[Version 6.1]
PEOPLE FOR COMPASSION AND UNDERSTANDING
Washington, D.C.
-- December 1993 --
At the same time, the Forest Service must confront a Constitutional problem: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Constitution, Amendment I.
Stating the core motive of its action, the Agency presumes to
strike a
delicate balance:
In fact it merely ploys with legal language, evading accountability for basic constitutional premises and effects. The Forest Service still fails to present any facts that would justify the Government's "significant interest" in this unprecedented stricture, and still disregards workable, demonstrated alternatives that must be considered as "least restrictive means" to its regulatory ends.
Thus the stated purpose is oxymoronic: If enacted this unnecessary rule would impose a substantial burden on the inalienable freedoms of belief, expression and assembly -- the legacy of natural human rights to join in prayer and communion on the land, long predating the origins of this country by defining the free exercise of those rights as a criminal violation.
The logic of this survey responds first to the language of the amendment, as presented in the Federal Register. But because the Forest Service lacks any factual predicate for its proposed rules, the analysis must extend further to the real impact and underlying intent of the rulemaking itself
The Forest Service's congressional mandate is not at issue. The
issue --
unaddressed by the proposed rulemaking -- is the long and
consistent
recognition that rights cannot legally be abridged by decree of
executive
agencies, e.g.:
As a public land use regulation, the proposed rules are subject
to the
'rational basis' test at the heart of land use and environmental
law:
The agency must show valid reasons to restrain specific uses,
structures, or
activities -- demonstrating actual impacts and appropriate
mitigating
measures. This connects to the broader mandates of the law that
a
'significant' or 'compelling' government interest must be
established before
regulations may be imposed, and that regulations be
"well-reasoned":
"Administrative decisions shall be based on adequate information
concerning
the need for and consequences of proposed government action."
Executive Order 12291, Section 2(a).
The recent passage of the Religious Freedom Restoration Act
(H.R. 1308)
has emphatically reaffirmed that a compelling Government interest
must be
shown to justify any regulatory restraint upon the exercise of
religion, and
this stringent test extends to other First Amendment freedoms. In
this
light it should be understood that no findings in prior relevant
cases
support such an interest. Nor is any information presented here
to
establish the need for new regulations to protect the Forests
from
impacts of group events, or the criteria for the exemption limit
of
twenty-five people.
In fact the Forest Service disregards its own annual "Rainbow
Gathering"
reports, which have concluded repeatedly that no significant
impacts were
incurred from very large events of this kind. And it ignores the
pivotal finding that "...a panoply of statutory and regulatory
grounds" already exist to address any legitimate concerns that
may
arise with regard to group use of public lands. Rainbow at
314.
See also Jackson v. Ogilvie, 325 F.Supp. 864 (D.Ill.1971).
The proposed regulation impacts the First Amendment
head-on, yet offers
no tangible grounds. The Forest Service circumvents the problem
with a
sweeping generalization, invoking a circular logic of statutory
authority:
Although this is done in the guise of a comprehensive and
content-neutral administrative policy, the nature of the
activities it would
regulate is totally misconstrued in this rationale. In fact the
strictures
would mitigate no real impacts, but would fall heavily upon those
who simply
gather benignly on the land as a form of free expression in
itself. It also
creates a procedural quagmire, opening such assemblies to an
array of
administrative reviews that are inappropriate in kind and scale.
Where such
environmental reviews require a reasonable and timely 'threshold
determination' on potential impacts, this rule leaves only a
broad
discretion, bypassing such requirements. (See further discussion
below
under 251.54(f).)
The definitions themselves are vague and broadly contrived:
Is an
activity 'commercial' if kids trade beads or baseball cards? Is
bonding
required if event costs might be supported in part by donations?
Is it a
restricted 'distribution of printed material' to give your cousin
a
newspaper? E.g.:
The restraint of "printed material" under Special Use
authorities is
especially vexing as an administrative intent -- this provision
has no basis
or purpose in land use management. Arguments that "...Such
distribution can
occur by posting, affixing or erecting the material, which could
damage
natural resources if not regulated..." (FR, pg. 26941) are
speculative,
specious, and absurd.
In fact there is a long history of group events cooperating
with the
Forest Service in this way, recognizing the legitimate concerns
of local
rangers and consulting with them on issues of siting, health, and
resource
protection. Over many years'Operating Plans' have been worked
out in
advance, and there is a long legacy of good performance, showing
that the
Agency's true objectives can be met in this way. (See
Attachment A:
"Interior Site Operations Plan", Michigan 1983.) This history is
well-known
to the Forest Service as a matter of record -- one which they
fail to address
as offering a viable alternative to its proposed rulemaking.
Moreover it is the obligation of the Agency to explore such
options for
meeting its legitimate goals, before any regulation may be
imposed. This is
a well-established principle of administrative law, and it is
explicit in the
"General Requirements" of Executive Order 12291. It places clear
mandates
upon "all agencies" in promulgating new regulations:
Most important, the Forest Service demands under (E) that
an agent be
designated "...who will sign a special use authorization on
behalf of the
applicant". This implies a stipulation that a 'group' be
constituted or
structured as a legal entity for the purposes of the public
agency and its
rules. Such a stipulation has no basis in the law. Where
individuals
uphold and exercise a shared belief in consensual democracy as
the working
principle of their assemblies, they may not be forced by Forest
Service
directive to alter their philosophical grounds: No hierarchy may
be imposed,
nor any authorities delegated, without violating their freedom of
belief in
Consensus. And where a permit process itself would intercede in
First
Amendment rights, it is a further matter of principle that these
rights not
be renounced by sanctioning one person to sign an application.
Such procedures would be loaded on an already extensive
review
framework, expanding the scope and process demands that are
imposed. In fact
it is the Agency's job to assure that its regulations are
consistent with
other law, yet this proviso would again have the effect of
placing the burden
of this proof upon a 'group event' applicant. It should also be
clear that
these measures would encumber the agency and taxpayers with the
added costs
of processing applications and managing records -- and once more
create a
very loose discretion for the officer. This is a serious due
process issue.
Moreover the logic fuels a broad rationalization for any
delays in
processing that may arise, regardless of any reason or
accountability:
"The time needed to comply with these requirements varies greatly
depending
on the particular circumstances of each application.
...Consequently, the
agency has determined that it would be infeasible and arbitrary
to specify a
time period in which final agency decision would be made." FR,
p. 26941.
It is further telling that this rationale directly
contradicts USFS
policies for implementing regulations under the National
Environmental Policy
Act (NEPA) and the Council on Environmental Quality (CEQ). As
amended in
1992, Forest Service Handbook 1909.15 (Environmental Policy and
Procedures
Handbook) sets forth "Classes of Actions Requiring Environmental
Impact
Statements" under Chapter 20.6. None of these classes is
applicable to
transitory group events. Federal Register 57:182, 9/18/92;
pp. 43200-201.
