Comment:Three respondents commented on this provision. One respondent commented that it is
reasonable for the Forest Service to request an estimate of the number of participants
and spectators, but that requiring that estimate prior to an activity places an undue
burden on the public. Another respondent stated that this provision could be used to
limit attendance at an activity on the pretext of mitigating environmental impact. One
respondent commented that regulating the number of participants and spectators is not
a valid time, place, and manner restriction.
Section 251.54(e)(2)(i)(C) of the proposed rule
required the applicant to provide the estimated number of
participants and spectators.
Response The Department believes that it is both reasonable and necessary to
require proponents to provide in advance an estimate of the number of participants and
Failure to require prior notice of the anticipated attendance 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.
This provision is a necessary component of a valid time, place, and manner
restriction. For example, the applicable forest plan might limit the number of people
that can be accommodated at a proposed site. The Forest Service would need an estimate
of the number of participants and spectators to determine whether that number fell
within the limit established by the forest plan. In addition, the agency would need to
know the anticipated attendance in order to determine the number of toilets or latrines
needed or the sufficiency of potable drinking water at the proposed site. Finally, while
numbers of people can have varying degrees of environmental impact on a site, the agency
cannot under this rule limit the number of people attending an activity. The agency can
only accommodate that number.
Having considered the comments received, the Department has retained without change
Sec. 251.54(e)(2)(i)(C) in the final rule.
Listing of Comments
FS Regulation Page