LegaLiaison - DC Crew
PO Box 27217; Washington, DC 20038
202-462-0757, 202-265-5389 (V/F)
23 August 1993
ATTN: LegaLiaison Clans, Focalizers & Friends
RE: Strategies on FS Regs, Legal & Land Use Review
Greetings Compadres:
As you may know, Family Folks have shown up in DC
from all the gatherings and around the country to
help out in the fight against the anti-gathering
amendments (36 CFR 251/261) proposed by the Forest
Service. A load of work has been done, and since the
closing of public comments on August 4 we are
shifting gears for the final review period and
beyond. Through the course of three LegaLiaison
Councils some new strategies have emerged. The
purpose here is to share the outlines of the big
picture and to present a piece of work which will be
key to our upcoming efforts.
The attached document is a "Legal & Land Use
Review" prepared mainly by Thomas and myself, with
inputs on the early drafts from the DC Crew and some
stalwart outside agitators. It is intended as a
tight and complete technical analysis of the proposed
regulations, in terms of their Constitutional and
environmental implications. We will use it
principally in three ways:
(1) Submitted to key Congressional Judiciary
committees, it will present grounds for formal
inquests and possibly live hearings, hopefully to
preempt implementation of the FS rules.
(2) Provided to LegaLiaison crews and attorneys, it
gets a jump on preparation of formal briefs for
legal actions to arise if and when the FS rules
take effect.
(3) Discussed within the Family, it is a way of
bringing out some long-term issues and clarifying
key positions to be consistent in our work across
the country throughout the coming year.
It was consensed in the 8/11 LegaLiaison Council
that this document be advised by regional LegaLiaison
crews and lawyer allies before it goes anywhere
officially. We are also sending it to regional
focalizers for wider discussion and quarterly
newsletters. If it is agreed to submit the amended
version as a position statement of LegaLiaison, it
will go in as a final draft subject to Family
consensus on the land(s) next July. If there were
more time, there could be more advance input; this is
a necessary strategic compromise... reality is real.
Because the Review package has to go in to the
Congressional Committees right after Labor Day, your
fast and clear feedback is needed NOW. LL Crews and
Focalizers are urged to network out for ideas and
concerns, and to get concise comments back to the DC
Crew no later than Friday September 3; phone, fax,
and e-mail lines will be open. Inputs are especially
needed on the following points:
~ Citing Cases: Specific cites to support arguments
presented, to be included now or used later.
~ NFS Management Plans: Info/experience on
'multiple-use planning', effects & limits of FS
authorities, standing of 'group events' on National
Forest lands.
~ 'Equal Protection' Issues: Facts and legal ideas on
the "Targeted Population" rap on the regs,
including Native hassles and selective
harassment/enforcement cases.
~ Being a Nonentity: Defining Rainbow as a 'consensus
of individuals' before the law, no compromise.
Please consider the Review closely and give us
your thoughts. It can't say everything, but it is
thorough and hard in hitting the proposed regs, and
it opens the door for more later. If we hear
nothing, silence will be taken as consensus; if you
like the stuff we're doing, that would be good news.
Thanx, Stay High...
Scottie
[temporary phone/fax:
301-588-8387]
Proposed U.S. Forest Service Amendments, 36 CFR Parts
251/261--
LEGAL & LAND USE REVIEW
DRAFT 4
-- LegaLiaison, DC Crew --
(Scribes: Scott Addison & William Thomas)
21 August 1993
This document is presented subject to the approval of other
LegaLiaison Councils and consensus of the Rainbow Family
Tribal Councils convening on the land July 1-7.
Background
On May 8, 1993 the National Forest Service published
proposed amendments to 36 CFR parts 251 and 261 to establish
prohibitions that would affect "Noncommercial Group Uses" on
public lands. As stated by the Agency:
"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.
The Forest Service faces a problem of its own creation:
Their previous rulemaking was found to be unconstitutional 'on
its face' in the opinions of two Federal District courts
(United States v. Israel, No. Cr.-86-027-TUC-RMB, Dist. Ariz.
