General Comments

Comment:

Section 251.54(h)(1)(i) of the proposed rule required an authorized officer to determine that a proposed activity was not prohibited by the rules at 36 CFR part 261, subpart A, or by an order issued pursuant to 36 CFR part 261, subpart B, or by federal, state, or local law.

Twenty-one respondents commented on this provision. Six respondents stated that the provision is too vague and broad. These respondents commented that the provision could always provide a basis for denial of a permit; that a permit could be denied if anyone in a group might violate the law or if a state law, such as an anti-mass gathering law, prohibited the activity; that the perceived risk that a law might be broken or a habitat disturbed would suffice for denial of a permit, and that the test is speculative, biased, and arbitrary; and that the evaluation criteria apply a double standard, in that a substantial risk is required to trigger health and safety concerns, but that any risk of a take of an endangered species could result in denial of a permit, that the rule should provide that there must be a substantial probability of causing a take during the proposed activity, that ``substantial probability'' should be defined as 50 percent or greater, and that a permit should not be denied because the proposed activity violates state law, such as a state endangered species act, which could be broader than federal law.

Three respondents believed that it is a general prohibition that has no bearing on time, place, or manner. One of these respondents commented that specific regulations exist for ensuring compliance with the Wilderness Act and the ESA. Another commented that the agency should regulate sensitive areas, not numbers.

Two respondents stated that the legality of proposed activities is addressed by other laws, such as the ESA, that requiring people to apply for permits so that these laws can be upheld is unjustified, and that if someone intended to take an endangered species, these regulations would not stop them.

Another respondent stated that this provision places an undue burden onthe public in that applicants have to apply in advance and worry about whether a permit will be granted or not, that people should decide where they want to go, and that if they choose a place that they should not use, it is the agency's responsibility to inform them of the problem.

Six respondents commented that there is no need to protect the public by closing a site due to bad weather and that individuals or groups can decide for themselves whether to use a particular site at a particular time. One of these respondents wrote that people would not request a site hit by a major flood or a hurricane. One respondent stated that the provision is unjustified because there has never been a problem with extreme fire danger or inclement weather in the history of Rainbow Family Gatherings.

One respondent stated that the rule should be clarified to show that the referenced prohibitions do not include content-based restrictions in state or local laws. Another respondent commented that the Wilderness Act and the ESA are valid restrictions of time, place, and manner.

Response

The Department agrees that this provision should indicate that the referenced prohibitions do not include content-based restrictions in federal, state, or local law.

The reference to Sec. 251.54(h)(1)(i) in the preamble to the proposed rule contained this qualification, but it was inadvertently omitted from the proposed rule. Therefore, as intended, the phrase ``unrelated to the content of expressive activity'' has been added to Sec. 251.54(h)(1)(i) of the final rule.

The Department believes that the criterion at Sec. 251.54(h)(1)(i) is narrowly tailored and specific and that it constitutes a valid restriction on time, place, and manner. The Forest Service must comply with applicable federal law and regulations in managing the National Forest System. For example, the Wilderness Act requires the Forest Service to protect and manage wilderness areas so as to preserve their natural condition and to ensure that the imprint of human activity remains substantially unnoticeable (16 U.S.C. 1131(c)). The ESA requires federal agencies to consult with the Fish and Wildlife Service or National Marine Fisheries Service to ensure that any agency action is not likely to jeopardize the continued existence of any threatened or endangered species (16 U.S.C. 1536). In addition, the ESA prohibits a taking of an endangered species and, by discretion of the listing agency, a taking of a threatened species (16 U.S.C. 1538).

For example, if a noncommercial group of 75 or more requested to camp in grizzly bear habitat during early spring, when the grizzly bear, a species listed as threatened and protected under the ESA, comes out of hibernation, an authorized officer could deny the application and offer another site or time pursuant to Sec. 251.54(h)(2). As one respondent noted, statutes like the ESA and the Wilderness Act are valid time, place, and manner restrictions, and this regulation is needed to provide a framework for applying that type of restriction to noncommercial group use of National Forest System lands. The special use authorization process will give the Forest Service notice of potential problems posed by these restrictions, as well as the ability to prevent or mitigate them.

Section 251.54(h)(1)(i) is severely limited. Under this criterion, a special use authorization can be denied only if authorization of the proposed activity is prohibited by Forest Service regulations at 36 CFR part 261, Forest Service orders issued under 36 CFR part 261, or by laws that are unrelated to the content of expressive activity. The standard in this provision is not speculative, biased, or arbitrary. A special use authorization cannot be denied if authorization of the proposed activity might be prohibited by the law; a special use authorization can be denied only if authorization of the proposed activity is prohibited by the law as it is applied to the specific facts of a given application. To clarify this intent, the Department has added ``authorization of'' before ``the proposed activity'' in Sec. 251.54(h)(1)(i) of the final rule.

This regulation is intended to preempt all state and local laws and regulations that conflict with this regulation or that impede its full implementation. As long as state and local laws and regulations are content-neutral and do not conflict with this final rule or impede its implementation, the Department intends to comply fully with them in authorizing noncommercial group uses under this rule.

This criterion also will allow the Forest Service to enforce its prohibitions and orders consistently and fairly as required by law. For example, an authorized officer may deny an application and offer another site if the requested site is closed or restricted due to the outbreak of disease under an order issued under 36 CFR part 261. A site also might be closed due to extreme fire danger or inaccessibility because of flooding or heavy snowfall or to protect critical threatened or endangered species habitat.

Section 251.54(h)(1)(ii)

Listing of Comments

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