Coyote Blog

Several readers have been nice enough to write me and ask how my business is doing during the government shutdown.  As background, my company privately operates public recreation areas, mostly campgrounds, under concession contract.  We manage public lands for many different government agencies, but many of the campgrounds we run are in the Forest Service.  Typically the Forest Service (and National Park Service) must close in this and most other shutdowns.  In fact, public parks are often a significant pawn in budget battles, so much so the term "closing the Washington Monument" has become shorthand for using popular public facilities as a leverage point in spending fights (the fact that politicians always threaten to close the MOST popular public services when money is tight rather than the most useless is exhibit A in why we shouldn't trust our money to Congress).

But all the Federal facilities we operate are still open right now through the government shutdown.  The reason for this is that our company does not receive a dime from the government -- all the money goes the other way.  We operate the facilities essentially under a (very restrictive) lease.  We collect visitor use fees and then pay a bid percentage of those fees back to the Feds as our rent -- this is a huge advantage to the government as before our management they typically lost money even after collected visitor fees and now they are gaining money**.  Since the government does not have to fund these locations, and since their daily operation requires no federal employees, the parks we operate are typically not closed during government shutdowns.

Long-time readers will be familiar with one exception -- in 2013 during the Obama Administration we were forced to close during a Federal shutdown.  Originally, the agencies we work with (particularly the US Forest Service which is part of the Department of Agriculture) gave us the usual guidance, that we were to remain open.  Then, suddenly, our company and those like it were told to shut down.  When I and my trade group attempted to protest the decision with whatever official in the agency made the decision, we were told it came from "above the Department of Agriculture," which narrows the field of possible decision-makers pretty substantially.  My hypothesis, though I can never prove it, was that the Obama Administration wanted to put as much pressure on Congress as possible, and closing the Washington Monument doesn't work as leverage if some damn private company is keeping it open.  My competitors and I banded together and took the US Forest Service to court (past articles here) and were in the process of winning our case when the shutdown ended, but ever since then the US Forest Service has allowed us to stay open in shutdowns.  If you have WSJ access, they actually covered our effort here; I made an early morning appearance on Fox & Friends; Reason TV did a nice piece; and Hans Bader of the CEI was all over the story and a big help in getting the issue some visibility.

Christmas and New Years are popular times for folks to visit in places like Sedona and Florida where we run Forest Service recreation areas, and we are happy we have been able to stay open and serve them this time around.

**Postscript: This private concession management model also has a benefit in state and local budget battles, though it is slightly different.  I can tell you from loooooong personal experience that the public really does not like recreation use fees on public lands.  My taxes should pay for that!  But now, and certainly in the future, our taxes go mostly to fund programmed expenses like healthcare and welfare plus our bloated military.  Anything else is going to be starved -- which leads to the estimated $114 billion in deferred maintenance in federal / state / local public recreation areas and parks ($20+ billion in the National Park Service alone).  Seeing this happening, most of the public has become reconciled to user fees for recreation as long as the recreation fee is used to support the local park they are visiting.

To this end, one reason folks are sometimes leery about private management of these lands is they wonder if their fees are being sucked away to some corporate equivalent of Scrooge McDuck's gold vault rather than supporting operations at the park.  It's the reason I keep this chart up on our web site:

In fact, it is the government agencies themselves that often sweep user fees out of the parks and into general revenue funds.  The Arizona legislature did this for years to the state parks agency.  The result in this situation is that the infrastructure crumbles while the user fees that should be fixing these issues actually has just become another general revenue tax.  I think of deferred maintenance in government facilities -- parks, subways, roads, etc -- as a kind of shadow borrowing where government officials borrow against the infrastructure.  This borrowing is almost invisible, at least on an incremental basis, and often the debt is eventually defaulted on as the infrastructure is never repaired and has to be closed or torn down.  By putting parks under concession management, user fees can no longer be swept away from the management and maintenance of the park, and private companies can often be held accountable for poor maintenance more readily than agencies are able to hold themselves accountable.

Years ago the Forest Service wanted to eliminate car traffic in popular Sabino Canyon near Tucson, AZ, so they closed the road and asked companies for proposals to run a tram service to various stops in the canyon.  While a bit unusual at the time this service started, this is now a very common response to overcrowding in popular natural areas.  These services are typically leased as concessions, with the operator charging some sort of fee or fare from passengers, paying all expenses, and then paying the government an agreed rent in the form of a percentage-of-revenue concession fee.

In my world of campground operations, these concession fees are typically competitively bid and thus variable, but in the world of services like this one, there is a fixed list in the regulations of services and the percentage to be paid.  The problem here started because there is no item on the list for "tram operator".  So the government, in this case the local Forest Service, picked a logical equivalent from the table and told the tram operator what the percentage would be.  The tram operator set his fares based on this and his other costs and went on with business.

Flash forward many years.  The tour operator does a good job and has great reviews but the owner is a crusty guy who sometimes rubs the Forest Service staff the wrong way.  The Forest Service decides at the end of his term to compete the contract (called a permit by the FS) and give it to a non-profit.  Its not clear by the rules the FS can do this -- there are supposed to be protections built in for good-performing concessionaires who have invested a lot in the operation -- so the old permit-holder sued but the courts backed the Forest Service.

That is all back story.  This is what happened next though:

The Forest Service recently and retroactively imposed a 150% increase in a permittee’s fees for the period 2011-2015.  The Forest Service decision was based on the views of outside third party auditors it had hired to audit the agency’s fee assessments during that period.  The permit involved shuttle operations and fees were established under the Graduated Rate Fee Structure (GRFS) which sets fees based on the type of operations.  Because GRFS does not contain a classification for shuttle operations, the agency had previously categorized the operations as “Outfitting/Guiding.”  When the third party auditors reviewed the agency’s prior fees, they believed that the shuttle operations should have been classified as “Rental and Services” by the agency.

In 2016, the auditors completed their review of the prior five years of fee assessments and issued their final audit.  The permittee had paid fees totaling $99,231 for the period 2011-2015.  After changing the classification of the operations under GRFS, the auditors asserted that the permittee owed an additional $148,305 for that period.

This is really outrageous.  The mistake made was by the government -- the private operator logically trusted the numbers on his signed contract and assumed that those were the numbers he was operating under.  To retroactively charge this poor guy an enormous amount of money for a government mistake he had nothing to do with and couldn't even know about is just absurd.  Had he known the government wanted a higher fee before he actually started operations, he could have charged a higher fare to make up for it but now he can do nothing because it is all retroactive.  Its all the worse because this decision has a whiff of retribution about it given that this concessionaire took the government to court earlier over the loss of his permit.

This penalizing of a private company for a government mistake is not atypical in a government audit.  Years ago I had the Forest Service tell our company to do X and Y maintenance projects for them and that they would reimburse us for the costs (it was their responsibility but we were closer and and cheaper so it made sense).  Years later an auditor said that the FS should not have asked us to do the project that way, and that the FS had violated their internal rules.  So instead of just fixing their internal procedures or punishing those guilty in their agency they ... judged I was at fault and told me I had to refund all the money we were reimbursed for the project.  I obviously cried foul -- I told them I was authorized in writing, that I could not un-spend the money, that I had no responsibility for their internal compliance to their internal procedures, and that the error was theirs and I should not be the one punished for it.  As logical as this seems, it took me a surprisingly long time to get them to stop demanding this money back.

This is the, uh, whateverth installment in a series on using your common sense to fact check data, even when the data is tantalizingly useful for the point one is trying to make.

For the last decade or so, global warming activists have used major fires as further "proof" that there is a global warming trend.  Often these analyses are flawed, for a variety of reasons that will be familiar to readers, e.g.

