FEDERAL JUDGE ALLOWS PRIVATIZATION OF ALL RECREATION ON ALL NATIONAL FORESTS

Concessionaire-managed trailhead on the Coconino National Forest

Concessionaire-managed trailhead on the Coconino National Forest

I’m on Kitty Benzar’s email list and received this today..I am not knowledgeable on this topic but it concerns me.

FEDERAL JUDGE ALLOWS PRIVATIZATION OF ALL RECREATION ON ALL NATIONAL FORESTS

Ruling says concessionaires are exempt from the requirements and restrictions in federal recreation fee law.

In a ruling handed down March 28, 2014, Judge Rudolph Contreras of the DC District Court wrote that Forest Service concessionaires are not subject to the restrictions on recreation fees that apply at agency-managed recreation sites.

The ruling essentially means that private companies operating under permit on National Forest land can require everyone to pay a fee for doing anything, anywhere within their permit area.

The ruling concludes a lawsuit filed by several individuals and a watchdog organization, challenging the Forest Service policy of allowing concessionaires to charge fees that the agency is not allowed to charge under the limitations in the Federal Lands Recreation Enhancement Act.

When FLREA was enacted in 2004, its authors included specific requirements and restrictions on recreation fees, in response to public concerns that the federal agencies cannot be trusted with fee authority. But they also included a clause allowing third parties to charge for goods or services “notwithstanding any other provision of law.” The Forest Service interpreted that to mean that concessionaires don’t have to abide by the same legal requirements as the agency must. That interpretation is what was challenged in the lawsuit, and what the court has now upheld.

Under Judge Contreras’s ruling:

The Forest Service can not charge a fee solely for parking.
But a concessionaire can!

The Forest Service can not charge a fee for passing through federal land without using facilities and services.
But a concessionaire can!

The Forest Service can not charge a fee for a scenic overlook.
But a concessionaire can!

The Forest Service can not charge a fee for general access.
But a concessionaire can!

The Forest Service can not charge a fee for camping at undeveloped sites with no amenities.
But a concessionaire can!

The Forest Service can not charge a fee for picnicking along a road or trailside.
But a concessionaire can!

The Forest Service has already turned over half of all its campgrounds, including more than 80% of the most highly-developed ones, to private operation – typically at much higher rates than agency-managed campgrounds. But this decision is not limited to campgrounds. It will allow the Forest Service to stop providing any recreation at all. They can turn it all over: picnic areas, trailheads, scenic roads and overlooks – everything – to private companies to operate for profit.

If you have a federal recreation pass like the Senior or America the Beautiful Pass, this is likely to make it worthless on National Forests, because concessionaires don’t have to honor those the same way the Forest Service does.

The Federal Lands Recreation Enhancement Act was recently extended into next year to allow Congress time to enact new legislation to replace it. That legislation must include provisions that apply consistent rules and restrictions on all public lands, regardless of whether they are agency managed or operated under permit by private entities.

Tell Congress you want concessionaires to play by the same rules as the federal agencies! Please take action now. Information on what to do is below.

16 Comments

  1. This is an unfortunate trend, but the fact is that recreation funding budget line items continue to be slashed. The Tongass’ recreation budget has been reduced 45% in the last 5 years. Forest-level managers are having to make difficult choices.

    If visitors don’t want more FLREA fees, don’t want concessionaires and want existing recreation facilities maintained, then they need to tell Congress to increase Forest Service recreation funding.

  2. Isn’t the Park Service all concessionaire provided amenities? Like, the Rockefeller holdings were the concessionaire to six or seven of the largest at one time? And wasn’t there a considerable dust up two or more decades ago when the Yellowstone Park concessionaire sold out to a Japanese zaibatsu conglomerate, thus having some foreign owned entity providing garbage, hospitality, water, lights, and sewer inside a National Park? One of my skylarks was to have the famous fly shop in Livingston tie me up a brownback corn fly for the Yellowstone River after the sewer line crossing that river from the Park to the Gardner treatment plant broke midsummer. I thought it was funny. The purists didn’t.

    I think the business symbiosis that has the operator of the Hoodoo Ski area on Santiam Pass also being the seasonal caretaker of maybe now over 2000 campsites in the Willamette NF and maybe others, makes sense. He has a year around crew, who work the ski area when the campgrounds are closed, and then they shut down the ski area in spring and go about mopping up the winter made messes on USFS campgrounds, preparing them for the season. Makes perfect sense to me. And, 25% of the gross revenue from campers should have to go to counties. If it does not, I would have my county commissioners demanding that it did. Nowhere does it say tourism gets a free ride on public lands.

