION OF THE COURT
MANSMANN, Circuit Judge.
These appeals comprise the latest installment in a series
of legal skirmishes waged between the gr oup known as
2
"The Rainbow Family" or "The Rainbow Family of Light" and
the United States Forest Service. Garrick Beck, Joan Kalb,
and Stephen Sedlacko, participants in a 1999 Rainbow
Family gathering, appeal from Judgments in Criminal
Cases entered following the conviction of each of a
misdemeanor violation of 36 C.F.R. S 261.10(k): "Use or
occupancy of National Forest System land or facilities
without special-use authorization when such authorization
is required." These appellants challenge the Forest Service
regulations, arguing that the relevant regulations do not
apply to them as individuals and, in the alter native, that
the regulations are constitutionally infirm both facially and
as applied. Because we are convinced that the challenged
regulations were properly applied to the individual
appellants and do not transgress constitutional
requirements, we will affirm the Judgments in a Criminal
Case entered by the District Court.
I.
The facts underlying this appeal are set forth in detail in
the opinion of the District Court, United States v. Kalb, 86
F. Supp. 2d 509 (W.D. Pa. 2000). Accor dingly, our
recounting of the facts is brief. For a period of weeks during
the summer of 1999, some 20,000 people attended a
Rainbow Family1 gathering in Pennsylvania's Allegheny
National Forest. Each of the appellants was pr esent at that
gathering and was identified by a Forest Service criminal
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1. The Rainbow Family has been described in other litigation as:
. . . an unincorporated, loosely structured gr oup of individuals
that
regularly gathers in undeveloped sites in National Forests to pray
for
peace, discuss environmental and other contemporary political and
social issues, and [to] exchange, develop, express and demonstrate
their ideas and views. Annual gatherings have occurr ed in
different
National Forests on and around July 4 since 1972. These gatherings
draw more than 20,000 participants and last for a month or more.
Smaller regional gatherings take place thr oughout the year in
National Forests across the country.
Black v. Arthur, 18 F. Supp. 2d 1127, 1130 (D. Or. 1988), aff 'd, 201
F.3d 1120 (9th Cir. 2000) (inter nal citations omitted).
3
investigator as having had some role in or ganizing or
administering the event.
In early July 1999, these three individuals wer e issued
citations charging each with use of For est Service land
without special use authorization in violation of 36 C.F.R.
S 261.10(k).2 Related r egulations provide that such "special
use authorization" must be obtained for "noncommercial
group uses." Id. S 251.50."Special uses" include all uses
other than timber harvesting, grazing and mineral
extraction. Id. "Group use" is defined as "an activity
conducted on National Forest System lands that involves a
group of 75 or more people, either as participants or
spectators." Id. S 251.51.
The application for a permit is a simple one-page
document which essentially requires the applicant to
supply information concerning the location and description
of the National Forest System land upon which the activity
will take place, the facilities that the applicant seeks to use,
the estimated number of participants and spectators, the
starting and ending times and dates for the pr oposed
activity, and the name of an adult who will sign a special
use authorization on behalf of the applicant. Id. S 251.54.
Each of the appellants was advised by a Forest Service
representative of the need for the Rainbow Family to apply
for a special use permit and was asked to sign the permit
application. Each refused.
In August 1999, the appellants were char ged with
violating the Forest Service regulations and, after a two-day
bench trial in October 1999, each were found guilty. On
June 1, 2000, each of the appellants was sentenced to a
three-month term of imprisonment and was directed to pay
a special assessment. A $500 fine was assessed against two
of the appellants.3 These sentences were stayed pending the
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2. A number of Forest Service regulations were recodified in 1999. These
changes altered the numbering of relevant sections. Because the District
Court and the parties have consistently referr ed to these regulations by
their original numbers, we do the same.
3. The penalty provision of the regulatory scheme, 36 C.F.R. S 261.1b
provides that:
4
filing and resolution of any appeal. These timely appeals
followed and were consolidated for disposition.
II.
The appellants raise a number of challenges to the
Judgments entered against them. We consider these
challenges seriatim, mindful that because of the"many
legal contests between the Rainbow Family and the Forest
Service," we do not write on a blank slate. Kalb, 86 F.
