Obviously there is an overriding administrative imperative behind this rulemaking: Having assumed a comprehensive authority to impose permits and fees upon all uses in National Forest areas, the Forest Service bureaucrats are compelled to close the regulatory net. In this strictural world view, group assemblies must fall within the same framework of statutory control as other 'Special Uses' and the major extractive activities of the timber, mining, and grazing industries. They are seen as just another source of potential impact, legally equivalent in kind and degree to other realms where the Agency's permit authority is clear, established, and uncontested.
This position builds upon similar authorities in the broader sphere of land use law, extending the continuous fabric of public sector control over public sites. Urban areas offer the classic case in point: When an event is staged on public streets or property in a city, local government agencies have well-established powers to issue permits anticipating impacts (upon traffic, parking, and neighborhoods), and to charge fees offsetting the costs of related public services (utilities, police, disposal, etc.).
A more direct predicate lies in the permitting practices of the National Park Service; yet here again the agency is responsible for maintaining an improved and accessible area, and providing support services to the tourist public as 'scenic consumers'. It is also palpable in this context to levy fees upon actual users of National Parks, rather than rely upon full subsidy by the taxpayers at large.
In contrast, a gathering or 'group event' in a remote National Forest imposes no impacts on proximal public uses -- by definition and intent! Moreover to the extent that support services are actually required, realistically they fall well within the scope and scale of normal agency operations. Where the Forest Service has incurred high costs in monitoring such events in the past, it has done so out of its own overreaction and enforcement fervor, unrelated to actual needs.
Therefore the purported reasoning behind this rulemaking breaks down:
By their nature and location, group events and gatherings on remote public lands are distinct in kind from those regulated in urban areas and improved park lands. Unless it can be demonstrated that actual impacts warrant regulation upon a rational basis, it must be assumed in law and administration that they fall outside the purview of conventional permitting authorities; and as courts have consistently recognized, they fall firmly within the bounds of constitutional protections.
B. TARGETED POPULATIONS & EQUAL PROTECTION
The 'Background' discussion presented in the Federal Register claimed that these amendments respond to the mandate of the Arizona court in 1986: "...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-66-027-TUC-RMB (D. Ariz. May 10, 1986)."
FR, pg. 26940.
Of course the language of the proposed regulation warrants hard scrutiny and critique, but the history of Federal agency performance in this regard should carry significant weight in assessing its real intent and effect. It is beyond the present scope to engage this topic extensively; let it suffice to note some characteristic instances:
[] The exclusion of Native Americans from traditional tribal lands is a shameful saga in our history, and it continues in these times. In the past few years alone, severe strictures have been imposed upon Piscatoway burial ceremonies in Maryland, Oglala Sioux sun dances and vision quests in the sacred Black Hills, etc. In these incidents the government has restricted access to public lands, timing of events, and the number of participants; in some cases, there are accounts of a chilling show of force and direct intimidation by enforcement officers.
[] Recently this concern gained recognition in the U.S. Senate, where the "Native American Free Exercise of Religion Act of 1993" (S. 1021) was introduced in May. This legislation would protect traditional sacred sites from preemption or degradation by other uses, and provide legal recourse where the exercise of belief or ritual is abridged. However it remains unclear how this Congressional intent will affect the standing policies of enforcement agencies, and the selective application of "content-neutral" regulations.
Rainbow Gatherings have routinely suffered harassment and obstruction throughout their 22-year history. While Gatherers have cooperated well with local Rangers, the Forest Service as an agency has deferred to zealous law enforcement and political sentiments in sanctioning roadblocks, searches, seizures, and petty arrests. Considering just a few incidents of the recent history alone:
* Large squads of Vermont state troopers were transferred to the area of the 1991 gathering in that state, jamming local hotels and roads. Traffic enforcement alone created a heavy and obtrusive presence, affecting gatherers and residents alike. Their activities were so disruptive and disturbing that in its 1991 Rainbow Gathering Report, the Forest Service acknowledged complaints by local Vermonters of "an unnecessary show of authority that turned their community into a police state". Id., pg. 26.
* In Colorado in 1992, Rainbow vehicles arriving in the area were afflicted with citations, searches, and some arrests. By several reports, the gathering was under inside surveillance by recognized DEA agents disguised in Forest Service uniforms. "Law enforcement activities were coordinated among 16 different agencies", with a strategy emphasizing "early, heavy presence [and] ...Proactive, not reactive management."
