A LEGAL & LAND USE REVIEW
THE SEVEN CRITERIA
(h) Response to applications for noncommercial group events or for the noncommercial distribution of printed material.
This amendment purposes to remedy a flaw in the 1984 rule, which "...applied different criteria for activities with First Amendment implications than for all other activities..." . FR, pg. 25942. It fails to do so: A separate set of criteria still applies to the 'distribution of printed material'; terms are merely juggled so that all noncommercial group events fall under these tests, apart from other special uses. In fact this language expands the latitude of the Agency to deny access to public land, vesting unbridled discretion in the hands of its "Authorized Officer". The rule apparently disregards the Supreme Court admonition that "èprior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Rainbow at 309-310; citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969).(1) Seven criteria are set forth for granting a special use authorization; the designated official would have sole prerogative to determine whether the 'proposed activity...'
(i) "...is not prohibited [under 36 CFR rules] or by federal, state, or local law..."
"This criterion would allow the agency to deny an application for activity that would violate federal, state, or local law." FR, p. 26942. In short, the perceived risk that a law will be broken or a habitat disturbed becomes a basis for denying access rights; the test is entirely speculative, the process wide open to bias, politics, and arbitrary pre-judgement. Note also that the reference to the new prohibitions under 36 CFR part 261, subpart A creates an entirely circular logic within the rules, indicating that a special use permit may be denied on the speculation that a 'crime' of 'distributing literature' might be committed.
The Agency's Federal Register publication documents absolutely no facts to justify a NEED for new rulemaking, over and above existing regulations. This failure should be sufficient in itself to invalidate the proposed CFR amendments. Especially where protective rules already exist to address potential fears, preemptive speculation that a law might be broken does not constitute such a need.
"An undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression." Tinker V. Des Moines School District, 393 U.S. 503, 508 (1969). Hague v. C.I.O., 307 U.S. 496 (1939)
(ii) "...is consistent or can be made consistent with the applicable and approved land and resource management plan..."
Management plans for National Forests already have the force of law, supported by regulations protecting sensitive environments, habitats, and resources. This fact underlies the finding of the 1988 court that the body of existing regulations was sufficient to the agency's purposes of protecting National Forest lands and resources. In effect, this finding alone overturns the Agency's pretext of any significant or compelling government interest in promulgating these rules.
The actual scope and intent of forest management plans should be understood in this light: Their function is to reconcile demands and set specific limits on major uses, based on environmental and performance standards with which all activities must conform. Here again, it is the duty of the Agency to assure that plans and standards are consistent, to inform prospective users of all relevant provisions in substance, and to prove that actual breaches have occurred to warrant enforcement action. The burden of proof may not be placed upon users before the fact. Milwaukee Mobilization for Survival v. Milwaukee County Park Comm., 477 F.Supp. 1210 (E.D. Wis.1979).
Although management plans are developed and adopted with public input (albeit somewhat narrow), as such the plans do not address "group events" as defined in this rule; they are not expressly prohibited or limited. Therefore the application of the plans in this regulatory scheme is subject to the protections of the Ninth and Tenth Amendments:
Free assembly on public land is a right 'retained by the people', not to be denied or disparaged by other authorities under the Constitution; and the final stewardship of public land is a power "reserved to the people", overarching the trustee role of public agencies. Nothing in forest management plans may be construed as grounds for preempting these rights and powers.
(iii) "...will not delay, halt, or prevent administrative use... or other scheduled or existing uses..."
Forest management plans are built upon the concept of balancing interests in an ongoing 'multiple use' scenario. Here again the language blurs the fundamental difference between a permanent or consumptive 'use' and a transitory 'group event', which by nature imposes no significant competing demand upon the scheme. In the few instances where existing uses were affected, experience has shown that modest accommodations are easily made by prior agreement. For example, a few temporary adjustments in grazing patterns were worked out to facilitate a 1992 gathering in Colorado, without significant cost or inconvenience to the parties involved.
