So. Ore. Barter Fair v. Jackson County, Oregon, No. 02-35560.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Bybee
• Citation: 372 F.3d 1128
• Parties: SOUTHERN OREGON BARTER FAIR, Plaintiff-Appellant, v. JACKSON COUNTY, OREGON; Jackson County Board of Commissioners; Jackson County Sheriff's Department; Ric Holt; Jack Walker; Sue Kupillas; Robert Kennedy, Defendants, and State of Oregon, Defendant-Intervenor-Appellee.
• Docket Number: No. 02-35560.
• Decision Date: 24 June 2004

372 F.3d 1128 SOUTHERN OREGON BARTER FAIR, Plaintiff-Appellant,
v.
JACKSON COUNTY, OREGON; Jackson County Board of Commissioners; Jackson County Sheriff's Department; Ric Holt; Jack Walker; Sue Kupillas; Robert Kennedy, Defendants, and
State of Oregon, Defendant-Intervenor-Appellee. No. 02-35560. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 5, 2003. Filed June 24, 2004.

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Brian Michaels, Eugene, OR, for the plaintiff-appellant.

Christina Hutchins, Assistant Attorney General, Kelly Knivila, Assistant Attorney General, Salem, OR, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Oregon; John P. Cooney, Magistrate Judge, Presiding. D.C. No. CV-96-03067-CO.

Before: ALARCÓN, RAWLINSON, and BYBEE, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

The Southern Oregon Barter Fair is a nonprofit corporation that held an annual fair in Oregon between 1978 and 1996. The Fair describes its event as a religious gathering, a "harvest celebration and gathering of ... `new age,' `back-to-the-land' hippies and friends," and a "counterculture crafts fair" where artisans and vendors set up booths for people to buy crafts. In

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order to hold several previous events, most recently the 1996 event, the Fair had to obtain a permit from Jackson County, Oregon, under the Oregon Mass Gathering Act, OR. REV. STAT. §§ 433.735-.770, 433.990(6) (2001). This appeal presents the question whether, as the Fair contends, the Act is facially unconstitutional under the First Amendment.

Oregon's Mass Gathering Act is similar to mass gathering statutes found in various other states. The Oregon Legislative Assembly passed the Act in 1971, finding "that the uncontrolled outdoor gatherings of large groups of persons for extended periods of time have necessitated a need for the establishment of reasonable health and safety rules to regulate such outdoor mass gatherings." Id. § 433.740. The Act regulates any "outdoor mass gathering," defined as a gathering of more than 3,000 persons in an open space for more than 24 hours but fewer than 120 hours.¹ The Act prohibits such gatherings "on real property the organizer[²] owns, leases or possesses" unless the county governing body for the location where the gathering is planned (here, the Jackson County Board of Commissioners) has issued a permit. Id. § 433.745(2).³

The organizer must submit to the governing body a permit application containing the applicant's name and address, a legal description of the place, the date, the estimated attendance, and the nature of the proposed gathering, as well as "[s]uch other appropriate information as the county governing body may require in order to insure compliance with rules of the Department of Human Services." Id. § 433.750(1). The governing body "shall issue a permit ... when the organizer demonstrates compliance with or the ability to comply with the health and safety rules governing outdoor mass gatherings to be regulated according to the anticipated crowd and adopted by the Department of Human Services." Id. § 433.750(1).⁴ The Act authorizes the Department of Human Services to promulgate rules with respect to various health and safety issues at mass gatherings, including adequate water supply, drainage and sewage facilities, toilet facilities, refuse storage and disposal facilities, food, sanitary food service, emergency medical facilities, fire protection, security personnel and traffic control. Id. § 433.760. The Health Division of the Oregon Department of Human Services has accordingly promulgated regulations prescribing detailed requirements for each of the above specific health and safety issues. OR. ADMIN. R. 333-039-0005 to 333-039-0055.

