Comments to US Forest Service Regs

22 Jul 1993 18:35:21

Here is a copy of the letter I sent to the Forest Service concerning their
proposed regulations. I hope some of you can copy off parts, comment on them,
and mail your own letters to the Forest Service.


Public Comments for 36 CFR Parts 251 and 261
Submitted by: Brian Winkler, P.O. Box 9891, Boone, NC 28608
23 July 1993

Section 251.50 - Scope

In this section, the proposed rule seeks to clarify that a special use permit is
required for noncommercial distribution of printed material, even if the material is
being distributed only by an individual. I believe this constitutes an
unconstitutional prior restraint under the 1st Amendment to the Constitution of
the United States. I do not believe that requiring an individual to obtain a permit
simply to distribute printed material will pass the Clark v. Community for
Creative Non-Violence test of being narrowly tailored to further a significant
governmental interest.

Section 251.51 - Definitions

The proposal defines the term "group event" as any activity that involves
and/or attracts 25 or more people. I feel that this large-group threshold is too low.
Setting the threshold at 25 people will cause many university/school camping
classrooms/groups to be included and would thereby cause an undue burden for
instructors of those classes. Instructors with college and graduate level degrees
and university credentials can be assumed only to gather their groups in places
where your proposed "seven criteria" (Section 251.51) will certainly be met.
Causing these groups to apply for permits will most assuredly cause them either
to forego gathering in the National Forest for less primitive National Park Service
land or will burden them with an unnecessary hour (F.Reg. 58, No. 86, p. 26944)
of paperwork. A more sensible group threshold would be 50 people, since this
would in almost all circumstances exclude groups gathering only to secure
academic credentials.

Section 251.54 - Special Use Applications

I agree with the proposed fee schedule whereby noncommercial proponents
will not be charged any application fees nor would they have to comply with
bonding requirements. However, I disagree with many unnecessary requirements
proposed in this section. They are disguised as beneficial "protections" but in
reality will serve to quell the freedom of speech of some groups.

Paragraph (e)(1) of this section would require any applicant to provide his
or her name and mailing address, or if the applicant is not an individual, the
name of an agent who is authorized to receive notice of who is authorized to
receive notice of actions pertaining to the application. It should be noted here that
not all groups have a hierarchial order. As a matter of fact, some groups (most
notably the Rainbow Family of Living Light) count it as one of their fundamental
free-speech exercises NOT to have designated leaders or agents. Requiring a
group such as this to designate a leader quells the freedom of speech and the
freedom peaceable to assemble by calling on them to retreat from a fundamental
principle they stand for in order to gather in the practice of that principle.

Paragraph (e)(2) has several shortcomings. This paragraph specifies
information which must be provided on applications for noncommercial group uses
and noncommercial distribution of printed material. Requirement (1), which
requires a description of the proposed activity, is very ambiguous. Will it be
enough to describe "A gathering to meditate for peace" or must a proponent
describe "A gathering which would entail dancing, interpersonal interactions,
political discussions and commentary, along with workshops intended to foster in
one a spiritual oneness with humankind's place in nature as animals in the
animal kingdom and with one's place in a controlled society in which the good of
the many outweighs the good of the one, so as to persuade to believe or to
reinforce beliefs that world peace and tolerance are beneficial means to achieve
both of those positive ends." By the same token, must a proponent simply state:
"To hand out bumper stickers" or must they say: "To distribute materials
containing witty phrases, intended to be affixed by adhesive backings to safety
devices present on most automobiles, to wit, bumper stickers."

Secondly, requirement number 5 [Section 251.54(e)(2)(5)] is blatantly
unconstitutional, as it would immediately quash the freedom of speech of anyone
under the age of 21. Eighteen would be a better age limit for this requirement,
however, the best solution is not to require an age limit. Provided that
distributors of information and/or proponents of noncommercial gatherings are
acting of their own free will, no age limit should be imposed. To do so would set a
definite mile marker, before which an individual would be assumed to have no
freedom of speech, which is guaranteed by the First Amendment. Under the
proposed rule, a group of 18-, 19-, and 20-year-olds would not be able gather on
National Forest land to exercise their freedom of speech unless the ideas they
were espousing were previously adopted by a more elder member of this society.

