P.O. Box 27217
Washington, D.C. 20038
April 2, 1990
Forest Service Desk Officer
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington, D.C. 20503
To whom it may concern:
This letter regards a Request for OMB Review, submitted by the
National Forest Service on March 2, 1990. The Forest Service
proposes to amend 36 CFR 251, and this comment addresses the
validity of that proposal pursuant to Executive Order 12291 and the
Administrative Procedure Act. While it may be that OMB review
under Executive Order 12291 primarily focuses on the technical
quality of an agency's cost-benefit analysis, it can also be used
as a significant check against unacceptable rules, particularly
those likely to impose substantial effects on the public.
This letter does not attempt to address every preceived
shortcoming in the 100 page Forest Service proposal, but confines
itself to those deficiencies which seem most egregious.
The Forest Service claims that it is facing a "problem."
"Land Uses: Prohibitions.
"including any ... effects that cannot be quantified in monetary
terms." Exective Order 12291 Section (3)(d).
According to the Forest Service:
"In response to several Federal court rulings, the Forest Service
proposes to amend the rules governing authorization of occupancy
and use of National Forest System lands with regard to rights of
assembly and speech protected by the First Amendment of the United
States Constitution." Proposed Rule, page 2.
The Forest Service proposes to accomplish this standardization
through a simple regulation which would convert the "right of
assembly and speech protected by the Constitution" (Proposed Rule,
introductory section, page 1 at "Justification") into a "privilege"
(Proposed Rule, page 4) through the expedient of "written
authorization.... Examples are permits, easements and use
agreements." Id. page 59.
I am concerned that the agency's judicial problems might
actually go considerably beyond "recent Federal court decisions."
It has been long and consistently held that "rights" cannot
legally be extinguished by decree of executive agencies, e.g.:
"Th(e) proposed rule standardizes administration of groups of
25 or more persons using National forests for assemblies, meetings,
gatherings, demonstration, and similar activities for expression of
views or religious beliefs." Proposed Rule, cover page.
In not so recent decisions regarding religious belief Federal
courts have found permits to be constitutionally unacceptable,
"An act repugnant to the Constitution cannot become law."
Marbury v. Madison, 5 (1 Cranch) U.S. 137 (1803). See also,
Morrill v. Jones, 106 U.S. 467 (1821); United States v.
Greenburgh, 453 U.S. 114, 133 (1981).
The Forest Service asserts that:
"To condition ... the perpetration of religious views or systems
upon a license ... is to lay a forbidden burden upon the exercise
of liberty protected by the Constitution." Cantwell v.
Connecticut, 310 US 303 (1939); Shuttlesworth v. Birmingham, 394 US
The notion that use of wilderness areas for "assembly,
worship, and speech" was "unlikely in the early days" ignores the
fact that such usages long predate the Forest Service, reaching to
the very origins of this country, e.g. the Pilgrims, Puritans,
Quakers, Huguenots, Mormons, etc., etc. Moreover, the agency
supplies no basis to assume that the Administrative Procedure Act
was intended as an implement to undermine the Constitution by
redefining "rights" as "privileges."
"(u)nless otherwise authorized by statute -- for example, in the
case of mineral entry -- any occupancy and use other than by the
Federal Government was considered a 'special' use and a
'privilege,' not a right.... There was no mention (in earlier
Forest Service regulations) of rights of assembly, worship, and
speech, and it is unlikely that in the early days of this century
there was much demand for use of National Forests for these
purposes, given their remoteness, and the general lack of access."
Proposed Rule pgs 4 and 5.
"Freedom" should be included as a consideration of "beneficial
effects that cannot be quantified in monetary terms." Exective
Order 12291 Section (3)(d).
"The words 'to diminish the Constitutional rights of any
person' are omitted as surplusage as there is nothing in the
(Administrative Procedure) Act that can reasonably be construed to
diminish those rights and because a statute may not operate in
derogation of the Constitution." 5 U.S.C. Sec. 559, Historical and
Being set apart from a "totalitarian regime" might well be a
benefit to society and carefully weighed under 12291.
"It is only through free debate and free exchange of ideas that
government remains responsive to the will of the people and
peaceful change is effected. The right to speak freely and to
promote diversity of ideas and programs is therefore one of the
chief distinctions that sets us apart from totalitarian regimes."
Terminiello v. Chicago, 337 U.S. 4 (1948); De Jonge v. Oregon, 299
As a benefit to democratic society, and particularly in the
absence of quantifable agency "need," OMB should determine the
extent to which enactment of the Forest Service's proposal might
under-cut the existing set asides from a "totalitarian regime."
