Statutory and Regulatory Background

The First Amendment of the United States Constitution provides in part that the government may not abridge the freedom of speech or the right to assemble peaceably and that the government may not pass laws prohibiting the free exercise of religion (U.S. Const., amend. I). Freedom of speech means the right to disseminate ideas freely, both orally or in writing. Free exercise of religion means the right to practice one's religion freely.

It is well established that the government may enforce reasonable time, place, and manner restrictions on First Amendment activities. Such restrictions are constitutional when justified without regard to the content of the regulated speech, when narrowly tailored to further a significant governmental interest, and when they leave open ample alternative channels for communication of information. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Permits have been recognized as constitutional restrictions of time, place, and manner for activities involving the expression of views, including religious gatherings, when specific and objective standards guide the licensing authority. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 153 (1969); Cantwell v. Connecticut, 310 U.S. 296, 304-05 (1940).

On March 3, 1891, Congress authorized the President to set aside federal lands as public forest reservations (16 U.S.C. 471). On June 4, 1897, Congress directed the Secretary of the Interior to protect the forests within those reservations and to regulate their occupancy and use (16 U.S.C. 551). On February 1, 1905, Congress transferred the authority to manage the national forest from the Secretary of the Interior to the Secretary of Agriculture (16 U.S.C. 472).

Today there is 155 national forests comprising approximately 191 million acres in 42 States, the Virgin Islands, and Puerto Rico. These forests, together with 20 national grasslands, land utilization projects, purchase units, and other lands, constitute the National Forest System.

The Forest Service, an agency of the United States Department of Agriculture, is charged with managing the resources of the National Forest System for multiple uses as well as for the provision of goods, services, and other amenities for current and future generations. The Multiple-Use Sustained-Yield Act of 1960 (MUSY) (16 U.S.C. 528-531) authorizes the Forest Service to manage diverse public, private, governmental, and commercial uses of National Forest System lands. These uses are collectively known as special uses.

The Forest Service regulates activity on National Forest System lands by issuing special use authorizations. Issuing special use authorizations allows the Forest Service to protect resources and improvements on National Forest System lands, to allocate space among potential or existing uses and activities, and to address concerns of public health and safety. The rules at 36 CFR part 251, subpart B, govern the issuance of special use authorizations for all uses of National Forest System lands, improvements, and resources, except for the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222).

The Forest Service administers approximately 65,000 special use authorizations annually. Examples of authorized uses include ski resorts and marinas, campground concessions, pipelines, communication sites, and commercial outfitting and guiding services. Competition for available sites for these uses and activities has increased as more legal restrictions, such as the Endangered Species Act (ESA) (16 U.S.C. 531 et seq.) and the National Historic Preservation Act (NHPA) (16 U.S.C. 470 et seq.), have been placed on the use of National Forest System lands.

The Forest Service hosts many types of group activities, both commercial and noncommercial, on National Forest System lands. Examples of these activities include fishing contests, mountain bicycle and motorcycle races, group camping, hikes, and horseback rides, and demonstrations and assemblies.

Large group gatherings in the national forests have significant adverse impacts on forest resources, public health and safety, and the agency's ability to allocate space in the face of increasing constraints on the use of National Forest System lands. These adverse impacts include the spread of disease, pollution from inadequate site cleanup, soil compaction from inadequate site restoration, damage to archaeological sites, and traffic congestion.

On June 21, 1984, the Secretary of Agriculture promulgated a revision to 36 CFR part 251, subpart B. The purpose of the rule was to allow the Forest Service to protect forest resources, to address concerns of public health and safety, and to allocate space among uses and activities by regulating all types of noncommercial group uses. The rule required a special use authorization for two types of noncommercial group uses, recreation events and special events, both of which involved ten or more participants or spectators. As defined, recreation events included activities involving competition, entertainment, or training, and special events included meetings, assemblies, demonstrations, parades, or other activities involving the expression of views. Noncommercial groups that did not fall into either of these categories did not require a special use authorization. Moreover, the rule contained different standards for denying a special use authorization for each type of group use (49 FR 25449).

Subsequently, a federal district court held that it is unconstitutional to require a group to obtain a special use authorization simply because its members gather to exercise their constitutional right of free speech. The court explained that 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-86-027-TUC-RMB (D. Ariz. May 10, 1986).

On May 10, 1988, the Forest Service published an interim rule amending 36 CFR 251.50 through 251.54 to comport with First Amendment rights of assembly and free speech within the National Forest System (53 FR 16548). Upon challenge of this rule, a federal district court held that the Forest Service had failed to show good cause for adopting the interim rule without prior notice as required by the Administrative Procedure Act (APA) under 5 U.S.C. 553. United States v. Rainbow Family, 695 F. Supp. 294, 302-06 (E.D. Tex. 1988). In addition, the court invalidated the classification established by the 1984 rule, which on its face singled out group uses involving expressive activities and required that they be treated differently from other types of group uses. The court held that the 1984 rule lacked clear and objective standards for determining when a group activity is a ``recreation event'' and when it is a ``special event'' involving the exercise of free speech. Rainbow Family, 695 F. Supp. at 309, 312. The court further held that the standards for evaluating an application for an authorization for expressive conduct were unconstitutionally vague as they vested too much discretion in the authorized officer. Id. at 309-12. The court also ruled that the 1984 regulations were invalid for failure to impose a timeframe for filing and acting on an application and that the absence of any requirement in the 1984 regulations that a reason be stated for denial of a special use authorization made it impossible to discern the grounds for an authorized officer's decision. Id. at 311-12. Finally, the court held that the 1984 rule was invalid for failure to provide for judicial review of the administrative determination. Id. at 311.

As a result of these court rulings, on May 6, 1993, the Forest Service published a proposed rule to regulate noncommercial group uses and noncommercial distribution of printed material on National Forest System lands in compliance with First Amendment requirements of assembly and free speech (58 FR 26940). To achieve this goal, the proposed rule contained specific, content-neutral criteria for evaluating applications for noncommercial group uses and noncommercial distribution of printed material and required that the same criteria be applied to those activities regardless of whether they involve the exercise of First Amendment rights. The proposed rule also required an authorized officer to notify an applicant in writing of the reasons for denial of a special use authorization and provided for immediate judicial review of a decision denying an authorization.

In addition to publishing the proposed rule in the Federal Register, the Forest Service gave direct notice of the proposed rule to numerous interested parties and invited their comments. The comment period for the proposed rule lasted 90 days, closing August 4, 1993.