Rainbow Gathering 1992; USFS Report, pg. 39.
Of the eight agencies directly involved, six of these were identified in the Report and their personnel accounted for, totaling nearly 90 officers. The presence of other enforcement agencies (includingthe DEA) is acknowledged, but no numbers are disclosed. The Forest Service states 'management costs' of $573,500 for the 1992 Gathering; clearly a major portion of this is attributable to "proactive" law enforcement, however the exact breakdown is not given. Id., pp. 13-14, 34, Appendix.
* There were incidents at both major 1993 gatherings: In Kentucky a police roadblock was emplaced within 1/4-mile of the parking and 'Welcome Home' area of the gathering. Everyone passing this checkpoint was subjected to videotaping, spot inspection and full ID check (license, registration, and insurance). Fines were exacted from many people, and some were detained for failing to show 'proper papers', with several reports of physical restraint and abuse. A large-scale armed incursion was also attempted, involving various law enforcement and National Guard contingents, and there was heavy helicopter surveillance throughout the gathering.
In Alabama, the State Police set up an encampment within the Gathering, with illegal videotaping of participants, low-altitude overflights, regular armed patrols and random searches. A woman who photographed DEA agents was taken away and physically and sexually harassed by a group of undercover officers. There are also corroborated reports that an unknown substance was sprayed on gathering participants from low-flying aircraft, after which many people suffered illness and digestive disorders.
The list of historic abuses is long, with many instances of harassment, dirty tricks, and intimidation. While officials deny that the pending regulations are targeted against any particular group, the record is self-evident: It indicates a pattern of selective and vehement enforcement against "counter-culture groups" and other 'outsiders' -- groups which the Agency documents as being "...bound together by their common belief and desire for peace, love and respect for the planet Earth and all its inhabitants." USFS Rainbow Gathering Report, 1991; pg. 16.
Selective Forest Service enforcement in undeniable, and through a series of rulemakings since the early 1980s the Agency has been trying to institute regulations by which consensual gatherings could be preempted entirely. Against this background it is revealing to look at how they implemented the 1988 amendments in order to stop the gathering in Texas that year:
"[The] second revision of the regulations, in the form of an interim rule to take immediate effect, was published by the Secretary of Agriculture in the Federal Register on May 10, 1988, the day on which the government filed its complaint and application for a temporary restraining order [against the Rainbow Family]. See 53 Fed.Reg.16548 (May 10, 1988), amending 36 CFR § 251.50 et seq. (1987)." Rainbow at 300.
In part because of this blatant procedural flaw -- on top of the facial First Amendment issues -- the Texas court struck down the 1988 rulemaking as unconstitutional. Yet the Forest Service is now trying to push substantially the same unacceptable rules into law, subtly modified for the fourth time.
In sum, there is strong evidence that these regulations are intended as an obstacle to particular groups in their exercise of First Amendment rights, and as a wedge for invoking further restraints and enforcement against them. As such, the pending rules pose serious implications under the "equal protection" clause of the Fourteenth Amendment.
C. REGULATORY IMPACT
Citing authorities under USDA procedures and Executive Order 12291, the Forest Service determined that this regulation would not be a "major rule". Without offering any specific rationale, the rule is characterized as merely "...technical and administrative changes for authorization of occupancy and use of National Forest System lands." FR, pg. 26944.
This has the hue of a whitewash: The Forest Service assumes a unilateral authority to make this determination; in doing so the Agency evades the Regulatory Impact Analysis required of a new major rule, and the fuller scrutiny that this would entail.
Several factors pose questions as to the validity of this finding and how it was derived. First, the exemption from "major rule" status is based upon the narrow threshold test of economic impact alone. No basis is offered for applying this test exclusively, and the factual grounds for stating that "...this proposed rule would have little or no impact on the national economy" are not indicated. F.R., pg. 26944. Moreover there is no consideration of factors in this rulemaking that would be challenged in a Regulatory Impact Analysis or a Regulatory Flexibility Analysis, nor are the "...criteria for making such determinations" prescribed as required. Executive Order 12291, Sec.3(a)-(b).