Executive Order 12291 requires regulations to be
"well-reasoned," and provides that:
"Regulatory action shall not be undertaken unless the potential
benefits to society from the regulation outweigh the potential
costs to society." Executive Order 12291 Section 2(b).
The regulation contains no readily discernable information
concerning the need for regulations to protect the Forests against
religion or speech rather than against, say, all-terrain vehicles.
The Proposed Rule lacks any apparent basis in reason or fact
and would therefore also be unacceptable under the provisions of
the Administrative Procedure Act. The only "facts" presented to
support its Proposed Rule are the Forest Service's own ipse dixit.
"Administrative decisions shall be based on adequate information
concerning the need for and consequences of proposed government
action" Executive Order 12291 Section 2(a).
Perhaps "vehicle use" does present some legitimate concerns
for the Forest Service -- the reader can only guess because the
Forest Service provides no informative data on the subject. All
the same it is significant to note that if "vehicle use" is a
"problem" it is not addressed by the Proposed Rule.
"Field personnel commenting on this option noted that depending
on the activity and degree of vehicle use, special recreation
events of 15-20 persons can have more impact on resources than the
gathering of 100 persons for a demonstration or religious
observance." Id. pages 26 and 27.
The Forest Service relies on factually inaccurate information.
"There are obvious methods of preventing littering. Amongst these
is the punishment of those who actually litter." Schneider v.
State, 308 U.S. 147, 162.
It is thought that no similar Park Service "model" exists.
"Proposed Section 251.7 is modeled closely on rules of the National
Park Service. This section would allow the sale or distribution of
printed material, but requires those who wish to do so to obtain an
authorization." Proposed Rule, page 29.
The Proposed Rule would restrict activities fundamental to
democratic institutions. E.g.:
"The sale or distribution of newspapers, leaflets, and pamphlets
conducted without the aid of stands or structures is permitted in
all park areas open to the general public without a permit (limited
exceptions to this rule are then defined.)" National Park Service
Rule, codified at 36 CFR 7.96(I)(2).
Beyond the unsupported theory that certain individuals "often
tend" to view the distribution of literature "as intrusive on their
recreational experience," the proposal lacks any factual informa-
tion to explain why the Forest Service needs to control the
distribution of literature in the wilderness. It is also well
settled that hostile public reaction is not grounds for forfeiture
of constitutional protection. E.g. Gooding v. Wilson, 405 US 5l8
(l972); Brandenburg v. Ohio, 395 US 444 (l969); Ashton v. Kentucky,
384 US l95 (l966); Edwards v. S. Carolina, 372 US 229 (l963); et
There are additional Forest Service proposals, which raise
constitutional questions, and for which the agency also fails to
cite information which might elevate the "necessity" of its
proposals beyond the realms of purely hypothetical or repressive.
"Distribution of -- petitions, handbills, newspapers, religious
tracts, signs, etc. -- would require authorization under Subpart
E." Proposed Rule, page 30.
The basic problem with the proposed requirements of bonds and
insurance is that those requirements would amount to "prior
restraint" against groups that cannot afford to write a checque in
payment for the "privilege" of exercising their constitutional
rights. See, Near v. Minnesota, ___ US ___ (1939).
1) "Consistent with current special uses adminstration, paragraph
Section 251.3(c)(1) would allow the authorized officer to require
a bond or other security to secure a holder's obligations under a
use agreement." Id. page 42.
2) "Paragraphs 251.3(d) through (f) regarding liability insurance,
indemnifying the U.S., and payment of service fees, are also
standard provisions now in effect with regard to special uses."
Id. page 43.
In the absence of any factual information detailing any
legitimate need -- not adequately met under existing regulations
(see United States v. the Rainbow Family, 694 F. Supp 294 E.D.
Texas, June 1, 1988) -- for "the forest officer to deal separately
with each of 25, 100, or several thousand individuals," there is
no reason to assume that those who "hesitate, on philosophical
grounds, to appoint agents or representatives to speak or act for
them" may be forced under Forest Service directive to alter their
In closing it is my contention that in, but not limited to,
the aforementioned respects the Forest Service proposal fails to
meet the criteria of both the Administrative Procedure Act and
Executive Order 12291, and consequently should be disallowed by
"Some groups using National Forest System lands hesitate, on
philosophical grounds, to appoint agents or representatives to
speak or act for them. However, it is patently unreasonable and
impracticable in a group gathering situation to expect the forest
officer to deal separately with each of 25, 100, or several
thousand individuals." Id. page 35.
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