Conversely Chapter 31 identifies "Categories of Actions
Excluded from
Documentation"; group uses may be interpreted within the scope
of actions
defined under this section, e.g.:
"8. Approval, modification, or continuation of minor, short-term
(one year
or less) special uses of National Forest lands..." Id.,
31.1b(8), pg.
43209.
Alternately such events might fall under ¤31.2, "Categories of
Actions For
Which a Project or Case File and Decision Memo Are Required" (pg.
43209).
Yet such actions are "routine" by definition, not entailing any
significant
site impacts, and therefore clearly outside the purview of a full
environmental review. Either way, the net effect in the proposed
'group use'
rules is to create a hollow procedural threat that is clearly
proscribed by
its own NEPA and CEQ policies.
While the Forest Service stands on the pretense of
remedying defects
that Federal courts have found in their previous rules, this
logic directly
evades and defies the mandate for timely due process expressed in
the 1988
decision. Rainbow at 306-308. In order to justify vagaries in
the handling
and timing of group event permits, the Forest Service invokes
review
processes that are inapplicable and unlawful, and still refuses
to specify a
finite "time period" for permit response.
In sum, this amended rule would be blatantly illegal in scope,
more vague,
more subject to "unreasonable delay", and thereby more
unconstitutional than
the last.
(1) Seven criteria are set forth for granting a special use
authorization;
the designated official would have sole prerogative to determine
whether the
'proposed activity...'
"An undifferentiated fear or apprehension of disturbance is not
enough to
overcome the right of freedom of expression." Tinker V. Des
Moines School
District, 393 U.S. 503, 508 (1969). Hague v. C.I.O., 307 U.S.
496 (1939)
The actual scope and intent of forest management plans
should be
understood in this light: Their function is to reconcile demands
and set
specific limits on major uses, based on environmental and
performance
standards with which all activities must conform. Here again, it
is the duty
of the Agency to assure that plans and standards are consistent,
to inform
prospective users of all relevant provisions in substance, and to
prove that
actual breaches have occurred to warrant enforcement action. The
burden of
proof may not be placed upon users before the fact. Milwaukee
Mobilization
for Survival v. Milwaukee County Park Comm., 477 F.Supp. 1210
(E.D.
Wis.1979).
Although management plans are developed and adopted with
public input
(albeit somewhat narrow), as such the plans do not address "group
events" as
defined in this rule; they are not expressly prohibited or
limited.
Therefore the application of the plans in this regulatory scheme
is subject
to the protections of the Ninth and Tenth Amendments:
Free assembly on public land is a right 'retained by the
people', not to
be denied or disparaged by other authorities under the
Constitution; and the
final stewardship of public land is a power "reservedÉ to the
people",
overarching the trustee role of public agencies. Nothing in
forest
management plans may be construed as grounds for preempting these
rights and
powers.
Yet this provision again sets up a vague discretion, one
which bypasses
established protocols in environmental law for determining
whether impacts of
an activity will be significant -- the 'threshold determination'
discussed
above. This leaves the "officer" in a position of unilateral
arbitrary
judgment, speculating on a worst-case analysis under pressure to
deny access.
The 1984 rule was struck down for this reason, and the 1988
court made the
point specifically:
The circumstances are worth noting: A minor bacterial
outbreak at a
North Carolina gathering in 1987 was largely attributed to
difficult site
conditions and leaching from heavy rains; reports indicated some
misjudgment
by participants, but no negligence. A year later this prompted
the Rainbow
court to recognize the public health concerns and establish a
narrowly
tailored mandate to insure adequate standards of health practices
at "group
events". In fact, parts of the Army Field Manual (FM 21-10) were
incorporated into the record as an explicit reference for future
practices.
But the court disallowed imposing these concerns as prior review
criteria in
a new rule, finding this to be redundant upon existing
regulations and
preemptive of First Amendment rights.
Incomprehensibly, the present rulemaking disregards this
Federal Court
directive -- Apparently the Forest Service again asserts sole
authority over
health and sanitation standards for gatherings. Although its
interest in
this area is unquestioned, the motives are suspect in light of
the record of
Rainbow, 1988. The broader history shows that the Agency has
invoked these
concerns rigidly and capriciously, beyond the mandates of
reasonable and fair
judgment. This has happened in the past, with the obvious intent
of
discouraging group events and creating a pretext for other law
enforcement
actions, surveillance, and armed presence.
The Texas court left a clear mandate for raising the
standards of
environmental health practices at gatherings. No doubt these
parameters
should be the focus of improved site planning and cooperation for
future
group events. But the court made it further clear that they may
not be
invoked as a speculative pretext for denying a permit, nor may
the Forest
Service abuse this authority to exert a chilling effect upon
peaceable
assembly. Rainbow at 309-310; citing Shuttlesworth v. City of
Birmingham, 394 U.S. 147,
150-51, 153 (1969); Fernandes v. Limmer, 663 F.2nd 619, 628 (5th
Cir.1981);
A.C.O.R.N. v. Municipality of Golden Colo., 744 F.2nd 739, 746
(10th
Cir.1984); Rosen v. Port of Portland, 641 F.2nd 1243, 1246, (9th
Cir.1981);
Kramer v. Price, 712 F.2nd 174, 177 (1983).
The 1984 provision asserted a preemptive authority based on
a test of
"clear and present danger"; it was struck down for being vague
and leaving
too much discretion in the hands of officials. F.R., pg. 26943.
This new
language is proposed to remedy that flaw, yet it merely replaces
the original
general standard with obvious general cases: It lists the common
types of
potential danger -- giving officials plenty to worry about -- but
says
nothing about the degree of actual danger that would warrant a
denial of
access to public lands. Similarly the test of ingress/egress
"adequacy" is
nearly meaningless, open to biases by which users could be barred
from remote
sites. The thresholds are left arbitrary, and agency latitude
remains far
too broad. Again this allows for a permit to be denied on purely
speculative
or specious grounds.
It should be understood that this provision does not arise
in a vacuum:
It is an extension of a Federal policy applied previously in
Forest Service
'Land Use' rules published in 1992, amending review authorities
and
procedures under other sections of 36 CFR Part 251. Federal
Register, Vol.
57, No. 158; pp. 36618-26 (8/14/92). That rulemaking uses the
same language
to define a screening criterion for all other classes of Special
Use permit
applications. Id., ¤ 251.54 (viii); pg. 36624.
This condition was first imposed explicitly upon potential users
in that
framework, and a policy enabling military priority on National
Forest lands
first implied. Within months this purpose was apparent in
Mississippi's De
Soto National Forest, where the Defense Department set up a
gunnery test
range and conducted tank exercises, excluding citizen access.
As presented in the current rulemaking, these Government
powers would
be expanded expressly over First Amendment activities in National
Forests.
Moreover the exemption of all "federally funded" activities from
control
implies an unconditional sanction for police, armed forces, and
counterinsurgent training on public lands, regardless of where
the authority
and funding originate. This can be construed to convey upon
'official'
military activities a preemptive and exclusive right of access to
National
Forests, posing a serious Constitutional infringement upon the
Second
Amendment.
Such issues amplify doubts as to the sense, effect, and legality
of the
proposed regulations.
