land use review

23 Nov 1993 00:34:34



On May 8, 1993 the National Forest Service published proposed
amendments to 36 CFR parts 251 and 261. If promulgated this unnecessary
rule would impose a substantial burden on the inalienable freedoms of
belief, expression and assembly -- linked to natural human land use and
access to the earth which predate even the origins of this country. By
defining the exercise of those natural functions and rights as a criminal
violation, the rule would provide imprisonment for the members of a group
which simply met on public land to pray for peace. The Forest Service
admits it faces a 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, see also,
Federal Register, Vol. 58, No. 86, pg. 26940 ("FR").

On two previous occasions Federal District courts have found nearly
identical Forest Service rules to be unconstitutional on their face. United
States v. Israel, No. Cr. 86-027-TUC-RMB, Dist. Ariz. May 1000 ("Israel"), 1986;
and United States v. Rainbow Family, 695 F.Supp. 294-352, E.D. Tex. 1988


"The purpose of this proposed rule is to regulate noncommercial
group events and noncommercial distribution of printed material on
National Forest System lands in compliance with First Amendment
rights of assembly and free speech." FR, id.

The rulemaking proposal presents no "significant interest" to justify
this unprecedented regulatory action. Lacking any factual predicate for its
proposal -- while evading accountability for its basic premises and effects
-- the preponderance of the Forest Service's argument is reduced to
explaining how the current proposal has been tailored to comply with the
previous court opinions. FR, pg. 26940.

The Forest Service fails to provide any basis in fact for its proposed
rule, so a complete assessment of the proposal must consider issues beyond
those mentioned in the Federal Register. Put forth under the guise of land
use regulation, it must be determined if the rule actually serves any
legitimate land use protection purpose. Built upon a history of
questionable political motives, particularly in the absence of any facts, the
Agency's motives must also be scrutinized.
Thus, this Review also embraces those themes within its scope.


36 CFR Part 251 -- LAND USES

Subpart B
1. Authority.
The Agency rests its position on its "congressional mandate to
protect the national forests", under Title 16 USC (FR op.cit., pg. 26940).
This does not in itself constitute grounds for regulation.

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.:

"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, 133 (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.

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 clear factual findings and good reasons to restrain
specific uses, structures, or activities.

The Forest Service overlooks the fact that "... a panoply of statutory
and regulatory grounds" already exist to address just about any
conceivable legitimate interest that may arise with regard to group use of
public lands. Rainbow at 314. No prior relevant case has found any
significant government interest -- nor does the Agency advance any new
factual evidence -- to support the present Forest Service proposal.

This connects directly to the broader condition in the law that a
significant or compelling government interest must be shown before
regulations may be imposed, and to Executive Order 12291 which requires
regulations to be "well-reasoned":
"Administrative decisions shall be based on adequate information
concerning the need for and consequences of proposed government
action." Id., Section 2(a).

Because the regulation impacts the First Amendment head-on, yet
contains no readily discernible information concerning the need for new
regulations to protect the forests against groups of more than twenty-five
people, the Agency attempts to do indirectly that which it cannot do

"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)," see
also, FR. 26940.

Again, the Agency's "congressional mandate" to impose "reasonable
restrictions" is not at issue, thus it is an indirect aside. The first direct
after a precise "interest" has been identified can the second question be
addressed: "Is the restriction 'narrowly tailored?'"

251.50 Scope.

251.51 Definitions.

The primary conceptual trick is played by redefining "Group Events"
and "Distribution of Printed Material" within the broader rubric of "Special
Use." Thus, the Forest Service attempts to mask illegitimate abuse -- the
abridgement of harmless, constitutionally protected activities -- by wrongly
equating the acts of expression and assembly with major impact "Special
Uses," such as timbering, mining and grazing.

Although this is done in the guise of comprehensive and
content-neutral administrative policy, in fact the rule would have no effect
on activities whose impacts are significant and well-known, but would fall
heavily upon those who only assemble harmlessly on the land. This logic
would also subject the harmless user to an array of inappropriate
environmental reviews. In turn, these unnecessary reviews expose a permit
applicant to broad administrative discretion, bypassing reasonable and
timely requirements governing grant of permits. See further discussion
below, 251.54(e)(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.:

"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, p. 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." FR, p. 26946.

