General Comments
Comment:
Section 251.54(h)(2) of the proposed rule provided that
an authorized officer could deny an application if it did not meet
the seven evaluation criteria.
Under Sec. 251.54(h)(2) of the
proposed rule, and authorized officer had to notify an applicant in
writing of the reasons for denial of an application, and denial of
an application constituted final agency action that was immediately
subject to judicial review.
Eight respondents commented on this provision. One respondent stated that the
ability to deny an application for a noncommercial group use gives an authorized officer
too much discretion.
One respondent commented that a denial of an application is not appealable. Another
respondent stated that access to the courts is denied until administrative remedies are
exhausted. Two respondents stated that this provision is inadequate because it fails
to provide for administrative review. Two respondents stated that judicial review is
too expensive for many to pursue. One of these respondents also cited the holding in
United States v. Rainbow Family that the rule must provide for judicial review of the
agency's determination. One respondent commented that the agency should consider
providing for alternative dispute resolution instead of judicial review.
Three respondents stated that an authorized officer can deny an application without
providing for an alternative time, place, or manner. Specifically, these respondents
stated that the agency is not required to provide ``ample alternative channels'' for
the applicant's use of public land; that this provision gives the agency authority to
prevent an activity from taking place; and that ``reasons for the denial'' should be
replaced with ``reasons to modify the time, place, or manner'' of the proposed activity.
One respondent approved of requiring an authorized officer to notify an applicant
in writing of the reasons for denial of an application.
Response
Section 251.54(h)(2) of the final rule contains the following procedural
safeguards:
(1) an authorized officer must notify an applicant in writing of the reasons for
denial of an authorization;
(2) if an application is denied and an alternative time, place, or manner will allow
the applicant to meet the evaluation criteria, an authorized officer must offer that
alternative;
(3) if an application is denied solely because extraordinary circumstances do not
permit the categorical exclusion to apply to the proposed activity and the alternatives
suggested are unacceptable, an authorized officer must offer to have the requisite
environmental analysis (EA or EIS) conducted for the activity; if an EA or EIS is
prepared, the analysis will not be subject to the 48-hour timeframe for reviewing
applications for noncommercial group uses that do not require preparation of an EA or
EIS; if an EA or EIS is prepared, the decision to grant or deny the application will
be subject to the administrative appeal process for planning and project decisions at
36 CFR 215 and will be made within 48 hours after the decision becomes final under that
appeal process; and
(4) a decision to deny an authorization for a noncommercial group use is immediately
subject to judicial review.
The Forest Service's ability to deny applications for noncommercial group uses is
strictly constrained by the narrow, specific, content-neutral evaluation criteria in
Secs. 251.54(h)(1)(i) through (h)(1)(viii) and by the limitations in Sec. 251.54(h)(2)
of the final rule. Under Sec. 251.54(h)(2) of the final rule, if an application is
denied and an alternative time, place, or manner will allow the applicant to meet the
evaluation criteria, an authorized officer must offer that alternative. Moreover, if
an application is denied solely because extraordinary circumstances do not permit the
categorical exclusion to apply to the proposed activity and the alternatives suggested
are unacceptable to the applicant, an authorized officer must offer to have the
requisite environmental analysis completed for the site. Thus, the final rule leaves
open ample alternative channels for communication of information.
The Department does not believe that ``reasons for denial'' should be replaced with
``reasons to modify the time, place, or manner'' of the proposed activity because it
is conceivable that for some proposed activities, such as igniting a fireworks display
in a national forest, an alternative time, place, or manner will not allow the applicant
to meet the evaluation criteria in the final rule.
The court in the Rainbow Family case held that the regulation must provide for
expeditious judicial review of the agency's decision to deny an application. 695 F.
Supp. at 311. This rule meets that requirement by providing that denial of an
application under Sec. 251.54(h)(1) constitutes final agency action that is immediately
subject to judicial review. Exhaustion of administrative remedies is not required before
seeking redress in the courts.
Section 251.56(e)
Listing of Comments
FS Regulation Page