General Comments
Comment:
Government's Intent With Respect to the Rainbow Family.
Approximately 50 respondents commented that Rainbow Family Gatherings
contribute to world peace and love. Many of these respondents asked the agency
not to break up the Gatherings.
Seventy-two respondents stated that the proposed rule is a direct attack on
the Rainbow Family or is written with the Rainbow Family in mind. Specifically,
these respondents believed that the Rainbow Family is the group most affected
by the proposed rule; that no other group is mentioned in showing a need for
the regulations; that in United States v. Israel and United States v. Rainbow
Family, the agency tried to stop Rainbow Family Gatherings; that the agency
imposes less stringent standards for site clean-up on more mainstream groups;
that the proposed rule is a vehicle for spying on Rainbow Family members; that
Forest Service and state and local law enforcement officers have selectively
enforced laws to harass and intimidate people attending Rainbow Family
Gatherings; that law enforcement officers have looked for activity that could
be construed as illegal; that the Forest Service has been unreasonable and
hostile at Rainbow Family Gatherings; that the number of law enforcement
officers at Rainbow Family Gatherings is excessive and a waste of money; that
law enforcement officers have established checkpoints at the entrance to
Rainbow Family Gatherings to search cars and to verify car registration, car
insurance, and driver's licenses; that at the 1993 Gathering in Alabama, a few
people without car registration or insurance were held in chains and beaten;
that state police at the 1993 Gathering conducted regular armed patrols and
random searches; and that some Rainbow Family members have been taken into
custody and forced to pay a fine for their release.
In contrast, one respondent stated that the proposed rule is clearly aimed
at more than just one type of gathering. Another respondent noted that to
comply with cases on point, the regulation has been modified to treat all group
uses the same, regardless of whether they involve the expression of views. One
respondent commented that the Forest Service was hospitable and kept order and
did a remarkable job handling the crowd at the 1993 Gathering. Another
respondent stated that the Forest Service did an excellent job helping the
Rainbow Family have a safe and healthy gathering in 1993 and added that the
Forest Service was friendly and helpful.
Response.
The intent of this rule is not to break up or prohibit any group
uses, including Rainbow Family Gatherings.
Rather, the intent of this rule is
to control or prevent harm to forest resources, address concerns of public
health and safety, and allocate space. In United States v. Israel and United
States v. Rainbow Family, the Forest Service was not attempting to prohibit the
Rainbow Family Gathering, but rather to enforce existing group use regulations
where the Rainbow Family had failed to obtain a special use authorization.
The Forest Service hosts many types of noncommercial group uses on National
Forest System lands, such as company picnics, weddings, group hikes and
horseback rides, demonstrations, and group gatherings. This final rule does not
single out any particular group or type of event. As two respondents noted,
this rule applies to all noncommercial group uses, both those involving and
those not involving the expression of views. The Department intends to apply
this rule consistently and fairly as required by law to all noncommercial group
uses.
The Forest Service makes every effort to be friendly and hospitable and to
help every group have a safe and healthy visit to the national forests. The
agency's law enforcement approach at large group gatherings reinforces this
effort. As shown by the reports on the 1991 and 1992 Rainbow Family Gatherings,
agency law enforcement officers endeavor to act as good hosts to prevent
potential problems; to provide for public safety; to maintain close
coordination with other involved agencies, such as the local highway patrol,
sheriff's office, and health department; and to ensure in a courteous,
professional manner compliance with federal, state, and local law and agency
regulations.
To meet these objectives, enhanced law enforcement is needed for group
uses. Perimeter patrols by local and federal law enforcement agencies during
the 1991 Rainbow Family Gathering, for example, focused on protecting local
residents and their property, facilitating traffic flows, maintaining safety on
all state and local roads, and responding to visitors' needs or calls for help.
The Forest Service has endeavored to enforce its regulations not only fully
but fairly. Some Rainbow Family members who have committed violations at the
annual Gatherings have been taken into custody and/or have had to pay a fine.
For example, after coordinating with a local United States Magistrate and
Assistant United States Attorney, Forest Service law enforcement officers
adopted a procedure at the early stages of the 1992 Rainbow Family Gathering to
allow prosecution of violators who were temporarily residing in the area. This
procedure required violators either to pay a fine upon issuance of a violation
notice or to be taken into custody and brought before a magistrate. By paying
the fine, the violator did not forego the right to appear in court and contest
the violation.
Shortly after receiving complaints about the procedure from Rainbow Family
members, the United States Attorney's office recommended that the procedure be
altered. The new procedure required that a violation notice for an optional
appearance be issued if the violator could present sufficient identification
(driver's license, vehicle registration, and proof of insurance in the driver's
name). If adequate identification could not be presented, the violator would
have to pay the fine upon issuance of the violation notice or be detained. This
change in procedure illustrates the agency's effort to balance its law
enforcement obligations against its concern for due process.
