Comment:Approximately 25 respondents commented on this provision. Seven respondents stated
that no individual could sign a permit on behalf of a noncommercial group because each
person in a noncommercial group is responsible solely for his or her own actions. These
respondents stated that each person should accept responsibility for his or her use of
public land; that only commercial activities are organized by an individual or entity
that can take responsibility for liability and mitigation of resource impacts; that most
noncommercial groups that use the national forests are not structured or legally
empowered and that any person in those groups who signs a special use authorization
represents only himself or herself; that it is unfair to hold the person who signs a
permit accountable for all others in the group and that in the case of demonstrations,
no one would sign, and the requirement would have a chilling effect on speech; and that
the agency lacks the authority to require that noncommercial groups be constituted as
legal entities or internally structured to allow compliance with the agency's rules,
and that a group that operates by consensus is not a legal entity, but is merely an
assemblage of individuals who are entirely seft-responsible under the law.
Fourteen respondents commented specifically that the Rainbow Family cannot comply
with the signature requirement because no individual member speaks for the group and
because each person is responsible for his or her own actions. These respondents stated
that the signature requirement violates Rainbow Tribal Council traditions; that the
signature requirement forces the Rainbow Family to choose between upholding its
philosophy or maintaining its existence in that if the group complies with the
requirement, it violates its principles, and if the group ignores the requirement, the
agency can break up the gathering; that the Forest Service has never had any problem
contacting the Rainbow Family; that the Rainbow Family is peaceful and cooperative and
poses no threat to the Forest Service; that the Rainbow Family has met with local
authorities in advance, helped prepare operating plans, and left sites in a clean and
natural state; that the agency has always had reliable contacts at Rainbow Family
Gatherings and that questions have been answered, reasonable requests have been met,
and problems solved with the cooperation of the Rainbow Family and that the real intent
of this provision is to isolate leaders from the consensus, make them culpable for real
or imagined actions of the group, and expose them to penalties under the full weight
of the law.
One respondent commented that in view of the history of the rule, the agency intends
to use this provision to single out individuals for harassment.
One respondent commented that the responsibilities and privileges of citizenship
are assumed at the age of 18 in most states. Another respondent commented that requiring
those who sign to be 21 years of age or older could prevent persons under the age of
21 from exercising their First Amendment rights and suggested lowering the age limit
to 18 or dropping it altogether.
One respondent stated that this provision is a general prohibition with no bearing
on time, place, or manner.
Section 251.54(h)(1)(vii) of the proposed rule required
an authorized officer to determine that a person or persons 21
years of age or older had been designated to sign and did sign a
special use authorization on behalf of the applicant.
The Department believes that the age limitation in Sec. 251.54(h)(1)(viii)
of the final rule is a reasonable time, place, and manner 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
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 or persons sign an authorization on behalf of the group.
It is 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. 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
The Forest Service needs to have someone to contact for purposes ofspecial 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 agency 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 sub-groups. 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 concerning an activity from the
group as a whole.
All groups, both commercial and noncommercial, can and 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
have no leader and that make decisions by consensus. Even if a group has no leader, the
group can still 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 of process 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. Moreover, 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 therefore reasonable to believe that
the Rainbow Family could designate a person or persons to sign and that that person or
those persons could sign a special use authorization on behalf of the group as provided
in Sec. 251.54(h)(1)(viii) of the final rule.
The Department believes that this provision is a narrowly tailored restriction that
has no bearing on the content of expressive activity. The Department intends to apply
this requirement consistently and fairly as required by law to all applications for
noncommercial group uses.
Having considered the comments received, the Department has retained without
substantive change in the final rule Sec. 251.54(h)(1)(vii) from the proposed rule.
Listing of Comments
FS Regulation Page