US v. Rainbow Family695 F.Supp. 294
UNITED STATES of America
The RAINBOW FAMILY, also known as the Rainbow Nation, et al.
Civ. A. No. L-88-68-CA.
The United States sought preliminary injunction against association
and its members, prohibiting them in any way from preparing for, or
attending, or participating in any gathering of 25 or more persons
in any National Forest in the state of Texas unless they applied
for and obtained special use permit from Forest Service. After
receiving report and recommendations from magistrate, the District
Court, Justice, Chief Judge, held that: (1) interim special use
permit regulations had not been validly adopted, and (2) special
use permit regulations violated First Amendment to extent they
distinguished between expressive conduct, such as that at issue
here, and other forms of group activity in National Forest, and to
extent they did not provide objective and narrowly drawn standards
for issuance or denial of permits for expressive activity.
Motion for preliminary injunction denied.
See also, 695 F.Supp. 314.
United States District Court,
June 1, 1988.
 ASSOCIATIONS 41§1
Entity purporting to be merely gathering of persons sharing similar
outlook or philosophy was subject to suit as unincorporated
association, in view of evidence that entity, although informal and
loosely knit, nonetheless operated as organization, with
decision-making "councils," individuals who acted as agents,
representatives, or leaders on voluntary basis, and with
informational network, that meetings or gatherings were held in
many parts of country throughout year, and that recognized
decision-making structure existed within entity. Fed.Rules
Civ.Proc.Rule 17(b), 28 U.S.C.A.
 FEDERAL CIVIL PROCEDURE 170A§441
Service of process upon unincorporated association could be
effected by service upon its individual members, in absence of any
established leaders or agents, particularly where individual so
served acted in leadership or representative capacity, by
negotiating on behalf of association or "scouting" for sites for
gathering of members; to hold otherwise would permit organizations
to maintain fiction that they have no leaders or agents and hence
evade legal process altogether, which law would not allow.
 FEDERAL CIVIL PROCEDURE 170A§181
United States could sue individual members of unincorporated
association as defendant class, in seeking to enjoin association
and its members from gathering in National Forests without "special
use" permit, notwithstanding claim that no individual member could
speak for or represent other members and that, thus, individually
named defendants could not fairly and adequately protect interests
of class; tasks necessary to carry out association's functions,
such as councils or gatherings, were undertaken by individual
volunteers, pro re nata, depending on their particular ability and
desires, and individual defendants, identified because of their
willingness to take active role in association gatherings, were at
least as competent to represent defendant class as any other
member. Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.
 ADMINISTRATIVE LAW AND PROCEDURE 15A§394, 15A§408,
Fact that summer field season was close at hand, and large groups
would soon be gathering in National Forests did not provide "good
cause" for Forest Service's promulgating interim special use
regulations without notice and comment and without publication 30
days in advance of date they were to take effect, where decision
leaving previous special use regulations "unenforceable" had been
issued two years earlier. 5 U.S.C.A. § 553(b-d); 16 U.S.C.A. §§
472, 551; Federal Land Policy and Management Act of 1976, § 310,
43 U.S.C.A. § 1740.
 WOODS AND FORESTS 411§8
It was within authority of Secretary of Agriculture to prescribe
rules and regulations governing uses of Forest Service lands to
preserve National Forest environment. 16 U.S.C.A. §§ 472, 551;
Federal Land Policy and Management Act of 1976, § 310, 43 U.S.C.A.
 CONSTITUTIONAL LAW 92§84.5(11), 92§90.1(4), 92§91, 393§57
Forest Service's special use permit regulations implicated First
Amendment rights of speech, worship, and association insofar as
applied to association of persons intending to gather in forest to
exchange views and engage in education seminars and various forms
of worship; even act of camping in National Forests might have
political connotations and qualify as protected symbolic activity.
U.S.C.A. Const.Amend. 1.
 CONSTITUTIONAL LAW 92§90.1(4), 393§57
Forest Service lands are type of forum in which expressive activity
has historically occurred, and in which public expression of views
must be tolerated to maximal extent; therefore, regulation of
expressive activity in such forum must be narrowly tailored as to
time, place, and manner, and serve substantial governmental
interests, as well as leave open ample alternative channels of
communication; any prior restraint on expressive activity in such
context is particularly suspect. U.S.C.A. Const.Amend. 1.
 CONSTITUTIONAL LAW 92§48(4.1),
Proponent of law bears burden of establishing its constitutionality
when law infringes on exercise of First Amendment rights, though
duly enacted laws are ordinarily presumed to be constitutional.
