US v. Rainbow Family

695 F.Supp. 294

The regulations, then, define all uses of the National Forest lands (with the exceptions relating to timber, minerals, and grazing) as "special uses," but exempt "noncommercial use or occupancy"--such as camping, hiking, or picknicking--from the special use permit requirement. All other uses, including "recreation events" (ten or more persons involved in a competitive or entertainment activity), "special events" (ten or more persons engaged in expressive activity), or commercial uses of the forests, must obtain the special use permits.

Based upon this definitional distinction between "recreation events" and "special events," the regulations prior to May 10, 1988, also established separate standards for the denial or issuance of a special use permit. A special use permit for any use other than a "special event" (i.e., for recreation events or for commercial uses of National Forest lands), may be denied if 1) the proposed use "would be inconsistent or incompatible with the purpose(s) for which the lands are managed, or with other uses;" 2) the proposed use "would not be in the public interest;" 3) the "applicant is not qualified;" 4) the use would "otherwise be inconsistent" with federal or state law; or 5) the "applicant does not or cannot demonstrate technical or financial capacity." 36 C.F.R. 251.54(h).

As to "special events" themselves, different criteria for the denial or issuance of a special use permit are set forth in the regulations than for other uses. The regulations provide that a permit application is to be granted unless the reviewing officer determines that: (1) The special event would conflict with another use which has been previously approved by special use authorization, contract, or approved operating plan ...; or (2) The special event would present a clear and present danger to the public health or safety; or (3) the special event would be of such nature or duration that it could not reasonably be accomodated in the particular place and time applied for; or (4) The application proposes activities that are contrary to the provisions of Part 261 of this chapter [concerning prohibited uses of National Forest lands and property] or the provisions of any other Federal or State criminal law. 36 C.F.R. 251.54(i).

Thus, on their face, the regulations distinguish between expressive and other forms of conduct, and provide different grounds for the approval or denial of a special use permit based upon that distinction. Because of this facial differentiation between expressive activity and other forms of group activity in the National Forests, the permit regulations were held invalid under the First Amendment, two years ago, by the United States District Court for the District of Arizona. United States v. Israel, No. CR-86-027-TUC-RMB (May 10, 1986).

The Israel ruling prompted the Forest Service to revise the regulations, in the form of the interim rule published May 10, 1988. The interim rule does not alter the general special use permit scheme outlined above; rather, it amends the existing regulations in several respects. Most notably, the interim rule eliminates the previous distinction between "special event" and "recreation event," and creates instead a single category of "group event" for which a special use permit is required. 53 Fed.Reg. at 16548-50. A "group event" requiring a special use permit is defined under the interim rule as "an organized or publicized activity involving, or expected to attract, twenty-five or more persons and the use of National Forest System lands, resources, or facilities." 53 Fed.Reg. at 16550 (amending 36 C.F.R. 251.50). The interim rule also adds new provisions concerning "noncommercial printed material," and slightly amends the previous standards contained in 251.54, regarding approval or denial of special use permits. Id.

The preamble to the interim rule explains that such revisions are intended "to clarify that special use authorization for ... First Amendment activity will be granted unless certain conditions," specified in the regulations, "are not met." 53 Fed.Reg. at


16548. The interim rule, however, still makes a fundamental distinction between events involving expressive activity and other forms of "group events," by distinguishing between "group events for the public expression of views" and all other "group events." For example, the revisions to 251.54 in the interim rule provide as follows: (h) Response to applications for the distribution of noncommercial printed material or for a group event for the public expression of views. An authorized officer shall grant an application for authorization of distribution of noncommercial printed material or for a group event for the purposes of public expression of views, unless the officer determines that: (1) The planned event or use would conflict with another use which has been previously approved ...; or (2) The planned event or use would present a clear and present danger to public health or safety; or (3) The planned event or use would be of such a nature and duration that it could not reasonably be accommodated in the particular place and time applied for ...; or (4) The application proposes activities that are prohibited ...; or (5) There is no person or entity authorized to sign a special use authorization on behalf of the group applying for an authorization and/or there is not [sic] person or entity willing to accept responsibility for the group's adherence to the terms and conditions of the permit. Id. (amending 36 C.F.R. 251.54(i)). Separate criteria for "responses to applications for all other uses" are established, essentially adopting those previously contained at 251.54(h). Id. That is to say, the regulations-- even after the May 10, 1988, revisions--still make a fundamental distinction between expressive and other activities for purposes of approving or denying a permit application.