• A single bad fire is just one data point and does not prove a trend, you need a series of data to prove a trend
• There is no upward trend in US acreage in fires over the last 10 years, but there is in the last 20 years, which gives lots of nice opportunities for cherry-picking on both sides
• Acres burned is a TERRIBLE measure of global warming, because it is trying to draw global trends from a tiny fraction of the world land mass (western US); and because it is dependent on many non-climate variables such as forest management policies and firefighting policy.
• The better more direct metric of possible warming harm is drought, such as the Palmer drought severity index, which shows no trend (click to enlarge below)

• An even better metric, of course, is that there IS an actual upward trend in temperatures.  There is not, however, much of an upward trend in bad weather like drought, hurricanes, or tornadoes.  In this context fire is a third order variable (temp--->drought---> fire) which makes it a bad proxy, particularly when the first order variable is telling the tale.

AAAAaaaand then, there is this chart, much loved by skeptics, for long-term US fire history:

I am pretty sure that I have avoided ever using this piece of skeptic catnip (though I could be wrong, I can have moments of weakness).  The reason is that nothing about this chart passes the smell test.  While it is true that the 1930's were super hot and dry, likely hotter in the US than it has been this decade, there is absolutely no reason to believe the entire period of 1926-1952 were so much higher than today.  Was there a different fire management policy (e.g. did they just let all fires burn themselves out)?  Was there a change in how the data was recorded?

Here is my rule of thumb -- when you see a discontinuity like this (e.g. before and after 1955) you better have a good explanation and understanding of the discontinuity.  This is not just to be a good person and be true to good scientific process (though we all should) but also from the practical and selfish desire to avoid having someone come along who DOES know why the discontinuity exists and embarrass you for your naivete.

I have never trusted this chart, because I have not really understood it.  This week, the Antiplanner (who before he focused on transit focused most of his writing on the Forest Service and forest policy) has an explanation.

The story begins in 1908, when Congress passed the Forest Fires Emergency Funds Act, authorizing the Forest Service to use whatever funds were available from any part of its budget to put out wildfires, with the promise that Congress would reimburse those funds. As far as I know, this is the only time any democratically elected government has given a blank check to any government agency; even in wartime, the Defense Department has to live within a budget set by Congress.

This law was tested just two years later with the Big Burn of 1910, which killed 87 people as it burned 3 million acres in the northern Rocky Mountains. Congress reimbursed the funds the Forest Service spent trying (with little success) to put out the fires, but — more important — a whole generation of Forest Service leaders learned from this fire that all forest fires were bad....

This led to a conflict over the science of fire that is well documented in a 1962 book titled Fire and Water: Scientific Heresy in the Forest Service. Owners of southern pine forests believed that they needed to burn the underbrush in their forests every few years or the brush would build up, creating the fuels for uncontrollable wildfires. But the mulish Forest Service insisted that all fires were bad, so it refused to fund fire protection districts in any state that allowed prescribed burning.

The Forest Service’s stubborn attitude may have come about because most national forests were in the West, where fuel build-up was slower and in many forests didn’t lead to serious wildfire problems. But it was also a public relations problem: after convincing Congress that fire was so threatening that it deserved a blank check, the Forest Service didn’t want to dilute the message by setting fires itself.

When a state refused to ban prescribed fire, the Forest Service responded by counting all fires in that state, prescribed or wild, as wildfires. Many southern landowners believed they needed to burn their forests every four or five years, so perhaps 20 percent of forests would be burned each year, compared with less than 1 percent of forests burned through actual wildfires. Thus, counting the prescribed fires greatly inflated the total number of acres burned.

The Forest Service reluctantly and with little publicity began to reverse its anti-prescribed-fire policy in the late 1930s. After the war, the agency publicly agreed to provide fire funding to states that allowed prescribed burning. As southern states joined the cooperative program one by one, the Forest Service stopped counting prescribed burns in those states as wildfires. This explains the steady decline in acres burned from about 1946 to 1956.

There were some big fires in the West in the 1930s that were not prescribed fires. I’m pretty sure that if someone made a chart like the one shown above for just the eleven contiguous western states, it would still show a lot more acres burned in real wildfires in the 1930s than any decade since — though not by as big a margin as when southern prescribed fires are counted. The above chart should not be used to show that fires were worse in the 1930s than today, however, because it is based on a lie derived from the Forest Service’s long refusal to accept the science behind prescribed burning.

There you go, the discontinuity seems to be from a change in the way the measurement is calculated.

By the way, I work closely with the Forest Service every day and mostly this partnership is rewarding.  But I can tell you that the blank check still exists for fire suppression costs and results in exactly the sort of inefficient spending that you would imagine.   Every summer, much Forest Service work comes to a halt as nearly every manager and professional gets temporarily assigned to fire -- something FS employees love because they get out of the grind of their day job and essentially get to go camping.

My agent has always signed me up for a persona umbrella policy, pretty much without even discussing it much.  The costs have always been nominal compared to my other insurance and I got it to handle liability issues that might exceed the limits of other policies, like a really bad car crash or a slip and fall suit around my house.

It turned out that I got a lot of value out of the policy, but not in the way I had planned.  I was once sued, pretty hard and seriously, by a company over a negative review I wrote.  I won't talk about the details but if you are really interested Mr. Google will help you find it pretty quickly.   But here is an example of a similar case in the news:

A Manhattan woman has found herself in a world of legal troubles after posting a bad review of a local doctor online.

Michelle Levine tells CBS2 she’s already spent close to $20,000 fighting the million-dollar suit which accuses her of defamation, libel, and causing emotional distress.

The plaintiff is Dr. Joon Song, a gynecologist Levine says she visited once in August for an annual exam.

“After I got a bill for an ultrasound and a new patient visit, whatever that means, and it was not billed as an annual I wrote a review about it,” she told CBS2’s Lisa Rozner.

I was determined to fight my case in the name of all those (like Ms. Levine) who could not afford to fight these overt attempts to suppress and intimidate perfectly legal speech.  I was ready to take a substantially loss in legal fees to defend myself but it turned out I was covered for all my defense costs by my personal umbrella.  Note, I am not an insurance expert nor a lawyer, so before you buy such a product I would be sure you know what it does and does not cover.

Postscript, to all you businesses who keep suing over bad reviews:  GET OVER IT.  I get dozens of reviews every day on multiple platforms.  Most of our locations sit at an average rating just over 4.5 stars out of five so perhaps one in 20 are negative and maybe one in 100 are grossly, absurdly unfair.  Sure, all of us service business owners gripe about unfair reviews when we get together, but we all deal with it.  Every review platform has ways to respond to bad reviews, and most have a way to challenge reviews that violate their terms of service.   Often times if you actually do have a good business, the best defense is to encourage all your customers to review so all the good reviews drown the bad ones.  This is not 1996 when customers have never seen a review site.  Customers know EVERYONE gets bad reviews.   The Mandarin Oriental in Bangkok had some of the best service I have ever experienced, but it gets 1-star reviews.  The movie Casablanca has one-star reviews on Amazon.

Sometimes the bad reviews are perfectly understandable.  For example, at one beach we run there used to be a high place where kids would jump off into the water.  Despite having a lifeguard there, we had too many close calls and too many kids did not heed the lifeguard, so the jumping area was closed.  We got bad reviews for months about how awful it was the kids could not jump.  Each time we took the opportunity to explain that yes the jumping wall was closed and if that is the experience customers are looking for, they need to explore other options.  Eventually we got customer expectations to match the services we provided and things improved.  As much as businesses hate to have bad reviews, these were useful to us because they communicated changed services to the public and helped make sure that customer who come are coming for the right reasons.   Having people expecting the Ritz show up at Holiday Inn Express does not help the Holiday Inn Express at all.

Sometimes one does get totally unfair reviews and there is an art to writing responses to bad reviews.  You want to explain why many customers might consider the review unfair without seeming defensive or seeming to throw the customer under the bus, which will lose you a lot of sympathy in the community.  I am still learning.  Here is a tough one we had:

I will need go back to Juniper Spring it not the forest or the camping grounds but the workers are really not friendly at all I’m black and I hope people who’s from my race trust me it not a good place to take your family you can feel the eyes and I know please know racism is strong in Ocala and I’m sorry to bring a nasty review but I owe it to myself if I was to read this I would know what to expect if I choose to go. But the camp grounds are very clean tho and the bathroom have hot water but the works are very nasty ways I see so to all people other then whites Ijs check it out and be sorry like I did. The water looks great but it cold ass ever but when you get used to it you would be ok I guess.