These open ended definitions run afoul of the very legal 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. 26940.

Previous versions of this rule applied these requirements explicitly to
religious activities. No such reference is made in the present proposal, yet
there is no exemption of such uses from restriction under the broad and
vague definition of "noncommercial group event." It is not explained how
a permit requirement squares with Federal Court decisions which have
found permits to be constitutionally unacceptable as applied to religious
activity, e.g.:

"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, 394 US 147.

The restraint of "printed material" under Special Use authorities 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 58/86, pg. 26941)
are speculative, specious, and absurd.

"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, with chilling effect on basic Constitutional
right of assembly and expression, both vexing as an administrative exercise,
and dangerous as a legal precedent.

251.54 Special Use Applications
(a) Preapplication activity

It is reasonable 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).

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 and resource
protection. "Operating Plans" have been worked out in advance, and
overall there is a 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 -- a matter which they fail to address as a
viable alternative to its proposed rulemaking.

Moreover it is the Agency's obligation to explore such options for
meeting its legitimate goals, before any regulation may be imposed. This
principle of administrative law is explicit in the "General Requirements" of
Executive Order 12291, which places clear mandates upon "all agencies" in
promulgating new regulations:

"(a) Administrative decisions shall be based on adequate
information concerning the need for and consequences of
proposed government action;
(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.

In short, a new rulemaking should be the management measure of last
resort. In this light it is clear that imposing a permitting process serves
no significant government interest, but merely places an undue and
unconstitutional burden on citizens' exercise of inalienable rights. This
perspective is reinforced by the further language of this section, which
sets up a vague process and an indefinite timeframe for reviewing the
Special Use application, acting as license for arbitrary discretion by Forest
Service officers.

(e) Application content.
It is reasonable in itself to advise the Forest Service of the time,
place, size, and nature of a group event on public land. However, under
the "minimum information" required by this rule (FR, p. 26941), proponents
would bear an undue burden of proof, subject to arbitrary standards of
accuracy and demands for further information. Where an "event" might be
multifarious and organic in nature, participation unknown, set-up and
clean-up times imprecise -- an officer may arbitrarily delay or deny an
application merely by labeling the information provided "inaccurate" or

Most important, the Forest Service demands 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, for example, a
group assembles to exercise a shared belief in consensual democracy -- as
opposed to hierarchy -- hierarchy cannot be imposed without violating the
consensual group's freedom of belief. Of course, the Forest Service offers
no facts which justify regulating freedom of belief.

(f) Processing applications.
The language under (4) begins constructing a 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 proviso invokes a huge, indeterminate body of law relevant to a
special use review, and places the burden of documenting this material
entirely upon the applicant, subject to the whims of the reviewing officer.
Further commentary furthers construction of the trap:

"...[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." Federal Register, pg. 26941

This extensive "Special Use" review is obviously appropriate for uses
like timbering, mining, and grazing, but it presents an unnecessary and
chilling obstacle for those harmlessly exercising constitutional rights. It is
axiomatic that the Agency must assure its regulations are consistent with
other law, yet this provision would have the effect of placing the burden
of proof upon an applicant. It should be clear that these measures would
encumber the Agency and taxpayers with the added costs of processing
applications and managing needless records of harmless First Amendment
activities -- while investing the Agency with arbitrary discretion. This is
a serious due process issue.

Moreover the Forest Service uses this issue as a rationalization for
any delays in issuing a permit:

"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.

The Forest Service depends on the pretense of remedying defects Federal
courts have found in previous rules. Ironically, without a specified "time
period" this rule directly evades and defies the mandate for timely due
process expressed in the 1988 decision. Rainbow, at 306-308. In effect,
this rule is more vague, more subject to "unreasonable delay", and thereby
more unconstitutional than the last.

