Yes to both questions. The LWCFA is a Separate authority. The rule does not apply at developed recreation sites where use is allocated Under a formal reservation system and where the agency has the authority to manage and to Charge a user fee to the public under the LWCFA. Fee sites should be managed as they have been in the past. Fees collected should be deposited into the LWCF.
Fees, Bonding, and Insurance
36. Why will no fees, bonding, or insurance be required under the rule?
Courts have held that fees, bonding, and insurance required under a permit system constitute an unconstitutional prior restraint of speech. In other words, requiring fees, bonding, and insurance has been viewed as placing a price tag on speech in violation of the First Amendment. See question 13 in the communication plan for the final rule.
37. What will happen when the Forest Service and a noncommercial group that was not required to have insurance are sued in connection with the group's use and occupancy?
This is a determination that will be made on the facts of each case. The regulations at 36 CFR 251.56(d)(1) and the Temporary Special Use Permit require holders to indemnify the Forest Service for damages incurred as a result of the holder's use and occupancy. In addition, the government has an array of potential defenses to liability.
Noncommercial Distribution of Printed Material
38. Can the agency restrict noncommercial distribution of printed material to certain locations at high-profile areas?
No. The agency does not have the authority to regulate noncommercial distribution of printed material, unless 75 or more people are engaging in the activity. The agency may enforce prohibitions at 36 CFR Part 261 that may apply in this context.
New Rule, FSM, and FSH
39. The Manual states that permit termination is not appealable, but the new rule provides that termination of permits for other than noncommercial group use is appealable. Explain.
While the Forest Service Manual (FSM) provides that permit termination is not subject to appeal, the regulations at 36 CFR 251.60 in effect before the new rule was published provided that permit termination was appealable. Regulations, which have the force and effect of law, supersede the FSM. The new rule provides that termination of permits for noncommercial group use is not appealable. A corresponding change for permits for commercial uses was not made because that change would have gone beyond the scope of the rulemaking. However, the Lands Staff is working on revisions to the regulations for commercial uses that would include that change.
40. When will the CFR, FSM, and FSH be updated to reflect changes made by the new rule?
The federal regulations were changed as of August 30, 1995, when the final rule Was published in the Federal Register The new rule will appear in the "ext edition of the Code of Federal Regulations.
Conforming amendments to the FSM and Forest Service Handbook (FSH) will be made as soon as practicable. Changes that will probably be made include:
(1) Adding approval of noncommercial group use as a type of action that may be categorically excluded under the NEPA Handbook without preparing a project file or decision memo.
(2) Revising FSM 2340.5 and 2705 to include definitions for "commercial" and "noncommercial."
(3) Revising FSM 2345, "GROUP USE BY INSTITUTIONS OR OTHER ENTITIES," to address noncommercial group use in conformance with the new rule.
(4) Revising the heading for FSM 2347, "NON-COMMERCIAL RECREATION USE," to clarify that this section covers non-public, rather than noncommercial,
(5) Clarifying FSM 2701, para. 12, to list commercial recreation events and other commercial specialized recreation activities of limited duration as uses that may be authorized under section 4(c) of the LWCFA.
(6) Revising FSM 2703.2, "Denial of Use," to conform with the new rule.
(7) Revising FSM 2721.1, "Group Use," to conform with the new rule.
(8) Revising FSM 2721.49, "Recreation Event," to clarify that this section covers commercial, rather than noncommercial, activities.
Other changes may be made after we have a better sense of what aspects of the rule need additional direction. In the meantime, rely on The rule, questions and answers, and other material provided in the communication plan.
41. How do we handle a situation where one group of 75 or more people that is in the same area and is conducting the same activity has split into two or more groups that each have less than 75 people?
Several comments on the proposed rule noted that it would be unclear how the rule would be applied if 75 or more people unexpectedly ended up using the same site. One comment noted that it would also be unclear how the rule would be applied if a large group of People were camping in the same area, but far apart.
The Department's response indicated that the rule is intended to apply to noncommercial groups of 75 or more that camp in the same area, even if they camp far apart from each other. The burden is on the government to establish that a group of 75 or more has gathered at a site. Document the count and the rationale used in performing it. Attempt to identify group leader(s) and other signs that the people at the site have gathered as a group. For example, if there is a common kitchen or campfire or if people are observed going from one campsite to another, it is more likely that the people have gathered at the site as a group.
42. Why is a group to be given 72 hours to disperse if the leader is not responsive to law enforcement? Wouldn't the activity often end during that time frame before any further action could be taken?
After consultation with the Department of Justice and the Office of the General Counsel, the agency determined that it was appropriate and fair to give a group 72 hours to disperse given that there will be at least 75 people in the group. Arrest of the leader(s) was deemed necessary only if the group failed to disperse within 72 hours. At this stage, the leader(s) will have been cited for failure to have a required permit, so some law enforcement action will already have been taken. Other violations of the prohibitions at 36 CFR Part 261 may also have been cited.) Arrest of the leader(s) was deemed necessary only if the group failed to disperse within 72 hours. This time frame was recommended to ensure that the rule is enforced consistently and fairly with respect to all groups.
43. How will the agency enforce the rule against large groups that gather without notice and that do not want to sign a permit?
The preamble to the final rule explains why it is appropriate for any group subject to the rule to sign a permit. By requiring a person to sign a permit as an agent or representative of a group, the agency ensures that the 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 signing the permit on behalf of the group, the agent or representative gives the permit legal effect and subjects the group to the permit's terms and conditions. See 60 Fed. Reg. 45274, 45286-87.
The videotape explains in detail the recommended procedure for enforcing the rule in this situation. It is recommended that a violation notice be issued for a mandatory appearance before the local U.S. Magistrate Judge with jurisdiction. The citing officer should explain to the leader(s) that unless they and their group leave the area within 72 hours after the violation notice is issued, they will be subject to arrest. The leader(s)' failure to disperse after a violation notice has been issued and 72 hours have elapsed constitutes a continuing criminal offense that would support a custodial arrest. If arrests are made, consult with the local Office of the General Counsel (OGC) to determine the best way to proceed with the criminal case. If the group still has not dispersed after the leader(s) have been arrested, again consult with the local OGC, which will work with the Department of Justice (DOJ) to devise an appropriate strategy.
What is the responsibility of the person who signed the permit?
The person who signs the permit does not assume personal responsibility for the actions of other group members. Individual group members are personally responsible for their own actions. A person who signs the permit acts as an agent for the group, but does not assume personal responsibility for the group's actions. See 60 Fed. Reg. 45274, 45286-87.
45. What is the responsibility of leaders who are arrested because of the group's failure to obtain a permit?
Anyone who is occupying the National Forest System without proper authorization is subject to citation and/or arrest. In this situation, we are recommending that only the leaders, if they can be identified, be cited and/or arrested in the hope that the rest of the group will disperse. If they do not, other group members could be cited and/or arrested. Consult with OGC before making additional arrests.
46. If an arrest in a made in a remote area, will DOJ and OGC provide assistance?
It is our expectation that the local U.S. Attorney's Office and OGC will provide assistance if arrests are made. DOJ in Washington will probably have primary responsibility for constitutional issues that arise in connection with criminal actions.
47. Has a permit been issued under the rule in any of the regions?
Region 6 has issued a permit under the rule, and there are indications that there may be a gathering subject to the rule in Regions 3, 5, and 8 this fall.
Rainbow Case Intro