US v. Rainbow Family

695 F.Supp. 294

In A.C.O.R.N. v. Golden, supra, a city ordinance was similarly invalidated for lack of precise standards, where it forbade any door-to-door solicitation, poll-taking, or peddling, except for a "charitable, religious, patriotic or philanthropic purpose or otherwise provides a service and product so necessary for the general welfare of the residents of the city that such activity does not constitute a nuisance." 744 F.2d at 741. This language was held to be "not drawn with the requisite narrow specificity, and instead permits exemptions to be granted at the city council's discretion....' [T]he words 'charitable, religious, patriotic, or philanthropic' may be considered vague and indefinite,' and the catch-all 'or otherwise provides' clause 'is uncertain in meaning.' " Id., at 748 (citation omitted). See also Beckerman v. City of Tupelo, 664 F.2d 502 (5th Cir.1981) (ordinance allowing chief of police to deny permits if issuance will "provoke disorderly conduct," "will probably

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cause an injury," or "create a disturbance" grants too much discretion); Fantasy Book Shop v. City of Boston, 652 F.2d 1115 (1st Cir.1981) (permit to be issued where it meets "legitimate protected interests of affected citizens" is too uncertain); International Society of Krishna Consciousness v. Rochford, 585 F.2d 263 (7th Cir.1978) (regulations vest too much authority to deny permits in airport director); Grandco Corp. v. Rochford, 536 F.2d 197 (7th Cir.1976) (standard based on whether applicant is "fit and proper person" is invalid); New York PIRG v. Village of Roslyn Estates, 498 F.Supp. 922 (E.D.N.Y.1979); Exotic World News v. Appleton, 482 F.Supp. 1220 (E.D.Wisc.1980); Goldstein v. Town of Nantucket, 477 F.Supp. 606 (D.Mass.1978) (conditioning grant of license on effect of the grant on neighborhood properties is invalid).

The standards in this instance for denial of a special use permit, when expressive activity by a group is concerned (a "special event"), are quoted above, page 14. They allow the Forest Service to deny a permit when, for instance, the "special event would present a clear and present danger to the public health and safety," or the special event "would be of such nature or duration that it could not be reasonably accommodated in the particular place and time applied for," or when the event "would conflict with another use" previously approved by the Forest Service. 36 C.F.R. § 251.54(i)(1)-(3). None of these grounds for denial of a permit is further defined, however--such as the type of "danger" to the public health and safety that is contemplated, when that danger would be "clear and present," or when an event would be determined to "conflict" with some other use of the forests. Neither is there any requirement in the regulations that even a statement of reasons for denial of a permit must be given. Finally, the regulations impose no time frame or deadline for when a special use permit application is to be made, when a decision on such an application must be delivered, or whether any judicial review or appeal is available. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (constitution requires short deadline for administrative action on application for a permit affecting speech, and opportunity for review); NAACP Western Region v. City of Richmond, 743 F.2d 1346 (9th Cir.1984) (discussing time limit requirement); Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666 (11th Cir.1984) (no time limit for decision on permit for newsracks invalidates city ordinance).

The magistrate found that these standards for denial of a permit for "special events" are "specific and narrowly drawn criteria [so as] to serve as limits on the discretion of Forest Service officials in denying a permit," with the notable exception of § 251.54(i)(2), which allows denial of permit where the event "would present a clear and present danger to public health or safety." Report, at 17-19. He thus concludes that the regulations, with the noted exception, are constitutional and that the Israel order was wrongly decided.

Indeed, under Shuttlesworth and Fernandes, it is apparent that the "clear and present danger to public health and safety" ground for denial of a special use permit is standardless, and allows Forest Service officials to deny permits for expressive activity based on their subjective, unbridled discretion. Under this criterion, an official is free to speculate as to the likely effect of some act of speech, association or other expressive activity, before it happens, drawing his or her own conclusions as to what the "public health or safety" may be. Compare Fernandes, 663 F.2d at 631 ("direct and immediate danger or hazard to the public security, health, safety or welfare" standard is overly vague). Thus, the report and recommendation of the magistrate is correct, to the extent that he concludes that this portion of the regulations is unconstitutional, and his finding is adopted in this respect.

But, his further finding, that the remaining grounds for denial of permits for "special events" are otherwise constitutional, and that the regulations are narrowly and specifically drawn to serve substantial government interests, is not consistent with the analysis employed in such cases as

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Shuttlesworth or Fernandes. In the first place, as noted above, the Forest Service is free to speculate or determine in advance whether a proposed event will be for the "purpose of expression or exchange of views or judgments," and thereby invoke the "special events" permit criteria. Since many--if not all--group activities will naturally involve some expression of views or exchange of judgments, under these regulations an official has virtually unfettered discretion to invoke the "special events" permit application provisions, with their unique criteria for denial of a permit. The lack of standards relative to when a "special event" permit must be applied for, in contrast to all other "special uses," would, alone, be sufficient to invalidate the regulations on vagueness grounds.

