Submitted by: White Cloud Outfitters Mike Scott and Louise Stark PO Box 217 Challis, ID 83226

Transcription

1 Submitted by: White Cloud Outfitters Mike Scott and Louise Stark PO Box 217 Challis, ID RIN 0596-AC50 Proposed Directives for Forest Service Outfitting and Guiding Special Use Permits and Insurance Requirements for Forest Service Special Use Permits, October 19, My name is Louise Stark. Mike Scott and I own White Cloud Outfitters which we have operated as licensed outfitters & guides since We operate on the Sawtooth National Recreation Area (a District of the Sawtooth Nat. Forest) and also the Salmon Challis National Forest where we hold Priority Use Permits for summer horseback rides, packtrips, big game hunting, high mt. lake fishing, and snowmobile use in conjunction with hunting. We hold current 5-year permits with both agencies and are licensed to hunt in Arizona under Temporary SRPs with the BLM. The first portion of my comments deals with the deficiencies in the Federal Register Notice of October 19, I then offer suggested revisions to the Forest Service Handbook to which the Federal Register Notice refers. The negative impacts on our business would be substantial if unused priority use would be given to non-profit groups and other organizations when not used by us. These new permittees would in essence become our competitors without the required credentials. These new permittees would also have to become licensed outfitters and guides through the State of Idaho and comply with state statute regarding the safeguard of the health safety and welfare of the public. They would need to be licensed, bonded and insured as well as permitted by the Federal Agency responsible for the public s resource. The Notice boldly states that the directives are supporting small businesses. 72 FR However, unless revised, the directives will have dire, negative consequences on a number of small businesses and organizations. Long term negative impacts on my small business: 1. The Notice fails to disclose that shifting use from regulated priority use to loosely regulated temporary use will occur at the expense of small commercial outfitter and guide businesses and organizations with priority use. To provide use for temporary permits the proposed directive requires drawing down the capacity assigned to priority use permittees. This strategy is guaranteed to result in a repeated reduction of days available for permitted priority use for many small businesses and organizations that are otherwise in compliance with agency regulations. This provision will have irreversible negative impacts on my business. The proposed directives provide no discernible method or intent by the Forest Service to enable me to recover priority use service days upon which small businesses and organizations operate. While there is some reference to planning to determine the balance between temporary use and priority use, the bias in the Federal Register Notice and 1

2 the attendant Forest Service Handbook Revision is to reduce use for existing priority use permittees for existing small businesses and organizations. Under the directive, existing priority use permittees are required to use 100% of their allocated annual use once within each five year review period to avoid reduction in their allocated use. This is an unreasonable standard for most outfitting businesses due to cancellations, group buying patterns, changes in the length of the season due to snow pack, fire closures, and other issues beyond the control of the permittee. Even with the provision that adds 10% to actual annual use, this formula virtually assures that overall allocations for priority use by many small businesses and organizations will be reduced because very few can operate at 100% of allocated capacity. Examples: 1. In order to preserve viable big game populations, we offer our black bear hunts on alternating years. This allows for an harvestable surplus in the population of bears. If we do not use those priority use days in the spring season, could the Forest Service permit another group or non-profit organization to fill those service days on alternating years? How ridiculous would that be to encourage the harvest of bears at a lower age structure when we have chosen to hunt in a way to conserve this resource. 2. Much of our fall season hunting use in Idaho is dependent on the outcome of a state held Draw. Therefore our fall season priority use fluctuates from year to year. This is also common place in Nevada and Arizona. How can we predict whether all priority use days will be used when many hunt outfitters deal with such an unknown as the outcome of a random draw for tags/licenses? 3. The state of Idaho regulates the activities, waterways and hunt areas in which outfitters operate. All licensed outfitters must also have valid Special Use Permits. It appears this new directive is working in contradiction with Idaho s authority to license its outfitters and guides. We know there is another method available to the agency to provide temporary permits where appropriate for one time events. We have used such comparable methods in Nevada, Utah and Arizona for one-time Bighorn Sheep hunts and the current administration of this temporary use works well with the Bureau of Land Management. Unfortunately, the proposed directives in the Notice and Handbook create an inflexible formula that requires field staff to diminish use allocations for very good permittees. It does not sufficiently account for naturally occurring aberrations in demand; the nature of group buying that is especially prominent for day trips or the variations in the length of seasons for activities dependent on snow pack or other weather related phenomena. We do not believe that a rigid, one formula-fits-all approach, as reflected in the directive, is appropriate. Bias in the directives against the small businesses serving the outfitted public 2