(h) Response to applications for noncommercial group
events or for the noncommercial distribution of printed

The proposed amendment purports 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. 26942. It fails to do
so. A separate set of standards still applies to the "distribution of printed
material." Terms are juggled so "noncommercial group events" now fall
under "Special Uses," but the latitude of the Agency to deny access to
public land is actually expanded, vesting standardless discretion in the
hands of the Agency's "authorized officer".

In the "seven criteria," set forth for granting a special use
authorization, the rule displays no apparent regard for judicial mandates
that "public Forest Service lands are the type of forum in which expressive
activity ... must be tolerated to a maximal extent," and that "prior restraint
of a license, without narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional." Rainbow at 307-310. These seven
criteria require it be determined that the "proposed activity":

(i) " not prohibited [under CFR rules] or by
federal, state, or local law..."

"This criterion would allow the agency to deny a permit 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, which might
conclude that a special use permit may be denied on the speculation that
the "crime" of "distribution of literature" might be committed?

The Agency's Federal Register publication documents absolutely no
facts to justify a NEED for new rulemaking. This failure should be
sufficient to invalidate the proposed CFR amendments. Especially where
strictures already exist to address potential fears, preemptive speculation
that a law might be broken does not constitute such a need.

"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).

(ii) " 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 interest in
promulgating these rules.

The actual scope and intent of forest management plans is to reconcile
demands and set specific limits on major uses, based on environmental and
performance standards. 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.

It is true that the management plans are developed and adopted with
public input, albeit in a flawed process stacked in favor of special
interests. Free assembly on public land is a right retained by the people,
not to be denied or disparaged by other authorities, and the final
stewardship of public land is a power "reserved 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. Therefore the application of the plans in this
regulatory scheme is subject to the protections of the Ninth and Tenth

(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. Experience has shown that
minor, temporary accommodations are easily made by prior mutual planning;
this has been done many times. Here, standardless language blurs the
fundamental difference between a consumptive "Special Use" and a
transitory "group event," which, by nature, imposes no significant
competing demand upon the scheme.

Bypassing protocols established in environmental law for determining
if impacts of an activity are "significant," this rule again sets up a vague
and arbitrary discretion, awarding the officer -- speculating on a
worst-case analysis under pressure to deny access -- a position of
unilateral judgment. The 1984 rule was struck down for precisely this

"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.

To say this rule addresses the court's concern, "by providing specific
examples of how an activity covered by this paragraph could delay, halt, or
prevent existing or scheduled activities," amounts to legitimizing preemptive
enforcement. Despite its pretenses, this rule offers no remedy.

(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 standards of
performance, directly applicable to the protective mandate of the Agency.
They have also been the first concerns of group event participants, and
the focus of Operating Plans resolved in cooperation with local rangers in
advance of many group events. Overall the track record shows that large
groups with complex logistics have been accommodated with virtually no
impacts on National Forest ecosystems and with only one marginal public
health incident. Rainbow at 327-300.

In fact, the Rainbow court established a narrowly tailored mandate to
insure adequate standards of health practices at "group events," but
disallowed imposing them as review criteria in a new rule, finding this to
be preemptive of First Amendment rights and redundant upon existing

" 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, 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.

Protections against watershed degradation and disease risks in food
handling are already embodied in management plans, environmental
standards, and public health codes. These parameters will be key to
improved cooperation and more effective site plans for future events; but
clearly they may not be invoked as a speculative pretext for denying a

Although public health issues are legitimate concerns for public
sector, the history of Rainbow, 1988 clearly shows that the Agency may also
seek to invoke these concerns -- beyond the mandates of reasonable and
fair judgment -- to discourage group events and exert a chilling effect.

(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: these reasonably fall 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 offers 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, thus implying assurances of safety -- possibly engaging
public liabilities for accidents, incidents, or individual misdeeds. The costs
to the public that could arise under this scenario have not been assessed.

The 1984 provision on "clear and present danger" was struck down
for being vague and leaving too much discretion in the hands of officials.
FR pg. 26943. The new language presents absolutely no remedy for that
flaw. It merely states obvious potential dangers, without defining a
degree of danger that would warrant denying access to public lands, and
Agency latitude remains way too broad. Similarly, if the ruling officer
decides that the "ingress/egress" criterion is based on large vehicles, it
could easily bias the review and bar users from remote sites even if
vehicle use is not involved. Again this allows for a permit to be denied on
purely speculative or specious grounds.

