General Comments


Section 251.54(h)(1)(iii) of the proposed rule required an authorized officer to determine that a proposed activity would not delay, halt, or prevent administrative use of an area by the Forest Service or other scheduled or existing uses or activities on National Forest System lands, including but not limited to uses and activities authorized pursuant to parts 222, 223, 228, and 251 of this chapter.

Approximately 35 respondents commented on this provision. Eight respondents commented that this provision is vague generally and gives an authorized officer too much discretion. Specifically, these respondents stated that denying a permit because it conflicts with another use or because it cannot reasonably be accommodated at the time and place requested allows for two much discretion on the part of the authorized officer; that the provision should be dropped because it is no better than a similar criterion that was struck down by the court in the Rainbow Family case; that under United States v. Rainbow Family, 695 F. Supp. at 312 n.6, this provision vests too much discretion in the authorized officer to propose an alternate time or place; that the agency could ensure that administrative uses are always scheduled at the same time as any proposed activity or deem existing or scheduled uses to be incompatible with the proposed activity, even if they are not; that this provision would allow the Forest Service to deny a permit if the agency thinks that a proposed activity, such as a group protest or distribution of literature at or near a recreation, logging, or mining site, might interfere with any other uses or activities; that it is unclear how a determination could be made without regard to the content of expressive activity; that under a worst-case scenario, this provision could induce an authorized officer to deny access to a site; and that the examples given in the preamble of the proposed rule of how this criterion would be applied are insufficient to remove the vagueness in its wording.

One respondent stated that statutes and other regulations exist to deal with conflicts among users, such as 18 U.S.C. 1863, which allows the agency to restrict access to areas of the national forests, 36 CFR part 261, which allows the agency to issue orders restricting certain types of conduct, and 36 CFR 251.54(i)(1), which allows the agency to avoid conflicts among commercial uses and activities.

Six respondents commented that often minor changes can be made to scheduled and existing uses to avoid conflicts with proposed activities. Two respondents commented that minor, temporary arrangements are easily made and have been made many times by prior informal agreement to address the question of allocation of space. One of these respondents stated that forest plans are built on the concept of balancing interests in an ongoing multiple-use scenario, but that the regulations blurs the fundamental difference between permanent or consumptive uses and transitory group uses, which by their nature do not compete with other uses and activities for use of National Forest System lands.

Six respondents commented that the exercise of constitutionally protected rights should have priority over all other uses. One of these respondents felt that the interests of thousands of people should take precedence over the grazing of cattle. Four others stated that gatherings have proceeded after negotiation and development of operating plans, but that if these plans fail, a court order might be appropriate.

Twelve respondents stated that other uses are given priority over the exercise of constitutionally protected rights. One of these respondents stated that a permit for a gathering could be denied if a timber sale or grazing were scheduled for the same time and place. Another noted that cattle were moved to accommodate the 1984 Rainbow Family Gathering.

One respondent commented that this provision is unnecessary because there are no conflicts among Rainbow Family members. Another stated that no group, including the Rainbow Family, would camp in areas where logging activities are in progress. One respondent commented that the rationale of avoiding traffic congestion is inadequate because there are no traffic jams in the national forests.

Three respondents stated that those who gather should be respectful of others.


The Department believes that this criterion is narrowly tailored and specific and that it constitutes a valid restriction on time, place, and manner.

In contrast, the rule struck down in United States v. Rainbow Family provided that an application for a First Amendment activity could be denied if the activity conflicted with a previously approved use or if it would be of such nature or duration that it could not reasonably be accommodated at the place and time requested (49 FR 25449).

To address the court's concern, the Department has abandoned the unconstitutionally vague criterion that allowed an authorized officer to deny an application for a noncommercial group use on the grounds that it cannot reasonably be accommodated in the time and place requested or that the proposed use might interfere orincompatible with scheduled or existing uses.

In contrast to the earlier rule, under Sec. 251.54(h)(1)(iv) of the final rule, an application may be denied only if the proposed activity would delay, halt, or prevent administrative use of an area by the Forest Service or other scheduled or existing uses or activities on National Forest System lands. This narrow, specific, content-neutral criterion is intended to allow the Forest Service to allocate space in a manner that is both fair and consistent with the agency's multiple-use mission. The intent is not to prevent demonstrations; the intent is to ensure that demonstrations can coexist with other authorized uses and activities on National Forest System lands, including endangered, threatened, or other plant and animal species.

Moreover, under this rule the Forest Service cannot manipulate administrative use of an area to ensure that this use coincides with a proposed activity to which some might object. Administrative use of an area by the Forest Service is based on actual need.

In the proposed rule, the agency provided specific examples of how a proposed activity could delay, halt, or prevent scheduled or existing uses and activities for purposes of this criterion. Specifically, under Sec. 251.54(h)(1)(iv) of the final rule, an authorized officer might require a large group to alter arrival and departure times or to use an alternative access route to avoid congestion. On the opening day of fishing season, an authorized officer might suggest a site removed from popular fishing areas for the same reason. This criterion also allows the Forest Service to ensure that a group is not authorized to use a site that is already being used as pastureland under a grazing permit or that is currently being logged under a timber sale contract.