U.S.C.A. Const.Amend. 1.
 CONSTITUTIONAL LAW 92§90.1(4), 393§57
Forest Service's special use permit regulations were facially
invalid, under First Amendment, insofar as they explicitly
distinguish between expressive and other types of activity and
imposed different requirements for obtaining permits based on
whether activity was expressive or not, and did not establish
sufficiently precise standards concerning denial or approval of
permit applications for expressive activity, vesting too much
discretion with Forest Service officials. 16 U.S.C.A. §§ 472, 551;
Federal Land Policy and Management Act of 1976, § 310, 43 U.S.C.A.
§ 1740; U.S.C.A. Const.Amend. 1.
 ADMINISTRATIVE LAW AND PROCEDURE 15A§412.1
Administrative regulations should be construed to preserve their
constitutionality, as far as possible, when portion of regulations
is found unconstitutional and may be severable without otherwise
disrupting regulations' functions.
 CIVIL RIGHTS 78§268,
United States was not entitled to preliminary injunction
prohibiting organization and its members from gathering in National
Forests without special use permit, in view of determination that
interim special use permit regulations under which preliminary
injunction was sought had not been validly adopted and that special
use permit regulations violated First Amendment to extent they
distinguished between expressive conduct, such as that which was at
issue, and other forms of group activity, and to extent they did
not provide objective and narrowly drawn standards for issuance or
denial of permits for expressive activity, particularly in view of
panoply of statutory and regulatory grounds available to United
States to prevent harms allegedly posed by gatherings.
Comprehensive Drug Abuse Prevention and Control Act of 1970, § 101
et seq., 21 U.S.C.A. § 801 et seq.; 16 U.S.C.A. §§ 551a, 559,
559b-559d; 18 U.S.C.A. §§ 13, 1853, 1863; U.S.C.A. Const.Amend.
Bob Wortham, Steven Mason, Asst. U.S. Atty., Tyler, Tex., O.
Kenneth Dodd, U.S. Atty., Beaumont, Tex., for U.S.
Larry R. Daves, Daves, Hahn & Levy, Tyler, Tex., for Principle,
"Electric Ed" and Holley Lynn, Barry Adams, Michael John, Water
Singing On The Rocks, Diane Temperance, & Little White Owl & Spring
Barry Adams, Missoula, Mont., pro se.
JUSTICE, Chief Judge.
The United States of America seeks a preliminary injunction against
the defendant Rainbow Family and its members, which would prohibit
the defendants in any way from preparing for, or attending, or
participating in any Spring Council, Summer Gathering or other
meeting of twenty-five or more persons in any National Forest in
the State of Texas, unless they have applied for and obtained a
"special use" permit from the U.S. Forest Service.
A temporary restraining order was entered on May 12, 1988, and
extended on May 19, 1988, which temporarily restrained and enjoined
the defendants from holding any Spring Council or other meeting of
twenty-five persons and more in any National Forest in the State of
Texas, or from organizing or preparing for any such meeting, unless
a special use permit was obtained from the U.S. Forest Service.
The temporary restraining order will expire on June 2, 1988.
Pursuant to 28 U.S.C. § 636(b)(1)(B), the Honorable J. Michael
Bradford, United States Magistrate, was designated to conduct an
evidentiary hearing and to submit proposed findings of fact and
recommendations for the disposition of the motion for preliminary
injunction. Hearings on the motion were conducted on May 13 and
May 19, 1988, in Lufkin, Texas. The magistrate's report and
recommendations were submitted on May 27, 1988 and objections
thereto by the parties were received on May 31, 1988. The report
has been considered by the court and a de novo review of the
objections of the parties has been conducted. For the reasons
below, the recommendations of the magistrate shall be adopted in
part, and rejected in part, and the motion for preliminary
injunction shall be denied.
To obtain a preliminary injunction, a plaintiff must show "(1) a
substantial likelihood [of prevailing] on the merits, (2) a
substantial threat that irreparable injury will result if the
injunction is not granted, (3) that the threatened injury outweighs
the threatened harm to defendant, and (4) that granting the
preliminary injunction will not disserve the public interest."
Canal Authority of State of Florida v. Callaway,
489 F.2d 567, 572 (5th Cir.1974), quoted in Mississippi Power &
Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th
Cir.1985). "[T]his four step analysis is actually a tool to assist
the court in answering the essential question determining the
propriety of a preliminary injunction, i.e., whether the injunction
is necessary to render a meaningful decision on the merits."
Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned
Sailing Vessel, 640 F.2d 560, 568 (5th Cir.1981). A preliminary
injunction is "an extraordinary and drastic remedy which should not
be granted unless the movant has clearly carried the burden of
persuasion concerning the existence and application of ... the four
prerequisites to such relief." State of Texas v. Seatrain
International, 518 F.2d 175, 179 (5th Cir.1975).
The motion for preliminary injunction, like the government's
application for a temporary restraining order, seeks solely one
form of relief--that the defendants be enjoined from gathering, or
from preparing for any gathering, in the National Forests, unless
and until they have applied for and received a special use permit.
The defendants have raised a number of objections to the requested
relief, arguing, inter alia, that they are not subject to suit or
to the jurisdiction of this court, that the permit regulations have
not been lawfully adopted, and that the regulations are
unconstitutional. They further contend that the government has
failed to demonstrate the likelihood of irreparable harm if the
injunction does not issue, or a likelihood that it will suceed on
Plainly, if the special use permit regulations are unlawful or
unconstitutional, the government's basis for the preliminary
injunction evaporates and the injunction must be denied. At the
hearing on the motion for temporary restraining order, it was
determined that the government had sufficiently shown a likelihood
of threat to public safety, health, and to Forest Service property,
such that, if not temporarily restrained and enjoined, irreparable
harm could result from the defendants' failure or refusal to secure
a special use permit in advance of any gathering on Forest Service
land. See Temporary Restraining Order, entered May 12, 1988, at 3.
In regards to the preliminary injunction, therefore, the magistrate
was instructed that he should take evidence and argument on the
various objections raised by the defendants, including whether the
court could properly exercise jurisdiction, whether the special use
permit regulations would in fact apply to any anticipated Rainbow
Family Spring Council or Summer Gathering on Forest Service lands,
and whether the special use permit regulations have been lawfully
adopted or impermissibly burden the defendants' constitutional
rights. Id., at 3-4.
In these respects, the magistrate proposes the following findings
and recommendations: 1) That the special use permit regulations
would apply to any anticipated Rainbow Family council, meeting or
gathering of twenty-five or more persons on National Forest lands;
2) that the regulations governing special use permits have been
lawfully adopted; and 3) that the regulations do not violate the
defendants' constitutional rights under the First Amendment.
Report, at 3-19. The defendants have objected to these proposed
findings, and the court has reviewed de novo the relevant evidence
in the record and the case authorities presented by the parties and
the magistrate. As the discussion below explains, while the
defendants may be subject to the court's jurisdiction and the
special use permit regulations would certainly apply to any
anticipated Rainbow Family gathering or meeting in the National
Forests, it appears that certain portions of those regulations have
not been validly promulgated and hence are ineffective. Moreover,
insofar as the regulatory scheme regarding special use permits
distinguishes between expressive conduct, protected by the First
Amendment, and other forms of conduct, and to the extent that the
regulations do not contain clear and narrowly drawn standards for
issuance or denial of permits affecting such expressive conduct,
the regulations transgress the First Amendment and cannot be
enforced by this court.
 The first question for consideration is whether the defendant
also known as the Rainbow Nation, the Rainbow Family of Living
Light, and the Gathering of the Tribes, is an entity subject to
suit and against which an injunction might be entered. The
defendants have consistently denied that they can be sued as an
entity, contending that there is no organization, structure, or
hierarchy to the Rainbow Family, but that it merely connotes a
gathering of persons sharing a similar outlook or philosophy.
Beyond their contention that the Rainbow Family is not a
organization, unincorporated or otherwise, the defendants also
object that service of process upon the Rainbow Family cannot be
effected by service upon one or more individuals who, at most,
merely associate with the Rainbow Family on a voluntary basis. The
government, on the other hand, contends that the Rainbow Family
acts as an unincorporated organization, that it may be sued as such
under the provisions of Federal Rule of Civil Procedure 17(b), and
that service of process upon the organization may be effected by
service upon one or more of its members.
As found by the magistrate, the evidence adduced at the hearing
before him "is substantial that the Rainbow Family is a combination
of persons with common interests, goals, objectives and purposes."
Report and Recommendation of United States Magistrate, May 27, 1988
(hereafter "Report"), at 23. The magistrate, therefore, found that
the Rainbow Family may be sued as an unincorporated association
under Rule 17(b), and, further, that service of process upon that
defendant has properly been accomplished by service upon several
individuals who act as agents or representatives of the Rainbow
Family. Report, at 24-25, citing Kay v. Bruno, 605 F.Supp. 767,
771 (D.N.Hamp.1985); Eastern States Petroleum v. Texas & N.O.R.
