Federal Register Vol. 58 No. 86

DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 251 and 261

Land Uses and Prhobitions;
Noncommercial Group Uses

Agency: Forest Service, USDA

Action: Proposed Rule

SUMMARY: This proposed rule would revise the existing rules governing noncommerical group events and noncommercial distribution of printed material within the National Forest System. These revisions would ensure that the authorization procedures for these activities comply with First Amendment requirements of free speech and assembly.

DATES: Comments must be received in writing by August 4, 1993.

ADDRESSES: Send written comments to Recreation, Cultural Resources, and Wilderness Management Staff (2340), Forest Service, USDA, PO Box 96090, Washington, DC 20090-6090.

FOR FURTHER INFORMATION CONTACT: William T. Svensen, Recreation, Cultural Resources, and Wilderness Management Staff, (202) 205- 1407, or Ellen R. Hornstein, Office of the General Counsel, Natural Resources Division, (202) 720-9616.

SUPPLEMENTARY INFORMATION:

Background

The First Amendment of the United States Constitution provides in part that the government may not abridge the freedom of speech or the right to assemble peaceably. U.S. Const. amend. I. Freedom of speech means the right to disseminate ideas freely, both orally or in writing.

It is well established that the government may enforce reasonable time, place, and manner restrictions on First Amendment activities. Such restrictions are appropriate where they are justified without regard to the content of the regulated speech, where they are narrowly tailored to further a significant governmental interest, and where they leave open ample alternative channels for communication of information. "Clark v. Community for Creative Non-Violence", 468 U.S. 288, 293 (1984). Permits have been recognized as constitutional restrictions of time, place, and manner when specific and objective standards guide the licensing authority. "Shuttlesworth v. City of Birmingham", 394 U.S. 147, 150-51, 153 (1969).

The Forest Service regulates activity on National Forest System lands through the issuance of special use authorizations. Issuing special use authorizations allows the Forest Service to protect resources and improvements on National Forest System lands and to prevent conflicts among potential or existing uses and activities. The rules at 36 CFR part 251, subpart B, govern the issuance of special use authorizations for all uses of National Forest System lands, improvements, and resources, except the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222).

On June 21, 1984, the Secretary of Agriculture promulgated a revision to 36 CFR part 251, subpart B. That rule required a permit for two types of noncommerical group events, recreation events and special events, both of which involved ten or more participants or spectators. As defined, recreation events entailed competition, entertainment, or training, and special events included a meeting, assembly, demonstration, parade, or other activity involving the expression of views. Noncommercial groups that did not fall into either of these categories did not have to have a permit. Moreover, the rule contained different standards for denying a special use authorization for each type of group event (49 FR 25449).

Subsequently, a federal district court held that it is unconstitutional to require a group to obtain a special use authorization simply because they gather to exercise their constitutional right of free speech. The court explained that the Forest Service has the right to regulate large group activities on government land, but only if the regulation is content-neutral and applies to all large groups. "United States v. Israel", No. CR-86-027-TUC-RMB (D. Ariz. May 10, 1986).

On May 10, 1988, the Forest Service published an interim rule amending 36 CFR 251.50 through 251.54 to comport with First Amendment rights of assembly and free speech within the National Forest System (53 FR 16548). Upon challenge of this rule, a federal district court held that the Forest Serice had failed to show good cause for adopting the interim rule without prior notice as required by the Administrative Procedure Act, 5 U.S.C. 553. "United States v. Rainbow Family", 695 F. Supp. 294, 302- 06. (I.D. Tex. 1988). In addition, the court invalidated the classification established by the 1984 rule, which on its face singled out expressive conduct and required that it be trated differently from other activity. The court held that the 1984 rule lacked clear and objective standards for determining when a group activity is a "recreation event" and when it is a "special event" involving the exercise of free speech. "Rainbow Family, 695 F. Supp. at 309, 312. The court further held that the standards for evaluating an application for an authorization for expressive conduct were unconstitutionally vague as they vested too much discretion in the authorized officer: "Id". at 309-12. The court ruled that the 1984 regulations were invalid for failure to impose a timeframe for filing and acting on an application, and that the absence of any requirement in the 1984 regulations that a reason be stated for denial of a special use authorization made it impossible to discern the grounds for an authorized officer's dicision. "Id". at 311-12. Finally, the court held that the 1984 rule was invalid for failure to provide for judicial review of the administrative determination. "Id". at 311.