Supp. 2d at 517.
We address first the contention that the regulations
underlying the appellants' convictions criminalize only
group rather than individual conduct: "This statute has no
actus reus element that can be committed by an
individual."
We reject this position because it is unnecessary that the
statute specifically set forth the individual as the actor as
opposed to the group; the statute need not begin "No
person shall . . ." (as appellants argue) for individual
liability to attach to a violation. The liability of an individual
-- or a group -- occurs when the four r equirements of the
statute are proven.
Not one court considering the application of 36 C.F .R.
S 261.10(b) has hesitated to apply that section to individual
defendants. We are not persuaded to chart a different
course here. In rejecting the appellants' argument, we are
guided by the opinion in United States v. Johnson, 159 F.3d
892 (4th Cir. 1998). There, the court clarified that proof of
a violation of section 261.10(k)
requires the government to demonstrate: 1) use, 2) of
National Forest land, 3) by a noncommerical gr oup of
75 or more persons, either as participants or
spectators, 4) without special use authorization.
_________________________________________________________________
Any violation of the prohibitions of this part (261) shall be
punished by a fine of not more than $500 or imprisonment for not
more than six months or both pursuant to title 16 U.S.C. section
551, unless otherwise provided.
5
Id. at 894. The record demonstrates that these
requirements were satisfied with r espect to each of the
appellants. Each knew of the permit requirement, that the
gathering of which they were a part was lar ge enough to
implicate that requirement,4 and that an application for a
permit had not been made. Armed with that knowledge,
these individuals could have avoided liability under the
regulations by opting not to participate in the gathering on
National Forest land where it was clear that a special use
authorization was required and had not been granted. The
record is devoid of any indication that it was "imperative for
[the] Rainbow Family to gather in a national forest, as
opposed to some other location, to pray and to discuss their
views." United States v. Linick, 195 F .3d 538, 543 (9th Cir.
1999).
To read the regulation and the penalty for its violation as
inapplicable to individuals who use the National For est
System as part of a group, with deliberate disr egard for the
group permit requirement, would effectively eviscerate the
special use authorization process. We decline to do so.
III.
The appellants next attack particular aspects of the
regulations on constitutional grounds, ar guing first that the
regulations are impermissibly vague and overbroad because
they fail to establish standards for the public and for those
enforcing the regulations "sufficient to guard against the
arbitrary deprivation of liberty interests." City of Chicago v.
Morales, 527 U.S. 41, 52 (1999).
"It is established that a law fails to meet the
requirements of the Due Process Clause if it is so vague
and standardless that it leaves the public uncertain as to
the conduct it prohibits. . . ." Id. at 56 (quoting Giaccio v.
Pennsylvania, 382 U.S. 399, 402, 403 (1966)). The
_________________________________________________________________
4. The appellants do not contend that they wer e not part of the "group"
that used the forest. Thus, this is not a case in which an individual is
charged under the regulation simply because he or she happened to be
in the same location with 75 or more persons who belonged to a "group"
of which the individual is not a part.
6
regulations here do not foster uncertainty. Unlike the
ordinance at issue in Morales, the r egulations clearly define
what conduct is prohibited; there is no need for speculation.5
Accordingly, we reject appellants' allegation that the
regulatory scheme is unconstitutionally vague.
IV.
The appellants next contend that the regulation
requirement that a special use authorization permit be
signed by a member of the group burdens the First
Amendment rights of individuals attending a Rainbow
Family gathering. According to the appellants,"[t]he
challenged regulation is unconstitutional because it is not
narrowly tailored to serve a significant governmental
purpose nor does it leave open ample alternate channels of
communication." By now there is a body of caselaw
addressing the constitutionality of the signature
requirement; this requirement has been upheld uniformly
and we will uphold it here.
Even where expressive conduct takes place in a public
forum, the government may impose reasonable "time, place
and manner" restrictions on that conduct. United States v.
