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Date: Tue, 8 Jun 2004 13:50:13 -0500
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From: "scottie a."
Subject: ctr\Dis-similar grounds, Far from 'there'
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Date: Tue, 1 Jun 2004 03:14:37 -0500
To: changetheregs@welcomehome.org
From: "scottie a."
Subject: Dis-similar grounds, Far from 'there'
* * * * * * *
Weekend's Topics:
~ similar grounds (GARRICK BECK)
~ Re: similar grounds (Karin Zirk)
~ Almost there (Carla)
----------------------------------------------------------------------
Mo.31my04 - Memorial Day
Greetings:
It certainly SEEMED that we were "converging on very similar
grounds"... I had figured on this deliberative process to go through
the weekend and synthesize ideas into something more coherent,
concise, and plausible, but it has stopped short.
I spoke with Garrick last week, thought we clarified some reality
checks on proposing CFR amendments, based on stuff I had talked about
and written ("Methodology", and logics of the 'VolApp' proposal).
His last post reflected some of these cautions, but still played with
some flawed major premises. [Techsnags also noted below, see
Footnote 1/]
I also spoke with Reed and Karin, hoping to engage their cahoots in
honing this thing down, but The Die Is Cast: Karin already submitted
her revised petition to the FS on Friday morning, viewable at the
SCROLL site: [Footnote 2/]
http://home.earthlink.net/~scrollinfo/KezRevRegs.pdf
Karin encouraged others "to mark up the regs and submit that
version to the USFS"... and as we observed, nothing stops others from
making different proposals. In one sense, this proves our point: The
more chaos comes from Rainbows, the more it's obvious that there
cannot be any kind of organized entity at all. Even here, there is
no way to control participation.
On the other hand, if Karin's petition is THE channel the
Forest Service has opened for a new rule proposal, we may have
already blown this initiative. She is in the driver's seat, and has
discretion on the substance of any proposal going in under her
auspices. But she's REAL busy, and wanted to get something in fast
in the shared hopes of a Federal Register publication by July 1 (very
doubtful anyway, in the best of circumstances).
In content, her revised petition is based on Carla's bloated
first draft we had only seen a few days, a bit trimmed down but not
critiqued as to grounds, nor measured against any other approach.
Garrick tried to be a gentle arbiter ("The simpler the better: less
is more."), but he was late for the purposes of Karin's followup
submittal... The Deal Is Done.
The 2 big problems, in brief:
a) THE "SPACE USE RESERVATION" AIN'T GONNA FLY.
The Forest Service is not going to institute this concept as an
alternative to a Special use authorization', because for any proposed
special use, Granting an 'Authorization' is the only thing they can
DO -- the only enabling action they can take (or not), by
long-written land use law. A 'Permit' IS an Authorization. It does
not matter that some recalcitrant hippies don't like the word...
that's all you can get. The continuing constitutional issue is that
the current Regs PRECLUDE Authorization of consensual assemblies, due
to the biased criteria that are applied -- not that a new kind of
approval is required.
Further, the idea of a 'reservation' is already engaged at the
point of Application/Notice, where use of certain lands at a certain
time is reserved on a first-come, first-served basis. [Footnote 3/]
b) "PUBLIC USE EVENT" WILL NOT SUPPLANT 'GROUP USE' AS DEFINED.
The revised petition also invents a new kind of Special Use -- a
big adminstrative deal, beyond the scope or leverage of this plea for
policy reform -- and apparently it would replace 'Noncommercial Group
Use' categorically. The Forest Service has no incentive to dismantle
the NGU scheme, which courts have upheld, and which arguably IS
constitutional as applied to actual group entities able to sign a
permit (e.g., the Moose Lodge, et al.).
It is correct that a new definition is needed to distinguish
gatherings from events sponsored by group entities, and thereby to
enable an alternative manner of compliance. "Public Use" may not be
quite appropriate, as this term is broad and generic in common
parlance. Moreover such a definition is much more likely of
acceptance as a subcategory of 'Group Use', not as a new category
aside from it, or instead of it much less.
