General Comments
Comment:
Seventeen additional respondents commented on the
evaluation criteria in general.
These respondents stated that the
criteria are an undue burden; that the criteria impose unreasonable
restrictions on freedom of assembly by restricting where, when, and
how citizens gather, and what types of activities can occur at a
gathering; that denial of a permit for constitutionally protected
activities goes beyond a regulation of time, place, and manner;
that these criteria are unnecessary, unlawful, redundant, and waste
money; that the criteria are unnecessary since most applicants
would meet them anyway; that none of the criteria addresses conduct
that may have adverse impacts on forest resources; that the issues
addressed in the criteria are never a problem at Rainbow Family
Gatherings; that with the exception of the criterion on halting,
delaying, or preventing other uses and activities, the issues
addressed in the seven criteria are either dealt with in other law
or are common sense health and safety measures; that applicants
have to show cause before a permit is issued; that the proposed
rule would shift the burden of proof from the government to its
citizens in requiring them to show, through the application
process, that they deserve a permit; and that the burden should be
on the agency to establish a basis for denial of a permit.
Response
The Department disagrees with these comments.
The final rule is a
constitutional restriction of time, place, and manner because the standards in the rule,
including the evaluation criteria, are content-neutral, are narrowly tailored to further
significant governmental interests, and leave open ample alternative channels for
communication of information.
As noted earlier in this preamble, the Forest Service has encountered a variety of
problems in connection with noncommercial group use of National Forest System lands.
These problems have arisen in the context of many different types of noncommercial group
uses, including Rainbow Family Gatherings. Some of these problems have included the
spread of disease, pollution from inadequate site clean-up, and resource damage in
critical salmon habitat. In view of these problems, the Department has established three
significant interests in promulgating this rule: Protection of forest resources and
facilities; promotion of public health and safety; and allocation of space within the
National Forest System.
The Department believes that the eight evaluation criteria in this rule are narrowly
tailored to address these issues. The first criterion addresses compliance with laws
in general and compliance with laws in particular that relate to protection of forest
resources, such as the ESA. The second criterion addresses consistency with standards
and guidelines for environmental protection in the applicable forest plan. The third
criterion deals with allocation of space for administrative use by the Forest Service
and for other authorized uses and activities on National Forest System lands. The fourth
and fifth criteria address specific concerns of public health and safety. The sixth
criterion makes the rule consistent with existing Forest Service policy on military and
paramilitary training or exercises on National Forest System lands. The seventh
criterion, which requires a representative of the group to sign a special use
authorization, allows the Forest Service to administer special use authorizations and
enables noncommercial groups to take responsibility for the actions of their members
as a whole that relate to the use and occupancy of National Forest System lands. The
eighth additional criterion in the final rule on extraordinary circumstances allows the
Forest Service to ensure that the most sensitive environmental lands and resources will
be protected while expediting the processing of applications as required by the First
Amendment.
Whether other laws address the issues dealt with in the evaluation criteria in this
rule is immaterial because less restrictive alternatives are not part of the test for
constitutionality of time, place, and manner regulations. Even though less restrictive
alternatives are not part of the test for constitutionality, the Department believes
that the special use authorization requirement is the least restrictive means to achieve
the government's interests. Other laws and regulations do not provide the framework
necessary for applying standards for resource protection and public health and safety
to noncommercial group uses. Special use authorizations are needed to allow the Forest
Service to limit or prevent adverse impacts on forest resources from noncommercial group
uses, to address concerns of public health and safety associated with noncommercial
group uses, and to allocate space for noncommercial group uses and other uses and
activities.
Applicants for noncommercial group uses do not have to show cause before a special
use authorization is issued. Applicants for noncommercial group uses merely have to
provide the information enumerated in Secs. 251.54(e)(2)(i) (A)-(E), which the Forest
Service needs in order to apply the evaluation criteria in the rule. Section
251.54(h)(1) establishes a presumption in favor of issuance of a special use
authorization. The burden is on the authorized officer to establish a factual and legal
basis for denial of a special use authorization.
A summary of comments received on each evaluation criterion and the Department's
response to them follows.
Section 251.54(h)(1)(i)
Listing of Comments
FS Regulation Page