3 Only outfitters, who provide services to the public under priority use permits, lose access under the proposed directives even when there is additional capacity at the resource area. Companies and organizations providing outfitting services under term permits and those services authorized under temporary permits are not subject to the same 100% utilization requirements to qualify for permits or use. Demand for temporary permits does not justify imposing different, more stringent, and unreasonable restrictions on priority use permittees. This inconsistent application of standards represents an arbitrary and capricious decision. Because the directives will diminish the potential for outfitter operations to bring visitors into rural areas, the proposed policy will damage rural economies. This damage will occur in two ways. The capacity to serve visitors and groups will be diminished by ratcheting down use allocations and eliminating outfitters firm capacity. Those outfitters located in rural areas will also loose the ability to sustain and support investments and capital improvements in their facilities and services. Furthermore, while existing permittees are subject to stringent cost recovery and NEPA evaluations upon permit renewal or if they propose to modify their uses under existing permits, new applicants for temporary permits have no such burden. They may provide some of the same services requested by existing permittees, who were prohibited from doing so by the agency s cost recovery and NEPA requirements. This discrepancy in documentation requirement is clearly arbitrary and capricious. White Cloud Outfitters lives and operates out of Challis, Idaho a community of 900 people. Challis is the county seat for Custer County which is only 3 % privately owned. Legal legitimate outfitting/guiding businesses are critical to Custer Co. economy. We are also the industry which provides the public safe access, necessary equipment and expertise to access surrounding BLM and Forest lands and waters. We DO NOT operate from the back of a trailer! We have made substantial investments in property, employee housing, horse handling facilities and equipment. Us and those like us are the backbone to rural economies. We bring new money to small communities and the dollars spend by clients are circulated back into the community due to the needs of our business. Why would the Federal Gov. want to jeopardize this balance tipping the scale in favor of those who will add very little to rural local economies? Most Idaho Outfitting businesses already serve the segment of the population referred to by this directive. White Cloud Outfitters utilizes the state s Junior Hunter Mentoring program by encouraging family cow elk hunts during a specific season in the fall. The state offers licenses and tags at reduced rates to children years of age when accompanied by an adult. This family form of fall recreation is a large part of our business catering to youth hunting opportunities. We also offer group and family discounts when it comes to our summer horseback packtrips. We also service the Idaho and Utah based Boy Scouts who need drop-camp services to access the White Clouds when doing their extended 50- mile hikes or the like. What you are looking to create already exists in our business plan. Impacts of directives have legal implications 3

4 While we hope that the seriousness of the negative impacts and arbitrary and capricious decisions will justify a revision to the proposed directives, these impacts also result in the Federal Register Notice being invalid under the law. The Notice states that no regulatory flexibility analysis was conducted under the Regulatory Flexibility Act, 5 U.S.C. 603 et seq., because the Forest Service purported that the proposed directives would not have a significant economic impact on a substantial number of small entities. As the above discussion shows, this conclusion is not only clearly wrong, it reveals the fundamental failure on the part of the agency to fully appreciate the negative economic impacts of the directives on the small commercial outfitter and guide. Section II. Proposed Directive Text FOREST SERVICE HANDBOOK SPECIAL USES HANDBOOK Chapter 40 Special Uses Administration * * * * * 41.53b Objectives Comment: The proposed temporary use permit is inconsistent with the proposed objectives in 41.53b. to provide for the health, and safety of the visitors and protect the resources upon which the permittee operates. No check of qualifications is required for temporary use permittees and no record of the permittees previous performance is maintained. See our suggested changes in 41.53i 41.53c Policy 2. Do not authorize any development or permanent improvements in non-wilderness in the National Forest System for outfitting and guiding services, except when there is a demonstrated public need and the structures, improvements, or installations have negligible value and minimal impact on national forest resources, as with hitching posts, corrals, tent frames, permitted routes, and shelters. Comment: We support this language in general, especially the authorization of permitted routes, which could be especially helpful in converting temporary permits to priority use in wilderness. We support adoption of the policy developed in Region 1, which allows the use of secondary trails (sometimes referred to as non system trails) that are not on the agency s map by authorization of their use through the permit. The provision in 4., which encourages cooperation with outfitters is a very important and positive component of the proposed directives. We believe that it should be utilized in developing use thresholds for permittees at each resource that follow general guidelines recommended in 41.53l Allocation of Use for a Priority Use Permit. The proposed directives for issuance of temporary use may be in conflict with state regulations promulgated by State licensing boards for outfitters and guides. 4

