United States v. Tony R. Nenninger ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1350
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Tony R. Nenninger, *
*
Appellant. *
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Submitted: September 9, 2003
Filed: December 5, 2003
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Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
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BOWMAN, Circuit Judge.
After a trial held before a Magistrate Judge, Tony R. Nenniger was convicted
of two federal misdemeanors: using and occupying National Forest System land as
part of a group of seventy-five or more persons without special-use authorization and
constructing a water line on National Forest System land without special-use
authorization. See 16 U.S.C. § 551 (1994); 36 C.F.R. §§ 261.10(a), (k) (1997). He
was fined fifty dollars for each conviction. See United States v. McFadden, 71
F. Supp. 2d 962 (W.D. Mo. 1999) (opinion of Mag. J. England). Nenninger's
conviction was affirmed on appeal by the District Court,1 see 18 U.S.C. § 3402
(2000), and he now appeals, urging that his conviction violated his First Amendment
rights. We affirm.
This case arises out of a Spring 1998 gathering of the Rainbow Family in the
Eleven Point district of the Mark Twain National Forest in Southern Missouri.2
Forest Service Rangers met with several of the participants, including Nenninger, on
April 27, 1998. The purpose of the meeting was to discuss the logistics for the
gathering, including the necessity of obtaining a special-use authorization for a group
larger than seventy-five persons and permits in order to erect any water lines. The
Rangers prepared a site plan as part of the special-use authorization, delivered the
documents to the encampment on May 1, and left instructions for a group member to
sign and return the papers to their office. No one from the Rainbow Family ever
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
2
The Rainbow Family (or Rainbow People) has been described as:
an unincorporated, loosely-structured group 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 occurred 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.
Black v. Arthur, 18 F. Supp. 2d 1127, 1130 (D. Or. 1998) (quoting Rainbow Family's
complaint), aff'd, 201 F.3d 1120 (9th Cir. 2000). The Rainbow Family's annual
gatherings have been described as "a reunion in the woods commemorating and
attempting to re-create the 1960s with all the love and loving, communing with
nature, rejecting authority, accepting substances, and indulging appetites that made
up the best and the worst of that era." David B. Sentelle, Judge Dave & the Rainbow
People, 3 Green Bag 2d 61, 62 (1999).
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signed the special-use authorization, and when the Rangers returned on May 5, they
determined there were at least ninety to ninety-five persons, and perhaps as many as
500 people, present. Nenninger previously left the site for two to three days because
he was worried that he might be targeted for prosecution for failing to sign the
authorization, something he had not done because he did not feel he possessed the
authority to sign the permits on behalf of the group. He returned on May 6 and
presented himself to the Forest Service Rangers, who cited him and two other
individuals for various violations. The charges against one of Nenninger's co-
defendants were dismissed and another of his co-defendants pleaded guilty.
Nenninger unsuccessfully moved to dismiss the two-count information alleging
several violations of his First Amendment rights. He was convicted of both
misdemeanors and appealed to the District Court where he again raised several of the
same First Amendment claims and raised other claims as well. The District Court
affirmed his conviction. Nenninger now appeals and raises several First Amendment
claims.
In April and May 1998, when this case arose, several regulations governed
group gatherings of more than seventy-five persons on Forest Service land. The
Forest Service regulations make it illegal to "[u]se or occup[y] . . . National Forest
System land or facilities without special-use authorization when such authorization
is required." 36 C.F.R. § 261.10(k) (1997). Section 251.50(c) explains that no
special-use authorization is required for "noncommercial recreational activities"
unless the entity involved is a "noncommercial group." Id. § 251.50(c) & (c)(3)
(emphasis added). A "group use" within the meaning of the Forest Service
regulations is "an activity . . . that involves a group of 75 or more people, either as
participants or spectators." Id. § 251.51. If a group applies for a special-use
authorization, "[a]n authorized officer shall grant an application" after the officer
determines that:
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(i) Authorization of the proposed activity is not prohibited by [certain
federal regulations] or by Federal, State, or local law unrelated to the
content of expressive activity;
(ii) Authorization of the proposed activity is consistent or can be made
consistent with standards and guidelines in the applicable forest land
and resource management plan . . .
(iii) The proposed activity does not materially impact the characteristics
or functions of the environmentally sensitive resources or lands
identified in [the] Forest Service Handbook . . .
(iv) The proposed activity will not delay, halt, or prevent administrative
use of an area by the Forest Service or other scheduled or existing uses
or activities on National Forest System lands . . .
(v) The proposed activity does not violate state and local public health
laws and regulations as applied to the proposed site. . . .
(vi) The proposed activity will not pose a substantial danger to public
safety. . . .
(vii) The proposed activity does not involve military or paramilitary
training or exercises by private organizations or individuals . . .
