Litigation Virgin no More, and Good News on Parks for the Next Shutdown

My company has been sued a few times for slip and fall type stuff but I have never in my life been the plaintiff in a legal action.  As is perhaps appropriate given my political leanings, my first ever suit was against the the Federal government, specifically against the Forest Service seeking an injunction against their closure of the campgrounds we operate in the recent shutdown.

Unfortunately, the case reached the court on the day the shutdown lifted, but the judge was still very helpful in giving the Forest Service a swift kick in the butt to hurry them along so they didn't drag their feet reopening us.,

I had feared that we would lose the opportunity to set a precedent.  Since the shutdown was over I though the Court might consider this issue moot.  But apparently one can continue with such litigation to set a precedent if there is reason to think the circumstances will recur.  And the government attorney was kind enough to make a statement right in the court transcript (granted in context of a different argument) that this same shutdown situation is likely to reoccur as soon as early next year.

The good news is that we appear to have an argument that the Court is willing to entertain.  In fact, the statement below was a statement by the judge in the hearing (it's from the hearing transcript and Q&A with the government attorney and not from any official opinion).  It is not in any way binding but it gives us some confidence to try to proceed to get a ruling on the legality of our closure now, so we have it in our pocket for next time.  Here is the Court's statement, addressing the government attorney:

Well, the basic problem is that the Forest Service never should have closed these that were permitted properties.  And they in fact violated the agreement they had with these plaintiffs in doing so without necessity and determining they had a right to do so, which I don't think they did....

[the Forest Service has] nothing to do with the administration and management of the campgrounds other than the inspections at any given time.

So, what they have done is unreasonably close these parks, preventing the concessioners who pay a premium in order to get this permit and lease the property under the requirements in this permit -- and the Forest Service was very ill-advised to make the decision to close these grounds under these circumstances, where you have given up the maintenance and administration of these campsites.

I understand the overall obligation for public safety, but you have delegated that to private entities.  And you took it away when it wasn't costing you a dollar to leave it as was.  And in fact, that's where  we get into the restraint of trade and the fact that there are losses which are most likely uncompensatable.


By the way the case was National Forest Recreation Association et. al. vs. Tom Tidwell.  My company, among others, was al.



  1. anonners:

    Don't you and the rest of et al. have monetary damages?

  2. mesaeconoguy:

    Congratulations, al!

    You have a basis of a ruling in your favor, even though the action was suspended concurrent with the motion.

    Next Feb., when this happens again, you can write this off as a business expense when Oblunder mysteriously forgets to close down your fully-run establishments.

    If he is stupid enough to try, I recommend keeping a good firm on retainer to serve any of his goons in person.

    I recommend video wherever possible, if President Moron tries it again.

  3. Robert Hewes:

    So baby when we call you we can call you Al?

  4. Sam L.:

    Good for You!

  5. Cardin Drake:

    Thanks for having the guts to file. It will be interesting to see if the government retaliates on future contracts.

  6. norse:

    Neat - congratulations, and thank you for following through on this issue!

  7. mlhouse:

    Privatization of the operations of most government services is a necessary condition going into the future if we really want to maintain even the bare minimum of these services. Warren's operation of state and national parks are just one example. I am in the home health care industry and that is another example. The only way to efficiently and affordably offer these services to the American people is to have private companies operate them. How the government treated the American people during the partial shutdown is just an example why this must be so.

  8. marque2:

    A little off topic, but the press excoriated GOP for "causing a shutdown" over Obamacare, and wanting a one year extension. According to the polls the people hated the GOP as well for doing such.

    Of course now, we have a handful of Democrats saying that maybe it should be delayed, and they are being covered as though they just came up with a brilliant idea. No way - we could delay it, and work out the kinks in the system? Your are Brillliant man, brilliant.

  9. mesaeconoguy:

    The takeaway lesson from this laughable rollout is that these leftists are galactically ignorant, stupid, and shameless sociopaths in need of major attitude adjustments.

    There’s a lot of Coke/Pepsi talk, most of which I agree with, but you don’t get this level of rank incompetence from Repugs.

    The irony, as George Will observed the other day, is that the real problems begin after they fix the website disaster, and have to actually make the program work. If they screwed up the website rollout this bad, just wait until they try to process claims and administer benefits in a complex bureaucratic labyrinth.

    Nuclear trainwreck time.

  10. marque2:

    I am guessing they can pursue monetary damages - but probably won't. The need to have a cordial relationship with the government and suing for damages might make the government retaliate by refusing to turn any more parks over to the private sector - or worse shutting the whole private management system down. With a leftist president in charge I wouldn't be surprised if the would shut it down claiming something populist like private companies should not make a profit off of the people's land.