Co., 114 S.W.2d 408 (Tex.Civ.App.1938).
Upon review of the testimony and other evidence submitted at the
hearings, it is found that the conclusions and recommendations of
the magistrate are correct, and the objections of the defendants
are without merit. The evidence reveals that the Rainbow Family,
although informal and loosely-knit, nonetheless operates as an
organization, with decision-making "councils," individuals who acts
as agents, representatives, or leaders on a voluntary basis, and
which has an informational network. Meetings or gatherings are
held in many parts of the country throughout the year, and an
annual "Summer Gathering" has taken place for the last seventeen
years, drawing participants from around the nation and around the
world. Participants in such gatherings share many common interests
and political values or ideals, and express those shared ideas and
interests through Rainbow Family activities. Although decisions
are made collectively, on such matters as the time and location of
future gatherings, nevertheless, a recognized decision-making
structure exists, as well as methods of disseminating decisions and
 Moreover, service of process upon such an organization, where
there are no established leaders or agents, may be effectuated by
service upon its individual members, particularly where, as here,
the individuals so served act in a leadership or representative
capacity, by negotiating on behalf of the Rainbow Family or
"scouting" for sites for a gathering. To hold otherwise would
permit organizations to maintain a fiction that they have no
leaders or agents and hence evade legal process altogether, which
the law will not allow.
Accordingly, the magistrate's findings and recommendation that the
Rainbow Family may be subject to suit as an unincorporated
association under Federal Rule of Civil Procedure 17(b), and that
service of process has been properly effected upon such
unincorporated association by service upon several of its
individual members, are, hereby, adopted by the court.
 The magistrate was additionally instructed to take evidence and
to prepare proposed findings of fact and recommendations to the
court with respect to the allegations contained in the plaintiff's
amended complaint for injunction, that the defendants may be sued
as a defendant class
under the provisions of Federal Rule of Civil Procedure 23. In
particular, the magistrate was requested to consider, as to the
prerequisites for a class action under Rule 23(a), whether 1) a
proposed class of defendants, their affiliates, and other persons
planning on attending the 1988 Rainbow Family Summer Gathering are
so numerous that joinder of all such members and persons is
impracticable; 2) whether there are questions of law and fact
common to the proposed class; 3) whether the claims or defenses of
the named individual defendants, upon whom summons has been served,
are typical of the claims or defenses of the proposed class; and
4) whether any one or more of the named individual defendants, upon
whom a summons has been served, will, as representative parties,
fairly and adequately protect the interests of the class.
The magistrate concluded that all four prerequisites to the
certification of a defendant class, under Rule 23, are present.
The defendants object most strongly to the magistrate's finding
regarding the fourth factor, regarding whether the individual named
defendants would fairly and adequately protect the interests of the
class if they were designated as class representatives. In
particular, the defendants contend that no individual or
individuals can speak for, or represent, the group of Rainbow
Family members and others who might attend the 1988 Rainbow Family
Summer Gathering, because the group is comprised of numerous and
otherwise unrelated individuals, and because it is a "consensus
democracy," without hierarchical structure. Moreover, many of the
individual defendants have asserted Fifth Amendment immunities from
testifying in any way in this case, which they argue will inhibit
their respective abilities fairly and adequately to represent the
After thorough review of the evidence and the arguments of the
parties, it is concluded that the magistrate's findings and
recommendations on the four factors identified above, relating to
the maintenance of a defendant class in this action, are correct.
As to the ability of the individual defendants to fairly and
adequately represent the interests of the class, the testimony in
the record shows that tasks necessary to carry out Rainbow Family
functions, such as councils or gatherings, are undertaken by
individual volunteers, pro re nata, depending on their particular
abilities and desires. The individually named and served
defendants were identified by the government because of their
willingness to take an active role in the Rainbow Family
gatherings, including the Summer 1988 Gathering. They should,
therefore, be at least as competent to represent a defendant class
as any other member. If any other member objects to how class-wide
issues are being handled, of course, he or she can always come
forward to challenge the class representative.
Therefore, the magistrate's findings and recommendations as to the
prerequisites of maintaining this action as a defendant class
action, under Fed.R.Civ.P. 23(a), shall be, and they are hereby,
adopted as the findings and conclusions of this court.