5 41.53d Definitions Commercial use or activity Comment: While we support the general intent of the definition for commercial use or activity, we suggest adoption of a more complete definition, which is a modification of the BLM definition for commercial use. Commercial use is defined as use of the public lands and related waters for business or financial gain, including efforts to raise funds for non profit operations. When any person, group, or organization makes or attempts to make a profit, receive money, amortize equipment, or obtain goods or services, as compensation from participants in activities occurring on public lands, the use is considered commercial. Commercial use may also be characterized by public advertising for participants or situations where a duty of care or expectation of safety is owed participants by service providers as a result of compensation. Uses by scientific, educational, and therapeutic institutions or non-profit organizations are considered commercial when the above criteria are met. Such uses are subject to permit requirements when the above conditions exist. Non-profit status of any group or organization does not, in itself, determine whether an event or activity arranged by such a group or organization is noncommercial. Profit-making organizations are automatically classified as commercial, even if that part of their activity covered by the permit is not profit making. Priority Use. Comment: We emphasize our support for this definition as contained in the directive. Interim Priority Use. Authorization of use for a trial two year term for a new outfitter with no prior experience prior to issuance of a priority use permit for a full ten year term. Comment: This definition is added to provide a two year trial permit for new priority use permittees. Quota. Comment: We also strongly support this definition as written in the proposed directives.. Renewal. The issuance of a new priority use permit for the same use to the same holder upon expiration of the holder's current priority use permit. Comment: We also strongly support the renewal provision in the directives. Temporary Use. Comment: The definition in the proposed directives is inappropriate given the lack of viable alternatives to convert temporary use to priority use and given 5

6 the number of businesses and or organizations providing needed services to the public under this definition. Temporary Use Authorizations We recommend the following new definitions. a. Interim Temporary Use Permit For permits that are subject to conversion to priority use, temporary use may be authorized for up to five, one-year terms with no limits on the amount of use assigned to the permit until the Interim Temporary Use Permit can be converted to priority use status. The permit may include a clause that allows the use to roll-over for each year if no significant performance, financial, safety, or resource protection issues are found. Use may be adjusted from year to year as may be appropriate for resource conditions. Use pools for temporary use may also be established in accordance with 41.53j (revised). b. Non recurring temporary use. Authorization of a minor, non recurring outfitting or guiding activity for 1 season or less from non recurring use pools. c. Non recurring temporary use pool. A pool of use which may be established where appropriate for non recurring temporary uses. The amount of use assigned to the pool may be based on the general availability of capacity at a resource but without reducing allocations from any user segment. d. Temporary priority use. Authorization of a minor outfitting or guiding activity for 1 season or less that may be authorized from temporary priority use pools. e. Priority use pool. A pool that may be established through the issuance of temporary priority use permits by priority use permittees from voluntary contributions of use or redistribution of unutilized use allocations from priority use permittees consistent with the provisions in 41.53l. Use may also be contributed voluntarily to the pool by priority use permittees. This pool is designed to allow more efficient use of priority use h Applications for Outfitting and Guiding Permits 2. Proposal, application, and authorization procedures in 36 CFR and FSM 2712 apply to proposals and applications for outfitting and guiding permits. Comment: Some description of the applicant s qualifications to perform the services should be provided for priority and temporary uses j Issuance of Temporary Use Permits Comment: The proposed directive on temporary use is unworkable and should be deleted and replaced with the following language. Please use the definitions we offered 6

7 to for the types of temporary use. We believe that field staff should have options to manage use and to accommodate temporary use, for example, but not be required to establish use pools where there is no demand for them. The agency should have options for management of use. However, in some areas use pools are not required or necessary. In areas where pools are in effect and working, they should continue. The proposed directives inappropriately apply a one size fits all formula that eliminates many use pools. An Interim Temporary Use Permit may be authorized for five consecutive one-year terms with no limits on the amount of use assigned to the permit until the Interim Temporary Use Permit can be converted to priority use status. Temporary use may also be authorized from separate use pools under the following conditions with drawing from priority use. o Priority Use Pool. A pool for temporary priority use from use redistributed from or contributed voluntarily by priority use permittees may be established for use by existing priority use permittees. o A Non-recurring Temporary Use Pool may also be established that is independent of priority use but is determined by the availability of capacity at the resource at the time. The capacity established for the non recurring temporary use pool may also be established by Forest planning and resource management planning. o For example, if the resource is under capacity either through under utilization of priority use or self-guided use or if self guided use is not regulated, then a temporary use pool may be established for non recurring use. o Use pools that are in existence at the time of the issuance of this directive shall not be invalidated if they are working and meet the objectives of the directive. (We believe that it is important to note that use pools are not needed at every resource because there is either no demand for them or no need. In some areas, they are inappropriate for the types of use permitted. They should not be forced on permit administrators where existing systems are working.) Only one (1) temporary use permit may be issued per holder, including holders of priority use permits, per area consistent with resource needs assessments, capacity analysis, or other pertinent analysis, per calendar year. Issue temporary use permits non-competitively. Applications for temporary use shall include a description of the permittees qualifications, experience, and list any records of game and fish violations or convictions of federal or state laws or previous permit violations. References from previous permit administrators, as may be appropriate, shall also be provided and a listing of permits held for the past two years to the extent practical shall be included. 7