May 1000, 1986; and United States v. Rainbow Family, 695
F.Supp. 294, E.D. Tex. 1988). The preponderance of the Forest
Service's argument is now devoted to explaining how the
rewritten rule has been tailored to comply with those opinions
(FR, pg. 26940), while evading accountability for its basic
premises and effects.
"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.
In this light the stated purpose is oxymoronic. If
promulgated this unnecessary rule would impose a substantial
burden on the bedrock freedoms of belief, expression and
assembly -- linked to natural rights of land use and access
which predate even the origins of this country -- by defining
the exercise of those rights as a criminal violation.
Because the Forest Service lacks any factual predicate
for its proposal, a complete assessment cannot be constrained
strictly to the language of the amendment itself; it must also
consider issues beyond those mentioned in the federal
register. Since the rules are put forth under the guise of
land use regulation, it must determine whether they actually
serve any legitimate purposes of land use protection. And
since they are built upon a history of questionable political
motives on the part of the government, these too must be
scrutinized.
Thus the present Review embraces these themes within its
scope.
Critique of the Amendment Text
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 op.cit., 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
extinguished 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, 133 (1981).
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 (Administrative Procedure) 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 an action of public land use regulation, the proposed
regulations are subject to the "rational basis" test that is
at the heart of land use and environmental law: The agency
must show clear findings and good reasons to restrain specific
uses, structures, or activities.
In no prior relevant case have there been any findings
supporting such a compelling Government interest, nor have any
facts been presented to indicate the basis for this Forest
Service proposal. The Forest Service overlooks the fact that
"...a panoply of statutory and regulatory grounds" already
exist to address just about any conceivable legitimate
interest that may arise with regard to group use of public
lands. United States v. Rainbow Family, 695 F. Supp. 294,
pg.314.
This connects directly to the broader condition in the law
that a significant or compelling government interest must be
shown before regulations may be imposed, and to Executive
Order 12291 which requires regulations to be "well-reasoned:"
"Administrative decisions shall be based on adequate
information concerning the need for and consequences of
proposed government action" Id., Section 2(a).
~ The regulation contains no readily discernible information
concerning the need for new regulations to protect the Forests
against groups of more than twenty-five people. So the agency
attempts to do indirectly that which it cannot do directly:
"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)."
Fed. Reg. 26940.
Again, the agency's authority to impose "reasonable
restrictions" is not at issue. The first question is: what
"significant government interest?" Only after the
"significant interest" has been identified can the second
question be addressed: Is the restriction "narrowly
tailored?"
251.50 Scope.
251.51 Definitions.
~ The authority of the Forest Service operates within the
broader rubric of land use law, where regulation is directed
toward permanent or consumptive uses -- constructions and
activities with continuing impacts upon locales, or resource
takings affecting larger social and ecological systems. In
this rule the catchall designation of "Special Use" is
extended to include activities beyond its original scope and
intent, different in character and impact. The conceptual
trick is played by defining "Group Events" and "Distribution
of Printed Material" within the rubric of Special Uses:
Thereby these activities are associated with others whose
impacts are well-known and significant, and subjected to the
same regulatory framework, in parallel to the major impact
uses of timbering, mining and grazing.
Although this is done in the guise of a comprehensive and
content-neutral administrative policy, in fact the strictures
fall most heavily upon those who would simply gather on the
land. This logic totally misconstrues the nature and
substance of activities it would regulate; it also creates a
procedural quagmire: It opens the permit applicant 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 family photo? 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, p. 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, p. 26946.
These open ended definitions run afoul of the very legal
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). Fed. Reg. 26940.
~ Previous versions of this rule applied these requirements
explicitly to religious activities. No such reference is made
in the present proposal, yet there is no exclusion of such
uses from restriction under the broad and vague definition of
"noncommercial group event". It is not explained how a permit
requirement squares with Federal Court decisions which have
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.
