US v. Rainbow Family, Civ. A. No. L-88-68-CA.

• Court: United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
• Writing for the Court: JUSTICE
• Citation: 695 F. Supp. 294
• Docket Number: Civ. A. No. L-88-68-CA.
• Decision Date: 01 June 1988
• Parties: UNITED STATES of America, Plaintiff, v. The RAINBOW FAMILY, also known as the Rainbow Nation, et al., Defendants.

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.

695 F. Supp. 295

COPYRIGHT MATERIAL OMITTED

695 F. Supp. 296

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,

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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). "This 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.

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,...