Yet this provision again sets up a vague discretion, one which bypasses established protocols in environmental law for determining whether impacts of an activity will be significant -- the 'threshold determination' discussed above. This leaves the "officer" in a position of unilateral arbitrary judgment, speculating on a worst-case analysis under pressure to deny access. The 1984 rule was struck down for this reason, and the 1988 court made the point specifically:
"Although NEPA is unquestionably constitutional, even an otherwise valid statute cannot be applied in a manner designed to suppress First Amendment activity, or out of hostility to a particular group." Rainbow at 325. See also New York Times v. Sullivan, 376 U.S. 254, 266, 269-72 (1964); Buckley v. Valeo, 424 U.S. 1, 25 (1976); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)
Despite its pretenses, this amendment offers no remedy. To say that this concern of the court is addressed "...by providing specific examples of how an activity covered by this paragraph could delay, halt, or prevent existing or scheduled activities..." is tantamount to speculative law by analogy. It is no basis for legitimizing preemptive enforcement. "...unbridled discretion to to choose the regulatory standard to apply in any particular instance my allow the decision-maker to discriminate between groups applying for a permit, based upon his or her subjective biases. The 'very possibility of abuse' will invalidate a regulation requiring a permit for expressive activity." Rainbow at 323, citing Niemotko v. Maryland, 340 U.S. 268, 272 (1951)
(iv) "...would not pose a substantial danger to public health [with respect to] sanitation..., waste..., drinking water..., contamination of the water supply..., handling of food."
Health and sanitation are important and legitimate performance issues, directly relevant to the protective mandate of the Agency. They have also been the first concerns of gathering participants, and a focus of Operating Plans resolved in cooperation with local rangers in advance of many group events. Overall the track record is strong: Large groups and complex logistics have been accommodated with virtually no impacts on National Forest ecosystems, and just one moderate public health incident since the early 1970s.
The circumstances are worth noting: A minor bacterial outbreak at a North Carolina gathering in 1987 was largely attributed to difficult site conditions and leaching from heavy rains; reports indicated some misjudgment by participants, but no negligence. A year later this prompted the Rainbow court to recognize the public health concerns and establish a narrowly tailored mandate to insure adequate standards of health practices at "group events". In fact, parts of the Army Field Manual (FM 21-10) were incorporated into the record as an explicit reference for future practices.
But the court disallowed imposing these concerns as prior review criteria in a new rule, finding this to be redundant upon existing regulations and preemptive of First Amendment rights.
"...in view of the lack of evidence of irreparable injury in any area other than public health, a total proscription of the gathering would be unjustified. ...Conversely, ...it is a reasonable time, place, and manner restriction to require that the defendants' First Amendment activities not threaten the public health or welfare." Rainbow at 329; citing Grayned v. City of Rockford, 408 U.S. 104; Kovacs v. Cooper, 336 U.S. 77; De Jonge v. Oregon, 299 U.S. 47; Schenck v. United States, 249 U.S. 47.
As for how sanitation standards would apply to group events, the court placed reliance upon watershed and disease protections already embodied in environmental and public health codes. Moreover while acknowledging the management interest of the Forest Service, it noted that such concerns normally fall within the expertise and jurisdiction of other agencies. Accordingly the court vested oversight of group event health standards and performance in an agency more fitting to the task, and explicitly removed the Forest Service from direct authority in this area:
"A neutral agency, the United States Public Health Service, will be designated to inspect the gathering sites and certify that minimum health and sanitation standards are met." Rainbow at 330.
Incomprehensibly, the present rulemaking disregards this Federal Court directive -- Apparently the Forest Service again asserts sole authority over health and sanitation standards for gatherings. Although its interest in this area is unquestioned, the motives are suspect in light of the record of Rainbow, 1988. The broader history shows that the Agency has invoked these concerns rigidly and capriciously, beyond the mandates of reasonable and fair judgment. This has happened in the past, with the obvious intent of discouraging group events and creating a pretext for other law enforcement actions, surveillance, and armed presence.
The Texas court left a clear mandate for raising the standards of environmental health practices at gatherings. No doubt these parameters should be the focus of improved site planning and cooperation for future group events. But the court made it further clear that they may not be invoked as a speculative pretext for denying a permit, nor may the Forest Service abuse this authority to exert a chilling effect upon peaceable assembly. Rainbow at 309-310; citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 153 (1969); Fernandes v. Limmer, 663 F.2nd 619, 628 (5th Cir.1981); A.C.O.R.N. v. Municipality of Golden Colo., 744 F.2nd 739, 746 (10th Cir.1984); Rosen v. Port of Portland, 641 F.2nd 1243, 1246, (9th Cir.1981); Kramer v. Price, 712 F.2nd 174, 177 (1983).
