Letter from PCU 4/12/95

PO Box 27217 - Washington, DC 20038
PO Box 6625 - Chicago, IL 60680

14 February 1995
PCU // Freedom of Assembly Project

Senator Larry Craig, Chair
Agriculture Subcommittee on Forestry, Conservation, and Rural Revitalization
313 Hart Senate Office Bldg.
Washington, DC 20510

ATTN: Mr. Norm Arseneault
RE: USFS Anti-Assembly Rules Committee Action

Dear Norm, Senator Craig:

Once more... Thanks for meeting with us and probing these issues. Some good information has been shared, and your openness is appreciated.

We would like to hear more about Senator Craig's efforts to preserve Constitutional protections. You have our respect for your gutsy stands on the Randy Weaver case and the proposed 'Law Enforcement' rules for the National Forests.

We would like to see the Senator's position statements on both issues, and hear more about the public outcry and policy concerns that prompted these responses.

His views are closely aligned with the information we have presented: It looks at the 'Group Use' and 'Law Enforcement' rulemakings together as a broader regulatory scheme, showing the close connection of First and Fourth Amendment rights, and why peaceable assembly on public land is central to all American freedoms.

Around the Holidays, we outlined the grounds and course of our appeal on the proposed Forest Service rules; you asked for details to clarify what can be done. Factfinding is nearly complete on the special inquiries we discussed; a substantial presentation will go out to you soon under separate cover. For now, let us focus on the major regulatory issues, the drift of recent events, and the first priorities for action:

<> Bringing the Senate Agriculture Committee into play... The immediate purpose is to make sure that our formal appeal to the Subcommittee is carried over into the 104th Congress. Mr. Leahy and Mr. Daschle have both been receptive to these concerns, and Senator Craigs new role as Subcommittee Chair holds a good prospect of continuing bipartisan cooperation.

* We come forward with the urgency for action now on both rulemakings...

Final publication of the 'Group Use' rule is expected very soon; we hold faith that the process can be turned to a more constructive course if the Committee intervenes.

The premises of USFS 'Law Enforcement' policy must also be challenged before a new proposal comes out: We fear the broader impacts of such extreme powers, and as you observed, we don't need a new National Police force under the Forest Service.

* The recent postures of the Forest Service only heighten our concerns.

** These constitutional issues were presented at regional 'Town Hall' forums last Spring, but the 12/94 report from the "Forest Service Reinvention" process evades them entirely.[1] It offers sanctimonies about openness and the "organizational culture" of the Agency, but the roles and actions of its Law Enforcement & Investigation personnel are not discussed -- as if such matters are above public scrutiny.

Platitudes about 'public service' are meaningless if the Agency persists in rulemakings that infringe on public rights.

** The "Unified Agenda" published in November indicated their intent to proceed with the 'Group Use' rules proposed in May 93.[2] The rationalizations are the same as before, seemingly unmoved by public comments and Congressional views. It is the same circular logic that has been rejected in Federal Courts twice since 1986.

**USFS officials have confirmed that final publication of the revised regulations on free assembly is now set for late March '95. They claim that the rules have been "substantially changed" from the proposal.[3] Predictably the most offensive language will be removed to defuse opposition, leaving the intent and substance untouched.

The issues are clear, but apparently the Forest Service is not listening.

In the cumulus of public views, court decisions, and official critiques, there is a consistent message:

The Forest Service is pushing a regulatory scheme unwarranted by environmental need or compelling interest -- singling out 1st Amendment activities under arbitrary standards of restriction, and violating 4th Amendment protections with extreme police authorities. Yet their own administrative record clearly shows a history of cooperative and clean "group events", and many workable alternatives to regulation.

Agency bureaucrats doggedly ignore these obvious flaws... and if such measures defy administrative law and do not rationally serve their Congressional mandate to protect the National Forests -- We must ask a very big question:

Is it the continuing policy of the Forest Service to promulgate unconstitutional rules?

It is fitting that this question be posed in the oversight capacities of the Senate Subcommittee on Forestry, Conservation, and Rural Revitalization.

The inquiry should pursue these specific points immediately:
(1) Since no significant impacts are shown to result from 'Group Events' and 'Distribution of Printed Material' in the National Forests, on what grounds are these defined as "Special Uses", therefore subject to permit authority under 36 CFR 251?

