Coyote Blog

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

Well it has been a busy 10 days for travel.  Last weekend my wife and I were at Harvard for our 25th anniversary of graduating from the business school there.   The way the b-school taught at the time, they basically locked 90 people together (a "section") in the same room for a year and threw teachers and course material at them.  I may have spent more time in a room with those 90 people than I spent in the same room with my dad growing up.  So you get to know them pretty well.  It was fun seeing everybody, though intimidating given all the folks my age running Fortune 50 companies or cashing out billion dollar startups.

After that, I went to Bozeman early this week and discussed free-market options for reforming the National Park Service at an event hosted by PERC, the Property and Environment Research Center.  On Tuesday we went into Yellowstone and met with the Superintendent there, who had also run the whole agency for about a year.  A lot of the discussion was about sustainability - financially.  The NPS raises less than 10% of its revenue from visitors, and so must constantly fight with Congress for cash.   One problem is that Yellowstone (perhaps their premier park) charges just $25 per vehicle for a one week admission.  This is insane.  We have tiny state parks in Arizona with one millionth of the appeal that fill the park despite a $20 a day entrance fee.  And the NPS (or really Congress) takes every opportunity to discount this already absurdly low rate even further.  You can get into all the parks for the rest of your life for a single $10 payment with the Senior pass.  This essentially gives free entry to their largest visitor demographic.

Today I am in Houston for a sort of climate skeptics' conference.  If you are in the area and the agenda looks interesting, they are still selling admissions (I think) for $75 for the two day event at the Hyatt downtown.   Rick Perry is speaking tonight, and that is supposed to be a draw I guess but I am actually skipping that and focusing on the scientists they have through the day.  Hopefully it is interesting, but I am also a conference skeptic so we will see.

I have gotten a lot of mail with moral support from readers as we try to deal with the fact that the White House has ordered privately-funded parks in the National Forest to close, flying in the face of all precedent and budget logic.

Many, many emails have encouraged me to disobey the order and keep the parks open for the public.  There are three reasons why I have chosen not to do so.

1.  Respect for Contract:  In my 25 or so lease contracts with the US Forest Service (the USFS insists on calling them "special use permits" but legally they are essentially commercial leases), the contract language gives the Forest Supervisor of each Forest the right to suspend or terminate the contract for virtually any reason.  Yeah, I know, this is a crappy lop-sided contract provision, but welcome to the world of working with the Federal government.  So each Forest Supervisor has the right to suspend our lease.  BUT....

The real question here is whether they have proper justification for doing so, or whether their suspension is arbitrary.  In another post I discuss why this action is arbitrary and unjustified:

Historically, the USFS has only rarely used this contract power, and its use has generally been in one of two situations:  a) an emergency, such as a forest fire, that threatens a particular recreation area or b) a situation where the recreation area cannot physically be used, such as when it has been destroyed by fire or when it is being refurbished.  Never, to my knowledge, has the USFS used this power to simultaneously close all concession operations, and in fact in past shutdowns like 1995 and 1996 most all concessionaires stayed open.

Budget considerations alone cannot justify the closure order, as USFS concessionaires do not use Federal funds and in fact pay money to the Treasury.  Closing us actually reduces the income to the Treasury as we pay our concession fees as a percentage of revenues.  Further, the USFS does not have any day-to-day administration responsibilities for these parks.  The only semi-regular duty is sometimes to provide law enforcement backup, but USFS law enforcement officers are still at work (we know this because they showed up to post our operations as closed).

The Administrative Procedure Act makes it illegal for a government agency to make a decision that is arbitrary, capricious or an abuse of discretion.  To this end, the USFS has not actually closed the Forests and still allows camping in the Forests.  Thus, the USFS considers it safe for people to be camping in the Forests and that doing so during the shutdown creates no risk of resource or property damage.  In contrast, the USFS has made the decision that it is not safe to allow camping in developed campsites run by private concessionaires.  The decision that developed campgrounds run by private companies must close, but undeveloped camping can continue, makes no sense and is arbitrary, capricious and an abuse of discretion.  If anything, closing developed areas but allowing dispersed camping increases risks to public safety and for resource damage as developed concession areas are staffed and trained to mitigate such risks (that's the whole point of having developed recreation in the first place).

