'Group Use' Rules for National Forest Lands

Analysis and Positions on Amendments to 36 CFR Parts 251 & 261,
as proposed by the U.S. Forest Service for public comment:
Federal Register, Vol. 58/No. 86 (May 6, 1993).
[Version 6.1]

Washington, D.C.
-- December 1993 --


Introduction...BACKGROUND & SCOPE
Critique of the Text...LIMITS OF AUTHORITY
Part 251 / SubPart B, 251.50 - .51(f)
251.51(h)(i) - (vii)
(2), 251.56 - .60
Part 261 / SubPart A, 261.2 - .10
Further Observations...THE BIGGER PICTURE
A. Use Permits: Urban vs. Wilderness Areas
B. Targeted Populations & Equal Protection
C. Regulatory Impact
D. Religious and Expressive Freedom
E. Public Land, Public Stewardship
* S.C. ADDISON -- Concept & Development
* W. THOMAS -- Contributing Themes

The ideas of W. Thomas and others are dutifully included and gratefully acknowledged. I take humble responsibility for the final form and sense of this position paper, and for any perspectives which might neglect the wisdom of my friends. -- SCA


On May 6, 1993 the U.S. Forest Service published proposed amendments to 36 CFR Parts 251/261, establishing a permit requirement for assemblies of more than twenty-five people on public lands. The rulemaking is posed as a routine measure to regulate a Special Use in the National Forests, yet no grounds have been demonstrated as a 'rational basis' for imposing such a restriction.

At the same time, the Forest Service must confront a Constitutional problem: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
U.S. Constitution, Amendment I.

Stating the core motive of its action, the Agency presumes to strike a delicate balance:
"The purpose of this proposed rule is to regulate noncommercial group events and noncommercial distribution of printed material on National Forest System lands in compliance with First Amendment rights of assembly and free speech."
Federal Register, Vol. 58, No. 86, pg. 26940 ("FR").

The judicial record is clear: In two previous tests nearly identical versions of this regulation were found to be facially unconstitutional, in separate rulings by Federal District courts.
* United States v. Israel, No. Cr.-86-027-TUC-RMB, Dist. Ariz. May 1000, 1986 ("Israel"); * United States v. Rainbow Family, 695 F.Supp. 294, E.D. Tex. 1988 ("Rainbow").

The preponderance of the Agency's argument is now devoted to explaining how the rewritten rule has been tailored to comply with the prior court opinions. FR, pg. 26940.

In fact it merely ploys with legal language, evading accountability for basic constitutional premises and effects. The Forest Service still fails to present any facts that would justify the Government's "significant interest" in this unprecedented stricture, and still disregards workable, demonstrated alternatives that must be considered as "least restrictive means" to its regulatory ends.

Thus the stated purpose is oxymoronic: If enacted this unnecessary rule would impose a substantial burden on the inalienable freedoms of belief, expression and assembly -- the legacy of natural human rights to join in prayer and communion on the land, long predating the origins of this country -- by defining the free exercise of those rights as a criminal violation.

The logic of this survey responds first to the language of the amendment, as presented in the Federal Register. But because the Forest Service lacks any factual predicate for its proposed rules, the analysis must extend further to the real impact and underlying intent of the rulemaking itself --
~ Since the rules are put forth under the guise of land use regulation, it must assess whether they actually serve any legitimate purposes of land and resource protection.

~ And since they are built upon a history of questionable and sometimes draconian enforcement tactics on the part of the government, the political motives must also be examined.

Thus the present Review embraces these broader themes within its scope.


Part 251 -- LAND USES
Subpart B
1. Authority.

The Agency's position stands upon its "congressional mandate to protect the national forests", under Title 16 USC (FR, pg. 26940). This does not in itself constitute grounds for regulation.

* The Forest Service's congressional mandate is not at issue. The issue -- unaddressed by the proposed rulemaking -- is the long and consistent recognition that rights cannot legally be abridged 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 (1981); Rainbow, at 312, n. 6.

Nor did the advent of the Administrative Procedure Act alter this legal axiom. E.g.:
"The words 'to diminish the Constitutional rights of any person' are omitted as surplusage as there is nothing in the 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.

In short, the general Congressional authority vested in an agency is not in itself a basis for placing galling constraints on specific forms of public access and expression.

* As a public land use regulation, the proposed rules are subject to the 'rational basis' test at the heart of land use and environmental law:

The agency must show valid reasons to restrain specific uses, structures, or activities -- demonstrating actual impacts and appropriate mitigating measures. This connects to the broader mandates of the law that a 'significant' or 'compelling' government interest must be established before regulations may be imposed, and that regulations be "well-reasoned":

"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 recent passage of the Religious Freedom Restoration Act (H.R. 1308) has emphatically reaffirmed that a compelling Government interest must be shown to justify any regulatory restraint upon the exercise of religion, and this stringent test extends to other First Amendment freedoms. In this light it should be understood that no findings in prior relevant cases support such an interest. Nor is any information presented here to establish the need for new regulations to protect the Forests from impacts of group events, or the criteria for the exemption limit of twenty-five people.