The Forest Service has had difficulty in allocating space among noncommercial group uses and other uses and activities on National Forest System lands. While the Forest Service has generally resolved these types of conflicts successfully, the agency has had to expend considerable time and resources in the effort. The Department believes that these types of problems can be solved more efficiently, more effectively, and more fairly through the issuance of special use authorizations for all special uses, including noncommercial group uses.

One example of this type of allocation problem occurred at the 1992 Rainbow Family Gathering. One of the main access roads to the site of the 1992 gathering was scheduled to be used as a timber hauling route during the gathering. Because of the amount of traffic associated with the gathering, the Forest Service believed that the safety hazard was too high to allow logging trucks to use the access road. Consequently, the agency required the timber purchaser to use an alternate haul route, which resulted in higher costs to the timber purchaser and potentially higher costs to the government. As shown by the reports on the 1991 and 1992 Rainbow Family Gatherings, parking and traffic congestion are additional transportation issues associated with large group gatherings at sites with limited access.

At the 1992 Rainbow Family Gathering, the Forest Service specified that parking would not be allowed at a particular site because of safety risks (the site was located on a timber haul route) and prior agency commitments made to other users (livestock was scheduled to use the site). Ample alternative parking closer to the gathering was available. Nevertheless, the Rainbow Family directed gatherers to the site. By the time the Forest Service issued an order closing the site to parking and camping, 91 vehicles were parked at the site. Forest Service officials explained the agency's reasons for issuing the closure order at a council meeting of approximately 50 members of the Rainbow Family. Although more than half the vehicles were removed by the next day, 20 to 30 Rainbow Family members staged a civil disobedience protest of the closure order. Gatherers continued to remove vehicles from the area gradually, but the agency had to tow five vehicles from the site. The Department believes that this type of problem could be prevented or more quickly resolved through the special use authorization process.

In addition to this parking problem, in July 1993, a group called ``We The People'' selected for a gathering a site that had been authorized since 1955 for use by the Mississippi National Guard for military training purposes. Within the permitted area of 45,000 acres were significant amounts of unexploded ordnance. ``We The People'' chose to camp near an area where the National Guard was performing tank maneuvers. The group selected the site in order to protest use of the national forests for military training and exercises. The management challenge faced by the Forest Service was how to allow the group to conduct its protest without sustaining serious injury and without preventing the National Guard from exercising its privileges under its special use authorization. After several days of negotiations and coordination among all concerned parties, the gathering and protest occurred without conflict with the National Guard or injuries to either group.

These examples illustrate the kind of conflicts that can occur among uses and the need for a special use authorization process for noncommercial group uses to resolve those conflicts more quickly and effectively. Making minor changes or entering into informal agreements is an inadequate or inefficient way to resolve issues pertaining to allocation of space for all uses and activities on National Forest System lands. Other laws and regulations, particularly regulations such as 36 CFR 251.54(i)(1), which do not apply to noncommercial activities, do not give the Forest Service notice of the issues addressed in Sec. 251.54(h)(1)(iv) of the final rule and thus do not allow the agency to allocate space fairly among competing uses and activities. A special use authorization process gives the agency a managerial tool to address these problems more expeditiously, more effectively, and more equitably.

Section 251.54(h)(1)(iv) of the final rule does not give the authorized officer too much discretion to propose an alternate time and place. The criterion in the 1984 rule struck down by the court in the Rainbow Family case was unconstitutionally vague and overbroad in that it allowed an authorized officer to deny an application if it could not reasonably be accommodated at the time and place requested. In footnote 6 of the opinion, the court's point was that providing for an alternative site or time if an application was denied under this criterion could not cure its constitutional infirmity. 695 F. Supp. at 312 n.6. The court quoted Schneider v. State, 308 U.S. 147 (1939), for the proposition that ``[o]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.'' Id. at 163 (emphasis added). If the provision in question is, like Sec. 251.54(h)(1)(iv) of the final rule, a valid time, place, and manner restriction and the site requested does not meet that restriction, providing that an alternative site or time will be offered enhances rather than diminishes the constitutionality of the rule. Providing for alternative sites and times ensures that ample alternative channels will be available for communication of information, as required by Clark v. CCNV.

The Forest Service is charged with managing the resources of the National Forest System for multiple uses. MUSY authorizes the Forest Service to managecommercial and noncommercial uses of National Forest System lands (16 U.S.C. 528-531). The Department believes that all special uses, commercial and noncommercial, both involving and not involving the expression of views, should be treated consistently and fairly.

The Department does not intend to give priority to any use or activity in processing applications under this rule. Applications for special use authorizations will be processed in order of receipt under Sec. 251.54(f)(5) of the final rule, and the use of a particular area will be allocated in order of receipt of fully executed applications, subject to any relevant limitations in Sec. 251.54.

Section 251.54(h)(1)(iv)

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