Coyote Blog

This is welcome news for those of us who do business on US Forest Service lands, but pretty surprising coming from the 9th Circuit:

Judges aren't professional land managers.

The Ninth Circuit Court of Appeals acknowledged as much July 2, after
spending the past few years micromanaging the Forest Service in a
series of court decisions that forest industry groups called
"increasingly aberrant."

In a landmark ruling July 2, the Ninth acknowledged that it erred in
its interpretation of a key environmental law and botched Mineral
County's post-burn case.

"We misconstrued what the NFMA (National Forest Management Act)
requires of the Forest Service," a panel of 11 judges admitted in a
ruling released July 2. "We made three key errors in [the post-burn
case]...Today, we correct those errors."

The
ruling in "Lands Council v. McNair," involving an Idaho project,
overturned a 2-1 decision from 2005 in "Ecology Center v. Austin."
McNair and Austin are the forest supervisors for the Idaho Panhandle
and Lolo national forests, respectively.

The dramatic ruling concluded by suggesting that the Ninth should weigh
other public interests in the future, not just claims of potential
environmental damage.

"Though preserving environmental resources is certainly in the public's
interest, the [Idaho Panhandle] Project benefits the public's interest
in a variety of other ways," the ruling stated. "According to the
Forest Service, the Project will decrease the risk of catastrophic
fire, insect infestation, and disease, and further the public's
interest in aiding the struggling local economy and preventing job
loss."

The US Forest Service's mission is a mixed bag, requiring it to balance mining, timber harvesting, recreation, and environmental preservation on its lands.  Such a mixed mission is virtually doomed to failure in today's political climate.  This virtually impossible balancing act has been made more difficult with the recent explosion of lawsuits from environmental groups all attempting to narrow the USFS mission to preservation alone, to the exclusion of other missions.  The 9th Circuit has to date been a leading facilitator of this process of placing preservation ahead of all other goals, in direct contradiction of the will of Congress in any number of pieces of legislation.

What follows is by no means the worst excess of our Congress.  But it is an interesting demonstration of how Congress attempts to disguise legislation that is intended to help just one important contituent.  The program looks moderately innocuous:

[T]his year's farm bill contains a special-interest provision you've
probably never heard of "” the Qualified Forestry Bonds program. This
provides federally funded tax-credit bonds for forest purchases that
meet the following four criteria:

The forest must be adjacent to U.S. Forest Service Land;

Half of the parcel must be turned over to the U.S. Forest Service;

It must include at least 40,000 total acres; and

It must be subject to a "native fish habitat conservation plan approved by the United States Fish and Wildlife Service."

Well, it looks like it might be some land acquisition scheme by the US Forest Service, though by my observation they really aren't staffed or resourced to manage the land they already have.

But here is the truth of it:

But this farm-bill provision offers a lesson on how things are
sometimes done in Washington. Only one parcel of land in the entire
United States meets the criteria set for the Qualified Forestry Bonds
program. You see, the U.S. Fish and Wildlife Service has approved
exactly one "Native Fish Habitat Conservation Plan,"
covering a 1.6-million-acre parcel that reaches from western Montana
into eastern Washington State. And that parcel is owned by the Plum
Creek Timber Company, the single largest private landowner in the
United States.

Arizona has always lacked a managed snow play area.  In the past, when the snow first flies in Flagstaff, everyone in Phoenix would hop in the car and sled any place they could find, even some downright dangerous spots on Interstate overpasses. 

After a year of work, we have opened the Wing Mountain Snow Play Area, just north of Flagstaff, Arizona.  We have a huge, managed parking lot, portable bathrooms, and concessions which include hot chocolate and sled sales.  If you live in Arizona, come and visit us this winter.

Update:  I think the season is going well, and we have good snow.  We had an enormous number of visitors on Christmas day, more than we could ever have predicted, and I apologize if anyone was not able to get in and play.  However, that day was an anomaly, and most days we have plenty of space to park and play.