Obviously that is horrible, it makes us out to be a bunch of racists.  This customer did get special attention, but more because we had to work hard -- and often -- to get compliance with a number of rules we are required by the government to enforce.  After a lot of thought, this is the response I finally went with:

We are really sorry you did not have a good visit. We have a racially diverse group of employees in our company and all of them are trained and motivated to provide quality service to everyone. However, given that this is a campground in the Forest Service and adjoining a Federal Wilderness Area, we are tasked by the Forest Service to enforce a number of rules which are different than those in private campgrounds and can sometimes be surprising to new visitors. In this case, I am really sorry we obviously did a poor job of trying to courteously explain the rules.

For other readers considering a visit, I will take the opportunity to highlight some of these rules:

• Firearms are not allowed in the Ocala National Forest (except in hunting season)
• Dogs are not allowed in the day use area or at the canoe run
• Alcoholic beverages are not allowed in the day use area or on the canoe run
• Food and food waste must be properly stored in campsites when not actively being consumed (in order to avoid attracting bears)

I received this email this morning, from a hotmail account no less

Subject:  Unlawful Use of Name

Hello,

I am writing on behalf of [redacted], whose name you published on your blog citing the PBS article about harassment in the Forest Service.

You do not have legal permission to publish his name. Please remove it immediately to avoid legal action.

Sincerely,

Heather Appelhof

I didn't really have to, but I redacted the gentleman in question's name, at least until Ms. Appelhof has a chance to respond.  Here was my response:

Ms. Appelhof:

Mr. _____'s name was quoted on my blog in the context of a much longer verbatim quote from the PBS website as it appeared on March 5, 2018. This sort of quotation taken directly from a respected national media outlet is a speech activity that is highly protected in this country. In particular, your argument that I did not have "legal permission to publish his name" is completely specious. There is no such legal requirement in this country to obtain prior permission before publishing someone's name, particularly in the case of a public figure in a leadership position of a public agency. As an example, I publish all takedown requests my blog receives so your name will get published on my blog as part of the email.

Few things irritate me more than people who threaten me with laws that do not exist. However, since Mr. _____'s name was really incidental to the point I was trying to make, I am open to a valid legal or ethical argument for removing it and will give you a second chance to provide one. Note that "this gentleman is upset about all the negative media coverage and has engaged me to try to intimidate people into removing his name" is not a valid reason.

There are obviously niche legal situations in which it is illegal to publicly reveal names -- a doctor revealing his patients' names and medical information is highly restricted under HIPAA, for example. However, I am not aware of any such situation that obtains here. I suppose there could be some sort of specific court order in play here, but if that is the case it should be easy to share it with me and I will respect it. It is possible Mr. _____ believes he was libeled by PBS, but that hardly applies to my merely quoting their story, particularly since I can't have had any malice towards him since I have not given him a second thought before or after publishing that post, at least until your email arrived.

This leaves ethical arguments, and I can certainly be swayed by such arguments more quickly than by empty threats. For example, if the accuser in the story has recanted her accusation, or if PBS had confused Mr. ______ with someone else, those would certainly be good reasons to remove his name.

You are welcome to try again.

Coyote

The original PBS story I quoted is here.  After I sent Ms. Appelhof this response, I noted that PBS had removed this gentleman's name from the article with a note at the bottom saying:

Editor’s Note: This story has been updated. The name of the Forest Service supervisor in Oregon has been removed. We stand by our reporting and thank the multiple women who went public for this story.

Despite this email ticking me off with its tone and absurd legal opinion, I actually want to do the right thing so I have reached out to the PBS editorial team on this story to see if I can get a hint why the name was removed.  A reason good enough for PBS is probably going to be good enough for me, since, again, the story was more about accountability issues on Forest Service fire teams than it was about this person in particular.

Update:  I can't get the details, but there were apparently legal charges and settlements at PBS that led to their taking down the name.  I will defer to their judgement and do the same, because honestly the name was just incidental to my post anyway.  Ms. Appelhof wrote me back with a MUCH more compelling and intelligent email outlining a lot of investigation that has occurred since and she claims cleared the man in question.  I am not sure who is wrong or right but I am happy to retreat from this particular fray.  Having had to fight a number of takedown requests in the past, her initial email was worded in a way to rub my fur all the wrong ways.

For years I have been critical of US Forest Service (USFS) fire suppression operations.  For those who are not familiar, because they own so much land in the very dry west, the US Forest Service is -- by far -- the largest firefighting agency in the country.  It spends billions of dollars a year on firefighting and employs tens of thousands for workers in doing so -- some specifically hired for fire, many others detailed from regular jobs to specific fires.  Basically, in the late summer, Forest Service offices are practically cleared out as everyone is off on fire detail, and those who are still around have no money to spend because it all has been swept into fire.

It is hard to publicly criticize firefighting operations for many of the same reasons that it is hard to criticize the police -- people will say that they are so brave and perform an indispensible service.   Granted.  But the USFS process for managing and funding firefighting is totally broken.  This is not solely the agency's fault -- Congress shares a lot of the blame.  But whatever the cause, firefighting has become (in my observation of the agency) a financial accountability-free zone.  There are no budgets for fire.  No competitive bidding for services and products.   All the rules are lifted, and the agency simply spends like crazy.  People have made small fortunes inventing things fire crews might need (e.g. portable shower buildings) and selling or renting them to the USFS for huge sums of money.  And USFS employees don't care because they understand it to be an environment where the normal rules do not apply.

And the USFS employees love it.  The structure and schedules and requirements of their day jobs are lifted, with little danger except for a very few in the front line crews.  I have always described what I have seen as a cross between a summer camp and a fraternity outing.

And perhaps I was more correct than I knew.  Apparently, once the tone is set for a low-accountability environment -- even if the relaxed rules were really only supposed to apply narrowly to financial issues -- it can spread to other behaviors.

Michaela Myers said she was first groped by her supervisor after a crew pizza party last summer, shortly after starting a new job as a firefighter with the U.S. Forest Service. She was 22 and excited about the job. She had worked out diligently to prepare for the season, running and hiking with a heavy pack. She is from the Pacific Northwest, and had always loved the outdoors and a challenge.

She remembers her supervisor, a Forest Service veteran, offering her beers at a crew member’s house after dinner. He told her he was glad she was on the crew because she was “sexy” and had “a nice ass,” she said. According to her account, he led her to a couch, rubbed her butt as she sat down, and slid his hand between her legs. Myers was shocked and upset, but didn’t stop him. She had heard from other crew members that this manager could fly off the handle, and didn’t want to make a scene.

“You don’t feel like you can say ‘no’ loudly to your supervisor,” she said. “I keep looking back on it and wishing I could have just punched him or something.”

According to Myers, the harassment and groping continued for the rest of the summer. When she confided in a fellow crew member, he told her this was an unfortunate reality for a female firefighter. She had a choice, she recalls him saying: report it and face retaliation, or do nothing and stay in fire.

Updated:  The PBS report was changed after I first posted it, and I have edited the quote to match the current text.  PBS wrote below their article this update: "This story has been updated. The name of the Forest Service supervisor in Oregon has been removed. We stand by our reporting and thank the multiple women who went public for this story."

