USA v. RAINBOW FAMILY

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA

UNITED STATES OP AMERICA,
        Plaintiff
     v.                                  Civil Action No. 96-183

THE RAINBOW FAMILY, 
a/k/a RAINBOW NATION,
aka RAINBOW FAMILY OF LIVING LIGHT, 
a/k/a GATHERING OF TRIBES, 
THE RAINBOW FAMILY VISION COUNCIL, 
THE RAINBOW FAMILY TRIBAL COUNCIL, 
THE RAINBOW FAMILY COUNCIL, 
and UNKNOWN MEMBERS, 
"FOCALIZERS,"  
ORGANIZERS, 
PARTICIPANTS IN THE 1996 OSCEOLA FAMILY GATHERING, 
AND ELIZABETH A. CREMIN, 
FRANCIS XAVIER COBB, 
JEFFREY P. MCCONNAUGHEY, 
JAMES A. PIRTLE, 
LAURA MAE EVANS. 
JENNIFER W. FRYDRYCHOWSKI, 
WILLIAM D. ADAMS, 
ERIC W. EASTRIDGE, 
DAVID JAMES CAPPIELLO, 
CARL D. JAMES, 
ROBERT J. FULLER, 
RACHEL L. VAUGHN, 
TIMOTHY M. MONNOT, 
LISA PETTLES, 
GRETCHEN K. STUART, 
SHEILA L. GILMER, 
DAVID C. BESSEL, 
CURTIS R. TIEDT, 
CHAD P. BULAU, 
YASMIN HIDAYATALLAH, 
DANIEL A. FOUNTAIN, 
ANDREA GREENSTEIN. 
SHANA H. EVANS, 
ROBERT NORCROSS, 
WILLIAM WAYNE CRISPIN, 
STEVEN WILLIAMS,
and "BUTTERFLY," 
"WAKEEM," 
"JOSE," 
"ADAM," 
"BOB JONES,* 
"TWO BEARS.* 
AND "JOHN,"  
INDIVIDUALLY, and as representatives of the class of
           Defendants .

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
PRELIMINARY STATEMENT

1. In this action, plaintiff seeks a declaratory judgment that United States Department of Agriculture regulations

concerning noncommercial group uses of the national forests, are valid under the United States constitution. Plaintiff also seeks an injunction against the Defendants from violating the regulations at issue.

JURISDICTION AND VENUE

2. This court has jurisdiction over this action pursuant to 28 U.S.C. sec. 1331, 28 U.S.C. secs. 2201-2202, and 16 U.S.C. secs. 528-531. Venue in this district is proper pursuant to 28 U.S.C. sec. 1391(b).

THE PARTIES

3. The plaintiff in this action is the United States of America. The United States Department of Agriculture is an executive department of the United States of America and is responsible for protecting and administering the United States National Forests, including responsibility for promulgating and enforcing regulations with respect to National Forest Service lands including the regulations at issue.

4. On information and belief, the individual defendants are members of the Rainbow Family (also known as, inter alia, the Rainbow Nation. the Rainbow Family of Living Light, and the Gathering of Tribes, the Rainbow Family Vision Council, the Rainbow Family Tribal Council, and the Rainbow Family scout council), a loosely-knit organization of persons who gather together in the national forests to Celebrate peace and harmony with nature and with one another.

On information and belief, the individual defendants are participants in the ongoing 1996 Rainbow Family gathering on the Osceola National Forest who have either identified themselves to Forest Service officers by producing driver's licenses or aliases For example, defendant "Wakeem" has identified himself to Forest Service officers as being in charge of running the "A" (or "Alcohol") camp the gathering: defendant "Butterfly" has identified herself to Forest Service officers as being in charge of the "Granola Funk Kitchen" at the gathering; defendant "Adam"· has identified himself as being at the "Welcome Home" position at the gathering; defendant: "Jose" has identified himself as being in charge of the latrine digging for the gathering; And defendant "Bob Jones," who is also a participant in the gathering, has identified himself as an Elder of the Rainbow Family.

DEFENDANT CLASS ACTION

6. Plaintiff brings this suit against the Rainbow Family as a defendant class. A class action can be maintained in this case pursuant to Fed. Rules Civ. Proc. Rule 23(b)(2), on the basis that class members have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final declaratory and injunctive relief applicable to the class as a whole.

7. The prerequisites to class certification under Fed.

(a) The class is so numerous that joinder of all members is impractical.

(b) There are questions of law or fact common to the class. Rainbow Family members have refused to comply with permit requirements of the Forest service regulations at issue. 35 C.F.R. Part 251(b) (effective as of September 29, 1995, see 60 Fed. Reg. 45258) which relates to noncommercial group uses of the national forests, on the basis that such regulations violate their rights under the First Amendment to the U.S. Constitution;

(c) The defenses of the named defendants are typical of the defenses of the claims of all class members, particularly the alleged violation of First Amendment rights.

(d) The defendants who are representatives of the class have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class.

STATUTORY AND REGULATORY FRAMEWORK

8. The regulations at issue concerning noncommercial group 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 ("group use regulations").

9. The group use regulations were promulgated by the Secretary of Agriculture, Pursuant to his statutory authority to proscribe rules and regulations concerning uses and preservation of lands under the National Forest System. See 16 U.S.C. sec. 472; 16 U.S.C. sec. 551; 16 U.S.C. sec. 515.