As a result of these court rulings, the Forest Service is proposing revisions of the rules governing special uses at 36 CFR part 251. The purpose of this proposed rule is to regulate noncommercial group events and noncommercial distribution of printed material on National Forest System lands in compliance with First Amendment rights of assembly and free speech. To achive this goal, the proposed rule contains specific, content- neutral criteria for evaluating applications for noncommercial group

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events and noncommercial distribution of printed material and requires that the same criteria be applied to those activities, regardless of whether they involve First Amendment rights. In addition, the proposed rule requires an authorized officer to notify an applicant in writing of the reasons for denial of a special use authorization and provides for immediate judicial review of a decision denying an authorization.

Section-by-Section Analysis
Amendments to Part 251

Section 251.50--Scope

Paragraph (a) would be revised for clarity and to make explicit that an application is required for authorization of a special use. Paragraph (c) would be revised to clarify that a special use authorization is required for noncommercial group events involving 25 or more people and noncommercial distribution of printed material.

The agency has an interest in regulating group activities. Group activities tend to have a greater impact on forest resources and facilities than activities involving individuals or smaller parties. The agency also has an interest in regulating when noncommercial distribution of printed material occurs. Such distribution can occur by posting, affixing or erecting the material, which could damage natural resources if not regulated. In addition, as distribution generally occurs in crowded areas, it can obstruct traffic and create unsafe traffic conditions, for example, where a single-lane road provides the only access to a popular national forest attraction or where a national forest is near an urban center.

Section 251.51 Definitions

Section 251.51 contains definitions used in part 251. subPart B. The proposed rule would revise the definition for "group event" and add new terms and definitions for "commercial use or activity," "noncommercial use or activity," "printed material," and "distribution of printed material."

The term "group event" would cover any activity that involves and/or attracts 25 or more people, regardless of the Purpose of the gathering. Thus, this term would embrace all groups that were included in the "special event" and "Recreation event" categories of the 1984 rule, as well as those that were excluded. The Forest Service is Proposing a cutoff of 25 people based on a review of the potential impact on resources and facilities. The agency believes that activities involving 25 or more people tend to have a greater impact on resources and facilities and thus require evaluation by an authorizsd officer. If the agency required an authorization for smaller group activities, the agency would be inundated with applications, which would crsate an unnecessary administrative burden and cost in light of the generally low impact of these activities. Public comment is especially invited on this group number threshold.

The terms and definitions for "commercial use of activity" and "noncommercial use or activity" would be added to clarify which activities would be subiect to the authorization requirement in 251.50(c)(3). The terms and definitions for "printed material" and "distribution of printed material" would be added to clarify one of the types of activities subject to the authorization requirement in 251.50(c)(3).

Section 251.54 -- Special Use Applications

Section 251.54 of the existing rule prescribes procedures and requirements for processing applications for special use authorizations. Section 251.54(a) encourages all proponents to contact an authorized officer as early as possible so that potential constraints may be identified, the proposal can be considered in land management plans if necessary, and processing of an application can be tentatively scheduled, The proposed rule would amend 251.54(a) to provide that the proponent will be given guidance and information about the items listed in paragraphs (a)(l) through (a)(8) only to the extent applicable to the proposed use and occupancy. For example, fees and bonding requirements listed in paragraph (a)(4) would not apply to applications for noncommercial group uses and noncommercial distribution of printed material and would not be discussed with proponents of those activities.

Section 251.54(e) specifies the information that must be contained in an application for a special use authorizaiion. The proposed rule would amend paragraph(e)(1) to specify applicant identification requirements applicable to all special uses. Specifically, paragraph (e)(l) would require any applicant to provide his or her name and mailing address, or if the applicant is not an individual, the name and address of the applicant's agent who is authorized to receive notice of actions pertaining to the application.