The history shows this provision to be unneeded and
misguided: In fact
the Agency's own record shows that participants in past
consensual events
have consulted with local authorities in advance, prepared
operating plans
and acted in full cooperation. For example, in annual Forest
Service
reports on the Rainbow Family Gathering of the Tribes, held on
National
Forest land each July since 1972, District Rangers consistently
attest to
reliable contacts with the gatherings: Their questions have been
answered,
their reasonable requests met, problems have been solved together
and sites
have been left in a clean and natural state. These facts
demonstrate a
consensual respect and integrity as individuals toward legitimate
public
interests, common wellbeing, and the land; they do not indicate a
compelling
need for the law to override rights of free association and
consensus, or to
impose singular responsibility for potential group actions upon
individual
participants. Cox v. Louisiana, 379 US 536 (1965); Stromberg
v. California,
283 U.S. 359, 369.
The Agency insists that "...someone on behalf of the
applicant must
accept the responsibilities associated with use of National
Forest System
land." F.R., pg. 26943. Yet having demonstrated no substantive
interest
behind this stricture, clearly it would fulfill only a
self-serving
administrative purpose: It is a set-up for conveying personal
standing and
liability for enforcement action.
This bespeaks an impermissible intent of the government to
isolate
'leaders' from the consensus, make them culpable for the real or
imagined
actions of the group, and expose them to prosecution and
penalties under the
full weight of the law. Apparently the provision is "compelled"
by this
motive alone, ignoring the record of viable consensual
alternatives for
'Group Use' management. As such it flies in the face of the
"least
restrictive means" mandate of administrative law.
Moreover in real life this provision fosters a cynical
double-bind:
Knowing that no 'responsible' person would sign a permit in good
sense or
conscience -- to assume liabilities for the whole or bargain away
primary
rights -- the Forest Service seeks to create a circular pretext
for
enforcement against the entire assembly, again with chilling and
preemptive
effect.
Allegedly this remedies two defects in the 1984
regulations, according
to the findings in the 1988 case -- (a) that the grounds for
denial must be
stated, and (b) that the process "...provide for judicial review
of the
administrative determination." Rainbow at 311-12; F.R.,
pg. 26940. Yet the language provides no stipulation on the
procedure to insure a timely response by the agency, again
skirting
the mandate of the Texas Court.
"A decision to grant or deny an application for a
noncommercial group
event or noncommercial distribution of printed material shall be
made without
unreasonable delay." 36 CFR ¤251.54(f)(5); FR, pg. 26945.
"Without unreasonable delay" is an unreasonably inspecific
timeframe.
"[A] fixed deadline for administrative action on an application
for a permit
'is an essential feature of a permit system.' 24 hours suggested
as maximum
time for action, permit to be deemed granted if no action is
forthcoming
within the time limit." United States v. Abney, 534 F.2d 984,
986, ftn. 5,
citing Shuttlesworth v. Birmingham, 394 U.S. 147, 162-164.
Whether an application will be granted is a decision
resting solely
with the Forest Service officer, who also has an intolerably
broad latitude
within which he can exercise his pleasure.
Moreover judicial recourse is hollow: It is a non-solution if
the agency can
delay an application past the point of any meaningful remedy or
resolution;
and it is coercive and chilling where the process of seeking
recourse is
itself punitive in effect. Given the cost and duress of going to
court
(especially against the U.S. Government), this proffers undue
burdens upon
applicants in the exercise of Constitutional rights, upon courts
tied up in
repressive prosecutions, and upon American taxpayers bearing the
cost of
litigating wasteful, meritless Forest Service regulations.
Given the known history -- attesting to the Agency's
notable propensity
to "rigidly enforce" strictures against group events (Rainbow at
328) -- it
is fair to infer that such vaguely crafted semantics might be
used as a
pretext to preempt or terminate an 'unwanted' assembly on public
lands.
There is a further danger that this could be used to as a
pretext to
justify physical incursion by officials into a group event in
progress, and
open it to broader enforcement against participants. Finding an
event in
violation of a special use authorization could be construed as
'probable
cause' for illegal searches, seizures, and detentions;
regulations have been
used this way in the past on lesser grounds. As such this
provision opens
the door to abuse of Fourth Amendment protections on a massive
scale.
It is shocking enough that the Forest Service would presume
to abridge
First Amendment freedoms to disseminate the written word and
circulate
petitions, under the mantle of forest regulation. That they do
so in blatant
defiance of Federal Court rulings in direct precedent cases is an
outrage.
Such insistent disrespect toward judicial opinion bespeaks a
repressive
temperament in the Agency's administrative scheme, warranting
deeper legal
scrutiny and decisive political intervention .
Similarly, although "misrepresentation" is also
proscibed under
existent law, the rule seeks further strictures against
"...misrepresenting
the purposes or affiliations of those selling or distributing the
material
[or] ...the availability of the material without cost or
donation." F.R.,
pg. 26946. However this particular prohibition also amounts to a
"prior
restraint on the exercise of First Amendment liberties...",
blatantly
trammeling the judicial test for "narrowly tailored time, place,
and manner
restrictions...". Rainbow at 329; citing Near v. Minnesota,
283 US 697
(1931).
Beyond conferring legal liability upon applicants and
contriving
further cause for enforcement and prosecutorial action, there is
no
indication of a legitimate administrative purpose that would
explain these
restrictions. It would have an especially harsh impact upon
'consensual
gathering' events, simply because each individual is responsible
for their
own actions: No individual can assume liability for the purposes
or
affiliations of other participants. Nor can any individual have
foreknowledge of the actions of others, which may be so diverse
and
multifarious that it is impossible to foretell or itemize them in
applying
for authorization.
Nonetheless, the rule would grant law enforcement officials
the
latitude to construe a simple omission as "misrepresenting" these
facts, in
order to impose the weight of the law arbitrarily. In this
light, these
provisions reveal an especially capricious intent toward
consensual
assemblies on public land, and the natural diversity of
expression that is
their essence.
This position builds upon similar authorities in the
broader sphere of
land use law, extending the continuous fabric of public sector
control over
public sites. Urban areas offer the classic case in point: When
an event is
staged on public streets or property in a city, local government
agencies
have well-established powers to issue permits anticipating
impacts (upon
traffic, parking, and neighborhoods), and to charge fees
offsetting the costs
of related public services (utilities, police, disposal,
etc.).
A more direct predicate lies in the permitting practices of
the
National Park Service; yet here again the agency is responsible
for
maintaining an improved and accessible area, and providing
support services
to the tourist public as 'scenic consumers'. It is also palpable
in this
context to levy fees upon actual users of National Parks, rather
than rely
upon full subsidy by the taxpayers at large.
In contrast, a gathering or 'group event' in a remote
National Forest
imposes no impacts on proximal public uses -- by definition and
intent!
Moreover to the extent that support services are actually
required,
realistically they fall well within the scope and scale of normal
agency
operations. Where the Forest Service has incurred high costs in
monitoring
such events in the past, it has done so out of its own
overreaction and
enforcement fervor, unrelated to actual needs.