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The Act contemplates input from local law enforcement and health and safety officials in the application process. It requires the county governing body to send notice of an application to the county sheriff, the county health officer, and the chief of the relevant fire district. OR. REV. STAT. § 433.750(2). The county governing body must also hold a public hearing on the proposed gathering's compliance with the Act, and must publish notice of the hearing in specified places at least 10 days before the hearing. Id. § 433.750(4). Each county officer (police, health, and fire) who has received notice of the application may submit written comments and recommendations to the county governing body no later than the date of the hearing. Id. § 433.750(3). Furthermore, in reviewing an application, the county governing body "may require such plans, specifications and reports as it may deem necessary for proper review and it may request and shall receive from all public officers, departments and agencies of the state and its political subdivisions such cooperation and assistance as it may deem necessary." Id. § 433.755(1).

Additionally, the Act allows the county to charge an application fee and require the applicant to obtain insurance in appropriate circumstances. Specifically, the Act provides that a county governing body "may charge permit applicants a fee reasonably calculated to reimburse the county for its reasonable and necessary costs in receiving, processing and reviewing applications for permits to hold outdoor mass gatherings." Id. § 433.750(6). The Act limits the amount of the fee as follows: "a fee authorized by this subsection shall not exceed $5,000 and shall not be charged when the governing body finds, by a preponderance of the evidence presented to the governing body, that the applicant is unable to reimburse the governing body." Id.⁵ As for insurance, the county governing body may, if it determines that the proposed gathering "creates a potential for injury to persons or property, ... require organizers to obtain an insurance policy in an amount commensurate with the risk, but not exceeding $1 million." Id. § 433.755(1). The policy "shall provide coverage against liability for death, injury or disability of any human or for damage to property arising out of the outdoor mass gathering" and shall name the county as an additional insured. Id.

Finally, "[a]ny decision of a county governing body on an application for a permit to hold an outdoor mass gathering may be appealed to a circuit court for the county" under procedures specified elsewhere. Id. § 433.750(5).

In accordance with the Act, the Fair applied to the Jackson County Board of Commissioners for, and received, permits for its 1994 and 1995 events. The 1996 application process, however, was tumultuous. The Fair applied for a permit, but received one only after a delay of several months; and even then, the permit contained numerous conditions that the Fair considered unreasonable, including a required security deposit of nearly $18,000 (consisting of over $3,600 for administrative expenses in relation to the application, over $11,700 for the cost to the county sheriff of providing neighborhood security, and other county expenses).

Accordingly, before the 1996 event took place, the Fair brought suit in federal district

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court in Oregon against Jackson County, the Jackson County Board of Commissioners, and the Jackson County Sheriff. Among other things, the complaint alleged that the Act on its face violated the First Amendment, and sought injunctive and declaratory relief against enforcement of the Act. The district court⁶ granted a preliminary injunction against some of the permit conditions, including the fee.

The State of Oregon intervened and moved for summary judgment on the claims challenging the facial constitutionality of the Act. In a careful opinion, the district court granted the state's motion and dismissed the Fair's facial challenge, holding that the Act is a proper content-neutral time, place, and manner regulation. The court certified the relevant claims for appeal under FED. R. CIV. P. 54(b). Thus, only the facial challenge is before us. We are not concerned here with the Fair's remaining claims, which included as-applied challenges to the county commissioners' and sheriff's allegedly discriminatory enforcement of the Act against the Fair.⁷

I

At the outset, we must determine whether the case is moot. The state argued to the district court that the Fair has not applied for a mass gathering permit, or engaged in any other preparations for a mass gathering, since 1996, and that the case was therefore moot. The district court rejected this contention, but the state raises it again on appeal.⁸ Mootness is a question of law reviewed de novo. See Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1116 (9th Cir.2003).

To avoid mootness, the court must determine that the issues in a case remain live and that the parties continue to have a legally cognizable interest in the outcome throughout the proceeding. City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Doe v. Madison School Dist. No. 321, 177 F.3d 789, 797-98 (9th Cir.1999); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 48, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). "The underlying concern is that, when the challenged conduct ceases such that there is no reasonable

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expectation that the wrong will be repeated, then it becomes impossible for the court to grant any effectual relief whatever to the prevailing party." City of Erie, 529 U.S. at 287, 120 S.Ct. 1382 (citations, internal quotation marks, and alterations omitted). The party asserting mootness bears the burden of establishing that there is no effective relief remaining that the court could provide. Oregon Advocacy Ctr., 322 F.3d at 1116-17.

This proceeding would be moot if the Fair had entirely ceased to operate, left the business, and no longer sought or intended to seek a license. City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 283, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001). In City News, the...