According to the 'General Requirements' of the Order (Section 2), the benefits of a regulation must not be outweighed by the costs. In this vein the Forest Service pointedly ignores the pivotal issues that must be explicitly addressed; most specifically:
"...A description of the potential costs of the rule, including any adverse effects that cannot be quantified in monetary terms, and the identification of those likely to bear the costs."
Id., § 3(d)(2).
Because this test conditions the main objective of this Order, it must come to play in the primary determination on 'major rule' status. By this test the threshold would easily be crossed: The rule itself would be found to bear serious "adverse effects" upon the free exercise of basic Constitutional rights. Such a cost certainly "cannot be quantified in monetary terms"; it is telling that such a serious adverse impact is opaque to the Forest Service and simply not considered.
"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.
The sacrifice of Constitutional protections that "set us apart from totalitarian regimes" might well be considered a very steep cost to a free society -- one which the Forest Service has systematically ignored in presenting this reasonless, redundant rule. In fact by raising the specter of criminality over primary rights of assembly, this regulatory scheme strikes at the heart of free thought and diversity of ideas -- the central pillars of democracy.
The misuse of the "major rule" test is a subtle ploy for eluding meaningful review of administrative actions, and in effect a coverup of their impacts. This indicates a serious flaw in the process by which these CFR amendments have been advanced; as such it is a rulemaking against the law, with potentially catastrophic effects on the society.
D. RELIGIOUS AND EXPRESSIVE FREEDOM
Previous versions of this rule applied these requirements explicitly to religious activities. The present proposal makes no direct reference to religious activity, yet there is no exemption of such uses from restriction under the broad and vague definition of "noncommercial group event." The agency does not explain how the proposed permit scheme squares with Federal Court decisions which have found permits to be constitutionally unacceptable as applied to religious activity, 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.
Congress recently reaffirmed the importance of "free exercise of religion as an unalienable right", amending Title 5 USC 503(C)(1)(b) with the Religious Freedom Restoration Act of 1993.
This Act states that " governments should not substantially burden religious exercise without compelling justification... even if the burden results from a rule of general applicability", and requires that any such law "...is the least restrictive means of furthering that compelling government interest." Congress defines its intent by stipulating the legal tests that should apply. H.R. 1308, º 2(a) - 3(b). "(R)eligious freedom -- the freedom to believe and to practice strange and, it may be, foreign creeds -- has classically been one of the highest values of our society."
Braunfeld v. Brown, 366 U.S. 599, 612.
In excluding any explicit limits to religious exercise from the current 'group use' rulemaking, the Forest Service attempts a superficial remedy to this flaw in prior versions: This is part of how it creates the pretense of a "content-neutral" land use regulation, no longer "...distinguish[ing] between expressive conduct ...and other forms of group activity in the National forests." Rainbow at 314.
Yet the agency ignores even its own record on the religious content of such events, where groups gather in "...celebration of their bond with the earth and to pray for world peace and healing." (Rainbow Gathering 1992, USFS Report, pg. 1). In fact its proposed rules would still lay a heavy burden on those who hold sacred the religious practice of pilgrimage to the Sanctuary of Nature in groups of larger than twenty-five -- in itself a unique expression and exercise of belief. "A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different."
Wisconsin v.Yoder, 406 U.S. 205, at 234.
This language has further significance: "A way of life" may integrate religious and other forms of free expression, and these are undifferentiated in the judicial view. In this light the protections of the Yoder test would certainly extend to a broad range of First Amendment activities including or relating to religious belief. As applied to this Forest Service rulemaking, its legal footing crumbles:
It is the clear intent of Congress that a more stringent test be applied in defining "reasonable" government restriction on rights of expression, which vague claims of "significant " interest will no longer suffice to justify. Clark v. Community for Creative Non-Violence, 468 U.S. 288; FR, pg. 26940. It is then explicit on what constitutes a "compelling" interest:
"(G)overnmental regulation... prompted by religious beliefs or principles... have invariably posed some substantial threat to public safety, peace or order."
Sherbert v. Verner, 374 U.S. 398, at 403.
