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America Outdoors E-Bulletin
April 7, 2006

Bright Industry Outlook for 2006 Permitting and Cost Recovery Update
Institutional Groups and Some Non Profits Push for Exclusive Permit Allocation Church Camp Sues for Access to the Youghiogheny River
Wilderness Watch and Other Groups Sue Over Grand Canyon Management Plan; Charge That Commercial Services Are Not Necessary Park Service Funded Study Finds New River Gorge Generates $80 million
Most States Will Use Existing BLM RAC's to Advise on Fees

Bright Industry Outlook for 2006
  Optimism abounds among America Outdoors members for a successful 2006 season. America Outdoors expects to see overall growth of 5% in the adventure and active travel market in 2006 based on use data and trends from 2005. Rafting, kayak touring, cycling, cabin rentals and multi-sport adventures are expected to grow in 2006.

Use data shows a significant recovery for river companies in the West in 2005. Commercial rafting throughout the state of Colorado was up 14% and was within 4% of the previous peak year. Guest ranches generally did well, according to reports from the Dude Ranchers Association. Some multi-sport companies are reporting business growth.

This bright picture is dimmed somewhat by flat trends for river companies in the East. Some recovery may have occurred in the East last year if not for inclement weather in the early summer. With the expansion of the school year into mid August in many areas, a strong May and June is necessary for rafting businesses to grow.

In 2005 commercial rafting was down or flat in West Virginia, Maine and Tennessee. The Ocoee saw a 1.6% increase in 2005, but is still down 16.6% from its peak year in 2000. In West Virginia, the industry has declined by about 18% since its peak year in 1995. The State Tourism Director recently reported that use was down 2% in 2005 compared to 2004.

The projected growth should help offset some of the slide in profit margins since 9/11. Some outfitters are adding fuel surcharges to cover their increased transportation costs. An unexpected cost for eastern outfitters with big base camps is markedly increased property taxes.
Permitting and Cost Recovery Update
Federal agencies are looking for new sources of funding to offset a decline in inflation-adjusted budgets. Agency budgets are under pressure because automatic pay raises for employees keep their costs rising even as their recreation budgets are cut or remain flat. Retirement costs, which used to be a separate line item in the federal budget, are now embedded in each agencies' budget. Cost recovery for permit administration is one of the strategies used to offset losses in appropriated revenue because cost recovery includes salaries and overhead costs in addition to the expense of analyses. Bidding for permits, which NPS currently utilizes, is also an option the Forest Service has attempted to implement as its "fair market value" initiative.

The Forest Service is currently amending its permitting policy and has implemented a new cost recovery rule which will require outfitters to pay for the costs of permit administration when time spent exceeds 50 hours. Both efforts are seen as revenue enhancement strategies. Most routine renewals will probably not be subject to cost recovery unless the agency requires significant changes to the operation. Permit monitoring is not included in cost recovery.

The permitting policy changes will likely deal with fee issues and require higher utilization of permit allocations. Cost recovery will impact outfitters when management plans require changes to permits. Costs for analyses, including NEPA, will have to be paid by permittees unless the process fits into the agency's programmatic agenda, which is undefined.

NPS announced interim guidelines for issuance of Commercial Use Authorization (CUA) requiring a competitive process when authorizations are limited. Most Park superintendents do not appear to be implementing the guidelines for 2006, but a proposed rule is expected to be released this year and when final, Parks will be required to abide by the directives within the rule.

Dirk Kempthorne, the Governor of Idaho, has been nominated to replace out Interior Secretary Gale Norton. This appointment should give outfitter and guide issues a higher status within Interior, since outfitting plays a significant economic role in rural Idaho.

Institutional Groups and Some Non Profits Push for Exclusive Permit Allocation
The Forest Service is developing a new outfitter and guide permitting policy that will change the way use is allocated and fees are levied. A group of institutional and non profits made up of religious camps, universities and others are pushing for an allocation set aside for their outfitting activities according to one of AO's non-profit members who was approached to join the coalition. Some of these groups are seeking "non commercial" status even though many charge for their trips or take donations to fund their activities. This status will exempt them from cost recovery.

Since many institutions and non profits are already permitted in the commercial category, how the Forest Service proposes to manage a separate allocation pool exclusively for institutional or non profit use is a burning issue. Will they be allowed to participate in both use categories, one of which will be exclusive to their tax status? The agency is expected to draw the use from unutilized outfitter allocations. A proposed rule on the new policy is expected to be published sometime this summer.

Church Camp Sues for Access to the Youghiogheny River
Represented by the libertarian think tank, Institute for Justice, a religious camp, Summer's Best Two Weeks, sued the State of Pennsylvania challenging what it calls the Ohiopyle State Park's state-sponsored rafting cartel. http://www.ij.org/economic_liberty/pa_riverrafting/4_4_06pr.html

Ohiopyle State Park limits commercial operations to four outfitters. The camp, which raises donations to fund its operations, claims its campers don't pay for the rafting trips (which would make them non commercial). Their website clearly states: "Pay what you can if you can't pay it all."

