Comment:Four respondents commented on this provision. One respondent commented that it is
reasonable for the Forest Service to request a description of the National Forest System
lands a proponent would like to use, but that requiring this information prior to the
proposed activity places an undue burden on the public. This respondent stated that if
the land selected by a proponent is not available at the time requested, the agency
should address the problem at the time of the activity, not before.
One respondent stated that this provision would require a church group to tell the
agency where it wants to pray, which would violate religious freedom. Another respondent
commented that the agency could authorize a smaller area than requested and that if 25
or more people spilled over the permit boundary, use of that area would not be
authorized by the permit. One respondent stated that a group would have to commit to
a site early on, given the amount of time needed to process an application.
Section 251.54(e)(2)(i)(B) of the proposed rule
required applicants to provide a description of the National Forest
System lands and any facilities the applicant would like to use.
The Department has amended Sec. 251.54(e)(2)(i)(B) in the final rule to
require an applicant to provide the location as well as a description of the National
Forest System lands and facilities the applicant would like to use.
It is both
reasonable and necessary to require proponents to provide this information in advance.
Failure to provide prior notice of the location and a description of the proposed
activity would defeat the Department's purposes of resource protection, promotion of
public health and safety, and allocation of space within the National Forest System.
Without this information, for example, the Forest Service would not know the kinds of
mitigative and preventive measures to take in authorizing noncommercial group uses. As
a result, these uses could pose a substantial risk of damage to National Forest System
lands and resources.
In addition, the National Environmental Policy Act (NEPA) mandates that federal
agencies prepare an environmental analysis on proposals for major federal actions
significantly affecting the quality of the human environment (42 U.S.C. 4332(2)(C)).
As one of the examples of a major federal action, NEPA's implementing regulations
include actions approved by federal permit (40 CFR 1508.18(b)(4)). In order to comply
with NEPA, the Forest Service needs to know which National Forest System lands may be
impacted by a proposed activity.
Requiring religious groups to provide a description of the National Forest System
lands and facilities they would like to use does not impose an undue burden on free
exercise of religion. Religious groups have applied for and have obtained permits to
hold services at specific sites on public lands. See, e.g., O'Hair v. Andrus, 613 F.2d
931 (D.C. Cir. 1979) (National Park Service permit authorizing outdoor Catholic Mass
on National Mall).
Authorization of noncommercial group uses will not be less likely than authorization
of other uses. On the contrary, the Department intends to authorize noncommercial group
uses to the full extent allowed under this rule. The Department also intends to apply
this rule consistently and fairly as required by law to all noncommercial group uses.
While the agency retains the discretion to determine the size of an area needed to
support an activity, drawing an authorization boundary smaller than required would not
be environmentally defensible as that approach would increase rather than reduce risks
to forest resources.
The amount of time needed to process an application will not require a group to
commit to a site early. Under Sec. 251.54(f)(5) of the final rule, applications will
be granted or denied within 48 hours of receipt. However, a group may still find it
necessary to commit to a site early due to factors that are beyond the control of the
Forest Service, such as the popularity of the site.
Listing of Comments
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