Comment:Nine respondents commented on this provision. One respondent stated that this
provision should be dropped because there is no connection between the applicable
forest plan and activities covered by the proposed rule and because forest plans are
too inflexible to accommodate short-term uses. Another stated that the provision is
vague and has no bearing on time, place, and manner and that when a proposed activity
is not compatible with the applicable forest plan, the agency should change the plan.
One respondent stated that the Forest Service should not adhere to the applicable forest
plan when a group wishes to gather on a logging road or unreclaimed clear-cut to protest
the agency's logging practices. One respondent commented that the proposed rule did not
mention that the agency is having problems upholding standards and guidelines in forest
plans. One respondent stated that this provision would restrict what type of activities
could occur at gatherings. Another commented that a group could be denied use of an area
because of past abuse by other groups.
One respondent noted that forest plans do not expressly limit or prohibit group uses
but merely set overall guidelines for applying specific environmental and performance
standards, with which group uses must conform. This respondent stated that it is the
agency's duty to inform applicants of all relevant forest plan provisions and to ensure
consistency of proposed activities with standards and guidelines in forest plans.
One respondent stated that this provision does not contain specific and objective
standards for ensuring consistency with forest plans. Another respondent commented that
this provision as written could indirectly allow restrictions on use based on the
content of expressive activity. This respondent suggested that the agency clarify the
provision to require consistency of the proposed activity with the management
restrictions for the proposed area under the applicable forest plan.
Section 251.54(h)(1)(ii) of the proposed rule required
an authorized officer to determine that a proposed activity was
consistent or could be made consistent with the applicable forest
plan required pursuant to 36 CFR part 219.
The Department agrees that forest plans do not prohibit authorization of
noncommercial group uses.
Rather, forest plans set standards and guidelines with which
all uses of National Forest System lands, including authorization of noncommercial
groupuses, must conform. Thus, requiring that authorization of noncommercial group uses
be consistent or can be made consistent with the standards and guidelines in forest
plans for the national forests is a valid time, place, and manner restriction.
The National Forest Management Act (NFMA) requires that ``permits * * * and other
instruments for the use and occupancy of National Forest System lands shall be
consistent with the land management plans'' (16 U.S.C. 1604(i)). This provision is
content-neutral. A proposed activity is consistent with a forest plan if it adheres to
a plan's standards and guidelines that are forest-wide or that are included in
management prescriptions for the specific management areas where the activity will
occur. Standards and guidelines in forest plans describe any activities that are not
permitted to occur in a specified area or prescribe how activities must be implemented
for environmental protection or other purposes.
Forest plans are developed in accordance with the rules at 36 CFR part 219 and
adopted following extensive public participation and comment. It is not practicable to
write a forest plan that can accommodate every conceivable use at every conceivable site
at every conceivable time of the year. The standards and guidelines in forest plans
apply to all instruments for the use and occupancy of National Forest System lands, from
timber sale contracts to grazing permits, regardless of whether the activity involves
the expression of views. In reviewing an application for a noncommercial group use, an
authorized officer will determine whether authorization of the proposed activity at the
time and place requested is consistent or can be made consistent with the applicable
forest plan based on the information provided under Secs. 251.54(e)(2)(i) (A) through
NFMA requires that permits and other instruments for use and occupancy of National
Forest System lands be consistent with the applicable Forest plan (16 U.S.C. 1604(i)).
The Department has added ``authorization of'' before ``the proposed activity'' in Sec.
251.54(h)(1)(ii) of the final rule to reflect the requirement in NFMA that authorization
of the proposed activity, rather than the authorized activity itself, be consistent with
the applicable forest plan.
Listing of Comments
FS Regulation Page