There are subsequent snags as to the selection of a "contact
person", the origins of the "procedure" for communicating, and the
standing of an "Event" as a permit (or 'Reservation') grantee. If
the purpose of the revised petition was to set up a fast-track
Federal Register publication, it has to be Do-able. The concern here
is not that FS officials 'will not' propose rule amendments -- it's
that they 'Cannot' do so, as these amendments are presented. As
Garrick observed, "...it is a twisted convoluted tangle."
It is unclear whether the FS will accept alternate proposals
in the context of Karin's petition process, or if these must follow a
different track. I have urged her to push them on this question and
find out, asap.
Either way, it is incumbent on proponents to demonstrate the need
of such policy revisions (no matter how stupid Federal judges are),
and their viability in accord with the larger scheme of special use
regulations.
So, let's also figure out how to cooperate better in refining
alternate proposals in coming days... lest this opportunity be lost.
Feedback welcome, thanks...
_scottie addison
=============/Footnotes\==============
1/ Garrick's post of 29my04 apparently included a paste & attached
'.bin' doc of his mark-up - neither clear or discernable, as any
special formatting was turned to raw html code, so I could not
readily pick out his edits:
http://moongulch.net/pipermail/changetheregs/attachments/20040529/092c7e9f/attachment.bin
2/ Karin also posted this to AGR, but not to the 'changetheregs'
discussion. In this 'PDF' version, note that pp. 9 & 11 are missing.
3/ In "Methodology" (posted 24my04), I suggested a narrow, surgical
approach, creating an alternative means of compliance within the
'Group Use' scheme:
"The latter approach gets sticky, since a first-come
'reservation' for a site is already established upon
Application/Notice, and all special uses require an 'Authorization'
(what a Permit IS) as the defining agency action.
As a matter of land use law, creating a new use category can be a
pretty big deal, with more complex amendments to various CFR
provisions for consistency. In a constitutional view, it runs afoul
of 'singling out' expressive assemblies and treating them differently
from other group users. Hmmm..."
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Date: Thu, 6 May 2004 05:11:14 -0500
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From: "scottie a."
Subject: New Rey Ltr_/Request for Responsive Action...
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| 6my04
| Dear Huddlers & Cuddlers -
|
| This just out by Fax to USDA Under Secretary Mark Rey,
| certified mail on the way. Following upon PCU's heated
| missives and that steamy meeting in 'Fr'isco last January,
| holding the honcho's feet to the fire, as it gets hotter.
|
| 'PDF' version attached if you like it that way.
| The 3 letters referenced were made public, and will be up
| on the SCROLL website -- if not now, soon.
|
| Comments welcome, collusion encouraged, try to make
| an opportunity of this... push a political solution, or
| set them up for claims if they stonewall. Hmmm...
|
| But please DO NOT POST THIS PUBLICLY, JUST YET --
| let it ripen through next week, respectully discreet,
| give the guy a chance to play, see how the Big Wheel rolls.
|
| FYI... RSVP... Blessings...
| _scottie a. (314-781-1042)
|_____________ _________ ______ ___
PCU_//\_Free Assembly Project_
Washington DC «» St.Louis MO
V/F: 314-781-1042 ..... PCU@Free-Assembly.org
_//\_________________________an Association of Volunteers__/
3 May 2004
Mark Rey USDA Under Secretary
-- Natural Resources & Environment
Room 217-E, J.L. Whitten Building
1400 Independence Ave, SW
Washington, DC 20250
Request for Responsive Action
on USFS 'Group Use' Policies
`````````````````````````````````
Dear Mr. Rey:
As you know, PCU_/Free Assembly Project has been an active public advocate on Forest Service 'Group Use' policies since 1993, bringing the issues to the Agency, to Congress, and to Court.
In our continuing efforts - and in respect for your demonstrated interest - we have communicated our concerns to your office on three occasions in the past 14 months. These letters were presented as timely memoranda in answer to official statements & actions, and the pressing questions involved:
"Clarification" on Group Uses (2/25/03)... analysis of your 6/28/02 policy directive to the Incident Commander, and the "Department's position" on key premises of the group use permit...
and discourse on its legal effects & real impacts, in light of the concurrent Forest Closure, roadblocks, and citations en masse targeted on the 2002 Rainbow Gathering in Michigan.
Permit 'Negotiations' & Public Health (6/9/03)... critique of the permit signing in Utah last summer, its premises and outcomes, and attempts to impose State health authorities on Federal lands, in breach of land use principles and jurisdictional bounds.
