FOLLOW-UP QUESTIONS AND ANSWERS
Continued

23. What types of conditions for such issues as sanitation can be included in the operating plan?

The Temporary Special Use Permit Form provides that the holder shall maintain the improvements and premises covered by the permit to standards of repair, orderliness, neatness, sanitation, and safety acceptable to the authorized officer. See FS-2700-25, clause 7. Likewise, the operating plan should specify the objectives or standards, rather than the means, with respect to sanitation and other management issues.

Some groups may not be able to afford certain equipment such as portable toilets. Requiring them when other measures could accomplish agency objectives could be viewed as establishing unconstitutional conditions on approval of the use. Courts could view this approach as placing a price tag on expression and hold that the permit system as applied is an unconstitutional prior restraint. See question 8 on recovery of costs associated with NEPA compliance and question 37 on fees, bonding, and insurance.

In addition, it should be noted that on the videotape for the rule it was stated that the agency will provide sanitation facilities for noncommercial group uses. what was intended was that the agency may require sanitation facilities for group uses, consistent with the above.

24. Is it acceptable for a permit holder to exclude others?

The permit authorizes non-exclusive use, in the sense that the permit holder and the agency cannot prevent others from coming to the authorized site. See 36. CFR 251.55. For example, a group of demonstrators issued a permit cannot prevent counterdemonstrators from protesting at the same site, as long as they do not delay, halt, or prevent the permit holder's demonstration. However, an application generally may not be denied because a proposed activity itself would exclude certain people, since Title VI generally does not apply to noncommercial group use of National Forest System lands. See question 14 in the communication plan for the final rule.

Definition of "Group Use"

25. What is our responsibility if a group is under 75 initially but increases to 75 or more because others are engaging in a counterdemonstration or because people are stopping to watch the activity?

The rule defines "group use" as an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators. Applicants should estimate the expected number of participants and spectators at their activities. These estimates may be based on past experience or on how many have expressed interest or have committed to participate. For example, if it is reasonable to expect that a group under 75 engaging in a protest will grow to 75 or more demonstrators or counterdemonstrators, a permit is required.

However, groups should not be held accountable for unrelated and uninvited outsiders who are attracted to an activity. See 60 Fed. Reg. 45270 (discussing why the phrase "and/or attracts" was deleted from the definition for group use). Therefore, if a group under 75 grows to 75 or more because people stop to watch the activity, a permit is not required.

26. How do we handle activities where the participants are outside our jurisdiction and 75 or more spectators are inside?

In order to qualify as a "group use," an activity must be conducted on National Forest System lands. Therefore, if the participants are entirely off National Forest System lands, a permit would not be required. A permit would be required if the participants are partly or entirely on National Forest System lands. The permit would cover the portion of the activity that occurs on the national forests.

Groups of Less Than 75

27. Will noncommercial groups of less than 75 no longer be issued a permit even if the authorized officer has resource concerns?

Other than certain groups in wilderness areas (see question 28), noncommercial groups of less than 75 will no longer be issued a permit. Based on a review of comments on the numerical threshold in the proposed rule and the agency's experience with all types of noncommercial group uses on National Forest System lands, the agency determined that a 25-person threshold is too low and that 75 people is a more appropriate threshold for applicability of the rule. See question 3 in the communication plan for the final rule.

28. Will the new rule override group limits established in wilderness areas?

No. Wilderness areas are subject to special statutory and regulatory requirements prescribed by or in conformance with the Wilderness Act.

29. Can an authorized officer issue a letter of agreement to groups of less than 75?

No. Under the rule, noncommercial groups of less than 75 do not require authorization, either in the form of a permit, letter of agreement, or memorandum of understanding, from the Forest Service.

30. Do groups of less than 75 still requite a permit for engaging in federally-funded military activities on National Forest System lands?

Yes. These uses should be authorized as they have been in the past. They are not recreation special uses (the use code is 431, "military training area") and are not subject to the new rule.

Definition of "Commercial"

31. Is a recreation event considered a commercial use under the rule?

Yes. Under the rule, a commercial use or activity is defined in part as any use or activity on National Forest System lands where an entry or participation fee is charged, regardless of whether the use or activity is intended to produce a profit. An entry or participation fee is charged for recreation events. See 60 Fed. Reg. 45269 (explaining difference between "noncommercial group use" and "recreation event")

32. Is a commercial use permit required if the charging of an entry or participation fee or the sale of a good or service occurs off National Forest System lands?

Forest Service regulation of either commercial or noncommercial uses is triggered by use and occupancy of National Forest System lands. Therefore, a commercial use permit is required if the activity is conducted on National Forest System lands and involves an entry or participation fee or has as its primary purpose the sale of a good or service, even if the charging of the fee or the sale occurs off National Forest System lands.