8 Annual performance evaluations may not be required for temporary use permits unless indicated. Temporary use permittees shall provide a report at the end of the period indicating the amount of use utilized, any significant injuries or resource impacts and a record of their performance report kept on file for five years. Failure to accurately report incidents may render the holder ineligible for future permits. Requiring an operating plan for a temporary use permit is at the discretion of the authorized officer. Require a daily itinerary when an operating plan is not required. If cost recovery provisions apply to priority use permits they should apply proportionally to temporary permits. However, we recommend that cost recovery not be applied to outfitter and guide permits k Issuance of Priority Use Permits 2. For new permittees, we support the establishment of an interim priority use permit prior for two years that is rolled over to a ten-year priority use permit with satisfactory performance. When a proponent or applicant for a priority use permit has no previous record of providing outfitting and guiding services that are equivalent or similar to the services to be authorized under the permit, issue an Interim Priority Use Permit for 2 years, with an option to extend the term for up to 10 years. Comment: Please note that new permittees may need a longer period to establish their use. Therefore, by extending the term to 10 years after the two-year trial interim priority use permit, the use review will occur 7 years after the interim priority use permit was issued. 4. Except as provided in 36 CFR (b), when a priority use permit terminates, the permit is subject to renewal without competition, provided that the use authorized by the permit is consistent with the applicable land management plan, applicable laws and regulations, and the terms of the permit and the holder has performed satisfactorily as demonstrated by acceptable annual performance ratings. These determinations shall be made in accordance with 36 CFR (proposal and application requirements and procedures); 36 CFR (cost recovery); 36 CFR (renewal); and FSH , section 11.2, paragraph 2 (proposals involving existing uses). Comment: We support the renewal provisions in 4. However, the provision, which includes a cost recovery requirement for NEPA evaluations,, should not be applied to recreation permits. We also eliminated the provision that allows permit decisions to be made at the sole discretion of the authorizing officer because these decisions can be made arbitrarily l Allocation of Use for a Priority Use Permit 2. Comment: For the reasons, explained in the prefacing comments, the strategy contained in the proposed directives to redistribute use after the five year review is inappropriate. We suggest a different strategy that compares utilization of a specific 8

9 permittee to the average utilization of the permittees at a resource which provide the same or similar services. During the 5 th year of a priority use permit, review use using periods of peak use at the resource for measuring actual use. a. use may be increased to actual use if additional use is available from unused priority use allocations provided that the overall capacity for priority use at the resource is not exceeded b. remain the same or c. be diminished if the permittees utilization falls significantly below average utilization for all the permittees at the resource. To determine utilization of annual allocations, do not use shoulder seasons or periods when permitted activity is not feasible even though the permit term may cover these months. Use shall not be reduced unless the permittee s utilization falls significantly below the average utilization of allocation for the permittees providing the same services at the resource. The average utilization of annual allocation by permittees providing the same service at a resource and under similar operating conditions may be the basis or guide upon which reassignment of use is based. The actual threshold to be used as the basis to reassign use shall be established in consultation with permittees at the resource, but shall encourage an optimum utilization of allocated capacity consistent with resource conditions, economic factors, variations in snow pack, the availability of hunting licenses/tags and game, fire and drought and similar factors. When a permittee falls 20% below the average utilization of use of all the permittees providing the same service under similar conditions at a resource, then use may be assigned at the highest level of actual use plus 25%. The agency shall consider extenuating circumstances, such as fire, illness in the family, drought, gasoline shortages or economic disruptions before withdrawing priority use. The unused allocation may a. be assigned to a priority use pool for existing permittees (if such pools are appropriate for use in a location); b. held in reserve in the event that there is a likely prospect that the permittee will recover prior to the next review period or changes in conditions at the resource require that the use not be authorized. A permittee who has lost use after utilization reviews may be assigned additional use up to their original allocation when their actual use equals or exceeds the average utilization of permittees at the resource for two consecutive seasons. The permittee may also draw use from the priority use pool for existing priority use permittees prior to the next review period. 9