(viii) A person or persons 21 years of age or older have been designated
to sign and do sign a special[-]use authorization on behalf of the
applicant.
Id. § 251.54(h)(1). Finally, § 251.56 governs the terms and conditions that must be
included in a special-use authorization, and this regulation permits the granting
officer to add "[s]uch terms and conditions as the authorized officer deems necessary
to . . . (vii) otherwise protect the public interest." Id. § 251.56(a)(2)(vii).
On appeal, Nenninger argues that his prosecution was unconstitutional and that
his motion to dismiss the information should have been granted. Specifically, he
urges that his prosecution violated his First Amendment right not to associate with
others. He also challenges the validity of the underlying regulations. We review the
denial of Nenninger's motion to dismiss these misdemeanor charges de novo. United
States v. Smith, 171 F.3d 617, 619 (8th Cir. 1999).
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First, Nenninger urges that his First Amendment right not to associate with
others was violated because he was cited for—but not charged with, prosecuted for,
or convicted of—refusing to sign a special-use authorization for the Rainbow Family
gathering. Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U.S. 557, 573–74 (1995). We assume, arguendo, that if Nenninger had been
convicted of refusing to sign the special-use authorization on behalf of the Rainbow
Family, constitutional difficulties would confront that conviction. But Nenninger was
not indicted on, prosecuted for, or convicted of this charge and therefore we need not,
and do not, address his arguments concerning this charge.
Second, Nenninger argues, as he did in the trial court and on appeal in the
District Court, that the regulation governing the issuance of the special-use
authorizations is overbroad and facially invalid because it allows the issuing Forest
Service officer to attach "[s]uch terms and conditions as the authorized officer deems
necessary to . . . otherwise protect the public interest." 36 C.F.R. § 251.56(a)(2)(vii)
(1997) (since amended) (emphasis added), and that such a term or condition could
chill First Amendment activity. If this regulation is invalid, he argues, then his
conviction for using and occupying Forest Service Land as part of a group that did
not have the requisite special-use authorization cannot stand. We reject his argument
that the regulation is invalid.
Nenninger brings a facial challenge; a type of claim that is "generally
disfavored." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (1990); see also
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (noting that the overbreadth
doctrine is "strong medicine. It has been employed by the Court sparingly and only
as a last resort"). In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750
(1988), the Supreme Court set out a two-part test that acts as a gatekeeper for facial
challenges based on the First Amendment's overbreadth doctrine. For such a
challenge to be viable, the law or regulation in question must confer "substantial
power to discriminate based on the content or viewpoint of speech by suppressing
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disfavored speech or disliked speakers." Id. at 759. In addition, "[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. Without deciding whether the regulation in question does "have a close enough
nexus to expression" to permit a facial challenge, see Virginia v. Hicks, 123 S. Ct.
2191, 2199 (2003) ("Rarely, if ever, will an overbreadth challenge succeed against
a law or regulation that is not specifically addressed to speech or to conduct
necessarily associated with speech . . . ."), we must reject Nenninger's challenge
because the regulations do not confer "substantial power to discriminate based on the
content or viewpoint." Lakewood, 486 U.S. at 759.
Nenninger's claim rests heavily on United States v. Linick, 195 F.3d 538 (9th
Cir. 1999), where the court affirmed the dismissal of an information that charged two
Rainbow Family members with crimes similar to those with which Nenninger was
charged. That court determined that § 251.56(a)(2)(vii)'s language (the same at issue
here) was impermissibly broad and violated the First Amendment because it allowed
the Forest Service "to invoke its authority . . . to impose such onerous terms on the
use of public land by certain groups so as to render impractical their use of the land
for expressive activities." Linick, 195 F.3d at 542; but see, United States v. Kalb, 234
F.3d 827, 835 (3d Cir. 2000), cert. denied, 534 U.S. 1113 (2002), (rejecting facial
challenge to same regulations). Accordingly, the court determined "that 36 C.F.R.
§ 251.56(a)(2)(vii) vests the Forest Service with unbridled discretion to deny
expressive activity and is therefore overbroad on its face." We reject Nenninger's
overbreadth claim and his reliance on Linick because a 1995 administrative statement
narrowed the reach of these regulations.
