Son of FrankenRegs

Proposed USFS Rules for
"Law Enforcement Support Activities"
and the assault on the Fourth Amendment
A Summary

USFS Proposes new Police Powers in the National Forests*

36 CFR Parts 261, 262
{Federal Register, 59:32, 7880-92; Feb.16,1994}

First we saw "FRANKENREGS"...

...The 'Group Use' Rules proposed in May '93 would restrict First Amendment Freedoms of assembly & expression, and deny Citizen access on Public Land.

Now there's "SON OF FRANKENREGS"...

...Forest Service authorities in "Law Enforcement Support Activities" would vastly expand, with Federal police powers overriding local jurisdictions and personal privacy rights protected under the Fourth Amendment.

The 1st draft rule was widely opposed & withdrawn in May; but a new proposal will be out by Fall '94, and the serious policy issues remain:

The Forest Service mandate is to preserve land and resources... not to impose Government control over individual freedoms.

Here are some things you might find objectionable

The Forest Service contends that this amendment is needed to fulfill authorities established under the Comprehensive Crime Control Act of 1984, and the National Forest System Drug Control Act of 1986. They assert that this authority "...allows regulating occupancy and use even If such regulation is not necessary for the protection of forest resources (United States v. Hymans, 463 F.2d 615 (l0th Cir. 1972))." [p.7880].

  • The Agency determined unilaterally that this is not a "significant rule" and therefore is "not subject to OMB review under Executive Order 12866". They also claim to comply with the 'maximum benefit / minimum cost' mandate of other Executive orders -- but the costs of overriding local authorities and undercutting the Bill of Rights are apparently not considered.
  • The Agency's newly defined "Law Enforcement Officers" and "Special Agents" [*262.1, p.7691] are given vast new enforcement powers that override State and local authorities. The rules actually provide for "Purchase of information or evidence in furtherance of investigations" [*263.3; p.7891] -- in short, bribery for the sake of prosecution.
  • By changing various charges previously classed as felonies into 'Class B' Misdemeanors with jail penalties of less than 6 months, this regulation takes advantage of court rules which allow jury trials to be bypassed in such cases. This means that more cases would be handled faster, more defendants would waive rights, and more revenues would be generated by imposing criminal fines.
  • Here are some points to look at more closely

    261.2 Definitions

    The rule newly defines "Controlled substance" in a way that "...possession of drugs may be handled through a United States Magistrate judge by the issuance of a violation notice, rather than by proceeding under the simple possession statute at 21U.S.C. 844, which provides either the filing of a complaint or information, or indictment by a Federal grand jury." [p. 7882]

    Does this mean no-jury, fast-track enforcement, or that a 'violation notice' could be issued on a supposed crime?

    261.4 Public Behavior

    If these regulations pass, 'public behavior' will become an activity the Forest Service could regulate [p.7889]. At the very least, let people be themselves in the woods! The rules would leave up to the discretion of an officer what should be considered to be "obscene" behavior (the actual wording of this prohibition -- "using language, an utterance, or act that Is ...Obscene"), or construed to be "...Causing public inconvenience ... by making unreasonably loud noise."

    What activities might "...threaten the health, safety, rights or enjoyment of forest users", and how does a Forest Service officer decide?

    They also prohibit "BEING under the influence of any controlled substance or alcohol..." (as opposed to DRIVING or WORKING 'under the influence'). If people are just BEING THEMSELVES, does this constitute Probable Cause for search and seizure by Forest Service Police?
    Are they going to walk around the forest with breatholizer devices?

    Now the Agency would take control over all laws on "controlled substances, alcoholic beverages, or contraband" on public land, without having to prove possession or impacts on public safety... and assert control over one of the few places left where people can go to express themselves freely.

    261.10 Occupancy and Use.

    These activities would now be illegal without a permit, subject to broad Agency authorities and vague police discretion on public lands [p. 7890]:

    261.53 Special Closures.

    FS Agents are given broad discretion to close off areas of the National Forests for reasons of environmental protection or public health and safety. This cannot be arbitrary: They must show good cause or ecological concerns documented previously in approved studies or management plans.

    No such stipulation is made in this rule. Moreover courts have ruled that Public Health concerns should remain the jurisdiction of qualified health authorities, NOT the Forest Service.

    You are encouraged to look further on your own

    A major Issue: The *REGULATORY GROUNDS* for these new Forest Service powers...

    There Is already provision for "Cooperation by Secretary of Agriculture with States and political subdivisions in law enforcement" (16 USC * 551a].

    NO SIGNIFICANT INTEREST is offered for imposing centralized Federal authority with extreme powers, aside from claims that the existing rule provides " inadequate regulatory basis for conducting law enforcement activities" [p.7880], and that the prosecution should " practical" [p.7883].

    The impact of this rule with existing Federal provisions -- for martial law authorities under "FEMA" (Federal Emergency Management Act), and for U.S. Military priority access in the National Forests (36 CFR Part 251.54) -- is not considered.

    Research and share what you learn: Comprehensive Crime Control Act of 1984, National Forest Drug Control Act of 1986, Executive Orders 12866, 12630, 12291, 12498... etc., etc.

    PCU // Freedom of Assembly Project

    For further information, contact...

    PO Box 27217 -- Washington, DC 20038
    PO Box 6625 -- Chicago, IL 60680
    202-462-0757, 202-265-5389 (Fax)

    Hotline: 312-409-0018

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