(2) Why is the Forest Service promoting substantially the same restrictions on free assembly that have twice been struck down as unconstitutional by Federal Courts? Is this Public Agency above the Law, as its attorneys have asserted?[4]

(3) The Forest Service unilaterally disclaims any regulatory impacts; how can they determine that these are not "major" or "significant" rulemakings, ignoring impacts on the Constitution? Why do they blatantly violate the least restrictive means man-date of the Administrative Procedure Act, reinforced by President Reagan in 1986?[5]

(4) Why have USFS bureaucrats sequestered public information, and blocked meetings with White House staff in July '93 and the Secretarys Office in December '93... obstructing communication with public officials on an issue of free expression? What purpose is served by invoking the "ex parte" rules, when we have called for an open forum of all parties on these policy issues of broad public interest?[6]

(5) With the enactment of the Religious Freedom Restoration Act of 1993 [P.L.103-141], should not these rulemakings be reassessed according to the "compelling interest" test now reaffirmed for any government action restricting religious expression?

(6) Why has the Forest Service evaded inquiries about the formal administrative record of the 'Law Enforcement' rulemaking -- temporarily withdrawn by Chief Thomas in the face of broad Citizen & Congressional outrage -- despite formal requests for the official log of public comments and petitions?[7]

Ultimately, this is far more than a simple matter of routine regulation. This issue goes to the very limits of government control. The outcome will determine whether the Public may be denied access to the National Forests -- the final sanctuary of free expression and stewardship, free from fear. What we do now will redefine the relationship of free citizens to Public Lands in common trust, for generations to come.

The politics are not trivial or skewed by narrow interests. In the words of Senator Baucus, we are dealing with "a bunch of busybody Beltway bureaucrats run amok." [8] Seeking powers to require permits for "non-commercial group events", they fail to grasp or respect the very nature of free assembly, as a personal act and right:

Gathering as a Consensus of Individuals, no person can assume authority, responsibility, or liability for others by signing a permit. Compelling a Gathering to be structured as an entity for the purposes of regulation is to violate the shared belief in Consensus, and its sovereignty.

And fundamentally, Citizens do not need permission from
the government to exercise constitutional freedoms.

If the 'Group Use' rules proceed to final publication in late March, they can become law within thirty days. The Senator and the Committee must act immediately... ** Obtain the final draft rules for Congressional review, raise the Constitutional and bureaucratic issues with USDA Officials and the President, launch public inquiry and hearings to set a new policy course on Public rights and access in the National Forests.

The Chief promised a new 'Law Enforcement' proposal, but the status is unknown and there are no signs of substantive policy change. We urge two discrete actions...
(1) Secure the original Comment Log, to establish its contents and assure that current and future policies are guided by this public record;

(2) Determine why the Forest Service Reinvention Team has ignored these issues entirely in its recommendations.

We will be in touch soon to confirm a course on the best options.

Thanks for your cooperation and patience.

The PCU Volunteers / S.C. Addison


* Notes & Background: Supplement, pp. 4-5
* Letter on 'Ex Parte' obstruction to J. Lyons, Asst. Sec'y (12/6/93)
* Response from J. Gilliland, OGC (1/10/94)
* Letter to J. Lyons (2/23/94), attached comments by A.E. Mates, USFS (7/23/93)
* Forest Service Statement: LE Proposal withdrawn by Chief (5/18/94)
* 1st FOI Response from J.L. Beasley, Dep. Chief (7/22/94)
* 2nd amended FOI Request on Law Enforcement Comments, to J.L. Beasley (8/4/94)
* "Reinvention of the Forest Service: The Changes Begin" (12/6/94); pp.18-20.

CC: Jim Lyons, USDA Ass't Secretary
Sen. Frank Murkowski
Jack Ward Thomas, USFS Chief
Forest Service Reinvention Team
Sen. Orrin G. Hatch
Sen. Hank Brown
Carol Rasco, White House Domestic Policy

Certified Mail # P023 831 183



1 "Reinvention of the Forest Service: The Changes Begin". -- USDA Forest Service (6 December 1994).

2 Federal Register: Vol.59, No.218; November 14, 1994, pgs. 57020-57028. ("USDA-FS: 16. Land uses and prohibitions"). This was the focus of my faxletter to you on 12/30/94.

