Federal Regulatory Update: Proposed Rule -- Special Uses Requiring Authorization on Forest Service Land may affect access to public lands

2/23/03

from ARRA

Americans for Responsible Recreational Access (ARRA) has issued an alert to a proposed rule, recently released by the Forest Service, that outlines changes in the regulations for special uses of Forest Service lands that, if enacted, may affect access to public lands.

Why the Proposed Rule?

On January 22, the Forest Service published a proposed rule outlining what special uses of Forest Service land require previous authorization. This proposed rule is primarily meant to close a loophole that exists in the current regulations. At this time, regulations state that a special use authorization is not required for use of the National Forest System road and trails. The Forest Service is concerned that damage is occurring to these roads and trails and that authorization can control use and therefore control damage.

In addition, the Forest Service outlines the following reasons for the proposed rule:

· To clarify categories of activities for which a special use authorization is required;
· To promote consistent treatment of special uses requiring an authorization;
· To improve the agency's ability to resolve management issues by requiring permits;
· To reduce the agency's administrative cost by eliminating the need for issuing an order to require a special use permit and not requiring special use authorizations where they serve no management purpose.

What is a Special Use?

A special use is defined broadly under the proposed rule as:

All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing disposal of timber and special forest products, such as greens, mushrooms, and medicinal plants, minerals and grazing of livestock are designated 'special uses'.

When Would I Now Need a Special Use Authorization?

It depends on the purpose of your use -- whether it be for a noncommercial or commercial purpose or even single-purpose or a group event. Under the proposed rule:

A special use authorization is not required for noncommercial
recreational activities, such as camping, picnicking, hiking,
fishing, boating, hunting, and horseback riding, or for
noncommercial activities involving the expression of views, such
as assemblies, meetings, demonstrations, and parades.

When do you need a special use authorization? The Forest Service has chosen to define that as broadly as possible. The purposed rule simply states:

The requirement to a special use authorization should be
triggered whenever a special use is conducted on National
Forest System lands, including a road or a trail.

Under the proposed rule, a special use authorization should be triggered whenever a special use is conducted on National Forest System lands, including those which occur on roads and trails.

The Forest Service has identified four types of special uses:

(1) noncommercial group uses;
(2) outfitting and guiding;
(3) recreation events; and
(4) commercial filming.

What is a Recreation Event?

The proposed rule defines a recreation event as a recreational activity conducted on National Forest System lands for which an entry or participation fee is charged, such as animal, vehicle or boat races; dog trials; fishing contests; rodeos; adventures games and fairs.

Can A Special Use Authorization Be Waived?

Yes. The proposed rule states that:

For uses other than a noncommercial group use, a special use
authorization would not be required if the authorized officer
determines that the proposed use has one or more of the
following characteristics:

1. The proposed use will have such nominal effects on
National Forest System lands, resources or programs
that it is not necessary to establish terms and
conditions in a special use authorization to protect
National Forest Systems programs or operations;
2. The proposed use is regulated by a State or another
Federal agency in a manner that is adequate to protect
National Forest System lands and resources and to
avoid conflict with National Forest Systems programs
or operations; or
3. the proposed use is a routine operation or maintenance
activity within the scope of a valid reserved or outstanding
property right such as a right-of-way, easement or reservation.

What About Noncommercial Group Use?

Under the proposed rule, noncommercial group uses would require a special use authorization. The proposed rule specifically sites as an example an endurance ride involving hundreds of participants for which no entry fee is charged. If this proposed rule is approved into a final rule, you would need special authorization.

Next Steps

The Forest Service has asked that comments be made regarding this proposed rule. They are due by March 24, 2003. Comments should be directed to:

Forest Service, USDA
Attn: Director, Recreation
Heritage and Wilderness Resources (RHWR) Staff
(2720), Mail Stop 1125,
Washington, DC 20250-1125

Or to: rule@fs.fed.us

* Article prepared by the staff of the American Horse Council.