William Thomas
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.

"including any ... effects that cannot be quantified in monetary terms." Exective Order 12291 Section (3)(d).

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.

"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.

According to the Forest Service:
"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.

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.:
"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).

In not so recent decisions regarding religious belief Federal courts have found permits to be constitutionally unacceptable, e.g.:
"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 147.

The Forest Service asserts that:
"(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.

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."

"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 Revision Notes.


"Freedom" should be included as a consideration of "beneficial effects that cannot be quantified in monetary terms." Exective Order 12291 Section (3)(d).

"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 U.S. 365.

Being set apart from a "totalitarian regime" might well be a benefit to society and carefully weighed under 12291.

"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).

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:
"Administrative decisions shall be based on adequate information concerning the need for and consequences of proposed government action" Executive Order 12291 Section 2(a).

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. E.g.:
"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.

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.

"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.


The Forest Service relies on factually inaccurate information. E.g.:
"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.

It is thought that no similar Park Service "model" exists.

"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).


The Proposed Rule would restrict activities fundamental to democratic institutions. E.g.:
"Distribution of -- petitions, handbills, newspapers, religious tracts, signs, etc. -- would require authorization under Subpart E." Proposed Rule, page 30.

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 seq.


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. E.g.:
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.

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).


"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.

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 philosophical grounds.

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 your office.


William Thomas

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