Since the 1988 court ruling, the Forest Service has been engaged in a comprehensive review of its special uses rules, of the court decisions on First Amendment issues, and of similar rules of other Federal land managing agencies. The agency has concluded that, while certain minimum standards should apply uniformly to all uses of National Forest System lands, the current approach of trying to handle all special uses under one set of procedures simply will not resolve the legal issues.
Review of the various types of uses reveals a natural division in uses by their nature and tenure. Review also indicates that the relationship between the Forest Service and applicants and holders of authorizations also depends on the nature and length of the use. In authorizing and administering uses that are of a long-term, commercial, or business-like nature the Forest Service acts in a manner similar to that of a "landlord," and the permittee as a "tenant." For those uses involving short-term, noncommercial uses, such as recreation uses. assemblies and gatherings, the role of the Forest Service is -c.= akin to that of a "host" than a landlord, and the permittee is "visitor," not a tenant. These distinctions in the nature of and in role and relationship suggest that differing approaches are appropriate to authorizing and administering occupancy and use of National Forest System lands.
The current Special Uses rules at 36 CFR Part 251, Subpart B address quite effectively the requirements for applying for and approving commercial. governmental, and private business ventures on National Forest System lands, such as ski resorts, concessions, outfitter and guide services, pasture use, pipelines, electronic communication sites, and easements. The highly procedural and fee requirements of these rules are inappropriate, however, to simpler noncommercial uses of the National Forest System of a short-term nature, such as religious observances, gatherings, boating regattas, races, and other large group recreational uses.
The agency has also concluded, that for both the authorized officer and the public, it is necessary to identify in the rules the distinctive categories of occupancy and use of National Forest System lands that may be authorized and to make clear which application and approval procedures apply to each use. This approach is modeled on the occupancy and use rules of the National Park Service, set out in 36 CFR Chapter 1. and generally should relieve the authorized officer from having to classify group uses in order to determine which rules apply.
As a result of its review, the Forest Service is proposing major restructuring of Par: 2;1 as it relates to special uses. First, the miscellaneous provisions now coded at Subpart A would
be redesignated as a new Subpart F. A new Subpart A would be established to set forth the categories and types of uses that may be authorized on National Forest System lands and the minimum requirements applicable to all uses. Subpart 3 would be renamed and limited to procedures applicable to commercial, governmental, private, and other related uses. A new Subpart E would be established for short-term, noncommercial occupancy and use authorizations. Uses by groups of a recreational nature or for expressive purposes would be applied for, authorized, and administered under the latter subpart. Appendix 1 which appears at the end of this document displays the new structure graphically and may be helpful to understanding the relationships among the various subparts.
Proposed Subpart A would establish the overall framework for Forest Service special use administration, gathering in one location the general policies and procedures applicable to each use, some of which have previously been issued as agency policy through the Forest Service Manual and handbooks rather than in the special uses rules. The provisions of this proposed subpart clearly set forth the categories and types of uses that are allowed on National Forest System lands, make clear when a written authorization is required, and specify the processing procedures
that apply to each category of use. The rules of this subpart would further establish the minimum standards applicable to all proposed uses without regard to the purposes of those uses and would establish uniform standards for denial of proposed uses.
In establishing those use. that require an authorization, the rules treat group uses evenly with regard to the minimum standards applicable to all uses and with regard to the size of the groups. The only exception proposed on group size is in the case of special recreational events, where the intrinsic nature of the proposed use requires close monitoring and administrative control.
The rules would divide authorization procedures into 2 separate subparts based on tenure and nature of the use. Thus. proposals for noncommercial, short-term uses would be subject to the procedure. of a new proposed Subpart E. This arrangement eliminates the necessity for authorized officers to distinguish the purposes of group uses, with one exception. Pursuant to proposed §251.3(b). an officer cannot deny a permit for an expressive use on the basis that non-National Forest System lands are available and can reasonably accommodate the use. This exception is necessary to comply with applicable court rulings and unavoidably necessitates that the authorized officer classify use in order to apply this denial criterion. As a general rule, however , it would make no difference under the proposed rule whether a group is gathering for traditional forest recreation
for expressive purposes, or a combination of purposes. All such use. would be processed under Subpart E.