One of the more popular features we have been experimenting with is adding aerial video of campgrounds we operate shot from small drones.  Customers love these and find them a great way to experience the campground before the commit to a visit.  Here is an example:

We have done this for all the campgrounds where we have a long-term lease and substantial leeway in operating the park.  However, we have not yet done any videos for the scores of Forest Service.  Perhaps this is why -- here is what I have to do to film a campground the FS has already contracted us to operate and market:

We ask for at least 2 weeks advance notice in order to prepare a permit and have the documentation reviewed by our aviation staff.  The proposal would need to include how your drone operations would address public safety and impacts to users in the campgrounds (I believe that you have to have people’s permission to film them so how to avoid that).  Also as you stated all activities would stay above your sites – no flights above Wilderness or the creek or adjacent canyons.   Due to listed species in the canyon, drone activity would need to occur after September 1 which is after the spotted owl breeding season.  The drone would need to be operated by a FAA licensed commercial drone operator and we would need documentation of a FAA Part 107 Remote pilots license or COA from the FAA.  In addition, we would need to have the operator coordinate with our aviation manager and provide the below information, with direction to be included in a  permit so they can get the information out to our aviation assets in the area:

All approved areas on the forest are to be used at your own risk while adhering to all FAA rules and regulations for UAS operations. Notification to the Forest Interagency Aviation Officer at least 24 hours prior to operations is required to help de-conflict airspace with fire aircraft and other forest aviation assets. Include in your notification:

• Date, time and location of flight
• Names and contact information of pilot(s)
• Make and model of UAS

Fees are based on crew size, 1-10 people for video is $150/day.

Several years ago, I was at a meeting in Washington with senior leaders in the Department of Agriculture, including from the Forest Service, and from a number of other recreation agencies. (You never thought of the Department of Agriculture as a recreation agency did you?  They may have more total recreation sites (not visitation, but absolute number of locations) than Department of Interior.  Anyway, these senior leaders were talking about being more visitor-focused.  They were talking about sophisticated programs to provide all sorts of innovative visitor services, and after a while I just started laughing.  They asked me why, and I pulled up on my tablet a letter I had just received from a Forest Service District Ranger (the lowest level line officer) who denied my request to make and sell hot dogs at a store next to a busy Florida swimming hole we run.

While we appreciate your attempt to provide additional services to recreationists, this service is not consistent with current services offered in other recreation areas.  As a Forest, we would like to provide recreationists with the bare necessities to ensure that their visit is enjoyable.  The sale of hot dogs and nachos is out of that scope.

As most of you know, my company operates public recreation facilities for a variety of public agencies under concession contracts.  These contracts are mostly similar to each other in their structure, but one key difference among them is the contract length -- we have both short-term contracts of say 5 years and long-term contracts up to 30 years.  When we have longer-term contracts, we are expected to do all the maintenance, even capital maintenance such as repaving roads and replacing roofs (more on that approach here).  The US Forest Service tends to prefer much shorter contracts where they retain responsibility for capital maintenance -- this tends to work out as we pay a higher concession fee on these (since we have fewer expenses) and the Forest Service has a process to use the concession fee to perform capital maintenance.  In fact, generally the FS asks us to do the maintenance because it is way easier for us to get it started (avoids the government contracting processes) and then we get credit for our costs against the fees we owe.

Anyway, I have a fair amount of experience with performing small to medium-sized infrastructure projects on public lands.  Here are a few examples, starting from the sublime and proceeding to the ridiculous, of projects we have not been able to proceed with and why.  In all these examples, my company was going to fund the project so availability of funds was not an issue.

• In TN, we had already begun an expansion to add more campsites to an existing campground, a project already approved by our government landlord.  A disgruntled ex-employee, on his way out, claimed we had disturbed a rock pile and he thought the rock pile was some sort of Native American artifact.  Despite the fact there was no evidence for this, and that the construction was no where near the rock pile, construction was halted and my contractor had to go home while an investigation was begun.  As we speak, scores of acres surrounding the campground have been put off-limits to development until the rock pile is thoroughly studied, but of course no funding currently exists to study the rock pile so it is not clear how long this will take.  I am proceeding internally on the assumption that we will never be given permission and am cutting losses on materials bought for the project.
• In AZ, we operated a snow play area in what was essentially a gravel pit.  The slopes we used were what was left from years of mining gravel, and essentially the whole area had been disturbed.  We wanted to add a real bathroom to replace scores of portable toilets and to bring power to the area rather than use generators.  All the work would be performed on already disturbed land in the gravel pit.  We were told we could not proceed without a NEPA (National Environmental Policy Act) study to assess environmental impacts of the work, which could easily take years or longer if its results got tied up in the courts, as they often do.  Since the government had no money or manpower to do the NEPA study, it was pointless to even try to proceed.  This year, without the ability to construct necessary facilities for visitors, we exited the concession contract and the Forest Service has not be successful yet in finding anyone else to reopen it.
• In CA, just this week, I was discussing two maintenance projects with the government in a series of campgrounds we run near the Owens Valley.  In one, we wanted to dig up a water line that runs under a dirt road to repair a leak.  In the second, we desperately needed to replace some leaky roofs on bathrooms.  Both projects are now delayed.  In the case of the water line, digging up the road was going to require an archaeological study - yes, any digging basically requires such a study, and there is no exception for utterly absurd situations like this.  We eventually decided to open the campground without water this year, to the detriment of campers.  In the other case, the replacement of roofs on some old 1950's campground pit toilet buildings (think bathrooms at a highway rest area but not as nice) have to first be evaluated to make sure they are not historic buildings that should be protected.  Since this is a safety issue, I used up my favors on this one to try to get it to proceed.  In my experience, once a building in a park or campground has been labelled historic, that is pretty much its death sentence.  It becomes impossible to do any work on them and they simply fall apart.  For example, years ago there were some really neat old travel cabins in Slide Rock State Park in AZ.  I tried to get permission to fix them up and reopen them, but was told they were historic and they had to wait for special permissions and procedures and materials.  Today, the cabins are basically kindling, having fallen apart completely.

Recognize that these are projects entirely without NIMBY, funding, permitting, licensing, or procurement issues.  But they still face barriers from government rules.

A lot of folks have been asking for my thoughts on this conflict, where Delaware North, the departing concessionaire at the Yosemite Lodge, is claiming they own trademarks associated with the old, beloved lodges that must be bought out for lots of money, either by the government or the new concessionaire.

There are lots of versions of National Park Service (NPS) concession contracts floating around out there, and as I have had a few of these contracts, I am generally familiar with the terms and problems that arise (though I want to caution I am not privy to any insider details of this dispute).  But here are a few thoughts:

One of the hardest problems with government concession contracts is how does the government provide incentives for the private company to invest capital in the concession without giving the concessionaire a long-term contract that reduces the government's control.  Since any improvements made to the government land can't be removed and become the property of the government, it probably takes a 30-year contract to cause private companies to want to make such investments (as they would then have time to get a return from the assets, and most improvements tend to have a 20-30 year life anyway).  But the government does not want to lock themselves into one concessionaire for 30 years - 10 is as far as the NPS generally wants to go.

So the NPS has a process by which private companies can make permanent investments in the facilities, and the amount of these investments are added to an account (it used to be called Leasehold Surrender Interest, or LSI, so I will call it that -- I am not sure what it is called in current contracts).  At the end of the contract, there are some formulas for valuing the LSI in the account, and if the concessionaire loses the contract, the next concessionaire has to buy out the LSI.  If there is no next concessionaire, the Feds have to buy it out.

This provides good incentive for investment, because money you put in you basically get out at the end, plus any return in the middle.  Also, since there is a federal guarantee of repayment, this makes it possible to get a bank loan to finance the improvements (otherwise an investment in leasehold improvements on government land that the bank can't put a lien on is impossible to get bank financing for).  But this also creates problems.  Over the years, the LSI can grow so huge that it becomes impractical for anyone to buy out -- the LSI numbers at these large concessions can be in the hundreds of millions of dollars.  This is what happened at the Grand Canyon, when the US Government had to pay down the LSI by tens of millions of dollars to get companies to bid.  The other issue is that it creates a large, unfunded, off-the-books obligation for the government (because they ultimately back repayment of the LSI) in the billions of dollars.

