General Comments
Comment:
Section 251.54(e) of the existing rule specifies the
information that must be contained in an application for a special
use authorization.
The proposed rule amended Sec. 251.54(e)(1) to
specify applicant identification requirements applicable to all
special uses. Specifically, Sec. 251.54(e)(1) of the proposed rule
required an applicant for any type of special use authorization to
provide his or her name and mailing address, and, if the applicant
is not an individual, the name and address of the applicant's agent
who is authorized to receive notice of actions pertaining to the
application.
Two respondents noted that it makes sense to require applicants to provide their
names and mailing addresses so that the Forest Service will be able to contact
applicants and send them their permits. One of these respondents also stated that there
would be no need for this provision if a permit were not required. The other commented
that providing a name in a cooperative spirit and signing a permit are two different
matters.
One respondent stated that the requirement for an applicant's address discriminates
against the homeless.
Approximately 25 respondents commented that the Rainbow Family has no leader who
can act as agent for the group. These respondents stated that Rainbow Family Gatherings
are often spontaneous and that the group lacks the requisite hierarchy; that this
provision infringes on freedom of speech by requiring the Rainbow Family to retreat from
one of its fundamental principles--i.e., lack of hierarchy--in order to gather in
practice of that principle; and that this provision violates the Rainbow Family's tribal
sovereignty and spiritual integrity and is equivalent to asking the Catholic Church to
submit an application to have a Mass.
Response
The proposed rule amended Sec. 251.54(e)(1) for clarity by reorganizing
its contents.
No amendment in substance was made. These comments address a provision
in existing Sec. 251.54(e)(1) that was not proposed for amendment and which is therefore
beyond the scope of this rulemaking.
For administrative purposes, it is necessary to require an applicant for any kind
of special use authorization to provide his or her name and mailing address, and, if
the applicant is not an individual, the name and address of the applicant's agent.
Without that information, the Department has no way of contacting the applicant
concerning the content or disposition of the application. This provision does not
discriminate against anyone because it applies to any applicant for any type of special
use authorization.
As discussed in response to comments on Sec. 251.50(c), this regulation also does
not impose an undue burden on free exercise of religion. Religious groups, including
the Catholic Church, have applied for and obtained permits in order to hold services
on public lands. See e.g., O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979) (National
Park Service permit authorizing outdoor Mass conducted by Pope John Paul II on National
Mall).
The Department believes it is both fair and appropriate to apply this provision to
all applicants, including the Raimbow Family. Even if the Rainbow Family has no leader,
members of the group can still designate a representative who can receive notice of
actions pertaining to an application for a special use authorization. For example,
several respondents commented that the Rainbow Family engages in decisionmaking by
consensus and that councils meet to make decisions that affect the group. Thus, one of
these councils could select a representative for the purpose of Sec. 251.54(e)(1).
The court in United States v. Rainbow Family held that the Rainbow Family is an
unincorporated association that can sue and be sued. 695 F. Supp. at 298. The court also
held that service of process upon the Rainbow Family was properly effected in that case
by service upon several individuals who acted as agents or representatives of the
Rainbow Family. Id. Moreover, in 1987, representatives of the Rainbow Family signed a
consent judgment in a suit brought by the Health Director of the State of North Carolina
against the Rainbow Family for failure to obtain a permit under the State's mass
gathering statute. It is therefore reasonable to believe that the Rainbow Family could
designate a person or persons to receive notice of actions pertaining to an application
for a special use authorization.
Section 251.54(e)(2)(i)
Listing of Comments
FS Regulation Page