Johnson, 159 F.3d at 895 (citing W ard v. Rock Against
Racism, 491 U.S. 781, 789 (1989)). These r estrictions
comport with constitutional requirements if they (1) are
content neutral; (2) are "narrowly tailored to serve a
significant governmental interest," and (3) "leave open
ample alternative channels for communication of the
_________________________________________________________________
5. The Supreme Court in Morales considered the constitutionality of
Chicago's Gang Congregation Ordinance. This ordinance prohibited
" ``criminal street gang members' fr om ``loitering' with one another or
with
other persons in any public place." 527 U.S. at 45-56. "Loitering" was
defined as "remain[ing] in any one place with no apparent purpose." Id.
at 47. The ordinance was void for vagueness where "[i]t [was] difficult to
imagine how any citizen of the city of Chicago standing in a public place
with a group of people would know if he or she had an ``apparent
purpose.' " Id. at 56-57. "[T]he vagueness that doom[ed] this ordinance
[was] not the product of uncertainty about the normal meaning of
``loitering,' but rather about what loitering[was] covered by the ordinance
and what [was] not." Id. at 57. The regulations challenged here are not
subject to the same uncertainty; the prohibition is clearly delineated.
7
information." Ward, 491 U.S. at 791. The appellants do not
dispute that the signature requirement is content neutral.
They argue instead that the requir ement is not narrowly
tailored and that it forecloses alter native channels of
communication.
These appellants represent that they and other
participants in the Rainbow gatherings meet as "individuals
who admit of no structure for leadership or hierarchy of
decision-making." They then contend that the"refusal of
the Government, through the guise of this permit scheme,
to permit large groups of individuals to gather on Forest
Service land, without first organizing and thereafter
delegating authority, is unduly burdensome." According to
appellants, any government interest served by the permit
process "can all be fully served by a system which assesses
proposed land uses on a case-by-case basis but does not
require an agent for the group to sign a special use
authorization." In essence, the appellants would have us
hold that in order to satisfy the requir ement that a
restriction on activity protected by the First Amendment be
narrowly tailored, the government is required to omit the
signature requirement from the permit scheme. We
disagree.
The Supreme Court makes clear in War d that in order to
pass constitutional muster, a time, place and manner
restriction need not be the "least r estrictive means" of
vindicating the government's interest. See 491 U.S. at 789-
97. Instead it is only necessary that the gover nment "could
reasonably have determined that its inter ests overall would
be served less effectively without [the r egulation] than with
it." Id. at 801. That certainly is the case here.
The interests vindicated by the regulatory scheme in
general were detailed by the Court of Appeals for the Fourth
Circuit in Johnson:
The regulations, as well as the Department of
Agriculture's comments accompanying 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
8
activities," and (3) "address concer ns of public health
and safety."
159 F.3d at 895 (quoting 60 Fed. Reg. 45,258, 45,262
(1995)). The Court then concluded that:
The permit requirement serves these three goals in a
narrowly tailored manner by providing a minimally
intrusive system to notify Forest 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.
Id.
That the interests served by the signatur e requirement in
particular would be served less effectively were that
requirement eliminated has also been r ecognized. We agree
with the reasoning of the District Court in United States v.
Masel, 54 F. Supp. 2d 903, 919 (W .D. Wis. 1999):
With respect to the signature r equirement, requiring an
individual to sign a special use authorization as a
representative of the group is necessary to ensure that
the group will be responsible for the actions of its
members as a whole, to give the authorization legal
effect and to subject the group to the authorization's
terms and conditions. Without the ability to impose
terms and conditions on all members of a gr oup, the
government would clearly be extremely hampered in its
ability to achieve any of its interests. The terms and
conditions of a group use permit would have little teeth
if they only applied to the individual who signed the
permit.
Based on these analyses of the interests served by the
regulatory scheme generally and the signatur e requirement
in particular, we are convinced that the regulations are
sufficiently "narrowly tailored" to serve legitimate
government interests.
We are similarly convinced that imposition of the
signature requirement "leave[s] open ample alternative
channels for communication." War d, 491 U.S. at 791. The
regulation does not preclude the use of state or private
property for Rainbow Family gatherings. It also does not
9
impinge upon the right of the Rainbow Family to meet on
federal land which does not fall within Forest Service
jurisdiction or to gather in groups made up of fewer than
75 individuals. Again, we agree with the District Court's
conclusion in United States v. Masel:
The Rainbow Family has a choice; if it does not wish to
perform an act that is antithetical to its core belief [ --
designating a representative to sign a per mit
application --] it can hold its gatherings in an area that
does not have a permit requirement.