Anyway, it is my understanding that it is not the LSI that is the problem here.  NPS contracts also for years had a provision that not only did one have to buy out the previous concessionaire's LSI (which represents investments in permanent facilities), but one also had to buy all the personal property he had associated with the concession (eg boats, trucks, inventory, shelves, coolers, etc).  While the LSI provision is generally sensible, though with some issues, this personal property buyout often led to disaster.  Because, unlike LSI, there is no agreed-upon value for the property (if the NPS is following its process, they can tell you at any point in time what the LSI is worth and everyone should be in agreement -- no similar process exists for valuing personal property of the concession).

So here is the situation.  The outgoing concessionaire has an asking price for his personal property, and the incoming concessionaire has an offer price likely well south of the seller's price.  In a normal transaction, there is some negotiation.   But a key part of the negotiation is that at some point the buyer can just walk away and refuse to buy.  This walk-away is not allowed in the NPS contract situation.  The incoming guy HAS to buy.  So outgoing concessionaires, particularly unscrupulous ones, will set a huge asking price and refuse to come off it.  Arbitration is possible, but mediators often split the baby in a way that sellers still get above-market rates for their stuff.  And all the while this takes time -- one is supposed to be opening the concession and we have not even secured rights to the assets we need to run it!  So the clock is ticking AND we can't walk away.  Incoming concessionaires often get hosed  (which is why I believe new contracts in the NPS do not include this personal property buy-out provision).

This happened to us at a NPS marina in Colorado.  The previous concessionaire ran a number of businesses in the area.  When they lost the concession, they stripped it of any good assets it had and then went around to all of its other businesses and gathered up all the junk and useless assets they could find and dumped them into the concession.   They then demanded a huge price for all this junk.   The NPS was absolutely no help -- they had no records of concession assets, and with turnover no one had even really visited the concession much.   We ended up taking a loss in the $200,000 range, buying a whole yard of stuff that we almost immediately had to pay to have carted to a junk yard.  Later we found that we were on the hook for almost a half million in facility repairs the previous company had never made -- the NPS had detailed notebooks of the failed inspections and required maintenance that was never performed, but never once disclosed any of this to us until we had signed the contract, and then demanded that we were on the hook for it all.  But that is another story, which goes to explain why I will never, ever work with the NPS again.

Anyway, my take is that Delaware North is doing the same thing that happened to me in Colorado, but on a larger scale -- writing up the price of a bunch of assets (in this case intellectual property) and using the terms of the bad NPS contract to extract above-market pricing for them from the next concessionaire.  All entirely legal, but at the cost of absolutely destroying their reputation with the NPS (I wonder if Delaware North is planning to exit the NPS concession business anyway such that they don't care).  Anyway, the new concessionaire, Aramark has certain advantages that I did not have as a small company.  In particular, they can simply refuse to buy the assets (which they have -- they have already renamed all the lodges and stores) and fight the issue in the courts later.

By the way, if you are wondering how the US Government can be so casual with trademarks and intellectual property, this tends to be, in my experience, a huge blind spot for them.  As an example, the US Forest Service uses a single national reservations company and all of us concessionaires in the Forest Service are required to use that company.  Years ago, the company who won the contract promised better information on the website about each campground.  So, for the hundred plus campgrounds we operate, at the request of the US Forest Service, we spent weeks measuring sites, taking pictures, and drawing campground maps for posting on the reservation system.  Several years later, when this reservation company lost the contract, it turns out the company had contract provisions from the government that the believed let them retain all the intellectual property.  The company then claimed all the maps, pictures, and site descriptions -- that we developed -- were theirs.  What a mess.  I can't totally remember how it came out but I think we got the rights to the pictures and descriptions back but all new maps had to be made.  The point is that the government has historically been myopic about the value of non-physical assets.

If you are really bored, and I mean for values of boredom approaching "Maybe I should pull out my old Menudo albums and give them a listen," you can watch me and others testify to the Public Lands Subcommittee of the House Natural Resources Committee.

As you will be able to tell, I pretty much never do the Washington thing.  there really being nothing much my business needs up there other than to be left alone (unfortunately a vain hope most of the time).

This case is a bit unique.  Fees and recreation on public lands are governed mainly by a certain piece of legislation called FLREA (I won't bother with all the actual words, everyone just calls it FLREA).  The law governs fees the government can charge for public recreation, passes that provide discounts to these fees, etc.

The Forest Service has a unique program (at least among the Federal Lands agencies involved in FLREA) where private concessionaires don't just run a resort, like in the Park Service, but run an entire "park".  This means that, unique to all the other agencies, the Forest Service actually has private companies charging park entry fees ("day use fees") and camping fees.   In theory this should be relatively easy to manage, and the existence of the concession program has never really been an issue in these proceedings, but sometimes in the rush of legislation we are simply forgotten, and rules are written into the law that are simply unworkable for private companies.  A good example in this law is the long fee approval process that could require 18 months to change a fee -- this provision would be a disaster for us because we often have to react to things like changing minimum wages on a couple months notice.

Postscript:  Yes I know -- Moire fail on the tie

Last year, when Congress did a 1-year renewal of legislation governing public recreation and fee policies (FLREA) they left out a tiny provision that discouraged government agencies from taking back tasks they had privatized.  With that gone, parts of the USFS immediately began to move to bring certain operations back in house, even when doing so required that they both spend more tax money AND reduce services levels to the public.  Such is the strength of incentives in any government bureaucracy to expand their scope, staffing, and budget, even when it makes no sense for the public.

This week in an article at PERC, I tell one such story in depth. Here is an excerpt:

Consider one example: The Tahoe National Forest in California recently took the operation of some of their parks out of private hands, ending a nearly 30-year partnership with one of our competitor companies.

Did the Forest Service do it to save money? The private concessionaire operated entirely with the user fees paid by visitors, using no taxpayer money, and even paid rent back to the government. The agency’s in-house operating plan for running these campgrounds requires at least $2 million in taxpayer money over the next five years to supplement user fees.

Did they do it to improve service? The private concessionaire employed more than 60 paid workers living on site, with managers who worked weekends and holidays. The Forest Service plan calls for half this number of paid employees, and none will live on site or work weekends—the busiest time for recreation.

Did they do it to address some egregious for-profit abuse? The agency is actually planning to replace dozens of paid private workers with volunteers. At the same time that the federal government is mandating higher minimum wages for campground concessionaires, the Forest Service is replacing paid workers with unpaid labor.

Did the Forest Service do it to keep user fees low? The original stated reason for kicking out the private operator was the concessionaire’s request to increase user fees in response to recent increases in California’s minimum wage. In the end, however, the Forest Service raised fees even higher than those proposed by the concessionaire.

Diana Furchtgott-Roth and Jared Meyer have an article in the Federalist discussing the hypocrisy of members of Congress who advocate for higher minimum wages while paying their interns nothing.  It is worth a read, but rather than excerpt it, I wanted to add another example.

The example comes from the world of private operation of public parks, the business my company is in.  We keep parks open by operating much less expensively than can the government, usually using only the fees paid by park users without any additional tax dollars.

Last year, Barack Obama issued an order raising the minimum wage of Federal contractors to $10.10 an hour.  Though concessionaires like us are normally thought of legally as tenants of the government rather than contractors, the Department of Labor wrote the rules in such a way that this wage order would apply to concessionaires that operate Federal parks, such as those in the US Forest Service's campground concession program.

As a result of this order and similar minimum wage increases by the State of California, a concessionaire (not our company) that ran campgrounds in the Tahoe National Forest in California informed the Forest Service that it would need to raise camping rates to offset these minimum wage increases.  As an aside, wages and benefits that are tied to wage rates (e.g. workers comp and payroll taxes) make up about 50% of a private concessionaire's costs.  So if minimum wages go up, say, 20%, then (given the very low margins in the business) a 10% price increase is necessary just to stay even.