10. The United States Forest Service, an agency of the United States Department of Agriculture. is charged with managing the resources of the National Forest System far multiple uses as

well as for the provision of goods, services, and other amenities for future generations. The Forest Service is authorized to manage diverse public, private, governmental, and commercial uses of National Forest system lands. 16 U.S.C. secs. 528-531.

11. On May 6, 1993, the Forest Service published a proposed rule to regulate noncommercial group uses of National Forest System Lands in compliance with First Amendment requirements of freedom of speech and assembly. The purpose of the rule was to allow the Forest Service to protect forest resources, to address concerns of public health and safety, and to allocate space among different group uses. After an extensive notice and Comment period, a final rule was adopted and became effective on September 29, 1995.

12. Under the group use regulations, when use of certain National Forest System lands by a group of 75 persons or more as desired, a proponent of the gathering is required to complete and return an application for a permit or "special use authorization" to the Forest Service at least 72 hours in advance of the activity. 35 C.F.R. sec. 251.54(a) & (f). The information in the application is restricted to general information concerning the time, place and manner for activities subject to the rule. 36 C.F.R. S 251.54(p).

13. The authorized Forest service officer will evaluate applications for noncommercial group uses according to specific, content-neutral criteria related to the protection of the environment, public health and safety. and allocation of space

and resources within the national forests. 36 C.F.R. sec. 251.54(h)(1)(i)-(v).

14. All applications for noncommercial group uses are deemed granted and a special use authorization issued for those uses unless an application is denied within 48 hours of receipt. 36 C.F.R. § 251.54(f)(5).

15. It an application is denied because it does not meet the regulatory criteria, the authorized officer will notify the applicant in writing of the reasons for the denial. 36 C.F.R. sec 251.54(h)(2). If an alternative time, place, or manner will allow the applicant to meet the requisite criteria, the authorized officer is required to offer that alternative. Id.

FACTUAL BACKGROUND

16. Since approximately the last week of January or the first week of February, 1996, Rainbow Family members have been gathering on a site in the Osceola National Forest, Florida. The gathering is ongoing and expected to run through the week of February 26. 1996.

17. On or around February 2, 1996, U.S. Forest Service District Ranger Keith Lawrence met with approximately five to six participants in the Rainbow Family gathering in the Osceola ("Rainbow Family gathering"), including one individual who identified himself as "Jose."

18. District Ranger Lawrence provided each individual with a printed notice stating that non commercial activities involving

more than 75 people require a permit, as well as an application For a special use authorization under the group use regulations.

19. On or around February 2, 1996, Forest Service officers posted additional notice of the permit: requirement at the bathroom facilities around the site of the Rainbow Family gathering and along the entrance roads to that site.

20. On or around February 5 to February 6, 1996, the Rainbow Family gathering at the Osceola National Forest exceeded 75 people.

21. To date, no application for a spacial use authorization has been/ received by the Forest Service with respect to the Rainbow Family gathering nor has the Rainbow Family given any indication that such application will be filed.

22. The "Rainbow Guide for 1995, Summer Edition" indicates that the forest Service group use regulations are unconstitutional under the First Amendment to the U.S. Constitution. See Attachment 1.

23. Since approximately February 5 to February 6. 1996, any and all participants in the 1996 Rainbow Family gathering in the Osceola National Forest have violated the Forest Service group use regulations.

COUNT I

24. Plaintiff realizes and incorporates herein paragraghs 1 to 23 above.

25. By intentionally and knowingly failing to apply for a special use authorization under 36 C.F.R.. sec 251(b) and holding a

gathering of over 75 persons in the Osceola National Forest, defendants are in violation of plaintiff's group use regulations.

RELIEF REQUESTED

Pursuant to the Declaratory Judgment: Act, 28 U.S.C. sec. 2202, Plaintiff prays that the Court:

A. Declare that plaintiff's group use regulations, 36 C.F.R. § 251(b) comply with the First Amendment of the United States Constitution and are otherwise legally valid.

B. Declare that the 1996 Rainbow Family Gathering in the Osceola National Forest is in violation of plaintiff's group use regulations.

C. Enjoin the defendants and their officers, employees, agents, servants, contractors, and attorneys, and all those acting in concert with them, from attending, conducting or participating in any way in a gathering within the National Forests in the states of Florida and elsewhere in the United States in violation of the group use regulations.

D. Order the defendants to take such affirmative actions as to provide notice of the injunction to Rainbow Family members inform all means of available public and private media and to inform all members of the Rainbow Family that a violation of the injunction is punishable by contempt of this court.

Award the United States its costs of suit and any other relief/to which it may be entitled under the law.

Respectfully submitted,

FRANK W. HUNGER

Assistant Attorney General

CHARLES R. WILSON

United States Attorney

REGINALD LUSTER

Assistant United States Attorney

Florida Bar No. 075 0069

THOMAS W. MILLET

ANJALI A. ASHLEY

U.S. Department Of Justice

Civil Division

801 E Street, N.W..

Room 1026 U.S, U.S.

(202) 514-3368

OF COUNSEL:

Leslie Lagmarcino

Officer of the General Counsel

Department of Agriculture

Attorneys for Plaintiff