  3. Kitty’s asertions is BOGUS. The Forest Service has had this authority since 1950 with the passage of the Granger -Thye act. If Kitty’s asertions were all true then over the course of 64 years we should have seen all of forest recreation contracted out to concessionaires by now. She lost the case because she had a fundamental misunderstanding of what laws govern what activites on National Forests. In her defense its very confusing for those who know but there is no nefarious conspiracy to outsource recreation but her hyperbole is ridiculous and undermines her sincere efforts otherwise. The judge inthis case stated that the plantiff’s argument was“difficult to pin down,” and their interpretation of REA “collapses under its own weight.” The court ruling changes ABSOLUTELY NOTHING! The Recreation Enahncement Act simply does not apply to to concessionaires covered under permitting procedures under the Granger -Thye Act. Again, an act that has been in place since 1950!!!

  4. The economic issue is one of scale. The USFS has what would be called a seasonal public use, and seasonal public impacts on and from their holdings. Fire is a seasonal thing, and the USFS has finally been able to address its personnel for fire with the “permanent seasonal” workforce which has 12 month benefits and a six month working year. No salary in the off season, but insurance and pension stuff stays intact. There is no sister program for seasonal recreation employees. So the whole of the issue becomes one of administrative and managerial staff needed for those programs are very hard to provide for on a seasonal basis, so they have overhead with dual purpose, hopefully. All of which lends itself to contracting the work, thereby creating only a need for contract administration. In the long haul, the economics favor contracting seasonal work. Farmers do that. Use a labor contractor to pick, prune, and man processing lines. Then the problem becomes where does this seasonal work force come from.

    Over 30 states pay more to welfare recipients than they would make on minimum wage. 8 states pay more to welfare beneficiaries than they pay at the lower pay scale end to school teachers. The total welfare benefit in Hawaii is over $60,000 per year. How do you get seasonal workers from a welfare state? You don’t, and that creates the illegal immigrant work force. They are working to qualify for welfare in time. When some states welfare benefit puts the recipient ahead of the average worker in many, many countries, we have a hard time filling seasonal jobs without the immigrants. Not working pays better for citizens and long time aliens.

    I have to say that university students working summers, and immigrants, will be the seasonal workforce for contractors, who are better able to reduce the scale and impact of administrative and managerial costs than government. If Congress will not budget money enough, then what difference will it make as to who is not employed seasonally, or who does not employ them?

    • The reality of temporary employees is that they work one hour short of getting and having benefits that make a living wage. This isn’t a policy, per se, but the Feds really don’t see what the problem is when Agencies have a revolving door untrained temps doing important jobs. This will never change as long as the Agency overhead looks the other way. The best of temps often move on when they discover that there is no career ladder, health plans or job security. You cannot have a family under such conditions. The worst ones keep coming back until they get fired. Sometimes, Agencies will fudge their statistics to get extra “training hours”, allowing them to work temporaries longer than 6 months out of the year. I would not encourage young people to work for the Forest Service, due to these employment conditions. I would also recommend that experienced temporaries try working on other Forests and Ranger Districts, because as long as the work gets done every year, nothing will change, regarding temporaries. I used to call myself a “disposable employee”, and some permanents didn’t like that reality. When the bosses would ask if I was coming back next year, I would sometimes say, “I am an unrestricted free agent, and will go to the highest bidder”. The bosses sure don’t like it when temps don’t commit to returning to the same old dead end job.

  5. Bubba asserts that the Forest Service has enjoyed recreation fee-charging authority since 1950 under the Granger-Thye Act. But that’s not what the Forest Service thought not so long ago.

    In 2009, the Forest Service explained its fee-charging authority:

    In December 2004, the Federal Lands Recreation Enhancement Act (REA) (16 U.S.C. 6801-6814) supplanted the LWCFA [Land and Water Conservation Fund] and the Fee Demo statute as the sole recreation fee authority for the Forest Service.

    The Forest Service continued to utilize the same standards, now the criteria in REA, for determining whether developed recreation sites, both those managed by the Forest Service and those managed by concessioners, were eligible for charging a use fee.

    The notion that the Granger-Thye Act, by itself, authorizes recreation user fees of any sort is a new one, probably dreamed up as a litigation defense in this case.

    Here’s what the G-T says in its entirety:

    The Secretary of Agriculture, under such regulations as he may prescribe and at rates and for periods not exceeding thirty years as determined by him, is hereby authorized to permit the use by public and private agencies, corporations, firms, associations, or individuals, of structures or improvements under the administrative control of the Forest Service and land used in connection therewith: Provided, That as all or a part of the consideration for permits issued under this section, the Secretary may require the permittees at their expense to recondition and maintain the structures and land to a satisfactory standard. 16 USC 580(d).