(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
and the chronic paranoia of authority, could it also proscribe activities like
wilderness survival training using the Army Field Manual, martial arts
seminars (such as Aikido or T'ai Chi), or nonviolence training? Might it
conceivably be invoked against such "paramilitary" groups as football
teams, the Salvation Army, or the Boy Scouts of America? Once again the
definitions are too vague, and the powers too broad.

Moreover the exemption of "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 originates. It can be construed to convey upon
'official' military activities a preemptive and exclusive right of access to
National Forests, posing a serious Constitutional infringement under the
Second Amendment. Such issues reinforce doubts as to the sense, effect,
and legality of the proposed regulations.

(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

As stated above in response to paragraph 251.54(e), the Forest
Service has no authority or reason to stipulate that a user group be
constituted as a legal entity to satisfy the dictates of the public agency or
its rules. This bears directly and heavily upon the "consensus group,"
which, by intent, is not an entity, but an assemblage of free individuals --
entirely self-responsible as persons before the law -- willfully joining in
mutual care, common activities, and the natural human instinct and legal
right to gather.

The Agency record contains no evidence of need or reason for this
provision. Agency records do show that past group events have
cooperated with local authorities in advance and prepared operating plans
in full cooperation. For example, one consensual event, the Rainbow Family
Gathering of the Tribes, held on National Forest land each July (and topic
of the Texas Rainbow case), is the subject of an annual Forest Service
report. Consistently, these reports attest, Forest Service questions have
been answered, reasonable requests met, problems solved cooperatively,
resulting in sites left in a clean and natural state. These facts testify to a
consensual respect and integrity among individuals toward legitimate public
interests, common wellbeing, and the land; they do not suggest any
compelling need for the law to override rights of free association and
consensus, or to impose singular responsibility upon individual participants.

The Agency would demand that, "...someone on behalf of the applicant
must accept the responsibilities associated with use of National Forest
System land." FR, pg. 26943. In fact this provision amounts to
impermissible government pressure, if not intent, to isolate "leaders" from
the consensus, make these "leaders" culpable for the real or imagined
actions of the group, and expose them, as individuals, to legal penalties.


If a special use application is denied on the basis of any of the seven
criteria, the Agency postulates,

"...the authorized officer shall notify the applicant in writing of the
reasons for the denial..., [and that this constitutes] agency
action and is immediately subject to judicial review." FR, pg.

Allegedly this remedies two defects in the 1984 regulations, (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;
FR, pg. 26940. Yet, the rule provides no stipulation on the procedure to
insure a timely response by the Agency. Once again, the actual language
of the rule skirts the mandate of the Texas court, creating the potential for
endless burdens on the courts, as well as potential group users, while the
taxpayers are forced to assume the burden of continued Justice Department
litigation of unmerited Forest Service regulations.
"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.

"Without unreasonable delay" is just an unreasonably unfixed

"[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. It is also 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 an undue burden upon the applicant in the
exercise of Constitutional rights, and upon American taxpayers who pay the
cost of this wasteful, repressive Forest Service litigation.

251.56 Terms and conditions.
(e) Bonding.
251.57 Rental Fees.
These provisions exempt "noncommercial group events and
noncommercial distribution of printed material" from payment of security
bonds or use fees. This is appropriate in itself, but the determination
rests upon such vague definitions that "noncommercial" is defined in terms
of "commercial," and "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. Definitions like
these are so sweeping, the loopholes so huge, that the Agency can assume
virtually unbridled power to impede activities on public land by imposing
undue financial burdens on prospective users.

Given the Agency's notable propensity to "rigidly enforce" (Rainbow
at 328) strictures against group events, one cannot discount the possibility
that the Agency might easily employ its vaguely crafted "non-
commercial/commercial" semantic hybrid as a pretext to terminate a
displeasing group event.

