United States v. John E. Johnson, III William v. Letempt Jeffery O. Pike Daniel Gallagher

159 F.3d 892, 1998 U.S. App. LEXIS 27582, 1998 WL 781215
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 28, 1998
Docket97-5023
StatusPublished
Cited by19 cases

This text of 159 F.3d 892 (United States v. John E. Johnson, III William v. Letempt Jeffery O. Pike Daniel Gallagher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John E. Johnson, III William v. Letempt Jeffery O. Pike Daniel Gallagher, 159 F.3d 892, 1998 U.S. App. LEXIS 27582, 1998 WL 781215 (4th Cir. 1998).

Opinion

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 forest system lands by groups of 75 or more persons without first obtaining 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 Rainbow Family in the Pisgah National Forest, located in Madison County, North Carolina. The Rainbow Family is a group that periodically gathers in natural surroundings, particularly to celebrate the solstices and equinoxes.

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 Stri-bling, along with Deputy Sheriff Lamar Wor-ley, returned to the forest and counted 66 people at the campfire circle and “in excess of 100 people” in the surrounding Puncheon Camp area. Officer Stribling then told Pike that it appeared that the 75 person threshold had been exceeded and if that was so, a permit 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 offi *894 cers 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 meeting, 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 be 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 attendance could exceed 75. He recalled that, although he had not performed a count of his own, he had disputed Officer Roth’s statement 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 specifically 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 Government to prove not only that 75 or more persons were in attendance, but that each of the defendants knew the group was this large. Alternatively, 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 Forest System land or facilities without special-use authorization when such authorization is required.” 36 C.F.R. § 261.10(k). The regulations 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 spectators.” Id. § 251.51.

Thus proof of a violation of these regulations requires the Government 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 defendant knew that 75 or more persons were present in the forest at the time the officers issued notices that they had violated the regulations.

*895 The regulations, as well as the legislative history, see 60 Fed.Reg. 45258 (1995), are “silent concerning the mens rea required for a violation.” Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).

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Bluebook (online)
159 F.3d 892, 1998 U.S. App. LEXIS 27582, 1998 WL 781215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-e-johnson-iii-william-v-letempt-jeffery-o-pike-ca4-1998.