Letter from Thomas McLeod 8/3/93

Thomas McLeod
49 Greenwood Terrace B1
Montpelier, Vermont 05602-2826
Tel. 802-223-3562

August 3rd, 1993

Recreation, Cultural Resources and Wilderness Management
United States Forest Service
United States Dep't of Agriculture
PO Box 96090
Washington, D.C. 20090-6090

RE: Comment on proposed amendments to 36 C.F.R. 251, 261

The undersigned respectfully submits this comment in opposition to U.S.D.A. rules proposed at 58 F.R. 26940 (May 6, 1993)

The proposed rules amend 36 C.F.R. 251, 261 relating, inter alia, to activities on Forest Service land involving groups of persons numbering 25 or more. The Secretary of Agriculture promulgated the existing regulations on June 21, 1984, 49 F.R. 25449.

Because the existing regulations distinguish group activity involving constitutionally protected expression from other group activity, and require the Forest Service to treat such expressive activity differently, they are facile invalid under the first amendment, United States v. Rainbow Family, 695 F. Supp. 294, 309-13 (E.D. Tex. June 1, 1988). See N.A.A.C.P v. Alabama, 357 U.S. 449 (1958) Furthermore, the existing regulations are facile invalid because they fail to provide narrow, objective and definite standards and time-frames for Forest Service classification and approval of protected expressive activity, fail to require the Forest Service to state reasons for adverse determinations and fail to provide for judicial review. Rainbow Family, 695 F. Supp. 309-13. See Shuttlesworth v. Birmingham, 394 U.S. 147 (1969).

The current amendments attempt to address these constitutional infirmities by partially eliminating the "suspect classification" contained within the original regulations, by providing a list of seven criteria the Forest Service shall consider in making a determaintain to allow a "non-commercial group event," by requiring the Forest Service to state reasons for adverse decisions, by providing for immediate judicial review and by eliminating bonding and rental fee requirements for non-commercial group activity. The amendments, however, do not provide definite time-frames for agency action nor do they provide objective and definite standards by which the Forest Service is to judge a proposed non-commercial group activity against some of the seven criteria. While the proffered amendments represent several improvements over the past Forest Service proposals, notably the elimination of any bonding requirements for protected expressive activity, for the reasons stated below the published amendments should not be adopted.

Background Facts

The Rainbow Family is a group of individuals whose main unifying characteristic is that they make use of National Forest lands for the purpose of the free expression of views, lifestyles and arts, as well as to associate with each other for extended periods in a natural environment. These events, commonly referred to as Rainbow Gatherings, draw between 500 and 20,000 persons, and have regularly occurred on National Forest lands since 1971. The Rainbow Family is by far the greatest non-commercial group user of National Forest lands, exceeding in some years one million person-hours per year use.

Despite the apparent potential for problems with large gatherings in a wildness setting, Rainbow Gatherings usually occur without adverse impact to public health, safety, land or property. This is largely because many gathering participants devote themselves to living in primitive settings as part of their lifestyles, are committed to respecting the natural environment, and have complied with lawful Forest Service requests regarding land use and health and safely concerns. In some situations, especially at larger gatherings, Rainbow Family members have negotiated written "operating plans" or "articles of agreement" with the Forest Service. While a typical gathering participant would consider such agreements non-binding on him or her unless he or she was a party to the negotiations, the agreements have served the purpose of communicating the concerns of both the Rainbow Family and the Forest Service. Additionally, the Forest Service has used these agreements as guidelines for taking action regarding Rainbow Gatherings where the Service is empowered to do so outside of the "special use permit" process e.g., 36 C.F.R. 261, and the Rainbow Family has used them to take actions required to facilitate the gatherings that would otherwise require direct Forest Service action, e.g., closing of a road.