~ The restraint of "printed material" under Special Use
authorities is especially vexing as an administrative intent,
and dangerous as a legal precedent. 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 58/86, 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, with chilling
effect on basic Constitutional right of assembly and
expression.
251.54 Special Use Applications
(a) Preapplication activity
It is reasonable 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 as a statement of Agency policy on
managing group events; it is unnecessary to impose a permit
requirement that is redundant upon existing regulations.
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 and resource protection. 'Operating
Agreements' have been worked out in advance, and overall there
is a 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. In this light it is clear that imposing a
permitting process serves no compelling Government interest,
merely placing an undue and unconstitutional burden upon
citizens in the exercise of their rights of assembly. This
perspective is reinforced by the further language of this
section, which sets up a vague process and an indefinite
timeframe for reviewing the Special Use application, open to
arbitrary discretion on the part of Forest Service officers.
(e) Application content.
It is reasonable in itself to advise the Forest Service of
the 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 58/86, p. 26941), proponents would
bear an undue burden of proof, subject to arbitrary standards
of accuracy and demands for further 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 it
is a matter of shared philosophy to uphold consensus rather
than hierarchy within a group, hierarchy cannot be imposed.
There is no reason to assume that those individuals may be
forced under Forest Service directive to alter their
philosophical grounds. Where a permit process intercedes in
First Amendment rights, it is a matter of principle that these
rights not be renounced by signing an application.
(f) Processing applications.
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) creates a 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
administration as relevant to a special use review, and places
the burden of documenting this material entirely upon the
applicant, subject to the whims of the reviewing officer.
Further commentary by the Forest Service in the Federal
Register is especially telling in this regard:
"...[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."
Federal Register, pg. 26941
This proviso stands upon an already extensive review
framework, expanding the scope and process demands upon 'group
event' applicants. In fact it is a basic job of the agency to
assure that its regulations are consistent with other law, yet
this provision would have the effect of placing the burden of
this proof upon an applicant. It should be clear that these
measures would encumber the agency and taxpayers with the
added costs of processing applications and managing these
records -- and again creating a very loose and arbitrary
discretion for the officer. This is a serious due process
issue.
Moreover this becomes a rationalization to justify 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.
Where the Forest Service has made a big pretense of remedying
defects that Federal courts have found in their rules, this
logic directly evades and defies the mandate for timely due
process expressed in the 1988 decision. In effect, the rule
would be more vague, more subject to "unreasonable delay", and
thereby more unconstitutional.
(h) Response to applications for noncommercial
group events or for the noncommercial
distribution of printed material.
The proposed amendment purposes to remedy a flaw in the
1984 rule, which "...applied different criteria for activities
with First Amendment implications than for all other
activities..." . FR, pg. 25942. It fails to do so: A
separate set of standards still applies to the 'distribution
of printed material'; terms are merely juggled so that all
noncommercial group events fall under these tests, apart from
other special uses. In fact the latitude of the agency to
deny access to public land is expanded, vesting vague and
arbitrary discretion in the hands of the Agency's "authorized
officer".
(1) Seven criteria are set forth for granting a special use
authorization, whereby it must be determined that the
'proposed activity'...
(i) "...is not prohibited [under 36 CFR
rules] or by federal, state, or local
law..."
"This criterion would allow the agency to deny an
application for activity that would violate federal, state, or
local law." FR, p. 26942. In short, the perceived risk that
a law will be broken or a habitat disturbed becomes a basis
for denying access rights; the test is entirely speculative,
the process wide open to bias, politics, and arbitrary
pre-judgement. Note also that the reference to the new
prohibitions under 36 CFR part 261, subpart A creates an
entirely circular logic: Does this mean that a special use
permit may be denied on the speculation that a 'crime' of free
speech might be committed?
The Federal Register publication documents absolutely no facts
to justify a NEED for new rulemaking, over and above existing
regulations. Preemptive speculation that a law might be
broken does not constitute such a need. This failure should
be sufficient to invalidate the legitimacy of the proposed CFR
amendments.