Therefore the purported reasoning behind this rulemaking
breaks down:
By their nature and location, group events and gatherings on
remote public
lands are distinct in kind from those regulated in urban areas
and improved
park lands. Unless it can be demonstrated that actual impacts
warrant
regulation upon a rational basis, it must be assumed in law and
administration that they fall outside the purview of conventional
permitting
authorities; and as courts have consistently recognized, they
fall firmly
within the bounds of constitutional protections.
Of course the language of the proposed regulation warrants
hard
scrutiny and critique, but the history of Federal agency
performance in this
regard should carry significant weight in assessing its real
intent and
effect. It is beyond the present scope to engage this topic
extensively; let
it suffice to note some characteristic instances:
The exclusion of Native Americans from traditional tribal
lands is a
shameful saga in our history, and it continues in these times.
In the past
few years alone, severe strictures have been imposed upon
Piscatoway burial
ceremonies in Maryland, Oglala Sioux sun dances and vision quests
in the
sacred Black Hills, etc. In these incidents the government has
restricted
access to public lands, timing of events, and the number of
participants; in
some cases, there are accounts of a chilling show of force and
direct
intimidation by enforcement officers.
Recently this concern gained recognition in the U.S.
Senate, where the
"Native American Free Exercise of Religion Act of 1993" (S. 1021)
was
introduced in May. This legislation would protect traditional
sacred sites
from preemption or degradation by other uses, and provide legal
recourse
where the exercise of belief or ritual is abridged. However it
remains
unclear how this Congressional intent will affect the standing
policies of
enforcement agencies, and the selective application of
"content-neutral"
regulations.
Rainbow Gatherings have routinely suffered harassment and
obstruction
throughout their 22-year history. While Gatherers have
cooperated well with
local Rangers, the Forest Service as an agency has deferred to
zealous law
enforcement and political sentiments in sanctioning roadblocks,
searches,
seizures, and petty arrests. Considering just a few incidents of
the recent
history alone:
Large squads of Vermont state troopers were transferred to
the area of
the 1991 gathering in that state, jamming local hotels and roads.
Traffic
enforcement alone created a heavy and obtrusive presence,
affecting
gatherers and residents alike. Their activities were so
disruptive and
disturbing that in its 1991 Rainbow Gathering Report, the Forest
Service
acknowledged complaints by local Vermonters of "an unnecessary
show of
authority that turned their community into a police state". Id.,
pg. 26.
In Colorado in 1992, Rainbow vehicles arriving in the area
were afflicted
with citations, searches, and some arrests. By several reports,
the
gathering was under inside surveillance by recognized DEA agents
disguised in
Forest Service uniforms. "Law enforcement activities were
coordinated among
16 different agencies", with a strategy emphasizing "early, heavy
presence
[and] ...Proactive, not reactive management." Rainbow
Gathering
1992; USFS Report, pg. 39.
Of the eight agencies directly involved, six of these were
identified
in the Report and their personnel accounted for, totaling nearly
90
officers. The presence of other enforcement agencies
(includingthe DEA) is
acknowledged, but no numbers are disclosed. The Forest Service
states
'management costs' of $573,500 for the 1992 Gathering; clearly a
major
portion of this is attributable to "proactive" law enforcement,
however the
exact breakdown is not given. Id., pp. 13-14, 34,
Appendix.
There were incidents at both major 1993 gatherings:
In Kentucky a police roadblock was emplaced within 1/4-mile of
the parking
and 'Welcome Home' area of the gathering. Everyone passing this
checkpoint
was subjected to videotaping, spot inspection and full ID check
(license,
registration, and insurance). Fines were exacted from many
people, and some
were detained for failing to show 'proper papers', with several
reports of
physical restraint and abuse. A large-scale armed incursion was
also
attempted, involving various law enforcement and National Guard
contingents,
and there was heavy helicopter surveillance throughout the
gathering.
In Alabama, the State Police set up an encampment within the
Gathering, with
illegal videotaping of participants, low-altitude overflights,
regular armed
patrols and random searches. A woman who photographed DEA agents
was taken
away and physically and sexually harassed by a group of
undercover officers.
There are also corroborated reports that an unknown substance was
sprayed on
gathering participants from low-flying aircraft, after which many
people
suffered illness and digestive disorders.
The list of historic abuses is long, with many instances of
harassment,
dirty tricks, and intimidation. While officials deny that the
pending
regulations are targeted against any particular group, the record
is
self-evident: It indicates a pattern of selective and vehement
enforcement
against "counterÐculture groups" and other 'outsiders' ÐÐ groups
which the
Agency documents as being "...bound together by their common
belief and
desire for peace, love and respect for the planet Earth and all
its
inhabitants." USFS Rainbow Gathering Report, 1991; pg.
16.
Selective Forest Service enforcement in undeniable, and
through a
series of rulemakings since the early 1980s the Agency has been
trying to
institute regulations by which consensual gatherings could be
preempted
entirely. Against this background it is revealing to look at how
they
implemented the 1988 amendments in order to stop the gathering in
Texas that
year:
"[The] second revision of the regulations, in the form of an
interim rule
to take immediate effect, was published by the Secretary of
Agriculture in
the Federal Register on May 10, 1988, the day on which the
government filed
its complaint and application for a temporary restraining order
[against the
Rainbow Family]. See 53 Fed.Reg.16548 (May 10, 1988), amending
36 CFR ¤
251.50 et seq. (1987)." Rainbow at 300.
In part because of this blatant procedural flaw -- on top of the
facial First
Amendment issues -- the Texas court struck down the 1988
rulemaking as
unconstitutional. Yet the Forest Service is now trying to push
substantially
the same unacceptable rules into law, subtly modified for the
fourth time.
In sum, there is strong evidence that these regulations are
intended as
an obstacle to particular groups in their exercise of First
Amendment rights,
and as a wedge for invoking further restraints and enforcement
against them.
As such, the pending rules pose serious implications under the
"equal
protection" clause of the Fourteenth Amendment.
This has the hue of a whitewash: The Forest Service assumes a
unilateral
authority to make this determination; in doing so the Agency
evades the
Regulatory Impact Analysis required of a new major rule, and the
fuller
scrutiny that this would entail.
Several factors pose questions as to the validity of this
finding and
how it was derived. First, the exemption from "major rule"
status is
based upon the narrow threshold test of economic impact alone.
No
basis is offered for applying this test exclusively, and the
factual
grounds for stating that "...this proposed rule would have
little or
no impact on the national economy" are not indicated. F.R.,
pg. 26944. Moreover there is no consideration of factors in this
rulemaking that would be challenged in a Regulatory Impact
Analysis or
a Regulatory Flexibility Analysis, nor are the "...criteria for
making
such determinations" prescribed as required. Executive Order
12291,
Sec.3(a)-(b).