The Tahoe NF rejected the fee increase request, despite the fact that the concessionaire turned over its books to show that it was losing money at the higher minimum wage rates.

So what did the Tahoe NF do?  It took over operation of the campgrounds itself, ending a successful 30-year partnership with private operators.  How did it solve the minimum wage issue?  Simple!  Minimum wage laws don't apply to the Federal government.  So it will use dozens of volunteers who are paid nothing to operate the campground.

In other words, at a time when the President believes it is a burning priority to make sure every campground worker makes at least $10.10 an hour, the US Forest Service is firing private, paid workers and replacing them with volunteers.

By the way, even using volunteers, the US Forest Service will STILL be paying more to operate the campgrounds than it did with the concessionaire.  Under the private partnership, the private operator paid all expenses and paid the US Forest Service a concession fee, essentially rent.  The campground's operation and maintenance were paid for entirely with user fees, and the USFS actually made money from the operation.  Now, even with volunteers, the USFS operating plan shows it using $2 million of taxpayer money over the next five years in addition to user fees to keep the parks open.

Update:  Despite the original (stated) reason for taking over the campground, and despite using dozens of unpaid laborers, the USFS still had to raise customer rates in the end -- higher than the original private concessionaire proposed!

The story begins with a discovery that the permit under which Nestle's Arrowhead Water has been collecting water in the San Bernardino National Forest expired in 1988.  LOL, oops.  Environmental and other Leftish sites are calling for Nestle's head and somehow blaming Nestle for this.

As a permittee with the US Forest Service (USFS) in California and across the country, I can guess with pretty high confidence exactly what happened here.  For years I was head of a trade group of recreation concessionaires (think lodges and guides and such) who do business in the USFS under permit.  Most of these were located in California.  For years, the biggest problem we have had with the USFS in California is that they are years and years behind in nearly all their permit renewals.  There are literally hundreds of expired permit in the USFS in California alone.

For reasons that probably go to bureaucratic incentives, despite the Forest Service's huge budget, they are loath to allocate resources to renewing these permits -- they want to fill their organization with biologists and archaeologists and arborists, not contracts people.  Making the situation worse, Forest Service and other Federal rules have burdened the permit renewal process with so many legal requirements that each one, even if trivial in size and impact, is absurdly time-consuming to complete.

This is not a new situation -- it has obtained for years.  Almost five years ago I met personally with the Chief of the Forest Service in DC and begged for more resources to be assigned to permit renewals, but to no avail.   I did the same in a meeting barely a month ago with the head of the USFS's Region 5 (basically California).   All of us permittees have been vociferously complaining about this for years.

When you look at these situations, then, what you will see is not some evil private business trying to get over on the public, but a business that is literally screaming in frustration, year in and year out, begging the US Forest Service to address its permit renewal.   Generally, local Forest Service staff will give the company verbal assurances that they should keep operating, so they do, continuing to pay their fees and operate within the guidelines of the old, expired contract.

I would be willing to bet a fair amount of money that this is exactly what happened to Nestle.

By the way, the usual groups seem to be piling on Nestle about bottled water from the Sacramento tap water system.  A couple of comments:

• Environmentalists seem to obsessively hate bottled water, but ignore what a trivial, trivial percentage of total water use is bottled.
• Critics are accusing Nestle of making obscene profits on Sacramento tap water.  But if they really think the spread between tap water and bottled water is too large, isn't the real issue that Sacramento is under-pricing its tap water?  After all, Nestle is paying what everyone else in the town is paying for water.
• Environmentalists have a misguided fetish for local foods, often ignoring that transportation costs and energy are a tiny percentage of most food production costs  (a percentage small enough to be dwarfed by differential productivity of soils and climates).  But here, all they can possibly accomplish is to chase Nestle's bottling plant out of California and then have the water trucked back into the state.  This might be a net gain depending on the differential value of California water vs. fuel, but we can't know that because California water pricing is so screwed up.

Greg Patterson brings us this example from the AZ legislature, but this sort of thing is ubiquitous:

Just before I got to the Legislature, there was a big move to regulate day care facilities.  Naturally, the government has a role in establishing basic health and safety standards for facilities that take care of young children, so I thought it was a good move.

Then a funny thing happened.  The Legislature established one set of standards for private day care facilities and a different (lower) set of standards for public or non-profit day care facilities.  Some Legislators dared to ask why the health and safety rules would be different depending on what type of entity owned the facility.  After all, if a rule is really in place to keep a child healthy and safe, why should a publicly owned facility be exempt or have a lower standard?

The answer, of course, is that there's no reason for publicly owned facilities to have a different regulatory regime than private facilities and that these bills were really just disguised attempts to ensure that private day cares couldn't compete with public ones

We are facing something similar in my world.  As you may know, my company operates government parks and campgrounds on a concession basis (which means we get no government money, we are paid by the user fees of visitors).  This makes sense because we can do it less expensively and usually better than the government agency.

Recently, the Obama Administration has imposed an executive order that we concessionaires on Federal lands have to pay a $10.10 minimum wage.  Since most of our costs are labor, this is causing us to have a to raise fees to customers substantially to offset the higher costs.

In response to these fee increases, the US Forest Service in California is in the process of taking back traditionally concession-run campgrounds to run themselves, in-house.  Their justification is that they can do it cheaper.   Part of this is just poor government accounting -- because many costs (risk management/insurance, capital assets, interest on investments) don't hit their budgets but show up on other parts of the government's books, what appears to be lower costs is actually just costs that are hidden.  But their main cost savings is that since the Federal government is exempt from labor law and this new executive order, the Forest Service can staff the park with volunteers.  They are allowed to pay a minimum wage of ... zero!

This is just incredibly hypocritical, to say with one statement that private companies need to pay campground workers more and with the very next action take over the campground and staff it with people making nothing.

Eric Holder should get credit for at least taking some baby steps to limit asset forfeiture abuse (steps it does not appear his nominated successor is going to be very enthusiastic about).  But there is a long way to go, as evidenced by this horror story of CalFire, the US Forest Service and the Holder Justice Department using everything every dirty trick I have ever heard of to extort money from a private company.

This is a great article about the fraudulent practices people pursue to try to take advantage of rules about service animals that help people with true disabilities to bring their pets with them everywhere.  This kind of crap strikes me as being in the same category as folks who used to hire disabled kids to go to Disneyworld with them so they could skip the lines (a practice, by the way, that led to Disney giving fewer special privileges to handicapped kids because of the abuse).

I will say from personal experience that the pressure on service businesses to succumb to this sort of service animal fraud is immense, especially in places like California where the financial penalties for even tiny well-meaning infractions of bewildering ADA rules are substantial.  My employees once felt they had to allow a woman to bring her horse (!) into the park because she had letters like the ones in this article saying she required the horse for emotional support.

This week I was at a conference where a featured speaker was an executive of the Forest Service named Joe Meade who happens to be blind.  I say "happens to" because Joe is one of the best, and best-loved, executives in that organization and what makes him great has little or nothing to do with his disability.  But I watched him work his way through a hotel with his service dog -- a casino hotel I got lost in about 4 times and I could read the signs -- and the skills that dog had are simply amazing.  Service dogs like that get deference from service businesses for a reason.  It infuriates me that people are trying to counterfeit that kind of credential so they don't have to pay an extra airplane fare for their cat.  And the only way they get away with it is because of our screwed up tort system that leaves service businesses at the mercy of even the most outrageous claims.  Because we businesses have given up on, particularly in places like California, ever getting real justice.

hattip:  Overlawyered.

Yesterday, when writing about the US Forest Service (USFS) restrictions on commercial photography in wilderness areas, I discussed the contradictions that make their policy problematic

The USFS has undermined their own argument by making exceptions based on the purpose of the filming.  Apparently only commercial filming hurts ecosystems, not amateur photography.  And apparently commercial filming that has positive messages about the USFS are OK too.  Its just commercial filming that goes into a beer company ad that hurts ecosystems.  You see the problem.  If it's the use itself that is the problem, then the USFS should be banning the use altogether.  By banning some photography but not all based on the content and use of that photography, that strikes me as a first amendment issue.