To the bathroom question, we only just got the permit to run this facility from the US Forest Service a few weeks ago, so yes the bathrooms are just porta-john types.  Once we have a little time with the facility, we will work for a more permanent solution.   However, last year before we took over the facility there was only Mother Nature.

Running for-fee campgrounds on public lands often gets us into some controversy.  For example, many people wonder, sometimes in a fairly excitable manner, why they have to pay for camping on public lands when they have already paid their taxes.  The simple answer to this is that Congress and administrations of all flavors have consistently ruled for years that fees rather than taxes should support developed campgrounds.  Read this post for more, or call your Congressman if you don't agree.  Also, here is my company's FAQ on camping fees and private companies operating on public lands.

However, there ARE many free camping opportunities on public lands, but because of Forest Service terminology, these are sometimes missed by the public.  In most cases, when the Forest Service has a named campground, it requires a fee because it has a number of minimum features for the facility:

• Graded, and sometimes paved, roads and spurs
• Bathrooms, and sometimes showers
• Picnic table, tent pad, and fire ring / grill at each site
• On-site host / security to enforce rules (e.g. quite time)
• On-site operator with property and liability insurance
• Water supply that is frequently tested and treated when necessary
• Hazard tree removal
• Trash and (for campgrounds not on a sewer system) sewage removal
• Leaf blowing from trails and roads, site raking, painting, etc.

This stuff does cost money, and so the typical campground we run charges $12-14 a night, with 50% off for Golden Access patrons (i.e. senior citizens).  Heck, the insurance alone costs about $1.50 per night's stay, thanks to our friends in the tort bar.

However, most National Forests offer what is called dispersed camping.  This is camping out in the wilderness, without any amenities, and, at least in most cases, is totally free.  Most of these camping areas don't have names, just locations and boundaries.   Expect to give up all of the above amenities, and be ready to pack your trash out, but you can still pitch your tent out in nature without charge.  And in many of these locations, you can get far away from other campers.  Just call the local ranger district (contact info here) and ask them for information on dispersed camping.

One proviso - the biggest problem with these dispersed, non-hosted areas is, if they are heavily used, they can be a worse experience than the paid campgrounds.  They can accumulate trash from thoughtless patrons, and they can get very rowdy.  Dispersed campgrounds attract the best of campers - those truly trying to get a natural experience; and the worst of campers - those who don't want to follow rules, don't clean up after themselves, and who don't want to shut down their loud partying just because it is two in the morning.  Many people who initially opposed paid camping are now big believers, since they have learned to value campgrounds with rules and security after a few late nights listening to loud generators and drunken parties.  Talk to the ranger district to know what you are getting into at a particular site.

Sometimes entrepreneurs are successful enough to buy themselves sexy toys:  It may just be a nice pool table for the office, or it might be that new Gulfstream jet bought with the IPO proceeds.  But little did I know that entrepreneurial success would allow me to buy this beauty (click to enlarge):

This septic tank truck can really haul a load, carrying over 3800 gallons of, uh, poop.

We have a new facility at Pyramid Lake  we run in LA County, where, due to its location, all the bathrooms run into series of underground holding tanks.  At some point in the past, someone converted all the bathrooms into flush toilets, which in this area makes for a real waste of water and creates a lot of liquid waste we have to pump out and dispose of, at the cost of over $80,000 a year.  This truck is the intermediate solution, letting us cut our pumpong costs in half.  The long-term solution we are working with the US Forest Service on is to replace the bathrooms with a great composting technology from Bio-Sun, which will cut the waste and water use both to near zero.

One of my company's primary businesses is to operate National Forest campgrounds.  We have been told that starting immediately, and for an unspecified period of time, many of the campgrounds in the US Forest Service in East Texas, Louisiana, and Mississippi will be waiving camping fees for the foreseeable future.  We have been told that anyone can camp for free, and that they do not need to prove they are a hurricane refugee, nor do they even have to be from one of the affected states, to get the free camping.  The Texas Campgrounds we operate are now free to campers, but we have been instructed to still charge fees for day use and for purchases (such as for firewood).  The number of states affected may be larger than just these three, but so far the campgrounds we operate in Kentucky, Florida, and New Mexico are still charging fees.  Update:  campgrounds in Alabama, Arkansas and Oklahoma are also included, see below.