    Nothing in this language authorizes the Forest Service to charge the public a recreation fee (nor do the implementing regulations, 36 C.F.R. §§ 251.50–.65, cited by the court authorize any recreation fees). And, as shown by the quote above, the Forest Service, until quite recently, has never thought the G-T Act did.

    In fact, it was only with the passage of the 1965 LWCFA that the Forest Service gained legal authority to charge recreation fees, whether for developed sites (e.g., campgrounds) or anything else.

    I hope that Kitty, et al., appeal from this court’s ruling. I think they would win. I’d help ’em, too, if they ask (hint!).

    • P.S. If there was any ambiguity about the Granger-Thye Act’s limitations, the Forest Service’s Manual resolves it. Here’s what the Manual says:

      2344.3 – Campgrounds and Related Granger-Thye Concessions

      This category involves Concessioner operation of Government-owned improvements, such as campgrounds, swimming sites, and other day-use facilities, for which the Land and Water Conservation Fund Act (L&WCF) allows the charging of fees.

      . . .

      3. Authorize Concessioners to charge for use only if the Forest Service could charge under the authority of the L&WCF Act if the Forest Service operates the facility. This includes picnic facilities, boat ramps, and swimming sites where the Forest Service did not charge prior to concession operations.

      • PPS: Must be my day for beating dead horses . . . Here’s the fee authority cited by the Forest Service in a 2009 prospectus (page 21) soliciting a concessionaire to operate some Gallatin National Forest campgrounds:

        M. Fees Charged to the Public

        The permit holder may charge the public fees only to the extent that the Forest Service
        can charge recreation fees under REA. All recreation fees must be specified per
        developed recreation site. The holder must honor the proposed pricing through the first
        full operating season. Thereafter, the holder may propose price adjustments with
        justification.

        Permit holder may not charge any of the following:

        • Solely for parking, undesignated parking, or picnicking along roads or trails.

        • General access, unless specifically authorized by REA.

        • Dispersed areas with low or no investment, unless specifically authorized by
        REA.

        • Persons that are driving through, walking through, boating through, horseback
        riding through, or hiking through NFS lands without using the recreational
        facilities and services for which a fee is charged.

        • Camping at undeveloped sites that do not provide the minimum of facilities and
        services prescribed by REA.

        • Use of overlooks or scenic pullouts.

        No mention of the Granger-Thye Act as providing authority to charge recreation fees.

        • My last word . . . really.

          If I were Bubba, my response would be succinct: “We won, you lost. So suck it.” However, I’m hoping Bubba is more mature than I and will explain why I’m wrong. But, if not, I saved Bubba the trouble of saying the obvious.

  6. April Fool’s . . . I lied. That wasn’t my “last word.”

    This is my “last word,” at least for today.

    There are a lot of things “prohibited” by the Forest Service, i.e., infractions for which you can get fined, imprisoned, or both. These prohibitions are enumerated at 36 CFR 261. Among them is “Failure to pay any recreation fee . . . ” 36 CFR 261.15.

    Here’s the kicker . . . ‘Recreation fee’ means a standard amenity recreation fee, an expanded amenity recreation fee, or a special recreation permit fee as defined in section 802(8) of the Federal Lands Recreation Enhancement Act (16 U.S.C. 6801(8)). 36 CFR 261.2 There ain’t no prohibition against failing to pay a Granger-Thye Act recreation fee because . . . there ain’t no such critter.

    A corollary . . . as the Forest Service pointed out just a couple months ago, in litigation brought by campground concessionaires upset about the government shut-down:

    [T]he Forest Service is responsible for certain aspects of law enforcement, in coordination with state and local law-enforcement agencies. See FSM § 2342.1 (discussing how “concessionaires have the same authority as a private citizen” and that “[t]he Forest Service retains all its authorities and responsibilities for enforcing Federal laws and regulations relating to administration of National Forest System lands”).

    The Forest Service can only enforce failure to pay a FLREA-authorized fee (see above), while the concessionaire has only “the same authority as a private citizen,” that is, no police powers whatsoever. Which leaves recreation “fees” that exceed FLREA’s authority unenforceable by anyone.