B. Applicability of the Regulations

As noted above, the defendants contend that the permit regulations are not applicable to them. If the permit regulations do not apply in this instance, obviously, the court need not consider further the motion for preliminary injunction, since the sole relief sought is to require that the defendants obtain a permit in advance of any gathering or meeting in the National Forests of twenty-five or more persons; nor would the court need to construe the defendants' further objections as to the validity and constitutionality of the regulations.

After taking evidence and argument on this issue, the magistrate concluded that the permit requirements would apply to any anticipated Rainbow Family meeting or gathering in the National Forests. Report, at 7. Indeed, there does not appear to be any question that, if valid, the regulations would apply to the Rainbow Family Summer Gathering, or other such meetings, because they involve organized or planned activities expected to attract twenty-five or more persons. Evidence of such organization and planning was offered by the government, including circulars promoting the up-coming Summer Gathering and other publications associated with the Rainbow Family, and the testimony of individual defendants about how decisions are reached on the location and timing of gatherings and councils. Thus, as the magistrate's recommendation in this regard appears to be correct, it will be, and it is hereby, adopted as the finding of this court.

C. Validity of the Interim Rule Adoption

[4] The defendants further object that the present regulations have not been validly adopted, since the interim rule was published on May 10, 1988, to take effect that date, without opportunity for prior notice and comment. The magistrate was directed to take evidence and argument on this objection. He concluded and found that the interim rule was lawfully adopted. See Report, at 7-13.

However, as explained below, this conclusion and finding


appears to be contrary to the law regarding agency rule making under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Therefore, the magistrate's recommendation in this respect shall be, and it is hereby, rejected.

The APA, which governs agency rule making (including the interim rule in question here), establishes two requirements, relevant here, before an agency may adopt a rule or regulation pursuant to statutory authority. First, the APA requires that "[g]eneral notice of the proposed rule making shall be published in the Federal Register," and interested persons are to be given an opportunity to participate in the rule making through "submission of written data, views, or arguments with or without opportunity for oral presentation." 5 U.S.C. 553(b) & (c). Second, after the proposed rule or regulation has received public comment or participation, the final rule is to be published "not less than 30 days before its effective date...." 5 U.S.C. 553(d).

The interim rule was published on May 10, 1988, and states that it is to take effect upon publication. Moreover, no opportunity was provided for public comment or participation in advance of the publication; rather, the interim rule provides for opportunity to comment from the date of publication until July 11, 1988. 53 Fed.Reg. at 16548. Thus, it is incontestable that the interim rule was adopted without adhering to the requirements either for prior notice and comment, or for publication thirty days in advance of the date the rule is to take effect, as specified in 5 U.S.C. 553(b), (c), and (d).

The APA, however, does provide several exceptions to these comment and publication requirements. Under 553(b), for example, notice of the proposed rule making and an opportunity for comment or participation need not be provided, if the rule is "interpretive" of a legislative act, if it is a general statement of policy, or if it solely relates to agency organization or procedure. Similarly, notice and comment may be waived "when the agency for good cause finds (and incorporates the finding and brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. 553(b)(A) & (B).

The exceptions to the thirty-day waiting period after publication of a rule, before it takes effect, are analogous. The waiting period may be omitted where an exemption to a substantive rule is granted; where the rule is "interpretive" or is a statement of policy or agency procedure; or "as otherwise provided by the agency for good cause found and published with the rule." 5 U.S.C. 553(d)(1)-(3).