According to the 'General Requirements' of the Order
(Section 2), the
benefits of a regulation must not be outweighed by the costs. In
this vein
the Forest Service pointedly ignores the pivotal issues that must
be
explicitly addressed; most specifically:
"...A description of the potential costs of the rule, including
any adverse
effects that cannot be quantified in monetary terms, and the
identification
of those likely to bear the costs." Id., 3(d)(2).
Because this test conditions the main objective of this
Order, it must
come to play in the primary determination on 'major rule'
status. By this
test the threshold would easily be crossed:
The rule itself would be found to bear serious "adverse effects"
upon the
free exercise of basic Constitutional rights. Such a cost
certainly "cannot
be quantified in monetary terms"; it is telling that such a
serious adverse
impact is opaque to the Forest Service and simply not
considered.
The misuse of the "major rule" test is a subtle ploy for
eluding
meaningful review of administrative actions, and in effect a
coverup of their
impacts. This indicates a serious flaw in the process by which
these CFR
amendments have been advanced; as such it is a rulemaking against
the law,
with potentially catastrophic effects on the society.
"To condition ... the perpetration of religious views or
systems upon a
license ... is to lay a forbidden burden upon the exercise of
liberty
protected by the Constitution." Cantwell v. Connecticut, 310
US
303 (1939); Shuttlesworth v. Birmingham, 394 US 147.
Congress recently reaffirmed the importance of "free
exercise of
religion as an unalienable right", amending Title 5 USC
503(C)(1)(b) with the
Religious Freedom Restoration Act of 1993.
This Act states that " governments should not substantially
burden religious
exercise without compelling justification... even if the burden
results from
a rule of general applicability", and requires that any such law
"...is the
least restrictive means of furthering that compelling government
interest."
Congress defines its intent by stipulating the legal tests that
should apply.
H.R. 1308, 2(a) - 3(b).
"(R)eligious freedom -- the freedom to believe and to practice
strange and,
it may be, foreign creeds -- has classically been one of the
highest values
of our society." Braunfeld v. Brown, 366 U.S. 599,
612.
In excluding any explicit limits to religious exercise from
the current
'group use' rulemaking, the Forest Service attempts a superficial
remedy to
this flaw in prior versions: This is part of how it creates the
pretense of
a "content-neutral" land use regulation, no longer
"...distinguish[ing]
between expressive conduct ...and other forms of group activity
in the
National forests." Rainbow at 314.
Yet the agency ignores even its own record on the religious
content of
such events, where groups gather in "...celebration of their bond
with the
earth and to pray for world peace and healing." (Rainbow
Gathering 1992,
USFS Report, pg. 1). In fact its proposed rules would still lay
a heavy
burden on those who hold sacred the religious practice of
pilgrimage to the
Sanctuary of Nature in groups of larger than twenty-five -- in
itself a
unique expression and exercise of belief.
"A way of life that is odd or even erratic but interferes with no
rights or
interests of others is not to be condemned because it is
different."
Wisconsin v.Yoder, 406 U.S. 205, at 234.
This language has further significance: "A way of life"
may integrate
religious and other forms of free expression, and these are
undifferentiated
in the judicial view. In this light the protections of the Yoder
test would
certainly extend to a broad range of First Amendment activities
including or
relating to religious belief. As applied to this Forest Service
rulemaking,
its legal footing crumbles:
It is the clear intent of Congress that a more stringent test
be applied in
defining "reasonable" government restriction on rights of
expression, which
vague claims of "significant " interest will no longer suffice
to justify.
Clark v. Community for Creative Non-Violence, 468 U.S. 288;
FR,
pg. 26940.
It is then explicit on what constitutes a "compelling"
interest:
"(G)overnmental regulation... prompted by religious beliefs or
principles...
have invariably posed some substantial threat to public safety,
peace or
order." Sherbert v. Verner, 374 U.S. 398, at 403.
Contrary to legal precedent, this rulemaking offers no
findings of any
such "substantial threat". Against a background where "...a
panoply of
statutory and regulatory grounds" already exist to address these
concerns
(Rainbow at 314), "...it would plainly be incumbent upon the
[agency] to
demonstrate that no alternative form of regulation would combat
such abuses
without infringing First Amendment rights." Sherbert at
407.
As it has evolved, the National Forest System bears little
resemblance
to what was envisioned in its formation. The mission created
under the early
leadership of Theodore Roosevelt and Gifford Pinchot centered
upon the
conservation of public land; it assumed ownership by the citizens
and vested
the Forest Service in a trustee role on their behalf.
Arguably this original mission has eroded in theory and
practice.
The hybrid tenure of the Government and the People has been
transformed
by the expedients of regulation, crudely adapting the known
tenets of
property law: The permit system itself is an administrative
analogue to the
legal rights of the private landholder, enabling parallel fees
and controls.
Seemingly the powers of ownership have been carried over by mere
inference;
the very notion that the government owns the National Forests is
more an
artifact of vested authority than a founding principle.
Yet it has gained creedence over time, as the ethic of forest
conservation
has given way to the business of resource management. Especially
since the
1930s, when public works programs brought significant
improvements to
National Forest lands and affirmed the broadest public interest
in their
wellbeing, the overall drift has been to define these lands as
the
proprietary domain of the Agency.
In this sense, the new tradition of consensual gatherings
in the
National Forests has reaffirmed the proprietary rights of the
general public.
Politically this poses a direct threat to the agency's assumed
authority,
which goes far to explain its knee-jerk regulatory response --
and the
vehemence behind it. Ironically the political issue is
incidental to a
larger and more challenging cultural purpose in the gatherings:
To seek
commonality of spirit and enact a new ethos of Earth-centered
community, with
hands-on stewardship of the land as a founding principle and
practice.
This represents a critical break from the Western legacy of
extractive
domination over the land, and opens daring new directions in the
relationship
of Society and Nature. It commences with a commitment to be
there, to
experience the full holy awe of the wilderness in its magnitude
and power.
It proceeds to taking direct responsibility for the effects of
human
presence, as individuals and as a group. And over time, it
engages a process
of learning about how to tread lightly and live with the land in
a
sustainable way. This is a radical departure, and a valuable
exploration on
behalf of the public at-large and generations to follow.
Taking this idea further, the gatherings embody the
germinus of a
larger conviction: That the Public is the ultimate steward of
public
land. Citizens have the right and obligation to assure that
natural
resources are shepherded with respect and foresight in the common
trust. Free access to National Forests is fundamental to the
exercise
of proprietary responsibilities in this mission, crucial to the
oversight that public stewardship demands. To the extent that a
government authority might exclude such oversight, it cannot be
tolerated.
In this light, the emergence and evolution of consensual
assemblies on
the land may be one of history's most profound experiments in
social ecology.
The fact that participants are conscious and deliberate in this
endeavor is
important in itself: It brings to fuller focus the need to
protect
expressive freedoms within this unique setting, on the
understanding that
"...public Forest Service lands are the type of forum in which
expressive
activity has historically occurred, and in which public
expression of views
must be tolerated to a maximum extent." Rainbow at
308.
Moreover this clear intent amplifies the fact that each
such gathering
is a unique form of free expression as a whole, enacting a
founding purpose
of the National Forests and other public lands: That they be held
in
trust for public use in perpetuity, to provide the final
sanctuary
for First Amendment rights of assembly.