3 Staff from the ACLU Legislative Office spoke with Ellen Hornstein (USDA Office of General Counsel) and Ron Myers (USFS Recreation, Cultural Resources, & Wilderness Management Staff) in early January. They stated that the revised Group Use rules were already written and under final review before publication in the Federal Register.

4 In November 1993 this question was posed to Mr. Perry (Natural Resources Division Chief, USDA Office of General Counsel). He replied: "We don't think the courts can tell us how to run the agency."

5 Refer to the PCU position paper -- "Group Use Rules for National Forest Lands: A Legal & Land Use Review" -- especially discussions under "251.54 Special Use Applications", and section C on "Regulatory Impacts". Forest Service actions violate requirements of the APA as amended by Executive Order 12291, under which no new regulations may be enacted without establishing "need ...and consequences", and that "benefits ...outweigh potential costs to society".

It further states that the agency must assess "any adverse effects that cannot be quantified in monetary terms, and ...those likely to bear the costs", and meet its regulatory objective by "the alternative involving the least net cost to society". (Id., # 2,3).

6 A meeting with Assistant Secretary Lyons was set for mid-December 1993. The Office of General Counsel seized information previously submitted and instructed Mr. Lyons staff that they were not to meet or communicate with us, on the grounds that this constituted "ex parte contact" during the rulemaking process.

Neither the law nor the record support such Agency actions to preempt citizen inputs on issues of general public concern (1 CFR 305.77-3). Moreover no other "parties" are harmed or impeded by information we bring to the Secretarys front door, acting as free Citizen in the general interest. In fact we have consistently called for an open public forum or hearings, where all the facts and views could be joined toward a Consensus on new policies on public access and assembly, preserving Constitutional Rights in the National Forests.

7 The final day of the public comment period was 18 May '94, when the Chief announced that the Agency would "not proceed to a final rule" on the current Law Enforcement proposal. In a phone conversation that day, Division Staff at the Virginia headquarters acknowledged that a huge pile of opposing letters had been received. He suggested that they might be set aside or discarded, since there would be a new comment period anyway when a revised proposal is published. In turn this writer advised that IT IS the official public record... It cannot be simply thrown out.

We have taken the position that the full record of the aborted rulemaking must remain intact to inform future policy, and that its contents must be identified and reviewed, as required by the Notice-&-Comment process of "informal rulemaking" under the Administrative Procedure Act.

We submitted a Freedom of Information request for a copy of the Comment Log (5/23). Over several months into the summer, we were informed at least twice that it was not ready. The response from Deputy Chief Lamar Beasley finally arrived at the end of July, stating that "...we have conducted a careful search of our records and determined that there is no document that is responsive to your request. The search was exhaustive and reasonable."

A second amended FOI Request was immediately sent in (8/4/94). It noted that the Forest Service Chief acknowledged "thousands of comments from citizens" objecting to the proposed rules, yet an "exhaustive and reasonable" search by the Deputy Chief failed to find any record of these, estimated by other USFS staff to number over 70,000 letters. To date no response has been received from the Agency.

As for the whereabouts of the actual comment letters, in early Fall '94 we were told that they had been sent to USFS Law Enforcement Headquarters near Atlanta, Georgia. We prepared with volunteers there to extend the request directly to that office, and then heard within a couple of months that the letters were back in Virginia... and that the Log was still not available.

The law requires that the formal record be open to public review. Congress should take a hard look at a Federal Agency that would conceal the formal record, deny access, disregard its contents or that it even exists. It would be helpful and informative if independent requests for the Formal Comment Log came from the Hill.

8 Montana Missoulian, Page B-1 (April 22, 1994). Senator Max Baucus joined with Senator Conrad Burns and Congressman Pat Williams of Montana in opposing the Law Enforcement amendments (36 CFR Parts 261,262) proposed by the Forest Service in February 1994.

Williams called the wide sweep of the rules "unnecessary and inappropriate", questioning enforcement impacts on routine camping activities and the broad discretion to ban firearms in the National Forests. Burns observed: "Only elitist bureaucrats could think up this kind of nonsense. If this wasnt so serious, I would laugh."

PCU // Freedom of Assembly Project

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