Additionally, the proposed rule would amend this paragraph by adding a new paragraph (e)(2) to specify separate information requirements for noncommercial group uses and noncommercial distribution of printed material. Paragraph (e)(2) would require applicants for noncommercial group uses and noncommercial distribution of printed material to provide the following:

(1) A description of the proposed activity;
(2) A description of the National Forest System land and any facilities the applicant would like to use;
(3) The estimated number of participants and spectators;
(4) The date and time of the proposed activity; and
(5) 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.

This is the minimum information needed by the authorized officer to apply the evaluation criteria in the proposed rule. application information requirements for all other special uses would romain as provided in the existing ruIe, with one exception. The provision currently in paragraph (e)(l) concerning the deference to be given to findings of another agency would be moved to a new paragreph (f)(4), since this provision relates to the processing of applications rather than to their content.

The Rainbow court identified the need for a specific timeframe for granting or denying an application for a noncommercial group event or noncommercial distribution of printed material, 695 F.Supp. at 311. This decisionmaking process, however, may trigger extensive statutory and regulalory requirements, including those imposed by the National Environmental Policy Act of 1969 (NEPA), 42 USC 4331 et seg., the Endangered Species Act (ESA), 16 USC 531 et seq., the National Historic Preservation Act, 16 USC 470 et seq., and other laws; The time needed to comply with these requirements varies greatly depending on the particular circumstances of each application.

Committing to a specific timeframe could put the agency in the position of having to choose between violating either its own regulations or one or more of these statutory mandates.

Consequently, the agency has determined that it would be infeasible and arbitrary to specify a time period in which final agency decision would be made.

In recognition of these competing concerns, the proposed rule would add a new paragraph (f)(5) providing that the agency would grant or deny an application for noncommercial group events or noncommercial distribution of

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printed material without unreasonable delay. A determination of whether the agency acted with sufficient speed would require an anaiysis of what is reasonable under the circumstances, in view of the applicable statutory and regulatory obligations. Applicants are encouraged to contact the agency as early as possible to discuss the amount of time that could be required to make a decision, and to apply sufficiently in advance of their proposed sctivities to allow the agency to comply with applicable statutory and regulatory requirements.

Section 251.54(h) of the 1984 rule enumerated grounds for denying an application for a special use other than a special event. Section 251.54(i) listed separate grounds for denying an application for a special event, which invoIved the expression of views. Thus, the 1984 rule applied different criteria for activities with First Amendment implications than for all other activities, including other types of group events. Moreover, the criteria for First Amendment activities were not specific enough to reduce the potential for application of disparate standards in or reviewing applcations for an authorization.

The proposed rule would presume that any noncommercal group event and noncommercial distribution of printed material would be authorized, upon a determination that seven evaluation criteria were met. These criteria would merely regulate time, place, and manner with respect to a proposed activity. The proposed Rule would dictate that these same criteria be applied to all types of noncommercial group events and noncommercial distribution of printed material. Thus, these criteria are intended to be content-neutral, are narrowiy tailored to advance significant governmental interests, and leave open ample alternative channels for communication of the information.

Specifically, 251.54(h)(1) of the proposed rule would provide that an authorized officer shall grant an application for a special use authorization for any noncommercial group evant or for noncommercial distribution of printed material, upon a determination that:

(1) The proposed activity is not prohibited by the rules at 36 CFR part 261, sub Part A, or by an order issued pursuant to 36 CFR part 261 subpart B, or by federal, state, or local law unrelated io the content of expressive activity. This criterion would allow the agency to deny an application for an activity that would violate federal, state, or local law. This criterion would also allow the Forest Service to regulate where a proposed activity would be conducted. Tbe Forest Service must comply with applicable federal law and regulations in managing the National Forest System. For example, the Wilderness Act requires the Forest Service to protect and manage wilderness areas so as to preserve their natural condition and to ensure that the imprint of human activity remains substantially unnoticeable. 16 U.S.C. 113l(c). The ESA prohibits s taking of an endangered species. A "TAKING" as defined by the EPA includes the loss of a listed species habitat. Thus, an authorized officer might deny an application if the activity would be conducted in a wilderness area or would risk a taking of a threatened or endangsred species such as the spotted owl or grizzly bear. In addition, an authorized officer would have to deny an application if the activity would be conducted in an area that is closed or restricted pursuant to an order issued under 36 CFR part 261. Under a 261 order, the Forest Servics might close a trial in the event of extreme fire danger or inclement weather.