"An undifferentiated fear or apprehension of disturbance
is not enough to overcome the right of freedom of
expression."
Tinker V. Des Moines School District, 393 U.S. 503, 508
(1969).
(ii) "...is consistent or can be made
consistent with the applicable and
approved land and resource management
plan..."
Management plans for National Forests already have the
force of law, supported by regulations protecting sensitive
environments, habitats, and resources. This fact underlies
the finding of the 1988 court that the body of existing
regulations was sufficient to the agency's purposes of
protecting National Forest lands and resources. In effect,
this finding alone overturns the Agency's pretext of a
compelling government interest in promulgating these rules.
In this light the actual scope and intent of forest
management plans should be understood: Their function is to
reconcile demands and set specific limits on major uses, based
on environmental and performance standards with which all
activities must conform. Here again, it is the duty of the
Agency to assure that plans and standards are consistent, to
inform prospective users of all relevant provisions in
substance, and to prove that actual breaches have occurred to
warrant enforcement action. The burden of proof may not be
placed upon users before the fact.
It is true that the management plans are developed and
adopted with public input (albeit in a flawed process stacked
in favor of special interests). As such the plans do not
address "group events" as defined in this rule; they are not
expressly prohibited or limited. Therefore the application of
the plans in this regulatory scheme is subject to the
protections of the Ninth and Tenth Amendments:
Free assembly on public land is a right 'retained by the
people', not to be denied or disparaged by other authorities
under the Constitution; and the final stewardship of public
land is a power "reserved to the people", overarching the
trustee role of public agencies. Nothing in forest management
plans may be construed as grounds for preempting these rights
and powers.
(iii) "...will not delay, halt, or prevent
administrative use... or other scheduled
or existing uses..."
Forest management plans are built upon the concept of
balancing interests in an ongoing 'multiple use' scenario.
Here again the language blurs the fundamental difference
between a permanent or consumptive 'use' and a transitory
'group event', which by nature imposes no significant
competing demand upon the scheme. Experience has shown that
minor, temporary accommodations are easily made by prior
agreement; this has been done many times.
Yet this provision again sets up a vague and arbitrary
discretion, one which bypasses established protocols in
environmental law for determining whether impacts of an
activity will be significant -- the 'threshold determination'
discussed above. This leaves the "officer" in a position of
unilateral arbitrary judgment, speculating on a worst-case
analysis under pressure to deny access. The 1984 rule was
struck down for this reason, and the 1988 court made the point
specifically:
"Although NEPA is unquestionably constitutional, even an
otherwise valid statute cannot be applied in a manner
designed to suppress First Amendment activity, or out of
hostility to a particular group." U.S.v. Rainbow Family,
695 F.Supp. 314 (E.D.Tex.1988), pg. 325.
Despite its pretenses, this amendment offers no remedy. To
say that this concern of the court is addressed "...by
providing specific examples of how an activity covered by this
paragraph could delay, halt, or prevent existing or scheduled
activities..." is tantamount to speculative law by analogy.
It is no basis for preemptive enforcement.
(iv) "...would not pose a substantial danger
to public health [with respect to]
sanitation..., waste..., drinking
water..., contamination of the water
supply..., handling of food."
These concerns are the usual jurisdiction of local health
officials, in this case shared or assumed by the regional
Forest Service personnel, depending on the circumstances.
They are important and legitimate standards of performance,
directly applicable to the protective mandate of the Agency.
They have also been the first concerns of Gathering
participants, and focus of Operating Plans resolved in
cooperation with local rangers in advance of every Rainbow
Gathering. Overall the track record is impressive, where
large groups and complex logistics have been accommodated with
minimal impacts on National Forest ecosystems and public
health.
