QUESTIONS AND ANSWERS FOR NONCOMMERCIAL GROUP USES REGULATION
1. Who has to get a permit under the rule?
The rule requires a permit for noncommercial group uses of National Forest System lands. Under the rule, a "group use" is an activity that involves a group of 75 or more people, either as participants or spectators. "Noncommercial" is any use or activity where an entry or participation fee is not charged, and the primary purpose is not the sale of a good or service.
Some examples of noncommercial group uses are weddings, church services, endurance rides, regattas, camping trips, hikes, orienteering, music festivals, rallies, graduations, and races. In 1992, the Forest Service issued approximately 1800 permits for noncommercial and commercial group uses involving 660,000 people.
2. Why are permits required for noncommercial group uses?
As a steward of the National Forests, the Forest Service has a duty to minimize resource impacts on National Forest System lands. Large group gatherings in the National Forests have significant adverse impacts on Forest resources, public health and safety, and the agency's ability to allocate space in the face of increasing constraints on the use of National Forest System land. These adverse impacts include:
A permit system allows the agency to address these problems more expeditiously, more effectively, and more equitably.
-- The spread of disease;
-- Pollution from inadequate site clean-up;
-- Soil compaction from inadequate site restoration;
-- Damage ta archaeological sites; and
-- traffic congestion.
3. Why do you define a group as 75 or more people -- why not 15 or 50?
The proposed rule suggested 25 people as the cutoff for a group and specifically requested Public comment on the 25-person threshold. The comments on the numerical threshold have been carefully reviewed, as well as the Forest Service's experience with all types of noncommercial group uses on National Forest System lands, particularly with respect to resource impacts associated with these uses. Based on this review, it was determined that a 25-person threshold is too low and that 75 people is a more appropriate threshold for applicability of the rule.
While any numerical threshold is arbitrary in that 25 people could have more impact than 75, depending on the type of activity and the characteristics of the site, a numerical threshold is the fairest and most objective standard for applicability of the rule. In addition, groups with 75 or more people tend to have a greater impact on National Forest System Lands than smaller groups.
4. By requiring permits for noncommercial group uses, is the Forest Service infringing on the constitutional rights of freedom of speech, assembly, and religion?
No. The Supreme Court has held that the government may enforce reasonable time, place, and manner restrictions on First Amendment activities, as long as the restrictions are justified without regard to the content of the regulated speech, they are narrowly tailored to further a significant government interest, and they leave open ample alternative channels for communication of information.
Permits are constitutional restrictions of time, place, and manner where narrow, objective standards guide the licensing authority. This rule ensures that authorization procedures for noncommercial group uses comply with First Amendment requirements of freedom of speech, assembly, and religion. The rule does not single out expressive conduct or treat it differently from other types of activity. The rule establishes a single category, "noncommercial group uses," and applies the same evaluation criteria to all applications for noncommercial group uses regardless of whether they involve the expression of views. The evaluation criteria are specific and content-neutral and regulate the time, place, and manner for the proposed activities.
5. Haven't you been requiring Permits for these activities in the past? Why are you doing a revision?
The agency's prior two versions of the regulation were struck down by the courts.
The first version, promulgated in 1984, was struck down as unconstitutional. That version established two separate categories for noncommercial group events, one for activities involving the expression of views (ca!led "special expression of views (called "recreation events") Two courts held that this version of the rule singled out expressive conduct and required that it De treated differently from other activity. The courts also held that the standards for evaluating applications for expressive activities were unconstitutionally vague because they vested too much discretion in the authorized officer.
The second version of the rule, published in 1989, was struck down as an invalid interim rule. The court held that the agency had failed to show good cause for adopting the interim rule without notice and comment.
6. How is this rule different from the earlier versions?
This rule does not single out expressive conduct or treat it differently from other types of activity. The evaluation criteria in this rule do not give an authorized officer discretion to deny an application based on the content of speech. Specifically, this rule:
A. Establishes a single category called "noncommercial group uses."
B. Restricts the content of an application for noncommercial group uses to information concerning time, place, and manner.
C. Applies the same evaluation criteria to all applications for noncommercial group uses, regardless of whether they involve the expression of views.
D, Establishes specific, content-neutral evaluation criteria.
