Should I Resort to Civil Disobedience And Re-Open Our Privately-Funded Parks?
I have gotten a lot of mail with moral support from readers as we try to deal with the fact that the White House has ordered privately-funded parks in the National Forest to close, flying in the face of all precedent and budget logic.
Many, many emails have encouraged me to disobey the order and keep the parks open for the public. There are three reasons why I have chosen not to do so.
1. Respect for Contract: In my 25 or so lease contracts with the US Forest Service (the USFS insists on calling them "special use permits" but legally they are essentially commercial leases), the contract language gives the Forest Supervisor of each Forest the right to suspend or terminate the contract for virtually any reason. Yeah, I know, this is a crappy lop-sided contract provision, but welcome to the world of working with the Federal government. So each Forest Supervisor has the right to suspend our lease. BUT....
The real question here is whether they have proper justification for doing so, or whether their suspension is arbitrary. In another post I discuss why this action is arbitrary and unjustified:
Historically, the USFS has only rarely used this contract power, and its use has generally been in one of two situations: a) an emergency, such as a forest fire, that threatens a particular recreation area or b) a situation where the recreation area cannot physically be used, such as when it has been destroyed by fire or when it is being refurbished. Never, to my knowledge, has the USFS used this power to simultaneously close all concession operations, and in fact in past shutdowns like 1995 and 1996 most all concessionaires stayed open.
Budget considerations alone cannot justify the closure order, as USFS concessionaires do not use Federal funds and in fact pay money to the Treasury. Closing us actually reduces the income to the Treasury as we pay our concession fees as a percentage of revenues. Further, the USFS does not have any day-to-day administration responsibilities for these parks. The only semi-regular duty is sometimes to provide law enforcement backup, but USFS law enforcement officers are still at work (we know this because they showed up to post our operations as closed).
The Administrative Procedure Act makes it illegal for a government agency to make a decision that is arbitrary, capricious or an abuse of discretion. To this end, the USFS has not actually closed the Forests and still allows camping in the Forests. Thus, the USFS considers it safe for people to be camping in the Forests and that doing so during the shutdown creates no risk of resource or property damage. In contrast, the USFS has made the decision that it is not safe to allow camping in developed campsites run by private concessionaires. The decision that developed campgrounds run by private companies must close, but undeveloped camping can continue, makes no sense and is arbitrary, capricious and an abuse of discretion. If anything, closing developed areas but allowing dispersed camping increases risks to public safety and for resource damage as developed concession areas are staffed and trained to mitigate such risks (that's the whole point of having developed recreation in the first place).
While we feel good we have a winning argument, this is a complicated point that does not lend itself well to civil disobedience, but we are taking it to court and seeking an injunction to the closure.
2. The wrong people would go to jail. Civil disobedience has a long and honorable history in this country. But the honor of such an act would quickly go out the window if I were to commit an act of defiance but others would have to go to jail. We run over a hundred sites. Telling my people to remain open would simply lead to getting my employees thrown in jail for trusting me and following my instructions. That would be awful. Just as bad, we can see from examples in the National Park Service that such disobedience would potentially subject my customers to legal harassment. It's not brave or honorable for me to be defiant but to have others pay the cost.
3. I could lose everything. I don't want to seem weak-kneed here, but I would be dishonest not to also raise the small but critical point that I have almost every dollar I own tied up in this company, which does over half its business in the National Forest**. My retirement and all my savings are in this one basket. I would likely risk an arrest and a few hours in jail plus the price of bail and months of court appearances to make a point here. I am not ready to go all-in with everything I own, not when there are other legal avenues still available. If that makes me a wimp, so be it.
** you can be assured that the moment I have one minute of extra time we are going to be working on diversifying away from the US Forest Service as much as possible.
White Rock Mike:
Having once owned my own little company, I understand the dilemma well. You have to work with those Forest Supervisors when this is over. And there is no way to tell, reliably, which ones are the vindictive ones that will make your life hell from here to the end of the lease.
October 9, 2013, 7:39 pmCardin Drake:
As much as I'd like for you to challenge them on closing, you make a persuasive case. The Chicago way wins again.
October 9, 2013, 7:56 pmdisqus_BglexnIiXv:
I have nothing to lose. I will be in DC this weekend. Any open air monument is fair access to me. Its been decided that the opportune criteria is freedom of speech. I intend to speak very freely. Whom will join me in a peaceful exercise of our freedom of speech?