Proposed §251.1 (currently §251.50 of Subpart B would make v' clear that all uses of National Forest System lands, except for grazing of livestock and disposal of timber, forest products, minerals, and mineral materials are subject to the rules of Part 251. Only one substantive revision of this section from that currently in §251.50 is proposed. A new paragraph (e) would be added to provide that, in the event of question as to which rules apply to a particular proposed occupancy and use, the authorized officer shall make the determination using the rules of the part and any guidance that Day be issued through the Forest Service Manual or Handbooks, which are the primary source of internal direction to Forest Service employees.
This new provision is necessary because there would now be two sets of procedures in separate subparts to govern applications or and authorization of uses. This new provision would not grant the authorized officer unreasonable or "unbridled" discretion to choose which rules apply. The rules themselves are drafted co be quite specific and to leave little discretion to the authorized officer; however , questions are bound to arise from time to time over the nature and scope of uses and the applicable procedures; for example. whether a use is a commercial or noncommercial activity. Consistent with statutory responsibilities, the Federal
land manager must have the final authority to decide whether a use falls under the rules of Subpart B or Subpart E.
Proposed §251.2 would set forth definitions that apply co the entire part. Reviewers are particularly asked to consider the adequacy of the definitions of "commercial uses," "noncommercial uses," and "private uses." all of which are new terms, and to comment on whether the definitions are adequate to guide the Forest Service's and the public's understanding of the distinctions in various types of uses. Suggestions of alternative wording of these definitions are especially invited.
Proposed §251.3 would set forth the minimum requirements applicable to all proposed occupancy and use of National Forest System lands. These are requirements that the agency believes should and do apply equally to any proposed use and that do not vary by type of use or the nature of the relationship between :he Forest Service and the applicant or holder of an authorization. First. unless otherwise provided by law or elsewhere in the rules this section makes clear that anyone who wishes to occupy and use National Forest Sys ten lands must apply for a written authorization to the Forest Service officer in charge of the area in question. This is an existing requirement at 36 CFR § 251.50
Paragraph (a)(2) of proposed §251.3 would charge the authorized officer with the responsibility to establish terms and conditions of use that ensure that all uses meet certain uniform
criteria. These criteria are the minimum which the Forest Service by various statutes is obligated to satisfy in managing National Forest System lands. The criteria and a discussion of them are as follows:
1. The use is consistent with laws. regulations. orders, and policies establishing and governing National Forest System lands and consistent with applicable State and local health and sanitation laws. While State and local officials are responsible for enforcing State and local laws that apply to uses on National Forest System lands, an authorized officer has an obligation to ensure that health and sanitation standards will be met. For example, an officer might need to restrict uses or surface disturbances to prevent contamination of water supplies.
2. The use is consistent with the direction and guidelines in the approved Forest land and resource management plan or ocher approved management plan for the area. Required by the National Forest Management Act (16 U.S.C. § 1600 et. seq.), forest plans allocate National Forest System lands and resources to various uses and set forth management direction and prescriptions to guide de Forest Service employees in managing the lands. The plans are developed in accordance with the rules at 36 CFR Part 219 and adopted with extensive public participation and comment. In addition to forest plans, occasionally there are distinct management plans required by statute establishing special areas
within the National Forest System, such as scenic areas, wilderness , or wild and scenic rivers. Generally, these plans are incorporated-as part of the applicable forest plans.
3. The use can be conducted without unreasonable or irreparable ham or damage to National Forest System lands. This criterion is necessary to meet the various laws governing management of the National Forest System. It recognizes that many uses involve surface disturbance, but it allows the forest officer to determine the terms and conditions necessary to reclaim or restore the land to its pre-use condition.