Despite working with the USFS on lands management every day, this policy was new to me.  I hypothesized

[There is a] large group in the USFS that is at best skeptical and at worst hostile to commercial activity.  They would explain these rules, at least in private, by saying that anything commercial is by definition antithetical to the very concept of wilderness that they hold in their heads, and that thus all commercial activity needs to be banned in the wilderness because it is inherently corrupting.

Reading Overlawyered, I saw this US Forest Service quote from the Oregonian to explain their position on commercial photography:

Liz Close, the Forest Service's acting wilderness director, says the restrictions have been in place on a temporary basis for four years and are meant to preserve the untamed character of the country's wilderness.

Close didn't cite any real-life examples of why the policy is needed or what problems it's addressing. She didn't know whether any media outlets had applied for permits in the last four years.

She said the agency was implementing the Wilderness Act of 1964, which aims to protect wilderness areas from being exploited for commercial gain.

"It's not a problem, it's a responsibility," she said. "We have to follow the statutory requirements."

So it appears that the purpose of the Wilderness Act is interpreted by the USFS as "protect wilderness areas from being exploited for commercial gain."

But the Wilderness Act makes just a brief mention of commercial activity (It was written back in the day when laws did not have to be 2000 pages long, so you can read the who thing here).  Its main purpose is to keep the lands wild and the ecology as free as possible from man's intervention

In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. For this purpose there is hereby established a National Wilderness Preservation System to be composed of federally owned areas designated by the Congress as "wilderness areas," and these shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness...

A wilderness, in contrast with those areas where man and his works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

There is nothing in this that in any way shape or form should be affected by photography (unless the photography has some sort of heavy footprint, like making a Hollywood movie with hundreds of people and equipment and catering trucks, etc.).

The Wilderness Act is not primarily about protecting the Wilderness from commercial gain.  It is about protecting the natural operation of ecosystems from intervention of any sort by man.  Commercial activity is barely mentioned, and only as a minor aside deep into the legislation.  But many US Forest Service employees have an antipathy to commercial activity and have sort of reinterpreted it in their mind as being an anti-commercialism act.  Here are the only mentions of commercial activity in the law:

Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area. ...

Commercial services may be performed within the wilderness areas designated by this Act to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.

In this usage (I am not an attorney so there is likely a long history of how the term "commercial enterprise" is understood in the law) my sense is this means that people are not to be conducting commerce -- trading goods and services for money-  within the boundaries of the wilderness area. Essentially, they don't want a gift shop or McDonald's there.   Grouped with the bit about roads, this is a paragraph about facilities and equipment and having a footprint.

So is a lone person taking pictures a commercial enterprise within the area? I doubt it. The actual commerce is conducted outside the park and there is nothing about photography that impairs the wilderness nature of the park.   My interpretation is that taking pictures is OK but setting up a photography store is forbidden.  But by the US Forest Service's definition, I suppose they should also ban people from collecting material for a book. If I walk through the wilderness area taking notes for a book I want to write, and then leave the area and write it and sell it, I am not sure how this is any different from commercial photography. And does this mean that I can't wear any clothes or bring any equipment into the wilderness area that I purchased commercially?

PS-  Beyond a skepticism about capitalism, there is an other reason public lands people might want to shortcut the Federal Wilderness Act as "preventing commercial activity" -- it lets them off the hook.  The Wilderness Act was about preventing meddling in the ecosystem (an impossible goal, but we will leave that for another day) and this applied to all groups -- commercial, government, educational.  By shortcutting the Act as being about commerce, it helps folks forget that the same strictures should apply to agency personnel as well.  I was up in Yellowstone listening to discussions of reintroduction of the wolf and the ongoing killing of thousands of non-native fish in Yellowstone Lake and various streams.  The goal of these interventions is to reverse past interventions, but even so they strike me as violations of the Federal Wilderness Act.

A follow-up to this article is here.

The news has been zooming around the Internet that the US Forest Service (USFS) is going to require permits to take pictures on public lands.   It was the first I had heard of this, which is odd in one sense because I actually operate tens of thousands of acres of US Forest Service lands, and in fact operate the ones with the most visitation (on the other hand, we are often the last to hear anything from the USFS).

So, knowing that the Internet can be a huge game of "telephone" where messages quickly get garbled, I went to the regulation itself.  As usual, that did not help much, because it is so freaking hard to parse.  Reading between the lines, here is what I think is going on:

• The regulations don't apply to all USFS lands, but to the federally-designated wilderness areas they manage.  Even this is confusing, since the permitting authority does not apply just to wilderness areas, but to anywhere in the USFS.   But even the wilderness areas constitute a lot of land, and often the most scenic.
• Apparently, the regulations have been in place for 4 years and this is just an extension and clarification
• Ostensibly, the regulations apply only to commercial filming, but how the USFS is going to distinguish between a commercial photographer and well-equipped amateur, I have no idea.  The distinction seems to lie in what the photography will be used for, and since this use happens long after the individuals have left the land, I am not sure how the USFS will figure this out.  Is the US Government going to start suing magazines for nature pictures, claiming a copyright on the scenery?  What happens if I take it for my own use, then discover I have an awesome picture and decide to sell it.  It is hard to write laws that depend on reading people's minds in determining if an act is legal.

The Federal Wilderness Act gives the government a lot of power to limit uses in a designated wilderness area.  Motorized vehicles and tools are banned, as were bicycles more recently.  My company operates in only one wilderness area, a canoe run at the Juniper Springs recreation area in Florida.  If a tree falls across the stream, we have to float down in canoes and take it out with hand axes.  We have to open and inspect coolers of those going down the run to make sure no banned items are in them.  In other words, wilderness areas definitely have a higher level of restrictions than the average public land.

As to the First Amendment issues, well folks like Ken White at Popehat have taught me that it is very very dangerous for the uniformed (ie me) to pontificate on complex First Amendment issues.  I am sure the USFS would say that they are not interfering with free expression, just banning a use that could be dangerous in the wilderness.  There are a few problems with this:

• The USFS hasn't explained why taking pictures threatens the natural operation of ecosystems
• The USFS has undermined their own argument by making exceptions based on the purpose of the filming.  Apparently only commercial filming hurts ecosystems, not amateur photography.  And apparently commercial filming that has positive messages about the USFS are OK too.  Its just commercial filming that goes into a beer company ad that hurts ecosystems.  You see the problem.  If it's the use itself that is the problem, then the USFS should be banning the use altogether.  By banning some photography but not all based on the content and use of that photography, that strikes me as a first amendment issue.The best parallel I can think of is in Venezuela.  There, the government claimed a paper shortage required it to shut down certain printing to conserve paper, and then proceeded to shut down only the newspapers it did not like.  I suppose it could claim that it was not censoring anyone, just taking steps to deal with the newsprint shortage.  Similarly the USFS claims it is not limiting anyone's first amendment rights, it is just protecting the wilderness form a dangerous use.

A few years ago, the USFS tried to reverse an expensive mistake it had made.  The US government issues lifetime senior passes that allow free entry and half off camping for seniors.  This is an expensive giveaway, paid for by taxpayers.  But the USFS had gone further, requiring that concessionaires like our company also accept the pass and give half off to seniors.  While giving half off to seniors at government-run campgrounds had to be funded by taxpayers, concessionaires only have use fees to fund operations.  So to give half off to seniors, prices have to be raised to everyone else.  The senior discount requirement was raising prices (and still does) $4-$5 a night for every other camper.

Well, long story short (too late!) the US Forest Service folded under the organized pressure of senior groups.  And my guess is that they will do so again here.  Unlike with the National Park Service which has a clear mandate and strong public support, few people get misty-eyed about the USFS, which means they are always sensitive to bad news that might hurt them in the next budget fight.

