The Forest Service used the last push by institutional groups for permits to down-size capacity of existing permit holders. The agency even attempted to eliminate temporary use permits without a transition option, which AOA got reversed. Some outfitters, who were not AOA members, lost their permits because they failed to notify the agency by the deadline of their desire to maintain their permit. Under the new rules issued in 2008, outfitters with more than 1,000 service days must operate at 87% capacity in one of five years to retain their use, which is difficult for a company operating with a daily capacity and a year around permit, for example. The formula for assignment of use when permit utilization is reviewed is bifurcated by the amount of assigned use and would probably not withstand a court test if an outfitter with legal standing challenged it. Outfitters with more than 1,000 service days are assigned actual use plus 15% while those with 1,000 or less get an assignment of of actual use plus 25% up to but not to exceed the original allocation (in both cases). Use withdrawn from existing outfitters may go into a temporary use pool for non profit use. It may be assigned to a priority use pool. In some areas the agency has established a pool for temporary permits for institutions without drawing down outfitters’ capacity. The Forest Service may provide access to temporary permits for 200 service days to non-profit groups without significant documentation requirements or a utilization requirement. Meanwhile, some outfitters have been plagued with endless documentation requirements for NEPA compliance, needs assessments in wilderness, capacity analysis and cost recovery requirements. Many Forests simply do not have the personnel or inclination to deal with any new or even existing permits in or outside of wilderness. That situation is likely to get worse as the budget for discretionary spending is diminished.
Ironically, convoluted wilderness management requirements for issuing permits have contributed to the gridlock that TWS is concerned about. It is an issue for existing permit holders, as well as those invited to The Wilderness Society coalition meeting. Fearing lawsuits by various groups opposed to organized group and commercial activities in wilderness, the Forest Service has been gun shy about issuing permits to any entity in wilderness without completing a maze of documentation. Most wilderness areas are managed for solitude and primitive recreation, thereby limiting access for outfitters unless an assessment of need and carrying capacity study establishes that services are "necessary" , do not detract from wilderness values, and establishes the extent to which outfitter services are necessary to fulfill the recreational purposes of the Act. A suit early this year in Sequoyah Kings Canyon National Park Wilderness threatened to shutdown horsepacking over NPS’ failure to complete an assessment of need for commercial services prior to issuing Commercial Use Authorizations (CUA’s). Abrupt bipartisan action by Congress led to a short-term exemption from the requirement for a needs assessment. Earlier lawsuits by groups sharply curtailed pack stock use in other Sierra Nevada Wilderness areas. In some wilderness areas party sizes and the capacity for commercially guided activities is so limited (usually about 10% of overall use), reducing that capacity makes no sense. In fact one can argue it should be expanded not diminished.
Wilderness Watch (WW) position in the last permitting policy revision contributes to the quagmire. The group generally opposes assigning allocation of use to permits and supports common pool. The group generated almost as many comments as were submitted by outfitters in last permitting policy revision, although most were form letters. In their letter commenting on the 2008 policy change, Wilderness Watch described outfitting as a "nonconforming" use of wilderness: "The wording regarding “Needs Assessments” for wilderness in section 41.53e.1.a should be revised to reflect that outfitting, by definition, is a nonconforming use in wilderness that must not be permitted to impair wilderness character. Again, the “purpose” of wilderness is singular, and not plural as written in this section."
The Courts disagree with the WW position and have required the agency to manage wilderness for all the purposes of the Act.