E. Provides that applications for noncommercial group uses will be granted or denied within a short, specific time frame.
F. Provides that if an application is denied and an alternative time, place, or manner will allow the applicant to meet all the evaluation criteria, the authorized officer will offer that alternative.
G. Requires an authorized officer to explain in writing the reason for denial of an application for a noncommercial group use.
H. Provides that a denial of an application for a noncommercial group use is immediately subject to judicial review.
7. How does the rule work?
Under the rule, anyone seeking to conduct a noncommercial group activity on National Forest System lands would have to apply for and receive a permit. The rule creates a presumption in favor of granting a permit for noncommercial group uses. An application has to be granted if eight evaluation criteria are net. These criteria are narrow and unrelated to the content of speech. They merely regulate the time, place, and manner for noncommercial group uses. These features of the rule are necessary to ensure compliance with First Amendment requirements of freedom of speech, assembly, and religion.
8. What are the eight evaluation criteria?
Authorized officers have to grant an application for a noncommercial group use Ff the•i determine that:
(1) Authorization of the proposed activity is not prohibited by the rules at 36 C.F.R. Part 261, Subpart A, by an order issued under the regulations at 36 C.F.R. Part 261, Subpart B, or by federal, state, or local law unrelated to the content of the expressive activity;
(2) Authorization of the proposed activity is consistent or can be made consistent with standards and guidelines in the applicable forest land and resource management plan required under the National Forest Management Act and 36 C.F.R. Part 219;
(3) The proposed activity does not materially impact the characteristics or functions of the environmentally sensitive resources or lands identified in Forest Service Handbook 1909.15, chapter 30;
(4) The proposed activity will 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;
(5) The proposed activity does not violate state and local public health laws and regulations as applied to the proposed site. Issues addressed by state and local public health laws and regulations as applied to the proposed site include but are not limited to:
(a) The sufficiency of sanitation facilities;
(6) The proposed activity will not pose a substantial danger to public safety. Considerations of public safety do not include concerns about possible reaction to the users' identity or beliefs from non-members of the group applying for a permit and are limited to the following:
(b) The sufficiency of waste-disposal facilities;
(c) The availability of sufficient potable drinking water;
(d) The risk of disease from the physical characteristics of the proposed site or natural conditions associated with the proposed site; and
(e) The risk of contamination of the water supply.
(a) The potential for physical injury to other forest users
from the proposed activity
(7) The proposed activity does not involve military or paramilitary training or exercises by Private organizations or individuals, unless such training or exercises are federally funded; and
(b) The potential for physical injury to users from the Physical characteristics of the proposed site or natural conditions associated with the proposed site;
(c) The potential for physical injury to users from scheduled
(d) The adequacy of ingress and egress in case of an emergency
(8) A person or persons 21 years of age or older have been designated to sign and do sign a permit on behalf of the applicant.
9. Will the Forest Service be able to deny a permit for noncommercial group uses under the rule?
Yes, but the new rule establishes a presumption in favor of granting a permit for noncommercial group uses. Under the rule, applications must be granted or denied in a short, specific timeframe. Applications must be submitted at least 72 hours in advance of a proposed activity and must be evaluated by the Forest Service within 48 hours of receipt. Otherwise they are deemed granted. A permit can be denied only if it does not meet the eight evaluation criteria.
Equally importantly, an authorized officer has to explain to the applicant in writing the reasons for the denial. There has to be an adequate factual basis for the denial, and a record has to be developed to support the reasons for the denial. If an application is denied and an alternative time, place, or manner will allow the applicant to meet all the evaluation criteria, the authorized officer will offer that alternative.
10. Will applicants for a noncommercial group use have to sign a permit?
Yes, applicants for any noncommercial group use have to designate at least one person 21 years of age or older to sign a permit and that person or persons have to sign the permit. This feature is essential for effective permit administration. The agency must have someone to contact on behalf of the group.
In addition, the signature gives the permit legal effect. A person who signs a permit for a noncommercial group use acts as an agent for the group and subjects the group to the terms and conditions of the permit. A person who signs a permit does not, however, assume personal responsibility for the group's actions.
11. Will a significant amount of time be necessary to comply with the provisions of the National Environmental Policy Act (NEPA) in processing applications for noncommercial group uses under this rule?