While we feel good we have a winning argument, this is a complicated point that does not lend itself well to civil disobedience, but we are taking it to court and seeking an injunction to the closure.

2.  The wrong people would go to jail.  Civil disobedience has a long and honorable history in this country.  But the honor of such an act would quickly go out the window if I were to commit an act of defiance but others would have to go to jail.  We run over a hundred sites.  Telling my people to remain open would simply lead to getting my employees thrown in jail for trusting me and following my instructions.  That would be awful.  Just as bad, we can see from examples in the National Park Service that such disobedience would potentially subject my customers to legal harassment.  It's not brave or honorable for me to be defiant but to have others pay the cost.

3.  I could lose everything.  I don't want to seem weak-kneed here, but I would be dishonest not to also raise the small but critical point that I have almost every dollar I own tied up in this company, which does over half its business in the National Forest**.  My retirement and all my savings are in this one basket.   I would likely risk an arrest and a few hours in jail plus the price of bail and months of court appearances to make a point here.  I am not ready to go all-in with everything I own, not when there are other legal avenues still available.  If that makes me a wimp, so be it.

** you can be assured that the moment I have one minute of extra time we are going to be working on diversifying away from the US Forest Service as much as possible.

From the Washington Examiner.  Because tenants have to be evicted when their landlord goes on paid vacation.

National Park Service officials cited the government shutdown as the reason for ordering an elderly Nevada couple out of their home, which sits on federal land.

"Unfortunately overnight stays are not permitted until a budget is passed and the park can reopen," an NPS spokesman explained to KTNV.

Ralph and Joyce Spencer, aged 80 and 77, respectively, own their home, but the government owns the land on which it sits.

"I had to be sure and get his walker and his scooter that he has to go in," Joyce Spencer told the local news outlet. "We're not hurt in any way except it might cost me if I have to go buy more pants."

Of course, I am in the exact same position

I mentioned in an earlier article that the Administration is threatening to close US Forest Service parks it does not even fund or run, privately operated parks that happen to have the Federal government as a landlord.  In fact, in our case, we pay the US Forest Service between 8 and 22 percent of revenues as a concession fee, so by threatening to close us it is costing them, not saving them extra money.

Apparently, the NPS is already doing this:

National Park Officials closed down the educational Claude Moore Colonial Farm near the CIA in McLean, Va., even though the federal government doesn't fund or staff the park popular with children and schools. Just because the privately-operated park is on Park Service land, making the federal government simply its landlord, the agency decided to close it.

A Claude Moore Colonial Farm official said that the privately-funded staff is on the job Wednesday, but barred from letting anybody visit the historically accurate buildings or animals. Anna Eberly, the managing director, sent out an email decrying the decision and rude National Park Service staff handling the closure.

Pointing to Park Service claims that parks have to be closed because the agency can’t afford staff during the government closure, Eberly wrote: “What utter crap. We have operated the Farm successfully for 32 years after the NPS cut the Farm from its budget in 1980 and are fully staffed and prepared to open today. But there are barricades at the Pavilions and entrance to the Farm. And if you were to park on the grass and visit on your own, you run the risk of being arrested. Of course, that will cost the NPS staff salaries to police the Farm against intruders while leaving it open will cost them nothing.”

She added: “In all the years I have worked with the National Park Service, first as a volunteer for six years in Richmond where I grew up, then as an NPS employee at the for eight very long years and now enjoyably as managing director for the last 32 years — I have never worked with a more arrogant, arbitrary and vindictive group representing the NPS. I deeply apologize that we have to disappoint you today by being closed but know that we are working while the National Park Service is not — as usual.”

This is purely political -- it costs rather than saves the government money.