CERTIFICATION OF DEFENDANT CLASS
Rule 23 of the Federal Rules of Civil Procedure requires that two separate examinations must be made to determine whether a suit is properly maintainable as a class action. First, the action must meet each of the four prerequisites to class certification provided under Rule 23(a), that is: the proposed class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a); J. Moore, Moore’s Federal Practice, ¶ 23.03 (1987). Second, the action must fit within one or more of the three categories of class actions specified under Rule 23(b).
As noted above, Magistrate Bradford received evidence and found that each of the Rule 23(a) prerequisites to a class action has been met, and his recommendation has been adopted by the court. See Order at 298-299. The numerousity element is clearly present in this instance — the defendants themselves have estimated that from 5,000, to as many as 100,000 persons, may attend the 1988 Summer Gathering. The typicality and commonality requirements are also satisfied, as all persons who may seek to attend the gathering in Texas would be subject to the same legal requirements asserted by the government, would jointly pose an alleged danger of public nuisance, and would have available to them the same constitutional and other defenses raised by the individual defendants. Moreover, the individually-named defendants, many of whom have appeared in these proceedings and have otherwise taken active roles in representing the Rainbow Family in this litigation, will be able to fairly and adequately protect the interests of the class. See Order at 299. Finally, counsel for the individual defendants, Larry Daves, Esquire, is an able civil rights lawyer with considerable experience in class action litigation, and can effectively assist the class representatives in conducting the defense of this civil action. Therefore, all the requirements of Rule 23(a) are met.
The evidence presented before Magistrate Bradford and at the hearing on the motion for final injunction makes it apparent that certification of a defendant class pursuant to Rule 23(b)(2) is particularly appropriate. Rule 23(b)(2) provides:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
* * * * * *
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole;.
. . .
Although the language of Rule 23(b)(2), if taken literally, would appear to bar certification of a defendant class, it has been held an appropriate mechanism for such certification in circumstances similar to these, where the uniform conduct of multiple defendants is challenged and solely injunctive relief is requested. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 379 n. 4, 98 S.Ct. 673, 677 n. 4, 54 L.Ed.2d 618 (1978); Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); Doss v. Long, 93 F.R.D. 112 (N.D.Ga. 1981). See also H. Newberg, Newberg on Class Actions, § 4.18 (2d ed. 1985) (permitting defendant classes is a “more flexible approach” and is “more preferable to the restrictive one, because in all probability, the Rules Advisory Committee never focused on how the amended rule would be applied when a defendant class suit is sought”); J. Moore, Moore’s Federal Practice, ¶ 23.40 (1987). Moreover, class certification under Rule 23(b)(2) is also appropriate when counterclaims generally applicable to the proposed class have been alleged, as here, where injunctive and declaratory relief has been demanded against the government, for its alleged actions in harassing the defendants and in seeking to exclude them from the National Forests of Texas. See Slaughter v. Levine, 598 F. Supp. 1035 (D.Minn. 1984); American Finance System v. Harlow, 65 F.R.D. 572 (D.Md. 1974).
The uncontested evidence shows that the defendants have, thus far, failed or refused to apply for a special use permit before gathering on National Forest lands in Texas. Further, although strongly contested by the defendants, the evidence also shows that a gathering of large numbers of persons, under the conditions associated with past Rainbow Family Summer Gatherings, puts at risk the public health and safety, if minimum public health and safety regulations are not followed. In particular, as discussed in more detail later in this memorandum opinion, the evidence presented by the government shows that a serious outbreak of bacterial infection, causing a form of dysentery known as shigellosis, occurred at the 1987 Summer Gathering in North Carolina, afflicting several thousand participants and spreading to non-participants in a number of states. Although the precise cause of the outbreak cannot be ascertained, the evidence indicates that unsanitary or unhygienic practices at last year’s gathering, including use of unclean water for drinking and washing, bathing in contaminated streams, failure properly to dispose of human waste and garbage, and unsanitary cooking practices, were cumulatively responsible for the shigellosis outbreak.
Although this court has previously ruled that the special use permit regulations are unconstitutional and hence unenforceable, insofar as they target protected First Amendment activity, that ruling has been appealed. If, upon appeal, the regulations are found to be constitutional, entry of a permanent injunction might be an appropriate method of enforcing the permit regulations. Final injunctive relief against a public nuisance is also an appropriate remedy, and would be warranted to the extent that the upcoming gathering may pose a threat of public nuisance. See infra, pages 304-306. Hence, the defendants have “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief . . . with respect to the class as a whole,” justifying class certification under Fed.R.Civ.P. 23(b)(2).
A class of defendants shall therefore be certified under Rule 23(b)(2). The class shall be composed of the Rainbow Family and the other Rainbow defendants named in the second amended complaint; the individual defendants named in the second amended complaint; their officers, servants, employees, agents, attorneys, and all other persons acting in concert or participation with them; as well as any other person attending, or planning to attend, the 1988 Rainbow Family Summer Gathering within the National Forests of the State of Texas, who receives notice of this order, by personal service or otherwise. The class representatives shall be the individual defendants who have appeared one or more times before this court: Stephen Principle (also known as Stephen Sedlardo); Holly Lynn (also known as Lynn Nix); “Electric Ed”; “Bible Bob”; “Water-Singing-on-the-Rocks” (also known as Allan Feldman); Barry Adams (also known as “Plunker”); “Little White Owl”; “Mother Nature”; “Jaydeen”; “Iris Spring Flower”; and “Puma” (also known as David Kennison). Larry Daves, Esquire, of Tyler, Texas, shall be appointed as counsel for the defendant class.
U.S. v. Rainbow Family, 695 F. Supp. 314, 319-21 (E.D. Tex. 1988)