October 9, 2013, 8:02 pmMaria:
The Cliff House Restaurant in SF tried this, the park service heard about it and showed up to shut them down again. http://sanfrancisco.cbslocal.com/2013/10/09/san-franciscos-cliff-house-closed-again-after-attempt-to-defy-shutdown/
October 9, 2013, 8:42 pmDensityDuck:
This is the dark side of all those "lol, turns out that most of the Federal Government does NOTHING" posts that people (not Coyote Blog) have been making. The government says "oh, they think that a government shutdown won't affect them? Well, we'll just FIND ways for it to affect them!"
October 9, 2013, 10:51 pmBrad Warbiany:
My advice to you is to start drinking heavily...
...oh, and don't open the parks.
As much as I'd love to see you make this fight, there's a simple fact. THEY.CAN.RUIN.YOU. It doesn't even matter if you're right. There's too much to lose to fight. That's a sad statement, but it's the truth.
October 9, 2013, 10:59 pmsmcg:
Different Country, different rules Coyote, but you would be a braver man than I to take on the might of the Federal Government. I suspect that yours is like ours - any challenge is seen as essentially political and dealt with using all available resources....
October 9, 2013, 11:27 pmMNHawk:
It's easy to tell someone else to lose it all. I wouldn't, myself. I would probably start looking for a way out, though. America isn't a nation with a future.
October 10, 2013, 3:34 amTom Nally:
Don't sacrifice yourself or your company. I prefer to see you engaged in battle for the next 20 years, rather than sacrifice everything in a single skirmish. Moreover, your obligation to your family is larger than your obligation to any cause. One way that you provide protection for your family is by operating a prosperous business. ---Tom Nally, New Orleans
October 10, 2013, 4:56 amXmas:
I'm hoping this arrangement doesn't leave you in the hook to pay the Forest Service while they've forced you to shut down. They can't force you to close and still expect to collect their usual cut of camping fees.
October 10, 2013, 5:24 amanon:
Discretion is the better part of valor. Shoot back with really good admin law lawyers.
October 10, 2013, 5:55 amDouglas2:
Pisgah Inn is now reopen -- the NPS allowed them to reopen in exchange for Pisgah Inn dropping its lawsuit against the NPS for their forced closure
October 10, 2013, 6:20 amnorse:
Thank you for so consistently being all kind of awesome :)
It looks to me like you are taking the optimal course of action; and I see no shame in not taking a huge risk for a very minor change in outcome (and if I were to guess, I'd guess that going to court will have a much preferable result for all involved). I am seriously impressed that you include it in your public analysis, though. Way to go!
October 10, 2013, 7:22 amlelnet:
"If that makes me a wimp, so be it."
No. But I do think that being a hard-core libertarian running a company whose entire business revolves around contracting with the government makes you a certifiable masochist. :)
You've told the story of how you ended up in this business. But I do have to wonder...given how often your troubles center on dealing with government bureaucracy, and in many cases dealing with a multiplicity of bureaucratic frustrations that is almost unique to your particular company's line of business (even when you _aren't_ being capriciously and maliciously punished for Americans' lack of desire to give Washington the power of life and death over us)...did you give any thought to such issues, before you decided to buy a business that was certain to face far more than its share of them?
October 10, 2013, 7:53 amNehemiah:
IF YOU CAN GET OTHER PARK MANAGERS REOPEN YOU CAN EMPLOY AN ALINSKY TACTIC, FLOOD THE SYSTEM TO BREAK IT DOWN. THROW AN OBAMA FAVORITE BACK AT THEM.
October 10, 2013, 9:16 amDouglas2:
Some interesting stuff in the articles on this --
October 10, 2013, 9:24 amThey had tried to defy the shutdown order, but the NPS put rangers in their driveway to turn customers away.
Quote from a NPS person that the difference in treatment between business that can stay open and those that shut is because some are textbook leases and some are concessions.
David:
Have you filed a lawsuit yet? I think the argument that this is capricious treatment seems pretty compelling, and may convince a judge to grant injunctive relief.
October 10, 2013, 10:32 amTom:
President Bully learned long ago to pick on the little guy as the bigger ones will kick your butt in court.
October 10, 2013, 11:23 amnotrehtad:
IANAL, but I'd wonder if there isn't an interesting play here where local or state politicians, who happen to have sheriffs and/or state police, and a more direct interest in the local impact of the shutdown, might be able to blockade either literally or figuratively, and turn the Feds away or arrest them. We're talking about capricious, right? Such an approach might not be appreciably different than the other one in terms of the stakes to you and your business, though, in the long run. Certainly raises awareness, though.
Just a thought...
October 10, 2013, 12:48 pmenet:
Have they stopped logging on Federal land as well?
October 10, 2013, 1:34 pmGdn:
Well, we know their boss is vindictive...ably demonstrated by this exercise.