Subsidizing camping for refugees makes sense, though I am not sure why the Feds are subsidizing camping for everyone, but I guess they despaired of coming up with a fair way to separate homeless refugees from regular campers, so they made it free to everyone.  I have not been instructed whether the usual 14-day stay limit enforced by the Forest Service is still in effect, but I will assume it is until informed otherwise.  The 14-day stay limit has also been waived.

Update:  OK, here is the release:

FOREST SERVICE WAIVES CAMPGROUND FEES FOR HURRICANE KATRINA SURVIVORS

Washington, Sept.3, 2005 - The USDA Forest Service is taking another
step to assist survivors of Hurricane Katrina by temporarily rescinding
the fee requirement for campgrounds and the 14-day stay limit for
camping on some National Forest System lands in the Southern Region.
The normal fee range is $4.00 to $25.00 depending on the location.

The forests offering free camping include the Kisatchie National Forest
in Louisiana, the National Forests of Alabama, the Ozark-St. Francis
National Forest in Arkansas, the Ouachita National Forest in Arkansas
and Oklahoma and the National Forests and Grasslands of Texas. In all,
106 campgrounds are open without charge to victims of Hurricane Katrina
as they transition through these first weeks of the disaster.

Per comment below, an update on free camping opportunities here.

Technorati Tags:  Katrina, Camping, Recreation

I have written a number of times about bureaucratic hellhole and most bureaucratic county Mono County, California.

Today, they confirmed by mail that my 11 campgrounds, all within 3 miles of each other and managed under a single contract as a single complex with the US Forest Service, now need to be registered separately with 11 tax ID's and 11 separate sales tax reports.  I must fill in the same detailed application 11 times, and each application has 3 pages plus 3 carbons for a total of 66 pages of information.  So, in order to collect exactly the same amount of tax that I have been collecting on exactly the same campgrounds for the last several years, Mono County needs 66 pages of paperwork, and apparently needs these same 66 pages filled out again each year.  Also, instead of filing a single consolidated sales tax report each quarter, I now must file 11 separate reports for a total of 44 a year. 

Can you imagine the insanity if the whole state adopted this approach?  That McDonalds in California or Unocal would have to file thousands of reports a month instead of one?  This is what happens when you let bureaucrats run amok.

Frequent readers of this site may know that my day job is running a company that manages recreation sites under concession contract to a number of public landowners, including the US Forest Service.  I take a lot of pride in this job, as our company helps keep recreation facilities open that the government might not have the personnel or the skills or the money to run.  The Forest Service's budget gets cut about every year, such that tax money comes nowhere near covering the cost of managing recreation sites.

Of late, the Forest Service has begun looking to actually close some recreation facilities:

The cash-strapped
U.S. Forest Service can no longer afford to maintain many of its parks
and has started ranking recreational sites, including campgrounds and
trail heads, for possible closure.

Supporters of public lands generally hate the onset of fee-based recreation, and wish it was still possible for all public recreation facilities to be free.  This was a realistic goal back when recreation facilities were cheap to run, but today campgrounds and other such facilities can be tremendously expensive(a single large campground might cost as much as a half million a year to operate), in large part due to actions by the same people who support free use of public lands.  Some examples:

• 50 years ago, campgrounds labor was essentially free because it could be staffed with volunteers.  With current labor laws, this is no longer possible (even if people still want to volunteer), and a large campground can require hundreds of thousands of dollars of labor to maintain each year, even at minimum wage.
• 50 years ago, people in the outdoors just drank water from a stream or out of the hand pump.  Today, in certain complexes, we spend tens of thousands of dollars keeping water systems in compliance with complex state laws.
• 50 years ago, if someone tripped over a root in the forest or twisted their ankle on a rock, they accepted that as a normal risk of being out in nature.  Today, everyone calls their lawyer.  Each year, campground visitors file millions of dollars of lawsuits for accidents once thought to be normal hazards of nature.
• 50 years ago, active timber sales in the forest helped fund recreation programs.  Today, timber sales in many forests are at an all time low, due in large part to opposition by nature lovers

So, I admit I don't know the person who said this:

"They will close
those sites the public has always enjoyed but which they cannot afford
because they are not profitable," said Scott Silver of the Bend group
Wild Wilderness. "It's the complete perversion of the meaning of public
lands."