In Linick, the court held that § 251.56(a)(2)(vii) was invalid as applied to the
defendants. The court also held that a 1999 Forest Service interpretive rule saved the
regulation by clarifying the scope of the provision and limiting "public interest" to
"the need to address concerns of public health and safety, to minimize damage to the
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National Forest System resources, and to allocate space among actual or potential
uses and activities." Land Uses; Noncommercial Group Use Permit Approval, 64
Fed. Reg. 48959 (Sept. 9, 1999) (quoted in Linick, 195 F.3d at 542). But, the Linick
court did not address earlier Forest Service statements made when the agency
published amended regulations in response to United States v. Rainbow Family, 695
F. Supp. 294 (E.D. Tex. 1988) (holding that an earlier version of these regulations
violated the First Amendment because they distinguished between expressive conduct
and other forms of conduct) and other Rainbow Family cases. When it promulgated
the amended regulations in 1995, the Forest Service explicitly addressed concerns
about its ability to discriminate against expressive conduct. See Land Uses and
Prohibitions, 60 Fed. Reg. 45257, 45259 (Aug. 30, 1995). More importantly, the
Forest Service expressly noted that its regulations were designed to comply with the
applicable law and that the "public interest" it sought to protect in these regulations
referred only to public health and safety, preserving National Forest lands, and
allocating space among different groups and uses. E.g., id. at 45260, 45262, 45265,
45266. The specificity of the notice is striking. In response to comments from
members of the Rainbow Family, the Forest Service stated:
The intent of this rule is not to break up or prohibit any group uses,
including Rainbow Family Gatherings. Rather, the intent of this rule is
to control or prevent harm to forest resources, address concerns of
public health and safety, and allocate space. In United States v. Israel
and United States v. Rainbow Family, the Forest Service was not
attempting to prohibit the Rainbow Family Gathering, but rather to
enforce existing group use regulations where the Rainbow Family had
failed to obtain a special[-]use authorization.
Id. at 45265. Although there is some added specificity to the 1999 interpretive rule,
the difference between these two statements is not of constitutional moment. Rather,
the two statements establish that the Forest Service has been consistent in its
interpretation of these regulations; if constitutional, that interpretation is entitled to
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our deference. See, e.g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 274–75 (1974).
Because we must take into account any construction of a law that narrows its
application, we reject Nenninger's challenge in light of the consistent interpretation
the Forest Service has given the regulation in question. Lakewood, 486 U.S. at 770
n. 11.3
Nenninger also argues that the regulations requiring that noncommercial
groups obtain and sign a special-use application are not valid time, place, and manner
regulations. See 36 C.F.R. §§ 251.50(c), 251.54(h)(1)(viii), 251.61, 261.10(k)
(1997). We disagree. Time, place, and manner restrictions on expressive conduct are
valid if the law or regulation is content-neutral, is "narrowly tailored to serve a
significant governmental interest, and . . . leave[s] open ample alternative channels
for communication of the information." Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 293 (1984). Neither the requirement that groups of more than seventy-
five persons obtain a permit, nor the requirement that the permit be signed is invalid.
See United States v. Johnson, 159 F.3d 892, 895–96 (4th Cir. 1999) (rejecting claim
that special-use authorization requirement was invalid time, place, and manner
regulation). The regulations and the Forest Service's interpretive statements are
content-neutral and no claim has been made that these regulations are not uniformly
applied. The rule, which applies to groups large enough to do damage to the Forest
Service lands and to exclude others from the area they occupy, is designed to serve
significant government interests—protecting public health and safety, preserving
National Forest lands, and allocating space among different groups and uses. See
Clark, 468 U.S. at 297–98. Finally, the regulations leave ample alternative channels
for expressive activity. If the Rainbow Family wishes to avoid the special-use
authorization requirement, they may hold their gatherings on private property or other
3
Also, § 251.54(h)(1)(i) implicitly forbids denying special-use authorizations
based on laws that are "[]related to the content of expressive activity." This
prohibition supports our conclusion that the Forest Service personnel may not use
public interest as a pretext for suppressing expressive activity.
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lands. If they wish to gather en masse in the National Forests, they must obtain a
special-use authorization.4
For the reasons stated, the judgment of the District Court is affirmed.
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4
Nenninger also urges that the regulations were complied with because the
conditions specified in the group's special-use authorization—which was filled out
and approved by the Forest Service, but never signed—were substantially complied
with. He then claims, citing United States v. O'Brien, 391 U.S. 367, 377 (1968)
(explaining four-part test for validity of government regulations that incidentally
burden free speech), that, insofar as the only missing item was a signature, the
regulations are unreasonable and violate the First Amendment because they force
unassociated Rainbow Family members to associate with one another. We disagree
and we are satisfied that the signature requirement does not violate the test set forth
in O'Brien.
In addition, Nenninger contends that the regulations are void for vagueness
because Forest Service Rangers are given insufficient guidance as to "what
constitutes a 'group' for the purposes of the permit requirement." Reply Brief at 19.
Section 251.51 defines a "group use" as "an activity . . . that involves a group of 75
or more people, either as participants or spectators." We see no ambiguity in the
common word "group," which is usually given to mean "[a] number of persons or
things regarded as forming a unity on account of any kind of mutual or common
relation, or classed together on account of a certain degree of similarity." 6 Oxford
English Dictionary 887 (2d ed. 1989). We therefore reject this claim.
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