In fact the Forest Service disregards its own annual "Rainbow Gathering" reports, which have concluded repeatedly that no significant impacts were incurred from very large events of this kind. And it ignores the pivotal finding that "...a panoply of statutory and regulatory grounds" already exist to address any legitimate concerns that may arise with regard to group use of public lands. Rainbow at 314. See also Jackson v. Ogilvie, 325 F.Supp. 864 (D.Ill.1971).

The proposed regulation impacts the First Amendment head-on, yet offers no tangible grounds. The Forest Service circumvents the problem with a sweeping generalization, invoking a circular logic of statutory authority:

"It is well established that the government may enforce reasonable time, place, and manner restrictions on First Amendment activities. Such restrictions are appropriate where ... they are narrowly tailored to further a significant governmental interest..." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); FR, pg. 26940.

This is a red-herring rationale: The agency's Congressional authority to impose "reasonable restrictions" is not in question. The threshold issue is -- "What significant government interest?" Only after a substantive "interest" has been demonstrated can the second question be addressed -- "Is the restriction narrowly tailored?"

251.50 Scope.
251.51 Definitions.

Proceeding from the 'rational basis' test as a primary constraint, environmental regulation is directed toward permanent or consumptive uses -- actions with continuing impacts upon locales, or resource takings affecting larger social and ecological systems. The authority of the Forest Service operates within this overall rubric of land use law, yet in this rule the catchall category of "Special Use" is expanded to include activities outside its original scope and intent, different in character and impact. The conceptual trick is played by defining "Group Events" and "Distribution of Printed Material" as Special Uses, conferring 'guilt' by association:

These harmless expressive activities are linked with other uses whose impacts are known and significant -- and thereby subjected to the same regulatory framework, in parallel to the major-impact uses of timbering, mining and grazing. Thus the Forest Service attempts to mask an illegitimate restraint of the First Amendment, by interpretive fiat.

Although this is done in the guise of a comprehensive and content-neutral administrative policy, the nature of the activities it would regulate is totally misconstrued in this rationale. In fact the strictures would mitigate no real impacts, but would fall heavily upon those who simply gather benignly on the land as a form of free expression in itself. It also creates a procedural quagmire, opening such assemblies to an array of administrative reviews that are inappropriate in kind and scale. Where such environmental reviews require a reasonable and timely 'threshold determination' on potential impacts, this rule leaves only a broad discretion, bypassing such requirements.
(See further discussion below under 251.54(f).)

The definitions themselves are vague and broadly contrived: Is an activity 'commercial' if kids trade beads or baseball cards? Is bonding required if event costs might be supported in part by donations? Is it a restricted 'distribution of printed material' to give your cousin a newspaper? E.g.:
"Commercial use or activity -- any use or activity on National Forest System lands involving the charge of an entry or participation fee, or the purchase, sale, or exchange of a product or service, regardless of whether the use or activity is intended to produce a profit." 251.51; FR, pg. 26945. "Distribution of printed material -- disseminating, posting, affixing, or erecting printed material as defined in this section or soliciting information, views, or signatures in conjunction with the distribution of printed material." 261.2; FR, pg. 26946.

These open ended definitions run afoul of the very precedents upon which the agency rests its legal authority -- i.e., (1) that regulations be "narrowly tailored to further a significant governmental interest" Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984), and (2) that they provide "specific and objective standards to guide the licensing authority. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 153 (1969). FR, pg.26940.

The restraint of "printed material" under Special Use authorities is especially vexing as an administrative intent -- this provision has no basis or purpose in land use management. Arguments that "...Such distribution can occur by posting, affixing or erecting the material, which could damage natural resources if not regulated..." (FR, pg. 26941) are speculative, specious, and absurd. "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. Most important, this provision would vest a powerful preemptive authority in government officials. The effect would be chilling upon basic Constitutional rights of assembly and expression, and extraordinarily dangerous as a legal precedent.

251.54 Special Use Applications
(a) Preapplication activity

It is not unreasonable to say that "...a proponent is encouraged to contact the Forest Service office(s) responsible for management of the affected land as early as possible so that potential constraints can be identified..." (italics added). This would fully suffice to state an Agency policy of cooperation in managing group events. It is unnecessary to impose a permit quirement that is redundant upon existing regulations, and pointless to use coercion where consensus will work.

In fact there is a long history of group events cooperating with the Forest Service in this way, recognizing the legitimate concerns of local rangers and consulting with them on issues of siting, health, and resource protection. Over many years 'Operating Plans' have been worked out in advance, and there is a long legacy of good performance, showing that the Agency's true objectives can be met in this way. (See Attachment A: "Interior Site Operations Plan", Michigan 1983.) This history is well-known to the Forest Service as a matter of record -- one which they fail to address as offering a viable alternative to its proposed rulemaking.