The history also shows many occasions when the Agency has
invoked these concerns rigidly and arbitrarily -- beyond the
mandates of reasonable and fair judgment -- to discourage
gatherings and exert a chilling effect. They have also been
used as a pretext and wedge for other enforcement ends (eg,
DEA agents in Forest Service uniforms). That these public
health issues are legitimate concerns for public sector
oversight is beyond question. In fact, only in response to
these concerns did the Texas court find sufficient grounds for
limited injunctive restraint upon gatherings:
"...in view of the lack of evidence of irreparable injury
in any area other than public health, a total
proscription of the gathering would be unjustified.
...Conversely, ...it is a reasonable time, place, and
manner restriction to require that the defendants' First
Amendment activities not threaten the public health or
welfare."
U.S.v. Rainbow Family, 695 F.Supp. 314 (E.D.Tex.1988),
329; citing Grayned v. City of Rockford, 408 U.S. 104;
Kovacs v. Cooper, 336 U.S. 77; De Jonge v. Oregon, 299
U.S. 47; Schenck v. United States, 249 U.S. 47.
The court left a clear mandate for raising the standards
of environmental health practices at gatherings, but
disallowed imposing them as review criteria in a new rule,
finding this to be preemptive of First Amendment rights and
redundant upon existing regulations. Protections against
watershed degradation and disease risks in food handling are
already embodied in management plans, environmental standards,
and public health codes. These parameters will be key to
improved cooperation and more effective site plans for future
events; but clearly they may not be invoked as a speculative
pretext for denying a permit.
(v) "...would not pose a substantial danger
to public safety... [on the basis of]
potential for physical injury from the
proposed activity, ...characteristics of
the proposed site, ...existing uses or
activities, ...and the adequacy of
ingress and egress in case of an
emergency."
It is always incumbent upon forest users to heed safety
concerns; these are primary considerations in selecting a site
and planning activities. In this outlook potential dangers
are understood as problems solvable by knowledge and
preparation -- this is the essence of wilderness experience.
When accidents occur requiring emergency assistance, there are
direct costs to the Agency, and they fall reasonably within
its normal operating scope. However the threat of accident
in a National Forest entails no legal or financial liability
to the Agency; therefore it presents no legal or financial
need to control access on these grounds, and the rule is
superfluous. Conversely the issuance of a permit would carry
an expressed sanction of the site and event as a whole, and
implied assurances of safety -- possibly engaging public
liabilities for accidents, incidents, or individual misdeeds.
The costs to the public that could arise under this scenario
have not been assessed.
The 1984 provision on "clear and present danger" was
struck down for being vague and leaving too much discretion in
the hands of officials. F.R., pg. 26943. This new language
is presented as a remedy to that flaw, yet it merely iterates
the axiomatic cases that are implied in the original rule: It
states the obvious on the kinds of danger of concern to
officials -- giving them plenty of potential dangers to worry
about -- but says nothing about the degree of danger that
would warrant a denial of access to public lands. Similarly
if the "ingress/egress" criterion is based on large vehicles,
it could easily bias the review and bar users from remote
sites. The thresholds are left arbitrary, and agency latitude
remains way too broad. Again this allows for a permit to be
denied on purely speculative or specious grounds.
(vi) "...does not involve military or
paramilitary training or exercises by
private organizations or individuals,
unless such training or exercises are
federally funded."
This is a double-edged sword, ironically befalling those
most interested in ploughshares. Ostensibly this test is
targeted upon armed 'extremist groups', known or suspected.
But given such loose discretion and the chronic paranoia of
authority, might it also be invoked against such
'paramilitary' groups as football teams, the Salvation Army,
Rainbow Hug Patrols, or the Boy Scouts of America? Would it
proscribe activities like survival training using military
techniques, martial arts such as Aikido or T'ai Chi, or
nonviolence training for organized civil disobedience? Once
again the definitions are too vague, and the powers too broad.
Moreover the exemption of "federally funded" activities
from control implies an unconditional sanction for police,
armed forces, and counterinsurgent training on public lands,
regardless of where the authority and funding originate. It
can be construed to convey upon 'official' military activities
a preemptive and exclusive right of access to National
Forests, posing a serious Constitutional infringement under
the Second Amendment. Such issues reinforce doubts as to the
sense, effect, and legality of the proposed regulations.