For example, if a business rents equipment on private land and provides maps of recommended routes on National Forest System lands, the business would not require a commercial use permit because the activity is not conducted on National Forest System lands. A permit would be required if the business rented equipment on private land and provided guiding services on National Forest System lands or delivery or pickup of equipment at sites on National Forest System lands. See FSH 2709.11, sec. 41.53d, para. 2, for when outfitting and guiding permits are required.

If a commercial promoter organizes an event to be held on National Forest System lands and sells an event package as a prerequisite to participation in the event that includes a route guide and other logistical information, a commercial use permit would be required, even if the event package is sold off the National Forest System. The activity will be conducted on National Forest System lands, and selling the event package in this scenario is equivalent to charging an entry or participation fee. If purchasing the package is not a prerequisite to participation and no entry or participation fee is charged, a commercial use permit would not be required.

33. Who has the burden to show whether a group is engaging in a commercial or noncommercial activity? Can the agency require the group to provide financial records if there is a question as to the group's status?

The agency has the burden to show whether a group is engaging in a commercial or noncommercial activity. The agency may request rather than require that a group provide financial records and other information that may assist in making this determination.

36 CFR 251.50(a) and 36 CFR 251.50(d)

34. Does 36 CFR 251.50(d), which provides that a permit is not required for the use of forest development roads and trails, prevent the agency from issuing a Permit under CFR 251.50(a) for Uses and activities that occur on forest development roads and trails?

No. Section 251.50(d) prevents the agency from requiring a permit strictly for the use of roads and trails, i.e., for transit over roads and trails commonly used by the public as a means of travel between two places. Section 251.50(a) authorizes the agency to issue permits for commercial uses and noncommercial group uses of National Forest System lands, regardless of where these activities occur on the National Forest System. Thus, under section 251.50(a), what is being authorized in the case of outfitting and guiding, recreation events, and noncommercial group uses that occur entirely or partially on forest deveLopment roads and trails is not use of the roads and trails, but rather the activity itself. Another way to look at it is that section 251.50(d) does not allow the agency to require a permit for typical use of forest development roads and trails. Uses authorized Under 251.50(a) that occur on forest development roads and trails are not typical.

Sites authorized Under the LWCFA and G-T

35. Can fees still be collected for noncommercial under the Land and Water group use of developed sites Conservation Fund Act (LWCFA)? Can groups still reserve fee sites?

Yes to both questions. The LWCFA is a Separate authority. The rule does not apply at developed recreation sites where use is allocated Under a formal reservation system and where the agency has the authority to manage and to Charge a user fee to the public under the LWCFA. Fee sites should be managed as they have been in the past. Fees collected should be deposited into the LWCF.

Fees, Bonding, and Insurance

36. Why will no fees, bonding, or insurance be required under the rule?

Courts have held that fees, bonding, and insurance required under a permit system constitute an unconstitutional prior restraint of speech. In other words, requiring fees, bonding, and insurance has been viewed as placing a price tag on speech in violation of the First Amendment. See question 13 in the communication plan for the final rule.

37. What will happen when the Forest Service and a noncommercial group that was not required to have insurance are sued in connection with the group's use and occupancy?

This is a determination that will be made on the facts of each case. The regulations at 36 CFR 251.56(d)(1) and the Temporary Special Use Permit require holders to indemnify the Forest Service for damages incurred as a result of the holder's use and occupancy. In addition, the government has an array of potential defenses to liability.

Noncommercial Distribution of Printed Material

38. Can the agency restrict noncommercial distribution of printed material to certain locations at high-profile areas?

No. The agency does not have the authority to regulate noncommercial distribution of printed material, unless 75 or more people are engaging in the activity. The agency may enforce prohibitions at 36 CFR Part 261 that may apply in this context.

New Rule, FSM, and FSH

39. The Manual states that permit termination is not appealable, but the new rule provides that termination of permits for other than noncommercial group use is appealable. Explain.

While the Forest Service Manual (FSM) provides that permit termination is not subject to appeal, the regulations at 36 CFR 251.60 in effect before the new rule was published provided that permit termination was appealable. Regulations, which have the force and effect of law, supersede the FSM. The new rule provides that termination of permits for noncommercial group use is not appealable. A corresponding change for permits for commercial uses was not made because that change would have gone beyond the scope of the rulemaking. However, the Lands Staff is working on revisions to the regulations for commercial uses that would include that change.

40. When will the CFR, FSM, and FSH be updated to reflect changes made by the new rule?

The federal regulations were changed as of August 30, 1995, when the final rule Was published in the Federal Register The new rule will appear in the "ext edition of the Code of Federal Regulations.

Conforming amendments to the FSM and Forest Service Handbook (FSH) will be made as soon as practicable. Changes that will probably be made include:

(1) Adding approval of noncommercial group use as a type of action that may be categorically excluded under the NEPA Handbook without preparing a project file or decision memo.

(2) Revising FSM 2340.5 and 2705 to include definitions for "commercial" and "noncommercial."