The regulations at 36 C.F.R. Part 251 are patently substantive rules, not interpretive rules or related solely to agency procedures. Thus, the only possibly relevant exceptions here to the notice and comment and waiting period requirements are the "good cause" provisions quoted above. Unless the agency has specifically--and supportably--found that public notice and comment was "impracticable, unnecessary, or contrary to the public interest," under 553(b)(B), and that "good cause" existed for the rule to take effect upon publication, under 553(d)(3), it would appear that the interim rule was not validly adopted or effective on May 10, 1988. See Levesque v. Block, 723 F.2d 175, 187 (1st Cir.1983); U.S. Steel Corporation v. U.S. EPA, 595 F.2d 207, 214-15 (5th Cir.1979), clarified 598 F.2d 915 (1979).

In this respect, the preamble to the interim rule states that [I]t has been found and determined that advance notice and request for comments would be impracticable and contrary to the public interest. Because of the decision in United States v. Israel, the current rule pertaining to special use authorizations for large group gatherings on the National Forest System is unenforceable. The summer field season is close at hand and large groups will soon be gathering on the National Forests. It is, therefore, imperative that an enforceable rule be in place so that forest officers have a mechanism, where necessary, to control the impacts of these groups and


prevent unnecessary damage or risk to National Forest resources and facilities, and public health and safety. 53 Fed.Reg. at 16549. There is no explicit "good cause" finding with respect to the thirty-day waiting period requirement under 553(d), although it may be inferred that the same reasons were found by the agency to justify waiver of this requirement. See Wells v. Schweiker, 536 F.Supp. 1314, 1323 (E.D.La.1982).

An agency's proffered rationale of "good cause," for failing to observe the notice and comment period required by 5 U.S.C. 553(b), should be "closely examine[d]" by a reviewing court. Mobil Oil Corp. v. Department of Energy, 728 F.2d 1477, 1490 (Temp.Em.App.1983), reh. en banc denied, cert. denied 467 U.S. 1255, 104 S.Ct. 3545, 82 L.Ed.2d 849 (1984). See also U.S. Steel, supra, 595 F.2d 207; City of Waco v. EPA, 620 F.2d 84 (5th Cir.1980); Wells, supra, 536 F.Supp. at 1324. Moreover, the APA's statutory exceptions from notice and comment procedures must be "narrowly construed and reluctantly countenanced." Mid-Tex Electric Cooperative v. FERC, 822 F.2d 1123, 1132 (D.C.Cir.1987) (quoting American Federation of Government Employees v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981)); U.S. Steel, 595 F.2d at 214; Baylor University Medical Center v. Heckler, 758 F.2d 1052, 1058 (5th Cir.1985); K. Davis, Administrative Law Treatise, 6.29 at 124 (1984).

"As the legislative history clearly indicates, Congress was emphatic in its view that the exception for 'good cause' provided by 553 is to be read stringently: The exemption of situations of emergency or necessity is not an 'escape clause' in the sense that any agency has discretion to disregard its terms or the facts. A true and supported or supportable finding of necessity or emergency must be made and published. S.Doc. No. 248, 79th Cong., 2d Sess. at 200 (1946)." State of South Carolina Ex Rel. Patrick v. Block, 558 F.Supp. 1004, 1016 (D.S.Car.1983).

The Forest Service appears to place the entire weight of its finding that public notice and comment was not practicable, before the interim rule was promulgated, on the bases that the "summer field season is close at hand, and large groups will soon be gathering on the National Forests," and that the decision in United States v. Israel left the special use regulations "unenforceable." Notably lacking from the agency's finding, however, is any discussion of why it has taken the Forest Service exactly two years to finally promulgate revisions to the special use regulations, after the Israel decision. Two entire summer seasons have taken place in the intervening period, and the interim rule relates no adverse effects from the absence of any amendments to or revision of the regulations in that period. Certainly, there is no showing in the interim rule that the Forest Service's alleged problems with the Rainbow Family in North Carolina in the summer of 1987 were in any way traceable to the Israel decision, see Report, at 10-11, nor could such a post hoc rationale justify the failure to offer the rule for public comment. Motor Vehicle Manuf. Ass'n v. State Farm Mutual Automobile Insur. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (agency action must be upheld, if at all, on the basis articulated by the agency at the time of the rule making); Baylor Medical, supra, 758 F.2d at 1060. The Forest Service obviously could have drafted and published proposed revisions to the regulations for public comment immediately after the Israel decision, or even as late as the fall or winter of 1987-1988, had it so desired; but it did not do so, for unexplained reasons.