This is where those rights must never be encumbered or
sacrificed,
and always preserved.
The record indicates an unneeded rulemaking -- adverse to the
supreme law and
spirit of the Nation, embodying an Orwellian logic of social
control. It
poses an alarming prospect in an emergent pattern of extreme
strictures and
exercise of police power by the Government.
Consequently we seek review and redress in the
appropriate Executive
and Congressional bodies, and urge that these regulations be
firmly and
finally disallowed.
Respectfully submitted,
PEOPLE FOR COMPASSION and UNDERSTANDINGThe Limits of Authority
Part 251 -- LAND USES
The Agency's position stands upon its "congressional mandate to
protect
the national forests", under Title 16 USC (FR, pg. 26940). This
does not in
itself constitute grounds for regulation.
Subpart B 1. Authority.
"An act repugnant to the Constitution cannot become law."
Marbury v. Madison, 5 (1 Cranch) U.S. 137 (1803). See also,
Morrill v.
Jones, 106 U.S. 467 (1821); United States v. Greenburgh, 453
U.S. 114
(1981); Rainbow, at 312, n. 6.
Nor did the advent of the Administrative Procedure Act alter this
legal
axiom. E.g.:
"The words 'to diminish the Constitutional rights of any person'
are omitted
as surplusage as there is nothing in the Act that can reasonably
be construed
to diminish those rights and because a statute may not operate in
derogation
of the Constitution." 5 U.S.C. Sec. 559, Historical and
Revision
Notes.
In short, the general Congressional authority vested in an agency
is not in
itself a basis for placing galling constraints on specific forms
of public
access and expression.
"It is well established that the government may enforce
reasonable time,
place, and manner restrictions on First Amendment activities.
Such
restrictions are appropriate where ... they are narrowly tailored
to further
a significant governmental interest..." Clark v. Community for
Creative
Non-Violence, 468 U.S. 288, 293 (1984); FR, pg. 26940.
This is a red-herring rationale: The agency's
Congressional authority
to impose "reasonable restrictions" is not in question. The
threshold issue
is -- "What significant government interest?" Only after a
substantive
"interest" has been demonstrated can the second question be
addressed --
"Is the restriction narrowly tailored?"251.50 Scope.
Proceeding from the 'rational basis' test as a primary
constraint,
environmental regulation is directed toward permanent or
consumptive uses --
actions with continuing impacts upon locales, or resource takings
affecting
larger social and ecological systems. The authority of the
Forest Service
operates within this overall rubric of land use law, yet in this
rule the
catchall category of "Special Use" is expanded to include
activities outside
its original scope and intent, different in character and impact.
The conceptual trick is played by defining "Group Events" and
"Distribution
of Printed Material" as Special Uses, conferring 'guilt' by
association:
These harmless expressive activities are linked with other uses
whose impacts
are known and significant -- and thereby subjected to the same
regulatory
framework, in parallel to the major-impact uses of timbering,
mining and
grazing. Thus the Forest Service attempts to mask an
illegitimate restraint
of the First Amendment, by interpretive fiat.
251.51 Definitions.
"Commercial use or activity -- any use or activity on National
Forest System
lands involving the charge of an entry or participation fee, or
the purchase,
sale, or exchange of a product or service, regardless of whether
the use or
activity is intended to produce a profit." ¤251.51; FR, pg.
26945.
"Distribution of printed material -- disseminating, posting,
affixing, or
erecting printed material as defined in this section or
soliciting
information, views, or signatures in conjunction with the
distribution of
printed material." 261.2; FR, pg. 26946.
These open ended definitions run afoul of the very
precedents upon
which the agency rests its legal authority -- i.e., (1) that
regulations be
"narrowly tailored to further a significant governmental
interest" Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293 (1984),
and (2) that
they provide "specific and objective standards to guide the
licensing
authority. Shuttlesworth v. City of Birmingham, 394 U.S. 147,
150-51, 153
(1969). FR, pg.26940.
"There are obvious methods of preventing littering. Amongst
these is the
punishment of those who actually litter." Schneider v. State,
308 U.S. 147,
162.
Most important, this provision would vest a powerful preemptive
authority in
government officials. The effect would be chilling upon basic
Constitutional
rights of assembly and expression, and extraordinarily dangerous
as a legal
precedent.251.54 Special Use Applications
It is not unreasonable to say that "...a proponent is
encouraged to
contact the Forest Service office(s) responsible for management
of the
affected land as early as possible so that potential constraints
can be
identified..." (italics added). This would fully suffice to
state an Agency
policy of cooperation in managing group events. It is
unnecessary to impose
a permit requirement that is redundant upon existing regulations,
and
pointless to use coercion where consensus will work.
(a) Preapplication activity
(a) Administrative decisions shall be based on adequate
information
concerning the need for and consequences of proposed government
action;
In short, new rulemaking should be the management measure
of last
resort. Clearly the bureaucratic compulsion to assert a permit
authority
does not comprise a significant government interest, in any case
--
especially where the singular effect is to place an undue and
unconstitutional burden upon citizens in the exercise of
inalienable rights
of assembly. This concern is amplified by the further language
of this
section, which sets up an indefinite process and timeframe for
reviewing the
Special Use application, open to arbitrary discretion on the part
of Forest
Service officers.
(b) Regulatory action shall not be undertaken unless the
potential
benefits to society from the regulation outweigh the potential
costs to
society;
(c) Regulatory objectives shall be chosen to maximize the net
benefits
to society;
(d) Among alternative approaches to any given regulatory
objective, the
alternative involving the least net cost to society shall be
chosen..."
Executive Order 12291, Section 2.
(e) Application content.
In a similar vein, it may be reasonable in itself to advise
the Forest
Service of the expected time, place, size, and nature of a group
event on
public land. However if this is to be required "minimum
information" of a
permit application {FR, p. 26941), proponents would bear an undue
burden of
proof, subject to arbitrary standards and demands for
information. Where an
"event" might be multifarious and organic in nature,
participation unknown,
set-up and clean-up times imprecise -- an officer would have the
prerogative
to arbitrarily delay or deny an application because the
information provided
is deemed 'inaccurate' or 'inadequate'.
(f) Processing applications.
In an administrative view, it is axiomatic that National
Forest plans
and uses must be consistent with the requirements of other
regulations and
the findings of other agencies. However the language under (4)
sets a
confusing procedural trap:
"If this information is already on file with the Forest Service,
it need not
be refiled if reference is made to the previous filing date,
place and case
number." FR, p. 26945.
This invokes a huge and indeterminate body of law and policy. It
implies
that all of this is relevant to a group use review, and
apparently places the
burden of documenting this material entirely upon the applicant,
subject to
the whims of the reviewing officer. The Agency's further
commentary in the
Federal Register extends the trap and makes its motives more
obvious:
"...[The] decision-making process... may trigger extensive
statutory and
regulatory requirements, including those imposed by the National
Environmental Policy Act of 1969..., the Endangered Species
Act..., the
National Historic Preservation Act... and other laws." FR,
pg. 26941The Seven Criteria
(h) Response to applications for noncommercial group events
or for the noncommercial distribution of printed material.
