General Comments
Comment:
Section 251.54(h)(1)(iii) of the proposed rule
required an authorized officer to determine that a proposed
activity would not delay, halt, or prevent administrative use of an
area by the Forest Service or other scheduled or existing uses or
activities on National Forest System lands, including but not
limited to uses and activities authorized pursuant to parts 222,
223, 228, and 251 of this chapter.
Approximately 35 respondents commented on this provision. Eight respondents
commented that this provision is vague generally and gives an authorized officer too
much discretion. Specifically, these respondents stated that denying a permit because
it conflicts with another use or because it cannot reasonably be accommodated at the
time and place requested allows for two much discretion on the part of the authorized
officer; that the provision should be dropped because it is no better than a similar
criterion that was struck down by the court in the Rainbow Family case; that under
United States v. Rainbow Family, 695 F. Supp. at 312 n.6, this provision vests too much
discretion in the authorized officer to propose an alternate time or place; that the
agency could ensure that administrative uses are always scheduled at the same time as
any proposed activity or deem existing or scheduled uses to be incompatible with the
proposed activity, even if they are not; that this provision would allow the Forest
Service to deny a permit if the agency thinks that a proposed activity, such as a group
protest or distribution of literature at or near a recreation, logging, or mining site,
might interfere with any other uses or activities; that it is unclear how a
determination could be made without regard to the content of expressive activity; that
under a worst-case scenario, this provision could induce an authorized officer to deny
access to a site; and that the examples given in the preamble of the proposed rule of
how this criterion would be applied are insufficient to remove the vagueness in its
wording.
One respondent stated that statutes and other regulations exist to deal with
conflicts among users, such as 18 U.S.C. 1863, which allows the agency to restrict
access to areas of the national forests, 36 CFR part 261, which allows the agency to
issue orders restricting certain types of conduct, and 36 CFR 251.54(i)(1), which allows
the agency to avoid conflicts among commercial uses and activities.
Six respondents commented that often minor changes can be made to scheduled and
existing uses to avoid conflicts with proposed activities. Two respondents commented
that minor, temporary arrangements are easily made and have been made many times by
prior informal agreement to address the question of allocation of space. One of these
respondents stated that forest plans are built on the concept of balancing interests
in an ongoing multiple-use scenario, but that the regulations blurs the fundamental
difference between permanent or consumptive uses and transitory group uses, which by
their nature do not compete with other uses and activities for use of National Forest
System lands.
Six respondents commented that the exercise of constitutionally protected rights
should have priority over all other uses. One of these respondents felt that the
interests of thousands of people should take precedence over the grazing of cattle. Four
others stated that gatherings have proceeded after negotiation and development of
operating plans, but that if these plans fail, a court order might be appropriate.
Twelve respondents stated that other uses are given priority over the exercise of
constitutionally protected rights. One of these respondents stated that a permit for
a gathering could be denied if a timber sale or grazing were scheduled for the same time
and place. Another noted that cattle were moved to accommodate the 1984 Rainbow Family
Gathering.
One respondent commented that this provision is unnecessary because there are no
conflicts among Rainbow Family members. Another stated that no group, including the
Rainbow Family, would camp in areas where logging activities are in progress. One
respondent commented that the rationale of avoiding traffic congestion is inadequate
because there are no traffic jams in the national forests.
Three respondents stated that those who gather should be respectful of others.
Response
The Department believes that this criterion is narrowly tailored and
specific and that it constitutes a valid restriction on time, place, and manner.
In
contrast, the rule struck down in United States v. Rainbow Family provided that an
application for a First Amendment activity could be denied if the activity conflicted
with a previously approved use or if it would be of such nature or duration that it
could not reasonably be accommodated at the place and time requested (49 FR 25449).
To address the court's concern, the Department has abandoned the unconstitutionally
vague criterion that allowed an authorized officer to deny an application for a
noncommercial group use on the grounds that it cannot reasonably be accommodated in the
time and place requested or that the proposed use might interfere orincompatible with
scheduled or existing uses.
In contrast to the earlier rule, under Sec. 251.54(h)(1)(iv) of the final rule, an
application may be denied only if the proposed activity would delay, halt, or prevent
administrative use of an area by the Forest Service or other scheduled or existing uses
or activities on National Forest System lands. This narrow, specific, content-neutral
criterion is intended to allow the Forest Service to allocate space in a manner that
is both fair and consistent with the agency's multiple-use mission. The intent is not
to prevent demonstrations; the intent is to ensure that demonstrations can coexist with
other authorized uses and activities on National Forest System lands, including
endangered, threatened, or other plant and animal species.
Moreover, under this rule the Forest Service cannot manipulate administrative use
of an area to ensure that this use coincides with a proposed activity to which some
might object. Administrative use of an area by the Forest Service is based on actual
need.
In the proposed rule, the agency provided specific examples of how a proposed
activity could delay, halt, or prevent scheduled or existing uses and activities for
purposes of this criterion. Specifically, under Sec. 251.54(h)(1)(iv) of the final rule,
an authorized officer might require a large group to alter arrival and departure times
or to use an alternative access route to avoid congestion. On the opening day of fishing
season, an authorized officer might suggest a site removed from popular fishing areas
for the same reason. This criterion also allows the Forest Service to ensure that a
group is not authorized to use a site that is already being used as pastureland under
a grazing permit or that is currently being logged under a timber sale contract.