Likewise, as with the "clear and present danger" criterion, it would equally be within a Forest Service official's unbridled discretion to determine that a planned event involving expressive activity "would conflict" with some other use of the National Forest, or that it "could not reasonably be accommodated" in a particular time and place applied for. It is easily foreseeable that either rationale could be readily invoked by an official to deny a permit to a group expressing views anathema to the official's own beliefs. And, although the regulations require that if a permit is denied for either of these reasons, the applicant is to be given "the opportunity to accept an alternative site or time" selected by the Forest Service official, 36 C.F.R. § 251.54(i), nowhere do the regulations require that a reason for denial of a permit actually be given; therefore, in many cases it may be impossible to tell what the true grounds were for denying a permit application. [6]

Because these regulations treat expressive activity in a selective manner, the burden is upon the government to establish that they are narrowly drawn, and that the restrictions are reasonable as to time, place, and manner. It has failed to carry those burdens in this instance. The criteria for denial of a special use permit to groups wishing to engage in expressive activity in the National Forests commit the decision regarding approval or denial to the subjective, virtually unfettered discretion of Forest Service officials, with no requirement that they justify or explain any denial of a permit. Under Shuttlesworth, Fernandes, and the other cases cited above, the regulations must be struck down as unconstitutional, to the extent that they impose a prior restraint upon the exercise of First Amendment liberties.

[10] In so holding, the entire regulatory apparatus concerning special use permits is not being voided. "[A] court should refrain from invalidating more of the statute than is necessary....

'[W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of the court to so declare, and to maintain the act in so far as it is valid.' " Regan v. Time, 468 U.S. 641, 652, 104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984) (plurality opinion), quoting El Paso & N.E.R. Co. v. Gutierrez, 215 U.S. 87, 96, 30 S.Ct. 21, 24, 54 L.Ed. 106 (1909). Administrative regulations should be similarly construed to preserve their constitutionality, as far as possible, when a portion of the regulations is found unconstitutional and may be severable without otherwise disrupting the regulations' functions. Alaska Airlines Inc. v. Brock, 480 U.S. 678, ----, 107 S.Ct. 1476, 1481, 94 L.Ed.2d 661 (1987); Jochum v. Pico Credit Corp. of Westbank, Inc., 730 F.2d 1041, 1047 (5th Cir.1984); Rucker v. Wabash RR Co., 418 F.2d 146, 149 (7th Cir.1969). Thus, only those portions of the regulations at 36 C.F.R. Part 251 which refer explicitly to "special events" are held to be

[6 Furthermore, vesting the official with the discretion to propose an alternative place or time for the expressive activity, or his or her own choosing, is highly repugnant to the First Amendment's spirit of allowing citizens the freedom to decide when and where they wish to exercise their rights to speak, worship, or assemble. "One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151-52, 84 L.Ed. 155 (1939). ]

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unconstitutional under the First Amendment--namely, 36 C.F.R. § 251.50(c), to the extent it includes "special events;" § 251.50(1); § 251.53(a), to the extent it includes "special events;" and § 251.54(i). The remaining provisions in the regulations, including the requirement that special use permits be obtained for any "recreation event" or other "special uses" of the National Forest System land or property, remain valid and enforceable.

E. Plaintiff's Remedy at Law

By virtue of the holdings above--that the interim rule is not presently in effect, and that the regulations requiring a special use permit for "special events" are unconstitutional--there is no legal ground for the preliminary injunction demanded by the government. It bears reiterating that the government has solely requested, as preliminary injunctive relief, that the defendants be required to secure a special use permit before they hold or prepare for a Spring Council or Summer Gathering in the National Forests in Texas. [7]

Denial of the plaintiff's motion for preliminary injunction does not, however, deprive it of other remedies at law. A perusal of applicable statutes and regulations discloses that several other remedies are available to the government for the alleged harms to public health and safety, and to National Forest property or lands, which the government sought to forestall through the issuance of a preliminary injunction.