(v) "...would not pose a substantial danger to public safety... [on the basis of] potential for physical injury from the proposed activity, ...characteristics of the proposed site, ...existing uses or activities, ...and the adequacy of ingress and egress in case of an emergency."
It is always incumbent upon forest users to heed safety concerns; these are primary considerations in selecting a site and planning activities. In this outlook potential dangers are understood as problems solvable by knowledge and preparation -- this is the essence of wilderness experience. When accidents occur requiring emergency assistance, there are direct costs to the Agency falling reasonably within its normal operating scope. However the threat of accident in a National Forest entails no legal or financial liability to the Agency; therefore it presents no legal or financial need to control access on these grounds, and the rule is superfluous. Conversely the issuance of a permit would carry an expressed sanction of the site and event as a whole, and an implied assurance of safety -- possibly engaging public liability for accidents, incidents, or individual misdeeds. The costs to the public that could arise under this scenario have not been assessed.
The 1984 provision asserted a preemptive authority based on a test of "clear and present danger"; it was struck down for being vague and leaving too much discretion in the hands of officials. F.R., pg. 26943. This new language is proposed to remedy that flaw, yet it merely replaces the original general standard with obvious general cases: It lists the common types of potential danger -- giving officials plenty to worry about -- but says nothing about the degree of actual danger that would warrant a denial of access to public lands. Similarly the test of ingress/egress "adequacy" is nearly meaningless, open to biases by which users could be barred from remote sites. The thresholds are left arbitrary, and agency latitude remains far too broad. Again this allows for a permit to be denied on purely speculative or specious grounds.
(vi) "...does not involve military or paramilitary training or exercises by private organizations or individuals, unless such training or exercises are federally funded."
This is a double-edged sword, ironically befalling those most interested in ploughshares. Ostensibly this test is targeted upon armed 'extremist groups', known or suspected. But given such loose discretion, might it conceivably be invoked against such "paramilitary" groups as Outward Bound, the Boy Scouts, Salvation Army or National Rifle Association ? Could it also proscribe activities like Aikido martial arts seminars or wilderness survival training using the Army Field Manual? It is of further concern that this measure might be applied as a prior restraint against possible civil disobedience -- there are already indications of this intent. Once again the definitions are too vague, and the powers too broad.
It should be understood that this provision does not arise in a vacuum: It is an extension of a Federal policy applied previously in Forest Service 'Land Use' rules published in 1992, amending review authorities and procedures under other sections of 36 CFR Part 251. Federal Register, Vol. 57, No. 158; pp. 36618-26 (8/14/92). That rulemaking uses the same language to define a screening criterion for all other classes of Special Use permit applications. Id., § 251.54 (viii); pg. 36624. This condition was first imposed explicitly upon potential users in that framework, and a policy enabling military priority on National Forest lands first implied. Within months this purpose was apparent in Mississippi's De Soto National Forest, where the Defense Department set up a gunnery test range and conducted tank exercises, excluding citizen access.
As presented in the current rulemaking, these Government powers would be expanded expressly over First Amendment activities in National Forests. Moreover the exemption of all "federally funded" activities from control implies an unconditional sanction for police, armed forces, and counterinsurgent training on public lands, regardless of where the authority and funding originate. This can be construed to convey upon 'official' military activities a preemptive and exclusive right of access to National Forests, posing a serious Constitutional infringement upon the Second Amendment. Such issues amplify doubts as to the sense, effect, and legality of the proposed regulations.
(vii) "A person or persons 21 years of age or older has been designated to sign and does sign a special use authorization on behalf of the applicant."
As stated above in response to paragraph 251.54(e), the Forest Service has no reason or authority to stipulate that a user group be constituted as a legal entity or structured in its internal interactions to satisfy the dictates of the public agency. This bears directly and heavily upon the 'consensus group', which by definition and intent is not an entity: It is an assemblage of free individuals -- entirely self-responsible as persons before the law -- willfully joining in common activities, mutual care, and the natural human instinct and legal right to gather.
