Comment: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
Least Restrictive Means To Further the Government's Interests.
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.
Less restrictive alternatives are not part of the test for the
validity of a time, place, and manner regulation like this final rule.
Ample Alternative Channels for Communication
Listing of Comments
FS Regulation Page