  11. marque2:

    I would think that most federal lands especially the National Forests should be turned over to the states, and let the states manage them.

  12. mlhouse:

    I disagree in that some lands are properly federal. The Gettysburg National Battlefield, for example, is an appropriate federal park that should be managed by the national government [many Civil War battlefields in the south are essentially lost because of this issue].

    And, state or federal, private companies should manage these concessions. Then the employees are private employees not subject to overpriced public labor and the parks are managed to meet USER demand, not some political objective.

  13. LarryGross:

    Thinking about the bigger picture here. The folks who want less govt probably would get rid of the FS all together right and sell the forests to the private sector.

    Could you then still operate a campground and be responsible for the entire O&M, etc?

    I've camped at a lot of campgrounds - hundreds - from DOI, to BLA to Army Corp, FS, state, local and private and in general the private campgrounds are far more expensive.

    Most we have stayed at start at 30.00 a night a go up whereas most govt - Fed/State/Local campgrounds we have stayed at (including those operated by concessionaires) are dirt cheap in comparison - usually on the order of 12-15 or less, sometimes 20... or so...

    If they have showers, they are more expensive. Many FS and DOI and BLM do not have showers.. many do not have running water.. just pump/haul or compost toilets.

    In Canada - campgrounds are far, far more expensive. Even tent sites start at 40 and "Provincial" campgrounds are downright primitive almost never have showers/plumbing.

    The campgrounds that look to me to be the most prosperous at the ones that cater to the huge bus type campers that cost 60, 70,80 up per night and include full hookups, water, sewer, electricity and cable.

    not really "camping" but to each their own... etc..

    but it would seem to me - that being a concessionaire to a Federal Campground is, forgive me, not really "free market" and yes.. vulnerable to all sorts of back and forth between those who believe the govt should be in the campground business at all - and those that don't.

  14. marque2:

    Like I said - most. Also you don't think PA could handle the Gettysburg Battlefield? You think if it were given to them to steward, they would pave it over and put up a Home Depot?I highly doubt it.

    First off the battlefields that are gone - well it happened a long time ago - not in this day and age when we preserve everything. And second. Do we really have to preserve every battlefield? If we did half the east coast would be off limits due to Revolutionary and Civil war action. Couldn't build in half of Manhattan for instance. The whole town of Jacksonville, Atlanta, and Richmond would have to be closed down as a monument. Very silly indeed.

  15. marque2:

    Selling the forests to the private sector would be a good plan. Even I am not as radical as you are. I think most federal lands - esp forest lands should be given to the states to manage. It is not like Californians would see Kings Canyon park in their possession and then suddenly log off all the old Sequoias. Or that Utah would strip Bryce Canyon for mineral rights

    Even private companies owning Bryce Canyon or Kings Canyon park would see it as more valuable remaining as a park then as a shopping mall. In fact the private company would probably do more improvements like add campgrounds because they don't have political pressure not to.

    If you want to see how government in kahoots with eco groups is destroying national parks you just need to look at the Yosemite plan. They want to take out all the campgrounds, close the only road into the park, take out the three swimming pools as well, to "save" the Merced river, which is not in any danger - and will be in worse danger as folks attempt to swim in the river when the pools close. They also want to ban bicycle rentals - so folks will have to waste energy bringing in their own bikes (yes your mileage goes way down with a bike on the roof).

    I mean the plan is to basically close the place down. Fortunately there is still enough local opposition to stop the road closure, but the pools, bikes and campgrounds are still going.

  16. LarryGross:

    are you aware of how most Federal Parks came into being to start with? Yellowstone, for instance?

  17. marque2:

    What was the fate of Niagra falls?

    Anyway, stupid argument. Like we in 2013 value resources the same way we did when we were a much poorer country 140 some years ago. And I am not sure that Yellowstone would be destroyed if it weren't turned into a federal park.

    A lot of hyperbole went along with claiming the lands.

    In California for instance, Kings Canyon was the second national park and was dedicated to protect the Sequoias. But there was already a movement in CA to protect the sequoias, and by the time it became a Federal park, they were already fairly safe.

    Years later - again long after the sequoias were safe, the federal government made a Sequoia National monument, south of Sequoia National park, which also is completely unnecessary, but is nice because they name to groves after presidents. The Bush grove, the Clinton grove ...

    Not sure how the first park, Grand Canyon, was actually saved either or whether it was in danger in the first place. They took away the ranchers from the edge, and then went on to kill all the wildlife.