The history shows this provision to be unneeded and misguided: In fact the Agency's own record shows that participants in past consensual events have consulted with local authorities in advance, prepared operating plans and acted in full cooperation. For example, in annual Forest Service reports on the Rainbow Family Gathering of the Tribes, held on National Forest land each July since 1972, District Rangers consistently attest to reliable contacts with the gatherings: Their questions have been answered, their reasonable requests met, problems have been solved together and sites have been left in a clean and natural state. These facts demonstrate a consensual respect and integrity as individuals toward legitimate public interests, common wellbeing, and the land; they do not indicate a compelling need for the law to override rights of free association and consensus, or to impose singular responsibility for potential group actions upon individual participants. Cox v. Louisiana, 379 US 536 (1965); Stromberg v. California, 283 U.S. 359, 369
The Agency insists that "...someone on behalf of the applicant must accept the responsibilities associated with use of National Forest System land." F.R., pg. 26943. Yet having demonstrated no substantive interest behind this stricture, clearly it would fulfill only a self-serving administrative purpose: It is a set-up for conveying personal standing and liability for enforcement action.
This bespeaks an impermissible intent of the government to isolate 'leaders' from the consensus, make them culpable for the real or imagined actions of the group, and expose them to prosecution and penalties under the full weight of the law. Apparently the provision is "compelled" by this motive alone, ignoring the record of viable consensual alternatives for 'Group Use' management. As such it flies in the face of the "least restrictive means" mandate of administrative law.
Moreover in real life this provision fosters a cynical double-bind:
Knowing that no 'responsible' person would sign a permit in good sense or conscience -- to assume liabilities for the whole or bargain away primary rights -- the Forest Service seeks to create a circular pretext for enforcement against the entire assembly, again with chilling and preemptive effect.
THE BOUNDS OF DISCRETION
(2) This paragraph states that if a special use application is denied on the basis of any of the seven criteria, "...the authorized officer shall notify the applicant in writing of the reasons for the denial..., [and that this constitutes] ...final agency action and is immediately subject to judicial review." F.R., pg. 26946.
Allegedly this remedies two defects in the 1984 regulations, according to the findings in the 1988 case -- (a) that the grounds for denial must be stated, and (b) that the process "...provide for judicial review of the administrative determination." Rainbow at 311-12; F.R., pg. 26940. Yet the language provides no stipulation on the procedure to insure a timely response by the agency, again skirting the mandate of the Texas Court.
"A decision to grant or deny an application for a noncommercial group event or noncommercial distribution of printed material shall be made without unreasonable delay." 36 CFR §251.54(f)(5); FR, pg. 26945. "Without unreasonable delay" is an unreasonably inspecific timeframe. "[A] fixed deadline for administrative action on an application for a permit 'is an essential feature of a permit system.' 24 hours suggested as maximum time for action, permit to be deemed granted if no action is forthcoming within the time limit." United States v. Abney, 534 F.2d 984, 986, ftn. 5, citing Shuttlesworth v. Birmingham, 394 U.S. 147, 162-164.
Whether an application will be granted is a decision resting solely with the Forest Service officer, who also has an intolerably broad latitude within which he can exercise his pleasure.
Moreover judicial recourse is hollow: It is a non-solution if the agency can delay an application past the point of any meaningful remedy or resolution; and it is coercive and chilling where the process of seeking recourse is itself punitive in effect. Given the cost and duress of going to court (especially against the U.S. Government), this proffers undue burdens upon applicants in the exercise of Constitutional rights, upon courts tied up in repressive prosecutions, and upon American taxpayers bearing the cost of litigating wasteful, meritless Forest Service regulations.
These provisions would exempt 'noncommercial group events and noncommercial distribution of printed material' from payment of security bonds or use fees. This is appropriate in itself, yet again a broad discretion is vested in officials, and the determination rests upon an extremely loose definition: "Commercial" is defined as "any activity ...involving ...exchange of a produce or service, regardless of whether the use or activity is intended to produce a profit." FR, pg. 26945. The conditions here are sweeping and the loopholes huge, with little to constrain the Agency's power to impose undue financial burdens on prospective users and impede activities on public land.