(vii) "A person or persons 21 years of age
or older has been designated to sign and
does sign a special use authorization on
behalf of the applicant."
As stated above in response to paragraph 251.54(e), the
Forest Service has no authority or reason to stipulate that a
user group be constituted as a legal entity or structured
internally solely for the purposes of the public agency and
its rules. This bears directly and heavily upon the
'consensus group', which by definition and intent is not an
entity -- it is an assemblage of free individuals, willfully
joining in mutual care, common activities, and the natural
human instinct and right to gather, but entirely
self-responsible as persons before the law.
The history shows this provision to be misguided and
unneeded: Past gatherings have counciled with local
authorities in advance and prepared operating plans in full
cooperation. The Forest Service has always had reliable
contacts from the gatherings; their questions have been
answered, their reasonable requests met, problems have been
solved together and sites have been left in a clean and
natural state. These facts demonstrate a consensual respect
and integrity as individuals toward legitimate public
interests, common wellbeing, and the land; they do not
indicate a compelling need for the law to override rights of
free association and consensus, or to impose singular
responsibility upon individual participants.
As the Agency says, "...someone on behalf of the
applicant must accept the responsibilities associated with use
of National Forest System land." F.R., pg. 26943. In fact
this provision suggests an impermissible intent of the
government to isolate 'leaders' from the consensus, make them
culpable for the real or imagined actions of the group, and
expose them to penalties under the full weight of the law. It
is a set-up for conveying legal liability and standing for
court action.
(2) This paragraph states that if a special use application
is denied on the basis of any of the seven criteria,
"...the authorized officer shall notify the applicant in
writing of the reasons for the denial..., [and that this
constitutes] ...final agency action and is immediately
subject to judicial review." F.R., pg. 26946.
Allegedly this remedies two defects in the 1984 regulations,
according to the findings in the 1988 case -- (a) that the
grounds for denial must be stated, and (b) that the process
"...provide for judicial review of the administrative
determination." United States v. Rainbow Family, 695 F. Supp.
294, 311-12; F.R., pg. 26940. Yet the language provides no
stipulation on the procedure to insure a timely response by
the agency, again skirting the mandate of the Court.
"A decision to grant or deny an application for a
noncommercial group event or noncommercial distribution
of printed material shall be made without unreasonable
delay." 36 CFR ?251.54(f)(5); Federal Register, pg.
26945.
"Without unreasonable delay" is an unreasonably inspecific
timeframe.
"[A] fixed deadline for administrative action on an
application for a permit 'is an essential feature of a
permit system.' 24 hours suggested as maximum time for
action, permit to be deemed granted if no action is
forthcoming within the time limit." United States v.
Abney, 534 F.2d 984, 986, ftn. 5, citing Shuttlesworth v.
Birmingham, 394 U.S. 147, 162-164.
Whether or not an application will be granted is a
decision resting solely with the Forest Service officer, who
also has an intolerably broad latitude within which he can
exercise his pleasure. Moreover judicial recourse is hollow:
It is a non-solution if the agency can delay an application
past the point of any meaningful remedy or resolution; and it
is coercive and chilling where the process of seeking recourse
is itself punitive in effect. Given the cost and duress of
going to court (especially against the U.S. Government), this
proffers an undue burden upon the applicant in the exercise of
Constitutional rights, and upon American taxpayers in bearing
the cost of the Forest Service's wasteful and repressive
litigation.
251.56 Terms and conditions.
(e) Bonding.
251.57 Rental Fees.
These provisions would exempt 'noncommercial group events
and noncommercial distribution of printed material' from
payment of security bonds or use fees. This is appropriate in
itself, however the determination rests upon vague definitions
in the rule and arbitrary discretion vested in officials, as
discussed above in several contexts. In fact the conditions
here are so sweeping and the loopholes so huge as to give the
Agency virtually unbridled power to impede activities on
public land by imposing undue financial burdens on prospective
users. Given the known history and the apparent intent of
this regulation, this is the likely effect.