54 F. Supp. 2d at 918.
Because we find that the challenged signatur e
requirement represents a r easonable time, place and
manner restriction on expressive conduct, we reject the
appellants' argument that the requir ement transgresses the
guarantees of the First Amendment.6
V.
We turn next to the appellants' challenge to that portion
of the regulatory scheme authorizing the For est Service to
attach terms and conditions to the grant of a permit. The
appellants contend that 36 C.F.R. S 251.56 is
unconstitutionally overbroad in that it confers"unbridled
discretion" upon representatives of the Forest Service.7 The
_________________________________________________________________
6. We reject, too, the appellants' claim that it was "legally impossible"
for
them to sign a special use authorization. The appellants maintain that
because they are merely associated with the Rainbow Family on a loose
voluntary basis and lack authority to act on behalf of the group, they
cannot sign a special use permit. This ar gument has been raised many
times but has never been credited. To r ecognize the appellant's claim of
legal impossibility would permit groups, however loosely-organized, to
"maintain a fiction that they have no leaders or agents" and thereby to
undercut the special use authorization pr ocess. United States v. Masel,
54 F. Supp. 2d at 920. "[B]ecause the attendees at the gathering could
have designated [appellants] as [persons] who would sign the permit on
behalf of the group without breaking any laws, it was not legally
``impossible' for [them] to sign the per mit." Id.
7. This provision reads:
10
appellants challenge the facial validity of these r egulations;
because the appellants did not apply for and did not receive
a special use permit, the regulatory pr ovisions at issue
were never applied to them.
In evaluating this argument we are guided by the
Supreme Court's admonition that "the doctrine of
overbreadth is appropriately applied in a facial challenge
only where ``the enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then the
overbreadth challenge must fail.' " Kreimer v. Bureau of
Police, 958 F.2d 1242, 1265 (3d Cir . 1992) (quoting Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 494 (1982)). "Accordingly, ``there must be a
realistic danger that the [regulation] itself will significantly
compromise recognized First Amendment pr otections of
parties not before the Court for it to be facially challenged
on overbreadth grounds.' " Id. (quoting Members of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)).
"[A] litigant must establish something mor e than a mere
possibility that a particular grant of discr etion might be
used unconstitutionally in some other setting." Gannett
Satellite Info. Network, Inc. v. Berger, 894 F.2d 61, 66 (3d
Cir. 1990).
In Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750,
751 (1988), the Supreme Court set forth a two-part test
governing when a First Amendment facial challenge may be
made to an allegedly overbroad licensing scheme. First, the
_________________________________________________________________
(a) General. Each special use authorization must contain:
(ii) Such terms and conditions as the authorized officer deems
necessary to (A) Protect Federal property and economic interests;
(B)
Manage efficiently the lands subject to the use or adjacent
thereto;
(C) Protect other lawful users of the land adjacent to or occupied
by
such use: (D) Protect lives and property; (E) Protect the interests
of
individuals living in the general area of the use who rely on the
fish,
wildlife, and other biotic resources of the area for subsistence
purposes; (F) Require siting to cause the least damage to the
environment, taking into consideration feasibility and other
relevant
factors; and (G) Otherwise protect the public interest.
As we have noted, the numbering of this section was amended in 1999.
11
regulation must confer upon a governmental official or
agency "substantial power to discriminate based on the
content or viewpoint of speech by suppressing disfavored
speech or disliked speakers." 486 U.S. at 759. Second,
"[t]he law must have a close enough nexus to expression, or
to conduct commonly associated with expression, to pose a
real and substantial threat of the identified censorship
risks." Id.8
The appellants contend that the terms and conditions
portion of the special use regulatory scheme, 36 C.F.R.