Moreover it is the obligation of the Agency to explore such options for meeting its legitimate goals, before any regulation may be imposed. This is a well-established principle of administrative law, and it is explicit in the "General Requirements" of Executive Order 12291. It places clear mandates upon "all agencies" in promulgating new regulations:
"(a) Administrative decisions shall be based on adequate information concerning the need for and consequences of proposed government action;

(b) Regulatory action shall not be undertaken unless the potential benefits to society from the regulation outweigh the potential costs to society;

(c) Regulatory objectives shall be chosen to maximize the net benefits to society;

(d) Among alternative approaches to any given regulatory objective, the alternative involving the least net cost to society shall be chosen..."
Executive Order 12291, Section 2.

In short, new rulemaking should be the management measure of last resort. Clearly the bureaucratic compulsion to assert a permit authority does not comprise a significant government interest, in any case -- especially where the singular effect is to place an undue and unconstitutional burden upon citizens in the exercise of inalienable rights of assembly. This concern is amplified by the further language of this section, which sets up an indefinite process and timeframe for reviewing the Special Use application, open to arbitrary discretion on the part of Forest service officers.

(e) Application content.

In a similar vein, it may be reasonable in itself to advise the Forest Service of the expected time, place, size, and nature of a group event on public land. However if this is to be required "minimum information" of a permit application {FR, p. 26941), proponents would bear an undue burden of proof, subject to arbitrary standards and demands for information. Where an "event" might be multifarious and organic in nature, participation unknown, set-up and clean-up times imprecise -- an officer would have the prerogative to arbitrarily delay or deny an application because the information provided is deemed 'inaccurate' or 'inadequate'.

Most important, the Forest Service demands under (E) that an agent be designated "...who will sign a special use authorization on behalf of the applicant". This implies a stipulation that a 'group' be constituted or structured as a legal entity for the purposes of the public agency and its rules. Such a stipulation has no basis in the law. Where individuals uphold and exercise a shared belief in consensual democracy as the working principle of their assemblies, they may not be forced by Forest Service directive to alter their philosophical grounds: No hierarchy may be imposed, nor any authorities delegated, without violating their freedom of belief in Consensus. And where a permit process itself would intercede in First Amendment rights, it is a further matter of principle that these rights not be renounced by sanctioning one person to sign an application.

(f) Processing applications.

In an administrative view, it is axiomatic that National Forest plans and uses must be consistent with the requirements of other regulations and the findings of other agencies. However the language under (4) sets a confusing procedural trap: "If this information is already on file with the Forest Service, it need not be refiled if reference is made to the previous filing date, place and case number." FR, p. 26945.

This invokes a huge and indeterminate body of law and policy. It implies that all of this is relevant to a group use review, and apparently places the burden of documenting this material entirely upon the applicant, subject to the whims of the reviewing officer. The Agency's further commentary in the Federal Register extends the trap and makes its motives more obvious:
"...[The] decision-making process... may trigger extensive statutory and regulatory requirements, including those imposed by the National Environmental Policy Act of 1969..., the Endangered Species Act..., the National Historic Preservation Act... and other laws." FR, pg. 26941

Such procedures would be loaded on an already extensive review framework, expanding the scope and process demands that are imposed. In fact it is the Agency's job to assure that its regulations are consistent with other law, yet this proviso would again have the effect of placing the burden of this proof upon a 'group event' applicant. It should also be clear that these measures would encumber the agency and taxpayers with the added costs of processing applications and managing records -- and once more create a very loose discretion for the officer. This is a serious due process issue.

Moreover the logic fuels a broad rationalization for any delays in processing that may arise, regardless of any reason or accountability:
"The time needed to comply with these requirements varies greatly depending on the particular circumstances of each application. ...Consequently, the agency has determined that it would be infeasible and arbitrary to specify a time period in which final agency decision would be made." FR, p. 26941.

It is further telling that this rationale directly contradicts USFS policies for implementing regulations under the National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ). As amended in 1992, Forest Service Handbook 1909.15 (Environmental Policy and Procedures Handbook) sets forth "Classes of Actions Requiring Environmental Impact Statements" under Chapter 20.6. None of these classes is applicable to transitory group events.
Federal Register 57:182, 9/18/92; pp. 43200-201.

Conversely Chapter 31 identifies "Categories of Actions Excluded from Documentation"; group uses may be interpreted within the scope of actions defined under this section, e.g.:
"8. Approval, modification, or continuation of minor, short-term (one year or less) special uses of National Forest lands..." Id., 31.1b(8), pg. 43209. Alternately such events might fall under 31.2, "Categories of Actions For Which a Project or Case File and Decision Memo Are Required" (pg. 43209). Yet such actions are "routine" by definition, not entailing any significant site impacts, and therefore clearly outside the purview of a full environmental review. Either way, the net effect in the proposed 'group use' rules is to create a hollow procedural threat that is clearly proscribed by its own NEPA and CEQ policies.

While the Forest Service stands on the pretense of remedying defects that Federal courts have found in their previous rules, this logic directly evades and defies the mandate for timely due process expressed in the 1988 decision. Rainbow at 306-308. In order to justify vagaries in the handling and timing of group event permits, the Forest Service invokes review processes that are inapplicable and unlawful, and still refuses to specify a finite "time period" for permit response. In sum, this amended rule would be blatantly illegal in scope, more vague, more subject to "unreasonable delay", and thereby more unconstitutional than the last.

Legal Land Use Review Continued

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