(2) The proposed activity is consistent or can be made consistent with the applicable approved land and resource management plan. The National Forest Management Act requires that "(r)esource plans and permits, contracts, 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). An activity is consistent with a forest use plan if it adheres to a plan's standards and guidelines that are forest-wide or that are included in managemnet prescriptions for specific management areas. Standards and guidelines 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 with extensive public participation and comment.

(3) The 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 land, including but not limited to uses and activities authorized pursuant to parts 222, 223, 224, and 225 of this chapter. Under this criterion, authorized officer might require a large group to alter arrival and departure times or to use an alternative access route to avoid congestion. An officer might suggest an alternate site on the opening day of fishing season for the same reason. This criterion would also allow the Forest Service to ensure that a group af Boy Scouts is not given 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 1984 rule Provided that an application for a special event could be denied if the event conflicted with a previously approved use or if it would be of such nature or duration that it could not reasonably be accommodated in the place and time requested (49 FR 25449). The federal district court in Rainbow Fcrmily held that denying a permit because it it "conflicts" with another use or because it "cannot reasonably be accommodated" in the time and place requested allows for too much discretion on the part of the authorized officer. 695 F. Supp. at 312.

This proposed rule would address the court's concern by providing specific examples of how an activity covered by this paragraph could delay, halt, or prevent existing or scheduled activities and what those activities might include. Similarly, the proposed rule would remove the unconstitutionally vague criterion which allows an authorized officer to deny an application for an activity covered by this Proposed rule on the ground that it cannot reasanably be accommodated in the time and place requested.

(4) The proposed activity would not pose a substantial danger to public health. Considerations of public health shall be limited to the following with respect to the proposed site:

(a) The sufficiency of sanitation facilities;

(b) The adequacy of Waste disposal facilities;

(c) The availability of sufficient potable drinking water, in view of the expected number of users and duration of use;

(d) The risk of disease from the physical charecteristics of the proposed Site or natural conditions associated with the proposed site;

(e) The risk of contamination of the water supply; and

(f) The sufficiency of a plan for safe handling of food.

(5) The proposed activily would not pose a substantial danger to public safety. Considerations of public safety shall not include concerns about possible reaction to the users' identity or beliefs from non-members of the group seeking an authorization and shall be limited to the following:
(a) The potential for physical injury to other forest users from the proposed activity;

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(b) The potential for physical inury to users from the physical characteristics of the proposed site or natural conditions associcrted with the proposed site;

(c) The potential for physical injury to users from scheduled or existing uses or activities on National Forest System land; and

(d) The adequacy of ingress and egress in case of an emergency.

The 1984 rule allowed an authorized officer to deny an application for a special event if it presented a clear and present danger to the public health or safety (49 FR 25449). The Rainbow court struck down this language because it was too vague and allowed for too much discretion on the part of the authorized officer. 695 F. Supp. at 31l. The proposed rule would overcome this deficiency. In regulating where the activity would occur, the criterion in the proposed rule would restrict the authorized officer's discretion by enumerating concrete, content-neutral considerations of public health and safety.

(6) 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. This activity does not implicate the First Amendment and is currently prohibited by Forest Service policy as inconsistent with National Forsst System purposes.

(7) A person or persons 21 years of age or older has been designated to sign and does sign a special use authorization on behalf of the applicant. The agency must 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 agency cannot make the appropriate notifications. In addition, someone on behalf of the appiicant must accept the responsibilities associated with use of National Forest System land.

Public comment is especially invited on the seven evaluation criteria.

If, at the conclusion of the application process, the application does not meet the ssven criteria, an administrative officer could deny the application. Under proposed 251.54(h)(2), however, an authorized officer would have to notify an applicant in writing of the reasons for denial of an application for a special use authorization. The Proposed rule would make explicit that a denial of an application under 251.54(h)(l) would constitute final agency action and would be immediately subject to judicial review.

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