S 251.56, is subject to facial challenge under the test
announced in Lakewood because the br oad discretion
granted to the Forest Service could, at some future point,
be used to chill protected speech by gr oups with disfavored
political or social views. The appellants focus particularly
on language in the regulation which per mits the Forest
Service to impose upon a special use permit terms and
conditions deemed necessary "to protect the public
interest." We have reviewed the terms and conditions
provision against the background of the caselaw and are
convinced that this provision does not satisfy the facial
challenge requirements set forth in Lakewood.
We consider first the relationship between the terms and
conditions provision and expressive conduct, and conclude
that any relationship is, at best, incidental. Section 251.56
"does not target First Amendment activities." Masel, 54
F. Supp. 2d at 912. It is "not dir ected narrowly and
specifically at expression or conduct commonly associated
with expression." Id.
The terms and conditions provision does not permit the
Forest Service to ban disfavored speech. Moreover, it is
_________________________________________________________________
8. The Supreme Court has left open the issue of whether an individual
should be allowed to mount a facial challenge on the basis of unguided
discretion in regulating the manner of speech, instead of excessive
discretion in regulating whether speech should be prohibited altogether.
See Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) ("Since
respondent does not claim that city officials enjoy unguided discretion to
deny the right to speak altogether, it is open to question whether
respondent's claim falls within the narr ow class of permissible facial
challenges to allegedly unconstrained grants of r egulatory authority.").
12
applicable to every special use authorization; the clause
does not single out a "particular group, activity, or conduct
but is directed at all uses of the National For est." Id. at
912-13. Groups seeking to use the national for ests for
traditionally expressive purposes such as assemblies,
meetings, demonstrations and parades need not obtain
special use authorization and are not subject to the terms
and conditions provision unless their numbers r each or
exceed 75. The special use authorization scheme in general
and the terms and conditions provision in particular are
"directed not at expression, but at the congregation of large
numbers of people in the forest." Id. at 913. When the
provision is triggered, it applies with equal force to
recreational, expressive and all other special uses of the
forest. "Thus, the regulation is closer to a law of general
application." Id. at 914. "In this case, the ``terms and
conditions' provision ``provide[s] too blunt a censorship
instrument to warrant judicial intervention prior to an
allegation of actual misuse.' " Id. at 913 (quoting Lakewood,
486 U.S. at 761).
Although we acknowledge that there is some theoretical
possibility that the "terms and conditions" provision could
be invoked to chill protected speech, we ar e not persuaded
that "[t]he risk that Forest Service officials will use
nefariously any discretion afforded to them by the . . .
provision is . . . great enough to justify invoking the
``extraordinary doctrine' that permits facial challenges." Id.
at 914 (quoting Ward, 481 U.S. at 794).
Our position with respect to the first pr ong of the
Lakewood test is similar to that adopted by the District
Court in Masel:
[S]pecial uses cover virtually the entir e spectrum of
outdoor activities, the majority of which have nothing
to do with protected expression. In the absence of
empirical evidence demonstrating that a significant
proportion of the special use authorizations granted by
the Forest Service each year are for speech-related
activities, there is no basis to conclude that the terms
and conditions provision presents a substantial
opportunity for censorship on an ongoing basis.
13
54 F. Supp. 2d at 913-14. We thus hold that appellants
may not make a facial challenge to the regulation.
In the interest of completeness, we note that even were
we to entertain such a challenge, we would r eject it on the
merits because the regulation, as interpr eted by the
National Forest Service, specifically limits the discretion of
the Forest Service to impose conditions dir ected at
curtailing or censoring expression. See 60 Fed. Reg. at
45,262 (1995). "In evaluating the constitutionality of a
regulatory scheme, we should ``presume any narrowing
construction . . . to which the law is ``fairly susceptible.' "
195 F.3d 538, 542 (quoting Lakewood, 486 U.S. at 770
n.11).
As we have noted, the argument that the ter ms and
conditions provisions of the regulation is purposely vague,
giving the Forest Service the ability to invoke health and
safety concerns as a pretext for censoring expressive
activity, is not a novel one. Since 1995, the For est Service
has consistently taken the position that discr etion granted
to it under the regulations may only be used to further the
government's threefold interest in r egulating non-
commercial group use of forest land: (1) "protect[ing]
resources and improvements on National Forest System
lands;" (2) "allocat[ing] space among potential or existing
uses or activities;" and (3) "addressing concerns of public
health and safety." 60 Fed. Reg. at 45,262 (1995). We agree
with the District Court writing in United States v.