4. The use will not create a serious and substantial denser to public health and safety. This criterion is essential to protect not only visitors or users on National Forest System lands but also adjacent landowners and residents from unsafe or unhealthful effects of activities conducted on National Forest System lands. The term "serious and substantial danger" is intended to limit the discretion of the authorized officer to findings of situations of very real danger or harm.
5. The use will not create an exclusive or perpetual rise: of occupancy. This criterion would be added to the rules to make clear what has been the longstanding congressional and administrative-policy on occupancy and use: that a use authorization issued by the Forest Service, acting on behalf of the American public, is a privilege to use publicly owned lands, not a right
and that a permittee does not obtain exclusive or perpetual right of occupancy of lands owned by the public. All uses are authorized for a specified period of tine or tenure and standard clauses included in permits establish that uses are not exclusive. (Forest Service Handbook 2709.11, Special Uses Handbook, Chapter 50 - Terms and Condition..) This criterion would ensure that the authorized officer does not grant a use that vests in an individual or group an exclusive right or interest in Federal lands.
6. The use will not unreasonably conflict or interfere with administrative use by the Forest Service, other scheduled or authorized existing uses on the National Forest System, or use of adjacent private lands. This criterion recognizes that special uses may conflict or interfere to a degree with Forest Service administrative use, scheduled or authorized use, and use by adjacent landowners; however, it requires the authorized officer to establish terms and conditions to ensure that a use will not unreasonably conflict with these pre-existing uses. For example under this criterion, an officer might require a large group of recreationists to alter arrival and departure times or to use an alternative access route to a site to avoid unreasonable congestion from traffic already generated by Forest Service administrative use or other use such as a timber sale. This criterion might also prevent use of a site on/ the opening day c''
deer hunting or trout fishing season. where large numbers of sportsmen have traditionally congregated.
Under paragraph (b) of proposed §251.3, if a proposed use cannot be conducted in a manner that meets the foregoing criteria. the authorized officer oust deny the authorization. This paragraph also establishes other criteria for denial of uses, the need for which has become evident in 85 years of special uses administration. First, the rule would provide that an applicant _'=
from a prior use authorization cannot _ receive a new authorization. An applicant who ha. violated terms
and conditions of an authorization held within the last 2 years.
the violation of which was so serious as to result in revocation of the permit. also could not obtain a permit. The 2-year period would apply only to revocations made after the effective date of this rulemaking.
Currently, there is no penalty for a permit holder who falls to meet the terms and conditions of an authorization. An irresponsible holder may reapply for an authorization at any c -e and the fact that holder has recently shown bad faith under a prior authorization cannot be used to disqualify that applicant from receiving another authorization. This is not a prudent management practice : A private landowner certainly would not issue a new lease to a lessee who owes back rent or amounts for
damages and the Federal Government should be equally prudent in administering the lands of the Rational Forest System.
It should be noted that denial for revocation of a permit is limited to a 2-year period. Thus, a permittee is not permanently barred from obtaining future authorizations. Nor could an authorized officer use revocation of a permit as a way to ban certain groups from using the forests in the future, since under the proposed rules at Subpart E governing group uses, the bases for revocation of an authorization are quite narrow—serious, wrongful, and willful breach of the terns and conditions of an authorization; misrepresentation of material facts about the proposed use; or failure to accept an essential modification required to protect public health or safety from serious and substantial harm.
The proposed rules would also prohibit any activity involving gambling or sexually-oriented services, even if permitted under State law; military or paramilitary training by private organizations or individuals unless the training is federally funded: storage or disposal of solid waste or radioactive or other materials; or community-type facilities such as hospitals , churches, and cemeteries. These activities are prohibited by policy of the Chief issued through Forest Service e
Manual Chapter 2710, because they are inconsistent with National
Forest System purposes, represent an unacceptable environmental :
safety hazard, or would create an exclusive and perpetual use of National Forest System lands. These prohibited uses are proposed to be added to the rules because they have general applicability and future effect and, therefore, are appropriately subject to rulemaking procedures as set forth at 5 U.S.C. § 552.