Given the known history -- attesting to the Agency's notable propensity to "rigidly enforce" strictures against group events (Rainbow at 328) -- it is fair to infer that such vaguely crafted semantics might be used as a pretext to preempt or terminate an 'unwanted' assembly on public lands.
251.60 Termination, revocation, and suspension.
This paragraph establishes the discretion of the authorized officer to suspend, revoke, or terminate a special use authorization. Although it nominally exempts 'noncommercial group events and noncommercial distribution of printed material' from such action, there is no assurance that an officer may not arbitrarily change a prior determination and shut down an event. First of all, "noncommercial" is defined as anything that is not "commercial" -- and therefore it is equally ambiguous. This creates a likely quandary: If a permit is granted for a noncommercial group event and the officer discovers informal trading or donations being accepted, he could then classify this as a 'commercial' activity and revoke the noncommercial permit. In this case the overall event that had received authorization would then stand in violation, with its participants subject to prosecution after having gained approval.
There is a further danger that this could be used to as a pretext to justify physical incursion by officials into a group event in progress, and open it to broader enforcement against participants. Finding an event in violation of a special use authorization could be construed as 'probable cause' for illegal searches, seizures, and detentions; regulations have been used this way in the past on lesser grounds. As such this provision opens the door to abuse of Fourth Amendment protections on a massive scale.
251.56 Terms and conditions.
251.57 Rental Fees.
The definitions for "Printed Material" and the "Distribution..." thereof are restated under this subpart. The overall problems with how these terms are treated under the 'Special Use' designation are discussed above under section 251.51. That they even appear in this CFR amendment as Special Use prohibitions is cause in itself for grave concern, as an issue of prior restraint upon expression. New York Times Co. v. United States, 403 U.S. 713, 714 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
It is shocking enough that the Forest Service would presume to abridge First Amendment freedoms to disseminate the written word and circulate petitions, under the mantle of forest regulation. That they do so in blatant defiance of Federal Court rulings in direct precedent cases is an outrage. Such insistent disrespect toward judicial opinion bespeaks a repressive temperament in the Agency's administrative scheme, warranting deeper legal scrutiny and decisive political intervention .
261.10 Occupancy and use.
Paragraphs (g) and (h) set forth the prohibition against "...distributing any printed material without a special use authorization", along with specific criteria by which a violation would be defined under this section. The applied standard -- "...delaying, halting, or preventing administrative ... or other scheduled or existing uses" -- creates an extremely broad test for these activities. Loosely construed, virtually any citizen presence on National Forest land might be determined to impede other uses or conflict with the multiple-use management plan. The Forest Service offers no guidelines for resolving possible conflicts in advance, and it ignores available remedies under existing regulations should actual conflicts occur.
Similarly, although "misrepresentation" is also proscibed under existent law, the rule seeks further strictures against "...misrepresenting the purposes or affiliations of those selling or distributing the material [or] ...the availability of the material without cost or donation." F.R., pg. 26946. However this particular prohibition also amounts to a "prior restraint on the exercise of First Amendment liberties...", blatantly trammeling the judicial test for "narrowly tailored time, place, and manner restrictions...". Rainbow at 329; citing Near v. Minnesota, 283 US 697 (1931).
Beyond conferring legal liability upon applicants and contriving further cause for enforcement and prosecutorial action, there is no indication of a legitimate administrative purpose that would explain these restrictions. It would have an especially harsh impact upon 'consensual gathering' events, simply because each individual is responsible for their own actions: No individual can assume liability for the purposes or affiliations of other participants. Nor can any individual have foreknowledge of the actions of others, which may be so diverse and multifarious that it is impossible to foretell or itemize them in applying for authorization.
Nonetheless, the rule would grant law enforcement officials the latitude to construe a simple omission as "misrepresenting" these facts, in order to impose the weight of the law arbitrarily. In this light, these provisions reveal an especially capricious intent toward consensual assemblies on public land, and the natural diversity of expression that is their essence.
Legal Land Use Review Continued
Part 261 -- PROHIBITIONS
Subpart A -- General Prohibitions
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