This amendment purposes to remedy a flaw in the 1984 rule,
which
"...applied different criteria for activities with First
Amendment
implications than for all other activities..." . FR, pg. 25942.
It fails to do so: A separate set of criteria still applies to
the
'distribution of printed material'; terms are merely juggled so
that all
noncommercial group events fall under these tests, apart from
other special
uses. In fact this language expands the latitude of the Agency
to deny
access to public land, vesting unbridled discretion in the hands
of its
"Authorized Officer". The rule apparently disregards the Supreme
Court
admonition that "Éprior restraint of a license, without narrow,
objective,
and definite standards to guide the licensing authority, is
unconstitutional." Rainbow at 309-310; citing Shuttlesworth v.
City
of Birmingham, 394 U.S. 147, 150-51 (1969).
(i) "...is not prohibited [under 36 CFR rules] or by federal,
state,
or local law..."
"This criterion would allow the agency to deny an
application for
activity that would violate federal, state, or local law." FR,
p. 26942. In
short, the perceived risk that a law will be broken or a habitat
disturbed
becomes a basis for denying access rights; the test is entirely
speculative,
the process wide open to bias, politics, and arbitrary
pre-judgement. Note
also that the reference to the new prohibitions under 36 CFR part
261,
subpart A creates an entirely circular logic within the rules,
indicating
that a special use permit may be denied on the speculation that a
'crime' of
'distributing literature' might be committed.
The Agency's Federal Register publication documents
absolutely no facts
to justify a NEED for new rulemaking, over and above existing
regulations.
This failure should be sufficient in itself to invalidate the
proposed CFR
amendments. Especially where protective rules already exist to
address
potential fears, preemptive speculation that a law might be
broken does not
constitute such a need.
(ii) "...is consistent or can be made consistent with the
applicable and approved land and resource management plan..."
Management plans for National Forests already have the
force of law,
supported by regulations protecting sensitive environments,
habitats, and
resources. This fact underlies the finding of the 1988 court
that the body
of existing regulations was sufficient to the agency's purposes
of protecting
National Forest lands and resources. In effect, this finding
alone overturns
the Agency's pretext of any significant or compelling government
interest in
promulgating these rules.
(iii) "...will not delay, halt, or prevent administrative use...
or
other scheduled or existing uses..."
Forest management plans are built upon the concept of
balancing
interests in an ongoing 'multiple use' scenario. Here again the
language
blurs the fundamental difference between a permanent or
consumptive 'use' and
a transitory 'group event', which by nature imposes no
significant competing
demand upon the scheme. In the few instances where existing uses
were
affected, experience has shown that modest accommodations are
easily made by
prior agreement. For example, a few temporary adjustments in
grazing
patterns were worked out to facilitate a 1992 gathering in
Colorado, without
significant cost or inconvenience to the parties involved.
"Although NEPA is unquestionably constitutional, even an
otherwise valid
statute cannot be applied in a manner designed to suppress First
Amendment
activity, or out of hostility to a particular group." Rainbow
at 325. See
also New York Times v. Sullivan, 376 U.S. 254, 266, 269-72
(1964); Buckley v.
Valeo, 424 U.S. 1, 25 (1976); Clark v. Community for Creative
Non-Violence,
468 U.S. 288, 293 (1984)
Despite its pretenses, this amendment offers no remedy. To say
that this
concern of the court is addressed "...by providing specific
examples of how
an activity covered by this paragraph could delay, halt, or
prevent existing
or scheduled activities..." is tantamount to speculative law by
analogy. It
is no basis for legitimizing preemptive enforcement.
"...unbridled discretion to to choose the regulatory standard to
apply in any
particular instance my allow the decision-maker to discriminate
between
groups applying for a permit, based upon his or her subjective
biases. The
'very possibility of abuse' will invalidate a regulation
requiring a permit
for expressive activity." Rainbow at 323, citing Niemotko
v. Maryland, 340 U.S. 268, 272 (1951)
(iv) "...would not pose a substantial danger to public health
[with
respect to] sanitation..., waste..., drinking water...,
contamination
of the water supply..., handling of food."
Health and sanitation are important and legitimate
performance issues,
directly relevant to the protective mandate of the Agency. They
have also
been the first concerns of gathering participants, and a focus of
Operating
Plans resolved in cooperation with local rangers in advance of
many group
events. Overall the track record is strong: Large groups and
complex
logistics have been accommodated with virtually no impacts on
National Forest
ecosystems, and just one moderate public health incident since
the early
1970s.
"...in view of the lack of evidence of irreparable injury in any
area other
than public health, a total proscription of the gathering would
be
unjustified. ...Conversely, ...it is a reasonable time, place,
and manner
restriction to require that the defendants' First Amendment
activities not
threaten the public health or welfare." Rainbow at 329;
citing
Grayned v. City of Rockford, 408 U.S. 104; Kovacs v. Cooper, 336
U.S. 77; De Jonge v. Oregon, 299 U.S. 47; Schenck v. United
States,
249 U.S. 47.
As for how sanitation standards would apply to group
events, the court
placed reliance upon watershed and disease protections already
embodied in
environmental and public health codes. Moreover while
acknowledging the
management interest of the Forest Service, it noted that such
concerns
normally fall within the expertise and jurisdiction of other
agencies.
Accordingly the court vested oversight of group event health
standards and
performance in an agency more fitting to the task, and explicitly
removed the
Forest Service from direct authority in this area:
"A neutral agency, the United States Public Health Service, will
be
designated to inspect the gathering sites and certify that
minimum health and
sanitation standards are met." Rainbow at 330.
(v) "...would not pose a substantial danger to public safety...
[on
the basis of] potential for physical injury from the proposed
activity, ...characteristics of the proposed site, ...existing
uses or
activities, ...and the adequacy of ingress and egress in case of
an
emergency."
It is always incumbent upon forest users to heed safety
concerns; these
are primary considerations in selecting a site and planning
activities. In
this outlook potential dangers are understood as problems
solvable by
knowledge and preparation -- this is the essence of wilderness
experience.
When accidents occur requiring emergency assistance, there are
direct costs
to the Agency falling reasonably within its normal operating
scope. However
the threat of accident in a National Forest entails no legal or
financial
liability to the Agency; therefore it presents no legal or
financial need to
control access on these grounds, and the rule is superfluous.
Conversely the
issuance of a permit would carry an expressed sanction of the
site and event
as a whole, and an implied assurance of safety -- possibly
engaging public
liability for accidents, incidents, or individual misdeeds.
The costs to the public that could arise under this scenario have
not been
assessed.
(vi) "...does not involve military or paramilitary training or
exercises by private organizations or individuals, unless such
training or exercises are federally funded."
