Notice of Proposed Rule Making (NPRM): Federal Register Vol. 91/No. 125, 7/1/2026 (pp. 39948-51)
USDA Forest Service
36 CFR Part 200 and 216 RIN 0596–AD74
Organization, Functions, and Procedures; Public Notice and Comment for Standards, Criteria, and Guidance Applicable to Forest Service Programs
Public Comment Letter submitted by PCU•Free Assembly Project on 7/31/26:
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PCU //\ Free Assembly Project
St.Louis MO – www.Free-Assembly.org
_//\_________________________________an Association of Volunteers__/
31 July 2026
USDA-Forest Service
Sidney Yates Building
1400 Independence Avenue SW, 1SE—Mailstop Code
Washington, DC 20250
Attn: Director, Policy Office
Re: Proposed Rulemaking: RIN 0596-AD74
Organization, Functions, and Procedures; Public Notice and Comment
for Standards, Criteria, and Guidance Applicable to Forest Service Programs
First to note: News of this proposed rulemaking came with 2 days left to enter a public comment.
If it is enacted this may be the last USFS ‘notice-and-comment’ rulemaking we may see for a while:
The 30-day comment period is deviously too short for meaningful debate on such fundamental changes in policy powers – it must be extended to 60 days.
Then to observe: The proposal is obscure on the workflow of policymaking via Agency Directives and/or the Forest Service Manual, and sloppily conceived in its collateral impacts on various programs and operations. Commenters must search and speculate on nonconforming “subjects and issues” in the Forest Service Handbooks warranting some indeterminate later review, rescission, or codification.
The structural effects of this power shift have not been thought out, or are left as collateral damage.
[[]] THE ‘PUBLIC LAND’ CRITIQUE
The deeper motivation for this rulemaking is self-evident in the Presidential Orders on ‘deregulation’, albeit understated: It is to elevate private interests over public interests in Forest Service policy. This is not just “privatization” of outsourced services and operations to contractors, as we have known it. This positions the agency to commodify public resources and land for leases and sales to private corporations, on a scale never seen before, irreversibly.
In part, it’s a game Repugnicans have played many times in the past – removing environmental / habitat protections and opening new areas to logging, grazing, mining and drilling businesses…
surely there will be more of that. But now they are setting up to put public land on the auction block. Interior Secretary Doug Burgum has already promoted sales of such lands as collateral against the national debt, and on other bad pretexts. (Watch for new BLM rules too.)
Since the inception of Public Lands 120+ years ago, the meaning of this has changed: They started out as Our lands as Citizens, with federal agencies mandated as Trustees on our behalf. During the New Deal, the work of the Civilian Conservation Corps was a noble expression of citizen participation in the care of our National Parks & Forests, supported by the federal government. But over time as private interests persisted, the Federal agencies leaned into the position of “proprietor” of the resources they sought, as required in such business transactions. In contracts and policy, the language about “government-owned lands” took hold and proliferated – at odds with the principles of their founding.
At stake now is where proprietary power abides on such lands, and how it will be used – with the Public, as a sustainable legacy for our society and progeny… OR the Federal Corporation, as a saleable asset to subsidize police powers and the rich. In this perspective, the proposed rulemaking would eviscerate the very meaning of “public land”.
It would achieve this infamy mainly by these devices:
• Elevating the Forest Service Manual (FSM) as primary policy ––
In the arcane matrix of USDA policy structure, traditionally the FSM has served agency officials as a guide on interpreting and implementing regulations mandated by Congress, under the rules of the Administrative Procedure Act. In this purpose the Manual is entirely the province of agency administrators, composed and promulgated internally and apart from outside scrutiny – presumed (!) to be in accord with public interests and legislative intent.
The proposed rule would explicitly make the FSM the primary locus of policy formation and decisions: “All standards, criteria, and guidelines for the internal management and control of Forest Service programs are codified in the Forest Service Manual.” § 200.4(b)(1)(i), revised. This would put politically-appointed top administrators in unilateral control of applied policymaking – eluding constitutional checks-&-balances, and too easily untethered by governing CFR mandates.
From hard experience, the current leadership will choose what laws will be followed and implemented, or disregarded entirely, most unwisely and out of public view.
• Narrowing policy actions subject to public disclosure and input ––
“This rulemaking also amends the Department’s interpretation of the statutory phrase “standards, criteria, and guidelines” under 16 U.S.C. 1612(a) as including only binding direction that employees are generally expected to follow.“
Such actions are vaguely defined to arbitrarily evade public input at will… provisions of the Forest Service Handbook are categorically excluded, and requisite channels of published notice (Federal Register, etc.) are jettisoned.
The enactment of the Forest Service’s “National Checkpoint Policy” in September 1998 was a harbinger of this device: In the face of two federal lawsuits challenging USFS roadblocks targeted on First Amendment exercise, the agency created new powers to conduct such police tactics unilaterally. Previously they had relied on local authorities to deploy such roadblocks; this was a new federal authority, conjured by fiat in the Forest Service Handbook. FSH 5309.11-98-2.
This was discovered by litigants after-the-fact, noting that no congressional mandate stood behind it, nor was public notice issued for review. The government responded that this action was within the discretion of agency officials, and was not a “major policy change” – therefore neither congressional authorization nor public comments were required.
In the frame of the current rulemaking, the 1998 Checkpoint Policy is an instance of FSH “legislative rules that [should be] subject to the notice and comment requirements of the Administrative Procedure Act (APA).” It should be reassessed as such – and it demonstrates how actions with significant policy implications can contrive to evade public scrutiny.
