Section 2412 of Title 28 of the United States Code permits an award of costs "to the prevailing party in any civil action brought by or against the United States," to be "limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation." 28 U.S.C. "expression or exchange of views or judgments. See 36 C.F.R. S250.50(l).(footnote 6)
As explained in more detail in the June 1st Order, the amendments to the special use permit regulations did little to correct the constitutional deficiencies of the earlier Regulations, as found by the Israel court. The amended regulations, continued to distinguish between "group events for the public expression of views" and all other "group events" involving twenty-five or more persons. See 53 Fed. Reg. 16548, 16548-50 (May 10, 1988)(amending 36 C.F.TZ. S251.50); order of June 1, 1988 at 15-16. As in the earlier version of the regulations, the amendments set forth different standards for denial or approval of a permit, depending on whether the event would involve public expression of views, id.; and many of the criteria for approval or denial of a permit to a group to engage in public expression of views are so broad and ambiguous as to vest unbridled discretion in the agency deci5ion-maker. 5-c-e Order of June 1, 1988, at 36-43 (discussing Shuttlesworth v. (City of Birmingham, 394 U.S. 147 (1969), and related cases as applied to the permit regulations).
Despite the fact that both versions of the permit regulations explicitly distinguish between groups seeking to use forest lands, for expressive purposes, and all other groups, and despite the fact that the government was on notice about the Constitutional infirmities of Such a regulatory scheme, the attorneys; and other agents of the government steadfastly argued that the permit regulations must be enforced against the Rainbow Family and refused to recognize that any constitutional problems wore raised by the government's attempt to enjoin the Rainbow Family from holding any gathering unless they first obtained a permit pursuant to the regulations. At the second hearing before Magistrate Bradford, a government attorney even flatly stated that he did not see any First Amendment issue presented by the case Nonetheless, the government effectively did not contest that a significant aspect of the 1988 Summer Fathering was the expression of views by Rainbow Family members. Indeed, the government argued throughout the first two stages of the litigation that the permit regulations relating to "special events for the purpose of expression or exchange of views or judgments" (under the old regulations) or to "group events for the. public expression of views" (Under the amended regulations) were, applicable to the Rainbow Family gatherings.(footnote 7)
The original complaint - enforcement of the regulations -- was; denied on the grounds advanced by the defendants. The plaintiff argues, however, that enforcement of the permit regulations was not it's objective in bringing the litigation; rather, the "stated purpose for this suit .. .was concern over public health and safety issues . . . . Thus, the major focus of this suit was to prevent an unhealthy, unsanitary, and dangerous gathering of people, regardless-- of whether such prevention was accomplished due to the special use permit requirement, under a public nuisance theory, or pursuant to the Texas Mass Gathering Act." -Plaintiff's Response, at 3. The also argues that "there is no question that had not the United States filed this action and brought this matter to the attention of the court, which forced the Rainbow Family, kicking and screaming, to a minimum level of compliance, a substantial threat to the public health and safety and environment of the forests would have occurred." Id., at 6.
Such an assertion plainly overstated the case. Indeed, the evidentiary record developed at the three sets of hearings lends substantial credence to one of the arguments advanced by the defendants, that the health and other problems seen at the 1987 Summer Gathering in Worth Carolina were exceptional and traceable -- at least in part -- to a hostile and adversarial relationship between the government and the Rainbow Family. Defendants introduced videotaped evidence concerning other gatherings, for instance , in which Forest Service officials stated that the Family had acted responsibly in coordinating plans for Gatherings with the Forest Service and had lived up to their promises, including to clean up the gathering sites, and that no major effects on Public health or the environment resulted from the gatherings. Reports prepared by the Forest Service regarding other past gatherings similarly advised that friendly, cooperative relations with Rainbow Family members who were involved in planning and organizing the summer gatherings had Helped ensure that the gatherings were conducted without major health, safety, or ecological impact's. Indeed, the government did not offer any evidence of major health, safety, or environmental problems from other past Rainbow Family gathering except for the 1987 gathering In North Carolina.
The defendants also offered evidence showing that the relationship between the Forest Service and the Rainbow Family had substantially deteriorated around the title of the 1987 gathering and afterward--i. Antagonism between the parties was readily apparent to the court and, in the court's view, cannot be attributed entirely to the defendants alone. Indeed, there is substantial support for the defendant's argument that the government has acted with hostility to the Rainbow Family, in seeking to enforce the special use permit regulations before the 1988 gatherings. Forest Service officials could not identify other groups that were similarly required to submit the type of detailed permit application that the Forest service sought from defendants, for example, or that the lengthy application period proposed by the Forest Service had ever been imposed on other groups. In addition, Billy Ball, the special agent in charge of coordinating the Forest Services's activities regarding the Rainbow Family, at times appeared to be Patently hostile to some of the defendants, and at one point even testified that, in his view, the Rainbow Family defendants had "thoroughly intimidated" the court.
Finally, the manner in which the amended permit regulations were adopted, as "emergency" regulations on the eve of the Rainbow Family gathering, without prior public notice or comment and without explanation of why the government had waited two years to revise the regulations after the Israel decision bespeaks of agency action directed specifically at the Rainbow Family gathering. The fact that the amended regulations add an additional requirement for a permit, which does not appear in the earlier regulations, and which seems to be uniquely applicable to the Rainbow Family, (12) while retaining a constitutionally repugnant permit scheme that singles out expressive activity of special treatment, further support this impression that the Forest Service has not been motivated in this litigation solely out of concern for the public health and safety; but rather has been motivated, at least to some degree, by hostility to the Rainbow Family.
In view of the government's extensive allegations regarding the possible impact of the gathering of the forest environment, as well as concerning possible nudity, drug use, and other potential violations of federal or State laws and regulations, it is also questionable whether that "concern over public health and safety issues" can be seen as the only significant issue of the litigation. Indeed, since three separate phases of litigation occurred, involving substantially distinct issues and in which the government significantly modified the relief it requested, it would be hard to identify any one significant aim or goal of the litigation. One significant objective of the government in bringing the case, was the original request for an injunction to halt the gathering and to enforce the special use permit regulations, in order to forestal1 any number of alleged evils.
On this issue, as indicated above, the defendants and not the government prevailed. The fact that a temporary restraining order was issued is, essentially, immaterial, since the record was poorly developed and the restraining order was issued to preserve the status quo while the parties elaborated on their positions. See Rico-Sorio v. U.S. Immigration and Naturalization Service, 552 F. Supp. 965, 968 (D. or. 1982) (party who obtained a temporary restraining order but not a preliminary injunction.