But I would bet quite a bit that he supports some or all of the laws and government regulations listed above that make running recreation facilities so much more expensive than 50 years ago.

Update: By the way, though I might disagree with Scott Silver on the necessity of use fees at developed facilities like campgrounds or boat ramps, he is dead on in certain respects:

• Politicians love to fund splashy new recreation projects, but hate to fund basic maintenance.  This means that at the same time campgrounds and facilities are closing due to lack of maintenance dollars, new facilities are being opened all the time.  This strikes me as absurd. 
• Recreation facilities on public lands are missing the boat when they attempt to emulate private operations too much.  There are plenty of KOA's next to the interstate with pools and video game rooms.  Campgrounds on public lands have typically taken a different approach and served a different niche, that of providing a more primitive experience closer to nature, and I think its a mistake when they move away from this approach.

Unfortunately, as is often the case, I will never be able to see eye-to-eye with such groups because they refuse to acknowledge that as a private company I can be anything but Darth Vader with secret plans to put up a Walmart in Yosemite or put up billboards along a nature trail.  Crusading socialists often have the funniest ideas about the profit motive.  For example, if I make most of my money at a recreation site catering to people who want a wilderness experience, why in the world would I do anything to interfere with that experience?  It does not matter what the situation or the facts or the company, the first arguments are always that private companies just want to take a natural setting and put up advertising, then build a shopping mall.

By the way, Mr. Silver sees conspiracies among the private recreation companies.  I have sat on some committees in the "evil" organizations he cites, and I will tell you with complete assurance that these groups would have trouble crafting a successful plan to buy a 6-pack of beer from the local 7-11, much less shape government policy to their ends.  But maybe I got left out of all the really cool SPECTRE-type meetings. 

In the span of one hour this morning, I got to "enjoy" both my most and least favorite business activity.

My least favorite activity is always paying taxes, but within that broad category (remember that being in 10 states and 25 counties means that I file over 50 different tax returns or one sort or another every year) my least least favorite are business property tax returns.  If you have not run a small business, you may not be aware of what a pain these are (individuals don't have to file them, and large companies have poor schleps in accounting to do it). 

First, business property tax statements usually have to be filed by county, so I have to do a zillion of them.  Second, governments require that you report every year and in great detail on essentially every asset your business owns in a state or county.  A business must report these assets, usually with a description, date purchased, original purchase price and estimate current market value.  Imagine as an individual if you had to report this information on everything in your house - furniture, computers, appliances, tools, etc.  Now imagine doing it for a business, which owns a lot more miscellaneous stuff than you have in your house.

What really irritates me is that filing some of these statements requires the person filling out the statement to take a chance.  Clearly, no one is going to list every asset, down to the last pencil and paper clip -- you are going to establish some reasonable cutoff, and group similar assets into catch-alls like "miscellaneous tools" or "office supplies".  Note however, that this is taking a chance:  In counties that require detailed asset listings, there is never any statutory language like "you can ignore items under $100 as de minimis" or "you can group similar items".  Technically, you are supposed to list them all.  Take my word for it, this is very, very tedious.

But wait, as the Ginsu knife guy would say, for our business there is more aggravation.  We do business as a concession holder on federal lands.  For example, we might run a US Forest Service campground.  By US law, states and counties may not charge the US government property taxes on these facilities.  BUT, certain of the most acquisitive states, including California and Washington, have devised taxes that get around this requirement.  These two states make me pay the federal government's property taxes for them at the facilities I operate.  This is kind of like being forced by law to pay your landlord's taxes for him.  I always find this terribly irritating, all the more so since now that I know the game, when time comes to bid on concessions in these states, I just subtract the estimated taxes from what I am willing to pay the government in rent, in effect ensuring that the US government ends up paying the tax. 