10 The language on assignment of use when permits are renewed should also be changed. We very much support the renewal provision in the proposed directive. When a priority use permit is about to terminate and the holder has applied for renewal of the permit, review actual use during the last 5 years of the permit. Review use using peak season use periods at the resource for determining actual use. a. Use may be increased to actual use provided the overall allocation for priority use capacity is not exceeded; b. remain the same or c. be diminished if the permittees utilization falls significantly below average utilization for all permittees providing the same or similar services at the resource. Use redistributions upon renewal are subject to appeal. 4. Comments: We recommend changes to this section to ensure that establishment of a common pool for non-recurring permits does not require drawing use from existing priority use.. 7. Findings from inspections are not subject to administrative appeal. Comments: Since inspections are a significant factor in determining annual evaluations, they should be subject to appeal. 8. Inspections and other documentation shall be used as a basis for annual performance ratings (sec o, para. 4) o Administration of Priority Use Permits 3. Comment. The agency proposes to establish a scoring system to evaluate permittees performance to enable the assignment of ratings. Professional outfitter associations have extensive experience and valuable perspectives to provide to the agency in this area and should be included in setting any scoring system used to evaluate performance. 4. Ratings. We support the rating system contained in 4 and 5. Chapter 30 Fee Determination * * * * * Section 37 Outfitter and Guide Fees. * * * * * * * * Comment: The lack of a fee policy in the directives may make it difficult to accurately and adequately comment on these new proposed directives. One issue of concern is that outfitter and guide fees appear to be separated from fees for temporary permits. We believe the same basic fee policy should apply to outfitters and guides, institutions and other groups providing commercial services. Non profit status does not confer non commercial status or exemption 10

11 from the laws that govern outfitter operations. The fees in 37.21b should apply to outfitters and guides. FOREST SERVICE MANUAL CHAPTER 2710 SPECIAL USE AUTHORIZATIONS FSM 2713 Preparing Special Use Authorizations * * * * * Liability and Insurance 1. Inherent Risks. Comment: We appreciate and support the agency s recognition of the inherent risks involved in outdoor activities as stated in 1 a., b., and c. The permit language in the actual permit authorization should be modified to reflect the inherent risks identified in 1. a. The current permit authorization language in FS i (06/05) III. G. HEALTH, SAFETY, AND ENVIRONMENTAL PROTECTION does not reflect the astute observation in this section of the proposed directives. The current permit issued for outfitting and guiding should be revised to make it consistent with the recognition of inherent risks cited in this section. While holding the permittee to strict liability standards by the requirement to abate any activity or condition arising out of or relating to the authorized use, the language in G. also exempts the agency from any risks or inspections of the forests to eliminate the hazards referenced above. The permit language in G. should be modified to reflect the correct and appropriate observations in 1. a., b., c. and state that the permittee should take reasonable actions to diminish risks of the activity without compromising the reasonable enjoyment and challenge provided by many outdoor activities. 2. Insurance. Comment: Putting liability insurance limits in the directives and essentially giving them the status of regulation will limit the local agency s ability (at a district level)to adjust them, if necessary, in the event that limits are not available in the insurance market. We recommend that these limits be subject to modification without the requirement to issue a Notice in the Federal Register. Example: This exact issue came up with the BLM recently in Idaho. They now have established consistency between Field Offices within the state as to Low-Med.-High risk activities. Agency Managers/Permit Administrators can/have used this requirement to deter temporary use when administering new short-term permits. Permit administrators do not have enough knowledge of the liability/risk posed by certain activities nor the expertise to determine the need for higher limits. They do not understand that when you increase limits without due cause, this creates an 11

12 unnecessary financial burden on the good/excellent operators. Increases in limits of liability insurance can be subjective and higher limits can and do reflect back on the entire policy period (full-year premium) regardless of the length of the specific activity. Therefore, 1. and 2. should be stricken and replaced with the language below. Proposed language: (1) Liability limits may be adjusted to reflect the availability of coverage limits in the insurance market and the reasonableness of rates. Comment: We understand the interests of private land owners in this matter and only ask that the agency not succumb to unreasonable liability insurance requirements. Thank-you for the opportunity to comment on this proposed change. If you should have further questions, please don t hesitate to contact us. Sincerely Yours, Louise Stark White Cloud Outfitters (208)