TO THE LEGAL COMMUNITY
Fall, 1995
SUE MALKOVE
1321 Harvard Street N.W.
Washington, D.C. 20009-4903
Greetings,
I am concerned that freedom to peaceable assembly on public lands -- in my opinion,
the keystone of this nation -- has been revoked by regulatory fiat. On August 30,
1995, a final rule, amending CFR 36 Sections 251 and 261 was published in the
(Federal Register, August 30, 1995, pgs. 45258 - 45295). This rule would restrict the
public's right to gather in the National Forests of this country.
For years I have sought spiritual refuge in the National Forests, communing with
nature and my fellow human beings in the cathedral of nature. This rule will affect me
personally because it will require that I obtain a permit to exercise my religious beliefs.
Whether they realize it or not, I believe that every other person in the United States
will also be adversely affected by this rule.
The regulation takes effect on September 29, 1995. In response to the public
comment letters received during August, 1993 in response to the proposed rule
(Federal Register, May 5, 1993). The agency purports to detail how large gatherings
have posed health, safety, traffic, and environmental risks in the past.
The basic rationale used to justify implementing these grave restrictions on peaceable
assembly is that large group gatherings in the National Forests have significant
adverse impacts on forest resources, public health and safety, and the agency's ability
to allocate space in the face of increasing constraints on the use of National Forest
Lands. The alleged impacts include the spread of disease, pollution from inadequate
site cleanup, soil compaction from inadequate site restoration, damage to
archeological sites, and traffic congestion. The Forest Service says these regulations
are "narrowly tailored to further significant government interest," because ALL
gatherings of 75 or more people are to be regulated, regardless of whether the groups
are exercising freedom of expression or not.
THE PROBLEM is that the factual accuracy of the agency's rationalizations is highly
dubious. For example, although it may be self-evident that a large number of people
walking on the earth will result in greater "soil compaction" than no people walking on
the earth, THE MAJOR PROBLEM WITH THE REGULATION IS THAT IT
IRRATIONALLY EQUATES, the negligible environmental impacts of human beings in
reverent communion with the earth, to the crippling impacts of mining, timbering and
grazing planet rape.
The Forest Service responds to most, and makes minor concessions to a couple, of
the comments submitted in response to the proposed rule (Federal Register, May
1993). Most noticeable is the apparent removal of the requirement for all groups who
gather to apply for a permit to distribute noncommercial printed literature. THE
PROBLEM with this is that the regulation itself does not distinguish between
"commercial" and "noncommercial," but refers only to "distribution of printed material."
The Forest Service contends that by requiring itself to grant or deny a permit within
48 hours of an application they have perfected a "content neutral... reasonable, time,
place and manner restriction." THE PROBLEM here is that, once a "permit" is
granted, the determination of whether or not a permit holder has violated conditions of
a permit is left entirely to the whim of the enforcement officer in the wilderness.
I am afraid a real PROBLEM is that most folks have become so accustomed to
surrendering fundamental freedoms to incremental regulatory control thar it's not
unusual to hear folks say, " You mean that we didn't have to have permits to gather in
public forests before?. Frankly, a regulation like this couldn't be one of my top
priorities; after all, I need a permit to drive my car, don't I?"
A brief reminder on the origins of this great nation; it was founded by individuals who
sought refuge from religious persecution in the forests of the "New World." The
framers of the Constitution would have deemed it unimaginable, if not treasonous to
require a "permit" for groups to peaceably assemble in public wilderness, and
empower the government to imprison 75 people should they fail to disperse when
ordered.
For groups to seek refuge in the wilderness is a tradition that goes back at least to the
Israelites fleeing the cultural persecution of Egypt. Even Tiananmen Square
happened in a city were the governments can more reasonably argue that its actions
were necessary to maintain public peace and order.
The onus is on the public at this point to challenge what is now effectively law.
Please investigate any and all options that may be effective at countering this direct
attack on the right of all Americans to freely assemble on public lands!! C nnect with
any source of legal advice you may know of, try to convince them that freedom of
assembly on public lands is an important (inalienable) right. Coordinate with others to
solidify a cohesive network of communication and participation.
I would very much like to see this regulation legally enjoined from going into effect.
Please consider this issue, and the possibly assisting in the litigation of an injunctive
lawsuit.
Sincerely,
Sue Malkove
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