Section 251.54(h)(1) purports that an application may be denied because of
a 36 CFR part 261 determination of "inclement weather." I think that it would be
far wiser to grant an application and let the individual or group decide on its own
whether or not the weather was too inclement. Should a National Ski Patrol unit
be denied an application to conduct winter survival training simply because it is

Section 251.54(h)(4) assumes that any application under this section would
be approved, provided seven criteria are met. Once again, these criteria seem to
be merely offering protection to participants per se, but per quid some of these
seven criteria could be used to deny applications to groups who espouse (as a
freedom of speech) different sanitary and safety requirements than what is
considered acceptable in mainstream American society. These seven criteria have
the undesirable effect of offering unnecessary governmental intrusion in the
freedom of the individual to choose to pursue life, liberty, and happiness by the
mechanism of governmental paternalism.
I agree with Section 251.54(h)(4)(f) requirement that an applicant provide
assurances that the water supply not be contaminated by the proposed event and
with the Section 251.54(h)(4)(b) requirement that waste will be removed from the
site before the entire event is concluded. However, I believe that only a minimal
assurance should be necessary for requirements (4)(a), safe sanitation facilities;
(4)(c), availability of safe drinking water; (f) safe food handling procedures. It
should be sufficient for purposes of approval of the permit for an applicant to
simply state: (4)(a), we will bury our human waste away from a water supply;
(4)(c), we will truck in water from a nearby city; (4)(f), we will wash our hands
before we eat or prepare meals. To require any more would cause to be crushed a
significant right to express a freedom of speech that current 20th century food
handling practices, while working excellently in mainstream society's commercial
restaurants, are not required for only a brief period of gathering in the woods.
Therefore, since satisfaction of these requirements [(4)(a), (c), and (f)] of the
application would be so easy, they should be omitted as burdensome and

Section 251.54(h)(5)(b) again inserts needless governmental paternalism in
an area which may inhibit free speech. Not all individuals agree with regulations
which exist to benefit the individuals themselves. Many of the groups which claim
that they do not need this governmental paternalism actively use their First
Amendment right to freedom of speech to contribute to the marketplace of ideas
that contemporary rules and regulations of this society have reached the point of
intruding on the right to privacy granted under the Fourth Amendment to the
Constitution, and inhibiting the pursuit of "life, liberty, and pursuit of happiness"
claimed by the Declaration of Independence. At the same time, I support section
251.54(h)(5)(a), which rightly recognizes that those aforementioned rights end
when unwilling participants are involved.

Criterion 251.54(h)(7) unfairly and unconstitutionally requires an applicant
to be 21 years of age. For discussion of this, see discussion of Section
251.54(e)(2)(5) above. Furthermore, this section formally requires that an
application be made. A wiser and more moderate approach to this would be to
include a section which allowed a group to peaceable assemble under the First
Amendment to the U.S. Constitution, provided they violated no other part of the
proposed changes to 36 CFR Parts 251 and 261 and it could be shown in
retrospect or while in progress that all applicable criteria were met or being met.
If these criteria are being met, there is absolutely no reason to require a permit in
the first place.

Sections 251.56 and 251.57 are excellently crafted and wonderful ideas, but
are completely unnecessary. See the final discussion below for reasons.


This proposed legislation merely takes all of the rights currently enjoyed
under the First Amendment to the Constitution and places them under the
protection of the Code of Federal Regulations. As such, this proposed legislation is
completely unnecessary.
At the same time, promises of clean air, clean water, good sanitation, and
natural and human resource protection guaranteed under the proposed regulations
already exist in judicial law and in numerous federal, state, and local laws, which
are enforced under the doctrine of concurrent jurisdiction. As such, this proposed
legislation is completely unnecessary.

Rooted deep in this proposed legislation is a prejudice by the United States
Forest Service against free speech and the freedom to peaceably assemble, which
this legislation claims to be supporting. If it really were supporting free speech
and the freedom of peaceable assembly, it would be unnecessary to paste
throughout the layman interpretation of this legislation the fact that all of this is
being done to protect the freedom of speech. Instead, it would be apparent.
This proposed legislation exists for the sole purpose of codifying existing
unwritten civil liberties into one place, so that in the future free speech or free
assembly can be denied in the interest of furthering the interest of the people, or
so that in the future the codification can be removed from this legislation, thereby
in the eyes of many, actually taking away the freedoms which it never originally
This is another example of an over-zealous, bureaucratic government
making work for itself.

The entire proposed legislation should be discarded.

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