A Rulemaking Proposed to the USDA ~
The ‘Group Use’ permit regulation was first proposed in 1993… ever since it has been a nemesis to public gatherings and the First Amendment in the National Forests — spawning stacks of litigation afflicting many, sending some to jail, and leaving the legal issues in stalemate. Upon years of dialogues & official appeals to change ‘the Regs’, and debates & speculations among wizards & wonks on how to do it, PCU•Free Assembly Project followed through:
On 12 June 2018 a full Petition to amend the Code of Federal Regulations was presented to the presiding USDA Under Secretary in Washington —
Petition to Amend the ‘Group Use’ Rules (June 2018)
The opening lines state:
“This is a formal Petition to Amend the U.S. Forest Service ‘Noncommercial Group Use’ regulation and related special use provisions, 36 CFR 251.50- 251.56, pursuant to the right of petition and relief reserved by the Administrative Procedure Act. 5 U.S.C. §553(e).
It is presented to cure a facial defect in the rules, whereby a broad class of citizens are denied personal standing and precluded from special use authorization as unaffiliated participants in public assembly, or otherwise subjected to compelled association and vicarious liabilities under a fraudulent permit, in violation of Constitutional protections. Amendments I, V, IX, XIV. “
[] The Petition is “formal” by necessity to trigger policy review in the proper channels — requiring surgical line-item edits, then factual justification and legal grounds for amending CFR language, laid out in a supporting Memorandum. The package also includes points for a clarifying Interpretive Rule suggested in conjunction with the amended regulation, and guidelines on expediting the USDA process for this proposed rulemaking based on a proper APA petition.
The cover letter-&-petition statement is the first of 5 Parts + Exhibits:
I. Petition to Amend a National Forest Regulation ~ 1
II. Proposed Code Amendments: 36 CFR 251.50- 251.56 ~ 2
III. Keynotes for an Interpretive Rule ~ 7
IV. Memorandum on Group Use Policies ~ 9
V. Expediting the Rulemaking Process ~ 25
•• List of Exhibits ~ 27
[] What this Petition does: There is new definition for “Public Assembly” as a variant form of special use, composed of individuals “without formal affiliation, agent authority, or aggregate legal capacity” — and therefore unable to act as a ‘Group’ permit holder.
The core amendments mandate Operating Plans as an alternative means of authorization, and enable individual volunteers cooperating with foresters to meet high standards of resource protection, health and safety. Changes in related provisions align the NGU rules with the NEPA review & proponent criteria applied to other special uses, and distinguish terms of liability & confidentiality to protect such users.
This approach stands on historical and legal proof that a `permit` (as a 2-party compact) cannot work for true citizen assembly as the First Amendment intends — and that a law of ‘general application’ cannot exclude a broad class of speakers from the traditional forum of public lands.
[] The Operating Plan is not a new thing – it is the solution advanced by the Rainbow Gatherings since the early 1980’s, and advocated throughout all the travails with Forest Service permit rules. (See Exhibit ‘F’). Nor is its adaptation for assemblies a big ‘accommodation’ or concession of authority by the agency – it is a known and established means of authorizing special uses. 36 CFR 261.1a. As a legal instrument it works differently from a permit, more flexible in how it is constructed and issued, and fitting for consensual public assembly.
The role of “volunteers” is key, and maybe controversial for some. In any public land regulation, the trustee agency needs some `person` to propose a use and acknowledge applied terms. The current rule requires an agent for a “group” to apply and sign a permit… the amended rule still needs a name on the line, but a volunteer stands in his own shoes:
It is an individual role by definition and in common practice, retaining personal standing and not implicating
any group, real or imaginary. A volunteer’s signature only commits that person from the assembly to assist in
special use compliance, in specified ways.
Accordingly it is proposed as a minimum requirement that a volunteer need only submit and sign an individual volunteer application/agreement — as proper Notice of a public assembly and in support of an Operating Plan, with room for varied scenarios in how it is developed and implemented.
[] The Forest Service has a longstanding “Volunteer” program – this is a familiar device for citizen participation in the National Forests, easily adapted to this purpose. They have modified the standard forms over the years, but the elements are consistent, with personal obligations limited to the stated scope of the deal.
For reference, this is the current ‘Volunteer Agreement’ in general use by federal land agencies:
• OF301aVolunteerAgreement.pdf
This document could be used now – though it is likely that a new form would be customized for Public Assembly volunteers under the amended ‘special use’ rules. These and other details must be worked out in implementing the proposed CFR revisions, but the administrative grounds are solid.
UPDATES on the Long-Haul Campaign ~
\__June 2019: Pushing the Petition____
A year after the ‘APA Petition’ was submitted to the Acting USDA UnderSecretary, nothing had been done: Notwithstanding the requirements of law, the Agency had given no response and taken no action on this proposed rulemaking. And notwithstanding the benefits to personal rights & public interests, the views of Stakeholders were still unheard, as the Trump-era USDA dithered, leaving positions unfilled and public work undone.