In short, it appears that the Forest Service has itself been dilatory in failing to offer the proposed revisions to the special use regulations long before now. The magistrate's report states that the record contains "no evidence ... indicating that the Forest Service intentionally delayed this decision [to publish the interim rule] in order to circumvent the usual notice and comment procedure." Report, at 12. On the other hand, the record contains no evidence to excuse the agency's unexplained delay in revising the regulations. There is no requirement that an agency deviously or even willfully have delayed acting, in order


to find that it wrongfully failed to offer regulations for notice and comment--even the most inadvertent delay may still be cause for finding that such regulations have been invalidly promulgated and of no effect. See U.S. v. Garner, 767 F.2d 104, 120-21 (5th Cir.1985); Maine Association of Interdependent Neighborhoods v. Petit, 659 F.Supp. 1309, 1319 (D.Me.1987); Ngou v. Schweiker, 535 F.Supp. 1214, 1216- 17 (D.D.C.1982) (Secretary "cannot bootstrap himself into a position of emergency based on his own dilatory conduct" by unexplainedly delaying publication of rule for 32 days after it was approved).

The legislative history to the APA makes clear that the "good cause" exceptions to notice and comment are intended for true emergencies only. " 'Impracticable' means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings...." Senate Rpt. No. 752, 79th Cong., 1st Sess. at 16 (1945), quoted in American Iron & Steel Institute v. EPA, 568 F.2d 284, 292 (3rd Cir.1977); State of South Carolina v. Block, supra, 558 F.Supp. at 1016. The case law has steadfastly reflected this legislative intention. For example, courts have found "good cause" for omitting public notice and comment where an agency is threatened with impairment of its functioning, American Transfer & Storage Co. v. ICC, 719 F.2d 1283, 1292-94 (5th Cir.1983), or needs to provide guidance on imminent hearings, Arizona State Dept. of Public Welfare v. HEW, 449 F.2d 456, 481 (9th Cir.1971), cert. denied 405 U.S. 919, 92 S.Ct. 945, 30 L.Ed.2d 789 (1972). In other cases, "good cause" has been found when the agency is operating under exceedingly short legislative or judicial timetables. E.g., Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877 (3rd Cir.1982) (amendments enacted forty-nine days before "wholesale revisions" of regulations were required to take effect); American Federation of Government Employees v. Block, 655 F.2d 1153 (D.C.Cir.1981) (court injunction requiring immediate adoption of regulations, plus threat of severe harm to poultry industry if regulations were not quickly adopted, constitute good cause).

"Good cause" has also been found in contexts where quick administrative action is necessitated without prior notice, such as in imposition of price controls or quotas on goods. Mobil Oil, supra, 728 F.2d at 1491-92 ("mere announcement" of proposed oil industry rule could cause price discrimination and market dislocations); DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp.Em.App.), cert. denied, 419 U.S. 896, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974) (announcement of future price freeze would create massive rush to raise prices).

By contrast, where the agency has had substantial time in which to offer proposed regulations or rules for public comment or input, courts have refused to find any "good cause" for omitting this requirement, even where--as here--the agency argues that an impending deadline or "emergency" made notice and comment impracticable. E.g., Kollett v. Harris, 619 F.2d 134, 145 (1st Cir.1980) (no good cause where agency had fourteen months between legislative enactment and effective date of regulations); American Iron & Steel Institute v. EPA, 568 F.2d 284 (3rd Cir.1977) (no "good cause" where EPA knew of duty to promulgate regulations three years before deadline); Consumers' Union v. Sawhill, 393 F.Supp. 639 (D.D.C.), aff'd 523 F.2d 1404 (Em.App.1957) (more than one year existed between passage of act and final deadline for regulations); Levesque v. Block, supra, 723 F.2d at 184 (no good cause where Congress wanted agency to act "with dispatch" in promulgating food stamp regulation revisions, but did not specify a time deadline).