McFadden, 71 F. Supp. 2d 962 (W.D. Mo. 1999), that the
regulation authorizing the Forest Service to impose terms
and conditions "necessary to protect the public interest"
passes constitutional muster, particularly because the
Forest Service has specifically identified the "public
interests" it seeks to protect . . . .[T]erms and
conditions may only be imposed to protect one of the
delineated interests. Specifically, "ter ms and conditions
that the Forest Service may impose in a per mit are
limited to those designed to assure compliance with
otherwise applicable health and safety standar ds; to
minimize damage to water quality, fish, wildlife, and
other environmental aspects of the forests; and to
14
protect the physical safety of all those in the National
Forest System."
Id. at 965.9 We agree, too with the District Court's finding
that:
Regardless of . . . efforts to describe the terms and
conditions provision attached to a special use permit
as potentially onerous and oppressive . . . the
regulations . . . limit the permitting official's discretion
in an objective, constitutionally sound manner .
Id.
Accordingly, we hold that the appellants' facial challenge
fails.
_________________________________________________________________
9. In 1999, the Forest Service promulgated an interpretive rule clarifying
the scope of 36 C.F.R. S 251.56. See 64 Fed. Reg. 48,959 (1999). This
interpretive rule, which essentially embraced the holding in United States
v. McFadden, 71 F. Supp. 2d at 962, r eads in relevant part:
The imposition of terms and conditions in noncommercial group use
permits is limited to those designed to further the three public
interests identified by the Forest Service in promulgating the
noncommercial group rule . . . .
We are aware that the Court of Appeals for the Ninth Circuit held in
United States v. Linick that, prior to issuance of this interpretive rule,
the
terms and conditions portion of the special use authorization scheme
could have been invoked to attach conditions to the use of a public
forum in advance of actual expression and was, as a result, "facially
invalid." 195 F.3d at 542. The court concluded that the interpretive rule
preserved the constitutionality of the scheme because the scheme, as
limited by the rule, satisfied the criteria applicable to a permissible
"time-place-manner regulation" of expr essive activity. Id. at 543.
The court, however, dismissed the infor mation filed against Linick and
other defendants alleging a violation of 36 C.F .R. S 261.10(k), reasoning
that, because the conduct alleged took place in 1998 and the interpretive
rule was not promulgated until September 1999,"[t]he regulation . . .
gave the Defendants inadequate notice about the danger of being
successfully prosecuted under this newly and narrowly construed
regulatory scheme." Id. at 544.
As we have explained, we do not agree with the Court in Linick that
the terms and conditions portion of the r egulatory scheme is
constitutionally infirm under the criteria set forth in Lakewood.
15
VI.
In a related argument, the appellants contend that the
special use authorization scheme is subject to a facial
challenge and is unconstitutional because it impinges upon
First Amendment rights by not providing for immediate
judicial review of overly restrictive sear ch-related terms and
conditions which theoretically could be attached to the
grant of a permit. The government disagr ees, arguing that,
under the regulations, immediate judicial r eview is available
to challenge the imposition of terms and conditions: "The
Forest Service does not believe that it can r equire
exhaustion [of administrative remedies] in the
noncommercial group context."
The government's interpretation of its own regulations is
entitled to controlling weight, and this particular
interpretation has been adopted by at least one court. See,
e.g., United States v. McFadden, 71 F . Supp. 2d 962, 966
(W.D. Mo. 1999) (upholding government r eading of
regulations to permit applicants or special use permit to go
"directly to court" to challenge ter ms and conditions
attached to permit.) Appellants do not cite caselaw to the
contrary.
We are convinced that the government's construction of
the relevant regulations is reasonable and that the judicial
review provisions of the regulatory are not constitutionally
infirm.
VII.
Because we are convinced that the special use
authorization scheme was properly applied to these
individuals and is constitutional both on its face and as it
was applied here, we will affirm each of the Judgments in
this Criminal Case.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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