U.S. v. Nenninger, 03-1350.

351 F.3d 340

UNITED STATES of America, Appellee, v. Tony R. NENNINGER, Appellant.

No. 03-1350.

United States Court of Appeals, Eighth Circuit.

Submitted: September 9, 2003.

Filed: December 5, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc January 26, 2004.

Counsel who presented argument on behalf of the appellant was Thomas M. Blumenthal of St. Louis, MO. Also appearing on the brief was Denise D. Lieberman.

Counsel who presented argument on behalf of the appellee was Philip M. Koppe, Assistant U.S. Attorney, of Kansas City, MO. Also appearing on the brief was Todd P. Graves.

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.

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 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:

(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).

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, 515 U.S. 557, 573-74, 115 S.Ct. 2338, 132 L.Ed.2d 487 (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, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); see also Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (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, 108 S.Ct. 2138, 100 L.Ed.2d 771 (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 disfavored speech or disliked speakers." Id. at 759, 108 S.Ct. 2138. 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, 539 U.S. 113, ___, 123 S.Ct. 2191, 2199, 156 L.Ed.2d 148 (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, 108 S.Ct. 2138.

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...