The Department acknowledges that the level of law enforcement activities
may not always have been appropriate for group uses. For example, while it may
be appropriate to post Forest Service officials at the entrance to a Rainbow
Family Gathering to deter illegal activity and to provide helpful information
on the national forests and resource protection, it is not necessary or
appropriate to search cars entering the Gathering or to verify the driver's car
registration, insurance, and license. This practice was curtailed at a
gathering in Mississippi in July 1993 as soon as it came to the attention of
responsible Forest Service officials. Promulgation of this rule will help the
Department ensure a consistent, nationwide approach to law enforcement for
group uses.
Comment:
Government's Intent Generally.
Approximately 40
respondents believed that the intent of the proposed rule is to allow the
Forest Service to deny the use of public lands to groups the agency finds
undesirable. These respondents stated that the history of the rule shows that
the agency's intent is to restrict speech and that by regulating all
noncommercial activities under the same standards, the agency is in effect
still attempting to restrict First Amendment rights. These respondents felt
that if the agency really supported the rights of free speech and assembly, it
would be apparent from the proposed rule and there would be no need to state it
in the preamble.
Other respondents stated that the proposed rule masks an agenda that has
nothing to do with protecting resources and addressing public health and
safety; that the Forest Service has invoked public health concerns rigidly and
arbitrarily to discourage gatherings and has used these concerns as a pretext
for taking other enforcement action, such as dealing with the use of illegal
drugs; and that given the proposed rule is written like a legal brief, with a
provision for immediate judicial review, and the agency's past attempts to
regulate noncommercial group use, it is reasonable to view this regulation as
an attempt to restrict assemblies via court order.
Other respondents stated that the agency should specify what will be done
to ensure that enforcement of the rule will not result in acts of terrorism
against those who like to gather in the national forests; that the proposed
rule targets those who go to the forests to worship; that the proposed rule is
a direct attack on naturists; that the agency doesn't need a regulation to
ensure equal treatment for all groups because equal treatment is already
guaranteed by the Constitution; that the proposed rule can be selectively
enforced and is therefore discriminatory in nature; that the proposed rule is
discriminatory in nature, particularly in view of the severe restrictions on
Native Americans' access to tribal lands and the intimidation of Native
Americans by law enforcement; and that those responsible for the inception and
formulation of the proposed rule are enemies of the people of this country.
Response.
The intent of this rule is not to deny the use of National Forest
System lands to any group, nor is the intent of this rule to restrict speech.
Rather, the intent of this rule is to implement reasonable time, place, and
manner restrictions on group uses of National Forest System lands.
In addition to the need to mitigate adverse impacts on forest resources and
to address concerns of public health and safety, there is a need to allocate
space in the face of increasing legal constraints on the use of National Forest
System lands, including the need to protect endangered, threatened, or other
plant and animal species. The competition for available sites in the national
forests among animals, plants, and humans has increased as more demands and
restrictions have been placed on use of the national forests. Requiring a
special use authorization allows the agency to act as a kind of ``reservation
desk'' for proposed uses and activities, including noncommercial group uses.
The Department believes that its support for the rights of free speech and
assembly is not only stated in the preamble, but is apparent from the language
and structure of the rule. The rule does not single out any group. On the
contrary, the final rule establishes one category called ``noncommercial group
uses''; restricts the content of an application for noncommercial group uses to
information concerning time, place, and manner; applies the same evaluation
criteria to all applications for noncommercial group uses regardless of whether
they involve the expression of views; establishes specific, content-neutral
evaluation criteria for noncommercial group uses; provides that applications
for noncommercial group uses will be granted or denied within a short, specific
timeframe; provides that if an application is denied and an alternative time,
place, or manner will allow the applicant to meet all the evaluation criteria,
the authorized officer will offer that alternative; provides that the
authorized officer will explain in writing the reason for denial of
applications for noncommercial group uses; and provides that such a denial is
immediately subject to judicial review. These provisions have been included to
meet the constitutional requirements of a valid time, place, and manner
restriction identified in case law, including United States v. Israel and
United States v. Rainbow Family.
This rule is needed to ensure equal treatment for all groups. Various
members of the public and state and local governments have criticized the
Forest Service for applying a double standard in not requiring all large groups
to obtain a special use authorization. This rule ensures that all noncommercial
groups are treated equally under the law.
It is the Department's intent that this rule will be applied consistently
to all noncommercial groups as required by law. Moreover, it is essential, both
as a matter of fairness and as a matter of constitutional law, that this rule
be applied uniformly. The Forest Service intends to provide training to its
personnel to ensure that the rule is implemented consistently.
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