No. Under the rule, permits for noncommercial group uses are categorically excluded in the absence of extraordinary circumstances (Forest Service Handbook 1909.15, Chapter 30) from documentation in an environmental assessment or an environmental impact statement. Consideration of extraordinary circumstances is incorporated in the rule as an evaluation criterion. Thus, the processing of applications for noncommercial group uses can be expedited to comply with constitutional requirements for a short, specific timeframe for processing permit applications for expressive activities.
12. By allowing authorized officers to assess specific public health and safety criteria before issuing a permit, is the Forest Service ensuring the health and safety of group participants and other forest visitors?
No. Rather than ensuring public health and safety, the rule merely allows an authorized officer to deny a permit based on specific considerations of public health and safety associated with the proposed activity. These criteria must be narrow in order to comply with First Amendment requirements.
The Forest Service cannot guarantee Public health and safety. However, with the assistance of state and local officials, the agency can and does address health and safety concerns affecting groups and other forest visitors.
13. Does the rule require that applicants for noncommercial group uses obtain bonding or insurance?
No. Noncommercial group uses involve or potentially involve First Amendment activities. Requiring bonding or insurance as a Precondition to the issuance of a permit for expressive conduct could be construed as an undue burden on the exercise of First Amendment rights. In other words, requiring an applicant to obtain bonding or insurance before a permit is issued could be
seen as putting a price tag on speech in violation of the United States Constitution.
14. Are noncommercial group uses subject to Title VI of the Civil Rights Act of 1964?
No. Generally, Title VI would not apply to noncommercial group use of National Forest System lands. There is no "federal financial assistance" as defined under implementing regulations because the use is casual and transient. In addition, Title VI only applies when federal funding is given to a non-federal entity, which in turn provides financial assistance to the ultimate beneficiary. Title VI does not apply to noncommercial group uses because the permit holder is the ultimate beneficiary of the Permit.
15. Are Native American large group gatherings subject to the rule?
Yes. A permit will be required for all noncommercial groups of 75 or more, Including groups of 75 or more Native Americans who seek to engage in traditional ceremonies and activities on the National Forests. The rule ensures that authorization Procedures for noncommercial group uses, including religious gatherings, comply with First Amendment requirements of freedom of speech, assembly, and religion.
16. Why does the Forest Service prohibit issuance of large group permits for paramilitary maneuvers in national forests?
As noted in the preamble to the rule, regardless of their size, organizations or individuals cannot get a permit to conduct military or paramilitary activities on National Forest System lands, unless those activities are federally funded.
17. Will the Forest Service allow groups of less than 75 persons to use National Forest System lands for paramilitary exercises, maneuvers, or training?
No. For 25 years the Forest Service has not allowed non-federally funded military or paramilitary activities on National Forest System lands because this type of use is often potentially damaging to forest resources and may endanger other users of National Forest System lands. The new rule Incorporates this longstanding agency policy and gives it the force and effect
of administrative law.
18. How does the Forest Service define the term "paramilitary"?
According to the dictionary, "military" means "of, relating to, or typical of soldiers or the armed forces", "performed or supported by the armed forces", or "of or relating to war." "Paramilitary" means "of, pertaining to, or designating forces organized after a military pattern, especially as a potential auxiliary military force."
19. Isn't this Prohibition on paramilitary maneuvers part of a Federal effort to shut down militia groups?
Absolutely not. The Forest Service has had this Policy for over 25 years.
20. Why is paint ball shooting allowed on national forests?
When Paint guns are being used to capture a flag or home base, the activity is considered recreational in nature and is compatible with other recreational uses. The paint does have to be biodegradable. Paint ball shooting may be prohibited by order in certain areas and may require a permit in areas where it is authorized.
21. When is the use of ordnance permissible on the national forests?
Ordinance is permissible when its use is in compliance with state and federal regulations. The Forest Service establishes and manages shooting ranges for public use, usually near major population centers. In some locations and circumstances, the Forest Service regulates or restricts the discharge of firearms, usually for safety reasons, such as at campgrounds, Parking areas, and trailheads, or during search and rescue operating and fire emergencies.
22. Under what authorities do you allow federally funded military or paramilitary activities on National Forest System lands?
