General Comments


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.

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.

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.

Section 251.54(e)(2)(i)(C)

Listing of Comments

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