FOREST SERVICE: Court finds recreation contractors exempt from law that limits visitor fees
Phil Taylor, E&E reporter
Published: Tuesday, April 1, 2014
Private concessionaires who operate Forest Service recreation sites are exempt from a 2004 law that dictates when they can charge fees to visitors, a federal district court has found.
The ruling handed down Friday was a victory for the Forest Service and the concessionaires who operate thousands of campgrounds, boat launches, scenic overlooks and other recreation sites on national forests nationwide.
But critics said it could open the door to the further "privatization" of forest recreation and gives the agency an easy end-run around laws designed to protect visitors from fees.
Bark, an Oregon environmental nonprofit, was joined by five individual plaintiffs in the case, which challenged fees charged by concessionaires at five national forest recreation sites in Oregon, Arizona and Colorado. The Forest Service was backed by the National Forest Recreation Association, which represents concessionaires and intervened in the case.
At issue was whether private concessionaires must follow the 2004 Federal Lands Recreation Enhancement Act, which allows the Forest Service and other lands agencies to charge a "standard amenity fee" at national conservation areas, visitor centers or areas that provide parking, toilets, trash cans, interpretive signs, picnic tables and security.
The U.S. District Court for the District of Columbia found they do not, arguing that concession contracts are instead governed by the 1950 Granger-Thye Act.
"[The law's] requirements and restrictions do not extend to third-party concessioners," said the 27-page opinion by Judge Rudolph Contreras. Namely, FLREA says a third-party can charge a fee "in accordance with any other applicable law or regulation," the judge said.
The ruling is likely to generate debate Friday when the House Natural Resources Subcommittee on Public Lands and Environmental Regulation discusses a draft bill to reauthorize FLREA, which expires in December 2015 but for practical purposes must be extended by the end of 2014 (E&E Daily, March 31).
The law has been controversial since its passage. Many argue the Forest Service has exceeded its authority by charging admission to public lands with few amenities that should be open and free for all.
But the fees -- which in fiscal 2011 brought in $260.6 million to the Forest Service and four Interior Department agencies -- helped improve recreation facilities and maintenance, the Obama administration has said.
According to the Forest Service, nearly 70 percent of the 20,800 recreation sites on national forests are free. About 4,000 sites charge fees under FLREA, with about 2,300, such as concession campgrounds, charging fees under a separate authority.
Matt Kenna, an attorney who represented the plaintiffs, said they've made no decision on whether to appeal but that "another opportunity would be to fix this in Congress."
Kitty Benzar, president of the Western Slope No-Fee Coalition in Durango, Colo., will be testifying this Friday that the law's reauthorization should make concessionaires subject to the same fee restrictions as the Forest Service, Kenna said.
"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," she said in an email last Friday. "Under Judge Contreras's ruling, the Forest Service cannot charge a fee solely for parking, but concessionaires can."
Concessionaires point to agency oversight
Benzar said the Forest Service has converted more than half of all its campgrounds -- including more than 80 percent of the most highly developed ones -- to private contractors who typically charge more than agency-run campgrounds.
The ruling could encourage the Forest Service to turn more sites over to private contractors, since the burden for charging fees will be lower, she said. Such a trend discourages people from purchasing all-access recreation passes -- such as the $80 America the Beautiful Pass -- because private concessionaires do not have to honor them, she said.
But Marily Reese, executive director of the National Forest Recreation Association, said contractors are already subject to strict oversight by the Forest Service for which services they must supply and what they can charge. Concessionaires must bid against each other to provide the best service for visitors, she said.
"We were obviously very pleased with the ruling," she said in an interview. "Our concessionaires go through a very rigorous, intense bidding operation for these permits, and they are tightly regulated. They have to have permission for everything."
Current law requires the Forest Service to consider whether proposed concession fees are commensurate with market rates, Reese said. In the vast majority of cases, a portion of fees collected by concessionaires is used by the Forest Service for site improvements such as new picnic tables, fire grills, bear-proof trash containers and accessible outhouses, she said.
Contreras agreed.
"Plaintiffs' argument ignores the Forest Service's review process for third-party special use permits, which requires special uses to be, among other things, in the public interest and compatible with the purposes of land management," he wrote. "The Forest Service does not just act as a 'rubber stamp' imposing no restrictions on concessioner permits; it has demonstrated that it is willing to reject or modify proposed concessioner fees to ensure that visitor fees have an adequate basis."
Contreras also rejected plaintiffs' separate claim that the Forest Service's "policy and practice" of issuing special permits allowing private contractors to circumvent the fee restrictions under FLREA was illegal under the Administrative Procedure Act.
Contreras said an "on-going program or policy is not, in itself, a final agency action under the APA."
