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
301
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
302
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
303
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
305
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"
305
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