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United States v. Linick

Citation: 30 ELR 20176
No. No. 98-10502, 195 F.3d 538/(9th Cir., 11/15/1999)

The court reverses a district court decision that held unconstitutional a regulation that allowed the U.S. Forest Service to attach any terms and conditions protective of the public interest to a special use permit for National Forest System lands. The court first holds that the regulation, 36 C.F.R. § 251.56(a)(2)(vii), vests the Forest Service with unbridled discretion to deny expressive activity and is therefore unconstitutionally overbroad on its face. The regulation's language vests the Forest Service with the power to restrict the use of public land for an unlimited number of reasons so long as it can claim that the restriction serves the public's interest. Such broad discretion can be abused in a manner that could limit the use of public land by parties who hold political views disfavored by the Forest Service. The court then holds that an interpretive rule that the Forest Service promulgated to clarify 36 C.F.R. § 251.56(a)(2)(vii) preserves the constitutionality of the regulatory scheme because under the rule, which limits the permissible terms and conditions to health, safety, the environment, land use management, and the minimization of damage to National Forest System resources, the scheme satisfies the three-part test used to analyze the constitutionality of regulations governing the use of public forums. The court, however, affirms the district court's dismissal of charges brought against a group that gathered in the Apache-Sitgreaves National Forest without receiving a special use permit. The Forest Service promulgated the interpretive rule after the group was charged. Thus, the regulation gave the group inadequate notice of the danger of being successfully prosecuted under this regulatory scheme. Under such circumstances, permitting the government to proceed with prosecution would create a chilling effect on challenges that potentially encroach on the freedom of speech.

The full text of this decision is available from ELR (7 pp., ELR Order No. L-120).

Counsel for Plaintiff
Howard S. Scher
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Michael D. Linick
Law Offices of Michael D. Linick
P.O. Box 1125, Eugene OR 97440
unlisted