The Forest Service has had difficulty in allocating space among noncommercial group
uses and other uses and activities on National Forest System lands. While the Forest
Service has generally resolved these types of conflicts successfully, the agency has
had to expend considerable time and resources in the effort. The Department believes
that these types of problems can be solved more efficiently, more effectively, and more
fairly through the issuance of special use authorizations for all special uses,
including noncommercial group uses.
One example of this type of allocation problem occurred at the 1992 Rainbow Family
Gathering. One of the main access roads to the site of the 1992 gathering was scheduled
to be used as a timber hauling route during the gathering. Because of the amount of
traffic associated with the gathering, the Forest Service believed that the safety
hazard was too high to allow logging trucks to use the access road. Consequently, the
agency required the timber purchaser to use an alternate haul route, which resulted in
higher costs to the timber purchaser and potentially higher costs to the government.
As shown by the reports on the 1991 and 1992 Rainbow Family Gatherings, parking and
traffic congestion are additional transportation issues associated with large group
gatherings at sites with limited access.
At the 1992 Rainbow Family Gathering, the Forest Service specified that parking
would not be allowed at a particular site because of safety risks (the site was located
on a timber haul route) and prior agency commitments made to other users (livestock was
scheduled to use the site). Ample alternative parking closer to the gathering was
available. Nevertheless, the Rainbow Family directed gatherers to the site. By the time
the Forest Service issued an order closing the site to parking and camping, 91 vehicles
were parked at the site. Forest Service officials explained the agency's reasons for
issuing the closure order at a council meeting of approximately 50 members of the
Rainbow Family. Although more than half the vehicles were removed by the next day, 20
to 30 Rainbow Family members staged a civil disobedience protest of the closure order.
Gatherers continued to remove vehicles from the area gradually, but the agency had to
tow five vehicles from the site. The Department believes that this type of problem could
be prevented or more quickly resolved through the special use authorization process.
In addition to this parking problem, in July 1993, a group called ``We The People''
selected for a gathering a site that had been authorized since 1955 for use by the
Mississippi National Guard for military training purposes. Within the permitted area
of 45,000 acres were significant amounts of unexploded ordnance. ``We The People'' chose
to camp near an area where the National Guard was performing tank maneuvers. The group
selected the site in order to protest use of the national forests for military training
and exercises. The management challenge faced by the Forest Service was how to allow
the group to conduct its protest without sustaining serious injury and without
preventing the National Guard from exercising its privileges under its special use
authorization. After several days of negotiations and coordination among all concerned
parties, the gathering and protest occurred without conflict with the National Guard
or injuries to either group.
These examples illustrate the kind of conflicts that can occur among uses and the
need for a special use authorization process for noncommercial group uses to resolve
those conflicts more quickly and effectively. Making minor changes or entering into
informal agreements is an inadequate or inefficient way to resolve issues pertaining
to allocation of space for all uses and activities on National Forest System lands.
Other laws and regulations, particularly regulations such as 36 CFR 251.54(i)(1), which
do not apply to noncommercial activities, do not give the Forest Service notice of the
issues addressed in Sec. 251.54(h)(1)(iv) of the final rule and thus do not allow the
agency to allocate space fairly among competing uses and activities. A special use
authorization process gives the agency a managerial tool to address these problems more
expeditiously, more effectively, and more equitably.
Section 251.54(h)(1)(iv) of the final rule does not give the authorized officer too
much discretion to propose an alternate time and place. The criterion in the 1984 rule
struck down by the court in the Rainbow Family case was unconstitutionally vague and
overbroad in that it allowed an authorized officer to deny an application if it could
not reasonably be accommodated at the time and place requested. In footnote 6 of the
opinion, the court's point was that providing for an alternative site or time if an
application was denied under this criterion could not cure its constitutional infirmity.
695 F. Supp. at 312 n.6. The court quoted Schneider v. State, 308 U.S. 147 (1939), for
the proposition that ``[o]ne is not to have the exercise of his liberty of expression
in appropriate places abridged on the plea that it may be exercised in some other
place.'' Id. at 163 (emphasis added). If the provision in question is, like Sec.
251.54(h)(1)(iv) of the final rule, a valid time, place, and manner restriction and the
site requested does not meet that restriction, providing that an alternative site or
time will be offered enhances rather than diminishes the constitutionality of the rule.
Providing for alternative sites and times ensures that ample alternative channels will
be available for communication of information, as required by Clark v. CCNV.
The Forest Service is charged with managing the resources of the National Forest
System for multiple uses. MUSY authorizes the Forest Service to managecommercial and
noncommercial uses of National Forest System lands (16 U.S.C. 528-531). The Department
believes that all special uses, commercial and noncommercial, both involving and not
involving the expression of views, should be treated consistently and fairly.
The Department does not intend to give priority to any use or activity in processing
applications under this rule. Applications for special use authorizations will be
processed in order of receipt under Sec. 251.54(f)(5) of the final rule, and the use
of a particular area will be allocated in order of receipt of fully executed
applications, subject to any relevant limitations in Sec. 251.54.
Section 251.54(h)(1)(iv)
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