Contrary to legal precedent, this rulemaking offers no findings of any such "substantial threat". Against a background where "...a panoply of statutory and regulatory grounds" already exist to address these concerns (Rainbow at 314), "...it would plainly be incumbent upon the [agency] to demonstrate that no alternative form of regulation would combat such abuses without infringing First Amendment rights." Sherbert at 407.
E. PUBLIC LAND, PUBLIC STEWARDSHIP
A fundamential issue remains legally and historically unresolved beneath the turbulence of the 'group use' debate -- the true ownership of public land in the republic. Americans believe that the National Forests belong to the citizens, yet the presumption is recurrent in this rulemaking and others that they are Federal lands, and as such they are government property. It underlies the unconditional authority assumed by the Forest Service to approve or preempt uses, to grant or deny access.
As it has evolved, the National Forest System bears little resemblance to what was envisioned in its formation. The mission created under the early leadership of Theodore Roosevelt and Gifford Pinchot centered upon the conservation of public land; it assumed ownership by the citizens and vested the Forest Service in a trustee role on their behalf. Arguably this original mission has eroded in theory and practice.
The hybrid tenure of the Government and the People has been transformed by the expedients of regulation, crudely adapting the known tenets of property law: The permit system itself is an administrative analogue to the legal rights of the private landholder, enabling parallel fees and controls. Seemingly the powers of ownership have been carried over by mere inference; the very notion that the government owns the National Forests is more an artifact of vested authority than a founding principle.
Yet it has gained creedence over time, as the ethic of forest conservation has given way to the business of resource management. Especially since the 1930s, when public works programs brought significant improvements to National Forest lands and affirmed the broadest public interest in their wellbeing, the overall drift has been to define these lands as the proprietary domain of the Agency.
In this sense, the new tradition of consensual gatherings in the National Forests has reaffirmed the proprietary rights of the general public. Politically this poses a direct threat to the agency's assumed authority, which goes far to explain its knee-jerk regulatory response -- and the vehemence behind it. Ironically the political issue is incidental to a larger and more challenging cultural purpose in the gatherings: To seek commonality of spirit and enact a new ethos of Earth-centered community, with hands-on stewardship of the land as a founding principle and practice.
This represents a critical break from the Western legacy of extractive domination over the land, and opens daring new directions in the relationship of Society and Nature. It commences with a commitment to be there, to experience the full holy awe of the wilderness in its magnitude and power. It proceeds to taking direct responsibility for the effects of human presence, as individuals and as a group. And over time, it engages a process of learning about how to tread lightly and live with the land in a sustainable way. This is a radical departure, and a valuable exploration on behalf of the public at-large and generations to follow.
Taking this idea further, the gatherings embody the germinus of a larger conviction: That the Public is the ultimate steward of public land. Citizens have the right and obligation to assure that natural resources are shepherded with respect and foresight in the common trust. Free access to National Forests is fundamental to the exercise of proprietary responsibilities in this mission, crucial to the oversight that public stewardship demands. To the extent that a government authority might exclude such oversight, it cannot be tolerated.
In this light, the emergence and evolution of consensual assemblies on the land may be one of history's most profound experiments in social ecology. The fact that participants are conscious and deliberate in this endeavor is important in itself: It brings to fuller focus the need to protect expressive freedoms within this unique setting, on the understanding that "...public Forest Service lands are the type of forum in which expressive activity has historically occurred, and in which public expression of views must be tolerated to a maximum extent." Rainbow at 308.
Moreover this clear intent amplifies the fact that each such gathering is a unique form of free expression as a whole, enacting a founding purpose of the National Forests and other public lands: That they be held in trust for public use in perpetuity, to provide the final sanctuary for First Amendment rights of assembly.
This is where those rights must never be encumbered or
sacrificed, and always preserved.
CONCLUSION
In closing we contend that this Forest Service CFR proposal fails to meet the criteria of Executive Order 12291, the Administrative Procedure Act, and the Constitution of the United States. The record indicates an unneeded rulemaking -- adverse to the supreme law and spirit of the Nation, embodying an Orwellian logic of social control. It poses an alarming prospect in an emergent pattern of extreme strictures and exercise of police power by the Government.
Consequently we seek review and redress in the appropriate Executive and Congressional bodies, and urge that these regulations be firmly and finally disallowed.
Respectfully submitted,
PEOPLE FOR COMPASSION and UNDERSTANDING
Washington, D.C.