General Comments

Comment:

Section 251.54(e)(2)(i)(E) of the proposed rule required applicants to provide the name of the person or persons 21 years of age or older who will sign a special use authorization on behalf of the applicant.


Four respondents recommended dropping the age limitation in this provision. These respondents believed that the age limitation prevents persons under the age of 21 from exercising their First Amendment rights, and that the agency should lower the age limit to 18 or drop it altogether; that those under the age of 21 would not be able to gather unless the ideas they espouse have been adopted by someone 21 years of age or older; that the provision discriminates against citizens under the age of 21, who will not be able to gather in groups of 25 or more; that this provision establishes a restriction on First Amendment activity that does not apply to other activities, since younger people can still go camping in small groups without a permit, which could present equal or greater risks to the resource; and that although each Rainbow Family member could get his or her own permit, then no one under the age of 21 could attend the Gathering.

Approximately 19 respondents indicated that it is not appropriate to make one individual responsible for an entire group. Specifically, these respondents stated that individual group members will no longer be responsible for themselves; that individuals should accept responsibility only for themselves; that it is reasonable for a group to give a person's name in the spirit of cooperation, but that it is not reasonable to require one person to assume responsibility for others; that a group should take responsibility for itself, and that if one person signs a permit, the group's solidarity will be broken; that this requirement is unreasonable if a group is not a legal entity and acts by consensus rather than by hierarchy; that if no representative from the group will sign because the group has no leader and because decisions are made by consensus, the Forest Service could find anyone 21 years of age or older or a representative from a different group to sign the permit, thus circumventing the process of decisionmaking by consensus; that individuals in the group will lose their autonomy; that those individuals who are responsible for any damage could make restitution with the aid of the whole group; that this requirement is particularly inappropriate where a group hesitates on philosophical grounds to appoint agents or representatives to speak on its behalf, and that the agency has said that it is unreasonable and impracticable to deal separately with each member of a large group, but that there is no reason for such a group to alter its philosophical grounds unless the agency shows that it has had to deal separately with each group member; that certain religious practices do not recognize a leader who takes responsibility for the group; that making one individual responsible for a permit makes the activity seem like a commercial venture.

Two respondents commented that this provision is unenforceable against the Rainbow Family because they have no leader. One of these respondents stated that no member of the Rainbow Family can speak for, sign for, or be held responsible for another.

Response

The Department believes that the age limitation in Sec. 251.54(e)(2)(i)(E) of the final rule is a reasonable time, place, and manner restriction.

The restriction is necessary to ensure that those who are designated to sign and who do sign a special use authorization on behalf of a group are of the age of legal majority. The signature gives the authorization legal effect. If the person or persons who sign the authorization are not of the age of legal majority, the authorization is not legally enforceable. Since the age of legal majority is not the same in every state but in no state exceeds the age of 21, the final rule requires that the person or persons who are designated to sign and who do sign a special use authorization be at least 21 years of age.

The Department does not believe that this age limitation imposes an undue burden on the exercise of First Amendment rights by those under the age of 21. The final rule does not prohibit groups of 75 or more people under the age of 21 from gathering in the national forests, nor does the final rule require that these groups include a person 21 years of age or older. Rather, the final rule requires that a person or persons 21 years of age or older be designated to sign a special use authorization and that that designated person sign an authorization on behalf of the group.

It is not appropriate or necessary for each member of a group to sign a special use authorization. It is also not appropriate or necessary for one member or a few members of a group to assume personal responsibility for the actions of other group members. Individual group members are personally responsible for their own actions. A person who signs a special use authorization for a noncommercial group use acts as an agent for the group, but does not assume personal responsibility for the group's actions.

However, it is appropriate and necessary to ensure that a group will be responsible for the actions of its members as a whole that relate to the use and occupancy of National Forest System lands by requiring a person or persons to sign a special use authorization as an agent or representative of the group. Requiring that a person or persons sign the special use authorization on behalf of the group will not weaken the group's solidarity; on the contrary, this requirement can serve to enhance the group's solidarity by ensuring that the group will take responsibility for its actions. By signing a special use authorization on behalf of the group, the agent or representative gives the authorization legal effect and subjects the group to the authorization's terms and conditions.

In addition, the Forest Service needs to have someone to contact for purposes of special use administration. The authorized officer may have questions about the application or may need to notify the applicant in the event of an emergency. If the application does not identify a contact person, the Forest Service cannot make the appropriate notifications.

As shown by the reports on the 1991 and 1992 Rainbow Family Gatherings, if a group does not designate a representative or representatives, the Forest Service has to deal separately with various individual members and subgroups. Informal agreements made with one individual member or sub-group are not always respected by other group members, which makes it difficult for the agency to obtain commitments from the group as a whole. The special use authorization process will allow the agency to obtain commitments from the Rainbow Family that apply to the group as a whole.

Non-members of a group cannot sign a special use authorization on behalf of a group unless they are designated by the group to act as its agents or representatives and are authorized to make the group responsible for the actions of its members as a whole. Requiring a group to designate a person or persons who will sign a special use authorization on behalf of the group does not make a group use a commercial venture under this rule. Under the final rule, a group use is a commercial use or activity if an entry or participation fee is charged or if the primary purpose of the activity is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit. All groups, both commercial and noncommercial, should be responsible for the actions of their members as a whole that relate to the use and occupancy of National Forest System lands.

The Department believes that it is both fair and appropriate to apply this provision to all applicants, including groups like the Rainbow Family that make decisions by consensus. The group can, for example, designate a representative or representatives who can sign a special use authorization on behalf of the group. Groups that make decisions by consensus could select a representative through that decisionmaking process.

As one respondent noted, the court in United States v. Rainbow Family held that the Rainbow Family is an unincorporated association that can sue and be sued. 695 F. Supp. at 298. The court also held that service upon the Rainbow Family was properly effected in that case by service upon several individuals who acted as agents or representatives of the Rainbow Family. Id. Moreoover, in 1987, representatives of the Rainbow Family signed a consent judgment in a suit brought by the Health Director of the State of North Carolina against the Rainbow Family for failure to obtain a permit under the State's mass gathering statute. It is thereforereasonable to believe that the Rainbow Family could designate a person or persons to sign a special use authorization on behalf of the group as provided in Sec. 251.54(e)(2)(i)(E).

Having considered the comments received, the Department has retained without change Sec. 251.54(e)(2)(i)(E) in the final rule.


Section 251.54(e)(2)(ii)(D)

Listing of Comments

FS Regulation Page