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. For example, assuming a permit is granted for a
noncommercial group event, and an officer discovers a couple of individuals
trading, or one individual accepting donations, may he classify the group
as a "commercial event?" If so, would all members of the group that had
been issued the noncommercial authorization stand in violation of 36 CFR
261 and be subject to imprisonment?

There is a further danger that this could be used as a pretext to
justify physical incursion by officials into a group event in progress, and
open it to selective enforcement against participants. Could finding an
event in violation of a special use authorization be construed as 'probable
cause' for illegal searches, seizures, and detention? Regulations have been
used this way in the past. As such this provision would open the door to
abuse of Fourth Amendment projections on a massive scale.


Subpart A -- General Prohibitions
261.2 Definitions.
The definitions for "Distribution of printed material" and "Printed
Material" 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. However it is worth emphasis that these terms
are added to the list of Special Use Prohibitions for the first time under
this proposed CFR amendment.

It is shocking enough that, under the mantle of forest regulation, the
Agency presumes to abridge the rights to disseminate the written word and
circulate petitions. That they do so in blatant defiance of Federal Court
rulings in direct precedent cases is an outrage. This attitude of insistent
disrespect of judicial opinion bespeaks a repressive intent and capricious
temperament warranting deeper scrutiny and, if all else fails, political

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 "...delaying, halting, or preventing administrative ... or
other scheduled or existing uses" creates an extremely broad spectrum 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.

In the first place, actions of "delaying, halting, or preventing
administrative use of an area" are evils which can be remedied under
existing regulations.

Similarly, although "misrepresentation" is also proscribed 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." FR, pg. 26946.
However this particular prohibition also amounts to a "prior restraint on
the exercise of First Amendment liberties...;" and prior restraint has
repeatedly failed 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 any administrative purpose that would explain this rule.

The rule would have an especially harsh impact upon "consensual
gathering" events, wherein no individual can fairly be assigned liability for
the purposes or affiliations of other participants, simply because each
individual is responsible for their own actions. Since no one individual can
reasonably be expected to have foreknowledge of the actions of others, in
the diverse and multifarious situation of a consensual gathering, it is
impossible to foretell or itemize the infinite combination of activities, or
participants, possible when 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, the
proposed rule reveals an especially capricious intent, with chilling effects
upon First Amendment rights.

Further Observations

In assuming authority to impose event permits and fees in National
Forest areas, the Forest Service builds its position upon similar authorities
in urban areas -- this is the direct premise that is implied. 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 (traffic,
parking, neighborhoods, etc.), 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 that Agency is responsible for maintaining an improved and
accessible area, and providing support services to the tourist public as
"scenic consumers." It is also plausible in that context to levy fees upon
actual users of National Parks, rather than rely upon full subsidy by the
taxpayers at large.
In contrast, a "group event" in a remote National Forest imposes no
impacts on proximal public uses -- by definition and intent! Moreover to
the extent that any support services are actually required, realistically
they fall well within the scope and scale of normal agency operations.
While it is true 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 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 should 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.

The 'Background' discussion in the Federal Register (FR 58/86, pg.
26940) present these amendments as if in response to some perceived
mandate from the Israel court.

"...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)."

As suggested above, 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 a few scattered instances:

Beside Texas, 1988, Rainbow Gatherings have routinely suffered
harassment and obstruction throughout their 22-year history. While
Rainbow Gatherers have cooperated well with local Rangers, the Forest
Service as an agency has deferred to zealous law enforcement and political
sediments in sanctioning a pattern and practice of roadblocks, searches,
seizures and petty arrests against the Rainbows; all tactics not universally
applied by the Agency against all group users. Considering just a few
incidents of the recent history:

-- Large squads of Vermont state troopers were transferred to the area of
the 1991 gathering in that state, jamming local hotels and roads. Police
activities were so disruptive and disturbing that, according to the Forest
Service's 1991 Rainbow Gathering Report, local Vermonters complained of "an
unnecessary show of authority that turned their community into a police
state." Id. pg. 26.

-- In Colorado in 1992, vehicles arriving in the area of the Gathering were
afflicted with citations, searches, and some arrests. It is also widely
reported by people attending the Colorado Gathering that the event was
infiltrated by agents of the Drug Enforcement Administration disguised in
Forest Service uniforms.