October 10, 2013, 3:52 pmmesaeconoguy:
Hey Warren, 2 things:
1. http://www.reuters.com/article/2013/10/10/us-usa-fiscal-inn-idUSBRE9990SN20131010
2. May I suggest uncivil disobedience?
October 10, 2013, 4:26 pmmesaeconoguy:
Yes, link posted below.
October 10, 2013, 4:27 pmGuest:
Don't do it. You have no point to make that you can't make better otherwise, and no audience to make it to. Civil disobedience is theater. It's only useful if it's watched.
October 10, 2013, 6:32 pmpokeyblow:
How about you just abide by the terms of your contract, which haven't been violated?
It's an unfair world. Accept your circumstances like a man.
October 11, 2013, 9:30 amjg:
Warren, when you say you have almost everything tied up in this business, I hear echos from my own past. I, too, once owned a multimillion-dollar business. It was my baby. Just about everything I had was tied up in it. When I looked at the year-on-year return it gave me on my investment, I figured it was stupid to put my money anyplace else. And then Ka-BOOM! Circumstances from out of the blue and completely beyond my control brought it all crashing down. Today, I am destitute. Maybe I'll make some sort of comeback. Maybe not. But I speak from experience when I say that putting all your eggs in one basket—as proud as you may be of that basket, and as confident as you may be of your business acumen—is a dangerous game. What would you do if the government one day decided it wanted to run all the concessions on its property? Or some high-ranking bureaucrat decided s/he didn't like the tone of, say, your climate-change blogging and maneuvered somehow to shut you down? Sue? Don't EVER bank on the courts. Even if you end up winning, the process could bankrupt you. Be careful Warren. Be very careful.
October 11, 2013, 11:38 amWOZ:
Just curious. Do you have "loss of business income" insurance? And would it cover any losses because of the shutdown.
October 11, 2013, 12:33 pmLarryGross:
kinda hard to be a libertarian and work essentially for the govt. major conflict. In a libertarian world there would be no Forest Service much less "contracts" between "government" and "libertarians".
AT some point, we all have to reconcile our philosophical and political views with the choices we've made in our lives.
If you choose to make your living by contracting with government... kinda hard to complain...about it later.
I'm quite sure if the libertarian types in Congress had their way -there would be no National Forests at all.
October 11, 2013, 2:55 pmMingoV:
I'm as libertarian as anyone, yet I worked at a Veterans Administration Medical Center. It was not much different from working at private medical centers, because they also are heavily regulated by governments. There are entire professions, such as medicine, that cannot escape the heavy hand of government. Are all doctors to starve?
I had a second justification for working at a VA hospital. Many veterans had been drafted. One of the compensations for their years of slavery was lifelong medical care for wounds and illnesses and psychiatric problems that occurred during active duty. These veterans should receive everything the government promised, and I worked hard to give them top-notch care.
October 12, 2013, 2:51 pmbigmaq1980:
Not all career/business opportunities in one's life come in pure libertarian or pure socialist (to pick one opposing view) form.
The arguments should be taken on their own merit.
This is more a demonstration of the perils of large government.
Something as platonic/innocuous as "parks" can be used as a tool to exert some pressure on the public...AND...that it can be done with impunity, because of the cost to the citizens affected.
The fact that this administration thinks they can "gain politically" by this ridiculous abuse of power says a lot about where we are today as citizens in the eyes of those who lead us.
Warren doesn't have much choice on what to do, unless he feels the principle violated has much longer term costs that it is enough to take on the risk to oppose it - something each of us has to decide at one time or another if/as we go further into the abyss of totalitarianism.
October 12, 2013, 3:33 pmobloodyhell:
}}} The fact that this administration thinks they can "gain politically" by this ridiculous abuse of power says a lot about where we are today as citizens in the eyes of those who lead us.
"In a mature society, 'civil servant' is semantically equal to 'civil MASTER'."
- Lazarus Long(R. A. Heinlein) -
Stop arguing and say "Yassuh!" to your massuhs, BOY!
October 13, 2013, 1:37 pm>:-/
obloodyhell:
How about someone shoves a spiked dildo up your rectum?
HEY, it's an unfair world!! "Accept your circumstances like a man sheep."
October 13, 2013, 1:39 pmobloodyhell:
Well, since the camping fees are zero, this should be zero, too. What he should not have to pay is any direct leasing fees that would come from other elements of the contract, or "minimum amounts" derived from same nonexistent fees.
October 13, 2013, 1:42 pmobloodyhell:
Agreed. I think you should use every legal means, and perhaps you can employ private security or other to protect the use of your property where things like the sheriff are concerned (i.e., make sure people don't break in and trash the restrooms).
October 13, 2013, 1:44 pmbigmaq1980:
I grok that!
October 14, 2013, 5:10 am