This is a double-edged sword, ironically befalling those
most
interested in ploughshares. Ostensibly this test is targeted
upon armed
'extremist groups', known or suspected. But given such loose
discretion,
might it conceivably be invoked against such "paramilitary"
groups as Outward
Bound, the Boy Scouts, Salvation Army or National Rifle
Association ? Could
it also proscribe activities like Aikido martial arts seminars or
wilderness
survival training using the Army Field Manual? It is of further
concern that
this measure might be applied as a prior restraint against
possible civil
disobedience -- there are already indications of this intent.
Once again the definitions are too vague, and the powers too
broad.
(vii) "A person or persons 21 years of age or older has been
designated to sign and does sign a special use authorization on
behalf
of the applicant."
As stated above in response to paragraph 251.54(e), the
Forest Service
has no reason or authority to stipulate that a user group be
constituted as a
legal entity or structured in its internal interactions to
satisfy the
dictates of the public agency. This bears directly and heavily
upon the
'consensus group', which by definition and intent is not an
entity: It is an
assemblage of free individuals -- entirely self-responsible as
persons before
the law -- willfully joining in common activities, mutual care,
and the
natural human instinct and legal right to gather.The Bounds of Discretion
(2) This paragraph states that if a special use application is
denied on
the basis of any of the seven criteria,
"...the authorized officer shall notify the applicant in writing
of the
reasons for the denial..., [and that this constitutes] ...final
agency action
and is immediately subject to judicial review." F.R., pg.
26946.251.56 Terms and conditions.
These provisions would exempt 'noncommercial group events
and
noncommercial distribution of printed material' from payment of
security
bonds or use fees. This is appropriate in itself, yet again a
broad
discretion is vested in officials, and the determination rests
upon an
extremely loose definition: "Commercial" is defined as "any
activity
...involving ...exchange of a produce or service, regardless of
whether the
use or activity is intended to produce a profit." FR, pg.
26945.
The conditions here are sweeping and the loopholes huge, with
little to
constrain the Agency's power to impose undue financial burdens on
prospective
users and impede activities on public land.
(e) Bonding.
251.57 Rental Fees.251.60 Termination, revocation, and
suspension.
This paragraph establishes the discretion of the authorized
officer to
suspend, revoke, or terminate a special use authorization.
Although it
nominally exempts 'noncommercial group events and noncommercial
distribution
of printed material' from such action, there is no assurance that
an officer
may not arbitrarily change a prior determination and shut down an
event.
First of all, "noncommercial" is defined as anything that is not
"commercial"
-- and therefore it is equally ambiguous. This creates a likely
quandary:
If a permit is granted for a noncommercial group event and the
officer
discovers informal trading or donations being accepted, he could
then
classify this as a 'commercial' activity and revoke the
noncommercial permit.
In this case the overall event that had received authorization
would then
stand in violation, with its participants subject to prosecution
after having
gained approval.Part 261 -- Prohibitions
The definitions for "Printed Material" and the
"Distribution..."
thereof are restated under this subpart. The overall problems
with how these
terms are treated under the 'Special Use' designation are
discussed above
under section 251.51. That they even appear in this CFR
amendment as Special
Use prohibitions is cause in itself for grave concern, as an
issue of prior
restraint upon expression. New York Times Co. v. United
States, 403
U.S. 713, 714 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S.
58, 70
(1963).
Subpart A -- General Prohibitions
261.2 Definitions.261.10 Occupancy and use.
Paragraphs (g) and (h) set forth the prohibition against
"...distributing any printed material without a special use
authorization",
along with specific criteria by which a violation would be
defined under this
section. The applied standard ÐÐ "...delaying, halting, or
preventing
administrative ... or other scheduled or existing uses" ÐÐ
creates an
extremely broad test for these activities. Loosely construed,
virtually any
citizen presence on National Forest land might be determined to
impede other
uses or conflict with the multiple-use management plan. The
Forest Service
offers no guidelines for resolving possible conflicts in advance,
and it
ignores available remedies under existing regulations should
actual conflicts
occur.The Bigger Picture
A. Use Permits: Urban vs. Wilderness
Areas
Obviously there is an overriding administrative imperative
behind this
rulemaking: Having assumed a comprehensive authority to impose
permits and
fees upon all uses in National Forest areas, the Forest Service
bureaucrats
are compelled to close the regulatory net. In this strictural
world view,
group assemblies must fall within the same framework of statutory
control as
other 'Special Uses' and the major extractive activities of the
timber,
mining, and grazing industries. They are seen as just another
source of
potential impact, legally equivalent in kind and degree to other
realms where
the Agency's permit authority is clear, established, and
uncontested.B. Targeted Populations & Equal Protection
The 'Background' discussion presented in the Federal
Register claimed
that these amendments respond to the mandate of the Arizona court
in 1986:
"...the Forest Service has the right to regulate large group
activities on
government land, but only if the regulation is content-neutral
and applies to
all large groups. United States v. Israel, No.
CR-66-027-TUC-RMB (D. Ariz.
May 10, 1986)." FR, pg. 26940.Regulatory Impact
Citing authorities under USDA procedures and Executive
Order 12291, the
Forest Service determined that this regulation would not be a
"major rule".
Without offering any specific rationale, the rule is
characterized as merely
"...technical and administrative changes for authorization of
occupancy and
use of National Forest System lands." FR, pg. 26944.
"It is only through free debate and free exchange of ideas that
government
remains responsive to the will of the people and peaceful change
is effected.
The right to speak freely and to promote diversity of ideas and
programs is
therefore one of the chief distinctions that sets us apart from
totalitarian
regimes." Terminiello v. Chicago, 337 U.S. 4 (1948); De Jonge
v. Oregon, 299 U.S. 365.
The sacrifice of Constitutional protections that "set us
apart from
totalitarian regimes" might well be considered a very steep cost
to a free
society -- one which the Forest Service has systematically
ignored in
presenting this reasonless, redundant rule. In fact by raising
the specter
of criminality over primary rights of assembly, this regulatory
scheme
strikes at the heart of free thought and diversity of ideas the
central
pillars of democracy.Religious And Expressive Freedom
Previous versions of this rule applied these requirements
explicitly to
religious activities. The present proposal makes no direct
reference to
religious activity, yet there is no exemption of such uses from
restriction
under the broad and vague definition of "noncommercial group
event." The
agency does not explain how the proposed permit scheme squares
with Federal
Court decisions which have found permits to be constitutionally
unacceptable
as applied to religious activity, e.g.: Public Land, Public Stewardship
A fundamential issue remains legally and historically
unresolved
beneath the turbulence of the 'group use' debate -- the true
ownership of
public land in the republic. Americans believe that the National
Forests
belong to the citizens, yet the presumption is recurrent in this
rulemaking
and others that they are Federal lands, and as such they are
government
property. It underlies the unconditional authority assumed by
the Forest
Service to approve or preempt uses, to grant or deny access.
Conclusion
In closing we contend that this Forest Service CFR
proposal fails
to meet the criteria of Executive Order 12291, the Administrative
Procedure
Act, and the Constitution of the United States.
Washington, D.C.
1601 Pennsylvania Avenue