General Comments


Least Restrictive Means To Further the Government's Interests.

Approximately 95 respondents indicated that the Forest Service has not employed the least restrictive means to achieve its interests. These respondents stated that the proposed rule is unnecessary because, as the court in the Rainbow Family case held, there are other laws and regulations that address the agency's interests in promulgating the proposed rule; that the agency should deal with violations of other regulations as they occur; that there is no need for a permit requirement because encouraging groups to contact the agency prior to their proposed activities is sufficient to address the agency's concerns; that the agency does not need to require a permit because requiring notice of a proposed activity is sufficient; that mid-sized groups of 50 to 100 people should only have to notify the Forest Service of their activity, rather than obtain a permit; that there is no need for an application and permitting system and that the agency should allow a group to gather if they meet all other parts of the proposed rule; and that the proposed rule should not apply at developed campgrounds or areas set aside for group uses.

Additionally, these respondents stated that given that impacts vary depending upon the type of activity, the Forest Service should issue specific and objective standards for those activities that are problematic, and that the agency could also intensify education programs for specific groups that cause problems; that a special use authorization should not be required for church, club, or family gatherings; that a simple assessment, roping off of high-risk areas, and site-specific camping requirements have sufficed for gatherings of over 20,000; and that with respect to the Rainbow Family, the Forest Service has been able through informal cooperation to achieve its objectives concerning resource protection, promotion of public health and safety, and space allocation.


Less restrictive alternatives are not part of the test for the validity of a time, place, and manner regulation like this final rule.

Rather, the test is limited to whether the regulation is content-neutral, whether it is narrowly tailored to further a significant governmental interest, and whether it leaves open ample alternative channels for communication. Clark v. CCNV, 468 U.S. at 293.

In Clark v. CCNV, where the Court upheld a National Park Service regulation that prohibited camping in certain parks in Washington, D.C., the Supreme Court rejected the Court of Appeals' view that the challenged regulation was unnecessary, and hence invalid, because there were less speech-restrictive alternatives that could have satisfied the governmental interest in preserving national park lands. The Supreme Court held that the less-restrictive alternatives proposed by the Court of Appeals represented no more than a disagreement with the National Park Service over how much protection the core parks require or how an acceptable level of preservation is to be attained. 468 U.S. at 299.

Thus, it is immaterial if there are less restrictive alternatives to the special use authorization requirement for noncommercial group uses, as long as the final rule meets the test for constitutionality enunciated in Clark v. CCNV. Under Clark v. CCNV, the federal land management agencies, rather than the courts, have the authority to manage federal lands and the competence to judge how much protection of those lands is wise and how that level of conservation is to be attained. 468 U.S. at 299.

Even though less restrictive alternatives are not part of the test for constitutionality for time, place, and manner regulations, the Department believes that the special use authorization requirement is the least restrictive means to accomplish the government's interests. Other laws and regulations, such as the Endangered Species Act and rules providing for the issuance of closure orders, address resource protection and public health and safety in general. Other laws and regulations do not, however, provide the framework necessary for applying those standards for resource protection and public health and safety to noncommercial group uses. Other laws and regulations do not allow the Forest Service to control or prevent adverse impacts on forest resources from noncommercial group uses, to address concerns of public health and safety associated with noncommercial group uses, or to allocate space for noncommercial group uses and other uses and activities.

In United States v. Rainbow Family, the court denied the government's motion for a preliminary injunction to enforce the group use regulation on the grounds that the regulation was unconstitutional and not validly implemented. The court stated in dicta that the government had an adequate remedy at law which would also preclude granting the motion, in that there were other laws and regulations to address the government's concerns in seeking the injunction. 695 F. Supp. at 314. The court never ruled on the existence of an adequate remedy at law for purposes of obtaining a preliminary injunction. Even if the court had ruled on this issue, it would have been immaterial to the assessment of the constitutional validity of this final rule.

Requiring notice of a proposed activity is also insufficient to address the concerns underlying the final rule because the agency still lacks the ability to regulate the activity. Without the application and permitting system, the authorized officer cannot determine whether the evaluation criteria in the final rule are satisfied. This final rule will not apply at developed recreation sites where use is allocated under a formal reservation system and where the agency has the authority to manage and to charge a user fee to the public under the Land and Water Conservation Fund Act (16 U.S.C. 4601-6a).

The Department has determined that it has sufficient interests in regulating noncommercial group uses. Regulating only those activities or groups that have caused problems in the past would be difficult to defend. The courts in United States v. Israel and United States v. Rainbow Family held that in regulating noncommercial group uses the agency cannot single out expressive conduct and treat it differently from other activities, and that the regulation must have clear and objective standards. Regulating only certain groups or activities based on a judgment of which ones have caused problems sufficient to warrant regulation could be viewed as singling out expressive conduct on the basis of a subjective standard. The same concern would apply if the Department exempted certain types of noncommercial group uses, like church, club, or family gatherings, from the special use authorization requirement.

Finally, as shown by the reports on the 1991 and 1992 Rainbow Family Gatherings, the Forest Service has not always been able to achieve its objectives concerning resource protection and space allocation through informal cooperation with the Rainbow Family. In particular, agency personnel have been frustrated in dealings with Rainbow Family members because informal agreements made with one individual or subgroup have not been respected by other group members. It has thus been difficult for the agency to obtain commitments from the Rainbow Family on issues pertaining to the Gatherings. On a number of issues, the agency has had to recommence discussions at each encounter with Rainbow Family members. The special use authorization process will enhance the agency's ability to achieve its objectives by allowing the agency to obtain commitments from the Rainbow Family that apply to the group as a whole.

Ample Alternative Channels for Communication

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