PS -- Is someone going to go back and bill Ansel Adams' estate?  Isn't he exactly the sort of commercial nature photographer that this rule is aimed at?

Update:  I have talked to a number of people in the know on this.  Apparently what began as a desire merely to stop high impact filming in the wilderness -- full Hollywood movie sets with catering trucks, etc. -- has gotten taken over by a large group in the USFS that is at best skeptical and at worst hostile to commercial activity.  They would explain these rules, at least in private, by saying that anything commercial is by definition antithetical to the very concept of wilderness that they hold in their heads, and that thus all commercial activity needs to be banned in the wilderness because it is inherently corrupting.

As most of you may know, our company privately operates public parks.  Just before Memorial Day, our largest contract (which covers a lot of our overhead) was shut down by a fire in the Sedona area.  Since that time, our landlord the US Forest Service has announced it is going to keep all of these locations closed indefinitely out of fear of flash flooding (fire-damaged hillsides create a lot more runoff in eve light rain due to loss of ground cover and chemical changes in the soil that make it less permeable).  I think they are over-reacting, but it is not my decision to make.

The result of this is I have been in total operational scrambling mode and may remain so for a while, reducing the amount of blogging I do.

Hans Bader submitted a FOIA on October 9 about US Forest Service and Dept. of Agriculture decision-making leading up to the unprecedented shutdown of private operations on US Forest Service land.  I have seen the FOIA results and -- almost laughably -- virtually all of the documents relate to the end of the shutdown, and all of the documents are dated after the date of his FOIA.  In other words, the US Forest Service essentially ignored the documents requested by the FOIA request and submitted a stacks of unrelated documents.

More from Mr. Bader here

When people ask me about my business, one of the things that is hard to explain is just how deep and visceral the skepticism of private enterprise can be.  I constantly have people take single words I might have uttered in the immediacy of a live TV interview and try to craft straw man positions for me out of them**.  Sometimes it is not even something I said, but something where some lazy journalist has poorly paraphrased my position.

Here is a great example, where a Flagstaff writer (who by the way knows me and my phone number quite well but did not bother to interview me) tries to take my opposition to the government shutdown to paint me with some sort of entitlement.  She lectures me that I don't actually own the land on which I operate, as if that is somehow news to me.  You can read my comments if you are interested, but the issue with the shutdown was the lawlessness of Administration officials, not any sense that I am entitled to the land any more than my lease contract allows me to be.  (As an aside, she seems to be expressing a strong theory of landlord rights, that my landlord (the US Forest Service) should have the absolute right to shut me down whenever they want.  Why is it that I don't think she has the same position vis a vis other tenants and landlords?)

By the way, compare her straw man to my actual position on public land, which is likely to the Left of many of my readers:

In my history of public discussions on private operation of public parks, it is no surprise that I run into a lot of skepticism about having any private role at all.  But I also run into the opposite -- folks who ask (or demand) that the government sell all the parks to private buyers.  So why shouldn't privatization of parks just consist of a massive land sale?

The answer has to do with profit potential.  Over time, if in private hands, a piece of land will naturally migrate towards the use which can generate the highest returns.  And often, for a unique piece of land, this most profitable use might not be a picnic area with a $6 entrance fee -- it might instead be something very exclusive which only a few can enjoy, like an expensive resort or a luxury home development (think: Aspen or Jackson Hole).  The public has asked its government to own certain unique lands in order to control their development and the public access to them.

Public ownership of unique lands, then, tends to have the goal of allowing access to and enjoyment of a particular piece of land for all of the public, not just a few.  Typically this entails a public agency owning the land and controlling the types of uses allowed on the land and the nature and style of facility development.  I call these state activities controlling the "character" of the land and its use.  (One could legitimately argue that private land trusts could fulfill the same role, and in fact I have personally been a supporter of and donor to private land trusts.  However, I am not an expert in this field and will leave this discussion to others).

Having established a role for the government in setting the character of the lands we call "parks," we can then legitimately ask, "does this goal require that government employees actually staff the parks and clean the bathrooms?"

** Postscript:  A couple of years ago I was asked to do an interview with Glen Beck on my proposal to keep open, via private operation, a number of Arizona parks slated for closure.  It was the first time I ever did live TV, and a national show to boot.  I had never seen his show but he had the reputation of being freaky and unpredictable, which just made me more nervous.   Anyway, during the interview I said that typically an agency would contract with us for a group of parks, instead of just one, so the stars could help cover the cost of the dogs.  This terminology is from a framework many business school students learn early, often called a BCG matrix (named after the Boston Consulting Group).  It is a two by two matrix with market share or profitability on one axis and market growth on the other.  Anyway, the profitable high revenue units within a company are stars and the unprofitable stagnant ones are called dogs (the profitable stagnant ones were cash cows and I can't actually remember what was in the fourth box).  You can see this nomenclature is so established they actually put little pictures of stars and dogs in the boxes.

Anyway, it was a poor choice of wording, but the nomenclature is wired do deep in my now it just came out.  The context of the entire interview was that I cared deeply about the parks and that I was offended that the legislature was going to let them close when there was an easy solution at hand.  No matter.  The #2 guy at Arizona State Parks took the video and make the rounds of the state park staff, highlighting my use of the word "dog" and inflaming their rank and file that I thought their parks were bad places and I was bent on destroying them, or something.  Anyway, none of the Arizona Park Staff I have ever talked to has ever seen an operations manual for their parks but they have all seen the video of me saying "dogs."

Postscript #2:  Don't ever think that consulting is different from any other business.  When I was an McKinsey, we had piles of frameworks we used (the 7S organization framework being perhaps the most common and actually fairly useful, as its intent was to take focus away from structure alone in organizational work).  Anyway, McKinsey had to have a growth-share matrix, but to try to differentiate this product a bit they had a 3x3 matrix rather than a 2x2.

Since I am somehow oddly onto a consulting tangent here, the single most useful thing I garnered from McKinsey was the pyramid principle in persuasive and analytical writing.  I have talked to a lot of other ex-McKinsey folks, and almost all of them wonder why the pyramid principle is not taught in high school.  I am not a believer in business books -- I am looking around my office and I don't think I see even one here.  But if I had to offer one book for someone who wanted a business book, this is it.

A customer of mine sent me this, about a Forest Service park we run in Florida called Juniper Springs. It's a bit crude in parts, but demonstrates the frustration the public had with closing Federal parks that should have stayed open under private operation.

Does it violate Godwin's law to get a 5-star rating from Hitler?

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.

I find it funny that Obama used the phrase "completely unnecessary damage" vis a vis the shutdown, since that seems to have been his staff's explicit marching orders:  Inflict completely unnecessary damage.  It was pretty clear there was never justification for the Administration to close our privately-funded parks.  Over the last week, case after case in court overturned similar orders in the NPS and USFS.  I just wish our TRO request had come to court a bit sooner so we could have had the precedent in hand.

Anyway, we are opening today, and readers will be spared more posts on our situation.  I know some of our customers are reading this site for updates.  The updated status of all our Forest Service campgrounds and parks and when they are opening is here.

You may be wondering under what authority the government is taking actions during the government shutdown.  We had a meeting with the Chief of the US Forest Service on Friday.  This is the specific text the Administration is using to justify all of its shutdown actions

(a)(1) An officer or employee of the United States Government or of the District of Columbia government may not—

(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation;

(B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law;

(C) make or authorize an expenditure or obligation of funds required to be sequestered under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985; or

(D) involve either government in a contract or obligation for the payment of money required to be sequestered under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985.

I will leave it as an extra credit exercise for the reader to explain how this text justifies either a) spending extra money to barricade war memorials on the Washington Mall or b) closing privately-funded parks that take not a single dime of government money.    All these tests have everything to do with limiting government expenditures, not limiting citizen access to public lands.

We had some delays (in part because the government is taking a holiday from the shutdown today, so everything is REALLY closed) but we file our lawsuit seeking a temporary restraining order on the US Forest Service in the morning.