251.60 Termination, revocation, and suspension.
This paragraph establishes the discretion of the
authorized officer to suspend, revoke, or terminate a special
use authorization. Although it nominally exempts
'noncommercial group events and noncommercial distribution of
printed material' from such action ex post facto, there is no
assurance that an officer may not arbitrarily change a prior
determination and shut down an event. For example, if a
permit is granted for a noncommercial group event and the
officer discovers an informal trading area or donations being
accepted, he may call this a 'commercial' activity and revoke
the noncommercial permit. The overall event that had received
authorization would then stand in violation, and its
participants subject to prosecution after having gained
approval.
There is a further danger that this could be used to as a
pretext to justify physical incursion by officials into a
group event in progress, and open it to broader enforcement
against participants. Finding an event in violation of a
special use authorization could be construed as 'probable
cause' for illegal searches, seizures, and detentions; lesser
grounds have been used this way in the past. As such this
provision opens the door to abuse of Fourth Amendment
protections on a massive scale.
Part 261 -- PROHIBITIONS
Subpart A -- General Prohibitions
261.2 Definitions.
The definitions for "Distribution of printed material" and
"Printed Material" are restated under this subpart. The
overall problems with how these terms are treated under the
'Special Use' designation are discussed above under section
251.51. However it is worth emphasis that these terms are
added to the list of Special Use Prohibitions for the first
time under this proposed CFR amendment.
It is shocking enough that the Forest Service would
presume to abridge First Amendment activities under the mantle
of forest regulation; the fact that they do so in blatant
defiance of Federal Court findings in direct precedent cases
is an outrage. This bespeaks a repressive intent and a
capricious temperament in the administration of the Forest
Service, warranting deeper legal scrutiny and political
intervention .
261.10 Occupancy and use.
Paragraphs (g) and (h) set forth the prohibition against
"...distributing any printed material without a special use
authorization", along with specific criteria by which a
violation would be defined under this section. The
"...delaying, halting, or preventing administrative ... or
other scheduled or existing uses" creates an extremely broad
test for these activities. Loosely construed, virtually any
citizen presence on National Forest land might be determined
to impede other uses or conflict with the multiple-use
management plan.
There are further strictures against "...misrepresenting
the purposes or affiliations of those selling or distributing
the material {or} ...the availability of the material without
cost or donation." {F.R., pg. 26946}. In the first place,
actions of "delaying, halting, or preventing administrative
use of an area," and "misrepresentation" are evils which can
be remedied under existing regulations. However this
particular prohibition also amounts to a "prior restraint on
the exercise of First Amendment liberties...", blatantly
trammeling the judicial test for "narrowly tailored time,
place, and manner restrictions...". U.S.v. Rainbow Family,
695 F.Supp. 314 (E.D.Tex.1988), 329; citing Near v.
Minnesota, 283 US 697 (1931).
There is no indication of an administrative purpose beyond
conferring legal liability upon applicants and contriving
further cause for enforcement and prosecutorial action. This
has especially harsh impact upon consensual gatherings events,
wherein no individual can assume liability for the purposes or
affiliations of other participants. Nor can any individual
have foreknowledge of the actions of others, which may be so
diverse and multifarious that it is impossible to foretell or
itemize them in applying for authorization. A Forest Service
or law enforcement official would then have the latitude to
construe a simple omission as "misrepresenting" these facts,
in order to impose the weight of the law arbitrarily. In this
light, these proposed provisions reveal an especially
capricious intent, with chilling effects upon First Amendment
rights.
Further Observations
A. USE PERMITS: URBAN VS. WILDERNESS AREAS
In assuming authority to impose event permits and fees in
National Forest areas, the Forest Service builds its position
upon similar authorities in urban areas -- this is the direct
premise that is implied. 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
(traffic, parking, neighborhoods, etc.), 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 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 should 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 {FR 58/86, pg. 26940} 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)."