In this unsustainable stasis, a new package went out to DC in June 2019, with a terse letter calling for proper steps on this initiative and submitting 25 pages of signed ‘public petitions’ in support. It states up-front:
The “right to petition for the issuance, amendment, or repeal of a rule” is not a discretionary matter:
It mandates the Agency’s proper and transparent acceptance, timely public notice and review of the proposed rulemaking, and a clear determination on the merits. 5 U.S.C. §553(b), (c), (e).
The failure to conduct such proceedings violates the Administrative Procedure Act.
• APA Petition, Demand for Rulemaking (6/21/2019)
\__November 2019: Petition curtly Denied____
We again heard nothing for five months, until a very short letter from Washington arrived in late November 2019. It came from Michiko J. Martin, then-Director of the “Recreation, Heritage and Volunteer Services” policy staff at USDA headquarters… this answer evaded proper procedures and any serious deliberations on the rulemaking proposal. It shifted the burden of “advance site selection” upon the Gatherings – exceeding what the regulation actually requires – and put forth flawed premises for summary Denial:
“The noncommercial group use rule has been upheld repeatedly by the courts, and the Forest Service is applying it consistently and fairly to noncommercial groups using National Forest System lands. Therefore the Forest Service is denying your petition for rulemaking.”
• USDA staff, Denial Letter (11/18/2019)
\__July 2021: News at the Top____
Over the ensuing months and year, any followup was pointless, as the Covid crisis crippled the country and shut down federal agencies, then the national Elections and attempted Trump coup preempted all other concerns. However with the incoming Biden administration, there were signs that competence was being restored at USDA, particularly in the new appointments for the positions of Forest Service Chief and USDA Under Secretary for Natural Resources & Environment.
In late July ’21 PCU•FAP put out a ‘News Report’ on these promising changes at the top, highlighting this moment of renewed opportunity for meaningful discourse and reform:
• “USDA/FS: Grownups are back” (7/23/2021)
\__September 2021: Regs Petition Revival____
With USDA operations in DC still curtailed under Covid restrictions and top staff transitions still in progress, this project could wait no longer. Upon due research and preparations, the June 2018 Petition to Amend the ‘Group Use’ Rules has been resubmitted to the USDA Office of Natural Resources and Environment, which oversees Forest Service affairs.
It is directed to Deputy Under Secretary Meryl Harrell, who will be in charge at NRE until the confirmation of Homer Wilkes as the new Under Secretary clears the Senate – and to Randy Moore, now the USFS Chief. The full package landed in DC in mid-September… the conveyance letter stresses the compelling need to present this CFR proposal again, in light of its mishandling under the last administration, and the emergent crisis in applied policies under the current regulations – a decisive move to jumpstart responsible action:
• Renewed Petition for CFR Amendment (9/12/2021)
+ ATTACHMENTS:
~ PCU•FAP: Demand for Rulemaking (6/21/2019)
~ M.Martin/USDA: Petition Denied (11/18/2019)
• [Public Post, 9/20/2021]: FS Regs Petition | Revival in DC
\__November 2021: Getting a Meeting____
As the Petition was presented in DC, we requested a meeting with Dep. UnderSecretary Harrell and NRE staff to answer any questions and discuss how they would proceed in reviewing and advancing the rule proposal. The full package was also provided in digital format, and with a summary email listing the documents with live links, to make it easy to circulate to concerned staff. We reasonably expected to meet in a few weeks, giving them time to scope it out – routine courteous business to get the project on track. It took 2 months instead:
A virtual meeting was finally convened on 11/16/2021… our able contributors talked about the dark history of the ‘Group Use’ Regs, shared earnest concerns, then were shocked to learn that the Feds across the table had not yet read the Petition, and were totally unprepared to discuss the issues or the course of the rulemaking. Moreover all of them (except the LEO!) were mid-level officials in the FS Chief’s office – no one showed up from NRE, where the Petition was properly submitted and USDA regulatory decisions are made. The real business did not get done.