The use of National Forest System lands for federally funded military training activities is within the statutory authority of the Organic Act of June 4, 1897. Federal lands provide a variety of geographic and topographic settings for training activities conducted by the Department of Defense and are regarded as a necessary resource for maintaining a strong national defense.
In 1988, the Department of Defense and the Department of Agriculture developed a Master Agreement to provide for planning, scheduling, and conducting authorized military activities on National Forest System lands.
23. What are the differences between the Forest Service and the National Park Service (NPS) permit systems for noncommercial group uses?
NPS, like the Forest Service, requires permits for noncommercial group uses. NPS has two permitting systems, one for the National Capital Region and one for the rest of the units in the National Park System. The former applies to specific sites and is more narrow in scope than the latter. The Forest Service rule applies to the entire National Forest System.
24. Are large group gatherings an appropriate use of National Forests?
Yes, they are an appropriate use, but it is important to minimize impacts on the environment and to ensure the health and safety of all forest visitors.
The rule accommodates these concerns by authorizing noncommercial group uses subject to constitutional time, place, and manner restrictions.
25. How does the Forest Service currently handle gatherings of large groups? The Forest Service:
-- Works with sponsors of the group to ensure adequate protection of the environment and to address health and safety concerns affecting group members and other forest visitors.
-- For particularly large groups, assembles an incident command team consisting of resource managers and representatives from law enforcement, safety and health, and public relations staff groups.
-- Keeps the public informed.
-- Tries to direct traffic and to minimize the environmental impacts associated with parking large numbers of vehicles.
-- Tries to reduce displacement of wildlife, to ensure provision of adequate sanitation, and to maintain stream quality.
-- Tries to enforce laws and to assist state and local law enforcement officials if criminal violations occur.
26. What is the cost to the government to administer noncommercial group uses?
The Forest Service estimates that it costs $700,000 per year to administer group uses. This figure does not include law enforcement costs.
27. Why does the government pay for administrative costs associated with group uses?
The Federal government, along with state and local agencies, bear these costs because they are obligated to protect the National Forest environment and are concerned about the health and safety of forest visitors. In addition, shifting law enforcement costs to applicants for noncommercial group events, which involve or potentially involve expressive conduct, could be construed as an undue burden on the exercise of First Amendment rights.
28. How do local communities feel about large groups gathering on nearby National Forests?
The reaction in local communities is mixed. On one hand, large groups can present small communities with traffic and law enforcement problems. On the other hand, members of large groups often purchase goods and services, such as gas and groceries, providing a boost to the local economy. The Forest Service continues to play a strong role in working with local communities when affected by a sudden influx of national forest visitors.
29. Who are the Rainbow Family?
The Rainbow Family is one of many groups that use National Forest System lands. They are a loosely knit association of persons who organize gatherings in the national forests to celebrate life, worship, express ideas and values, and associate with others who share their beliefs. The largest of these meetings is the Rainbow Family Summer Gathering, which is held annually and has attracted as many as 20,000 people from across the nation and around the world.
30. Does the rule single out the Rainbow Family?
The rule does not single out any particular group. Approximately 1800 groups received permits to conduct non-expressive activities on National Forest System lands in 1992. Because of the court rulings, the agency has been unable to regulate activities involving the expression of views. The proposed rule is needed to treat all groups consistently and fairly.
31. Does the Rainbow Family gather only on National Forests?
Since their inception in 1971, the largest Rainbow Family gatherings have been on National Forest System lands.
32. How many comments were received on the proposed rule?
There were 603 timely comments received on the proposed rule. All those issues were analyzed and addressed in the preamble of the final rule.
33. When can the public obtain a copy of the rule?
The text of the rule will be available upon publication in the Federal Register. A copy of the rule may also be obtained by contacting Sharon Prell at (202) 205-1414.
34. When do you expect the final rule to go into effect?
Our goal is mid-1995.
35. Why doesn't the final rule require a permit for distribution of noncommercial printed materials?
The proposed rule would have required a permit for noncommercial distribution of printed materials. Based on the comments received on resource impacts and on a careful review of resource impacts associated with noncommercial distribution of printed material, it was determined that these impacts are not significant enough to warrant regulation at this time. Therefore, the final rule does not require a permit for noncommercial distribution of printed material.
Noncommercial Group Use Regulations - Facts
Rainbow Case Intro