Even a six-month deadline has been held sufficient time in which to offer proposed regulations for comment. U.S. Steel, 595 F.2d at 214-15; City of Waco, 620 F.2d at 86; Sharon Steel Corp. v. EPA, 597 F.2d 377 (3rd Cir.1979).

Additionally, as suggested above, where the failure to offer a proposed rule for notice and comment may be attributed to the agency's own dilatory tactics, whether intentional or not, this is a "decisive factor"


in rejecting the agency's claim of "good cause." Philadelphia Citizens, 669 F.2d at 885; Maine Ass'n, 659 F.2d at 1318; Wells, 536 F.Supp. at 1324; Ngou, 535 F.Supp. at 1216-17. See also Mid-Tex Electric, 822 F.2d at 1132.

In view of the fact that the Forest Service, in this instance, had fully two years after the Israel decision in which to act, but did not do so until this late date, the conclusion is inescapable that the agency lacked good cause, under 553(b), for failing to offer the proposed revisions for public comment and participation before they were adopted. The agency has further failed to demonstrate, in any way, why the regulations had to be adopted immediately upon publication, rather than thirty days after publication, as required by 553(d). Consequently, the interim rule published at 53 Fed.Reg. 16548 was not validly promulgated on either ground, and hence was not effective as of May 10, 1988. The fact that the agency has offered to receive comments for sixty days after the effective date of the interim rule will not cure the failure to take public comment in advance. Levesque v. Block, supra, 723 F.2d at 187; New Jersey v. EPA, 626 F.2d 1038, 1049 (D.C.Cir.1980); U.S. Steel, supra, 595 F.2d at 214-15.

The appropriate action for a court to take where a regulation has been improperly adopted, without notice and opportunity for comment, is to declare the regulation ineffective. Levesque, 723 F.2d at 186-87; Consumer Energy Council v. FERC, 673 F.2d 425, 447-48 (D.C.Cir.1982); Detroit Edison Co. v. U.S. EPA, 496 F.2d 244, 248 (6th Cir.1974); Sannon v. U.S., 460 F.Supp. 458, 468 (S.D.Fla.1978); City of New York v. Diamond, 379 F.Supp. 503, 515-18 (S.D.N.Y.1974). The remedy for an agency's failure to allow the thirty-day waiting period, before a final rule takes effect after publication, is to hold the regulation ineffective until the waiting period has run. Maine Ass'n, 659 F.Supp. at 1318-19; Ngou, 535 F.Supp. at 1216-17. In either case, it is apparent that the interim regulations were not in effect as of May 10, 1988, and are not in effect at this time. Therefore, the interim rule revisions to the special use permit regulations cannot provide the basis for the injunctive relief requested by the government.

D. Constitutionality of the Special Use Permit Regulations

Because the interim rule is presently of no effect, the previously promulgated regulations at 36 C.F.R. Part 251 remain operative, without the revisions proposed in the interim rule. The defendants maintain that both the existing regulations, and as amended by the interim rule, violate their constitutional rights to freedom of speech, assembly, and worship. [2] The following discussion, however, focuses solely on the constitutionality of the existing regulations, and not the interim rule, since the May 10, 1988, revisions have been held ineffective. [3]

[2 The defendants have also raised contentions that the special use permit regulations have been unconstitutionally applied to them, out of hostility to their viewpoint or the content of their expressive activity. In light of the holding herein, it is unnecessary to address such contentions regarding application of the regulations at this time.]

[3 To the extent that the proposed revisions to the regulations still manifest the constitutional infirmities identified in the text, with respect to the existing regulations, the analysis would be equally applicable to the interim rule. It is noteworthy that the public notice and comment required by the APA may reveal precisely this sort of constitutional questionability of a proposed rule, in advance of the rule's adoption, thereby minimizing the possibility that the agency may later find its regulation unenforceable by reason of a judicial determination of unconstitutionality. See Levesque v. Block, 723 F.2d at 187-88.]

Fed. Supp. Continued

Case Listing --- Proposition One ---- Peace Park