-- In 1993 there were two major Rainbow Gatherings, both experienced
major unpleasant incidents:

In Kentucky a police roadblock was placed within 1/4-mile of the
parking and 'Welcome Home' area. Many people were subjected to
indiscriminate videotaping, spot inspection and full ID check (license,
registration, and insurance). Some people without proper papers were
incarcerated. There was also a group police incursion, involving agents
from several different law enforcement agencies and members of the
National Guard, and heavy helicopter traffic in the area of 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. It was reported that one
woman was taken into custody, physically and sexually harassed, after
photographing a group of police officials.

The list is long, including many, many stories of harassment, dirty
tricks, intimidation and abuse. The point is straightforward: While officials
deny that the pending regulations are targeted against any particular
group, the entire record indicates that only what Agency documents label
as "counter-culture groups," groups which the Agency recognizes as being
"bound together by their common belief and desire for peace, love and
respect for the planet Earth and all its inhabitants" (Rainbow Gathering
Report, 1991, pg. 16) are likely to be affected.
Selective Forest Service enforcement is undeniable. 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 the 1988 amendments attempted to stop the Texas

"[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
Gathering]. See 53 Fed.Reg. 16548 (May 10, 1988), amending 36
C.F.R. 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 once again trying
to sneak substantially the same rules -- subtly modified for the fourth time
-- into law.

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 "counter-culture groups." As such, the pending rules pose serious
implications under the equal protection clause of the Fourteenth Amendment.


Citing authorities under USDA procedures and Executive Order 12291,
the Forest Service, without offering any rationale, unilaterally declared it
had determined that this regulation would not be a "major rule." Instead
the rule is characterized as merely "...technical and administrative changes
for authorization of occupancy and use of National Forest System lands."
In so doing the Agency manages to evade the fuller scrutiny which a
Regulatory Impact Analysis would entail for a new major rule.

Several factors pose questions as to the validity of exempting this
rule from "major rule" requirements. First, the factual grounds for stating
"...this proposed rule would have little or no impact on the national
economy" are not indicated. FR, pg. 26944. Additionally, there is no
consideration of factors that would be challenged in a Regulatory Impact
Analysis or a Regulatory Flexibility Analysis, nor are the "...criteria for
making such determinations" described as required. E.O. 12291, Sec.
3(a)-(b). In the same vein the Forest Service pointedly ignores other
pivotal issues:

"...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." Executive
Order 12291, Sec. 3(d)(2).

According to the 'General Requirements" of the Order (Section 2), the
benefits of a regulation must not be outweighed by the costs.By this
test the rule would be found to bear serious "adverse effects" upon the
free exercise of basic Constitutional rights. While the loss of freedom
certainly "cannot be quantified in monetary terms," the Agency failed to
consider this most serious adverse impact.

"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.

Here is a reasonless, redundant rule, which strikes directly at the
heart of free thought by providing criminal imprisonment as an enforcement
mechanism to preclude or punish assemblies that promote diversity of ideas.
A regulatory scheme that directly attacks the central pillars of democracy
seems a "cost" far too steep for any democratic society to bear. Thus, it
should be considered whether the "major rule" test is only a subtle
rationale for ducking meaningful review of agency actions with potential
catastrophic social impacts.


In closing, it is our contention that in the aforementioned respects,
and others, the Forest Service proposal fails to meet the criteria of the
Constitution of the United States, the Administrative Procedure Act and
Executive Order 12291. The record in this case reflects a regulatory
scheme, adverse to the supreme laws of the nation, exemplifing that serious
flaw in the process of logic which results in the emergence of police-state
social structures. Consequently we exhort review by appropriate legislative
bodies, and urge that -- by legislation if necessary -- these unneeded
Orwellian strictures be firmly and finally disallowed.

Respectfully submitted,

People for Compassion and Understanding
Contact: S.Addison, W.Thomas
P.O. Box 2721
Washington, D.C. 2038
(2002) 462-0757
November, 1993

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