General Comments


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.


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