Why The Shutdown of Concessionaires is Arbitrary and Capricious

We are preparing to go to court to reopen privately-funded parks in the US Forest service that take no Federal money, yet have recently been closed due to budget shortfalls.

Our USFS contracts give the local Forest Supervisor the right to suspend the contract.  However, 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).

  • http://www.kipesquire.net KipEsquire

    Don't tell the Human Rights Campaign...

  • NL7

    Seems like you should speak to an attorney. Maybe IJ or Pacific Legal would be interested in this case. Does APA give contractors the right to an appeal hearing?

  • DensityDuck

    What's going to be fun is when the government reopens and suddenly your concession operation is responsible for A: determining the extent of damage in public lands caused by off-site camping, B: developing a plan for repairing of mitigating that damage, and C: paying a fine for not having done A and B prior to the government reopening.

  • orick

    It sounds like if your lease contracts are "suspended," at least you would be entitled to withhold your rent payments.

  • http://devilish-details.blogspot.com/ mesaeconoguy

    Great idea - IJ, or maybe Goldwater?

  • Arrian

    Since you have the legal system involved, might I suggest you take Ken from Popehat's advice (Shut up! Shutupshutupshutup!)? Or, at least speak with your lawyer about what sorts of things are OK to talk about and which subjects you should avoid or at least handle with kid gloves.

    I love following your blog and hearing about what's going on. But, impatient as I am, I'd rather wait and hear the story of a successful resolution after the fact that hear the story of an unsuccessful resolution realtime if the realtime story has any possible chance of negatively impacting the outcome.