This whole enterprise left me feeling depressed, when a couple who I had called about a manager position at a new store concession of ours at Clear Lake State Park in California called me back.  It turned out this couple is incredibly entrepreneurial, has great business experience, and are very well-suited to running my operation with minimal supervision.  I was thrilled to find them, and they were in turn thrilled to find an outdoor summer job opportunity in a nice location which could be flexible enough to accommodate a person with a disability (one of the couple has Parkinsons).  There is NOTHING I enjoy more than finding great people to work for me, and finding such people is all the sweeter if I can offer them an opportunity that uniquely fits their own needs. 

My company operates campgrounds and other recreational facilities on government lands, and the US Forest Service is our most important partner.  We work day-to-day with about 20 or so district rangers, who are the front-line general managers of the Forest.

My observation over time is that USFS district rangers have a nearly impossible job.  By their enabling legislation, the USFS is tasked with balancing logging, mining, ranching, recreation, forest health and environmental stewardship in running the forest.  In our modern day age of uncompromising special interests and conflict resolution by lawsuit, it is absolutely impossible to make any decision  without sending some party scurrying to the courts.  In particular, environmental groups have become expert at tying up any decision in court, and attempting to block any of the other competing interests.

The current Administration has introduced new rules intended to make this job easier.  As reported in the New York Times via the Commons Blog,

Forest Service officials said the rules were intended to give local foresters more flexibility to respond to scientific advances and threats like intensifying wildfires and invasive species. They say the regulations will also speed up decisions, ending what some public and private foresters see as a legal and regulatory gridlock that has delayed forest plans for years because of litigation and requirements for time-consuming studies.

I hope this is true, because I feel for front line forestry personnel who joined the service mostly because of their love of the outdoors and the environment, and have been forced instead to become amateur lawyers.  However,  I doubt much will change.  I think that intelligent planning and negotiation may be gone forever in working on environmental issues in favor of litigation.

By Federal law, U.S. Federal Government lands and property are exempt from state and local property taxes, just like sales to the U.S. Government are exempt from state sales taxes.  This means that, for example, the feds don't have to pay property taxes to Wyoming for the buildings and improvements in Yellowstone National Park.

Most states may sulk about this but they live with it.  However, a few of the most tax-avaricious states, including California and Washington, have found partial way around this. 

I just got my "Leasehold Excise Tax Return for Federal Permit or Lease" from the state of Washington.  What the heck is this?  First, some background.  My business runs campgrounds under concession contract with the US Forest Service in Washington State.  These concession contracts are legally like leases, in that I lease the facilities for a percentage of sales payment in return for running them for-profit.  Washington State can't charge property taxes on the campground itself, since its Federal property, so they charge a steep tax on the rent we pay to the Federal Government.  In Washington, the tax this year is 12.84% of the rent payed.

Yes, that's right.  The state only charges this special tax for rents payed to the US Government. No other rents get taxed.  The tax exists for no reason other than to get around the limitations on taxing the US Government's property.

If asked, Washington would piously state that, oh, we aren't taking any money from the feds, we are taking it from private entities.  Yes and no.  Yes, I as a private entity, I am paying it.  But, given how I bid for these leases, the state tax clearly comes right out of the Feds hands.  When I bid this project, I figured out what rent I could pay the government, and then backed out how much I would have to pay Washington State and bid the lower sum to the Feds.  In this case, Washington State is very clearly taking money right out of the US Government's pocket.

And for what?  Washington State provides no services or utilities to the campground.  The US Forest Service provides the fire protection, its own law enforcement officers, its own water and sewer systems, and its own roads.  There are no residents on the property, so no one associated with the property is using schools or other services.  And, because of sky-high sales and lodging taxes in Washington (from 10-12.5% of sales for camping), the properties are already contributing a ton to state coffers.