In 1987, heavy rains at a Rainbow Gathering in western North Carolina contributed to an outbreak of dysentery affecting several thousand persons. The following spring the United States brought suit to completely enjoin the main gathering that year in eastern Texas, until such time as participants applied for and obtained a "special use permit" as defined in the newly promulgated "interim" rules. Chief Judge Justice of the Eastern District of Texas held the interim rules invalid because the agency failed to comply with the Administrative Procedure Act. The court further held existing rules facile unconstitutional, but allowed the government to proceed on a theory of public nuisance. Pursuant to a trial on the merits, and despite the governments "apparently uncompromising attitude toward the defendants," United States v. Rainbow Family, 695 F. Supp. 314, n. 4 (E.D. Tex. June 23, 1988), the court found that the government had failed to meet its burden of showing a substantial likelihood of irreparable harm to the environment or public property, or that existing, constitutionally valid laws and regulations were inadequate remedies for safety, traffic and many other problems the government alleged would occur. Id. at 325-30. The court did find, however, that, largely because of the one health problem that had occurred in North Carolina, the government had meet its burden with regard to threats to public health and allowed a limited injunction primarily addressing this issue. Id. at 329-52.

The 1988 Texas gathering, as well as four large gatherings and numerous smaller gatherings since that time have occurred without major incident, despite the fact that the Forest Service has been without constitutionally valid regulations governing "non-commercial group events."

The undersigned is the Executive Director of a public-interest law foundation concerned with parental rights and other family law issues, and has attended Rainbow gatherings in Michigan in 1983, California in 1984, Missouri in 1985, Pennsylvania in 1986, North Carolina in 1987, Vermont and Texas in 1988, Minnesota and New York in 1990 and Vermont in 1991.

Specific Objections and Recommendations

As mentioned above, the amendments fail to provide a definite time-frame for Forest Service action on an application for "non-commercial group event," nor do they provide standards by which the Forest Service judges a proposed non-commercial group activity in relation to some of the seven proposed criteria. In this regard, the proposed regulations as applied to the Rainbow Family are "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority," Shuttlesworth 394 U.S. at 150-51, and therefore would be unconstitutional as applied. The proposed rule undoubtedly "creates a threat of censorship that by its very existence chills free speech." A.C.O.R.N. v. Golden Cole 744 F.2d 739, 746 (10th Cir. 1984). To be constitutional as applied to protected expressive activity, the agency must devise rules based upon "narrow, objective and definite standards." Specifically, the proposed regulations at 36 C.F.R. ~ 251.54 (f) (5), (h) (ii)-(h) (v) fail this test in a number of ways. For example, clause (h)(l)(iv) concerning public health, while perhaps narrowly drawn to the concerns listed in sub-clauses (A)-(F), contains neither "objective" nor "definite" standards to be applied to these concerns. An example of an objective and definite health standard is contained in appendix A of the injunction issued in Rainbow Family, 695 F. Supp. at 333-52.

Similarly, the time-frame given in sub-paragraph (f) (5) "without unreasonable delay," is unduly vague. In the preamble to proposed rules, the agency seems to leave a definition of "without unreasonable delay" to an "analysis of what is reasonable under the circumstances," 58 F.R. 26942 col. 1. This gives wide discretion to the Forest Service to delay decision indefinitely, thereby casting a unconstitutional chilling effect upon first amendment rights, see Freedman v. Maryland, 380 U.S. 51 (1965). The agency must devise a precise timetable for 6 "permit process" regulating expressive activity if it must adhere to a such a concept.

The proposed rules still maintain an "invidious classification" in that they subject "non-commercial distribution of printed material" to classification and separate treatment. The proposed rules define "distribution" and "printed material" in the broadest possible terms, 36 C.F.R. 251.51. For the reasons given above, these provisions are facile unconstitutional. Moreover, the agency has advanced no justification, let alone the required "substantial governmental interest," Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294 (1484), for this regulation of protected expressive activity involving less than 25 persons. To avoid certain judicial invalidation, the Forest Service should drop these provisions entirely.

Finally, the 25 person or more definition for "group event," 36 C.F.R. 251 is arbitrary and unworkable. The agency should set different numbers according to the duration of the proposed activity and its impact on the land. For example, it is absurd to require a group of 25 college students to apply for a permit to take to day trip to study wildlife in an easily accessible area. On the other hand, requiring a group of 25 people who desire to camp for an extended period, or in a sensitive area, to apply for a permit might be reasonable, though the number 25 seems arbitrarily low. The agency should devise a rule that provides multiple numbers reasonably related to actual forest impact.

Respectfully submitted,

Thomas McLeod

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