Comment:Four respondents recommended dropping the age limitation in this provision. These
respondents believed that the age limitation prevents persons under the age of 21 from
exercising their First Amendment rights, and that the agency should lower the age limit
to 18 or drop it altogether; that those under the age of 21 would not be able to gather
unless the ideas they espouse have been adopted by someone 21 years of age or older;
that the provision discriminates against citizens under the age of 21, who will not be
able to gather in groups of 25 or more; that this provision establishes a restriction
on First Amendment activity that does not apply to other activities, since younger
people can still go camping in small groups without a permit, which could present equal
or greater risks to the resource; and that although each Rainbow Family member could
get his or her own permit, then no one under the age of 21 could attend the Gathering.
Approximately 19 respondents indicated that it is not appropriate to make one
individual responsible for an entire group. Specifically, these respondents stated that
individual group members will no longer be responsible for themselves; that individuals
should accept responsibility only for themselves; that it is reasonable for a group to
give a person's name in the spirit of cooperation, but that it is not reasonable to
require one person to assume responsibility for others; that a group should take
responsibility for itself, and that if one person signs a permit, the group's solidarity
will be broken; that this requirement is unreasonable if a group is not a legal entity
and acts by consensus rather than by hierarchy; that if no representative from the group
will sign because the group has no leader and because decisions are made by consensus,
the Forest Service could find anyone 21 years of age or older or a representative from
a different group to sign the permit, thus circumventing the process of decisionmaking
by consensus; that individuals in the group will lose their autonomy; that those
individuals who are responsible for any damage could make restitution with the aid of
the whole group; that this requirement is particularly inappropriate where a group
hesitates on philosophical grounds to appoint agents or representatives to speak on its
behalf, and that the agency has said that it is unreasonable and impracticable to deal
separately with each member of a large group, but that there is no reason for such a
group to alter its philosophical grounds unless the agency shows that it has had to deal
separately with each group member; that certain religious practices do not recognize
a leader who takes responsibility for the group; that making one individual responsible
for a permit makes the activity seem like a commercial venture.
Two respondents commented that this provision is unenforceable against the Rainbow
Family because they have no leader. One of these respondents stated that no member of
the Rainbow Family can speak for, sign for, or be held responsible for another.
Section 251.54(e)(2)(i)(E) of the proposed rule
required applicants to provide the name of the person or persons 21
years of age or older who will sign a special use authorization on
behalf of the applicant.
The Department believes that the age limitation in Sec. 251.54(e)(2)(i)(E)
of the final rule is a reasonable time, place, and manner restriction.
is necessary to ensure that those who are designated to sign and who do sign a special
use authorization on behalf of a group are of the age of legal majority. The signature
gives the authorization legal effect. If the person or persons who sign the
authorization are not of the age of legal majority, the authorization is not legally
enforceable. Since the age of legal majority is not the same in every state but in no
state exceeds the age of 21, the final rule requires that the person or persons who are
designated to sign and who do sign a special use authorization be at least 21 years of
The Department does not believe that this age limitation imposes an undue burden
on the exercise of First Amendment rights by those under the age of 21. The final rule
does not prohibit groups of 75 or more people under the age of 21 from gathering in the
national forests, nor does the final rule require that these groups include a person
21 years of age or older. Rather, the final rule requires that a person or persons 21
years of age or older be designated to sign a special use authorization and that that
designated person sign an authorization on behalf of the group.
It is not appropriate or necessary for each member of a group to sign a special use
authorization. It is also not appropriate or necessary for one member or a few members
of a group to assume personal responsibility for the actions of other group members.
Individual group members are personally responsible for their own actions. A person who
signs a special use authorization for a noncommercial group use acts as an agent for
the group, but does not assume personal responsibility for the group's actions.
However, it is appropriate and necessary to ensure that a 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 requiring a person or persons to sign a special use
authorization as an agent or representative of the group. Requiring that a person or
persons sign the special use authorization on behalf of the group will not weaken the
group's solidarity; on the contrary, this requirement can serve to enhance the group's
solidarity by ensuring that the group will take responsibility for its actions. By
signing a special use authorization on behalf of the group, the agent or representative
gives the authorization legal effect and subjects the group to the authorization's terms
In addition, the Forest Service needs to have someone to contact for purposes of
special use administration. The authorized officer may have questions about the
application or may need to notify the applicant in the event of an emergency. If the
application does not identify a contact person, the Forest Service cannot make the
As shown by the reports on the 1991 and 1992 Rainbow Family Gatherings, if a group
does not designate a representative or representatives, the Forest Service has to deal
separately with various individual members and subgroups. Informal agreements made with
one individual member or sub-group are not always respected by other group members,
which makes it difficult for the agency to obtain commitments from the group as a whole.
The special use authorization process will allow the agency to obtain commitments from
the Rainbow Family that apply to the group as a whole.
Non-members of a group cannot sign a special use authorization on behalf of a group
unless they are designated by the group to act as its agents or representatives and are
authorized to make the group responsible for the actions of its members as a whole.
Requiring a group to designate a person or persons who will sign a special use
authorization on behalf of the group does not make a group use a commercial venture
under this rule. Under the final rule, a group use is a commercial use or activity if
an entry or participation fee is charged or if the primary purpose of the activity is
the sale of a good or service, and in either case, regardless of whether the use or
activity is intended to produce a profit. All groups, both commercial and noncommercial,
should be responsible for the actions of their members as a whole that relate to the
use and occupancy of National Forest System lands.
The Department believes that it is both fair and appropriate to apply this provision
to all applicants, including groups like the Rainbow Family that make decisions by
consensus. The group can, for example, designate a representative or representatives
who can sign a special use authorization on behalf of the group. Groups that make
decisions by consensus could select a representative through that decisionmaking
As one respondent noted, 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 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. Moreoover, 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 thereforereasonable to believe that the Rainbow Family
could designate a person or persons to sign a special use authorization on behalf of
the group as provided in Sec. 251.54(e)(2)(i)(E).
Having considered the comments received, the Department has retained without change
Sec. 251.54(e)(2)(i)(E) in the final rule.
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