    And again, my point. Would a state in 2013 take Yellowstone from the Feds and then go on to strip mine it? You really think that? At worst they would end up like the Black Hills, in South Dakota, which is mixed use, and is very scenic with a nice mix of hotels, and wildlife to view.

  18. mlhouse:

    Sometimes hyperbole is what is silly. And, no, I dont want a specific state controlling sites that have national implication. That places too much of the burden on the state and also gives them too much influece in the parks direction.

    An even bigger example of this concept would be the site of the our nation's capital. The Founders dictated that the seat of national government would not be part of any state. Wise idea to follow when it is appropriate.

  19. LarryGross:

    Wasn't Yellowstone the first park ?

    I think most Americans would disagree with you on whether the private sector would have saved these areas or done as good a job at it. And to a certain extent this is not about your views or beliefs but about what most people believe and want and most people reject the libertarian view of things.

    not sure about your point about Niagara... what about it?

  20. marque2:

    You brought it up, you should know. The folks who were pushing their progressive point of view on Wyomians, were saying that they didn't want Yellowstone to turn into Niagra falls.

    And yes I am sure progressives, who think all business is bad anyway distrust business. It is a tautology.

    Anyway, as to my point - I still think Yellowstone, Grand Canyon, Yosemite, et al should be given to the states they reside in to manage. Which is still government, so how could progressives hate that? Unless state governments are more like businesses? OMG!

  21. LarryGross:

    what? Yellowstone was created in 1871... what did that have to do with Niagara Falls?

    let me ask you also - have you been to both?

    the folks who agreed to create Yellowstone were "progressives" really?

    why is there an issue on these parks between States and the Feds?

    Most all of these Federal Parks -the states had the opportunity to create them first, right? why did they not?

  22. LarryGross:

    where do you get your ideology from Marque? The states have preserved a wide variety of places themselves. why is this a contest or adversarial issue?

    Most Americans are glad that the Park Services protects these areas. Of all the things you might propose to Americans - giving these parks back to the states would not be supported and in fact would be heavily opposed because people know that states would not provide the same level of protection. You have to reconcile your own views guy with the majority of Americans. you live in a country where we do decide these issues by what all people believe not just a few.

  23. marque2:

    Larry unlike you I do a bit of research on other peoples statements before I mouth off. So I looked up the creating of Yellowstone before commenting on it. You merely had to google or wiki the same yourself to find out about the Niagra falls comment.

    As for which park was first, that is an argument for another day.

  24. LarryGross:

    still not sure about your point about Niagara in a Yellowstone context.

    what is your point?

  25. marque2:

    Because larry, because, the states would probably handle the national parks better since the states tend to have the people who like to use the parks. You also need to realize there are park systems. The National Park Service - whose mission is to turn parks into zombie like areas that never change. And the National Forest Service which regulates forest land, but provides leases for tree harvesting (thinning) allows some hunting, and commercial use of the forest. the National forest service lands should definitely go to the states, because again the states would better manage the resources, and the areas wouldn't be held hostage by government anti business bureaucrats.

    If you are happy with the Federal Government handling the parks, you should be just as happy with the states, and even happier when you get better service going to the parks.

    BTW, I concede that Yellowstone is the first National park, but it gets tricky since the National Park Service was founded in 1916 long after several parks were kinda sorta created.

  26. LarryGross:

    Do you know how the Govt got the National Forest Lands to start with? that the states could have got those lands first?

    what caused the Feds to create the National Forests?

    re: Yellowstone first Park Service.. I think you'll find that parks were created AFTER the Park Service was created also.

    I'm not opposed to the States creating Parks at all - I just point out that for almost all the National Parks that the states did have the first opportunity and chose not to.

    Yellowstone had the support of a LOT of Conservatives. In fact, back in those days Conservation was associated with Conservatives not "progressives".

    "Conservation" is a derivative of "Conservative".

    Teddy Roosevelt was a conservative and a great Conservationist.

  27. c_andrew:

    marque2 wrote, "The need to have a cordial relationship with the government..."

    Here's how to sue the government, get money, and still preserve a cordial relationship. Of course, it does entail a certain level of moral bankruptcy, but what's a little corruption among friends?

  28. Not Sure:

    "I've camped at a lot of campgrounds - hundreds - from DOI, to BLA to Army Corp, FS, state, local and private and in general the private campgrounds are far more expensive."
    If people didn't think those private campgrounds provided good value, they'd go out of business, wouldn't they? The fact they exist would seem to indicate that they are meeting the needs of their customers, don't you think?