Proposed paragraph (b)(l)(iv) would require an authorized officer to deny an authorization if an application were not received in sufficient tine prior to onset of the proposed use to permit compliance with the environmental analysis requirements of the National Environmental Policy Act (NEPA) and implementing regulations (40 CFR Parts 1500-1508). The environmental impacts of proposed uses must be analyzed prior to a decision authorizing the use. Many proposed uses, such as small group recreational outings. are of minimal resource impact and, therefore, require minimal time to complete soy necessary analysis and documentation. However, many other uses, especially commercial uses, involve surface disturbance and resource impacts that must be carefully identified. evaluated, sad documented. If a proponent doe. not apply in sufficient time for the agency co complete NEPA analysis and documentation, the forest officer cannot make an informed decision in compliance with the statute For this reason. proponents of uses are routinely advised to contact forest officers at the earliest initial stages of planning
damages and the Federal Government should be equally prudent in administering the lands of the National Forest System.
It should be noted that denial for revocation of a permit is limited to a 2-year SIZE=1>period. Thus, a permittee is not permanently barred from obtaining future authorizations. Nor could an authorized officer use revocation of a permit as a way to ban certain group, from using the forest. in the future, since under the proposed rules at Subpart E governing group uses. the bases for revocation of an authorization are quite narrow—serious, wrongful, and willful breach of the terms and conditions of an authorization; misrepresentation of material facts about the proposed use; or failure to accept an essential modification required to protect public health or safety from serious and substantial harm.
The proposed rules would also prohibit any activity involving gambling or sexually-oriented services, even if permitted under State law; military or paramilitary training by private organizations or individuals unless the training is federally funded: storage or disposal of solid waste or radioactive or of hazardous materials: or Community-type facilities such as hospitals, churches, and cemeteries. These activities are prohibited by policy of the Chief issued through Forest Service Manual Chapter 2710, because they are inconsistent with National forest System purposes. represent an unacceptable environmental :
to ascertain the timeframes necessary for processing an application.
The final criterion for denial of a use is that the use can be accommodated on other lands. Again, this is a policy that has been issued through the Forest t Service Manual and clearly should be in the rules with other denial criteria. This policy has been an important one over the years in preventing unnecessary and inappropriate development and use of the National Forest System. However, this criterion cannot be used to deny a permit for expressive uses protected under the First Amendment, because it would abridge the exercise of constitutionally protected rights. For this reason. this denial criterion has the caveat that the availability of non-National Forest System sites cannot be used as a basis to deny authorizations for assemblies, gatherings,-demonstrations. and similar First Amendment activities.
Paragraph (b)(2) of proposed §251.3 would require the authorized officer to give written notice of a decision to deny a proposed use and cite the reason(s) for the denial. This requirement applies to denials of any use and corrects a deficiency noted in the court's ruling in U.S. v. the Rainbow Family.
Sections 251.4 through 251.8 of proposed Subpart A identify the distinctive categories of occupancy and use covered by the
rules of Part 251 and indicate the rules of procedure that apply to each.
General recreation uses are covered in proposed §251.4. Paragraph (a) states thee most lands of the National Forest System are available for general recreational uses customarily associated with enjoyment of forest areas and lists examples of such customary uses. This section also gives notice that restrictions on recreation use are set forth in the prohibitions of 36 CFR Part 261 and, additionally, restrictions on and conditions of recreational uses may be established in a forest plan, by a site-specific order or regulation, by posting of restrictions or conditions or use, or through other printed materials such as visitor brochures, maps, signs, and so forth.
