US v. Rainbow Family

695 F.Supp. 294

UNITED STATES of America

Plaintiff,

v.

The RAINBOW FAMILY, also known as the Rainbow Nation, et al.
Defendants.

Civ. A. No. L-88-68-CA.
United States District Court,
E.D. Texas,
Tyler Division.

June 1, 1988.

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.

[1] 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.

[2] 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.

[3] 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.

[4] ADMINISTRATIVE LAW AND PROCEDURE 15A§394, 15A§408,
WOODS AND FORESTS 411§8

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.

[5] 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. § 1740.

[6] 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.

[7] 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.

[8] CONSTITUTIONAL LAW 92§48(4.1),
Formerly 92§48(4)

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.

[9] 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.

[10] ADMINISTRATIVE LAW AND PROCEDURE 15A§412.1
Formerly 15A§412

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.

[11] CIVIL RIGHTS 78§268,
Formerly 78§13.2(4)

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. 1.

295

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 Council.

Barry Adams, Missoula, Mont., pro se.

ORDER

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.

I.

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,

296

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 the merits.

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.

II.

[1] The first question for consideration is whether the defendant Rainbow Family,

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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 other information.

[2] 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.

III.

[3] 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

298

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 class.

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.

IV.

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

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present evidence in this regard. See Report, at 25-26. [1] 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. § 1740.

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 injunction.]

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Fed. Supp. Continued

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