  29. marque2:

    Teddy Roosevelt was probably our second most progressive president. (R) doesn't mean conservative.

    And no I don't think putting land into zombie states is necessarily a good idea. Mixed use development, which is what was happening would have been better use.

  30. John O.:

    Niagara Falls for many decades was unprotected until the state of New York in the late 19th century established the Niagara Reservation along the banks of the Niagara River in the City of Niagara Falls. Both sides of the Falls is run by either the provincial government or the state government, their respective federal governments have long been absent in running and maintaining the Falls as a park.

  31. John O.:

    I definitely agree with the comments that want the federal government out of the business of managing land, forests or parks. There's no delegated power to operate and maintain parks in the Constitution and commerce has nothing to do with parks. I consider it major handicap to the Western States that much of their land is titled to the federal government, while in the Eastern states the lands that were titled were done so through Article IV.

    I've always considered the solution to the problem of "National Parks" to be solved by transfering them to the states and allowing Congressional resolutions to bestow the states of "national" to a park that is particularly important to our shared national history and culture, much like how UNESCO has its recognition of World Heritage Sites.

  32. LarryGross:

    I suspect at the prices charged by the govt campgrounds that it's not a self-supporting operation and the Feds are probably picking up the infrastructure and maintenance costs and only charging for operation. The private campgrounds which are invariably quite a bit more expensive are paying for all O&M costs, plus the cost of the land and structures plus profit.

  33. LarryGross:

    yup. that's why I was asking marque2 if he had every been there - ... he would have seen the remnants of industry right at the base of the falls...and even now the only reason the falls has water (not diverted for power) is govt - the industry there would take every drop for power production if not for protection efforts.

  34. LarryGross:

    oh geeze.. the CIA, NASA, NOAA, FEMA, etc, etc, etc are not in the Constitution either....

    Many of the National FOrests, the states had the ability to acquire them after they had been clear cut but did not... The Feds stepped in when the states ignored the problems.

    Out west, remember how the Feds got into the land business to start with? Where did the rails get their land from?

    Most people in the US want the Feds to own and protect the National Parks. A small minority of people want them sold or given to the states because most people believe the States and private industry would not do as good a job protecting them and there are examples.

    People want SOME wilderness preserved... is that what the word "zombie" is being used for?

  35. LarryGross:

    Conservation did come from Conservative though.. it means to conserve - resources.

    and what Ulysses S Grant a "progressive"? He created Yellowstone.

    why didn't he just leave it to the private sector or the state ?

    Old Faithful would have Carnival rides and food vendors and freak tents, etc... right?

    Yellowstone falls would have a mega flume ride... right?

    is that what young libertarians want? serious question.

  36. marque2:

    What is wrong with having fun things at a park? Beside what happened in Black hills south Dakota? Seems like what you wrote about are your anti business fantasies.

  37. mahtso:

    Regarding the comments on costs: At least some of the National Forests need millions of dollars of work done to reduce the risk of fire (one could easily say this is a result of mismanagement). How do you factor that cost into the blogger's management of the campgrounds? Should the campground manager pay for the work or be required to raise fees to cover the costs? Do people think the "states" will pay for this work?

    If the parks/forests are given to the states, haven't the feds given my property away? (Using examples from below, to say the residents of California and Utah.) Would a state "pave" these parks? How would I know, but what of the risk that Arizona starts charging non-residents an entry fee to the Grand Canyon of 10, 20 or 1,000 times the resident's fee?

  38. John O.:

    Your constant citing of "most people" is nothing more than argumentum ad populum and isn't helping the discussion. Present some evidence that isn't vague. And to further address your usage of the phrase; what "most people want" is no excuse for government operating extraconstitutionally. And it doesn't excuse them either if they've been doing it for a day or 200 years. The Constitution was not written to give the federal government every power under the sun it might need. It was given the basic amount of delegated powers to operate and function with minimal complications. The 9th and 10th amendments are prime evidence of this line of construction.

    The operation of forests, parks and everything else protected by the Antiquities Act can be served just as well by the states.

  39. John O.:

    I wonder what the blog's author might have to say about this.

  40. John O.:

    You're assuming everything that can be done to maximize profit will be done to maximize profit. Unfortunately for you, both sides of the Falls have generating stations run by government owned corporations that easily get preferential benefit through the government regulatory system.

  41. mahtso:

    I do not believe the blogger (Warren) operates any national parks (but I may be wrong). Consistent with what I wrote above, as to the camp grounds in the National Forests, those are a very small part of the land-area in those Forests. Do you think a private company could actually manage an entire National Forest?