(3) Revising FSM 2345, "GROUP USE BY INSTITUTIONS OR OTHER ENTITIES," to address noncommercial group use in conformance with the new rule.

(4) Revising the heading for FSM 2347, "NON-COMMERCIAL RECREATION USE," to clarify that this section covers non-public, rather than noncommercial, recreation use.

(5) Clarifying FSM 2701, para. 12, to list commercial recreation events and other commercial specialized recreation activities of limited duration as uses that may be authorized under section 4(c) of the LWCFA.

(6) Revising FSM 2703.2, "Denial of Use," to conform with the new rule.

(7) Revising FSM 2721.1, "Group Use," to conform with the new rule.

(8) Revising FSM 2721.49, "Recreation Event," to clarify that this section covers commercial, rather than noncommercial, activities.

Other changes may be made after we have a better sense of what aspects of the rule need additional direction. In the meantime, rely on The rule, questions and answers, and other material provided in the communication plan.

Law Enforcement

41. How do we handle a situation where one group of 75 or more people that is in the same area and is conducting the same activity has split into two or more groups that each have less than 75 people?

Several comments on the proposed rule noted that it would be unclear how the rule would be applied if 75 or more people unexpectedly ended up using the same site. One comment noted that it would also be unclear how the rule would be applied if a large group of People were camping in the same area, but far apart.

The Department's response indicated that the rule is intended to apply to noncommercial groups of 75 or more that camp in the same area, even if they camp far apart from each other. The burden is on the government to establish that a group of 75 or more has gathered at a site. Document the count and the rationale used in performing it. Attempt to identify group leader(s) and other signs that the people at the site have gathered as a group. For example, if there is a common kitchen or campfire or if people are observed going from one campsite to another, it is more likely that the people have gathered at the site as a group.

42. Why is a group to be given 72 hours to disperse if the leader is not responsive to law enforcement? Wouldn't the activity often end during that time frame before any further action could be taken?

After consultation with the Department of Justice and the Office of the General Counsel, the agency determined that it was appropriate and fair to give a group 72 hours to disperse given that there will be at least 75 people in the group. Arrest of the leader(s) was deemed necessary only if the group failed to disperse within 72 hours. At this stage, the leader(s) will have been cited for failure to have a required permit, so some law enforcement action will already have been taken. Other violations of the prohibitions at 36 CFR Part 261 may also have been cited.) Arrest of the leader(s) was deemed necessary only if the group failed to disperse within 72 hours. This time frame was recommended to ensure that the rule is enforced consistently and fairly with respect to all groups.

43. How will the agency enforce the rule against large groups that gather without notice and that do not want to sign a permit?

The preamble to the final rule explains why it is appropriate for any group subject to the rule to sign a permit. By requiring a person to sign a permit as an agent or representative of a group, the agency ensures that the 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 signing the permit on behalf of the group, the agent or representative gives the permit legal effect and subjects the group to the permit's terms and conditions. See 60 Fed. Reg. 45274, 45286-87.

The videotape explains in detail the recommended procedure for enforcing the rule in this situation. It is recommended that a violation notice be issued for a mandatory appearance before the local U.S. Magistrate Judge with jurisdiction. The citing officer should explain to the leader(s) that unless they and their group leave the area within 72 hours after the violation notice is issued, they will be subject to arrest. The leader(s)' failure to disperse after a violation notice has been issued and 72 hours have elapsed constitutes a continuing criminal offense that would support a custodial arrest. If arrests are made, consult with the local Office of the General Counsel (OGC) to determine the best way to proceed with the criminal case. If the group still has not dispersed after the leader(s) have been arrested, again consult with the local OGC, which will work with the Department of Justice (DOJ) to devise an appropriate strategy.

What is the responsibility of the person who signed the permit?

The person who signs the permit does not assume personal responsibility for the actions of other group members. Individual group members are personally responsible for their own actions. A person who signs the permit acts as an agent for the group, but does not assume personal responsibility for the group's actions. See 60 Fed. Reg. 45274, 45286-87.

45. What is the responsibility of leaders who are arrested because of the group's failure to obtain a permit?

Anyone who is occupying the National Forest System without proper authorization is subject to citation and/or arrest. In this situation, we are recommending that only the leaders, if they can be identified, be cited and/or arrested in the hope that the rest of the group will disperse. If they do not, other group members could be cited and/or arrested. Consult with OGC before making additional arrests.

46. If an arrest in a made in a remote area, will DOJ and OGC provide assistance?

It is our expectation that the local U.S. Attorney's Office and OGC will provide assistance if arrests are made. DOJ in Washington will probably have primary responsibility for constitutional issues that arise in connection with criminal actions.

47. Has a permit been issued under the rule in any of the regions?

Region 6 has issued a permit under the rule, and there are indications that there may be a gathering subject to the rule in Regions 3, 5, and 8 this fall.


Rainbow Case Intro