• [Public Post, 11/20/2021]: Secret Meeting Report [an oxymoron]
\__March 2022: Busting the Stonewall___
A second ‘NRE Meeting Request’ was filed immediately, to follow up fast by early December and get the right people there. Nada… calls went to voicemail, emails into the blue, not hearing back – but then a stern inquiry at the Secretary’s office and a few genial personal conversations with FS attendees got some action. It took 3-1/2 months more:
On 3/1/2022 we met with the same group of FS honchos, led by Deputy Chief Chris French, who explained that they had been assigned the initial review of the rule proposal, and would send recommendations to the UnderSecretary. He said he had seen the Petition, but showed no cognizance of its content – instead posturing on the agency’s conundrum (“Should we do this?”) in light of 3 Big Q’s of legal grounds, policy effects & admin burdens, inviting answers and another conference in 2 weeks. All these concerns were fully addressed in the Petition, the answers were on the table, but we put in a good prospectus letter* in response before meeting again. It took 3 weeks instead:
• Letter | Plan for the Group Use Rule Proposal (3/20/2022)
On 3/22/2022 the Zoom convened, and French announced that they had already sent recommendations upstairs, before receiving our input. He would not disclose what they said, complained of Agency workloads and admonished that few such rule petitions go anywhere; other staff did not speak. He then postulated that “Rainbow” really seems like an organization, contributors took the bait, and debate on this delusion wasted a half hour. Their preliminary review of the proposal had taken six months, and it was an inept hack job. We acted quickly, submitting a Freedom of Information Request to the USDA Office of Information Affairs, seeking transparency on these proceedings. It only took 2 days:
• FOIA | Proceedings on CFR Petition per 5 U.S.C. §553(e) (3/24/2022)
• [Public Post, 4/1/2022]: FS Regs Project | Regress Report
Subsequently we learned that Dr. Homer Wilkes had taken over as NRE Under Secretary in February. His awaited confirmation had been held up in the Senate… no notification came from the Ag Committee as requested, nor had our FS contacts bothered to inform us.
This news posed the need and opportunity to present a new entreaty on the Regs Petition to the new top guy, calling out its mishandling by the agency to date. It went out with this email on 4/26/22: Status of proposed CFR Amendment. This is the attached letter:
• Status of the ‘Group Use’ Petition (4/25/2022)
\__May 2022: Crunch Time___
Around the same time in late April, two folks on the “team” in the debacle FS meetings decided to make their own statement to the Chief, a more personal appeal. They prepared it privately, then by early May a letter went out to FS Chief Randy Moore & Chief of Staff Erin Connelly. Nobody knew what it said for over 2 weeks, until they finally forwarded the text: The tone was most gracious and solicitous — but it got some facts wrong, backpedaled on key premises and somehow evaded any mention or support of the Petition:
• the Garrick/Joanee Letter to the Chief [annotated]
Prior dire suspicions were fulfilled when an email from Deputy Chief Chris French was delivered on 5/19/2022 – “USDA Response to your petition” – with a PDF letter denying the petition for rulemaking. The doc-name was from “OGC” (USDA Office of General Counsel), oddly dated 51 days before, inappropriately addressed personally (not to the proponent ‘PCU•FAP’), replete with boilerplate blather evading the issues, and still talking about “Rainbow Family” like a Thing. Of course there was no “thorough review”… the letter displays the digital signature of Dr. Wilkes, but it’s doubtful that he ever saw the Petition, or knows anything about it. Here is the hammer, with a dullard thud:
• USDA Denial of Petition for Rulemaking (“3/30/2022”)
Pilgrims will converge in mid-June for the 50th Anniversary Rainbow Gathering in Colorado: it was hoped that this CFR proposal would pave the way for this grand event to be honored and authorized with an operating plan, and achieve new high ground in First Amendment law. That vision is now at risk, and this victory must still be fought for.
PUBLIC INFO POSTS:
• FS Regs Petition | Revival in DC (9/20/2021)
• Secret Meeting Report [an oxymoron] (11/20/2021)
Public Support, Outreach & Input ~
Any project in the public interest needs public support… here it should come in several ways:
• Petitioning for the Petition ~ i.e., citizens signing on to broadly endorse the need and principles for ‘Group Use policy reform. It is a way to reach many people and raise awareness on these issues, and to build general momentum for the initiative in DC.
In this purpose an updated Public Petition can be circulated widely… the PDF download and instructions are on that page.
• Supporting this Rule Proposal ~ read the APA Petition from ‘PCU•FAP’, verify that it’s good and speak out… write the Chief, your Congressman, the White House, or Santa Claus. Also get the word out to concerned environmental & civil rights organizations – help is needed in this outreach.
When the Petition was re-submitted to the USDA in Sept.’21, it went to Meryl Harrell, the ‘Acting’ Deputy Under Secretary for Natural Resources & Environment – awaiting the newly-appointed boss, Dr. Homer Wilkes. His Senate confirmation finally came through in Feb.’22, so this man is now the top official responsible for Forest Service policies and rulemakings… call & write:
Dr. Homer Wilkes, USDA Under Secretary (NRE) ……. Ph: 202-720-7173
1400 Independence Ave. SW (202-W) – Washington, DC 20250
• Participatory Democracy ~ the rulemaking process:
At the outset it was planned to marshal inputs and support proposed CFR amendments into “public comment” proceedings in some form. Now after the Petition was summarily Denied in May 2022 – again with no competent assessment – it’s time to get real answers… this is not over.
It is still important to make a public record on this rulemaking. and demand this solution to save the right to gather — “peaceably to assemble” as the First Amendment assures.
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Good discussions and cogent inquiries are encouraged.
Stay ‘tooned…