  7. Ok, I have to chime in here. In my experience (I’ve intermittently worked as a USFS Rec. crew boss for 6 seasons on the North Zone of the IPNF) funding has not been an issue. Travis, at the top of the thread mentions that funding has been cut by 45% over the last 5 years on his district. That has been the case on the IPNF as well, including additional funds appropriated from rec during big fire seasons. How has the IPNF North Zone faired? Incredibly well. Pat Hart, the rec supervisor, manages to field highly capable crews that maintain nearly a dozen campsites, three lookouts, a historic ranger station now rented out to the public, over 380 miles of trail, blasting culverts and hazard trees, and many more day to day tasks. How does she do this? Outside funding. She is a highly competitive grant writer and acquires funding from RAC, the state recreation fund, the Sierra Club, American Hiking Society, and others too numerous to list for the present purpose. She takes advantage USFS senior programs, which provide a valuable source of income for many retired folks living on a shoe-string budget. The seniors are largely in charge of campground and facilities maintenance. She takes advantage of the USFS youth employment programs to do the light work after the main trail crew has laid tread. This enables the main crew to keep moving and cover more ground. This experience is valuable to the kids because they use it to further their employment potential after graduation. My point? Individual differences in District’s recreation managers has a HUGE impact on the success of the recreation services that USFS is able to provide. Perhaps, Pat’s model can be duplicated on other districts as well?

  8. If the USFS doesn’t have the budget needed to manage the lands under there jurisdiction, then one of two things need to happen:
    1. Allow logging and mining
    2. Turn some of the lands over to the states so they can log and mine the lands.

  9. Oh, I can’t resist commenting on this one, since I oversaw the Forest Service Recreation Fee Demo program back in 2000-2003 when we were trying to get permanent authority. Before I left my Recreation Staff job on a ranger district to head to DC, I pulled a campground concession prospectus from being advertised because I learned that once a site went under concession, Congress prohibited from ever being a part of the Rec Fee program. I thought it would be better for the Forest to retain the camping fees and operate it ourselves rather than turn it over to a concessionaire.

    What I never could get the fee foes to understand is that the more they worked against the Forest Service retaining fees for operating recreation sites, the more likely it would be for all those sites to be turned over to the private sector. That was already happening before Rec Fee Demo was approved. Recreation budgets just could not keep pace with operating costs, and it only got worse through the years as fire budgets took a larger slice of the pie. Take away the REA, and it will be concession operations only, or sites would simply close. [Notwithstanding the rare heroic staff officer who can duct tape together funding from various other sources—a topic worthy of its own thread.]

    I can’t see a day when Congress will take away private concessionaire’s opportunities to operate on public lands. Every authorization for recreation fees always included a provision for concessions. And they have to make a profit on their operations. Yes, they have strict contracts and Forest personnel oversee their operations (and, of course, enforce all laws and regulations), but I am always sorry to see the loss of agency presence at those sites.

    And unfortunately, it is just not profitable for concessions to accept passes, so you end up with a lot of anger from folks who don’t understand the business agreement behind the permit. Heck, I get mad when I can’t use a pass at one of those sites! There have been attempts to work out a deal with concessionaires for passes that work in individual areas (such as on the Red Rock Ranger District), but these are very complicated and rare.

    I’m retired now (woo hoo!) and don’t have a lot of patience for all the legal intricacies, but this was a solid ruling for the Forest Service. It looks like the agency has made a good faith effort to make concessionaire operations consistent with the provisions of REA, even though they didn’t have to. The site descriptions seem highly developed and provide services.

    I just hope this doesn’t give any agency folks ideas, now that a judge has affirmed Kitty’s worst fears (be careful what you ask for). I don’t think it will. The agency needs REA to be reauthorized.

    We went through many years of experimentation with recreation fees. The REA was a product of the sausage making machine, no doubt, but it has pretty clear guidelines for where to charge fees and how to spend them. The Forest Service experimented wildly with too many different fees for too many years before being forced by Congress to operate under these guidelines. They resulted from a tremendous amount of study and dialog.

    Some folks will never accept paying extra for recreating on public lands. They need to get over it or go somewhere else. I think that Congress has weighed the alternatives and will continue the program in some form or another. It will be interesting to see how much of a fight it will be to get that reauthorization.

  10. As a retired businessman I find it extraordinary that anyone would suggest that the PUBLIC’S National Forests should be sold back to the PUBLIC by a PRIVATE concessionaire.

    I personally know of “for profit” motels (albeit modest) who still (2016) offer a bar of soap, two clean towels, a bed, clean sheets, runnining hot and cold water, a working toilet, a working TV with cable programming, HEAT and a structure to protect the occupant from the element….ALL ..for under $30.00 a night….And like I mentined..THEY ARE FOR PROFIT…Many of us seniors…and veterans have already paid a lifetime of HIGHER taxes and should not…NOW be forced to pay AGAIN what we have already paid for

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