Barry Adams appealed his misdemeanor conviction for using National Forest System land without obtaining the special-use authorization required for groups of seventy-five or more people under Forest Service regulations. Adams was a member of the Rainbow Family, a group that gathers annually in National Forests "to pray for peace and discuss political and environmental issues," and he declined to apply for a Forest Service permit for the Rainbow Family's 2000 gathering at Beaverhead National Forest in Montana. The Ninth Circuit affirmed the district court's conviction of Adams.
Approximately 22,000 people, including Adams, attended the gathering in Beaverhead National Forest. USFS cited Adams and two others for not obtaining a permit. After a Magistrate Judge denied his motion to dismiss and conducted a bench trial, Adams was convicted of a misdemeanor. Despite First Amendment arguments by Adams, the district court affirmed the conviction, and Adams appealed. Because the case involved claims of constitutional violations, the Ninth Circuit reviewed the denial of the motion to dismiss de novo.
First, Adams claimed that the agency's regulatory scheme was facially unconstitutional. The Ninth Circuit rejected this argument, relying on its previous examinations of the group-use permit system, including United States v. Linick. In Linick, the court held the system was constitutional under the traditional three-part test for regulations on the use of public forums: such regulations must "(1) [be] content-neutral, (2) [be] narrowly tailored to serve a significant government interest, and (3) leave open 'ample alternatives for communication.'"
While conceding the first two prongs of the court's test, Adams argued that USFS regulations did not provide sufficient opportunity for communication. The Ninth Circuit was not persuaded by Adams's argument, citing its decision in Linick against defendants participating in a Rainbow Family gathering under similar circumstances. The Linick court reasoned that, because USFS is required to offer alternative arrangements when possible if a permit application is denied, and because defendants did not show why it was necessary to use National Forest land, there were "ample alternatives for communication," satisfying the third prong.
The Ninth Circuit discounted as "conclusory" the attempt by Adams to distinguish Linick by claiming that national forests were "vital" for Rainbow Family gatherings. Citing a Third Circuit decision, the Ninth Circuit noted that USFS regulations did not prevent the Rainbow Family from using private, state, or non-Forest Service federal land for its gatherings, nor did they prevent the Rainbow Family from gathering on Forest Service land in groups of less than seventy-five people. The Ninth Circuit found that the regulations left open "ample alternatives for communication" and were constitutional.
Second, Adams claimed that, as an individual, he could not be prosecuted for violating USFS's "group use" permit requirement. The court adopted the Third Circuit's reasoning in Kalb, holding that the lack of a formal leadership structure in the Rainbow Family did not prevent the prosecution of group members performing leadership roles. Adams also argued that he should not be punished for his mere presence at an event at which improper use occurred. The Ninth Circuit, however, held that Adams, as an organizer of the Rainbow family gathering who was aware that the USFS permit requirement had not been fulfilled, was not a mere attendee, and was therefore subject to prosecution under USFS regulations.
Finally, Adams claimed that he was selectively prosecuted, an argument that the Ninth Circuit found to be "without merit." Relying on evidence that his role as an organizer of the event and his participation in the gathering led to his prosecution, the court held the decision to prosecute Adams was within the government's discretion. Adams further argued that the government's failure to ticket all attendees at the gathering was discriminatory, an argument that the court also rejected. The court held that such a standard would require the government to cite either all violators or none at all, and that the government's choices of whom to prosecute were legal as long as there was no discriminatory purpose or effect.
Finding that the USFS permit scheme was constitutional, that individuals such as Adams were subject to "group use" regulations, and that Adams was not selectively prosecuted, the Ninth Circuit affirmed the district court's conviction of Adams.