A Position on the 'Delegation of Authority' (1/8/04)... challenge on 'Incident Command' policies applied to gatherings, with qualified Forest Service personnel ceding National Forest authorities to Federal law enforcement officers against agency mandates.
The intent of these writings was to engage discussion and elicit a constructive response, in the hope that better ideas on the table will avert bad outcomes on the land, and in the law.
So far we have heard nothing back, but there has been some promising talk:
The January 10 meeting in San Francisco brought together concerned gatherers with responsible officials including yourself, and a range of relevant issues were aired. Our letter on the 'Delegation of Authority' was also faxed to that meeting as a contribution to the record.
While no determinations were made on the spot, the upshot of those proceedings was clear in important ways: Officials were there to listen in good faith, all agreed that cooperation was better than confrontation, and you pledged to review the situation and consider meaningful remedies.
PCU_/FAP cannot speak for the people at that meeting, but we share a vital interest: We have advanced substantial questions on the logic & impact of 'Group Use' policies, and we await answers.
Therefore we call for response to our letters and related issues raised in San Francisco.
** There is urgency in this now, with the upcoming Rainbow Gathering this summer... much of the January forum focused on this event and how it would go. Participants showed the permit to be unworkable, disclaimed any more coerced signings, and pleaded for alternative ways to comply.
Yet amidst all the talk of improved relations, Ann Melle still reserved the prerogative of LEO's to issue citations early & often if no permit is signed - a troubling mixed message.
Page 2
This amplifies the need for a decisive move from your office: If Law Enforcement & Investigations persists in trumping the choices of legitimate Forest Service policymakers, it does not bode well for public goodwill, or constitutional protections. It is within the fair powers of the Under Secretary & USFS Chief to enact interim procedures in order to head off further conflict - even if only as an experiment in cultural "accommodation" - and this should be done promptly.
** In turn this can be a steppingstone to policy fixes for the long-term. Looking realistically at the administrative demands, these changes will require a published notice-&-comment rulemaking with narrow revisions to the noncommercial group use regulations (§251.54), and a new "interpretive rule" defining certain positions and amending practices in the Forest Service Handbook. It must be an open public process, but it is a manageable one that can turn around in 10-12 months.
Based on our long experience in these issues, and heeding good ideas from others, PCU_/FAP will have specific policy recommendations to present in the near future. As a key premise, the Permit is understood to be one of various means of regulation available to NFS officials, not an end in itself.
As stated before, our advocate role is to build research, provide information, and propose solutions... we cannot negotiate for anyone, and only represent the best wisdom of stakeholders.
Mr. Rey - you have our respect for your efforts so far to talk to people and learn first-hand about these unique public assemblies, and for your willingness to re-examine the issues.
We also understand your difficult position in doing so - weighing conflicting reports and rationales, and facing a confusing array of constituents with disparate opinions. Such policy review relies on a discrete agency record as predicate to its conclusions, and the scope of that record must be defined. Anticipating next steps in an open process, the logistics alone are a bit daunting.
We may be of help in setting this course. PCU_/FAP has wide credibility at-large and among concerned players... if we can facilitate communications & fair proceedings, and share reliable facts leading to solutions worth supporting, these things may be needed to make it work.
I am requesting a brief phone conference with you, as a courtesy and a first cooperation - to follow up on the letters & appeals, learn of agency responses in the works, and explore options & actions for the critical coming weeks. I'll contact your office to arrange the call ASAP, with your consent.
Once again, thanks for your focus and good faith on these challenging policy problems.
We hope to work with you to advance the broadest public interests in the National Forests.
For our land & rights,
________________sca_______________________
Scott C. Addison, Coordinator
7027 Mitchell Ave./A ~ St. Louis, MO 63117
Transmittal ~
Certified Mail# 7000 0520 0020 9734 3709
Fax: 202-720-0632
Cc:
Dale Bosworth, Chief - USDA Forest Service
Dave Holland, Director - Recreation, Heritage and Wilderness Resources, USFS
..........................................................
Founded__// People for Compassion & Understanding \\__1993
Name: Rey-Requ_Action_GUpol-3my04.pdf
Size: 79821 byte(s)
Type: application/pdf
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