For example, violations of Forest Service regulations (assuming they are valid and constitutional) are punishable by a fine of up to $500.00 and six months imprisonment. 16 U.S.C. § 551; see also 36 C.F.R. § 261.16. Available to the Forest Service is an abundance of unchallenged regulations promulgated for the protection of the National Forests and tailored to control the various abuses that the plaintiff fears, and which are wholly unrelated to the special use permit regulations. See, e.g., 36 C.F.R. § 261.3 (prohibiting interference with a Forest Service officer engaging in official duties); 36 C.F.R. § 261.4 (prohibiting public disturbances and disorderly conduct); 36 C.F.R. § 261.9 (prohibiting damage to government property or endangered flora); 36 C.F.R. ss 261.11 and 261.14(q) (regulating the disposal of refuse and sewage); 36 C.F.R. § 261.12(d) (prohibiting the restriction of access to Forest System roads); 36 C.F.R. § 261.14 (protecting developed recreation and camp sites). Forest Service personnel are also conferred the power to make arrests, not only to enforce the Forest Service's own regulations, but also for violations of federal and state drug laws and other criminal conduct. See, e.g., 16 U.S.C. § 559 (power to arrest for violations of Forest Service regulations); 16 U.S.C. § 559b and § 559c (authorizing Forest Service personnel to investigate, and make arrests for, violations of federal controlled substance laws under 21 U.S.C. §§ 801 et seq.); 16 U.S.C. § 559d (authorizing Forest Service personnel to cooperate with federal and state law enforcement officials in the enforcement of federal and state controlled substance laws); 16 U.S.C. § 551a (permitting the Forest Service to cooperate with state officials in the enforcement of state laws and local ordinances).

Additionally, 18 U.S.C. § 1853 makes it a substantive misdemeanor unlawfully to cut or injure trees within the jurisdiction of the Forest Service, and 18 U.S.C. § 1863 imposes criminal sanctions on those who trespass upon National Forest Service lands that lawfully have been closed or restricted pursuant to the Service's regulations. In this regard, executive officers of the Service are empowered to close areas of the National Forests, where such action is necessary, for reasons of public health, public safety, fire hazards, or for the protection of threatened vegetation and wildlife. 36 C.F.R. §§ 261.50, 261.52, 261.53. Such officers may limit a variety of conduct by

[7 The injunctive relief requested by the plaintiff is phrased solely in terms of the special use permit regulations. The plaintiff, however, in its complaint, also contends that any anticipated Rainbow Family gathering would constitute a public nuisance. Should the government seek to predicate its demanded permanent injunctive relief on this, or other grounds, it may do so at the final injunction hearing.]

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restriction and limitation orders, including public nudity. See 36 C.F.R. §§ 261.2 and 261.58(j). Besides the criminal sanctions that may be imposed, the Service has the authority to seize, impound, and remove personal property from its forests, in order to protect, and ensure access to, areas within its jurisdiction. 36 C.F.R. § 262.12.

Finally, the Assimilative Crimes Act, 18 U.S.C. § 13, if applicable, would give the plaintiff plenary power to enforce state penal laws within federal lands, whenever such state laws are not displaced by analogous federal statute and regulations, or contrary to federal policy. See United States v. Fesler, 781 F.2d 384, 390 (5th Cir.1986), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 661 (1986); United States v. Brown, 608 F.2d 551, 553 (5th Cir.1979). Consequently, where statutes of the United States and regulations of the Forest Service do not specifically limit or proscribe conduct, the plaintiff might resort to the penal laws of the State of Texas for authority to maintain public order within its bailiwick.

Conclusion

[11] Although jurisdiction may be exercised over the defendants named in the government's complaint, the motion for a preliminary injunction must be denied. The regulations under which the preliminary injunction is sought have not been validly adopted, insofar as the May 10, 1988, interim rule is concerned. Moreover, to the extent the regulations distinguish between expressive conduct, such as that at issue here, and other forms of group activity in the National Forests, and to the extent that the regulations do not provide objective and narrowly drawn standards for the issuance or denial of permits for such expressive activity, they are unconstitutional and cannot be enforced.

Further, it appears that the government otherwise has available to it a panoply of statutory and regulatory grounds to prevent the alleged harms posed by a gathering or meeting of twenty-five or more defendants on Forest Service lands. Although these provisions may provide the government with an adequate remedy at law for the harms alleged here, it is unnecessary to pass upon that question at this point.

As set forth in the order entered herewith, a hearing on the plaintiff's motion for a permanent injunction, pursuant to Federal Rule of Civil Procedure 65, shall be conducted on June 13, 1988, in Tyler, Texas. At that time, the plaintiff may offer evidence relating to its contention that the proposed gathering is subject to injunctive relief, in that it will constitute a public nuisance, and may offer evidence regarding any other alleged ground for relief. Similarly, the defendants may offer evidence and arguments in opposition to the government's contentions that a Rainbow Family Summer Gathering in the National Forests of Texas would result in irreparable harm and should be permanently enjoined.

In accordance with the foregoing, it is therefore

ORDERED that the Report of United States Magistrate, dated May 27, 1988, in regards to plaintiff's motion for preliminary injunction, shall be, and it is hereby, adopted in part and rejected in part, as set forth above. It is further

ORDERED that plaintiff's motion for preliminary injunction shall be, and it is hereby, DENIED

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