This is part 3 in a series of my real-world experience in dealing with the Department of Labor (DOL). If you have not already, you should also check out part 1 and part 2 for background.

In this post, I will show you how we defended ourselves in a case where the DOL was extremely reluctant to grant us a legal exemption to the Fair Labor Standards Act (FLSA). It is highly unlikely that this exemption is relevant to you - it is narrowly directed at seasonal recreation businesses, but I think the process and what we learned from it may help you out in your own interactions with the DOL.

Continue reading ‘Working with the Department of Labor: Part 3’ »

Note that this is part 1 of a three-part series. Here are part 2 and part3.

Over the past several years, we have been audited a couple of times by the Department of Labor (DOL). One of the audits was standard procedure (as a concessionaire to the US Forest Service, audits are sometimes required on certain contracts) and one was based on employee complaints. It never ceases to amaze me that some folks never even bother to call our HQ to complain and try to get it paycheck mistakes fixed -- they go straight to the government rather than our labor department if something looks wrong on their check.

Many times I have heard other small business owners say that the DOL is not "fair". If you were to ask me if I think they are fair, I would answer "yes" and "no". If you want to know if DOL employees are generally honest, well-intentioned, and law-abiding, my experience is that they are. However, if you expect, as a business owner, that the DOL will act as some kind of neutral court of law, in which you and your workers have equal status and equal rules of evidence, then you are in for a surprise. The DOL is not on the employers side and doesn't really pretend to be.

This should not come as a surprise to you. Young lawyers out of school generally don't seek out lower government pay scales with a vision of helping businesses manage their cost structures. They join the DOL because they are interested in defending downtrodden workers against rapacious capitalists who seek to exploit them (etc. etc.) The main mission of the DOL is to enforce labor laws like the Fair Labor Standards Act (FLSA). However, overlaying this mission is a strong institutional culture that mission 1A is to defend workers against employers. This culture will have a number of implications in any dealings you, as an owner or employer, have with the DOL:

1. Workers claims will almost always be believed by the DOL, and the DOL will generally not require much documentary evidence to back up workers claims. The flip side of this is that employers claims that contradict workers will always require extensive documentary evidence. For example, we had several weeks of time sheets burn up in an office fire. In cases like this, the DOL will generally always side with the worker's recollection of time worked rather than the employers, even if the time claimed is completely inconsistent with hours worked in all other documented weeks. The burden of proof, in almost any dispute, will be on the employer.

2. The DOL's first answer to any employer's claims of an exemption under FLSA or other labor laws will be "NO". Congress has granted a number of exemptions to labor laws for certain business situations. For example, one that applies to our business in some cases is the FLSA has relaxed standards for overtime for "seasonal recreation businesses". From my experience, the DOL hates to admit that these exceptions apply to your particular situation. Back to the fairness point, they CAN be convinced, but sometimes it takes a lot of work to do so. In part 2 and part 3 of this series, I will give more specific examples of how to do this.

3. The DOL will never point out to you an exemption or saving that you are missing. I know that many people get frustrated with the IRS, but I have actually had experiences where the IRS found a mistake where I had overpaid. I have never had this experience with the DOL. The DOL does not really have very good staff or tools to help employers comply with the law in the most efficient manner. They have LOTS of tools and people dedicated to making sure workers get every bit of what the law guarantees them.

If you recognize this culture and context, and put any frustration that you might have as a tax-paying citizen and business owner aside, you can get a fair shake from the DOL. You just have to be prepared in advance to argue your case and bring lots of evidence to bear. And, if worst comes to worse, and you are willing to pay the attorney fees, you can always refuse the DOL's finding and take the case to a court of law, where there are much more neutral evidence standards.

The next part of this series will discuss further some examples and lessons learned in making your case to the DOL. Part 3 of the series will include a specific example.

Note: These are my observations as a business owner and are not specific recommendations. I am not a lawyer, and, even if I were, I am not your lawyer.