• Expanding discretion and immunizing agency officials ––
“Responsible officials may deviate from Forest Service Manual direction when it is in the public interest, allowable by law, and the reasons are promptly documented. …Employees may deviate from guidance in the Forest Service Handbooks.” § 200.4(b)(1)(i)-(ii), revised.
The proposal explicitly concentrates policy powers in the hands of top “responsible” officials, and at once absolves them of responsibility… employees are given FSH “guidance” in implementing policies, but they do not have to follow it.
This is blatant bureaucratic doublethink, eradicating traditional constraints on arbitrary and unbridled official discretion. Unilateral FSM authorities are made paramount, superseding or circumventing regulatory mandates. Boilerplate rationales on the “public interest” are easy to invoke, “reasons” are readily conjured and alleged. No contrarian claims can stick if breaking the law Is deemed lawful.
The effects in broad sweep: The plan builds on bad civics, the worst antidemocratic motives and means of delegated Executive overreach, giving political honchos & hacks broad power with impunity
Moreover it turns Forest Supervisors into CEOs: Agency officials are indemnified as officers of the Federal Corporation, which is being set up to take full proprietary control of public lands, to exploit and sell them off profitably.
[[]] GATHERING ON COMMON GROUND
The escalating hostility of the Forest Service toward public gatherings is telltale:
Over their 54-year history, the Rainbow Gatherings have been a remarkable experiment in expressive assembly, cooperative service, and citizen stewardship in the National Forests. They have affirmed core First Amendment rights in this “traditional public forum”, and more fundamentally the right of citizens to go to Our public land as common ground, to be there peacefully and safely, to remediate it responsibly, and to protect it as the real owners when necessary. These rights are at risk.
This is the real controversy behind the conflict: In land law going back to feudal times, it is a taking and abuse of proprietary power to exclude the public from public land, just as lordly ‘Enclosure’ coups of the past excluded commoners from the Commons. The Gatherings are voluntary public assemblies of citizens in the National Forests… their persistence is seen by the ruling federal cliques as a direct threat to their claimed proprietary powers, and treated harshly as such.
This is done in part by abuse of regulatory authorities – historically rooted in antiqual proprietary powers, i.e. the ability to restrict what others may do on the land you own. In general such rules are accepted and reasonable in protective purposes applied fairly – with “rational basis” under admin law, and supporting “significant government interests” under constitutional tests. However where a regulation is written or imposed to discriminate against certain forest users in their kind, creed, manner or content of their speech, it exceeds the lawful bounds on such powers.
That is the case with the Noncommercial Group Use rules enacted in September 1996, which have spawned continuing conflict on the land and in the courts for 30 years. 36 CFR 251.54, et seq.
They require an embodied ‘Group’ entity to act as permit Holder: Where no such entity exists in a voluntary public assembly, unaffiliated citizens in First Amendment exercise are explicitly precluded from special use authorization – or they are coerced into fraud and vicarious liability in compliance.
These rules were clearly promulgated to trap the Gatherings… despite years of efforts to resolve these issues and restore cooperation, the Forest Service has doubled down on the permit demand knowing that it cannot be lawfully met. Since 2017 the Rainbow Gatherings have been declared ILLEGAL on this basis, and in turn this has served as a pretext for further hostile policy actions and retaliatory enforcement.
The excesses of USFS Law Enforcement are well-documented. In 3 Federal Court cases, roadblocks and related tactics targeting First Amendment exercise have been found unconstitutional. But LEO’s won’t follow the law, and such tactics have escalated in recent years, getting more invasive and militarized in a continuing war of attrition. This is exacerbated under the recurrent Delegation of Authority from line officers to an Incident Command regime – construing peaceful speech as an ‘Emergency’ in the National Forest, and putting law-enforcement in control of applied policy.
The devolution of policy actions took an ominous turn in California 2024: As the Gathering convened in Plumas National Forest, participants’ request for an Operating Plan to authorize the event was ignored. It was declared an “Unauthorized Group Use Incident”, then a Closure Order was issued on 6/25/24, shutting down the entire site. Nearly 500 people were forced to leave, evicted under threat of prosecution, and of those who remained trying to uphold their rights and sustain July 4 prayers, most were cited for being there in violation of the Closure. 36 CFR 261.53(e).
USFS “Special Closure” authorities are proprietary powers in the extreme, asserted here to stop and criminalize expressive assembly on public land. The Supervisor’s decision memo alleged speculative risks, other grounds and considerations were glossed over with ready boilerplate rationales. Related CFR and FSM provisions expressly exclude public notice or prior review, or exempt certain grounds from disclosure in a Special Closure action. In effect, First Amendment rights were abrogated by fiat, and those afflicted had no real-time recourse, deprived of substantive Due Process.
The point of this excursion: Concerns over this proposed rule, and what might be done with such concentrated and unaccountable executive powers, are not vague or speculative. They arise on observed facts, how vested USFS officials have already acted to enforce Federal proprietary powers, to fabricate risks and “Emergency” pretexts, to physically impede and evict speech, and evade public accountability. The threat is revealed in the vehemence and violence of federal officers against citizens who who dare to assemble and stand on public land as their own.
In the proposed rulemaking, that is the immanent motive I see – the destruction of public land as a distinctive legacy of a free America, irreplaceable if lost. I oppose this measure decisively.
Of course the matrix of USDA–FS policy powers is convoluted and wasteful, and needs to be cleaned up and clarified wisely, putting real public interests first – but the current leadership cannot be trusted to do that job right.
Respectfully,
scott addison (Coordinator
xxxxxxxxxxxxx – St. Louis, MO 63137
eM: yyy@zzzzzzz