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 the prominent instances:
{1} Heavyhanded strictures that have been imposed upon Native
access to traditional tribal lands -- eg, Piscatoway burial
ceremonies in Maryland, Oglala Sioux sun dances and vision
quests in the sacred Black Hills, etc. In all such cases
the government has sought to impose severe restrictions
upon access to public lands, timing of events, and the
number of participants; in many of them, there are accounts
of a chilling show of force and direct intimidation by
enforcement officers.
[2] Rainbow Gatherings have 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 groups in sanctioning roadblocks,
searches and seizures, petty arrests, and sabotage.
Considering key points 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. Their activities were disruptive
and disturbing, according to the USFS 1991 Rainbow
Gathering report, to such an extent that local Vermonters
complained that their community had been turned into a
"police state".
-- In Colorado in 1992, Rainbow vehicles arriving in the
area were afflicted with citations, searches, and some
arrests. It is also well-known that the gathering was
infiltrated by agents of the Drug Enforcement
Administration disguised in Forest Service uniforms.
-- Both major 1993 gatherings had major incidents. In
Kentucky a police roadblock was emplaced within 1/4-mile of
the parking and 'Welcome Home' area of the gathering.
Everyone was subjected to videotaping, spot inspection and
full ID check (license, registration, and insurance); a few
people without proper papers were held in chains and
beaten.
-- 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 was taken away and
physically and sexually harassed by a group of undercover
officers; after an unknown substance was sprayed from
helicopters, many people got sick.
The list is long, the stories go on, the point is
straightforward: While Forest Service officials deny that the
pending regulations are targeted upon Natives, Rainbows, and
other 'outsiders', the record is self-evident. The vehemence
of their selective enforcement in undeniable, and since the
early 1980s the Agency has been trying to institute
regulations by which consensual gatherings could be preempted
entirely. 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 C.F.R. ? 251.50 et seq.
(1987)."
U.S. v. Rainbow Family, 695 F.Supp. 294 (E.D.Tex. 1988),
pg. 300.
In part because of this blatant procedural flaw -- on top of
the obvious First Amendment issues -- the Texas court struck
down the 1988 rulemaking as unconstitutional. Yet the Forest
Service is now pushing substantially the same rules into law,
subtly modified for the fourth try at enactment.
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
According to the Agency's commentary in the Federal
Register (FR 58/86, Pg. 26944) the Forest Service determined
that this regulation would not be a "major rule", citing
authorities under USDA procedures and Executive Order 12291,
and characterizing it as merely "...technical and
administrative changes for authorization of occupancy and use
of National Forest System lands."
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 requirement that a new major rule be
subject to a Regulatory Impact Analysis and the fuller
scrutiny that this would entail.
Several factors are telltale in how this finding was
derived.
First, it is based upon the narrow threshold test of economic
impact alone. 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. Also 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. E.O. 12291,
?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."
Executive Order 12291, ? 3(d)(2).
Because this test conditions the primary objective of this
Order, it is clearly mandated as part of the primary
determination on 'major rule' status. By this test the
threshold would easily be crossed, and the rule itself would
be found to bear serious 'adverse effects', especially upon
freedom in the exercise of basic Constitutional rights. Such
a loss certainly 'cannot be quantified in monetary terms', and
so it 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.
Particularly in the absence of quantifiable agency "need",
being no longer set apart from a "totalitarian regime" might
well be considered a cost to society which the Forest Service
has ignored. Thus the misuse of the "major rule" test is a
subtle rationale for ducking Congressional and Executive
review of their administrative actions, and in effect a
coverup of their potential 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.
____________________________________________________
In closing it is our contention that in the
aforementioned respects and others, the Forest Service
proposal fails to meet the criteria of both the Administrative
Procedure Act and Executive Order 12291. Consequently we seek
review and redress in the appropriate bodies of the Congress,
and urge that these unneeded and unconstitutional strictures
be finally disallowed.
Respectfully submitted,
Rainbow LegaLiaison, DC Crew
S.Addison, W.Thomas -- Scribes