The remaining issues for consideration go to the substance of the
plaintiff's motion for preliminary injunction, namely: whether the
government can validly require the defendants to obtain a special
use permit before holding any gathering or meeting of twenty-five
persons or more in any National Forest in the State of Texas;
whether the government has made the necessary showing to obtain
injunctive relief; and whether a preliminary injunction is the
only appropriate and available remedy to the government to enforce
the special use permit regulations in this instance.
The defendants have argued througout these proceedings that they
are not subject to the Forest Service's permit requirements, and
that the regulations governing special use permits for the National
Forest System are unlawful, unconstitutional, and without binding
effect upon them. They also contest that the Forest Service or the
government will suffer irreparable harm if an injunction does not
issue, although the magistrate reports that they have failed to
present evidence in this regard. See Report, at 25-26.  The
defendants have not raised in any detail the argument that the
government has an adequate remedy at law for any alleged violation
of the special use permit regulations; nor was the magistrate
directed to take evidence on, or otherwise to address, this issue.
Nevertheless, as is appropriate in determining a request for
preliminary or other injunctive relief, the court will also
consider this factor. See Northern California Power Agency v.
Grace Geothermal Corp., 469 U.S. 1306, 105 S.Ct. 459, 83 L.Ed.2d
388 (1984) (Rehnquist, then-Justice, sitting as Circuit Justice).
A. The Special Use Permit Regulations
The regulations at issue here, concerning "special uses" of the
National Forest System lands and the instances in which permits for
such uses are required, are found at 36 C.F.R. Part 251, Subpart B.
They were promulgated by the Secretary of Agriculture, pursuant to
his statutory authority to prescribe rules and regulations
concerning uses and preservation of the lands under the National
Forest System. See 16 U.S.C. § 472; 16 U.S.C. § 551; 43 U.S.C.
The regulations in Part 251 which define "special uses," and
establish the types of uses for which a special use permit is
required, were originally published on June 6, 1980, and amended on
June 21, 1984. In addition, a second revision of the regulations,
in the form of an interim rule to take immediate effect, was
published by the Secretary of Agriculture in the Federal Register
on May 10, 1988, the day on which the government filed its
complaint and application for a temporary restraining order. See
53 Fed.Reg. 16548 (May 10, 1988), amending 36 C.F.R. § 251.50 et
seq. (1987). It is this second revision of the regulations that
defendants contend has not been validly adopted. Because the May
10, 1988, interim rule alters the previously existing regulations
in several respects central to the issues presented here, a
detailed description of the regulations as they appeared before and
after the May 10, 1988 revisions is required.
Under the regulations prior to May 10, 1988, "All uses of National
Forest System land, improvements, and resources ... are designated
'special uses ' and must be approved by an authorized officer,"
with exceptions regarding disposal of timber and minerals and
grazing of livestock, which are governed by separate regulations.
36 C.F.R. § 251.50(a) (June 6, 1980, as amended June 21, 1984)
(emphasis added). The regulations provide, however, that a
"special use authorization is not required for the noncommercial
use or occupancy of National Forest System lands or facilities for
camping, picnicking, hiking, fishing, hunting, horse riding,
boating, or similar recreational activity," unless the activity is
one defined as a "recreation event" or as a "special event." 36
C.F.R. § 251.50(c) (emphasis added).
A "recreation event," for which a special use permit must be
obtained under the regulations, is defined as "a planned,
organized, or publicized recreational activity engaged in by a
total of ten (10) or more participants and/or spectators, that
involves competition, entertainment, or training such as, but not
limited to, animal or vehicle races or rallies, dog trials, fishing
contests, rodeos, fairs, regattas, and games." 36 C.F.R. §
251.50(i). A "special event," for which a special use permit is
also required, is defined as "a meeting, assembly, demonstration,
parade, or other activity, engaged in by ten (10) or more
participants and/or spectators, for the purpose of expression or
exchange of views or judgments." 36 C.F.R. § 251.50(1).
[1 Exhibits were introduced by defendants in opposition to the
government's assertion that irreparable harm to public health and
safety, and to Forest Service lands, would result from a Rainbow
Family Summer Gathering for which no permit has been obtained.
E.g., Defendants' Exhibits 2 & 3 (Forest Service reports on the
1978 and 1979 Rainbow Family Summer Gatherings). In view of the
holding herein, however, it is unnecessary to address such
contentions at this time. Both parties may, however, present
further evidence on this question at the hearing on the final
Fed. Supp. Continued
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