    I have no problem with letting private industry provide what are often thought of as government services (e.g., trash collection, water provision) or with allowing them to operate the campgrounds. But I think it is naive to say that private industry could do some of these things without a "subsidy" (or what ever you want to call it.) In the case of the campgrounds that "subsidy" is in the form of the land unless the blogger/campground operator is leasing the land on which the campground sits. And even if the campground is leased, there is the other tens-of-thousands of acres of land surrounding those sites that is not being paid for but is (I assume) one of the main reasons people camp in the Forests instead of other locations.

    Like the economist said: land labor capital.

  42. LarryGross:

    nothing. but a time and place for all things and most Nat Parks are about significant natural and historic resources and there is plenty of other land available for "fun".

  43. LarryGross:

    nope. It's the REALITY. It's the way people feel and people do vote.

    The govt is - what a majority of people want it to be.

    Your view of what the Constitution is (or is not0 ... is an opinion - disagreed with by more than a hundred years and thousands of other elected lawmakers and SCOTUS.

    you're certainly entitled to your view - but so are others and then we vote.

    Everything from the FAA to NTSB to dozens/hundreds of other Federal Agencies do exist and are lawful and are Constitutional - according to others. You disagree but that won't change anything unless or until you convince a bunch of others.

  44. Not Sure:

    My post consisted of two questions. You managed to respond to that post without answering either. Good job!

  45. LarryGross:

    well let me try again then.

    campgrounds DO go out of business, right?

    I swear I don't see questions.. how about you being more explicit?

    but let me add... that people who stay in Govt forest, parks, etc... are not the same as those who stay in KOA resorts.

    KOA and other private campgrounds are distinguished in large part by the fact that the camp spots are small in many if not most and really unsuitable for tent type camping and these days many campgrounds that cater to the big rigs don't even offer tent sites or if they do.. it's like camping in other people's back yards.

    people who go to the national parks and forests tend to want more space around them - and trees... although trees are in short supply in some of the west/southwest arid campgrounds.

    People that like Govt campgrounds don't want to camp in sight of an interstate with road noise apparent 24/7. People in big rigs don't care.. they're inside with the air cond and TV on.

    In short, the govt campgrounds offer a kind of camping not found easily in private campgrounds that are primarily profit-driven (and I have no problem with that) whereas the govt campgrounds are not.

    and so Warren is providing a concessionaire service that does save the govt the expense of doing the same job but I suspect the finances might not be that different as the park service and forest service both tend to use volunteers to do some of this work if they can ... they just don't want to have full-time govt employees doing that kind of work because it costs benefits and pensions, etc... and they barely have enough funding for their core functions anyhow.

    the people who camp in the govt campgrounds very much want that experience and usually do not want the KOA experience.

    The govt in Canada charges 2, 3 times what the US govt charges. Maybe the US govt should boost fees to 40-50 per site per night, eh to pay for not only the concessionaire fees but the infrastructure O&M?

  46. Dinah B. Andersen: saw this the other day. Thought that this is of interest.....

  47. marque2:

    You might want to read up on why Yellowstone was created. The excuse for federalizing and zombifiying Yellowstone, is that they needed to do something so it wouldn't turn into Niagra Falls. I don't know what it is like today. Apparently there was a successful business or two running there in the 1870's.

    Like I said Larry, you don't research, you just blather.

  48. marque2:

    Some progressive many years ago, who was grossly anti business used populist reasoning to sucker congress into making Yellowstone.

    "Hayden, while not the only person to have thought of creating a park in the Yellowstone region, was the park's first and most enthusiastic advocate.[25] He believed in "setting aside the area as a pleasure ground for the benefit and enjoyment of the people" and warned that there were those who would come and "make merchandise of these beautiful specimens".[25] Worrying the area could face the same fate as Niagara Falls, he concluded the site should "be as free as the air or Water."[25] In his report to the Committee on Public Lands, he concluded that if the bill failed to become law, "the vandals who are now waiting to enter into this wonder-land, will in a single season despoil, beyond recovery, these remarkable curiosities, which have requited all the cunning skill of nature thousands of years to prepare".[26]"

    Now you have the Niagra reference. Since no one bothered to look it up but me.

  49. marque2:

    Why don't you read how yellowstone was created, then you won't have to ask me. There is a fine article about it in the Wiki.

  50. marque2:

    The forest service doesn't really manage the entire forest either. They manage the areas close to roads and buildings and such.
    I doubt the costs outside the campgrounds are very much other than say fire control, which is probably covered by lease payments.