Paragraph (b) of proposed §251.4 is a revision of the existing rule §251.50 of Subpart B. This paragraph continues the practical necessity of not requiring permits for traditional recreation uses, camping, hiking, etc., unless one of the following circumstances exists:
1. An order or regulation has been issued requiring an authorization, for example. a Forest Supervisor might restrict access to a particular area during high forest fire danger if prevention indicates a need to control numbers of users in the area;
2. The site requires a reservation and/or permit as posted at the site or described in a forest recreation user guide or map; or
3. The use is by 25 or more persons and there are no available design aced recreation sites to accommodate the group. This provision also gives the public notice that groups should contact the local Forest Service office to see if site. are available for the group at the time desired or whether the group needs to apply for an authorization under Subpart E.
After careful review, the agency has determined that the 25-person limitation is the most practicable number to establish. Uses involving more than this number generally tend to have greater impact and thus require evaluation by the authorized officer. Uses by less than 25 persons tend to have less impact-; and the agency would be inundated with permit applications for smaller group uses if 10 or 15 persons were set as the limit for permit application.
Finally, this section would provide a cross reference to the rules at Part 291 of 36 CFR Chapter II which address recreation use fees.
Under the proposed rule, all relevant information about recreational uses of the National Forest System would be addressed SIZE=3>in one location. §251.4, rather than scattered without reference among the various parts of the CFR.
Proposed §251.5 addresses the category of special recreational events and related uses. Paragraph (a) provides a listing of the types of events and uses in this category—for example, sports events. pageants, public spectator attractions. family reunions—and provides that these uses only occur on National Forest System lands if the authorized officer has issued a written authorization. The rules make clear that these uses require authorization without regard to the numbers of participants or spectators. This latter requirement is appropriate and necessary because of the planned and organized character of such events,their potential for drawing spectators, the strong potential for organized events to impact other uses of the area. and the need of many organizers of such events to ensure that the event will occur without interruption by nonaffiliated users. There is also the need to determine whether special recreation events are commercial or noncommercial uses. Requiring an application for all such uses is the simplest and most reasonable way co ensure that an event is authorized under the correct procedures and the impacts of special recreational events are identified. evaluated. and mitigated as necessary. The agency but rejected, allowing noncommercial special recreation events of 25 or less persons to occur without authorization. field personnel commenting on this option noted that. depending on the activity and degree of vehicle use. special
recreation events of 15-20 persons can have more impact on
resources than the gathering of 100 persons for a
demonstration or religions observance therefore, the proposed rule would
require an authorization for all such events, whether commercial or noncommercial, and without regard to numbers involved.
Paragraph (b) of this proposed section would require chat a commercial special recreation event would be handled under the rules of Subpart B. if the event involves charging of an entry or other fee, the contracting with vendors or suppliers for services or products. or the selling or exchanging of products or services. Events of this nature are commercial enterprises, and the relationship between the Forest Service and the applicant, as well as between the applicant and participants and spectators, is a business relationship. Noncommercial special recreation events would be applied for under the rules of Subpart E.
Paragraph © is essentially a cross reference to the rules in Subpart 9 and is included to give clear notice that commercial special recreation events require payment of a rental fee.
Proposed §251.6 provides chat assemblies, meetings, gatherings, demonstrations. and similar activities for the expression of views or of religious beliefs are allowed on National Forest System lands subject to the rules of Part 251. Activities of this nature involving less than 25 persons do no: require an authorization; those involving 25 or more persons would
require an authorization under proposed Subpart E, unless there is a designated site available for the group's use. These are the same numbers applicable to customary recreation uses by large groups, and as provided for those users, proposed §251.6 requires the group to contact the local forest officer to determine if a d FACE="Courier New" SIZE=3>esignated site is available. If a site is not available or the group does not wish to use an available site, the group just apply for an authorization under the procedures in Subpart E.