Most campers are youth from well-to-do families, according to an outfitter who ran steeply discounted trips for the group. He even absorbed the State Park fees. The camp wants to be treated as a private trip and is protesting having to use an outfitter for their summer program. Dozens of summer camps, city and county recreation programs, non profits and university programs across the United States operate their own outdoor programs. They could easily overrun access to most resources where use is limited and many of their activities are commercial though some claim otherwise. A number of university programs offer their services to the public.

Wilderness Watch and Other Groups Sue Over Grand Canyon Management Plan; Charge That Commercial Services Are Not Necessary
Rock the Earth, River Runners for Wilderness, Living Rivers and Wilderness Watch filed suit last week to invalidate the Grand Canyon River Management Plan in an effort to install wilderness management in the Canyon and eliminate motorized raft trips. The complaint includes five counts. There is no word on who is funding the suit, but the plaintiffs are represented by the Western Environmental Law Center, Taos, New Mexico and Wild Earth Advocates in Eugene, Oregon.

Count I accuses the NPS of failing in its perceived "duty to manage the Colorado River as wilderness." Generally, this is the argument that the river corridor's status as a recommended "potential wilderness" triggers a non-discretionary legal requirement to manage the river corridor as de facto wilderness until such time as Congress decides the question.

In the plaintiffs' view, elimination of both motors and helicopters is mandated by law. The NPS position is that its legal obligations here extend only to protecting the area's suitability for possible wilderness designation at some future date. Because motors and helicopters are both transitory uses that do not threaten or degrade the area's wilderness suitability, NPS has taken the view that it retains management discretion to allow or not allow motors and helicopters independent of its wilderness recommendation for the river.

Count II argues that the commercial services authorized under the new CRMP are not "necessary and appropriate" and that the agency's decision to allow such uses at the designated levels is, therefore, arbitrary and capricious and a violation of the Administrative Procedures Act. This argument was used by Wilderness Watch in an effort to invalidate permits in the Sierra Wilderness areas California. After losing in District Court the Ninth Circuit agreed with Wilderness Watch because the Forest Service had not done a cumulative impact analysis for outfitter permits in these areas. The difference, however, is that in the California case, the areas were already designated wilderness.

Count III accuses the NPS of failing in its perceived "duty to avoid impairment of the Park's resources and values," or in other words, of violating the NPS Organic Act. The plaintiffs argue here that motorboats and helicopters "impair" the soundscape and the visitor's opportunity to experience solitude and natural quiet in the river corridor and that this amounts to a violation of law. As a general matter, it is NPS who gets to determine what "impairment" means on a case-by-case basis, and the courts must generally defer, assuming the NPS has not made some outrageous decision, to the agency's discretionary authority granted by Congress.

Count IV accuses the NPS of failing in its perceived "duty to provide fair and equitable access to the Park's resources."

Count V accuses NPS of a failure to take a "hard look" at the environmental consequences of the CRMP decision. The success of this charge will depend on how the court views the quality of the NEPA documentation.

  Park Service Funded Study Finds New River Gorge Generates $80 million
  Visitors spent $79,401,000 last year while visiting the New River Gorge in 4 West Virginia counties, helping to support 3,550 jobs, according to a National Park Service Study. Park visitors came from 37 states and Washington, D.C., as well as from nine countries. Forty-eight percent were 31 to 60 years old.

55 percent of the more than 1 million people passing through say they came to sightsee, the No. 1 activity, according to the report. After sightseeing, hiking and walking were the most popular attractions, followed by boating and rafting. Thirty-three percent said they came to enjoy the park's "solitude." Ten percent favored rock climbing, with 9 percent each voting for fishing and bird watching, and 5 percent for biking. Rafting and fishing guides drew the most money directly from visitors: $15,084,200. Next in line were hotels, motels and cabins, at $14,288,200.

Most States Will Use Existing BLM RAC's to Advise on Fees
  The Federal Lands Recreation Enhancement Act called for citizen input in the establishment of recreation fees through the establishment of Recreation Resource Advisory Committees (RRAC). However, America Outdoors has learned that the existing Bureau of Land Management Resource Advisory Committee (RAC's) which often have little recreation interests on them, are going to serve as the advisors on recreation fees in most states. Currently, only California, Oregon, Washington, and Alaska are scheduled to have their own Recreation RAC's. This list is preliminary and could have changed once recreation interests get wind of the set-up. The other states will use existing RAC's dominated by grazing and commodity interests, although some may have recreation subcommittees. All states east of the Mississippi will have Regional RRAC's. Region 8, the Southern Region, and Region 9, the Eastern Region, will each have their own RRAC.
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