Finally, consistent with the right of groups to assemble for expressive purposes, paragraph © of proposed §251.6 would require the authorized officer to grant authorization of use, unless the use cannot meet the criteria applicable to all uses as set forth in . In contrast to the discretion granted to the authorized officer in approving or disapproving commercial, governmental, or private uses, this paragraph limits the officer's authority to deny expressive purposes to an intentionally narrow range of conditions. This limited range of discretion is felt to be necessary to ensure that forest officers do not infringe on First Amendment rights and to respond to the court's finding in U.S. v. The Rainbow Family regarding the degree of discretion currently permitted.
Proposed §251.7 is modeled closely on rules of the National Park Service. This section would allow the sale or distribution of printed material, but requires those who wish to do so to obtain an authorization. Because the very nature of distribution of printed material, in most cases, involves interaction with ocher forest users, it is important that those who wish to engage in distributing printed material receive instructions and understand the limitations on the manner in which such uses can be conducted. Paragraph (a)(1) clarifies that the sale of commercial merchandise including printed merchandise is limited to uses and facilities authorized under Subpart 3 or to activities of interpretive associations chartered by the Forest Service to provide forest visitor information and visitor interpretive services. This is the current agency policy, but it has not been previously addressed in the rules. The effect is that the sale of such merchandise as sporting equipment. food, guide books, recreation maps, imprinted tee shirts, or forest souvenirs must be affiliated with and a logical outgrowth of such uses as ski resorts, outfitter and guide services, or concessions, or be offered as a visitor information or educational service through interpretive associations. The sale and purchase of such merchandise does not involve an expressive use protected by the First Amendment, but is offered solely for commercial purposes ,in support of National Forest System management objectives.
Distribution of all other materials—petitions, handbills, newspapers , religious tracts, signs, etc.—would require authorization under Subpart E. .
As with expressive gatherings (proposed §251.6), the rules of this proposed section would require the authorized officer to approve the distribution of printed materials unless the use cannot be conducted in a way that meets the criteria applicable co all uses (§251.6) or the applicant failed to accept an essential modification pursuant to proposed § 251.25 Paragraph (b) would also direct that the authorized officer shall not consider the content of the message in the printed matter in deciding to approve or disapprove the use, unless the content violates federal statute. This requirement is intended to prevent any abuse of discretion by an authorized officer who might personally disapprove of a message being distributed.
Paragraph © of proposed §251.7 requires that any authorization issued for distribution of printed matter contain a statement that reminds distributors of the rights of other forest users not to be harassed or impeded in their use of the forest and of the obligation of distributors to accurately represent to recipients the purpose and affiliations of those distributing the material and to accurately represent whether the material is free or requires a charge or donation. These limitations and requirements are essential to avoid conflict and misunderstanding between those who wish to engage in distributing printed matter on forest land, and those who would be contacted in the course of the distribution . Most forest users are in the National Forests for personal recreational purposes. They visit the forests to relax and get away from the day-to-day routine. These users often tend to view political petitions or solicitations by those who espouse particular views as intrusive on their recreational experience Just as individuals have the right to express their views to other forest users, those users have the right to listen to. ignore. or reject the message without confrontation. Upon a finding that a distributor of printed material had failed to honor the restrictions on distributing printed matter, the authorized officer would be required to immediately revoke the authorization. The statement included in the authorization would also give the holder notice that revocation for violation of these rules will result in denial of any future requested use for a period of 2 years.
Finally, proposed §251.8 would provide that commercial, governmental, private, and other uses not specifically addressed in Subpart A are allowed, if the authorized officer grants an authorization. Application, authorization, and administration : these uses would be subject to the existing rules at Subpart E As previously noted, these categories of uses create a business relationship between the Forest Service and the applicant or holder and tend to be of a longer tenure than recreational and expressive uses. Accordingly. the uses should be subject to the procedures of Subpart 8, and the authorized officer should have broad discretion to determine if the uses are consistent with the purposes for which National Forest System lands and resources are managed.
OMB Review/Part 3